Sports Law Outline i6z32

Sports Law, Prof. Marsh Fall 2017 Regulating Interscholastic (High School) Athletics 

I.

Sport – a competitive or friendly competition between one or more sides that allows people to develop social and athletic skills

INTERSCHOLASTIC ATHLETICS: THE RISE OF REGULATION AT THE STATE AND NATIONAL LEVELS A. Every state has its own independent association, generally made up of public and private high schools, that has a responsibility for promulgating and enforcing regulations related to the governance of interscholastic athletics i.

II.

The National Federation of High Schools (NFHS) is made up of the 50 individual state high school athletic and activities associations a. NFHS State High School Athletic Associations Schools (Public and Private)  Students

JUDICIAL REGULATION OF INTERSCHOLASTIC ACTIVITIES As a general rule, courts will provide relief to an aggrieved party only if the subject rule, application, or enforcement is found to be arbitrary and capricious, or violates an applicable federal/statute or constitutional law provision A. State Action 1.

Law of Private Associations: As a prerequisite to bringing a claim alleging infringement of a federal constitutional right, it must be established that its deprivation occurred as the result of state action. If an educational institution or state interscholastic sports association isn't a state actor, it isn't required to respect the constitutional rights secured by the Constitution, and a court won't address the merits of the substantive federal constitutional law issues

2.

Brentwood Academy v TN Secondary School Athletic Assn. [Brentwood I] (2001): A private statewide association incorporated to regulate interscholastic athletics among public and private secondary schools is engaged in state action when it enforces a recruiting rule against a member school a. State action may be found if there is such a "close nexus between the State and the challenged action" that seemingly private behavior "may be fairly treated as that of the State itself". A private organization's acts constitute state action when the organization performed a public function; was created, coerced, or encouraged by the government; or acted in symbiotic relationship with the government. New test is the entwinement factor. b. Pervasive entwinement [ STATE ACTION TEST] i. (association is so entwined with the state action to be deemed a state actor) will a conclusion that an ostensibly private organization ought to be charged with a public character and judged by constitutional standards. Public schools and high school athletic associations that satisfy the Brentwood I entwinement factor are state actors.

B. Public schools ARE state actors because they're run and operated by the government. Private schools are NOT state actors.

III.

ATHLETE ELIGIBILITY RULES Steps in Analyzing a High School Case: 1) Is the school a state actor? 2) Is the student asserting federal constitutional claims? 3) Due Process Clause Claim = Life, liberty, or property interest? -- 2 types of process: Procedural and Substantive *A plaintiff can show that his right to substantive due process was denied if the Board’s decision was arbitrary or capricious, OR if it violated one of the substantive due process rights such as the right to privacy* A. Equal Protection Clause Claim – state actors must treat everyone equally as long as they are similarly situated B. Transfer Rules - limits the ability of student-athletes to participate immediately in interscholastic competition after the athlete moves from one school to another 1. IN High School Athletic Association v Carlberg (IN 1997): A rule or decision will be found to be arbitrary and capricious only where it’s willful and unreasonable, without consideration, and in disregard of the facts or circumstances of the case, or without some basis which would lead a reasonable and honest person to the same conclusion a. Courts are generally deferential to state athletic associations’ eligibility determinations for transfer students b. State constitutional provisions may be interpreted as providing the student-athlete with more (but not less) protection than that offered under the Constitution, in of equal protection and other protected rights c. Letendre v MO State High School Activities Assn. (MO 2002): 1. Courts have uniformly rejected legal challenges to "outside competition" rules, even if the rule only applies to certain sports and prohibits participation in the same sport outside the time period for interscholastic competition in that sport C. Age Rules 1. Tiffany v AZ Interscholastic Assn., Inc. (AZ 1986): A high school student doesn’t have a constitutional right to participate in interscholastic athletic competition during his senior year in high school. a. A student’s interests in athletics, though important to him, simply don't rise to the level of constitutional magnitude necessary to invoke the protection of the due process clause

2. Cruz v PA Interscholastic Athletic Assn., Inc. (PA 2001): When people with disabilities bring an equal protection claim, courts only apply rational basis scrutiny a. Federal laws require that public entities need to provide an individualized consideration and to determine whether or not they are entitled to reasonable accommodations to the individual with disabilities that is not necessarily required under the Due Process or Equal Protection cases D. Eligibility/"No , No Play" Rules – condition participation in extracurricular activities, including sports, on students achieving a certain academic performance; ultimate objective is better academic performance: 1. Courts have applied a rational basis test in addressing equal protection challenges. 2. Majority of courts haven't recognized any fundamental right of students to participate in extracurricular activities and that there is no constitutionally protected property or liberty interest in interscholastic athletics. 3. Exclusion of Homeschooled Students from Athletic Participation a. 30 states now have laws permitting homeschooled students to participate in interscholastic sports (known as "Tim Tebow laws") E. Good Conduct Rules 1. Individual high schools generally have broad authority to discipline and impose sanctions on student-athletes who engage in conduct that's considered inappropriate; vary and prohibit a range of in-/out-of-school activities. 2. Courts afford considerable deference to schools and interscholastic sports governing bodies to use good conduct rules to regulate student behavior. 3. Brands v Sheldon Community School (IA 1987): A student can be punished by the state athletic association for conduct occurring off campus during non-school hours. 4. Courts generally rule that no property interest in athletic participation exists. They also generally refuse to recognize an independent right to participate in interscholastic athletics for purposes of substantive due process 5. Courts tend to be unreceptive to claims that good conduct rules are unconstitutionally vague and don't provide sufficient notice for due process purposes F. 1st and 4th Amendment Constitutional Rights Issues 1. Drug Testing a. The National Federation of State High Schools doesn’t require that high schools develop a drug-testing program for athletes. b. Vernonia School District 47J v Acton (1995): Students participating in athletic programs may be drug tested without a warrant or suspicion.

1. Students in public schools have a reduced expectation of privacy; student athletes’ expectation of privacy is reduced even further. Athletic facilities afford little privacy, and student athletes are subject to greater regulation than other students. c. Board of Education v Earls (2002): Testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district’s legitimate concerns in preventing, deterring, and detecting drug use. 2. Freedom of Speech and Association a. Wildman v Marshalltown School District (8th Circuit, 2001): It’s well within the parameters of school officials’ authority to prohibit the public expression of vulgar and offensive comments and to teach civility and sensitivity in the expression of opinions. b. Bethel School District (1986) balancing test: (1) Freedom to advocate unpopular views in schools vs. (2) Society’s countervailing interest in teaching students boundaries of socially acceptable behavior 3. Freedom of Religion a. Free Exercise Clause protects the rights of students, coaches, and other individuals to act on their religious beliefs. b. Athletic associations may create rules or grant waivers that accommodate the free exercise of religion. c. Sante Fe Independent School District v Doe (2000): Religious activities may occur in interscholastic athletics contexts if a public school or state high schools athletics association determined to be a state actor isn’t viewed as sponsoring or endorsing the religious activity.

IV.

LIABILITY OF EDUCATIONAL INSTITUTIONS A. Legal Duty of Care – Duty, Breach, Causation, Damages

1.

A high school isn’t an insurer of a student athlete’s safety and isn’t strictly liable for their injuries. To recover for an injury, an athlete is required to prove tortious conduct on the part of the school district or its employees. a. Negligence is the standard theory

i. Reasonable care standard (ex. custom) ii. Affirmative Defenses: Comparative negligence, sovereign/qualified immunity, assumption of risk (by contract) 2.

Absent state law immunity from tort liability, a school may be liable for the negligent conduct of employees such as coaches, trainers, and istrative personnel under vicarious liability.

3.

Kahn v East Side Union High School District (CA 2003): A coach or sports instructor owes a duty to a student not to increase the risks inherent in the learning process undertaken by the student a. A school isn’t liable for a player’s injury resulting from the inherent risks of a sport if it’s used reasonable care in conducting the activity. Determining inherent risks requires a fact-specific analysis of what activities are “part of the game” i. Inherent Risk = indivisible from the sport, consequences attendant to normal competition in a sport ii. Risks deemed non-inherent include defective equipment, substandard medical treatment, and intentional torts. b. Coaches must act neither recklessly nor in a manner that increases risks inherent in an athletic activity. c. Pushing an athlete beyond their endurance level may be actionable if doing so exposes the athlete to an unreasonably enhanced risk of injury during competition. d. Potential liability is possible for improperly warning students regarding the need for an appropriate use of protective equipment during athletics. e. Requiring an athlete to continue playing with a known injury may create tort liability for aggravation of the injury. f. Permitting an injured athlete to return to play without using reasonable care to determine their medical condition may result in institutional liability.

4.

High school personnel have a duty to promptly obtain emergency medical care for an injured athlete. They must recognize a medical emergency and act reasonably under the circumstances.

5.

State high school athletic associations have a legal duty to exercise reasonable care when formulating safety rules governing high school athletic competition.

B. Sovereign Immunity

i.

Prince v Louisville Municipal School District (MS 1999): A government official will be immune from liability when the act being performed is discretionary as opposed to ministerial a. Discretionary Duties – those that call for the exercise of the public official’s judgment or discretion. b. Ministerial Duties –an act that is absolute and involving only the execution of a specific duty arising out of fixed facts.

ii.

