WEST ACADEMIC PUBLISHING’S LAW SCHOOL

ADVISORY BOARD
—————
JESSE H. CHOPER
Professor of Law and Dean Emeritus,
University of California, Berkeley
JOSHUA DRESSLER
Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University
YALE KAMISAR
Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan
MARY KAY KANE
Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law
LARRY D. KRAMER
President, William and Flora Hewlett Foundation
JONATHAN R. MACEY
Professor of Law, Yale Law School
ARTHUR R. MILLER
University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University
GRANT S. NELSON
Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles
A. BENJAMIN SPENCER
Earle K. Shawe Professor of Law,
University of Virginia School of Law
JAMES J. WHITE
Robert A. Sullivan Professor of Law Emeritus,
University of Michigan
 SPORTS LAW
IN A NUTSHELL®
FIFTH EDITION

WALTER T. CHAMPION, JR.

George Foreman Professor of
Sports and Entertainment Law,
Texas Southern University
School of Law
The publisher is not engaged in rendering legal or other professional advice, and this
publication is not a substitute for the advice of an attorney. If you require legal or other
expert advice, you should seek the services of a competent attorney or other professional.
Nutshell Series, In a Nutshell and the Nutshell Logo are trademarks registered in the U.S.
Patent and Trademark Office.
© 1993 WEST PUBLISHING CO.
© WEST, a Thomson business, 2000, 2005
© 2009 Thomson Reuters
© 2017 LEG, Inc. d/b/a West Academic
444 Cedar Street, Suite 700
St. Paul, MN 55101
1-877-888-1330
West, West Academic Publishing, and West Academic are trademarks of West Publishing
Corporation, used under license.
Printed in the United States of America
ISBN: 978-1-63460-580-9
 To Ed O’Bannon,
basketball player and visionary
 PREFACE
—————
This Nutshell will explain all elements of Sports Law in an
organized, reasonably coherent manner. Sports Law flows through
our lives in many different formats and impacts on many different
people: from agents to lawyers to athletic directors to fans. This
book is a review of sports law; it can also be used as a course book,
a student outline, a primer for would be professionals (whether
agent, athletic director, athlete, or coach), or just a nice way to mull
away an afternoon.
This is my fifth edition, and the need for a unified text on sports
law is greater than ever. In some ways, I find myself in the position
of ombudsman to the genre. The field has changed dramatically in
the last seven years including moral dilemmas in drug testing,
athletic discipline, gambling, player morality, owner scandals,
league corruption, and litigation against the NCAA and FIFA.
Hopefully, this edition will help resolve some of the conundrums.
The maxim of French philosopher/historian Jacques Barzun, with
respect to sports in general, remains true: “Whoever wants to know
the hearts and minds of America had better learn baseball.”
Walter Champion
Houston, Texas
December 2016
 ACKNOWLEDGMENTS
—————
A good book needs good contributors. To begin with, I was lucky
enough to have coerced four exemplary sports professionals to
write introductions for the first four editions, namely, Steve
Patterson, Nick C. Nichols, Oliver Luck, and George Foreman,
boxer, preacher, entrepreneur, and philanthropist, by way of his
letter to Michael Vick’s sentencing judge. This edition is
introduced by Peter Schaffer, an outstanding sports agent.
I was also lucky to secure contributions, advice, revisions, and
consultations from several outstanding legal scholars, namely: I.
Nelson Rose (gaming law), McKen Carrington (financial
considerations), and Danyahel Norris (intellectual property).
A good book needs good people behind it, and that we have in
abundance. Special thanks goes to my students: Mike Warner, Tre
Meredith, Jayne Griffin, Mary Helen Rigney, and Aljosa Anthony
Dvizac. Many great professionals have assisted me throughout the
years in popularizing the Good News of Sports Law. They are, in
no particular order: Ricky Anderson, Oliver Luck, Steve
Underwood, Bill Frizzell from Tyler, Texas, Kary Wilson from
Sweetwater, Texas, Steve Patterson, Nick C. Nichols, the Hon.
Harold Dutton, Randy Hendricks, Gregory “Scrap” Simmons, and
Peter Schaffer.
I’d like to also thank Dr. Reginal D. Harris, a 2nd-year law
student, for his scrutinizing eye in updating the index of this book.
I especially want to thank my faculty research librarian, Tara
Long, Esq., for research and fact checking.
 Another sincere acknowledgement goes to George Foreman, who
has the foresight to use his position to improve the field of Sports
Law.
Walter Champion
Houston, Texas
December 2016
 INTRODUCTION TO FIFTH EDITION
BY: PETER SCHAFFER
—————
What comes to mind when you hear sports law? Most think of
agents and their accompanying fame and prestige. Sports law
brings to mind watching Super Bowl games from the sidelines,
access to superstars, and more than occasionally the heated phone
call. However, sports law is much more involved than any
Hollywood depiction. Sports law builds lawyers. The reality is that
while people are fascinated by sports law because it involves
athletics, competition, the almighty dollar, and national heroes, this
book explores sports law as a compendium of just about every legal
discipline from contracts, to torts, to civil rights, to constitutional
law, to anti-trust, to contracts, to the First Amendment. Champion’s
book delves into every discipline of law as easily as Tom Brady
tosses touchdown passes in the snow of Foxboro. While people
become interested in sports law because they think they will be
seeing Grestskys and Sanders, they eventually learn all areas of
law, with sports fact patterns involved.
Whether you are employed by an amateur organization, the
NCAA, a sports team, an athletic apparel company, or a sport
agency, you will find yourself becoming a general counsel and find
yourself studying and learning areas of the law you never imagined
you would come across. Sports law gives lawyers the variety of
experience that few areas of the law do.
Professor Walter Champion is a true sports law expert. His many
years as a sports law professor can be easily seen in his writing. His
ability to teach is second only to his expertise in sports law. Since it
takes aspects from many disciplines of law, sports law is a balance
of exciting, complicated and mundane subjects. Champion knows
how to make the less interesting aspects of sports law into
compelling ones. He also knows how to use sports to make other
areas of law interesting. He has a way of making the complex into
easily understood terms for all to learn. When discussing the
NCAA, he effectively simplifies the labor laws it violates. In
today’s era of technology and 140 character statements, Champion
demonstrates his expertise by being succinct yet thorough, without
being verbose or redundant.
His students, who are perhaps groaning at thought of
constitutional law, begin to enjoy the subject after they study how it
applies to one’s rights to participate in sports, and the due process
that applies to them. Students return to take as many of his classes
as possible, and sports law-loving readers return to read as many of
his books as possible.
As a person fortunate enough to have carved out a living in the
sports industry as an agent, I have garnered a true appreciation for
the intricacies, delicacies and “meat and potatoes” of the areas of
law needed to succeed in the shark-infested, competitive waters. I
tell all aspiring young sports attorneys to read and relish every
possible article, book, treatise, website, or cartoon involving the
subject. The best part about Champion’s book is that it is one-stop-
shopping for this type of thoughtful research. Cheers to Walter for
his passion, work ethic and knowledge.

