Sports Law Outline – Martin Edel I. Role of the Commissioner ( 61-69, 86-96, 109n.5, NBA v. NBPA) 1.

Parameters of the Commissioner's Authority 1. Charles O. Finley & Co. v. Kuhn (1978) 1. The Commissioner stopped the A’s from selling the contracts of three of its MVP’s court allowed him to do this with the “best interests of baseball clause”. 1. The commissioner is hired by the owners and has broad sweeping powers 2. The Commissioner can act on any matter that involves the integrity of or public confidence in baseball. Integrity and public perception of baseball are to be determined by the Commissioner. 1. Here the Commissioner has expressed concern for 1. debilitation of the Oakland Club 2. lessening of the league's collective balance 3. the unsettled circumstances of the reserve system. 3. MLB Agreement 1. “the functions of the Commissioner shall investigate...any act, transaction or practice... not in the best interests of the national game of baseball” and “to determine...what preventative, remedial or punitive action is appropriate in the premises, and to take such action...” Art I sec 2 (a) & (b) 2. Major League Rule 12(a): “no...[assignment of players] shall be recognized as valid unless...approved by the Commissioner.” 1. The clubs agreed to be bound by the CBA and Rules. 4. Must not act arbitrarily or capriciously. Decisions must be made in good faith, after investigation, consultation and deliberations in a manner which he determined to be in the best interests of baseball. Whether he was right or wrong is beyond the competence and jurisdiction of the court to decide. 1. Much like Chevron deference in Admin law, the commissioner is given wide deference to make such decisions because he is an expert and is held accountable to the owners. 2. Chicago NL Ball Club, Inc. v. Vincent (1992) 1. Commissioner Vincent wanted to realign the Cubs into the NL West division, the Cubs challenged his authority to do so. 1. 1982: Expansion and Realignment require: 1. 75% vote of all clubs 2. Consent of transferred club 2. March 1992: As one might imagine, the Cubs did not give their consent. 3. July 6 1992 : Commissioner does it anyway and realigns the Cubs 4. Question: Whether the broad best interests of baseball authority in the MLAgreement empowers the Commissioner to abrogate the Cubs right to veto their transfer (pursuant to the NL Constitution). 1. HELD: The power to investigate acts, transactions and practices does NOT encompass restructuring divisions of the NL. 1. There has been no affirmative conduct for the commissioner to investigate punish or remedy under Art I. Even if article I could be read this way Art. VII, expressly limits the commissioner's jurisdiction to resolution of disputes other than those whose resolution is expressly provided for. 1. Such in the NL constitution. (ArtI must be read in light of Art VII) 2. This is beyond the commissioner's power.

3. Commissioner Review of Game Officials (109 n.5) 1. Sometimes the decisions of game officials come into question. 1. Generally the commissioner will defer to the JUDGMENT call of the officiator because he is considered to be an expert, and he was there to witness the actual event, in real time. (wow sounds tons like admin law) 2. Umpires and referees are often considered to be final speakers of the game decisions. (Dont argue balls and strikes!) 3. Umpires are unionized, have conducted strikes and have some bargaining power 4. Though Commissioners have reversed game officials and ordered replays. 1. Depends on 1. Timing and severity of the mistake 1. Think a clock error early in the game may not necessitate replay, whereas a mistake late in the game may prevent that error from being corrected without a replay. 2. This is absurdly rare but, for an example see the George Brett walk off homerun against the Yankees. The homerun was later disallowed because of a pine tar violation. 4. NBA v. NBPA (2005) 1. This is the Ron Artest fight case. NBA Commissioner David Stern issued suspensions to each of the players involved with the fight. The players filed for grievance arbitration, because they contended this was an off the court issue. The NBA commissioner has final say on matters which occur on the court, off the court penalties are entitled to grievance arbitration hearings. The NBA ignored the union's notice. 1. HELD: The suspensions are entitled to an arbiter's review because the incident occurred off the court and in the stands. The arbiter was able to alter the suspensions. II. Discrimination in Sports 1. Discrimination is rampant in sports, but has generally shifted from on the field to off the field. 1. Not really discrimination so much as racial and gender inequity. 2. Several law's exist to curb discrimination in both the workplace and the educational settings 1. Title VII of the Civil Rights Act of 1964, Title IX as well 2. the 14th Amendment to the Constitution 1. Civil Rights Act of 1871 (ie section 1983) 2. Remember the State Action requirement 3. Equal Pay Act of 1963 3. Merit, Ol' Boy Networks, and the Black Bottomed Pyramid 1. Essentially, Black participants are concentrated at the bottom 1. Players 2. Whereas most of the top and mid-level non-athletic positions are filled by white people 1. There should be qualified black people for these spots, but they get passed over. 1. Theory: Ole Boys Club, the white guy at the top knows more white guys and hires them. Those guys in turn do the same all the way down. 2. Or Nepotism. 1. Don Shula's son, Don Shula is a coach. However, because his Dad was hired in an era where racism was normal, a black person does not get this same advantage. 3. While 8/10 NBA players and 68% of NBA and NFL players are Black respectively, only





5% of key sport management positions (front office, doctors, lawyers etc) are minorities. 1. Note, only 2.8% of top level managers in Corporations are black. Players who move up to the “corporate side” 1. George Brett was made VP of Baseball Operations just one year after his retirement from baseball. 2. Black people do not see these types of promotions. Affirmative Action? 1. The NFL requires that at least one black person be interviewed for a vacant Head Coaching position. This at least expands the the exposure that some up and coming african american coaches get. Coach Tomlin is the shiznit. 2. Justice Blackmun DISSENTING in Regents of UC v. Bakke: We must first take account of race in order to get past it. 1. Meh, IMHO. 3. Anti-Discrimination laws however make it so that taking race into account at any time could be a violation of the law. 1. Wygant v. Jackson BoE: J. White: ANY preference based on on race must receive a vigorous examination to ensure constitutional equality 1. JPS: “racial classifications are too pernicious to permit any but the most exact connection between justification and classification.” 4. Affirmative action can insinuate poor views on minorities that are generally unwarranted. For example, if Mike Tomlin got interviewed because the league forced them to, it may look like he got the job simply because of AA, or that he got the job at the expense of a qualified white. Even though, he deserved the job to begin with. 5. The article concludes that AA is necessary. 1. I think its ridiculous. Honestly, while it is a VERY hard case to make if the hiring practices at any employer are actually discriminatory there is a legal recourse. Otherwise, as race relations improve (as they have, though we are not perfect) we will see a rise in minorities who join the upper echelon of management. Gay People 1. To many, this is the worst thing someone can be in sports. For all of the progress that we have made in the real world, sports still lag behind in tolerance (or dare I say acceptance?) of homosexuals. 2. Locker room atmosphere enhances these homophobic feelings. 3. The hegemonic masculinity involved in the social development of males in sport means that sports have to confirm the masculinity of those in sports, and being (openly) gay flies in the face of that image that many portray as being an athlete. 1. Hegemonic Masculinity 1. he belief in the existence of a culturally normative ideal of male behavior 4. Dave Kopay, came out after 10 years of NFL play, Billy Beane and Glenn Burke were gay baseball players. 1. Roy Simmons was gay. His teammate Butch Woolfolk said he played with 4 gay players, he did not know Simmons was a fifth. 5. The text contends that gay men represent a more serious challenge to the political dominance of male elites than lesbians 1. However, there is a LONG history of abuse of lesbians in collegiate and professional basketball, and all female softball players are presumed lesbians except Jenny Finch. Gender Discrimination

1. Postema v. NL of Professional Baseball Clubs (1992) 1. Postema was a female umpire, who graduated 17 in her class of 130. He umped professionally in the GCL, FSL, AA Texas League, and then in the AAA PCL. 2. Other managers called her a “Cunt” and one MLB pitcher (Knepper) said if she was an MLB ump she would be an affront to Gd and contrary to the teachings of the bible (because the bible discusses baseball and umpires...) 1. Even when higher ups knew about this, they did nothing about such conduct. 3. 1987: AL Asst President and former head of Umpires: She needs to be better than everyone else to get to the bigs, because she is a girl. 4. 1989: Larry Napp AL Asst Ump Supervisor echoed that sentiment. The defendants never contradicted or corrected Napp, nor did they punish him. 1. She then received a performance evaluation which was poor, even though her peers considered her to be a better than average game caller. This was the first evaluation she ever got. Just months after she was fired. 5. ISSUES: TITLE VII 1. Hiring/ Promotion Claim 1. Postema cannot make this claim because no one was hired, you cannot claim that you were illegally not promoted or hired if no one was hired or promoted. Lack of vacancies are not a defense. 2. McDonnell Douglas Test: 1. A plaintiff meets her burden if you could prove you were qualified, a member of a protected group, unsuccessfully sought a vacant position, but the employer sought others with equal qualifications 3. Thurston Test: 1. Case made by establishing direct evidence of discriminatory practice. 2. There still needs to be a vacancy 2. Termination Claim 1. Claim that AAA fired her because the NL nor the AL were interested in considering her for employment 1. AL contends it lacked interest because they had no vacancies to fill 1. However, Postema correctly argues the list AAA gave was not meant merely for hiring right now, but if there would ever be interest. 2. AL was not her employer at the time of termination 1. If the P can show that a 3rd party was involved in her termination, she can bring a Title VII claim because the act's intent stretches beyond the typical employer-employee relationship. 4. Ludtke v. Kuhn (1978) 1. FACTS: On April 2, 1975 defendant Bowie Kuhn, Commissioner of Baseball, wrote the general managers of all major league baseball teams indicating that baseball should maintain a “unified stand” against the admission of women sportswriters to major league clubhouses. (The Yankees wanted to allow women, but then didnt because of the commissioner) 2. At the 1977 Baseball World Series games between the New York Yankees and the Los Angeles Dodgers, Melissa Ludtke, an accredited reporter assigned by Sports Illustrated to cover the Series, was informed that she was not permitted, solely on the basis of her sex, to enter either team’s clubhouse after the Series games. 3. Defendants claimed that women reporters were excluded in order to (1) protect the privacy of those players who are undressing or who are in various stages of undressing and getting ready to shower;(2) protect the image of baseball as a family sport; and (3)

Women reporters who had been given access to locker rooms in other sports had found that a substantial portion of their material came from the locker room and thus access to the locker room is an important part of their job. along with the practice of refusing to allow accredited women sports reporters to enter the locker room.preserve traditional notions of decency and propriety. 5. However. “To withstand constitutional challenge…classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. The Kuhn policy substantially interfered with the right of the plaintiff to pursue her profession as a sports reporter. The court held that the defendant’s policy of total exclusion of women sports reporters from the locker room at Yankee Stadium was not substantially related to the privacy protection objective and thus deprived Ludtke of that equal protection of the laws which is guaranteed by the Fourteenth Amendment. 3. The facility is devoted to public use and is maintained and improved with the use of public funds. This practice. HELD: Yes. State action may be found where the direct perpetrator of allegedly discriminating acts is. defendants asserted their interest in protecting the privacy of the ballplayers while undressing in the locker room. ISSUE: Did the New York Yankees’ refusal to allow Ludtke access to the clubhouse violate the Equal Protection Clause and due process? 1. 4. such as curtains and doors and wearing towels. 2. The determination of whether state action as applicable was made under the Burton Standard of “sifting facts and weighing circumstances. and federal laws. during the World Series games. shows that the latter was “substantially related” only to maintaining the locker room as an all-male preserve. These locker room encounters were viewed by mass audiences which included many women and children. The lease provision requires the Yankees to comply with all local.” Burton (1961). 2. could have easily been implemented. State Actor? 1. The New York Yankees’ refusal to allow Ludtke access to the clubhouse violated the Equal Protection Clause and due process. 1. New York City is substantially involved in Yankee Stadium and leases those premises to the Yankees. through a private entity.” Craig v. Boren (1976). The right to pursue one’s profession is a fundamental “liberty” within the meaning of the Fourteenth Amendment’s due process guarantee. 14th Amendment Claim: 1. state. Plaitiff claiming an Equal Protection Clause violation because she was intentionally denied equal opportunity to pursue her profession as a sports reporter. If any sports reporter is to have immediate access to athletes in a locker room or clubhouse setting. male members of the news media with television cameras were allowed in the Yankee locker room immediately after the game and broadcast live from that location. “so entwined” with an agency of the state that that agency must be deemed responsible for the private entity’s acts. Burton (1961). whether it be women’s access to men’s locker rooms or men’s access to women’s locker rooms. 1. As justification for the complete exclusion of female reporters from the clubhouse at Yankees Stadium. Accommodations. then it should be given regardless of gender. 3. Disabled Athletes .