Under the doctrine of sovereign immunity, a public school district, as a subsidiary agency of the state, may be immune from tort liability for negligent acts of its employees causing injury to an athlete a. Courts generally hold the operation of interscholastic athletics is a governmental function that’s covered by sovereign immunity

C. Doctrine of qualified immunity: may protect public school employees such as coaches and

athletic trainers from negligence liability when they’re exercising a discretionary act, but not a ministerial act D. Imminent Harm Exception – in some states, a limited exception to state tort immunity

defenses for plaintiffs “when circumstances make it apparent to the public officer that their failure to act would be likely to subject an identifiable person to imminent death” V.

VALIDITY OF LIABILITY WAIVERS A. Agreement by one party to accept the risk of harm resulting from another’s conduct; bar plaintiff’s ability to seek recovery from defendant for harm caused by certain tortious conduct i. Implied Assumption of Risk – taking the risks inherent in a particular sport (ex. football injury) ii. Assumption of Risk by Contract – written agreement that athlete accepts the risk of harm B. Wagenblast v Odessa School District No. 105-157-166J (WA 1988): Test to be applied in determining whether exculpatory agreements violate public policy (in WA): 1. The agreement contains an endeavor of a type generally thought suitable for public regulation. 2.

The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some of the public.

3.

Such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

4.

Because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services.

5.

In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

6.

The person or property of of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents.

C. Sharon v City of Newton (MA 2002)

REGULATING INTERCOLLEGIATE ATHLETICS Defining the Student-Athlete and University Relationship NCAA -> University -> Athletes (Contract Law) NCAA objectives: (1) Promoting academics, (2) Competitive balances, (3) Preserving amateurism I.

CONTRACTUAL AND RELATED ASPECTS A. Athletic Scholarship = Contract between athlete and university with the NCAA and conference rules incorporated 1. Statement of Financial Assistance: Apply to students who obtain athletic scholarships to a college. College agrees to extend financial aid to the athlete to the extent of tuition, fees, room, board, and books. Purpose is to assist and enable an athlete to pursue a program of study and to participate in the educational process of the college. In exchange for the university’s commitment, an athlete promises to attend the college and to participate in athletics. a. An athlete’s right to continue to receive financial assistance is contingent on the athlete remaining academically eligible to participate in the college’s athletic program and participating in their sport. Athletes also promise to comply with the rules and regulations of their teams and the athletic association. 2.

National Letter of Intent: Prospective student-athlete agrees for a period of 1 year to attend the college named in the Letter. Other colleges must cease all recruiting s with the athletes. a. The letter isn’t effective unless the athlete has received a promise in writing from the named college to provide financial aid for an entire academic year b. An athlete that fails to attend the named college will be penalized by having to serve 1 academic year in residence and losing 1 year of athletic eligibility to compete in all sports at the new college in which they enroll.

B. Taylor v Wake Forest University (N.C. App. 1972): A university may revoke a studentathletes’ scholarship when the student fails to adhere to specified of compliance within the signed scholarship contract. i. The NCAA permits colleges to award multi-year scholarships up to 5 years ii. Ross v Creighton University (7th Circuit, 1992): A student may maintain a breach of contract claim against a university so long as the claim points to an identifiable contractual promise that the institution failed to honor. iii. A student is a buyer of educational services that they retain for their own benefit and is therefore not an agent of the institution for the purposes of respondeat superior.

II.

NCAA ACADEMIC REFORM LEGISLATION A. Academic Reform – Generally 1. NCAA rules require that, as a condition to eligibility for participation, studentathletes take a curriculum that allows them to make progress towards a degree B. Academic Reform – Academic Progress Rate (APR) 1. Academic Progress Rate (APR) – gives a real-time snapshot into the academic progress of individual teams at member colleges a. To calculate a college’s APR, NCAA examines each scholarship athlete at a member college and determines whether the player has remained academically eligible to participate in athletics and whether the student has chosen to remain at the school b. Each team then gets an APR score (max of 1000). NCAA requires a score of 930 to avoid being immediately penalized C. Holistic issions 1. Some claims that are being made by athletes against schools Rarely successful a. Negligent issions: “You knew I wouldn’t make it, so you should not have sought me out.” b. Negligent Teaching/Malpractice in Teaching: “I went to school for years but I still can barely read.”

III.

CONSTITUTIONALLY PROTECTED PROPERTY OR LIBERTY INTERESTS A. Public universities are "state actors" subject to constraints of the Constitution. B. Important athletic rights include due process against deprivation of property under the 14th Amendment, equal protection of the laws, 1st Amendment free speech and exercise of religion, and 4th Amendment protection against unreasonable search and seizure. C. Hysaw v Washburn University of Topeka (D.KS 1987): Property right in economic value of current athletic scholarship, but not in playing sport without an express enforceable university promise. D. 4 theories to possess a constitutionally protected property interest in sports eligibility: 1. Economic Rationale: Training ground to go pro. Most courts have rejected this theory. A future interest in playing professionally is considered a speculative and not a constitutional dimension. 2.

Educational Rationale: Participation is integral facet in athlete’s educational experience.

3.

Scholarship per se Rationale: Loss of an athletic scholarship per se is a denial of a property interest in athletic eligibility.

4.

Contractual Rationale: Created by contractual obligations of athletic scholarship a. Most courts have rejected this theory.

IV.

RELIGIOUS LIBERTY ISSUES a. Courts have been increasingly reluctant to recognize rights of religious conscience. b. NCAA has exempted brief religious observances by student-athletes, including pausing to pray or express religious gratitude in the endzone after scoring a touchdown, from its general rule that prohibits players from celebrating or drawing attention to themselves on the football field.

V.

STUDENT-ATHLETES AS EMPLOYEES: ELIGIBILITY FOR WORKERS' COMP BENEFITS A. The modern trend is NOT to afford employee status to student-athletes. B. Waldrep v TX Employers Insurance Assn. (TX Ct. App., 2000) 1. Courts now generally hold that athletes who suffer injuries while participating in intercollegiate athletics aren't entitled to workers' comp benefits 2. Courts have refused to find that a student's receipt of an athletic scholarship establishes an employment relationship with a university C. If an injury prevents a student-athlete from participating in intercollegiate athletics, NCAA bylaws permit a university to continue their scholarship so that the athlete can complete their education. 1. Absent a valid contract, a university has no obligation to pay for an injured athlete's medical expenses 2. NCAA schools are required to certify that student-athletes have health insurance

VI.

Liability of Colleges or Universities A.

Kleinknecht v Gettysburg College (3rd Circuit, 1993): A special relationship exists between a college and its intercollegiate athletes which imposes on the college a duty of reasonable care. i. Not required to guard against every possible risk, but must take reasonable steps to guard against hazards that are generally foreseeable. Duty applies while student is taking part in the sport.

B.

Searles v Trustees of St. Joseph’s College (ME 1997): A university has a general legal duty to exercise reasonable care to protect the health and safety of injured studentathletes i. A university has a legal duty not to pressure or permit an injured athlete to return to a game.

VII.

C.

A public university and its employees may be immune from liability for negligence in connection with the operation of its athletic program under the doctrines of sovereign and qualified immunity. i. Tortious conduct more culpable than mere negligence, such as malicious acts or omissions, may not be immunized.

D.

Private universities may be protected from negligence suits by intercollegiate athletes by the doctrine of charitable immunity; varies by jurisdiction.

E.

Athlete Health and Safety University Tort Affirmative Defenses: i. Athlete contributory negligence ii. Public university sovereign immunity from negligence liability iii. Public university employee qualified immunity from negligence liability for discretionary acts iv. Athlete assumption of risk by contract

NCAA REGULATORY AUTHORITY AND LEGAL LIMITS THEREON What Laws Apply to the NCAA? - Contract and Law of Private Associations: Follow own rules, provide opportunity to be heard, exercise discretion reasonably, and to apply rules and impose sanctions consistently - Deferential judicial review: Rational basis/Arbitrary and capricious standard A. Federal Constitutional Law 1. NCAA v Tarkanian (1988): The NCAA isn’t a state actor whose actions can trigger due process protections under the 14th Amendment to the Constitution. a. NCAA doesn't have to afford constitutionally mandated procedural due process in its investigative processes or to those appearing before the Committee on Infractions, but member public universities must do so. [unlike Brentwood]. Doesn’t have to “show cause.” Not a state actor for due processes purposes. i. Majority: Why no due process considerations for NCAA? Two main reasons. 1. Not a fundamentally public institution [contrast w/ Brentwood, where it was public high schools]. Make-up of NCAA is a different critter. Legislation that gets drafted by NCAA largely gets crafted by these schools, and the NCAA itself employs its own people, no state retirement system. Think that the NCAA is not really a public entity if considered with balancing act. Association of organizations [majority public, private] 2. “Show Cause Order” against head coaches. So, directly related ot the other shoe in the Tarkanian case – they say that the actual firing of Tarkanian was not done by the NCAA, but instead by a “show cause order”  which says, we think this coach should be fired, show us why you don’t think he should

be fired, keep him, explain yourself on why you aren’t firing him. We think you should, but the NCAA is not personally going to send a letter firing the coach, but if you want to keep him, have to come before us telling why appropriate and what you will do to control behavior. If school is going to hire a coach with a show-cause order, have to come before the board there too. uNLB was the ultimate actor that fired him, so it’s their fault, not ours. B/c school is public institution, have to show all the proper procedural proof as to why they fired him. Can say “either terminate him or come before committee and explain yourself” ii. Dissent: Most of the organizations in NCAA are public. Many employees that serve in NCAA are employees of public institution. 2.

