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158 Cards in this Set

  • Front
  • Back
Chapter 6 – Disabilities and Sports
Interpretation of disability continues to evolve, Includes physical, mental, and learning disabilities
Relevant Statutes
The Rehabilitation Act of 1973<BR>The Americans with Disabilities Act
Individuals with Disabilities Education Act
High Schools
Indirect recipient of federal funds
Subject to a 504 claim
The Rehabilitation Act of 1973
o Precursor to the American Disabilities Act stating that “no otherwise qualified handicapped individual in the United States… shall, solely by reason of… handicap, be excluded from participation in, be denied of, or be subjected to discrimination under any program or activity receiving federal financial assistance”
o Nowhere defines what a reasonable accommodation is Edit
o Proof of discrimination under § 504
Is regarded as having such impairment if:
· Has a physical or mental impairment that does not substantially limit a major life activity but is treated by the appropriate institution as having such a limitation
o Walking with a limp
· Has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others towards such impairment
· Has no physical or mental impairment but is treated by the appropriate institution or governing body as having such impairment
o Testing positive for disease with no effects yet
Considered disabled if:
§ Has a physical or mental impairment that substantially limits one or more major life activities
§ Has a record or history of such an impairment
The Americans with Disabilities Act
o Federal law imposing obligations on employers and other providers of public transport, telecommunications, and public accommodations to accommodate those persons with disabilities
o “… To provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities

Four major ADA categories
§ Title I – Employment
§ Title II – Public Services (applies to public institutions) Edit
§ Title III – Public Accommodations and Services Operated by Private Entities (applies to private institutions)
§ Title IV – Telecommunications and Common Carriers
Reasonable accommodation
Adaptations or adjustments employers must make to accommodate the interests of a person with disabilities without undue hardship
· Analysis under ADA that would provide a defense for an employer that must pay excessive costs to accommodate a person’s disability
What is impairment?
Diminishment of physical or mental capabilities
§ Any physiological disorder or condition, cosmetic disfigurements, or anatomical loss affecting one or more of the following systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine
Undue hardship
Considers cost, financial resources available to institution, and impact of accommodation on future operations
Not covered in ADA
§ Following are not covered under the ADA:

Homosexuality, bisexuality, transsexualism, voyeurism, kleptomania, transvestitism, pedophilia, exhibitionism, compulsive gambling, pyromania, and psychoactive substance use disorders from illegal drug use

§ Rehabilitated and recovering drug and alcohol user are covered
Proof of discrimination under the ADA
Student athlete must show:
- A disability exists;
· That the student is otherwise qualified to participate in interscholastic sports;
·That the exclusion from participation in the sport is solely due to the disability; and
·That the defendant falls under Title II or Title III of the act
Risks to self and other participants
Controversial, undecided element for courts to deal with
Role of the EEOC
§ Equal Employment Opportunity Commission (EEOC)
· Federal agency responsible for enforcing federal antidiscrimination laws

§ Provides defense if accommodation would expose the disabled individual or others to a “significant risk of substantial harm”
Alcohol and Other Drugs
Alcoholism and drug addiction are considered disabilities under ADA

If such persons affect others during the employment relationship, then they are likely not covered under the act
Golfers and Other Professional Sports
Case asking for permission to use a golf cart during PGA Tour events

o Possible unfair advantage
§ Is the use of a cart a reasonable modification?
§ Would the use of a cart provide an unfair advantage?
Martin’s Supreme Court decision
Allowed use of a cart
· Ruled PGA was subject to Title III of the ADA
· Ruled Martin was a member of a protected class
· Ruled use of cart would not alter competitive nature
The Olinger Case
Ruling was opposite of Martin Case
The Individuals with Disabilities Education Act (IDEA)
o Federal law mandating that all children with disabilities have available to them a free, appropriate public education that emphasizes special education and related services to meet their unique needs

