Sports Law Terms And Cases

Front 1

Essential Facilities

Back 1

- Where facilities cannot be practicably duplicated by would be competitors, those in possession must allow them to be shared on fair terms (Hecht)

- USFootball v NFL:

Front 2

Sports Broadcasting Act

Back 2

- Clubs may pool theri rights to sponsored broadcasting of games w/out antitrust violation

- Sports leagues may have nat'l broadcast agreements where the share revenue equally

- does not apply to pay per view?

USFootball v NFL - this is okay b/c rights not limited to one network

Front 3

Joint Employer

Back 3

2 or more employers sharing labor control over employees
- all teams are joint employers of all the players in the league
- need for uniformity - same standards b/c of player movement
- Join employers are a bargaining unit

- NASL v NLRB - joint employer relationship depends on control exercised of the labor policies of another

Front 4

Arbitration Procedures

Back 4

- contractually agreed to process
K will lay out procedures
-arbiter must abide by the rules
- voluntary dispute mechanism that is mutually agreed to
- mandatory subject of bargaining
- Kansas City Royals Case: can be compelled to arbirate only if the paries have agreed to do so

Front 5

Arbitration Standard of Review

Back 5

- decisions must be derived from the essence of the CBA
- not reversible unless - does not derive from essence of CBA, bias, malfeasance or misfeasance, vilation of existing law, conflict of interest
Court will not make findings of fact.. only reverse and remand or uphold

Kansas City Royals - must be agreed to by the parties
Garvy - Ct. can only act when arbiter strays from CBA

Front 6

Unfair Labor Practices

Back 6

Found in NLRA Section 8
Employers cannot
1. interfere, restrain or coerce under section 7 right to form a union
2. dominate or interefer w/ union (no house unions)
3. discriminate against employee for concerted action
4. retaliate/ discharge employee for testimony under this act
5. Refuse to bargain in good faith

Front 7

Drug Testing - Pro

Back 7

- no constitutional issues b/c its a private entity
- must be included in the CBA
- mandatory subject of bargaining
- bargained for and agreed to- fairness/ integrity of the game
- unions are hesitant to enact drug policies

Steve Howe - need "just cause" for a suspension

Front 8

Salary Cap

Back 8

-Restriction on owner spending determined by revenue
- colletively bargained restrain on salaires
- negotiate a % of the metric that will go to salaires as a max & min - dived by # of teams = salary cap
defined as either a hard cap or a soft cap
- NFL is hard, NBA is soft (in practice its reversed)
- NFL - capology technique that spreads payments out over a number of years
NBA - if they go over salaries must be paid back and the owners will pay fines
(Larry Bird rule allows seasoned players to get around the cap)

Wood - salary cap must be in the CBA

Front 9

Permissive Subjects

Back 9

- everything outside of the mandatory subject (wages, hours, conditions) that can be bargained for
- Silverman II: once CBA expires, mandatory subjects remain intace; permissive subjects may be unilaterally changed by the owner

Front 10

Mackey Rules

Back 10

Based on a case which established test if a policy is w/in the non-statutory labor exemption to antitruts
1. affects the parties to the CBA
2. Must apply to a MSB
3. result of an arms length good faith negotiation

Case: Dealing w/ Rozelle rule (teams who acquired free agents had to give the team that lost the free agent players); rule was imposed by the commissioner and not a result of bona fide arms length negotiation - so the used rule of reason under antitrust and found unreasonable restraint on player movement

Front 11

Drug Testing - Amateur

Back 11

- testing amateur athletes for illegal drugs
- voluntary; schools not required to test for drugs but they are allowed to
- this is a state action; issues are consitutional (4th amendment search and seizures)

Vernonia: applied a reasonableness standard, expectation of privacy is lower in schools; balance the level of the intrusion w/ the legitimate gov't interest

Front 12

Rule of Reason

Back 12

Way of analyzing antitrust claims
- usually Sherman I
- P must show that D's action has an anti-competitive effect (injury); D then must show that the injury is outweighed by the pro-competive effect; P must show that there are less restrictive means (this is a balancing test)

- NCAA v Board of Regents: rejected Sherman I per se argument b/c sometimes cooperation is necessary, used rule of reason

NCAA v Law: restricted earnings coaches are a violation b/c there is no reasonable connection btwn the program they developed and making things more fair

Front 13

Duty of Fair Representation

Back 13

- NLRA union has exlcusive negotiating rights- duty to represent employees in good faith
- Peterson v Kennedy: negligence is not enough to make a claim... there must be arbitrary, discriminatory behavior, or bad faith

Front 14

Single Entity

Back 14

- organization so closely related as to constitute a single entity for operating purposes
- not capable of "conspiracy" for Sherman I
- American Needle: cites Copperweld - companies and subsidiaries are a "single entity" incapable of restraining trade; NFL wishes to be a single entity, claim that no team alone can produce the product; however, they don't have the same profit structure as discussed in copperweld (case is still to be decided)

Fraser v MLS: MLS is single entity b/c of how its is operated?