Commerce Clause gives Congress exclusive authority to regulate interstate commerce; Dormant Commerce Clause precludes states' ability to directly regulate NCAA

B. NCAA Rules Enforcement Process 1. Committee on Infractions (COI) – interprets NCAA rules and imposes penalties on member institutions for rules violations a. Infractions Appeals Committee (IAC) – appellate body b. Bylaw 19.01.2 of the NCAA: All representatives of member institutions shall cooperate fully with the NCAA enforcement staff and bodies

C. 4 levels of violations: 1. Level I: Severe Breach of Conduct – intended to provide a substantial or extensive recruiting, competitive or other advantage, or a substantial or extensive impermissible benefit. a. ex. Lack of institutional control, academic fraud, failure to cooperate with NCAA investigation, unethical/dishonest conduct, university cash payments to recruits, third party involvement in recruiting violations that university knew or should've known 2.

Level II: Significant Breach of Conduct – intended to provide more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage, or conduct that may compromise the integrity of the NCAA collegiate model. a. ex. Failure of monitor

3.

Level III: Breach of Conduct – isolated or limited in nature; don’t include more than a minimal impermissible benefit.

4.

Level IV: Incidental Issues – minor infractions that are inadvertent and isolated; generally, will not affect a student-athlete's eligibility for intercollegiate athletics. a. University CEO/President is ultimately responsible for any rules violations

VIII. INSTITUTIONS AND THE INFRACTIONS PROCESS A. In the enforcement process, the COI and IAC have imposed penalties on NCAA member institutions and indirectly on institutional personnel and athletes. B. University responsibility to ensure athletics program complies with NCAA rules i. Historical NCAA Sanctions for Rules Violations = Probation, public reprimand, lost scholarships, recruiting restrictions, ban on postseason play, financial penalties or forfeiture, termination of coaches/staff, dissociation with third parties a. “Death Penalty" if second major violation in any sport within 5 years b. Sanctions are commensurate with the severity of violations, placing emphasis on aggravating and mitigating circumstances in each case C. University of AL, Tuscaloosa, Public Infractions Appeals Committee Report (NCAA 2002): i. The IAC will set aside a finding only on a showing that info that might have ed a contrary result clearly outweighed the info on which the COI based the findingsa. A penalty imposed by the COI may be set aside on appeal if the penalty is "excessive or inappropriate based on all the evidence and circumstances" b. Two high school coaches pled guilty . Logan Young.

D. University of Southern CA, Public Infractions Appeals Committee Report (NCAA 2011): i. Abuse of discretion in the imposition of a penalty occurs if the penalty: (1) wasn’t based on a correct legal standard or was based on a misapprehension of the underlying substantive legal principles; (2) was based on a clearly erroneous factual finding; (3) failed to consider and weigh material factors; (4) was based on a clear error of judgment, such that the imposition was arbitrary, capricious, or irrational; or (5) was based in significant part on one or more irrelevant or improper factors. E. Coaches and Other Institutional Personnel and the Infractions Process = Coach "presumption of responsibility.” i. NCAA has indirect authority to sanction coaches and other university employees for violations of its rules IX.

NCAA Regulations A. Section 10 - Ethical Conduct

1.

10.01.1: Honesty and Sportsmanship – by employees of a university involved/associated in athletics and all student-athletes, at all times.

2.

10.1: Ethical Conduct – unethical conduct by a prospective/enrolled athlete or current/former institutional staff member may include but isn't limited to: a. Refusal to furnish info relevant to an investigation or a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual's institution; b. Knowing involvement in arranging for fraudulent academic credit or false transcripts for a prospective or enrolled student-athlete; c. Knowing involvement in offering or providing a prospective or enrolled student-athlete an improper inducement or extra benefit or improper financial aid; d. Knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual's institution false or misleading info concerning the individual's involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation; and e. Failure to provide complete and accurate information to the NCAA.

B. Section 11.1 - Conduct of Athletics Personnel 1.

11.1.1: Honesty and Sportsmanship – by employees of a university involved/associated in athletics at all times.

2.

11.1.2: Responsibility for Violations – shall be subject to disciplinary/corrective action as set forth in the NCAA enforcement procedure provisions.

3.

11.1.2.1: Responsibility of Head Coach – responsibility of head coach to promote atmosphere for compliance within the program supervised by the coach and to monitor activities regarding compliance of all assistance coaches and other s involved with the program who report in-/directly to coach.

4.

CASE Former Head Men's Basketball Coach University of MN, Twin Cities Public Infractions Appeals Committee Report (NCAA 2001): a. Under the new NCAA enforcement structure of Oct. 2012, if a violation occurs, the head coach is presumed responsible, and if they are unable to overcome that presumption, charges will be forthcoming

C. Student-Athlete Eligibility and Reinstatement Process 1.

Athlete ineligible from time of violation until eligibility status resolved

X.

2.

University investigation and fact finding, reporting of violations to NCAA, and request for athlete reinstatement.

3.

No fact finding by or adversarial hearing before any NCAA committee.

4.

Student-Athlete Reinstatement Committee (SARC) and Staff - ensure university provision of fully developed factual record, assess degree of athlete culpability, and determine conditions of athlete eligibility reinstatement.

5.

Staff decision based on application of SARC guidelines.

6.

University appeal to SARC, which can only reduce adverse impact on athlete eligibility.

Federal and State Civil Rights Laws A. NCAA v Smith (1999): Dues payments from recipients of federal funds don't suffice to render the due subject to Title IX of the Education Amendments of 1972 – i.e NCAA is not subject to Title IX B. As a condition to participating in intercollegiate athletics, athletes are required to provide written consent to random drug testing for substances prohibited by the NCAA during NCAA championship competition and out-of-season training programs. An athlete's compliance with the NCAA's drug testing program is a condition of eligibility to compete in intercollegiate athletics 1. 2.

Brennan v Board of Trustees for University of LA Systems (LA App., 1997) NCAA rules impose an affirmative duty on an institution to notify and educate its athletes regarding the NCAA's banned substances list and drug protocol

C. The sanction generally imposed on an athlete who tests positive for a banned substance is ineligibility to participate in any intercollegiate sports for 1 calendar year and loss of 1 season of eligibility 1.

XI.

Athlete has the right to appeal the finding of a positive drug test to the NCAA's Committee on Competitive Safeguards and Medical Aspects of Sports.

Contract and Private Associations Law

A. Courts generally are quite deferential to the NCAA regarding its interpretation and enforcement of its own rules and regulations i. Bloom v NCAA (CO App., 2004): NCAA bylaws allow student-athletes to simultaneously engage in a college sport and a different professional sport, but the athletes may not engage in endorsement or paid media appearances. ii. E.g. the kid with the youtube channel. iii. Case by case basis. But, if a track star invented something to carry a javelin around… wouldn’t be ok. Couldn’t even put money in escrow. iv. Prohibites athletes form making money where the money is directly attributable to their status as an athlete. Can have job at a booster car dealership, but must pay the players exactly what they pay. B. Courts WILL intervene into the affairs of private associations when the association has acted in violation of its own rules, regulations, and policies. C. Courts are more reluctant to defer to the NCAA in litigation involving the federal government. D. NCAA Bylaw 19.8: Permits NCAA to seek restitution from its member institutions as a result of rules violations.

ANTI-TRUST LAW & SPORTS I.

ANTITRUST ISSUES IN COLLEGE ATHLETICS A. Primary objectives of US antitrust law: (1) Preserve competitive market (2) Protect consumer economic welfare 1. Federal anti-trust litigation against the NCAA generally has been brought under Section 1 of the Sherman Act, which provides that "every contract, combination, or conspiracy in restraint of trade or commerce" is illegal B. Section 1 of Sherman Act elements: 1. Concerted action a. Concerted Action Requirements: i. Separate economic entities should compete for consumer patronage, not collude. ii. Potentially ALL "commercial" NCAA rules subject to a Section 1 challenge b. (2) Unreasonably restrains (3) Interstate trade or commerce i. What is the net competitive significance of restraint in economic ?

ii. Per se Rule (conclusive presumption of illegality) or Rule of Reason (case by case; fact specific analysis) C. Section 2 of Sherman Act – forbids monopolization or attempted monopolization 1. For a court to have Sherman Act jurisdiction, the challenged activity must have: a. An interstate nexus or effect, and b. Constitute or affect trade or commerce 2.

Courts have consistently held the NCAA's general business activities and regulation of intercollegiate athletics have a national scope, thereby evidencing their interstate character

3.

Undisputed that NCAA's business activities and regulatory conduct are interstate in nature and that this jurisdictional requirement is easily satisfied

D. Reason For Anti-Trust 1. The focus of anti-trust law is the CONSUMER and not the individual’s harm. a. Protect the market not the athlete 2. The market of College Sports is [in part] its amateurism; SO? a. Do NCAA regulations in fact promote amateurism and therefore actually foster the collegiate sports market So we shouldn’t be so quick to regulate the NCAA and its rulemaking for fear of ruining the collegiate market, maybe?

II.

NATURE AND SCOPE OF ANTI-TRUST LIMITS A.

B.

Output Market 1.