o Applies through the high school level

o Includes mental retardation, blindness, and deafness
Specific disabilities not typically covered under IDEA
§ Communicable diseases, including AIDS, AIDS related complex (ARC), asymptomatic carriers of the AIDS virus (HIV), and tuberculosis;
§ Temporary disabilities: students injured in accidents or suffering short-term illnesses;
§ Chronic asthma and severe allergies;
§ Physical disabilities such as spina bifida, hemophilia, and conditions requiring children to use crutches; and
§ Diabetes
IDEA's Age limits and eligibility
Issues concerning disabled students taking longer to graduate and eligibility
Age Discrimination in Employment Act (ADEA)
o 1967 law that prohibits job discrimination against people age 40 and older based on age

o Applies to employers of 25+ employees against workers 40-65 years old

o Exceptions for when age is a bona fide occupational qualification (BFOQ) or the institution of a bona fide seniority system or employee benefit plan
Chapter 7 – Drugs and Sports
Introduction
o Testing for performance-enhancing and illegal drugs
Performance-Enhancing versus Illegal Drugs
Drug or substance ingested, injected, or inhaled by an athlete to increase muscle growth, repair, or development or any substance used to decrease the effects of fatigue
Fourth Amendment
§ Amendment to the United States Constitution prohibiting the government from conducting a search of a person’s body or home without the individual’s consent, a warrant, or a contract; referred to as the “search and seizure” warrant

§ Concerns whether athletes have a legitimate expectation of privacy when it comes to drug testing

§ Vernonia and high schools sports
· Drug testing is valid in public high schools
Fifth Amendment
§ The requirement for a “due process” hearing before a person’s life, liberty, or property is taken away; this amendment to the United States Constitution also provides the right against self-incrimination

§ Athlete should be granted a process for a hearing and appealing a positive drug test result
Fourteenth Amendment
Prohibition against states abridging the rights guaranteed under the United States Constitution

Courts refuse to recognize participation in sports as a “property right”
Equal protection
Clause in the Fourteenth Amendment that states that the government must treat a person or class of persons the same in similar circumstances
NCAA Regulation
o Athletes sign a consent form
o Test for illegal and performance enhancing drugs
o Considered a private actor
Professional Sports
o Testing in every sport, regulated by CBAs and occasionally individual professional contracts

o No uniform standard for testing, punishment, or treatment
National Football League Drug Policy
§ Prohibits illegal use of drugs and the abuse of prescription drugs, over-the-counter drugs, and alcohol

§ Intervention Program

§ Tested for cocaine, marijuana, amphetamines, morphine, codeine, and PCP

§ Tested in April and August
The Olympic Games
o Most proactive stance
o International Olympic Committee policies

§ Two samples (A sample and B sample) taken from an athlete
§ A sample is tested
§ B sample is only tested if the A sample has a positive result
§ Athlete is notified of the positive A sample result and given the right to be present at the testing of the B sample with a witness
§ Focus on due process
Ancient Greece
Use of plants and fungi to increase performance
1886
English cyclist dies of an overdose of a drug
1940s
Testosterone appears on market as injectable steroid
Human Growth Hormone (HGH)
Hormone that affects all body systems and plays a major role in muscle growth and development
Erythropoietin (EPO)
Performance-enhancing hormone affecting red blood cells

Cannot be completely detected through urine
· Blood tests are best option
United States
Has a NAN (no advance notice) out-of-competition drug testing policy
Centered around Olympic Games and Olympic Movement
Term used to describe the underlying goals and themes of the Olympic Games and the International Olympic Committee
Competition for and During the Olympic Games
Corruption involving athletes and nations hoping to host the events
Court of Arbitration of Sport (CAS)
Body that addresses complaints of athletes, coaches, and federations under the jurisdiction of the Olympic Movement

American Legal Challenges
The Olympic Movement
o Modern games began in 1896 in Athens, Greece
o Competitors were then believed to be amateurs
o Now welcomes professional athletes
International Political Landscape of the Olympic Games
o Combination of athletic competition, corporate promotions, and international politics
1980 Olympics Boycott
United States boycotted 1980 games in Moscow to protest Russian invasion of Afghanistan