and among the several States. Whether a disabled contestant be denied the use of a golf cart because it would fundamentally alter the nature of the tournament because everyone else walks.. 1. PGA Tour. aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery. If the alteration that is required would fundamentally alter the nature of such good. Art III allows limits the extent to which discrimination is not allowed. Inc. 2.. section III of the ADA states no individual shall be discriminated against on the basis of disability in the full and equal enjoyment. which made it difficult for him to walk a golf course during tournaments.of any place of public accommodation.. which is “nutritionally less than a Big Mac” 2. the PGA denied him that use claiming it would fundamentally alter the game of golf. Golf tournaments include lots of rest and refreshments. The PGA rule conflicts directly with the policy of the ADA as the rules need be altered for “individuals” and in Martin's case the modification of the rule is not “game changing. because participation is a privilege included in the spirit of Art III. that the PGA TOUR has some legal obligation to play classic.. Scalia DISSENTING: 1. 1. but the act specifically mentions golf courses as a place of public accommodation so construction does not matter. HELD: In this situation the golf cart does NOT fundamentally alter the game of golf. Public accommodation is usually broadly construed. 3. 1. Expert: Fatigue from walking a golf course for 4 days is insignificant. laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations. If one assumes.or accommodations. He requested use of a golf cart. this is the highest level of golf and they want to incorporate the element of fatigue into the skill of stroking. PGA says. HELD: It does. Martin paid $3. 2. Casey Martin is a golfer with a degenerative leg condition. I am sure that the Framers of the Constitution. Court : 1.1. Martin is an independent contractor.000 to enter and is therefore a consumer. The essence of golf is shot making. Issues 1. It has been rendered the solemn duty of the Supreme Court of the United States.” to decide What Is Golf.. v.” 3. Platonic golf–and if one assumes the correctness of all the other wrong turns the Court has made to get to this point–then we Justices must confront what is indeed an awesome responsibility..[and] is not an essential attribute of the game itself.. Title III only applied to consumers and that the claim that is job related can only be brought under Title I. Whether the Americans with Disabilities Act (ADA) protects access to professional golf tournaments by a qualified entrant with a disability. 1.. however. PGA says. but Title I only extends to employees. The PGA's rule is “based on an optional condition buried in the appendix to the rules. They walk 5 miles which is 500 calories. 1. Casey Martin (2001) 1.privileges. Court: Even so. and the rules of the game of golf do not prevent golf carts. However the court also says that Title III is not limited to consumers. 1. 1. fully expected .

negotiators. Does the mark dishonor by comparison with what is inferior. 3. endorsements. for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer. IMHO. (1999) 1. III. if given this power he could pay the athlete's bills. the law and the links. the agent who conforms and fulfills the needs of his client has a happy client 2. stock broker. I think Plaintiff waited 3 months. Agents are widely considered to be the one who represents the athlete in contract negotiations. various marketing campaigns 1. 1. Agents Duties and Responsibilities 1. Disparaging Marks 1. traveling secretary. 4. the player's representative 1. and it will henceforth be the Law of the Land. Is the mark shocking to the sense of truth. Personal Services 1. or file his tax returns without bothering his client. would once again cross. other players. lawyers. decency or propriety (substantial composite of the general public standard) 2. affect or injure by unjust comparison (referenced group standard) 2. the CoA overturned the TTAB because of laches. expertise or experience required to be an Agent. public relations guy etc. slight. degrade. This is an example of giving one person too much power. Sports Agents 1. In 2005. Harjo v. financial conditions and good business judgment. when the plaintiff sits on the case/ his rights long enough that the defendant reasonably believes they will not exercise those rights and acts to their detriment in that belief. is yes. 2. that walking is not a “fundamental” aspect of golf. Agents are: 1. we learn. Laches. Inc. estate planner. tax consultants.that sooner or later the paths of golf and government. desires. Decides which opportunities are prudent and help his player's pocket and image. 3. while also negotiating the terms of the agreement. why the need regulations . 1. 1. TTAB ordered cancellation of Redskins mark on grounds that it was disparaging to Native Americans. Pertinent Regulations 1. In order to understand the regulations. Needs familiarity with CBA. 1. 2. The Court ultimately concludes. Pro-Football. Though. 2. Money management may also be another function of the players primary agent 1. 2. his player's needs. or why there should be more or improved regulations of sports agents we need to know. wants. having you agent manage your money is ill-advised. and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question. Also considers athletes outside business opportunities 1. There are few rules regarding the minimum standards of competence. Immoral or Scandalous marks 1. Develop financial plans 5. depreciate.

I'd rather a federal administrative agency exist. Included mail fraud claims due to letters attempting to induce the athletes to fraudulently misrepresent themselves to their schools on forms. Student athletes may contact lawyer to confer on contracts. Also note that the power of the NCAA to punish is generally to punish the member institution. 1. approximately 34 states have adopted the UAAA. representation of multiple players seeking the same employment 4. Tries to monitor the activities of sports agents 1. excessive fees 3. while not aimed at agent activity. where there would be more uniform standards. rather than have each state create a huge mess. or require registration. not laws and are meaningless 2. Requires agents to register 2. it seems here that if the agent does something illegal there is already a law that covers it and punishes for it. where only registered agents can contact school officials to request contact with the student athletes 1. Fullwood: Agents convicted on RICO violations for making violent threats to student-athletes and threats to infringe on the potential careers of students who refused to sign with them. There are many statutes that. Tortious interference + other common law claims 3. The agents future income is far greater than any penalty the NCAA can impose 3. note that the major concern of the NCAA is to maintain the student/amateur status of its athletes. 2. Walters v. The NCAA 1. State and Federal Legislation 1. 1. (NY included) 1. Racketeer Influenced and Corrupt Organizations Act (RICO. The NCAA has an agent registration system. Therefore if there were to be an agent regulation law. US v. overly aggressive client reimbursement practices 6. It cannot do jack shit to an agent 1. Income mismanagement 2. Uniform Athlete Agency Act (UAAA). this also lacks teeth 4. incompetence 5. Any contract made in violation of the act renders the contract void . disruption of current contractual obligations 7. 2. misappropriation of funds entrusted to the athlete. 2. Piggie: agents involved in a fraudulent scheme to have players play and be paid to play in a summer amateur league between HS and College. As an agent has said (Trope): They are rules. Honestly. Some states have attempted to created administrative schemes to regulate the agents. certainly capture some of their acts.remember from batman?!) 1. conflicts of interests 1. 3. 2. Though the athlete may lose eligibility 2.1. 1. 1. but that lawyer can have no part in the negotiation of that contract. 1.

MLBPA. minimum competency and CoIs. I have all three (pending) 3. licenses. Contracts signed with Student-athletes. past jobs. states that agents cannot take a negotiation fee unless the player earns more than the MLB minimum. seek endorsements and assist with off-season employment. The agent was to negotiate contracts. State law. advertising. Sports Agent Responsibility and Trust Act (SPARTA) 1. furnish advice on business and tax matters. benefits and NFLPA regulations and other issues. no endorsements. though. whereas his agent only wants what is best for his clients. 5. he solicited some investment advice and assisted defendant in investing a small amount of his money in buying a house. All of the major sports unions require agent registration (wow there is a lot of registration the NCAA. In labor law. 1. fees. 1. So the union greatly effects what the agent does. bar membership. 2. 4. NFLPA also permits a maximum 3% of the player's salary to be paid to the agent 3. Player's Unions 1. 3. a minimum of a 4 year degree plus an MS or JD 1. Bitchin. Furthermore. prohibits deceptive acts or practices by agents 2. Deals with solicitation. Zinn v.outside of the sports agent or entertainment agent. . 3. an agent. Plaintiff. Agent Abuses and Litigation 1. brought an action to recover commissions that were allegedly due under an SRK. NFLPA requires an application. 3. An agent cannot register with the MLBPA unless a player designated that person as his agent. I sorta called this earlier. agents must warn that the contract jeopardizes their eligibility. empowers the FTC to enforce the prohibition.this shit is a mess) 1. Essentially regulates much of the UAAA 5. Parrish (1981) 1. No jobs. there is no analogous situation to the sports agent. the union negotiates the CBA. Agent must also pass a test on the Cap. which also includes a background check of education. There is also a fee ($1650)+ an annual fee 2. hours and terms of employment. Typically unions are the employee's exclusive bargaining representative. 2. because the union has a duty represent all members of the bargaining unit equally. criminal and civil records and involvement in sports. The agent secured three professional football team contracts for his client and pursuant to the SRK was entitled to a 10% agency fee. NFLPA sec 6 includes a grievance procedure too and empowers the imposition of sanctions. There is tension between the union and the agent. which must cover wages. 1. 1.and terminates all financial liability or consideration owed the other party. Congress passed in 2004. Notice must be sent to the school AD within 72 hours 4. Federal law and Unions so far require it. If the Agent is a lawyer then he must comply with the ABA Model Rules of Professional Conduct. The plaintiff performed some of these obligations. 3. Bitchin. Wow. 4. 1.

1. Brown v. The making of a false statement by a dominant party in a confidential or fiduciary relationship or by one who holds himself out to be an expert upon which the plaintiff relied to his detriment. 1.A. There are also significant financial differences between the USFL and the NFL. v. Walters gave Fullwood appox 8. The actions of the agent do not necessarily have to prove successful. Player only received $185k of the $800k he was promised. 1.000 he was owed. Argovitz (1984. The defendant need not know that statement is false. During this time. for tax advice. Walters v. However. Punitive damages can possibly awarded. 2. Walters claims Tortious interference with existing contractual relations . Fullwood 1. However. 3. In short. Fullwood was a runningback at Auburn during the late 80's. The agent must inform the principal of all facts that come to his knowledge which may be material or might affect his principal's rights or interests or influence the actions that the athlete may or may not take. defendant alleged that plaintiff failed to perform his duties competently. Inc.S. 2. 3. Initially the player was going to take a lesser deal with another club but the agent promised a better deal else where. HELD: The investment advice was merely an incident to the primary purpose of the management contract which was to negotiate a professional contract. if there is recklessness or oppressive conduct are demonstrated. including the NFL's stability. Woolf (1983) 1. the case says that there might be a cause of action for constructive fraud. the agent received all $40. before his eligibility had ran out. Fullwood ditches Walters and signs with Agent Kickliter. The agent must not have any conflicts of interest that might influence or affect his ability to do the best job for his client. He was also partial owner of the USFL's Gamblers. It only calls for a good faith effort. He did not inform his client of any of this. 1. Plaintiff alleges a breach of fiduciary duty. Argovitz was an agent for Sims. acts or course of action where one gains an unconscionable advantage. plaintiff sent his client to H & R Block. All of this is not allowed by the NCAA. HELD: Nothing. maybe. The agent does have the obligation to make a full and complete disclosure of all areas of potential conflicts of interest and must receive prior consent from the athlete if representation is continued after this disclosure. the player had to renegotiate his contract. or breach of confidence coupled with unjust enrichment which shocks the conscience 2. Detroit Lions. This case is about an agent who secured a deal with a hockey club.C. and that there is no per se rule regarding punitive damages in such a case. 2. Defendant alleged that his agent acted as an investment advisor under 15 U. Constructive Fraud (multiple formulations from which the court doesnt pick) 1. and got it. the contract was off-season employment and.000 and secured a security interest in Fullwood's future career. After college. 4. nor have fraudulent intent. aff'd 1985) 1. The contract establishes the rights and responsibilities between the parties. Sec. a team to which he directed his client. plaintiff satisfied his obligations by performing these duties in good faith. that had financial troubles. Agents Walters ans Bloom signed him to a contract while still in college. 80(b)-2(a)(11) and since he was not registered.