NCAA v Board of Regents of the University of OK (1984): A horizontal restraint of trade created by member institutions of the NCAA is subject to a Rule of Reason antitrust analysis. a. Horizontal agreement among NCAA schools "which compete against each other to attract TV revenues, not to mention fans and athletes"

2.

Per Se Rule vs. Rule of Reason in determining whether an agreement unreasonably restrains trade: a. Per Se Rule – certain restraints are conclusively presumed to be illegal as a matter of law because of their significant adverse effects on competition and lack of redeeming procompetitive virtues. i. Horizontal Price Fixing Generally Per Se violation of Anti-trust laws

Rule of Reason

1. 2. 3.

C.

Input Market 1.

D.

Coaches’ Salaries: a. Law v NCAA (10th Circuit, 1998)  Restricted Earnings Coach Case i. Anticompetitive effect is established under a quick look rule of reason analysis when a plaintiff shows that an active, effective horizontal agreement to fix prices exists and that the price set by such an agreement is more favorable to the defendant than would have otherwise resulted from normal operation of market forces. b. NCAA can limit the number of certain types of coaches; but CANNOT make rules about coaches’ salaries.

Application of the Rule of Reason 1. 2. 3. 4. 5. 6.

E.

Π has burden of showing an agreement had a substantially adverse impact on competition. If Π Establishes then burden shifts to Δ  Δ has burden to provide evidence of the agreements pro-competitive virtues. If Δ Establishes Virtues of Agreement burden reverts back to Π Π now needs to PROVE that the conduct/agreement is not reasonably necessary to achieve the legitimate objectives the Δ has established; OR That those objectives can be achieved in a substantially less restrictive manner.

Output market restriction Anticompetitive effects? Procompetitive justifications furthered? Substantially less restrictive means to achieve procompetitive effects? Net effect - reasonable or unreasonable restraint? Ensure the character of College Sports & Amateurism

“Quick Look” Rule of Reason Analysis: 1. Clear adverse effects on price or quantity in comparison to unrestrained market; no market power analysis required 2. No plausible procompetitive effects; even if they exist, they can be achieved in a substantially less restrictive manner 3. No need for factfinder to balance anticompetitive effects and procompetitive effects to determine net effect, so court rules for plaintiff/coaches as a matter of law and grants summary judgment

F.

Athlete Eligibility Rules

1. 2.

3. 4.

5.

6.

G.

Smith v NCAA (3rd Circuit, 1998): NCAA student-athlete eligibility rules are non-commercial activity not subject to anti-trust scrutiny Courts have uniformly upheld the validity of NCAA and athletic conference eligibility rules that athletes must satisfy to participate in intercollegiate athletics. Such rules are deemed necessary to preserve amateurism, academic values, and competitive balance in intercollegiate athletics Courts have also ruled that NCAA or athletic conference sanctions against member institutions for violating such rules don't violate the anti-trust laws Courts readily accept preservation of amateurism as a justification for NCAA rules limiting competition among its member institutions for the services of athletes, which reduces the cost of an essential input necessary to produce intercollegiate athletics NCAA rules permit student-athletes to be professionals in one sport without losing one's amateur status and intercollegiate eligibility to participate in another sport An anti-trust plaintiff must prove that its economic loss was caused by the anticompetitive effects of the challenged restraint

O'Bannon v NCAA (9th Circuit, 2015): The NCAA's compensation rules are within the ambit of the Sherman Act since they have a significant anticompetitive effect on the college education market “Should we pay students for use of their NAME, IMAGE & LIKENESS” 1.

Federal District Trial Court Decided that: a. NCAA can set the rule allowing schools to pay up to the entire tuition for a student athlete; AND The Schools can put $5000 in a ‘trusts’ for the students for each year and payable to the student after graduation. b. 9th Circuit Court of Appeals AFFIRMED the ability to pay for tuition but DENIED the idea of paying students $5000/year for playing a sport.

H.

Coaches’ Contracts Explored [Not all coaches operate with a К] 1.

Do coaches have property interest in their coaching position? a. Depends on how the school treats the coach; [i.e. incentives, К provisions] i. Has the school done something to remove it from an ‘at-will’ relationship?

2.

What are the damages for breach of a coaches’ contract? a. Liquidation Clause i. Acceptable generally if: 1. reasonable in relation to the anticipated damages; 2. measured prospectively at the time the К was created; 3. not grossly different from actual damages. b. Buy-Out Provisions c. Termination FOR CAUSE vs JUST CAUSE [why it is important to analyze what is part of the К] i. Violation by coach = coach in breach [Most issues is behavior related] 1. Good Morals Clause/Provision a. Do schools try to use this clause as a pretext to terminate a coach because his win/loss record is not favorable b. NCAA says a 3rd party needs to review behavior issues to schools do not overpower coaches position. 2. Maybe a Title IX issue Current major issue area ii. School just wants to get a new coach = school in breach

3.

NCAA Bylaws a. Coach must be subject to disciplinary by the school for any violation of NCAA rules. b. Institutions required to supply reports of athletically related income for the coaches outside of the institutions. i. i.e. Boosters writing checks to coaches= VERY BAD 1. School could be cited for “failure to monitor” ii. i.e. coaches getting paid for running camps= OK, no problem c. Is a Coach in Violation per coach К when NCAA sends “notice of inquiry” or when the Committee on Infractions make their “final determination”?

Gender Equity Issues in Athletics Class Notes 11/2/17: Doesn’t just apply to athletics. Why has there been such a switch from more women coaching women’s NCAA sports  to mostly men? May be on exam? In “Dear Colleague” letters: department of Education said can’t just turn it over to the cops, universities have to do it themselves and launch own formal investigations. Is this a good idea? Probably not, a lot of opportunity for getting it wrong and people who are not qualified are having to make hard decisions for potentially serious crimes. Why not just turn it over to the DA? LOCAL POLICE DEPARTMENTS TREAT ATHELTES FAVORABLY. If a school has a sport that does not offer a team for both genders, and 2) the school has a sufficient number of alternatives.. Civil Rights Restoration Act of 1987 – all departments and programs of educational institutions that receive federal funds, including their athletics departments, are bound by the requirements of Title IX I.

TITLE IX PERTINENT PROVISIONS A. 34 CFR §106.41(a): No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. B. Williams v School District of Bethlehem, PA (3rd Circuit, 1993) a. 34 CFR §106.41(b): of the excluded sex are permitted to try out for a single-sex team only if their athletic opportunities have i. "previously been limited"; and ii. if the sport isn't a sport.

II.

GENDER-BASED EXCLUSION FROM A PARTICULAR SPORT A. Courts generally hold: as prohibitive excluding girls from playing on boys' teams regardless of their ability level. 1.

Force v. Pierce City R-VI School District (W.D. MO, 1983) A [ maximizing participation] & B only [safety]

2.

MS University for Women v. Hogan (1982) a. A challenged policy that expressly discriminates among applicants on the basis of gender is subject to scrutiny under the Equal Protection Clause of the 14th Amendment. The burden of proof is showing an “exceedingly persuasive justification" for the classification. The burden is met only by showing at least

that the classification serves important governmental objectives and that the discriminatory means employed are "substantially related to the achievement of those objectives."

III.

3.

Fitzgerald v. Barnstable School Committee (2009) a. Title IX doesn’t preclude a plaintiff from bringing a denial of equal protection claim against a public school to gender discrimination under 42 USC §1983

4.

Mercer v. Duke University (4th Circuit, 1999) a. A university may choose not to permit a member of the opposite sex to try out for a sport team, yet i. "once an institution has allowed a member of one sex to try out for a team operated . . . for the other sex in a sport," the institution is subject to the general antidiscrimination regulations imposed by Title IX.

EQUAL ATHLETIC PARTICIPATION OPPORTUNITIES, BENEFITS, AND TREATMENT If you choose to let them try out, can’t go back to blanket prohibition… Rowing @ UA: Fall 2017 -- 20 scholarships, can split them up to make partials. 109 people. Why? Trying to balance against football team. I. Equal Athletic Participation Opportunities 1. **Cohen v. Brown University (1st Circuit, 1996): [big case, still followed today] a. Title IX is not an affirmative action statute in violation of the Equal Protection Clause of the U.S. Constitution. Need to show prongs 1 and 3 below to make up a prima facie case. b. Significant disparity between undergrad population & # of women. Trying ot save themselves using 3 part test in 34 CFR § 106.41(c)(1). c. Brown was given the opportunity to remedy their problem d. Loophole Schools can fashion a remedy to buy some time II. 34 CFR §106.41(c)(1): A university will not incur Title IX liability [in regards to bodies/numbers] if it satisfies 1 of 3 prongs: 1. If it distributes athletic opportunities in numbers “substantially proportionate” [+/2% disparity] to the gender composition of their student bodies (plaintiff's burden of proof). a. # of undergrad students enrolled compared to the % of athletic participation [+/- 2% disparity] b. Ways to reach substantial proportionality under Prong 1: i. Cut men’s teams and add women’s teams ii. Cut all sports iii. Cut men’s sports until ratio meets the “Substantially Proportionate” requirement; Used to be the excuse when they were unwilling to decrease the size of baseball/football teams [esp. baseball, where you can chop the scholarships up]

iv. Fully and effectively accommodate each gender 2.

Continually expands athletic opportunities to meet the needs of the underrepresented gender (defendant's burden of proof) a. Meaning Eventually our % will match up because we are growing b. E.g.) We just added equestrian, we just added rowing… then for the moment you’re good. But budgeting comes into play here. So, UA would be good but small schools have difficulty.