Resulted in reciprocal boycott in 1984 games in Los Angeles by USSR
Recent Politics
Korea and the first appearance of many countries
International Olympic Committee (IOC)
§ Organization responsible for managing the Olympic Movement
§ Established in 1894 for the 1896 Athens Games
§ Sets and enforces Olympic policies
§ Mandates that “every person or organization that plays any part whatsoever in the Olympic Movement shall accept the supreme authority of the IOC and shall be bound by its Rules and submit to its jurisdiction”
§ Final authority and arbiter on Olympic matters
International Federation (IF)
§ Sport-specific regulatory body that sets international rules under the jurisdiction of the IOC
§ Technical control of all aspects of the sport they supervise
National Olympic Committee (NOC)
§ Designated national organizations responsible for managing the affairs of a particular country’s Olympic teams, such as the USOC

· USOC is considered in the United States to be a private entity, not a government actor, so the Fifth Amendment does not apply to the organization
National Governing Bodies (NGB)
§ Sport-specific regulatory body for a particular country, such as United States Swimming

§ Determine internal eligibility standards and recommend Olympic athletes
The Amateur Sports Act of 1978
§ American amateur sports act that established guidelines for athletes and the United States Olympic Committee
The Amateur Sports Act of 1978 Grants the following exclusive rights off use to the USOC:
· the name “United States Olympic Committee”
· the five interlocking rings of the International Olympic Committee
· the USOC’s emblem “consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with 5 interlocking rings displayed on the chief”; and
· the words “Olympic,” “Olympiad,” “Citius Altius Fortius,” or any combination of those words
Ted Stevens Olympic and Amateur Sports Act (TSOASA)
Amendments to the Amateur Sports Act of 1978 giving amateur athletes more specific competition rights and recognizing the role and needs of athletes with disabilities
1980 U.S. Boycott of the Moscow Olympic Games
· Reaction to Soviet invasion of Afghanistan
· 60 countries joined the boycott
· Legal action taken by American athletes, but ruling was for USOC
Butch Reynolds’ Battle Royal
· Sprinter tested positive for banned substance
· Suspended by IF for two years, including 1992 Barcelona Games
· Suspension extended for one year the day before it was set to expire
· Reynolds brought action and was awarded $27.4 million
· Appeal reversed decision based on lack of personal jurisdiction
Tonya Harding’s Legal Adventure
· Knew of plot to physically injure Nancy Kerrigan in Olympic Trials
· Hearing was delayed until after Olympic games and she was allowed to compete
· Pled guilty to criminal conspiracy and resigned from USFSA
· 1994 national championship title was stripped and banned from sport for life
The 2000 Sydney Olympics
“Doping Games” for numerous positive drug tests and stripped medals
Before the 2002 Salt Lake City Games
o Charges of fraud, conspiracy, racketeering, and corruption for trying to bribe IOC members to vote for Salt Lake City to host the Games

o Considered one of the biggest scandals in Olympic history
During the 2002 Salt Lake City Games
o French figure skating judge was pressured to give higher scores to gold medal winning Russians over silver medal winning Canadians

o IOC awarded second set of gold medals to Canadians
After 2002 Salt Lake City Games
International mob figure arrested in Italy for allegedly fixing two of the four events in figure skating
Olympic trademarks and the Internet
· IOC continued to try to protect its international trademark, the word Olympic

· Cease and desist orders to websites and confiscation of unlicensed merchandise using the term Olympic or he interlocking rings
San Francisco Arts &amp;amp;amp;amp;amp; Athletics, Inc. v. United States Olympic Committee
· USOC requested elimination of the word Olympic in the SFAA’s “Gay Olympic Games”
· SFAA did not comply, so USOC brought suit for injunctive relief
· Court granted USOC summary judgment and a permanent injunction
· Ninth Circuit Court of appeals affirmed
· Supreme Court agreed, reaffirming that the USOC is not a governmental actor and the Fifth Amendment does not apply
Antitrust
Term used to describe any contract, combination, or conspiracy that illegally restrains trade and promotes anticompetitive behavior
Sherman Antitrust Act of 1890
§ 1890 federal law that prohibits interference with interstate production and distribution of goods

§ “per se” rule and the “rule of reason”