so an agent looking to sign student-athletes could be found to have committed a tortious interference. on your field rather than theirs (whoever they are). Contracts and Sports: Negotiation. 2. damages 2. Requires that the defendant's sole motive was to inflict injury 2. Allows you to write the noncritical language you prefer but wouldnt insist upon. Tortious interference with Prospective Economic Advantage 1.” 4. precedent 2. Court says: The observance of these rules is in the public interest of the citizens of NY. and the loan represents a “betray[al] [of] an important. Enforcing contracts that require fraudulent conduct 2. ELEMENTS 1. IV. 1. they range from food suppliers to television to player contracts to corporate sponsorship deals. Bargaining history 2. knowledge of the contract is not alleged nor is the procurement of breach 1. public trust. ELEMENTS 1. NY has tax laws designed to foster national amateur sports 2. 1. Though an agreement may be unenforceable in NY as contrary to public policy even if no statute is violated if the sovereign has expressed a concern for the values of said policy. 1. Negotiating from your own demands 1. The court refused to make Fullwood pay as they declined to be the “paymaster of the wages of crime. D's knowledge of that contract 3. D's intentional procurement of a breach of contract by the other party 4. NYS has given the NCAA constitution some teeth. 1. Be available to clients who are in the midst of contract offers and negotiations. Formation. It may be advisable to wait for an offer so as to not underestimate your adversary. Side note: Athletic Scholarships are contracts. Requires that the defendant employed unlawful means to make the injury 2. Here. . There are tons of sports contracts. As for the loan: Accepting a loan from unaccredited institutions or accepting money for play violates the NCAA rules. Arbitration rights: Just like the above. existence of a valid contract between P and the other party 2. or referee between thieves. if perhaps naïve. Desires of clients 3. form contracts 7. There is a public policy exception to enforce otherwise valid agreements 1. Statistics 6. Given the above. Negotiating tips 1. its a stressful time. No evidence of either requirement 3. but if you negotiate from your demands you are working on your terms. Collective Bargaining 4.1. Other laws (like sports broadcasting act etc) 5. and Enforcement 1.” 1. because of the acts repugnant to public policy the right to arbitration is overridden. They all require special knowledge of the circumstances that apply in each situation. 2.

1. Separate K's are read as one when the refer to the exact same subject matter or were intended to effectuate the same purpose or specifically integrated. largely because his contract forbade him from pursuing other alternatives leading to irreparable damage. 4. Gotham Football Club. Whether an oral contract to train a boxer for as long as he fights professionally constitutes an enforceable agreement. Alabama Football. though how they are resolved can be based on your bargaining power. Rooney v. 2. Contract Duration 1. Be sure to resolve all issues with ambiguous or vague terms 1. Know when to pick your battles. put a monetary value on all of the items so that each side knows what they are liable for. Salary.will. At-will employment is a the bedrock of employment law. because generally a rescission of contract requires that the part give back the money conferred. 4. 1969 and 1970. 1. Alabama Football had used the P's name to its advantage and had received benefits from it. 1. The intent of the contract must come from the contract itself. 2. This is a result driven decision. Tyson 1. Stabler (1974) 1. Here the majority found that the terms were sufficiently definite and therefore enforceable 1. 3. Stabler files suit claiming he is owed the remaining $30k. contending that the three agreements constitute one contract. Gotham Football = JETS 2.3. 4. therefore the claim is dismissed. 3. the majority makes the duration of the fighter's career to be more definite than death. 2. HELD: These are three separate contracts. Sample signed three separate documents with the Jets which would require he play for them for 1968. the relationship will be found to be at. which included a $100k signing bonus. It is smart to cost out the contract 1. 2. unequal bargaining power and sophisitcated negotiation skills are not valid arguments. Sample v. Bonuses and Incentives. but that is all. HELD: He can keep the $70k. Not the same subject matter because it required performance at different times. Sample's lack of representation. Where the duration of a contract is indefinite. He received $70k of it when the team became unable to pay. Stabler signed contract with Alabama. Terms of the contract make it clear that injury in a given season entitles him only to the benefits of that year's contract. and he demanded his 1970 injury benefits. Each contract refers to an individual season and were all executed separately. 1. Inc (1973) 1. 2. Where the terms of a contract is clear you cannot consider extrinsic evidence. If the term is indefinite or absent the court will find a presumption of at-will that is rebuttable.Failure to Pay as a Material Breach 1. Rescission is allowed because the inability of a party to perform a K after the . 5. 1. Dissent: The term is indefinite. v. Inc. and there need be a specifically timed duration to get around it. However the court held: 1. 1. terminable at any time. Sample got injured in 1969.

the timing would have prevented the team from being able to intelligently planning for next season. 2. Likelihood of success on the merits 3. The fact that the Cleveland organization was willing to pay him more than the Syracuse clubs was in addition to the Syracuse pay raise indicates. Inc. v. Player's skill is important 2. 3. Unique or irreplaceable 1. 4. However. Barnett (1961) 1. HELD: Injunctive relief ordered because Barnett was unique.K is made is proper grounds for rescission. specific performance of a contract will be ordered when the damages are unable to be estimated because of the unique nature of the contracted for good or service. Balancing of the harm 1. Timing is important here too. Enforcement 1. issued a preliminary injunction. that this sort of practice is not okay today. 1. The contract that they agreed to says that they agree that he is in-fact exceptional and unique 2. 4. but then realized that the deal was for below market value. he is more likely to be seen as exceptional and irreplaceable. Elements for Preliminary Injunction 1. 5. He signed with BOS. Does the balance of harm favor Shaw or the Celtics? 1. Boston Celtics LP v. HELD: C. Here note that Shaw plays and gets paid any way. 2. however the Celtics came along and offered him a deal to play for them.C. Shaw was contracted to play in Italy. we can see later that in cases like Messersmith. Negative Injunction 1. 3. As a matter of contract law. Would the injunction harm the public interest? . TEST for Negative Injunction 1. irreparable harm 2. pursuant to a clause which allowed them to do so (reserve clause?) 1. This is the negative injunction. and when his contract ran out he signed to play in the ABA Cleveland. regardless of testimony stating otherwise that Barnett is exceptional. 1. Side note: This case is an NBA equivalent acceptance of the reserve system. Policy discretion which allows judges a wider range of options 2. while the Celtics lose out on a player they covet. When a player is moving to enhance his financial benefit. Cuse notified Barnett that his K had been renewed. The DC properly issued the preliminary injunction. Likelihood of success on the merits? 2. 3. Barnett played in Syracuse. so he attempted to finish his term in italy (the second year of his k can be rescinded to play in the NBA).an injunction which causes one not to breach a contract. Lack of injunction would cause irreparable harm? 1. Shaw (1990) 1. Central NY Basketball. with exceptional skill and ability and is of peculiar and particular value to the plaintiff. Breyer writing for the CoA.J. (he was in the top 20% of scorers) 1. Arbitrator found for the Celtics and the D.

2. the status quo would have been playing for the Oaks. Barry then signed to play with the San Francisco Warriors. Pro-Football (1952) 3. Inc. Barry was an elite college player. peaceable. v. Palmer v. portrait or picture for advertising purposes or purposes of trade without written consent. This is the 4th one. Court: Sure.. and "irreparable injury" as injury which is certain and great and which cannot be compensated by the award of money damages. 1. Plaintiffs never gave permission for the use of their names and were not compensated. False Light 4. The Capitols sought a preliminary injunction to prevent Barry from playing basketball for any other team. Inc. where a contract is assigned from one team to another in exchange for good consideration. 4. S. Schonhorn Enterprises. 2. 1. Case also supports the deference to the arbitration process. The court defined "status quo" to mean the last. (1979) .2. Hirsch v. Johnson & Son. There is a news worthiness exception. (1967) 1. HELD: Schonhorn violated the golfers' right to privacy 1. even if it is true.C. Washington Capitols Basketball Club. 1. . 1. Rick Barry signed a contract to play basketball for the Oakland Oaks. Intrusion upon physical solitude or seclusion 2. The use of biographical information for the purposes of commercial project is a violation. The use of biographical information in general is NOT a per se violation. famous people are entitled to less rights in this regard but there are still protections. but this is obviously commerical. Schonhorn made a golf game which included the names and profiles of 23 golfers including Arnold Palmer. giving publicity of a highly objectionable kind with respect to private information about the Plaintiff. Defendant: plaintiffs waived their right to privacy because of their status as famous athletes 1. Inc. but all of their assets were assigned to the Capitols. The privilege does not extend to commercialization of his personality. Gautier v. 3. which makes it the closest to status quo that is attainable. uncontested status between the parties which preceded the present controversy 1.distinct from the dissemination of news or information. 5. The Oaks were acquired by the Washington Capitols. Appropriation of the plaintiff's likeness or name. Prosser's 4 privacy torts: 1. 3. Personally. NBA rookie of the year and NBA All star. V. and general support of labor policy. 1. 1. The court ruled the Capitols were entitled to the injunction (provided they could prove irreparable injury) in order to maintain the status quo pending final determination of the case 1. Plaintiffs contend Schonhorn violated their right to privacy. Intellectual Property and Sports 1. Barry (1969) 1. 2. I think this is analogous to a trade. NY Statute: Makes it a misdemeanor and a tort to make use of a name. 1.