3.

Fully and effectively accommodates the interests of the underrepresented sex (plaintiff's burden of proof). [If fail to meet first two... our numbers are out of wack, but there’s just not an interest here. We are meeting the interest and expectations of women on campus, and they just haven’t displayed the interest. This is done via surveys] Something to consider: if high school didn’t offer the sport, how do you know if you’re interested? Chicken and the egg. a. “Interests & Abilities” of their sex are met by accommodation effectively b. Prong 3 fully and effectively accommodating the interests of the underrepresented sex, is not implicated unless a gender-based disparity is shown to exist. If such a disparity is shown, the issue is whether the athletics interests and abilities of the underrepresented gender are fully and effectively accommodated. c. Courts are skeptical about the statistics schools offer “Interest evolve as a function of opportunity and experience.

III. List used in determining whether equal opportunities exist: the OCR considers, among other factors (Factors that are frequently brought up as being “Unfair”) 1.

2. 3. 4. 5. 6. 7. 8. 9. 10.

Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of of both sexes. i. To include the amount and number of scholarships handed out The provision of equipment and supplies Scheduling of games and practice time Travel and per diem allowance Opportunity to receive coaching and academic tutoring Assignment and compensation of coaches and tutors Provision of locker rooms, practice and competitive facilities Provision of medical and training facilities and services Provision of housing and dining facilities and services Publicity

IV. McCormick v School District of Mamaroneck (2nd Cir. 2004):

1.

A disparity in one program component can alone constitute a Title IX violation if it is substantial enough in and of itself to deny equality of athletic opportunity to students of one sex at a school. i. Disparity – a difference, on the basis of sex, in benefits, treatment, services, or opportunities that has a negative impact on athletes of one sex when compared with benefits, treatment, services, or opportunities available to athletes of the other sex. ii.

Compliance with Title IX is assessed by first determining whether a difference in scheduling has a negative impact on one sex, and then determining whether that disparity is: a. Substantial enough  to deny of that sex equality of athletic opportunity.

Courts are reluctant to order the remedy  but just demand the school to “figure out a fix.” The school’s first fix was rope off the bleachers instead of making the women’s experience better. Led to Daniels II. Scheduling of games and practice times. This is a big deal! Who gets priority in naming their time and facility. i. Violation of these is not a prima facie violation; “could be”; women’s basketball programs across the country often choose to be in a smaller facility. But if someone asks and have absolute prohibition, must start juggling schedule around. ii. Factors listed Provision of equipment and supplies; scheduling of games and practice time; travel and per diem allowance; opportunity to receive coaching and academic tutoring; assignment and compensation of coaches and tutors; provision of locker rooms, practice and competitive facilities; provision of medical and training facilities and services; provision of housing and dining facilities and services; publicity. Facilities don’t have to be exactly the same; but have to be decent and nice and similar. No wild differences.

iii.

2.

V. Biediger v Quinnipiac University (2nd Circuit, 2012) 1. Competitive cheerleading does not meet the standards of a sport under Title IX and therefore cannot be counted when trying to comply with gender-equity requirements. Double counting doesn’t really happen anymore; antiquated. Pay a lot of attention to reference to regulatory authorities; and they pay a lot of attention on these facts that NCAA didn’t recognize it at this time. 2. Courts Reasoning (Prof Marsh says there is push-back on their reasoning though): i. No off campus recruiting ii. No uniform set of rules iii. Some non-academic participants (All-Star teams) iv. No progressive playoff system

VI. Boucher v Syracuse University (2nd Circuit, 1999): 1. Went over in class!!!! An institution will be found to be in compliance with Title IX if it falls within any one of the following "safe harbors": i. Where the institution can show that intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or ii. Where the of one sex have been and are under represented among intercollegiate athletes, but the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the of that sex; or iii. Where the of one sex are under represented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, but the institution can demonstrate that the interests and abilities of the of that sex have been fully and effectively accommodated by the present program. 2. To prove a safe harbor as an affirmative defense  defendants must show: i. their past actions expanded participation opportunities for the underrepresented sex in a manner that was demonstrably responsive to their developing interests and abilities; and ii. that they continue their practice of program expansion in response to its student body’s abilities and interests. 3. 3 factors that the Court may consider  in determining whether an institution has established a history of program expansion: [OCR policy interpretation, will be found in compliance with Title IX if it falls within any one of the following “safe harbors”] i. Institution's record of adding intercollegiate teams or upgrading teams to intercollegiate status for the under-represented sex; ii. Institution's record of increasing the number of participants in intercollegiate athletics who are of the under-represented sex; or iii. Institution's affirmative response to requests by students or others for addition or elevation of sports. iv. The position of SWA (Senior Woman’s ) helps show a history of attempting to comply with Title IX. A person designated to ideally, tend to become the greatest voice for Title IX in sports. Rare for it to be a guy. The senior in the athletic apartment for women’s athletics; typically aggressively involved in the Title IX issue.

IV.

US V VA (1996): TITLE IX FALLS UNDER INTERMEDIATE SCRUTINY

A. Intermediate Scrutiny: a. Requires that the gender classification serve important governmental objectives and that the discriminatory means are substantially related to achievement of those objectives; state actor must offer an "exceptionally persuasive justification" in of its discriminatory policy b. Pederson v. Louisiana State University (5th Circuit, 2000): If an institution makes a decision not to provide equal athletic opportunities for its female students because of paternalism and stereotypical assumptions about their interests and abilities, that institution intended to treat women differently because of their sex. Proper test is whether the school intended to treat women differently on the basis of their sex by providing them unequal athletic opportunities. That is the same as an intentional and malicious gender-based discriminatory treatment. Very blatant cases aren’t as common anymore. c. Mansourian v. Regents of University of CA (9th Circuit, 2010): Pre-litigation notice and opportunity to cure are not necessary in cases alleging unequal provision of athletic opportunities in violation of Title IX. V.

HARM & STANDING IN TITLE A.

Daniels v. School Board of Brevard County FL (M.D. FL, 1997): 1.

2.

VI.

A plaintiff only has standing to assert claims to remedy specific harm that arises out of his or her current or future participation in the school's athletic program. Without any individualized harm, he or she does not have standing to generally challenge inequitable treatment or the provision of benefits on the basis of gender in connection with a school's entire athletics program. Courts are reluctant to order a school to take specific action to remedy gender-based unequal treatment that violates Title IX.

ADVERSE EFFECTS OF TITLE IX POLICY IMPLICATIONS A. Neal v Board of Trustees of the CA State Universities (9th Circuit, 1999)  (Impact on men’s teams): 1. 2.

Title IX does not bar a university from making gender-conscious decisions to reduce the proportion of athletic spots assigned to men. Courts have uniformly held that cutting men's sports in an effort to achieve substantial proportionality in athletic participation opportunities does not violate Title IX or male athletes' equal protection rights.

B. Balancing Budget Numbers with Participation Numbers 1.

Permissible, by court’s decree, to line up Title IX provisions by:

i. ii. VII.

Add to underrepresented programs; or Cut the over represented programs.

GENDER BASED EMPLOYMENT DISCRIMINATION A. Title VII or Equal Pay Act: Neither regulate a coach’s discrimination action directly 1. Differentiated in pay that is based on the SCOPE of the job i. Equal pay for the Equal Job

VIII. PROTECTION AGAINST RETALIATION FROM AN INSTITUTION A. Title VII & Title IX Provisions 1. Π have to prove the action in question was based on discrimination. 2. Δ can then present proof that the action in question was based on nondiscrimination reasons. IX.

REMEDIES FOR TITLE IX VIOLATIONS A. Compensatory damages if intentional discrimination 1. No punitive damages 2. Attorney's fees if plaintiff prevailed B. Compliance plan 1. Judicial deference to university 2. OCR Policy Interpretation regarding selection of sports 3. Injunction against elimination of sport

Regulating Olympic and International Athletics     

Olympic sports are internally governed within the US and regulated by a federal statute, the Ted Stevens Olympic and Amateur Sports Act (ASA), 36 USC §220501 USOC is the coordinating body for Olympic and international "amateur" athletic competitions USOC selects NGB for each Olympic sport AAA arbitration to resolve domestic disputes USOC exclusive right to control commercial use and license Olympic marks in US

I. INTRO A. The Olympic Charter governs the Olympic Movement, which codifies the fundamental principles, rules, and bylaws adopted by the lOC, and establishes rules for the production and operation of the Olympic Games. B. IOC = International Olympic Committee – “supreme authority" of the Olympic Movement; all are bound by its provisions and the lOC's decisions regarding its application or interpretation. a. The lOC is the "authority of last resort on any question concerning the Olympic Games" although those adversely affected by its decision may submit the dispute to final and binding arbitration before the Court of Arbitration for Sport. C. IF = International sports Federations – nongovernmental organizations; each IF is recognized by the IOC as the worldwide governing body for a particular sport or group of sports and encomes the NGBs that serve as s for the subject sport(s) in each country. D. NOC = National Olympic Committees – develop and protect the Olympic Movement within their respective countries. a. Each NOC has exclusive authority regarding the representation of its country at the Olympic Games and selects its Olympic teams and athletes b. Have the authority to designate which cities may apply to host the Olympics within their respective countries. E. NGB = National Governing Body – national governing authority for a particular sport that is d with the appropriate. a. Organizing Committee for Olympic Games b. Court of Arbitration for Sport and American Arbitration Association c. World Anti-Doping Agency

IOC (Supreme authority)

IF

NOC

( of each sport at the International Level)

(National Governing Body for Olympic Sports)

NGBs (National governing body for each sport)

II.