Front 15

Duty to Bargain

Back 15

mutual obligation for the parties to meet and bargain in good faith - Section 8(d) NLRA w/ respect to MSB
- no one is required to "give in"
Silverman I: duty to provide information; if an agrument is important enough to be presented - you need to present info to prove accuracy
Silverman II: Cannot impose new terms unilaterally

Front 16

Injunctive Relief under 10(j)

Back 16

- if you suspect a violation of the unfair labor practices you can file suit to enjoin the practice

Silverman II: unfair labor practice when unilaterally imposed salary arbitration; if NLRB fineds a violation, they may issue injunctive relief to allow players to be employed under expired CBA until a new one comes into existence or impasse is reached

Front 17

Power of Commissioner

Back 17

contractual; derived from league's constitution; vested in the best interest of the game

Finley v Kuhn - commish has power to discipline - act in the best interest of the game
Turner - commish cannot rule against things in the CBA
Cubs v Vincent- can't rule against a team, only actions of the team that are not in the best interest of the game

Front 18

Role of Commissioner

Back 18

CEO of the league, acts as an arbitrator btwn clubs, cheif labor negotiator, enforcer of league's policies

Cases: Finley, Turner, Cubs

Front 19

Sherman Act I

Back 19

Violation of antitrust if there is an agreement (conspiracy), results in a restraint of trade, dealing w/ interstate commerce

Employers must compete independently

Analyzed:
per se: always restricts competition
rule of reason: balanace injury and benefits

American Needle: NFL acting as single entity - not subject to Sherman I

Front 20

Non-statutory exemption for labor from antitrust

Back 20

Labor trumps antitrust
any union agreement that is a product of good faith negotiations is exempt from antitrust; attaches at first glimmer of union activity (concerted action)

Mackey: 3 pt test - what applies under the exemption
Brown: exmeption continues after impass
Clarett: eligibility is a MSB - no antitrust
Powell: Terms of a CBA are not subject to antitrust after impasse is reached (still exempt)

Front 21

Function of a league

Back 21

provides framework for creation of the product
- provides rules, standards of play, rules taht control the operation of the team
- cooperation among competitors
- provide value and maximize profits

Front 22

Structure of a league

Back 22

- unincorporated not for profit
- contractual relationship w/ member clubs
- no ownership of the entity
- governed by own constitution
- horizontally orgainzed - self governing
Finley: mentions IL law of association; great deference is granted to private entities

Front 23

bargaining unit

Back 23

NLRA section 8
- anyone can apply to the NLRB to be bargaining unit; NLRB decides what the appropriate unit is
usually the sport as a whole
- once established = exclusive agent
NASL v NLRB: joint employers can be bargaining unit; look at most appropriate unit under the circumstances

Front 24

Impasse in negotiations

Back 24

Temporary deadlock in negotiations; usually broken by change of mind or economic factors
- Brown: non-statutory labor exemption exist during impasee; no antitrust when unit is intact
Powel: when parties reach impasse CBA stands for a period after expiration, MSB's must be maintined in current form

Front 25

Clayton 4

Back 25

damages in antitrust cases are trebeled (x3)
Federal Baseball: no antitrust in baseball - no trebeled damages

Front 26

Sherman II

Back 26

prohibits monopolies; willfully acquired power not grown power as a consequence of a superior product
- deals w/ individuals
- look at domination of a relevant market
- Product market (similarities)
- geographic (where product is)
AFLv NFL - no violation of natural monopolies
WHA v NFL: control of pool of available players is a monopoly

Front 27

Concerted Action

Back 27

building block of labor law; when 2 workers take action w/ respect to MSB; untion is not required; union activity begins w/ concerted activity
- strike is an example

Front 28

Unfair labor practices 8(a)(2)

Back 28

Employer domination of the unions - interference w/ right to organize

AFL: league threatened and coereced players into accepting AFLPOC as their union, gave benefits to those who joined their prefered union

*you have the right to chose which union represents you

Front 29

ancillary restraint

Back 29

illegal activity that is okay b/c it helps further legal activity
restraints must be reasonable - rule of reason test

Raiders I - territorial divisions in NFL constitution were a geographic market monopoly but it was okay b/c it was ancillary to NFL's main purpose of producing games

Front 30

Unfair Labor Pracitces 8 (a) (5)

Back 30

requirement to bargain in good faith, share information, no unilateral action

Silverman I: must provide information; i fargument is import enough to be presented must show proof of accuracy; only stuff at the bargaining table is fair game

Silverman II: cannot act unilaterally until impasse; then only act unilaterally as to permissive subjects, MSB's remain intact

Front 31

Restraint on trade

Back 31

action that eliminates or stifles competition that would normally exist under regular market forcest; markets should be free to protect consumers
ie - price fixing, boycotts

MidSouth Grizzzlies: alleged territorial restraint, not close enough however to offend geographic market.. if a league doesn't want you, they don't have to let you in (not a restraint)

NCAA v B of Regents: output limitations were found to be unreasonable restraints based on Rule of Reason analysis

Front 32

mandatory subjects of bargaining

Back 32

wages, hours, conditions of employment
- always present in negotiations
- remain in place after impasse
- management is only required to negotiate MSB's
- after expiration must keep these in place or implement last negotiated positions
Section 8(d) NLRA

Macky - policy in question must deal w/ MSB
Clarett: eligibility rules are MSB
Brown - non statutory labor exemption is limited to MSBs

Front 33

title IX rules for compliance

Back 33

law passed to provide equality in college and high school athletics

3 factors for compliance
1. participation opportunities for male and females proportionate to enrollment
2. where members of one sex have been and are underrepresented can the college show a history and practice of program expansion
3. Where members of one sex are under represented and no history of expansion can be shown... have they been fully accomodated
Cases: Cohen v Brown
Defense - safe harbours under Syracuse case

Front 34

Exclusive bargaining agent

Back 34

designated or selected by the majority to act as their representative (NLRA 9(a))
- individuals have no ability to negotiate direly w/ managemtn
- managment has a duty not to bargain w/ individual players
Morio case: exclusive agent goes both ways

Front 35

Value of the Game

Back 35

1. Trademark (know you're getting a good product)
2. Players are equally spread out and high calibur (use of draft etc.)
3. Outcome of the game is in doubt