Jireh Publishing. Trade name 1. the actor's g or s's emanate from the same source as the other 5. Supported by public policy: 1. Property rights of commercial value are to be and will be protected from any form of unfair invasion or infringement or from any form of commercial immorality. or like here. protects primarily the property rights in the publicity value of aspects of a person's identity. Hirsch played in the NFL and in professional basketball. though he was careful with it's use refusing to associate it with cigarettes and things of that sort. Elroy Hirsch is a football player who has a unique running style which led to his nickname Crazylegs (again. the actor is the business of or associated with the other 3. Here. it is appropriate for this court to recognize a cause of action to protect this right. Infringement 1. or 2. and can be akin to passing off. “Because the right of publicity – the right to control the commercial exploitation of aspects of a person's identity – differs from other privacy rights. my guess is the last two apply. Trade name claim 1.. 2. 1. Here is the standard: 1. (NOTE: this case determined a cause existed not the merits of those causes. although other privacy rights were rejected in prior decisions of this court. (2003) . Likely to 1.” 1. However. 1. interest in controlling one's reputation. Defendant makes shaving cream for women. Inc. Appropriation 1. cause prospective purchasers believe that 3.. vocation or occupation provided such use is not illegal or contrary to policy. the name is associated with being of high character because of all of the TIME and EFFORT devoted to THAT PURPOSE. a trade name is more appropriate here. cause confusion. 2. A designation use by a person to identify his business. 1. mistake or deception.) 3. “Protects not merely the right to be let alone but. ETW Corporation v. Johnson's first ad included a cheer similar to the one used at U Wis. the actor's goods or services are those of another 4. and took place at a sporting event (running as opposed to football). HELD: 1.” 2. 1. 2. During his career his used his nickname on many endorsements. Prosser: It would be ridiculous if Samuel Clemens had a cause of action for the use of his name but not for the use of Mark Twain 2. the actor's g's or s's are APPROVED OR SPONSORED by the other 6. one could see just how this would happen). rather. 2. Hirsch testified as to the ACTUAL CONFUSION required by trademark law.1. they called it Crazylegs (one could see how this would happen as women shave their legs. This cause of action exists as well.). 2. Trademarks need to be connected with a good or service. The misuse of a trade name is unfair competition. prevention of unjust enrichment 3.

with celebrities in artistic works we use a test that balances the first amendment with the public interest in avoid confusion. pencils. The fact that expressive works are sold does not diminish it's degree of protection. photographs. In false endorsement claims. 3. This is the Tiger Woods case. prints and other pieces of art are afforded first amendment protections. Based on the court's analysis. Movies. 3. Transformative Elements Test: Where the work contains significant transformative elements it is less likely to interfere with the economic interest held by the plaintiff and also has full 1st amendment protection. Rush created an art print called "The Masters of Augusta" featuring Tiger Woods in the center. ETW owns numerous TMs for the mark "Tiger Woods" including categories 3. Not every word or symbol constitutes a protectable mark. there is artistic relevance and there is no explicit misleading here. This print. Zacchini v. It must be proven that it does the job of identifying the source and distinguish from others. 5." This work was sold as a limited edition print. Here. flanked by his caddie. of art prints. 1. Unless one image is consistently being used to sell a product. However. Scripps Howard: The first amendment does not trump the RoP when the Plaintiff's entire act is published. The print is expressive. 2.1. which will earn money will not deprive Woods of his ability to . 1. that is where there is going to be the belief of origin or endorsement. Literal depiction for commercial gains will not. Court holds as a general rule that a person's image or likeness cannot function as a trademark. 2. HOLDING: 1. the RoP is fundamentally constrained by the 1st amendment. When the PI outweighs the 1st amendment then the Lanham Act will apply. 1. trading cards-Class 16. First Amendment Defense: 1. Speech is protected even when it is carried out in a form sold for profit. 1. and a text that comes with the print (not on the print) said the print features Woods "displaying his awesome swing. The use of Woods' name on the envelope and description is purely descriptive and used in good faith. It is not reasonable to believe that any image of Woods originated from him. A piece of art which potrays a historic sporting event communicates and celebrates the value that our culture attaches to such events. Right of Publicity is an IP right that is inherent to every human being to control the commercial use of his or her identity. To have the court hold that it does. Like Elvis goods. A celebrity’s name may be used in the title of an artistic work so long as there is some artistic relevance . would be to give Woods himself protection as a living trademark. notebooks. 1. the idea is that of likelihood of confusion. (now the court must balance Woods' IP right to Jireh's 1st amendment right) 4. posters. 2. and entitled to full protection of the 1st amendment. The first amendment protection extends to entertainment and other creative works making such claims largely inactionable. pens. the first amendment will almost always trump the RoP claim unless there is a purely commercial purpose. calendars. However. 2. If the name or likeness is used merely to attract attention to the work then it loses it's first amendment protection.

CBC only used the names and historical facts about the players. Names with historical facts however do not rise to meet that . to be actionable.” much of that decision. Inc. 2. based on the case of International News Service v.reap benefits for endorsements and appearances. TCI Cablevision. the information is time-sensitive. HELD: MLBAM and the MLBPA failed to make a claim for being unable to show both elements 1 and 3 1. In its ruling. 4. without using their identities.[2]. MLB Advanced Media LP (2007) 1. which went beyond “hot news” and precluded the use of other information. CBC Distribution & Marketing. and therefore his name was a symbol of his identity. Compare to Doe v. and the appellate court reiterated. STATS. where Spawn character Tony Twist was designed to invoke the personality and name of NHL player Tony Twist. defendant is in direct competition with a product or service offered by the plaintiffs. The trial court held. 1.transmitted “real-time” NBA game scores and statistics taken from broadcasts of games in progress to pager owners on STATS' site on America Online. 5. Inc. CBC is a company that ran a fantasy baseball platform. The NBA sued for misappropriation under NewYork state law. the name was used in conjunction with the players enforcer personality. they had a contract with MLBAM which ran out. Under the test. Survives copyright preemption as applied to “hot news. not the expression or description of the game that constitutes the broadcast. that Motorola and STATS did not infringe NBA's copyright because they reproduced only facts from the broadcasts. and 5. In order to make a claim to right of publicity under Missouri State Law (The Restatement Standard) you must: 1. without consent 3. 2. the NBA had not established a claim for misappropriationunder this test. plaintiff generates or gathers information at cost. was preempted by the Copyright Act. The court made a clear distinction between the event itself (which is not protected) and a broadcast or report about the event (which is protectable by copyright). The appeals court held that under the facts of this case. 1. defendant's use of the information constitutes free-riding on the plaintiff's efforts. and Motorola.. (1997) 1. NBA v. 4. the pager manufacturer. 3. v. Associated Press. with the intent to obtain a commercial advantage 2. a provider of sporting event scores via pager and online. and elsewhere.. CBC continued to use the names and statistics of the MLB players. Name as a Symbol of Identity 1. 1. show that the D used the Plaintiff's name as a symbol of his identity 2. Inc. Inc. 3. the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. the appellate court established a new test for misappropriation claims under the INS doctrine. In TCI. Motorola. the plaintiff's misappropriation claim must meet five criteria: 1. The Second Circuit Court of Appeals ruled that while the state's misappropriation law.

It does not prevent the athletes from making a living from their sport or from endorsing a product. cannot be considered separately from the general body of anti-trust law with only 2(ish) exceptions 1. 2. (which is essentially what fantasy sports are). Anti-trust Overview 1. Reserve System and the Antitrust Laws: Primer. There is also no reason to assume that the players endorse this item. VI. 3. 2. the fact that this was for profit does not rob it of protection (see ETW) 4. it is expression. 2. Intent to Obtain Commercial Advantage 1. 1. Public Policy 1. Baseball Exemption 2. Names and stats are historical facts. 2. albeit in a less traditional form. The right of the players to be protected from unauthorized publicity against the public interest in dissemination of news and information consistent with the freedom of speech and the press. This speech is protected by the first amendment because 1. 5. Distinguished from Palmer 1. Gionfriddo balancing test 1. The use of names and statistics do not undermine the policy behind the right of publicity. Facts are inherently unoriginal. any more than they endorse box scores. The Copyright act would not preempt a Right of Publicity claim. Palmer came before Zacchini and therefore is merely persuasive and nonbinding. 3. entertainment speech is protected by the first amendment 5. The consumer's interest in access. and are therefore not copyrightable. First Amendment 1. Palmer involved photos and a right of privacy. Most anti-trust cases arise in the traditional manufacturer-wholesaler-retailer economic structure . 2. like in most bodies of law. it is hard to conceive that using the names would give CBC a commercial advantage over any other fantasy provider because all fantasy providers use player names and stats. that court refused to use a theory of publicity.standard. Evidence that the defendant used the celebrity's name to attract attention to it's own product or service will serve as proof of such an intent. Sports Broadcasting Acts of 1961 and 1966 2. this is not a use of player information to sell an unrelated production 2. as is interactive speech 6. Players have little interest here because the protection provides little in the way of economic success nor would the use of their names effect their reputation such as to diminish it's endorsement value. which are protected by the first amendment 3. 4. the baseball exemption 1. However. 4. 2. Copyright Preemption 1. recitation and discussion of factual data concerning athletic performance commands a substantial public interest. Sports.

Sports cases are often considered “landmark” and find wide applications in nonsports situations 1. Standard Oil v.: They need to be separate entities.see American Needle 1. AFL.. So this is purely a government cause of declared to be illegal” 1. boards and franchises often attempt to argue that the typical body of anti-trust law should not apply to them 2. Section 5 of the Federal Trade Commission Act 1. Which laws will apply to sports? 1. Pro-Football. it is an FTC cause) 4.NFL mergers etc 3. are agreements made between or among firms or persons on the same level of the market. 2.1. and rarely adds anything in terms of analysis. combination or conspiracy requirement met? 1. The question means that we need an action of two or more persons or entities. Outside of baseball. There is no implied right of action though. See Below 2. Again. Nor can a company contract with itself. See Brown v. Therefore they are agreements between current or potential competitors. Section 1 1. 1. Deals with the prohibition of the “tying” of goods or services. Independence Tube Corp. Inc 518 US 231 (1996) and the Labor exemption 3. 2. Again. Sherman Anti-Trust Act (1890) 1. prohibits unfair methods of competition in or effecting commerce. Did the challenged conduct involve an agreement ie. subsidiaries are not wholly separate. Section 2 1. (Actually. Section 7 1. Sherman Section 1 1. Was it a vertical or horizontal agreement? 1. was the contract. . Section 2 1. 3. combination or conspiracies (or the 3 C's) are just another way of saying that there need to be multiple economic actors. 2.. Clayton Anti-trust Act (1914) 1. Contract.. US: unreasonable restraint of trade 2. Basic Anti-trust Framework for section 1 1. in restraint of trade. makes price discrimination illegal 3. Horizontal Agreements 1. usually covered by Sherman sec 1. these attempts have failed miserably. For this reason sports leagues. Copperweld Corp v. Though. 2. or conspiracy. Section 3 1. this sounds a lot like section 1 of Sherman. Prohibits M&A's which would substantially lessen competition or to create a monopoly. there has been some success in gaining greater scrutiny of the facts in such cases because it is undeniable that sports are to some extent very different from traditional businesses. or exclusivity. “ Every contract in the form of trust or otherwise. This is the case that leagues have tried to build the Single entity argument off of. See Below 2.

Distinguishing pro and anti-competitive agreements 1. Horizontal Price Fixing 1. which is why 10 years ago Norfolk was the Mets AAA affiliate and now Buffalo is). All of the above. 3. (For this reason look out for it on the exam) 2. 1. Example: Player's union demands represent horizontal agreement amongst the players 2. Difference in analysis 1. Agreements that raise. Example: two tech companies opening a research center together for joint research 3. when the effect was incidental to an agreement which was designed to improve the competitive working of the market place. man power involved plus the public interest in such a product. If the source material is rare.” US v. CBS . a manufacturer and a distributor working together. BMI v. 1. 2. Horizontal ones reduce the competition in the market. But I am making this shit up. and lead to the exercise of monopoly power. A pro-competitive horizontal agreement would be if two firms purchased supplies together allowing them to reduce prices. 3. Team affiliations with minor league franchises (note that the franchises themselves are typically owned by someone other than the team. 3. 2. Vertical agreements facilitate the functioning of markets and facilitate development. An anti-competitive horizontal agreement is if all oil distributors got together to limit production or raise prices. lower or stabilize prices are per se violations 1. 1. distinguish the two and we can see it is more likely that a horizontal agreement will be found in restraint of trade.. price fixing will not be a per se violation. Horizontal agreements replace competition with cooperation. Maybe companies researching cancer can go horizontal considering the amount of money.1. exclusive vertical agreements can limit others ability to produce a product or enter a market. “.restrictions on free and open price competition pose an actual or potential threat to the central nervous system of the economy. 2. Perhaps a vertical agreement can cause other companies to expend greater amounts of money in order to get a material 6. Vertical Agreement 1. Vertical price fixing really has not yet been an issue in sports. Though. Was it one of the per se violations? 1. Or pooling funds for a research facility. 5. Vertical agreements are essential. rather than doing this independently. Example: Sports teams agreeing to respect each other's exclusive territories.. Nearly all sales of products include a vertical agreement of some sort. an agreement on multiple levels of production or sources. while horizontal ones rarely are. Socony-Vacuum Oil Co. Such as a seller of raw materials. Analysis 1. 4. 2. Example: League agreements with television companies 2.