REGULATION OF OLYMPIC SPORTS WITHIN THE US A. Basis of Governing Body Authority and Legal Limits Thereon a. DeFrantz v US Olympic Committee (D.DC 1980): A decision by the USOC not to send an American team to compete in the Olympic Games is within its statutory authority and does not violate an individual’s constitutional rights. i. Although it is federally chartered, the USOC is a private entity and not subject to a “state action” claim. (i.e. USOC is NOT a state actor!) ii. Athletes have no express or implied private right of action under the Amateur Sports Act of 1978 and courts don’t recognize claims against the USOC or NGBs seeking injunctive relief or judicial orders regarding their eligibility to compete in protected competitions. iii. The USOC is authorized by the International Olympic Committee to represent the US in all matters relating to participation in the Olympic Games. The USOC is bound by contract to follow the IOC's Charter, rules and regulations, and executive board decisions. iv. Amateur Sports Act of 1978 empowered the USOC to serve as the coordinating body within the US for international amateur athletic competition. It establishes arbitration as the procedure for finally resolving disputes regarding which organization is entitled to be the national

governing body for a particular sport, and the USOC is bound to accept a judicially confirmed arbitration award. B. San Francisco Arts & Athletics, Inc. v. US Olympic Committee (1987): USOC is a private entity, not a state actor, whose conduct isn’t subject to the constraints of the federal Constitution. C. US NGBs for Olympic Sports also are not "state actors"; therefore, their rules and conduct aren’t subject to the constraints of the federal Constitution. III.

LEGAL FRAMEWORK FOR RESOLVING DOMESTIC ATHLETE ELIGIBILITY DISPUTES A. ASA Requirements to Protect Athlete Participation Opportunities 1. NGB: Provide all athletes who meet eligibility standards with equal opportunity to participate: i. Race/Color/Religion/Sex/Age/National Origin discrimination prohibited B. USOC: 1. Resolve and investigate athletic complaint; and 2. Establish process for swift and equitable resolution of disputes regarding opportunity of an amateur athlete to participate in a "protected competition" i. [i.e. (Para-)Olympics, Pan-American Games, world championship competitions] ii. Athlete ombudsman C. [36 USC §220522(a)(8)]: 1. To be eligible to be recognized by the USOC as the NGB for an Olympic sport, a sports organization must provide all athletes with an equal opportunity to participate "without discrimination on the basis of race, color, religion, sex, age, or national origin." 2. Each NGB has an affirmative duty to encourage and athletic participation opportunities for women and those with disabilities. D. The Amateur Sports Act (ASA) requires: 1. the USOC to establish a procedure for investigating and resolving complaints by athletes alleging that an NGB has violated these requirements. E. Section 9 of the USOC Bylaws: No NGB “may deny or threaten to deny any amateur athlete the opportunity to participate" in a protected competition 1. USOC is required to "protect the right of an amateur athlete to participate if selected as an athlete representing the US" in any protected competition. 2. The ASA gives an athlete the right to submit an eligibility dispute with an NGB to final and binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (AAA) if it’s not resolved by the USOC to their satisfaction. 3. The Amateur Sports Act generally preempts state law claims by US athletes arising out of eligibility disputes regarding protected competitions except for a breach of

contract action to require the USOC or a NGB to follow their own rules and fairly apply them. F. Slaney v International Amateur Athletic Federation (7th Circuit, 2001): 1. Eligibility decisions fall within the USOC's exclusive jurisdiction over all matters pertaining to US participation in the Olympic Games. 2. An athlete has no private right of action under the Stevens Act 3. Federal anti-discrimination law claims are NOT preempted, but damages are the sole remedy 4. Courts have held that the ASA creates implied immunity for antitrust claims for the USOC and NGBs arising out of an athlete's ineligibility to participate in a sport. G. Courts will not resolve the merits of an eligibility dispute with the USOC or an NGB because the ASA gives an aggrieved US athlete the right to submit the dispute to final and binding arbitration under the auspices of the American Arbitration Association. AAA arbitration (not courts) resolves the merits of US Olympic athlete opportunity to participate disputes 1. Lindland v US Wrestling Association, Inc. (7th Circuit, 2000): i. As long as the arbitration was final and binding, you can’t run to another arbitrator after a decision to have them reverse the order. The ASA does not authorize arbitration about the propriety of another arbitrator's decision. ii. The Federal Arbitration Act enables an athlete to judicially confirm and enforce an arbitration award if an NGB or the USOC refuses to comply with it. iii. A court will vacate or refuse to confirm an arbitration award that is the result of corruption, fraud, evident partiality, or any similar bar to confirmation. IV.

ATHLETE ELIGIBILITY DISPUTE RESOLUTION PROCESS A. NGB internal procedures B. Section 9 Complaint with the USOC C. Athlete ASA right to submit Section 9 eligibility dispute with NGB to AAA arbitration a. Identify and notify adversely affected athletes b. Field of play decisions non-reviewable unless outside of referee authority to make or fraud, corruption, or bias c. No US constitutional law or ASA private right of action d. Preemption of state law claims vs USOC and USS; ASA anti-injunction provision (within 21 days of Olympics)

V.

LIMITS ON USE OF NATIONAL LAW TO REGULATE OLYMPIC AND INTERNATIONAL ATHLETIC COMPETITION A. A US court has no personal jurisdiction over a nonresident international athletics governing body such as an International federation (IF) or the lOC unless an athlete's claims arise out of its activities within both the US and forum state.

1.

Even if there is personal jurisdiction over an international athletics governing body, US courts are very reluctant to apply the constraints of US federal or state law to lOC or IF rules B. A US athlete's dispute with the USOC or an NGB is resolved by domestic arbitration under the auspices of the American Arbitration Association. By comparison, a US athlete's dispute with the lOC or an IF generally will be resolved before a foreign or international arbitration such as the Court of Arbitration for Sport. C. US courts will recognize and confirm foreign arbitration awards resolving the merits of international sports disputes affecting US athletes under the "New York Convention" treaty, which precludes the losing party from re-litigating issues under national or state law D. Limited Role of US Courts 1.Pre-Arbitration Litigation (NGB Internal Procedures) i. Ensure protection of athlete's procedural rights under the ASA + enforce of contract with the NGB. ii. Harding v US Figure Skating: NGB implied obligation of good faith in exercising discretion. 2.Post Arbitration Judicial Review of Reward i. Federal Arbitration Act empowers courts to review AAA arbitration awards ii. Confirm and enforce award unless arbitrator exceeded authority OR engaged in corruption, fraud, or bias iii. If court vacates AAA award, it won't resolve the merits of the dispute VI.

COURT OF ARBITRATION FOR SPORT (CAS) - Any CAS arbitration is a Swiss arbitration proceeding - Jurisdiction based on agreement of parties -- Disputes arising during the Olympic Games or 10 days prior to the Opening Ceremony - Lex Sportiva – not binding precedent, but CAS s recognize need for uniform body of Olympic and international sports law A. Historical Perspective 1. The IOC and all Olympic IFs have agreed to CAS jurisdiction. By rule, the IFs require their respective member NGBs and athletes to submit all disputes with the IF to CAS arbitration. 2. The International Council of Arbitration and Sport (ICAS) oversee the CAS and appoint its ; its president also serves as the CAS president. of the ICAS cannot serve as a CAS arbitrator or represent a party in a case before the CAS. B. Composition, Operation, and Jurisprudence 1. The Code of Sports-Related Arbitration governs the organization, operations, and procedures of the ICAS and the CAS. In any CAS proceeding, the parties may be

represented by counsel and must follow the code's procedural rules and time limits for bringing claims. C. The Code establishes 3 distinct procedures for resolving sports-related disputes: 1. Ordinary Arbitration Procedure – resolve disputes relating to legal relations between the parties such as sports-related sponsorship contracts; conducted before a single arbitrator or a of 3 arbitrators. The dispute is resolved according to the law chosen by the parties, or Swiss law if none has been chosen. 2. Appeals Arbitration Procedure – resolve appeals from final decisions of sports federations involving matters such as doping, discipline for misconduct, athlete eligibility issue, or competition results; usually are before a 3-person arbitration tribunal. The applicable substantive law generally is the relevant sport-governing body rules and the law of the country in which it is domiciled 3. Mediation Procedure i. The CAS operates the Ad Hoc Division at the site of each Olympic Games to provide for expedited resolution of all disputes arising during the Games ii. All of the Olympic Movement are subject to CAS jurisdiction for any dispute in connection with the Olympic Games. The applicable substantive law is the Olympic Charter and “appropriate” rules of law iii. In both appeals arbitration and Ad Hoc Division proceedings, the CAS provides de novo review of a sports governing body's interpretation or application of rules affecting an athlete's eligibility to compete. iv. A CAS arbitration award resolves the subject dispute, orders appropriate relief, and is final and binding on the parties. D. Judicial Review 1. A CAS award is a Swiss arbitration award that may be judicially confirmed and enforced by a court in a country that is a signatory to the New York Convention on the Uniform Enforcement of Foreign Arbitration Awards. 2. A CAS award may be challenged before the Swiss Federal Tribunal. There are very limited grounds for judicially challenging a CAS award: if there was incompetence or irregularity in the arbitration , if the award is outside the CAS's jurisdiction or did not decide a claim, if the parties' rights to be heard and treated equally were violated, or if the award is incompatible with Swiss public policy. E. Governing Body Disciplinary Action 1. D’Arcy v Australian Olympic Committee (Arbitration CAS, 2008): The CAS has full power to review the facts and law de novo, and can draw its own conclusions and conduct investigations. The jurisdiction of the Appeal is not error-based. i. When resolving athlete eligibility disputes pursuant to its appeals arbitration jurisdiction, the CAS 's review is de novo.

ii. Samoa NOC and Sports Federation, Inc. v International Weightlifting Federation [IWF] (Arbitration CAS Ad Hoc Division, 2000)

VII.

