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158 Cards in this Set
- Front
- Back
Chapter 6 – Disabilities and Sports
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Interpretation of disability continues to evolve, Includes physical, mental, and learning disabilities
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Relevant Statutes
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The Rehabilitation Act of 1973<BR>The Americans with Disabilities Act
Individuals with Disabilities Education Act |
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High Schools
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Indirect recipient of federal funds
Subject to a 504 claim |
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The Rehabilitation Act of 1973
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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 |
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Is regarded as having such impairment if:
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· 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 |
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Considered disabled if:
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§ Has a physical or mental impairment that substantially limits one or more major life activities
§ Has a record or history of such an impairment |
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The Americans with Disabilities Act
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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 |
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Reasonable accommodation
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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 |
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What is impairment?
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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 |
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Undue hardship
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Considers cost, financial resources available to institution, and impact of accommodation on future operations
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Not covered in ADA
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§ 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 |
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Proof of discrimination under the ADA
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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 |
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Risks to self and other participants
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Controversial, undecided element for courts to deal with
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Role of the EEOC
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§ 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” |
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Alcohol and Other Drugs
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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 |
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Golfers and Other Professional Sports
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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? |
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Martin’s Supreme Court decision
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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 |
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The Olinger Case
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Ruling was opposite of Martin Case
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The Individuals with Disabilities Education Act (IDEA)
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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 |
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Specific disabilities not typically covered under IDEA
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§ 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 |
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IDEA's Age limits and eligibility
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Issues concerning disabled students taking longer to graduate and eligibility
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Age Discrimination in Employment Act (ADEA)
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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 |
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Chapter 7 – Drugs and Sports
Introduction |
o Testing for performance-enhancing and illegal drugs
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Performance-Enhancing versus Illegal Drugs
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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
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Fourth Amendment
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§ 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 |
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Fifth Amendment
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§ 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 |
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Fourteenth Amendment
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Prohibition against states abridging the rights guaranteed under the United States Constitution
Courts refuse to recognize participation in sports as a “property right” |
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Equal protection
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Clause in the Fourteenth Amendment that states that the government must treat a person or class of persons the same in similar circumstances
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NCAA Regulation
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o Athletes sign a consent form
o Test for illegal and performance enhancing drugs o Considered a private actor |
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Professional Sports
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o Testing in every sport, regulated by CBAs and occasionally individual professional contracts
o No uniform standard for testing, punishment, or treatment |
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National Football League Drug Policy
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§ 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 |
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The Olympic Games
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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 |
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Ancient Greece
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Use of plants and fungi to increase performance
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1886
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English cyclist dies of an overdose of a drug
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1940s
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Testosterone appears on market as injectable steroid
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Human Growth Hormone (HGH)
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Hormone that affects all body systems and plays a major role in muscle growth and development
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Erythropoietin (EPO)
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Performance-enhancing hormone affecting red blood cells
Cannot be completely detected through urine · Blood tests are best option |
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United States
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Has a NAN (no advance notice) out-of-competition drug testing policy
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Centered around Olympic Games and Olympic Movement
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Term used to describe the underlying goals and themes of the Olympic Games and the International Olympic Committee
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Competition for and During the Olympic Games
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Corruption involving athletes and nations hoping to host the events
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Court of Arbitration of Sport (CAS)
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Body that addresses complaints of athletes, coaches, and federations under the jurisdiction of the Olympic Movement
American Legal Challenges |
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The Olympic Movement
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o Modern games began in 1896 in Athens, Greece
o Competitors were then believed to be amateurs o Now welcomes professional athletes |
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International Political Landscape of the Olympic Games
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o Combination of athletic competition, corporate promotions, and international politics
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1980 Olympics Boycott
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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 |
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Recent Politics
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Korea and the first appearance of many countries
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International Olympic Committee (IOC)
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§ 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 |
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International Federation (IF)
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§ Sport-specific regulatory body that sets international rules under the jurisdiction of the IOC
§ Technical control of all aspects of the sport they supervise |
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National Olympic Committee (NOC)
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§ 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 |
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National Governing Bodies (NGB)
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§ Sport-specific regulatory body for a particular country, such as United States Swimming
§ Determine internal eligibility standards and recommend Olympic athletes |
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The Amateur Sports Act of 1978
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§ American amateur sports act that established guidelines for athletes and the United States Olympic Committee
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The Amateur Sports Act of 1978 Grants the following exclusive rights off use to the USOC:
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· 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 |
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Ted Stevens Olympic and Amateur Sports Act (TSOASA)