· Up to $350,000 fine to individuals
· Up to $10 million fine to corporations
· Treble (triple) damages
· Lawyer and court fees
Sherman Antitrust Act of 1890 Section 1
Forbids contract, combination's, or conspiracies that may unreasonably restrain trade
Sherman Antitrust Act of 1890 Section 2
Prohibits monopolization of trade and commerce
Clayton Act
§ 1914 federal law that allows the government or a private plaintiff to obtain an injunction against anti-competitive behavior
§ Provides labor unions and labor activities exempt from Sherman Act
· Labor is not considered commerce
o Statutory labor exemption
Norris-LaGuardia Act
§ 1932 federal law that forbids federal courts from abusing the injunctive process and to prevent employers from abusing the courts to obtain injunctions on union activities

§ Allows collective bargaining units
National Labor Relations Act (NLRA)
§ Federal act regulating relations between employers and employees
§ Encourages collective bargaining in good faith
§ Bilateral protection to unions and employers
National Labor Relations Board (NLRB)
§ Federal agency created by the NLRA to regulate employer and employee relations, particularly in the union context
§ Oversees and referees the collective bargaining process
§ Members appointed by the President
Per se rule analysis
§ Rule that holds that certain types of trade agreements or arrangements are inherently anticompetitive and therefore illegal
Price Fixing
Rule of reason analysis
Rule that holds that only unreasonable restraints of trade violate Section 1 of the Sherman Act
Non-statutory labor exemption
§ General term describing any union-management agreement that was a product of good faith negotiation and will therefore receive protection from federal antitrust laws

§ Removes courts from labor agreements
Mandatory subjects of collective bargaining
§ Process of negotiating a contract between management and labor in the union context
§ Must discuss wages, hours, and working conditions
· “Compulsory” subjects vs. “permissive” subjects
Strikes
· Cessation of work by union members to obtain benefits or prevent abuses in the workplace
· Right provided by the NLRA
· Must be approved by a majority of union members
· 60 days notice must be given to employer
o “Cooling-off period”
Lockout
Temporary withholding of work by the employer to resolve a labor dispute
Antitrust in Professional Sports: Single entity structure
§ Teams act individually, but the league itself is solitary
§ Most professional leagues usually not considered “single entities”
· Unless league owns most teams (WNBA, MLS, WUSA, AFL)
Baseball's Unique exemption from antitrust laws
Reserve Rule
Federal Baseball
Held not to involve interstate commerce
Baseball's Flood v. Kuhn
Supreme Court acknowledged illegal nature of reserve rule
· Held that only Congress could address or change it though
Curt Flood Act of 1998
· Federal law that revokes part of a 1922 U.S. Supreme Court decision exempting baseball owners from antitrust laws
· Amateur draft, relationship between major and minor leagues, and franchise location/relocation remain exempt
Football
Relatively stable relationship between owners and NFLPA
Mackey v. NFL
· Challenged and invalidated Rozelle Rule
o Version of reserve rule
o Teams must compensate other teams to sign players
The 1987 NFL strike
· Hiring of replacement players
· Darkest period of labor relations
Powell v. NFL (1988)
Failed antitrust allegations
Brown v. Pro-Football, Inc. (1995)
Setting unilateral salaries fell within non-statutory labor exemption for professional sports
Bridgeman v. NBA (1987)
Failed antitrust allegations concerning college player draft, salary cap, and right of first refusal
Wood v. NBA
Failed antitrust allegations
McCourt v. California Sport
Reserve system was a part of collective bargaining, so it was exempt from antitrust laws
The 1992 NHL strike
10 day strike
Competitor leagues
Newer leagues (especially those that fold) commonly bring antitrust claims against existing leagues
AFL vs. NFL
NFL was a “natural monopoly” and did not violate antitrust laws
USFL v. NFL
· Jury found that the NFL intentionally maintained a monopoly over American football
· Awarded USFL $1.00 (tripled to $3.00) in damages
NCAA and amateur sports cases
§ NCAA television broadcast plan found to be anti-competitive and in violation of Sherman Act in 1984
§ NCAA again found to be in violation of federal antitrust laws with the REC (restricted-earnings coaches) rule in 1998
§ NCAA students are not represented by a union
Intellectual property
Category of law pertaining to trademark, copyright, and patent rights
Copyright law
§ Property right in an original work of authorship such as literary, musical, artistic, or photographic work