Disputed Competition Results

A. Yang Tae Young v International Gymnastics Federation (Arbitration CAS, 2004): 1. CAS courts may interfere only if an official's field of play decision is tainted by fraud or arbitrariness or corruption. Otherwise, although a Court may have jurisdiction, it will abstain as a matter of policy from exercising it. i. An error identified with the benefit of hindsight, whether itted or not, can’t be a ground for reversing a result of a competition. ii. CAS will always have jurisdiction to overrule the Rules of any sport federation if its decision-making bodies conduct themselves with a lack of good faith or not in accordance with due process. VIII. Doping Violations and Sanctions - If there's a doping violation, disqualification of competition results (Raducan v IOC) - Proportionate sanction based on individualized degree/level of fault (Chagnaud v FINA)

A. Strict Liability Standard, Clear Notice Requirements, and Proportionate and Authorized Sanctions 1. USA Shooting and Q. v. Int'l Shooting Union [Quigley] (1995): CAS has upheld a sport's governing body's adoption and use of a strict liability standard for doping offenses. i. Doping rules must provide clear notice to protect athletes' legitimate expectations. B. Interpretation and Application of the World Anti-Doping Code (WADA Code) 1. “All Athletes or other Persons accept these rules as a condition of participation and shall be bound by them.” 2. Establishes a uniform system of drug-testing procedures and fixes sanctions for violations, which may be reduced in "exceptional circumstances” if the athlete bears "no fault or no negligence" or "no significant fault or no significant negligence." 3. Substance or practice is banned if it satisfies at least 2 of 3 criteria: i. Enhances sport performance ii. Actual or potential health risk iii. "Violates the spirit of sport" 4.Doping violation may be proven "by any reasonably necessary means" 5.Virtually all international sports federations now have adopted and implemented the code, which applies to their respective NGBs and athletes. C. Guillermo Canas v ATP Tour (CAS May 2007): WADA Code rules as below

D. Doping Is: the occurrence of the presence of a Prohibited Substance or its Metabolites or Markers in a Player's Specimen, unless the Player establishes that the presence is pursuant to a therapeutic use exemption i. Not necessary that intent, fault, negligence or knowing Use on the Player's part be demonstrated in order to establish a Doping Offense ii. The sports organization shall have the burden of establishing that a Doping Offense has been committed. The standard of proof shall be whether the organization has established the commission of the alleged Doping Offense to the comfortable satisfaction of the Anti-Doping Tribunal. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond reasonable doubt. iii.

Where this program places the burden of proof upon the Participant alleged to have committed a Doping Offense to rebut a presumption, the standard of proof shall be by a balance of probability.

iv.

A Doping Offense committed by a Player in connection with or arising out of an InCompetition test automatically leads to Disqualification of the individual

v.

The period of ineligibility imposed for a violation of shall be: First offense: Two (2) years' ineligibility; Second offense: Lifetime Ineligibility.

vi.

The participant shall have the opportunity in each case to establish the basis for eliminating or reducing this sanction. If the Player establishes that he bears “No Fault or Negligence” for the offense, the otherwise applicable period of ineligibility shall be eliminated. The Player must also establish how the Prohibited Substance entered their system in order to have the period of ineligibility eliminated

E. “No Significant Fault or Negligence” 1. If a Player establishes in an individual case involving such offenses that he bears “No Significant Fault or Negligence”, then the period of ineligibility may be reduced, but may not be less than half of the minimum period of ineligibility otherwise applicable. The Player must also establish how the Prohibited Substance entered their system in order to have the period of ineligibility reduced i. “No Fault or Negligence”: Player establishing that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used or been istered the Prohibited Substance or Prohibited Method. (vs) ii. “No Significant Fault or Negligence”: Player establishing that their fault/ negligence, when viewed in the totality of the circumstances and taking into the criteria for No Fault or Negligence, was not significant in relationship to the Doping Offense. F. The existence of "exceptional circumstances” under the WADA Code:

1. is necessarily a fact-specific inquiry to determine the reasonableness of an athlete's action (or inaction) to ensure that they don’t ingest or use a banned substance. It’s very difficult (but not impossible) for an athlete be able to prove "no fault or negligence" for a doping offense. i. Reasonable person standard – have to look at the totality of the circumstances G. CAS Application of WADC Summary!  Strict liability + fixed sanction which may be reduced if "exceptional circumstances" exist  Athlete has burden of proof and must establish how banned substances entered system  If "no fault or negligence", no sanction  If "no significant fault or negligence", 0-2 year suspension. 1. WADA Code (2009) i. 2 year suspension for "prohibited substances" (anabolic steroids + certain stimulants) unless no fault/negligence OR no significant fault or negligence ii. 0-2 year suspension for "specified substances" (all other banned substances) if no intent to enhance sport performance or mask AND based on degree/level of fault iii. Exclusivity of WADA Code sanctions 2. WADA Code (2015) i. If a "specified substance", 0-2 year suspension if athlete proves no significant fault or negligence, depending on level of fault. ii. 4 year suspension for "prohibited substance" unless athlete proves not an "intentional violation" (i.e. "knew constituted an anti-doping rule violation or knew...a significant risk that ...might constitute or result in an anti-doping rule violation and manifestly disregarded that risk"). iii. If not an "intentional violation", 2 year suspension, which may be reduced if no fault/negligence (no sanction) OR no significant fault/negligence. iv. 4 year suspension for "specified substance” if anti-doping organization proves "intentional violation". H. United States Anti-Doping Agency (USADA) – independent anti-doping agency for Olympic sports in the US not subject to the control of the USOC; tests, investigates, and prosecutes doping violations by US athletes ("clear and convincing evidence" standard). 1. USADA now handles the initial adjudication procedure that an IF requires its member NNGB to undertake when a U.S. athlete tests positive for a banned substance. 2. Applying the IF's roles, a USADA review board considers written submissions to determine whether there’s sufficient evidence of doping to warrant a hearing. If so, USADA proposes doping charges and sanctions that are consistent with the IF's rules for the athlete. 3. WADA or an IF may challenge USADA's disposition of a doping matter by appealing to the CAS.

i.

ii. iii.

If the athlete doesn’t accept USADA's proposed sanction, they may request a hearing before an AAA (a right provided by the Stevens Act), whose are also US CAS arbitrators. In the arbitration proceeding, the USADA and the athlete are adverse parties. The IF may observe the proceeding or participate as a party. United States Anti-Doping Agency v Kirk O’Bee (CAS 2010) a. The athlete, the IF, or WADA may appeal the AAA arbitration award to the CAS, whose decision is final and binding.

4. USADA Process i. USADA Review Board, applying WADA Code and IF rules, makes recommendation whether sufficient evidence of doping violation to be adjudicated ii. “USADA vs Athlete” in AAA/ North American CAS arbitration (3 person s) iii. Final and binding de novo appeal to CAS by athlete, USADA, IF, or WADA IX.

HEALTH, SAFETY, AND RISK MANAGEMENT ISSUES IN SPORTS A. Co-Participant Tort Liability – liable if injury is intentional or reckless 1. Courts generally require professional athletes to prove intentional or reckless conduct by a co-participant in order to recover for playing field injuries. 2. Most jurisdictions permit recovery in sports injury cases between co-participants only for intentional or reckless conduct regardless of the level of competition, age, or experience of the participants, or organizational structure of the sport 3. Under a recklessness standard, a violation of a game rule intended to protect the health and safety of participating athletes (ex. no touching of the face mask in football) won't necessarily result in liability B. Hackbart v Cincinnati Bengals, Inc. (D.CO 1976)/(10th Circuit 1979): A party is liable for damages for the intentional, unauthorized striking of another even during the course of an otherwise violent activity. C. Shin v Ahn (CA 2007): Primary assumption of risk doctrine applies to non- sports such as golf, and being struck by a carelessly hit golf ball is an inherent risk of the sport D. Primary Assumption of Risk Doctrine – defendant owes NO DUTY to protect a plaintiff from particular harms arising from ordinary or simple negligence. In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate

SPORTS AGENTS I.

AGENCY LAW & ITS RELATIONSHIP WITH SPORTS LAW I.

II.

Standard of Care Overview  Restatement of Agency Law (3d) [created by the American Law Institute] 1.

Agency Defined [R3d Agency § 1.01] i. Fiduciary Relationship Exists When: a. A Principal manifests assent to an agent; then b. The agent acts on behalf of the principal; and is c. Subject to the principal’s control

2.