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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
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1980 U.S. Boycott of the Moscow Olympic Games
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· Reaction to Soviet invasion of Afghanistan
· 60 countries joined the boycott · Legal action taken by American athletes, but ruling was for USOC |
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Butch Reynolds’ Battle Royal
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· 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 |
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Tonya Harding’s Legal Adventure
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· 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 |
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The 2000 Sydney Olympics
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“Doping Games” for numerous positive drug tests and stripped medals
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Before the 2002 Salt Lake City Games
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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 |
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During the 2002 Salt Lake City Games
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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 |
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After 2002 Salt Lake City Games
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International mob figure arrested in Italy for allegedly fixing two of the four events in figure skating
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Olympic trademarks and the Internet
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· 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 |
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San Francisco Arts &amp;amp;amp;amp; Athletics, Inc. v. United States Olympic Committee
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· 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 |
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Antitrust
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Term used to describe any contract, combination, or conspiracy that illegally restrains trade and promotes anticompetitive behavior
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Sherman Antitrust Act of 1890
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§ 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 |
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Sherman Antitrust Act of 1890 Section 1
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Forbids contract, combination's, or conspiracies that may unreasonably restrain trade
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Sherman Antitrust Act of 1890 Section 2
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Prohibits monopolization of trade and commerce
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Clayton Act
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§ 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 |
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Norris-LaGuardia Act
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§ 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 |
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National Labor Relations Act (NLRA)
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§ Federal act regulating relations between employers and employees
§ Encourages collective bargaining in good faith § Bilateral protection to unions and employers |
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National Labor Relations Board (NLRB)
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§ 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 |
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Per se rule analysis
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§ Rule that holds that certain types of trade agreements or arrangements are inherently anticompetitive and therefore illegal
Price Fixing |
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Rule of reason analysis
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Rule that holds that only unreasonable restraints of trade violate Section 1 of the Sherman Act
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Non-statutory labor exemption
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§ 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 |
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Mandatory subjects of collective bargaining
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§ 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 |
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Strikes
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· 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” |
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Lockout
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Temporary withholding of work by the employer to resolve a labor dispute
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Antitrust in Professional Sports: Single entity structure
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§ 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) |
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Baseball's Unique exemption from antitrust laws
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Reserve Rule
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Federal Baseball
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Held not to involve interstate commerce
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Baseball's Flood v. Kuhn
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Supreme Court acknowledged illegal nature of reserve rule
· Held that only Congress could address or change it though |
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Curt Flood Act of 1998
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· 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 |
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Football
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Relatively stable relationship between owners and NFLPA
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Mackey v. NFL
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· Challenged and invalidated Rozelle Rule
o Version of reserve rule o Teams must compensate other teams to sign players |
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The 1987 NFL strike
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· Hiring of replacement players
· Darkest period of labor relations |
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Powell v. NFL (1988)
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Failed antitrust allegations
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Brown v. Pro-Football, Inc. (1995)
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Setting unilateral salaries fell within non-statutory labor exemption for professional sports
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Bridgeman v. NBA (1987)
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Failed antitrust allegations concerning college player draft, salary cap, and right of first refusal
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Wood v. NBA
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Failed antitrust allegations
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McCourt v. California Sport
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Reserve system was a part of collective bargaining, so it was exempt from antitrust laws
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The 1992 NHL strike
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10 day strike
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Competitor leagues
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Newer leagues (especially those that fold) commonly bring antitrust claims against existing leagues
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AFL vs. NFL
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NFL was a “natural monopoly” and did not violate antitrust laws
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USFL v. NFL
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· Jury found that the NFL intentionally maintained a monopoly over American football
· Awarded USFL $1.00 (tripled to $3.00) in damages |
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NCAA and amateur sports cases
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§ 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 |
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Intellectual property
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Category of law pertaining to trademark, copyright, and patent rights
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Copyright law
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§ 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 |
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Infringement
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Act that interferes with one of the exclusive rights of a patent, copyright, or trademark owner
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Fair use
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· 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 |
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Patent law
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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) |
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Trademark law
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Word, phrase, logo, slogan, or symbol used to distinguish a product from others
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Trade dress
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The total image and appearance of a product or service
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Service marks
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Mark used in sale or advertising of services to distinguish it from others
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Collective marks
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Trademark of an association, union, or other group
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License
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Revocable permission to commit an act such as copying a trademark
Sports Merchandising |
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Lanham Act
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§ 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 |
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Licensing Trademarks
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Million dollar industry for commissions or royalties to use trademarks in sports
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Protecting the trademark
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Failure to regulate non-licensed products could result in thousands of dollars of lost revenue