Simple agreements to to avoid each other's territory or customers are such a division. 3. facility or market required for the third party to compete. Where an east coast dominant firm agrees not to go west so that a dominant west coast wouldnt move east is a per se violation. major oil companies agreed to purchase all excess gas supplied by independent oil companies to prevent prices from dropping wound up stabilizing prices. Group Boycotts 1. because not all of them are. an agreement by a party to sell one product but only on the condition that the buyer also purchases a different or tied product. Tying 1. Often includes cutting off a supply. Horizontal Market Division 1. Nothern Pacific Ry. this is more Clayton 3 claim rather than Sherman 1 claim. Though. 3. concerted refusal.(1979) 3. some courts. Ex: Bundling team rights. 2. Pacific Stationary and Printing (1985): describes which types of group boycotts are per se illegal. Northwest Wholesale Stationers v. in order to by Twins rights you must buy Minnesota North Stars rights. when the effect was incidental to an agreement which was designed to improve the competitive working of the market place. 1. v. I do not see the multiple actors. 2. 4. Though no claim has really been made in sports. 1. 2.] 2. 2. 2. Sports Example: In order to buy season tickets you must buy preseason tickets. Joint efforts by firms to disadvantage competitors by either directly denying or coercing suppliers to deny relationships the competitors need in the competitive struggle. such as the 4th circuit have allowed a narrow affirmative defense. to deal with others or a third party. US (1958) 1. CBS (1979) 2. BMI v. Even though there was no agreement to stabilizing prices it was held to to be a per se price fxing violation. typically from horizontal competitors. Honestly. does it merit per se treatment? 1. This type of action prevents one of the conspirators from independently deciding who to deal with and prevents the third party from operating in an open market. Topco Associates (1972) [PS this is a BIG fucking deal in sports. SoconyVacuum. If it was a per se violation. US v. This can be used to leverage market power in one market into power in another. Boycotting firms typically have dominant power in the relevant market. 1. dividing up customers or otherwise imposing non-price restraints. 1. which would allow the . Sports Example: PSL's and season tickets 3. price fixing will not be a per se violation. Though price doesnt have to the be the object of agreements 1. Horizontal conspiracies to allocate territories. As far as horizontal market division goes. 4.

Relevant Geographic Market 1. Partnership v. use and qualities considered. Twin City Sportservice. If not. What are it's anti-competitive effects? 4.. Though through NCAA v. See above 2. What are its pro-competitive effects? 1. to monopolize any part of the trade or commerce among the several states. or combine or conspire. v.. US v. If the pro-competitive outweigh the anti-competitive. Charles O. is there a less restrictive way to achieve the same effect? 5. Section 2 1. Hospital Building Co v. Inc v.. NBA (1991) et al. du Pont : “The market is composed of products that have reasonable interchangeability for the purposes for which they are produced. may have broadened the inquiry. Board of Regents of Univ. though this is debateable.” rule of reason examination if the defendants acted with the purpose AND effect of achieving a legitimate public policy objective. is decided by the trier of fact and will be set aside only if clearly erroneous (International Boxing Club v. (SCOTUS 1984). Courts are moving more toward a rule of reason for many HMD's. then under the rule of reason: 1. 3. Board of Regents Uni. Finley & Co. Where the degree of substitutability in production is high. 3. shall be guilty of a felony. 1. was there an agreement between two or more persons? 1. “Substitutability in production refers to the ability of firms in a given line of commerce to turn their productive facilities toward the production of commodities in another line because of similarities in technology between them. price.. The relevant market is the area of effective competition within the defendant operates. Chicago Professional Sports. The agreement or conduct adversely affected competition in the relevant market. 1. cross elasticity of supply will also be high. Monopolization Elements 1. NSPE v. After reading it I cannot understand the exceptions to the group boycotting per se rule. Relevant Product Market 1. US) 3. US/ Std Oil Co. Establish a relevant market 1. “ 2. 1. the area of effective competition in which the product or it's . Which one. Trustees of Rex Hospital / NCAA v. Okla. For analysis of the relevant market see Section 2 analysis. 5. Ltd. of Okla. not as the NSPE asserted that a general benefit to the safety of the public was sufficient. or attempt to monopolize. 5. (1975) 1. Section 2 Analysis 1. Brown Shoe Co v. and again the two commodities should be treated as part of the same market” 4. US 2. US (1978): the inquiry is confined to consideration of the impact on competitive conditions. which could be either a product or geographic market. “ Every person who shall monopolize.

2. 3. 2. the monopoly power was acquired through some sort of wrongful. Conspiracy 1. ProFootball. 1. (do this also during the pendency of the trial) 3. market share is the most commonly used method. the conduct of the monopolist constituted an improper use or abuse of its monopoly power. delivery limitation. only to turn on that victorious competitor and intend to put them out of business/ involuntary elimination of competitors (Alcoa) 2. in between is iffy. 1. and customer convenience must be considered. that sounds like a lot of bullshit. Prove that the defendant has monopoly power 1. 64% might 2. an overt act by one of the parties in furtherance of the conspiracy 1. Alcoa says 63% definitely is not. 2. the wrongful conduct helped the monopolist maintain its power. Hecht v. however in reality. US v. Inc (1977) 1. and show that: 1. when new or existing competitors would have eroded that power. Elements 1. 1. economic and physical barriers to expansion as transportation costs. the conduct is moving the defendant at a steady rate toward higher market shares. size of the firms competitors. The existence of an agreement 2. 2. Defenses 1. 3. Finally the defendant will try to show that it gained its position lawfully.reasonably interchangeable substitutes are traded. 2. OR 3. maintenance of market share despite an inferior product. EI Du Pont de Nemours 1956) . currently all of this is similar to the section balancing test. Defendant will show it doesnt have this power by enlarging the relevant market or by showing that it cannot raise the market price. Typically 70% market share is considered monopoly power. exclusionary or predatory conduct 1. (sounds like the criminal law standard) 3. Defendant's market share must typically be around 30% 2. encouraging competition. Attempt to Monopolize 1. Wow. considered in terms of the ability to raise market prices or exclude competition (US v. 2. through superior skill. foresight or industry rather than wrongful conduct. A substantial amount of commerce was affected or would be affected by . 33% isnt. The plaintiff must establish that the defendant has the specific intent to achieve a monopoly and that the wrongful conduct has a dangerous probability of success. Learned Hand: 66% is. because more times than not. 2. Location and facilities of other sellers are important. degree of barriers to entry. it will be covered by section 1 2. Other determining factors 1. 3. is irrelevant. Stability of market over time.

equipment etc.which is an exception and anomaly. Post Flood Exemption. v. ML of Professional Baseball Clubs(1922) 1. 1. Topps) . No Exception in: 1. DISSENTING: J. 3. v. The business of baseball. Theres farm systems. 2. Henderson Broadcasting alleges that has (the Astros) and KENR entered into a conspiracy to divide and allocate advertising and audience territories and to eliminate competition for advertising revenue and listening audiences thus imposing horizontal restraints. and it would be unfair to say that they violated the law when the court said they didnt. not the essential thing and things which are not commerce do not become so. 3. Inc. HELD: Baseball is a business engaged in interstate commerce. not related to production baseball is not a subject of commerce. 1. 1.the planned conduct 4. But hey. baseball had operated under the reasonable assumption that had this exemption. Chandler: The equities are with the victims of the reserve clause. specific intent on the agreeing parties to monopolize 6. 7. television.. Federal Baseball Club of Baltimore. 1. travel. brief albeit legitimate argument the court asserts is that because of Federal Baseball Clubs. Congress has considered the issue several times. such as does interstate commerce.. Toolson v. is exhibitions. Rodovich and International Boxing. Toolson affirms Federal Baseball Clubs on the grounds of Federal Baseball Clubs. 1. and have declined to remove the exemption. Henderson Broadcasting Corp. (!982) [biz. Curt Flood is an OF for the Cardinals. clubs and players which are integral to the sport and not to related activities which merely enhance its commercial success. Interstate transport is merely incidental. HELD: The baseball exception applies only to those aspects of baseball. Personal effort. players taken from other states and countries. in Haywood. Kuhn (1972) 1. yet Pre-Curt Flood Act 1. v. New York Yankees. At this time in the MLB each contract maintains a clause which allows the team to renew a contract each year continually. The one. This is called the reserve clause. food. which means that it is not congress' intent to have these law apply to baseball. radio. stop kidding yourselves. 2. but not broadcasters] 1. however it has an exemption from the Anti-trust law. Burton: UH. Dissent: Douglas: Gardella v. Plus the fact that Congress had not addressed the issue by law. Inc (1953) 1. In one of the worst fucking written opinions of all time. we'll take it. Houston Sports Ass'n. by crossing state lines. They were essentially team property. and it created a system where players could not enter a free player market. Though. the exemption was limited only to baseball and no other sports. Inc. Broadcasting 2. Well all know that this is bull shit. Baseball Cards (Fleer Corp. 2. Flood v. The Baseball Exemption 1.

might be covered by the exception. Personal question: How come the league still gets to approve ownership? 3. the court looked at the per se rules and the charges that QB Kapp made against the NFL. . as the AG of Florida issued civil anti-trust investigative demands on the NL. 1. 1. Done after collusion (see later). finding that the exemption broadly protected the “business of baseball. 1. Noting that the scope of the baseball exemption had been “the subject of extensive litigation over the years. are basic elements of the production of major league baseball games. Partially overturns Federal Baseball. however. Piazza and the effect Flood had on Federal Ballclubs. Vincent Piazza and his group had a deal to purchase the SF Giants for 115 mil. Player Restraints and application of the Per Se Rule 1. Butterworth v. MLB stepped in. extends only to the reserve system and matters of league structure. Gave MLB players the same rights as other athletes to sue in antitrust when the suit is related to labor relations. which require result stare decisis (because of the holding in Flood). Crist (11th Cir 2003) [biz of baseball] 1. MLB (1993) [reserve/some business] 1. Crist succeeded Butterworth as AG. 1. jointly agree to lobby Congress to overturn baseball’s antitrust exception. strike. Curt Flood Act of 1998 1. because this has profound effects on the structure of the league. Basically applies antitrust to baseball with regard to labor. In this oddly decided case. Although the court held that the exemption was not unlimited – in particular stating that the “exemption has not been held to immunize the dealings between professional baseball clubs and third parties”– the court nevertheless believed it clear that the proposed contraction fell within the scope of the exemption. NFL (1974) 1. Concessions 2. 9. Piazza sues for violation of Sherman. only the Reserve system is subject to exemption from the anti-trust law. Veterans and Free Agency 1.”the Crist court ultimately adopted the district court’s interpretation of the relevant authority. This case comes from Piazza.” VII. 1. 1. Piazza v. looking into the combination in restraint of trade in connection with the sale and purchase of the SF franchise. and their organization into leagues for the purpose of playing scheduled games. HELD: Federal Baseball and it's progeny. MLB v. and Flood w/r/t players. the exception does not apply as it pertains to the purchase of teams and must be subjected to Rule of Reason analysis. 3. This is the appeal of the Butterworth case. Flood still may have broader antitrust exemption authority that does not make it totally obsolete – this doesn’t address franchise relocation. Toolson.3. 2. 1. after which he wanted to move them to Tampa Bay. 8. 2. Therefore. NL of Professional Baseball Clubs (1994)[reserve] 1. HELD: Based on. Kapp v. etc (Piazza issue) – just gives players the right to file antitrust suit. ended the deal and prevented the move. The denial of the relocation of the team. Anti-Trust and Sports: Eligibility. The NL moved to quash the investigative demands based on its exemption. Rookies. concluding that “the number of clubs.