§ 8.01 A [Sports] Agent has, acting as fiduciary, has a DUTY to act loyally for the principal’s benefit in all matters connected with the agency relationships. i. Duty of: CARE, COMPETENCE, and DILIGENCE normally exercised by agents in similar circumstances. [Standards of Behavior] ii. Special Skills/Knowledge are taken into a. Increases the STANDARD OWED

3.

§ 8.10 Good Conduct i. Agent must act with good conduct and refrain from conduct that is likely to damage the principal’s enterprise.

Athlete-Agent Relationship Overview 1.

Governing Laws i. Common Law of Agency; ii. State Law; iii. Federal Law; iv. Players Associations [i.e. National Football League Players Assoc. (NFLPA)]

2.

Concentrated Profession [“Cutthroat” Industry] i. Dealing with Players is more difficult than dealing with Athletic Directors and coaches.

3.

It takes CAPITAL to be a sports agent i. Agent fees are a small percentage of the players’ salaries ii. Agents front 40k-50k for training & living expenses from the time the player finishes in college to when the DRAFT occurs. iii. The “real money” is in the 2nd contract the agent is involved with a. However, very few players get 2 contracts.

III.

II.

Services Provided by a Sports Agent 1. Types of Services Typically provided by Agent to their client i. Contract Negotiations [sometimes left to a specialist] ii. Tax Planning iii. Financial Planning iv. Legal Consulting v. Insurance Consulting

SPORTS AGENTS RESPONSIBILITIES [CONTRACTUAL] I.

II.

III.

Contract Overview 1. Typical Contract Language “Reasonable Efforts” owed to Athlete i. No promise of success 2. Many Contracts have explicit promises concerning: i. Deadlines, ii. , iii. Etc… Breaches 1. Breach of Implied Covenant of Good Faith [in all contracts] 2. Breach of Fiduciary Duty: Case Law and Common Law develop standard of this duty. 3. Negligence: Failed to live up to industry standard 4. Recklessness: Worse than negligence, but not quite Intentional i. [i.e.: making a recommendation for a player to make an investment, but not conducting due diligence in researching the enterprise] ii. Buying insurance through some company that is unheard of without researching viability of the insurance company. 5. Fraud: Intentional misrepresentation of a material fact. i. While a fiduciary Silence on a material fact is sufficient to satisfy as a fraudulent activity. Possible Legal Claims against an Agent 1. If intent can be proven, then a claim might be able to sue for Punitive Damages as well.

III.

SPORTS AGENTS CONFLICTS OF INTERESTS I.

Conflicts with Clients/Athletes/Principal 1. Principle of Agency Law is that the fiduciary MUST AVOID conflicts against the principles enterprise. i. An agent who stands to gain from both sides of the deal is considered in breach of their duty if they fail to affirmatively disclose the conflict. ii. FOR EXAMPLE: a. An agent who has ownership interest in the team and is representing a player who is negotiating with that team. b. Encouraging a player to invest in a company that the agent has interest in.

II.

Voidable Contract if Agent Does Not Disclose to Principal 1. If the agent does not disclose all known material facts to the principle/athlete; then the principle/athlete has a voidable contract with the agent.

III.

2.

Disclosures must be precise and in detail

3.

Players are typically seen as unsophisticated and deference is highly given to them usually.

Conflicts between Agents 1. Fierce Competition means Sharp practices used to grow business 2. Torts for “Theft-of-Client” claims i. Disparagement Giving false information about competitors ii. Intentional Interference with Contractual Relationships ELEMENTS: a. A valid contract exists between the π and the 3rd party; b. The ∆ knew of the existing contract; c. ∆ intentionally acted with a design to induce a breach or disruption of the existing contractual relationship; d. There was in fact an actual breach or disruption of the contractual relationship; AND e. Damages resulted from the breach or disruption. 3. HOWEVER, i. The idea of free enterprise & free market makes it difficult to substantiate a claim of tort of contract interference. AND ii. The idea of gaining a new client through fair and acceptable dealings is a high presumption that is hard to overcome. a. Essentially need to show i. Predatory ii. Fraudulent iii. Etc…

4.

IV.

Players associations actually help further allowing players to speak with other agents and for agents to approach players who are under contract if the player first initiates communication [NFLPA]. i. ALSO i.e. a. NFLPA allows agents to players that are in the last 60 days of their existing contract if they have not signed a new Standard Representation Agreement with a Contract Advisor.

STATE AND FEDERAL LEGISLATION & REGULATIONS CONCERNING SPORTS AGENTS I. SPARTA [Sports Agent Responsibility Trust Act- Federal] 1. Prohibits sports agents from using improper inducements and misleading information to recruit student-athletes. 2. Violations Constitute Unfair and Deceptive Trade Practice i. Enforced by Federal Trade Commission a. However, Sports Agents are not high on the list of priority for the FTC II.

RICO [Racketeer Influenced and Corrupt Organizations Act- Federal] 1. Some sports agents have been prosecuted using RICO and Mail Fraud Statutes 2. A way of aggregating state law violations and raising them to a federal level

III.

UAAA [Uniform Athletes Agent Act- Adopted by State Law (about 40 States)] 1. Focus of this act is to protect institutions from harm. 2. UAAA was revised in July 2015 now sent back to State level to adopt 3. Criminal actions, Civil actions and Civil istrative against sport agents in violation. 4. Applies to anyone who comes on a campus for the purposes of acting as a sports agent.

IV.

Notable Lack of Enforcement against Sports Agents [Federal or State level] 1. WHY IS THIS? i. When a State or Federal entity gets involved the DISCOVERY door might get swung wide open. a. The threat of finding more incidents, more egregious activity, and more could be amplified when prosecution occurs. ii. University playing damage control and get it resolved as quickly as possible. Bring Finality. a. Prefer to let it go, rather than deal with an unknown alternative.

V.

Players Associations Regulations [NFLPA; NBAPA; MLBPA; etc…] 1. Regulations can exclude an agent from dealing with their organizations 2. Certify agents i. Establish education requirements, etc…

VI.

Important NCAA Bylaws While there has been some liberalizing to the rules that decrease the chance of a player losing their eligibility and further education, there are still some firm set rules not to break: 1.

VII.

12.3 USE OF AGENTS i. Individual is deemed ineligible if they have an oral or written agreement to work with an Agent—presently or in the future. ii. Cannot take benefits from an Agent iii. Career Counseling Exceptions a. Student athlete can do internship or career counseling with an agency so long as it has nothing to do with student’s ability in sports. iv. Lawyer cannot be present for prospective students when they are negotiating being placed into an educational institution. v. Scouting service can be used to present students information to colleges so long as the fee is not based on placement, but as a service of compiling information.

NCAA Proposal to Change Agent Rule for Basketball 1.

Proposal was in March 2016 by a memorandum i. Proposal would allow an athlete participate in the draft combined activities so long as they remove their name from the draft list at the right time. AND ii.

Only allowed to “test the water” IF the following are also adhered to; a. Make no agreements with an AGENT or accept any benefits from an Agent. b. Use your own money to stay more than 48 with one NBA team training. c. Pay for your own draft advisor services d. Do not miss any classes due to trying out with a professional team e. Enter the draft and take the appropriate steps to withdraw and declare your intention to resume intercollegiate participation f. Cannot actually get drafted.

2.

Memorandum outlines specifically what can and cannot be paid for by what parties. [who can instruct what, when they can, etc…]

3.

Drop-dead date to remove name from the draft.

SPORTS LAW REVIEW I.

PRACTICING SPORTS LAW A. B. C. D. E. F. G. H.

Why Study Sports Law? Explosive Growth in Lawyers Claiming “Sports Law” as a Specialty Need to Diversify Practicalities of Billing and the Economic Relationship with your Client Dealing with Public vs. Private Entities What an RFP is and how to handle them Differences in whether you represent the Institution, a coach, or a student-athlete Dealing with the Media

II.

REGULATING HIGH SCHOOL ATHLETES

III.

REGULATING COLLEGE ATHLETICS A. B. C. D. E. F. G. H. I.

IV.

ANTI-TRUST ISSUES AND SPORTS LAW A. B. C. D. E.

V.

Is the College Athlete an Employee of the University? The NCAA Enforcement Process Insiders look at the Committee on Infractions Common Mistakes Lawyers make in the NCAA Enforcement Process Becoming an NCAA Enforcement Rep Working on Campus in NCAA Compliance Academic Misconduct Issues Compliance Audits and Academic Program Reviews Big vs. Small Schools; DI vs. DIII; Public vs. Private [One size does not fit All]

The Business of College Athletics Challenges to the NCAA Regulatory Model O’Bannon v. NCAA NLRV Case [Employer-Employee Relations]? What does the Future Hold?

REPRESENTING COLLEGE COACHES A. B. C. D. E.

Is There a Property Interest in the Job? “Head Coach Responsibilities” and the NCAA Coaches’ Terminations “For Cause” [How the Job of the Lawyer Changes] Behavioral Issues Academic Misconduct

VI.

GENDER EQUITY ISSUES IN ATHLETICS A. B. C. D.

VII.

Change Comes Slowly in What Was a Male Dominated World Gender-Based Exclusion and Discrimination Title IX The Explosive Growth in Title IX Legal Work

SPORTS AGENTS A. B. C. D.

Ramifications of Applying Pure Agency Law principles to Sports Agents [Does it work?] So You Want to be a Sports Agent? State and Federal Regulation of Sports Agents How BIG-TIME College Programs Deal with the Relationship Between StudentAthletes and Sports Agents