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Licensing revenues
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Licensing revenue for all four major leagues are shared equally by their respective teams
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Mascots and Trademarks
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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
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Ethnic Mascots
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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 |
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Recent changes involving mascots
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§ 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 |
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The future of ethnic mascots
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Uncertain whether ethnic mascots will survive legal scrutiny as being offensive
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Ambush Marketing
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Type of marketing in which a consumer is misled as to whether a company or sponsor is officially part of an event
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The Internet and the Anticybersquatting Consumer Protection Act (ACPA)
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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
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Domain name
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Word followed by .com, .org, .net, .edu, .info, .biz, and registered as part of the Internet system
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Cybersquatters
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Individual who intentionally registers an Internet domain name that is confusingly similar to a trademarked name
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Alternative dispute resolution (ADR)
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Resolving disputes via arbitration, mediation, and other alternatives to litigation
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ADR Arbitration
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Arbitrator is a decision maker
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Mediation ADR
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§ Mediator plays the role of settlement facilitator
§ Does not focus on who is “right” and who is “wrong” |
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Litigation ADR
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Process of carrying on a lawsuit via the courts
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Administrative Dispute Resolution Act of 1990 (ADRA)
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Requires federal agencies to establish policies for the use of ADR
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Federal Arbitration Act (FAA) and the model Uniform Arbitration Act (UAA)
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Encourage the use of ADR to resolve disputes
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Important Federal Laws
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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 |
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Arbitration
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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 |
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Binding arbitration precludes any decision to challenge in court
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Except if arbitrator abused discretion by committing fraud or other misconduct
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The American Arbitration Association (AAA)
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National organization that maintains a panel of arbitrators to hear labor and commercial disputes
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Mediation
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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 |
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Med-arb
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§ Hybrid form of alternative dispute resolution involving both mediation and arbitration
§ Mediation is used and any unresolved issues are then decided by arbitration |
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Constitutional Concerns
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Legality of binding arbitration clauses in employment contracts
o Mandatory waiver of constitutional rights by employees |
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Sixth Amendment
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“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”
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Seventh Amendment
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“In suits at common law, the right to a trial by jury shall be provided”
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ADR in Professional Sports
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o Arbitration clause is found in the CBA of each of the four major sports
o “Last best offer” arbitration for MLB contract disputes |
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National Collegiate Athletic Association
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§ Proposed that collegiate athletes could benefit from ADR concerning scholarships and other disputes
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§ NCAA has used ADR in other suits, including mediation
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· Law v. NCAA
· Jerry Tarkanian case |
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The United States Olympic Committee
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Arbitration is the method of choice in the Olympic Movement
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International ADR: Court of Arbitration for Sport
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§ IOC established the Court of Arbitration of Sport in 1983
§ Cases are based upon submission to arbitration by contract |
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Olympic ADR cases
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Since 1996, arbitrators have been present at Games to swiftly resolve issues at a moment’s notice
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Dispute Resolution and Cyberspace
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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 |
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World Intellectual Property Organization (WIPO)
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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
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Arbitration and Mediation Center created in 1994
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Offers arbitration and mediation services for the resolution of international commercial disputes
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Jessica Foschi
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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
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Ross Rebagliati
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§ 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 |
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Matt Lindland
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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 |
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Apolo Ohno
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§ 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 |
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Constitution of the United States
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Nation’s fundamental legal document
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First Amendment
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Constitutional amendment providing for freedom of the press, freedom of assembly, and freedom of religion
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Establishment clause
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“Establishment of religion”
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Free exercise clause
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“Free exercise thereof”
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Prayers before sports contests
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Recent legal challenges to such organized prayers have forced the courts to address whether such prayers are constitutional
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Prayers at graduation ceremonies
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Does saying a prayer advance or impose a particular religion and thereby violate the Constitution?
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Lemon test
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§ 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 |
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Endorsement test
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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
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Coercion test
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Examination of a religious practice to determine whether pressure is applied to force or coerce individuals to participate
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Chaudhuri
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Generic prayers and moments of silence at university events do not violate the First Amendment
· Participation is not required |
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Santa Fe
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Student-led, student-initiated prayers at public high school football games and graduation ceremonies are unconstitutional and violate the establishment clause
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Adler I
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No violation since school officials were not involved in the decision-making process
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Adler II
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Found that the policy was neutral toward student speech and did not inject the government into determining the content of student speech
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The Future of Prayer at School Events
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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
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Individual Athletes and Religious Expression
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o Legal system has yet to clearly define effect of such expressions
o No clear-cut answers |