§ US is governed by the 1976 Copyright Act and the Digital Millennium Copyright Act of 1998
Infringement
Act that interferes with one of the exclusive rights of a patent, copyright, or trademark owner
Fair use
· Term used in the copyright context that allows for the reasonable yet limited use of a work without the author’s prior permission
o Teaching and research applications
Patent law
Federal government’s grant for the exclusive right to use, make, or sell an invention if the device is novel, useful, and non-obvious

· Utility patents (lasts 20 years)
· Design patents (lasts 14 years)
· Plant patents (lasts 20 years)
Trademark law
Word, phrase, logo, slogan, or symbol used to distinguish a product from others
Trade dress
The total image and appearance of a product or service
Service marks
Mark used in sale or advertising of services to distinguish it from others
Collective marks
Trademark of an association, union, or other group
License
Revocable permission to commit an act such as copying a trademark
Sports Merchandising
Lanham Act
§ 1946 federal act that provides for a national system of registration of trademarks

§ Trademarks are registered with the Patent and Trademark Office

§ Provides for civil suits for infringement
Licensing Trademarks
Million dollar industry for commissions or royalties to use trademarks in sports
Protecting the trademark
Failure to regulate non-licensed products could result in thousands of dollars of lost revenue
Licensing revenues
Licensing revenue for all four major leagues are shared equally by their respective teams
Mascots and Trademarks
In 1999, the Trademark Trial and Appeals Board of the United States Patent and Trademark Office canceled seven registered trademarks that used the word Redskin
Ethnic Mascots
o Phrase used to describe athletic mascots that single out a race, gender, or culture
o Braves, Indians, Redskins, Chiefs, and Black hawks have all been accused of being racially insensitive
Recent changes involving mascots
§ Numerous colleges have recently changed their nicknames or mascots
§ President Clinton refused to wear Indian’s cap with Chief Wahoo on it when throwing out first pitch in 1994
The future of ethnic mascots
Uncertain whether ethnic mascots will survive legal scrutiny as being offensive
Ambush Marketing
Type of marketing in which a consumer is misled as to whether a company or sponsor is officially part of an event
The Internet and the Anticybersquatting Consumer Protection Act (ACPA)
1999 federal law amending the Lanham Act to create a cause of action against someone who intentionally registers an Internet domain name confusingly similar to a trademarked name
Domain name
Word followed by .com, .org, .net, .edu, .info, .biz, and registered as part of the Internet system
Cybersquatters
Individual who intentionally registers an Internet domain name that is confusingly similar to a trademarked name
Alternative dispute resolution (ADR)
Resolving disputes via arbitration, mediation, and other alternatives to litigation
ADR Arbitration
Arbitrator is a decision maker
Mediation ADR
§ Mediator plays the role of settlement facilitator
§ Does not focus on who is “right” and who is “wrong”
Litigation ADR
Process of carrying on a lawsuit via the courts
Administrative Dispute Resolution Act of 1990 (ADRA)
Requires federal agencies to establish policies for the use of ADR
Federal Arbitration Act (FAA) and the model Uniform Arbitration Act (UAA)
Encourage the use of ADR to resolve disputes
Important Federal Laws
o Title VII of the Civil Rights Act of 1964
o The Civil Right Act of 1991
o The Age Discrimination in Employment Act of 1967
o Section 505 of the Rehabilitation Act of 1973
o The Americans with Disabilities Act
o The Equal Pay Act
o The Family and Medical Leave Act
Arbitration
o Submitting a dispute to a neutral decision maker for final and binding resolution
o May mimic a trial and is adversarial
o Hearings usually last a few hours, and opinions are not public record
Binding arbitration precludes any decision to challenge in court
Except if arbitrator abused discretion by committing fraud or other misconduct
The American Arbitration Association (AAA)
National organization that maintains a panel of arbitrators to hear labor and commercial disputes
Mediation
o Nonbinding method to resolve a dispute by involving a neutral third party who attempts to help the parties resolve their disputes
o Virtually completely controlled by the parties who can walk away at any time
o Extremely flexible
o Private and confidential
o Mediator does not have the authority to impose a solution or make a decision concerning the parties
Med-arb
§ Hybrid form of alternative dispute resolution involving both mediation and arbitration
§ Mediation is used and any unresolved issues are then decided by arbitration
Constitutional Concerns
Legality of binding arbitration clauses in employment contracts