Mackey v. NFL (8th Cir. 1. where your business would fail without equally competent competition. 1976) 1. Molinas v. 1. Therefore there is no interest in putting other teams in your league out of business. this rule. 1.2. however. 4. in fact you want them to be close to equally as competitive as your team is (studies indicate that 60-40 is nice). due to the differences between businesses and sport should not be applied so readily. The restriction applied to everyone not just the top free agents. The Option rule is not so unreasonable so as to be decided by summary judgment. We can see here how the court says this rule is not okay. Draft Rule. 2. a restriction on the talent could be allowable. This rule operates as a perpetual restraint on player movement. However. This court actually distinguishes sports from real life. Again tested the use of per se violations and the Rozelle Rule. 5. that player remains reserved and unable to seek a contract with another team is equivalent to a perpetual boycott (which in normal situations is a per se violation) 3. 2. agreed to by the teams or the commissioner. it was unlimited in duration and provided no procedural safe guards. that did not stop the court from deciding to immediately strike down certain portions of the NFL rules and contract so patently unreasonable that there is no genuine issue for trial (which sounds sort of like a per se rule to me. Court did not buy that shiz. 2. in sports economics parlance Louis-Schmelling Complex. the degree of these rules were. though only draft picks are awarded or created. but given the way that team sports work. The Rozelle rule was highly anti-competitive because it effectively eradicating free agent offers. involving type A and B free agents. Jack Molinas was a player for the Detroit Pistons. NBA (1961) 1. The NFL defended on the grounds that it was necessary for competitive balance. finding that per se violations are inappropriate given the special differences in the business of sports. 1. because it would have bound him to such illegal terms in the constitution and by laws. One of these differences is. One man rule. Note: that baseball has a compensation system. the rule by which the commissioner has final decision which is unappealable is just as unreasonable because it goes against the Federal Arbitration Act. HELD: The per se rule. Application of the per se rule really only makes sense in an environment where the dynamic is not like this. Player Restraints: Limitations on Participation 1. 2.) 1. This is restrictive because even while not under contract a player's ability to operate in a free market is almost non existent. Rozelle Rule. requiring that even when a team makes no offer or no sufficient offer. which provided that when a player at the end of his contract term signs with another team his previous team gets a ransom. He admitted to gambling on his . There are other less restrictive ways to maintain the the competitve nature of the league. Kapp's refusal to sign the contract was okay. 2. Court asked for a legitimate business purpose and whether there is a less restrictive means to accomplish that purpose. the actions themselves are not per se illegal.

Inter-Sport Competition and Cross-Ownership Bans 1. The Court held no antitrust exemption would be made. Holding 1. he sued the NBA because the NBA reserve clause was in violation of section 1 and the NBA's refusal to reinstate him (and his suspension without notice) constituted a similar violation. The court of appeals reasoned that if the NFLPA wanted to change the eligibility rules they could have brought the issue to the table during bargaining. HELD 1. Single Entity argument rejected (get used to it boys. NFL Age requirements state you must be 3 years out of high school in order to be eligible for the draft. the court held that a rule and corresponding contract clause providing for the suspension of those who place wagers on games in which they are participating seems not only reasonable. must establish a clear causal connection between the violation alleged and the injuries Such a loophole would allow league members to escape antitrust responsibility for any restraint they entered into to enhance league competition to outweigh the anti- . The 2nd Circuit reasoned that the primary objective of anti-trust legislation is to preserve business competition. During his suspension he went to Brooklyn Law School where he learned to sue people. Clarett claimed this reduced the competitive market of professional football and therefore violated antitrust law. The court of appeals held the eligibility rules are immune from antitrust scrutiny under non-statutory labor exceptions and can only be scrutinized under labor law. NFL passes amendment to by-laws mandating that owners who cross own or receive income from ownership in another competing league. but necessary for the survival of the league. North American Soccer League v. NFL (1981) 1. Here there is no evidence. 1. but did not. The NFL began limiting amateur entrance into the draft in 1925 to prevent injury to young and immature athletes. The issue is whether the NFL’s eligibility rule is exempt from antitrust law 2. nor is it alleged that Molinas' injury results or stems from the reserve clause 2. 2. Maurice Clarrett was a talented albeit bat shit crazy RB at THE Ohio State University. The relationship between the NFLPA and the NFL created by the collective bargaining agreement prohibits teams from negotiating directly with players. Clarrett v. Anti-Trust and Sports: Restraints on Owners and Leagues 1. As to the the refusal to reinstate. NFL (2nd Cir 2004) 1. 2. The eligibility rules were located in the NFL Constitution and Bylaws. The 2ndCircuit reversed and remanded the case with instruction to enter judgment in favor of the NFL. such as the NASL. VIII. must divest ownership of said team. 1. and surely enough. not antitrust. The issue arises in this case because the NFL players union and the NFL Players Association (NFLPA) collective bargaining agreement at the time did not include the eligibility rules. The reserve clause issue: In order for a private plaintiff in a civil anti-trust suit to recover. He was indefinitely suspended. behaving a joint venture is still a combination. The court held that Clarett’s disagreement with the criteria to enter the draft established by the employer and labor union could only be remedied through labor law. it wont be the last time): A combination of actors.

any financier can try. and no team has been ran less efficiently because of it. Alternative: remove cross-owners from broadcasting rights committee. LAMCC and the Raiders brought this action. The ban prevents CoI's 1. Court calls bull shit again. NFL. .3 required a 100% vote to approve relocations within another team's territory. 1. the ability to purchase a franchise is limited to a narrow group of eligible purchasers. Los Angeles Memorial Coliseum Comm'n v. hire their own coaches. 2. NFL claims the market is quite large. rule 4. 4. there has been cross ownership for a while and the NFL is still dominant. 1. moved to Anaheim. Single Entity Issue 1. it and the league looked for a new resident. Court says NAH BRAH. Basic Elements 1. which is still in the LA territory. largely in part to the restrictive approval policies established by the leagues. limiting market or customer areas 3. Granting the NFL Single Entity status would be to immunize them from all antitrust liability. Multiple corporations operate as a single entity when corporate policies are set by one individual or by a parent corporation. Threshold requirement 1. 1. The LA Rams. Franchise Relocation 1. Confidential information is protected by the ban 1. Al Davis and his Oakland Raiders step in and decide they wanted to move from Oakland to LA. Each team jointly creates policy 6. 1978. yet in the past they have violated section 1 2. Rule of Reason 1. In response to legal threats the league changed the rule to a 3/4th super majority. Even though revenues are shared and divided there is still a huge difference in profits and losses from team to team. with the LA Coliseum empty. 5. 2. NFL (1984) 1. 2. NFL clubs compete with each other for talent on and off the field. Court says that this type of behavior does not rise to the level of badness that would warrant per se ruling without further analysis. which set their own prices. 1. the clubs are not separate businesses and each has its own separate value 4. Pro-competitive effects 1. Price Fixing 2. where cross ownership prohibitions where violative of section 1 even with the admission that cooperation between the teams was necessary. management and players. 7. 1) an agreement 2) intended to cause harm or unreasonably restrain trade 3)actual injury to competition. however in the 1980 vote failed. Other organizations just as unitary have been found to be in violation 3. 2. Per Se rule is also rejected.competitive effects. Citing NASL v. and some teams like the Jets and Giants will compete for fans and fan dollars. The NFL hasnt been able to show evidence of the type of information they are referring (duh! Its confidential!) 2.

The court HELD. Though the court states the difficulty that sport presents in this area. is not a rule. Territories foster fan loyalty which promotes traditional rivalries.3 be replaced by objective guidelines rather than a subjective voting measure. 5. Court agrees that territorial divisions are ancillary to football. 1.3 effected competition among NFL teams and among stadia. Reasonableness of Rule 4. Essentially states that the holding in Raiders I (above). 2. 4. 3. that in order to properly exercise the rights which come with their ability to collectively negotiate the TV rights. In 1978 Davis suggested that rule 4. no foreseeable loss of league revenues. In regard to the joint marketing reason. No schedule problems. There was no showing that the move would harm the competition of the league. Inc. 1. NFL argued that the ancillary restraint doctrine applies here. which contribute to attendance and television viewing. 2. which effectively removes the per se label from certain acts where a restraint on trade may be valid if they are subordinate and collateral to another legitimate transaction necessary to make that transaction effective. Relevant market 1. NBA v. 2. 2. there are far less restrictive ones which could carry out the same goals. . The last NFL argument is that the ability to block moves like this allows local governments to recover their expenditures (they invest tons in stadia etc). There was evidence that the commissioner and other owners hated Al Davis for being a Maverick (lol) and the vote could have been motivated by animosity. There is the additional joint marketing issue.3 is on its surface an agreement to control and/or prevent competition among NFL teams via territorial divisions. SDC Basketball Club. no facility problems. 1.1. (1987) 1. Rule 4.3 encourages stability which prevents one team from gaining an unfair advantage on the field. which means the rule of reason must be applied. 1. 6. Rather. rule 4. the issue of whether or not a league rule prohibiting the relocation of a team is a fact specific issue. the current rule really just means that a team needs only 7 friendly votes to block a move regardless of whether a market can support another team or not. 3. the league must be able to have some control over team placements to ensure football is popular in many markets. that while these are pretty worthwhile reasons. Economic arguments should be made. it could be left up to the local governments to address this issue themselves via lease agreements which should in practice last long enough to allow them to recover.3 1. As to the local government reason. While it does not seem extremely clear from the opinion I think that the court decided that 4. Regulation of private profit is best left to the market. Agreement via NFL constitution and by-laws 2. 2.

but not the general proposition that no policy regarding ownership can injure competition. and television revenues. 1. The court rejected the NFL's claim that there was insufficient evidence of harm to competition. Those same cases left open the possibility that competition for ownership was a legitimate market. “[This policy] restricts competition between clubs for the sale of their ownership interests. He bought all of the stock back. Summary judgment will be hard to obtain. 1. Indendence Tube Corp 1. There should be an objective set of criteria such as population. This leads also to the rejection of the single entity argument again.2. This argument rests on the relevant market 1. Do I really need to mention that sports teams do this. 1. He asked other owners to alter the rule to allow him to do it. Never asking for a vote.. 1. which was a low price.” 2. He sued claiming that the policy was in violation of Sherman. 1. Sullivan v. Copperweld v. Then the AFL merged with the NFL. Corporations and their wholly owned subsidiary are a single enterprise for the purposes of section 1. Sullivan sold the team for $87 million. Transfer of Ownership 1. NFL denies that NFL teams compete for the sale of their ownership interests. Then he was in financial trouble and he wanted to sell a minority interest in the team in stock. to exclude from the league owners who may be more effective . playing facilities. 3. Sullivan's expert: NFL exercises monopoly power in preventing certain people from owning a franchise.. Unity of Interests 2..[whereas the other] cases a league's refusal to approve a given sale transaction or new team merely prevented outsiders from joining the league. Court declines to find that as a matter of law the NFL teams do not compete against each other. Though the court felt that the evidence was “rather thin” it was not too thin to support a finding for Sullivan. Sullivan owned the Patriots and it was partially publicly traded. A policy which restricts the buying and selling of teams injures competition in that market. Rozelle. 1. whether any of the defendants has pursued interests diverse from those of the cooperative itself. 3. in particular. economic projections. 3. being a dick. regional balance.. but did not limit competition between the teams themselves. said he was not in favor of the proposal and that league support was very dubious. NFL (1994) 1. Court rejects the NFL's argument that there was no injury to competition 1. 4. and enables a group of owners. 2. merely 8. 2. which had an unwritten policy forbidding public ownership of teams. NE. 1. Market: nationwide market for the sale and purchase of ownership interests in the NFL member clubs. While there is case law to backup the idea that the league can refuse approval to individual transfers of team ownership. 1. The NFL's policy had actual harmful effect on the competition in this market. The rule must be closely tailored to the business objectives 3..