o Mandatory waiver of constitutional rights by employees
Sixth Amendment
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”
Seventh Amendment
“In suits at common law, the right to a trial by jury shall be provided”
ADR in Professional Sports
o Arbitration clause is found in the CBA of each of the four major sports
o “Last best offer” arbitration for MLB contract disputes
National Collegiate Athletic Association
§ Proposed that collegiate athletes could benefit from ADR concerning scholarships and other disputes
§  NCAA has used ADR in other suits, including mediation
· Law v. NCAA
· Jerry Tarkanian case
The United States Olympic Committee
Arbitration is the method of choice in the Olympic Movement
International ADR: Court of Arbitration for Sport
§ IOC established the Court of Arbitration of Sport in 1983
§ Cases are based upon submission to arbitration by contract
Olympic ADR cases
Since 1996, arbitrators have been present at Games to swiftly resolve issues at a moment’s notice
Dispute Resolution and Cyberspace
Protection of intellectual property
§ Emergence of forms of online dispute resolution services

· Advantages:
o Convenience
o Cost and time reductions
o Reduced verbal and physical intimidation

· Disadvantages:
o Possible electronic security breaches
o Lack of face-to-face contact
o Lack of tone of voice and facial features
o Potential misinterpretation of terms
World Intellectual Property Organization (WIPO)
International organization dedicated to helping ensure that the rights of creators and owners of intellectual property are protected worldwide and that inventors and authors are recognized and rewarded for their ingenuity
Arbitration and Mediation Center created in 1994
Offers arbitration and mediation services for the resolution of international commercial disputes
Jessica Foschi
Represented lack of consistency and a confusing struggle for power, jurisdiction, and rules interpretations between national and international amateur sport governing bodies and the AAA
Ross Rebagliati
§ Represented the technicalities associated with drug testing issues, the need to clarify ambiguous rules related to the Olympic Games, and how regulations can change as the result of ADR disputes

§ Proved how swiftly the Ad Hoc Division of the CAS could make decisions
Matt Lindland
Represented that even with ADR there were delays in the decision-making process of rules interpretations

Demonstrated that the use of ADR to resolve subjective, judgment calls by officials in sports might not be appropriate
Apolo Ohno
§ Established that final arbitration decisions could not be appealed or challenged further

§ Demonstrated how competition rules could be modified as the direct result of legal challenges to their enforcement and interpretation
Constitution of the United States
Nation’s fundamental legal document
First Amendment
Constitutional amendment providing for freedom of the press, freedom of assembly, and freedom of religion
Establishment clause
“Establishment of religion”
Free exercise clause
“Free exercise thereof”
Prayers before sports contests
Recent legal challenges to such organized prayers have forced the courts to address whether such prayers are constitutional
Prayers at graduation ceremonies
Does saying a prayer advance or impose a particular religion and thereby violate the Constitution?
Lemon test
§ Test of constitutionality providing that an act of government must:

· Be primarily secular in purpose
· Neither advance nor inhibit religion, and
· Avoid excessive entanglement with religion
Endorsement test
Legal standard in which a court considers whether the government intends to communicate, and whether an imaginary “reasonable observer” would receive, a message of “endorsement” of a particular religion and/or an act of disapproval toward any other religion
Coercion test
Examination of a religious practice to determine whether pressure is applied to force or coerce individuals to participate
Chaudhuri
Generic prayers and moments of silence at university events do not violate the First Amendment
· Participation is not required
Santa Fe
Student-led, student-initiated prayers at public high school football games and graduation ceremonies are unconstitutional and violate the establishment clause
Adler I
No violation since school officials were not involved in the decision-making process
Adler II
Found that the policy was neutral toward student speech and did not inject the government into determining the content of student speech
The Future of Prayer at School Events
It is likely that private organizations that do not receive federal or state funds may say prayers of their choosing without fear of a lawsuit
Individual Athletes and Religious Expression
o Legal system has yet to clearly define effect of such expressions
o No clear-cut answers