Chicago wants to broadcast 41 games per year over WGN. an instruction on this defense should have been issued to the jury because there was sufficient evidence that Sullivan was “substantially responsible for maintaining or effectuating the policy” because he was on the joint committee during the merger which decided the rules.competitors than they themselves are. 5. NBC only shows 26 games during the regular season and the network contract allows the league and its teams to . Need to prove that the antitrust violation was a material cause not the sole cause. Investors short term interests are different from the long term interests of the league and team ownership. 1. the NBA contends that antitrust laws allow it to fix a lower number (15 to 20) and collect the tax proposed. This policy restricts the market for investment capital 1. 6. Sullivan never asked for a vote. It contributes to the NFL's ability to function as an effective league. the evidence was weak but strong enough to support the verdict. This is not enough to get around the Rule of Reason. wait. 1. 1. Injury in Fact 1. The restraint is ancillary to the functioning of such a joint activity. 3. If he didnt request it for reasons other than the policy then there is no case 3. 2. not just for the purpose of owning a sports team 3. so that a singular majority owner controls the dividends and so forth. 1. the jury needs to be instructed to consider the pro-competitive justifications. 2. and that such rules controlling who joins a joint venture and the policy in question constitutes an ancillary rule. TRIAL ERRORS 1. 4. Other owners say that this is okay because if big corporations were allowed to buy teams then they would funnel massive amounts of money into the team and make it unfair. 2. Proving that the policy reduces the available output of ownership interests. Even people would just buy stock for investment purposes. NBA (1996) 1. Equal involvement defense. Oh. There are less restrictive means to achieve this goal. there was evidence it was rejected any way. they did. The court accepts this notion. The NBA signed a contract that transferred all broadcast rights to NBC. The Bulls wanted to broadcast more of their games over WGN. Since 1991 the Bulls and WGN have been allowed by injunction to broadcast 25 to 30 games per year. Ancillary Benefits 1. The district court made a 30 game allowance permanent and held the NBA’s fee excessive. such an ancillary rule can still violate section1. Again. 3. then make a salary cap. Even though. such as preventing majority shares being sold. 2. 2. these statements imply that if allowed there would be competition for ownership of teams. 1. UH. 2. a television superstation carried nationally on cable. Chicago Professional Sports LP v. PS. The failure to request a vote can be a potentially dispositive issue in the case. the balancing test instruction.

Independence Tube Corp (1984) reignited the dying flame.permit telecasts at other times. The Ninth Circuit held that district court properly condemned the NBA’ssuperstation rule under the rule of reason analysis because (a) the league did not argue that it should be treated as a single entity and (b) the anti-freeriding justification for the superstation rule failed because a fee collected on nationally telecast games would compensate other teams for the value of their contributions to the game being broadcasted. The league has no power to run the teams absent any extreme circumstances (see MLB purchasing the Montreal Expos and moving to WAS). may be treated the same. Copperweld 1. 2. the Bulls and WGN must respect the league’s limitations on the maximum number of superstation telecasts. The league does not have the absolute right to control. Copperweld generally requires complete ownership. 3. The Ninth Circuit decided that when acting in the broadcast market the NBA is closer to a single firm than to a group of independent firms. Although. the NBA may be treated as a single firm in that it produces a single product. Just because they share money does not mean they are incapable of consipiracy. Even if the revenue sharing portion were enough. 1. NFL (1984) 2. therefore. one real great way to get around liability would be to convince a court that you are not multiple actors because you are really a single economic actor. Teams are separate businesses. Most importantly however was the finding that corporations and their wholly owned subsidiaries are single entities. Chicago Professional Sports LP v. However Copperweld Corp v. 1. the teams of the league have competing interests. conduct 2. NBA (1992).” . the defense was considered dead. After the decision in NASL and Raiders I (LA Coliseum). League-wide sharing of revenue does not support a notion of unity of interest. according to Copperweld. 1. it fails on the fact that Copperweld makes direct reference to the “joining of economic reasources which have previously served different interests. In fact the constitution and by laws allow for teams to withdraw from the NFL so that they can join other leagues or form one. 4. There is no sharing of costs and there are wide gaps in profitability from team to team. linked by their constitution and by laws but not owned commonly. Why Copperweld really doesnt help the sports leagues 1. Each team has the right to broadcast all 82 of its regular season games unless NBC casts that game. 3. of the same corp. Because of the multiple actors requirement of section 1 in Sherman. complete unity of interest or absolute right to control. 4. They have a complete unity of interest 2. THE SINGLE ENTITY DEFENSE 1. Corporations and it's unincorporated divisions also engage in unitary conduct. the teams each control their teams as they see fit. directors and employees of a single firm engage in unitary. Officers. 2. MidSouth Grizzlies v. 3. especially for the NFL. This is called the Single Entity Defense. does not involve a sudden joining of economic resources that had previously served different interests. Such as the central licensing units of professional sports leagues? 3. not joint. 1. Wholly owned subs.

NFL: the financial performance of each team is related to the others but does not necessarily rise and fall with that of the others. for gate and player/on field personnel.” 4. and they choose to pool them in NFLP. Though. ” ‘cannot simply get around’ antitrust liability by acting ‘through a third-party intermediary or ‘joint venture.. Product Market and Joint Action 1. 1. I agree with just half of this. 1. 6.4. ignoring the treatises he himself cited to. does not mean that they are in unity of interests. Brown v. Of course. NASL v.he certainly seemed to favor it. Sullivan v. Decision by JPS 1. “The key is. “defining the product as ‘NFL football’ puts the cart before the horse. “Competitors. and held that there needs to be a further investigation as to whether the NBA was a single entity. but that does not mean that cooperation amongst NFL teams is immune from [Sherman Act] scrutiny. 2. PS I have never seen a text shit all over a judge like this in my life. NFLP's licensing decsions are made by the 32 separate entities which own the corporation and the rights that they . and it chooses which one company gets the rights.whether it joins together separate decision makers. providing no real standard and waffling on whether a per se rule or rule of reason should be used.. When each team licenses its IP it is acting in their own interest not in the interests of the league.” 5. 5. get more money to remain competitive. And its a VERY well known one at that. misapplying legal standards. Pro-Football (1996): teams compete for fans. Just because the teams need each other to exist. combo or conspiracy that is necessary or useful to a joint venture is still just that: a combo etc. 2. NFL (2010) 1. By 1991 the defense was so dead that the NBA didnt even mention it in Chi pro sports LP (1992) (Bulls I) 6. Judge Easterbrook wrote a shitty fucking decision. in Bulls II. Honestly. 3. the revenue is split evenly. “NFL teams do not possess either the unitary decision making quality or the single aggregation of economic power characteristic of independent action. so that the league teams with less valuable IP. In the market for IP 1.” 2. quoting colleague Justice Sonia Sotomayor when she was a judge on the Second Circuit Court.’ ” 3. But. I see how each team owns a valuable commodity in its own IP rights. 5. the NFL produces NFL football. to a firm making hats the colts and the saints are two potentially competing suppliers of valuable trademarks. which is what the league needs to survive. NFL: whether any defendants had pursued interests diverse from those of the cooperative itself. “To license their separately owned trademarks collectively and to only one vendor are decisions that deprive the marketplace of independent centers of decision making. American Needle v. A K.” he added. 1. Teams with more valuable IP take less money at the expense of maintaining this competition. “substance over form” 4. NFLP is liable to section 1 attacks as well. Members of any cartel could insist that their cooperation is necessary to produce the ‘cartel product’ and compete with other products.

in the alternative. dashboard sales. any hockey operations or any NHL activity." and that such "broad collective control over the competitive activities of the independent [hockey] business is inconsistent with federal and New York state antitrust laws. 2. Anti-Trust: League Wide Media Contracts and Web Content 1. in relevant part: “MSG forever releases and discharges [the NHL] from any and all claims…upon any legal or equitable theory [which] exist as of the date of the execution…relating to. without limitation. broadcasting. such commonality exists in every cartel. was much broader and challenged NHL restraints relating to four different categories: 1) merchandising and licensing. The Complaint filed by MSG. and broadcast rights. marks. or arising from. and advertising. NFLP is merely an instrumentality of the teams because the business interests will often coincide with that of the business. 2. Judge Preska dismissed all of the non-New Media claims. Each team takes its individual economic benefits apart from the NFLP profits as a result of the decisions they make for NFLP 3. when the parties of the agreement are acting on interests separate from those of the firm itself . which required. The Consent Agreement reads. MSG’s injunction challenged only the NHL’s New Media Strategy. however.” Judge Preska held that the language of the release encompassed MSG’s non-New Media claims and that enforcement of the release would not violate public policy. NHL (2007) 1. MSG v. were barred by the doctrine of laches). 2) broadcasting and streaming. the NHL argued that all claims relating to the first three categories (ie. the NHL raised two primary arguments. merchandising rights." 1. the district court denied MSG's request for a preliminary injunction against the NHL’s effort to ban the Rangers from operating an independent website. holding that MSG had failed to demonstrate a likelihood of success or a sufficiently serious question going to the merits. First. finding that they were released pursuant to the Consent Agreement (and. Though these are decisions made inside one corporation. Judge Preska essentially rejected the antitrust challenge to NHL’s various restrictions regarding merchandising. that MSG had failed to allege antitrust injury). including. all non-New Media claims) were barred by a release in a Consent Agreement signed by MSG in 2005 (or. IX. the performance. presentation or exploitation of any hockey game…. 3) advertising and sponsorship. Second. were barred by the doctrine of laches). concluding . the NHL claimed that it constitutes a “single entity when deciding how to make and sell what only the venture can create” and thus is incapable of violating Section 1 of the Sherman Act (or. the migration of the MSG-owned Rangers’ website to an NHLoperated server. among other things. licensing rights. 1. 4) and New Media. the intrafirm agreements are merely a formalistic shell for concerted action. The purported anticompetitive conduct cited by Madison Square Garden includes allegations that the NHL teams imposed a series of rules limiting individual team control over their websites. in the "by seeking to control the competitive activities of independent business in ways that are not necessary to the functioning of the [NHL] joint venture. In holding that the release does not violate public policy. In its motion to dismiss. in the alternative. the NHL has become an illegal cartel. 2. The complaint further alleges that. 1.

Clarett v. 2.” and “therefore the NHL’s arguments in favor of dismissal cannot be resolved at the pleading stage. Goldberg Dissenting: We should not carve away the power to collectively bargain be creating ways to open them up to the antitrust laws. Anti-trust and Sports: The Labor Exemption 1. J. In pure antitrust terms. and not at the behest of or in combination with non-labor groups it is exempt from the Sherman Act. Say that a salary cap is agreed to by a union and management.” In particular. Clayton sec. Pennington (1965) 1. (1965) 1.” 2. did not exist at the time the Consent Agreement was signed. Where a contract provision is so intimately related to wages. Non-Statutory Exemption 1. The exemption of labor organizations from antitrust laws does not extend to those situations where a union conspires with non-labor organizations with the intent to diminish competition in a particular industry by embodying industry wide standard requirements in a CBA with only one set of employers. as in the case of a monopoly or price-fixing conspiracy. 1. will damage property.that the NHL’s “undisputed legitimacy diminishes the public policy concerns compared to those in the case of a Section 1 conspiracy whose very existence is unlawful. any union-management agreement that was a product of good faith negotiation will receive protection from the antitrust laws. let alone the inquiry into how the NHL actually operates as an economic actor in that market. 3. United Mine Workers of America v. is violent or constitutes a secondary strike. 6 1. That means that the provisions of the agreement cannot be attacked as collusive or anti-competitive. a cap can be a violation of the antitrust law. . But since the cap was part of the collective bargaining agreement negotiated in good faith and agreed-to by the union and management. The New Media Strategy.. Clayton 6 and 20 were specifically designed to avoid such a situation. and thus was not barred by the general release.” and that “[m]ost other Courts that have taken up the issue have reached the same conclusion. hours and working conditions that the union's successful attempt to obtain the provision is through bona fide arms-length bargaining in pursuit of it's own labor union policies. 1.organizations... “Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor. Basically. Jewel Tea Co..” Judge Preska concluded that the “Court need not—and will not—resolve the question at this juncture [because] the arguments advanced by the NHL in favor of single entity status require examining facts outside the pleadings.” 3.” X. Judge Preska therefore had to determine if the single entity defense barred MSG’s New Media Strategy Section 1 antitrust claims. Although Judge Preska recognized that “[w]hat is essentially the same [single entity] argument has been rejected in a similar case by the Court of Appeals. the cap cannot attacked in court as a violation of antitrust. Judge Preska noted that “there is no evidence in the record on the crucial question of market definition. NFL (2004) 1. however. instituted for the purposes of mutual help. No injunctions shall be granted in case between employer and employee involving or growing out of a dispute concerning terms or conditions of employment. Amalgated Meat Cutters v. 2. Unless that strike is illegal. Clayton sec 20 1.

the labor policy favoring collective bargaining may potentially be given preeminence over the antitrust laws where the restraint on trade primarily affects only the parties to the CBA 2. and open the league up to antitrust litigation (or the union) 1. (Of course when this happens there will be a strike or lock out). 3. If challenged restraint regulated by governing labor law then antitrust laws do not apply Unilaterally imposing terms in “impasse” common feature in labor law 3. the labor exemption applies. Which creates a hairy situation where an employer institutes what would be a rule in violation of sherman in the collective bargaining arena without the consent of the union. Local 100 1. the employer can impose his last good faith offer. sued over free agency. the league unilaterally imposed that offer. Which flies in the face of the policy we are going for. because of the way that Labor law works is that once the CBA terminates the status quo is maintained. An agreement outside of a CB relationship and not restricted to a particular job site which obliges a contractor to subcontract work only to union firms may be the basis for antitrust suits. Powell v. I think. J Breyer: Labor laws cannot work properly if at any pt in process can use . 3. The commissioner tries to use the labor exemption to enforce the Rozelle rule. 4. Federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted concerns a mandatory subject of bargaining 3.000 per week.3. Due to impasse. 2. Does the labor exemption apply? 1. 1. labor law governs. Pro-Football. 3-prong Test: 1. to requiring a relationship to exist. 1. NFL (1989) 1. Labor Exemption when CBA expires 1.. this is really a condition for bargaining. The policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product of bona fide arm’s length bargaining 2. This extends the Mackey prong from requiring an agreement to exist. The League offered the union to pay them $1. so no antitrust liability. Connell Construction v. Meaning I was correct earlier insofar as so long as there is a section 9a relationship. Though. This case deals with the addition of developmental practice squads in the NFL. If impasse were to end the relationship then it would be too easy to artificially create impasse. if the union however were to disband. which opened it to antitrust attacks and was found to be anti-competitive as seen earlier. even if implemented unilaterally it is not subject to antitrust laws 2. 2. Court assumed that Rozelle Rule wasn’t part of arm’s length bargaining. My assumption is. 1987 NFL strike ended. Mackey v. Brown v. 1. union played without a new contract. NFL (1976) 1. Union rejects this offer and they bargain to impasse. then there would be issues. Inc (1996) 1. The problem with this could be that when impasse happens. Judge says as long as the parties have a collective bargaining relationship.

and ordered an election including only the American players (ie not the Canadian teams) because of the extent of NLRB jurisdiction. The standard for determining if a bargaining unit is appropriate is that the unit must be reasonable.antitrust law… 4. Labor Law and Sports: Collective Bargaining and Arbitration 1. Great Dane Trailers (where GDT made a 7/1 deadline to return to get benefits when the union made its request for reinstatement on 7/15)(inherent as opposed to comparatively slight). which is just mildly ridiculous to say. Even though this is similar to the inherently destructive acts taken in NLRB v. termination of players 2. eligible to play and paid for games that week. 1. NLRB 1. in the inherent ones. 9(b) provides some of the basic outlines. 1. NFLMC. 1. XI. NFL Management Council and NFLPA (1992) 1. individual players contracts 3. For the NFL to negotiate with Clarett would be an ULP. NFL (2004) Again 1. 2. NASLPA in its petition for recognition included all NASL players in the bargaining unit. North American Soccer League v. 1. player discipline 2. retention. The NLRB found that the NSAL teams were joint employers and therefore this type of bargaining is okay (multiemployer bargaining). 2. instituted a reporting deadline for strikers for a wednesday to eligible for games and payment. the court determined that it was still the burden of the defendant to prove it's legitimate business motives (in the comparatively slight cases such a motive can be defeated only by discriminatory intent. NASL has significant control to effectuate labor policy 1. The existence of joint employment relationship depends on the control than another employer exercises over another employer. 1. only the players who returned by the wednesday deadline were fully reinstated. and in terms of judicial review there is an arbitrary and capricious standard. The NFL argued it made the rule in order to protect players from injury and keep them in game shape as well as to prevent mismatches. . When might the players ever again resort to antitrust laws? 1. Sup Ct said: still possible only if restraint at issue is sufficiently distant in time & in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere w/ that process 4. This is an appropriate bargaining unit issue. On a thursday the union made its unconditional request for reinstatement. but it is WIDE open. and therefore his employment with the NFL would be subject to a union agreement which states that he is unqualified to play in the NFL until he is 3 years removed from HS. Clarett's argument completely neglects that labor policy exists 2. Clarett v. 9(a) establishes that the NLRB determines the unit 2. dispute resolution 4. the motive can be defeated because of the nature of the act itself). However the court called BS because players who hold out for better contracts and miss time are not held to similar requirement. selection. A unit is typically reasonable if they share a community of interests. 2. If Union in existence (collective bargaining relationship in existence) will be governed exclusively by labor law & antitrust law will not apply 5.

In the 1984 offseason there was plenty of free agent signing. After a union has been certified the NLRB can prevent the enforcement of unilateral changes made by the league. 5. MLB Player Relations Comm. 3. 1. 1. NASL (1980) 1. 1. In the Matter of Arbitration Between MLBPA and the 26 MLB Clubs (1986) 1. The MLBPA requested financial data to prove the claim . Where a representative of the employer outside of the realm of collective bargaining makes claims about not being able to financially accede to the demands of the union the NLRB may not require that the employer reveal it's financial statements to the union. unilateral implementation of mandatory subjects/ 8a5 8a1 2. the MLBRC refused claiming financial hardship was not the reason for difficulty. This was a violation of 8(a)(3) and 8(a)(1) Silverman v. 97% of the contracts were negotiated after the NLRB certification of the union. NLRB v. The Weds. Morio v. . Katz: it is an 8a5 to undercut the union by entering into individual contracts with employees. This is about by-passing the bargaining representative. They claimed that they had bad experiences with FA's and would rather develop from within. 2. Inc. 1. The MLBPA filed for arbitration to greive the issue. no free agent signed with a team other than their current team unless that team declared that they were not interested in retaining that player. including individual contracts. MLB PRC (1995) 1. Deadline was only applicable to striking players and not nonstrikers who signed on Saturday before the game. MLB changes (elimination of salary arbitration and anti-collusion terms declaring impasse) violate the duty of good faith in bargaining. they would have to present their financial documents. (1981) 1. This is a refusal to furnish information case 2. which is also an 8a5. and then other owners and the commissioner said that the salaries of players was making the situation tough and several teams could be put into bankruptcy. 5. The MLBPA was bargaining with the MLBPRC. the NASL continued to negotiate individual contracts. 8(a)(5) requires to bargain in good faith. MLB argued that this was just an example of each member of the market individually changing their feelings as to the best and most efficient way to run their teams. 2. Silverman v. Free agency and salary arbitration are mandatory subjects. 1. 4. In 1978 the NASLPA was recognized as the exclusive bargaining agent of the players in the NASL. yeah thats the reason. 6. Saftey did not preclude reinstatement in the 1982 strike. Administrative burdens was a bad excuse too. The fact that NASL was appealing certification does not relieve them of their duty to bargain in good faith. However.3. Because the owners outside of the negotiation have no power in said negotiation there statements as to the condition of the financials does not mean as much as when those who are bargaining say that financials are not the reason for their position.. If the PRC said that. 2. The NASL was making unilateral changes in the conditions of employment. The negotiations were tough. claiming collusion in violation of Article XVIII(H) of the basic agreement (the CBA). 1. 4. But in the 1985 offseason.

2. Arbiter exceeded his power so far that no mutual final and definite award was made. MLBPA v. Here the CoA. Standard from Garvey used too 3. Ricky Williams gets bonuses in his contracts. Union as the Respondent in arbitration 1. CoA 11th Circ 1. reversed on the fact that the some of the testimony may have been false and the evidence which the arbiter found to be probably unauthentic was more than likely real. Miami Dolphins Ltd. 2. 2. 1. He retired midcontract. the MLB was ordered to create a $280 mil fund from which injured players could make a claim for. Vacate when: 1. he appealed. Of course he must be acting within the scope of his authority. The general tone of the meeting was that signing free agents is bad. Williams (2005) 1. Of course. The arbiter denied Garvey's claim. the commissioner told all GMs that it is dumb to sign long term contracts. 1. Judicial Response to Arbitration Process 2. Arbitrary and capricious . The District court refused to vacate the arbiter's decision. a retired baseball player. not settle it. the CoA reversed and remanded with instructions that the arbitration panel to enter an award for the amount Garvey claimed. The Dolphins. claimed that before the end of the 1985 season SD Padres owner offered him an extension through the 1989 season. 1. 3. Only when the arbiter strays from interpretation and application of the agreement does he effectively dispense his own brand of justice. arbiter misconduct in refusing to postpone the hearing where there was good cause to postpone or in refusing to hear pertinent and material evidence . they distributed a list of all declared free agents. Steve Garvey. but once the colluding began that contract was withdrawn. Garvey (2001) 1. Courts are not authorized to review the arbiter’s decisions on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. This does not fall under the narrow realm of where a court can change the decision of the arbiter. and renders his decision unenforceable. or prejudicial misbehavior. but on appeal. The arbiter found that his contract had the clause and there was no reason not to order the payment. 8. 1986 and 1987. The courts have no business weighing the merits of the grievance. The appropriate thing to do is to remand the issue. while Williams countered with a motion to vacate. 7. Sorry MLB but at the GM meetings. in order for a player to claim the injury and get money from the fund he would have to prove that he had a contract offer that was repealed because of collusion. award was procurred by corruption or fraud or undue means 2. v. HELD: The owners and MLB colluded. 1.2. Which resulted in the colluding of teams not to sign players other than their own. 4. pursuant to his contract wanted the bonuses back. SCOTUS: Judicial review of arbitration is very limited. Federal Arbitration Act 1. As a result of the collusion of the owners in 1985. The Dolphins filed to confirm the order. evident partiality or corruption 3. 3.

In the present case. which is not grounds for vacation. 4. enforcement is contrary to public policy 3. . evinces a manifest diregard for the law 1. the arbiter may have misinterpreted the law a little. like if you had to enforce a union security agreement in a Right to work state. 5. Though the state of FL does not enforce liquidated damages clauses so much this was not against the policy of the state because the clause can be construed as lawful and was within the arbiter's scope to interpret as such.2.

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