Peter Schaffer has negotiated over $1 billion dollars’ worth of

NFL contracts, and has been named “Top 5 NFL agents” by Street
and Smith’s sports journal. He has written a national column for
the Washington Post and has appeared on ABC Nightly News, 60
Minutes, and HBO Real Sports. Schaffer has represented Pro
Football hall of fame players Barry Sanders, Jerome Bettis, and
William Roaf. He currently represents NFL players such as Pro
bowlers Joe Thomas, Adam Jones, and CJ Anderson. Schaffer is
the founder and President of Authentic Athletix.
 OUTLINE
—————
Preface
Acknowledgments
Introduction to Fifth Edition
Table of Cases
Chapter 1. Contracts 1
A. Formation
1. Offer
2. Acceptance
3. Interpretation
B. Standard Player’s Contract
C. Specialty Clauses
1. Option
2. Reserve
3. No-Cut
D. Collateral Agreements
E. Terminations
F. Assignments
G. Remedies
H. Defenses
1. Unclean Hands
2. Unconscionability
3. Mutuality
I. Insurance and Pensions
J. Coaching Contracts
K. Negotiating the Contract
Chapter 2. Agents 37
A. Background
B. Standard Representation Agreements
C. Duties
D. Conflicts of Interest
E. Registration of Agents
1. State Legislation
2. Union Regulations
3. NCAA-Based
F. Criminal Liability
G. Representing the Athlete
H. Tortious Interference with Contractual Relations
Chapter 3. Financial Considerations 55
A. Taxation
1. Gross Income
2. Planning
B. Assignment of Income
C. Deferrals
1. By Contract
2. By Pension Plans
3. Substantially Non-Vested Property
D. Tax-Sheltered Investments
E. Incorporation
F. Financial Planning
1. Preservation of Capital
2. Tax Minimization
3. Protection Against Risk
4. Estate Planning
Chapter 4. Labor Law 69
A. National Labor Relations Act
B. Unions and Management
C. Collective Bargaining Generally
D. The Collective Bargaining Agreement
E. Concerted Actions
1. Strikes
2. Lockouts
F. Arbitration and Mediation
1. Grievance
2. Salary
G. Preemption Suits
Chapter 5. Antitrust 107
A. Generally
B. Exemptions
1. Baseball
2. Labor Exemption
3. NFL Exemptions
4. Non-Statutory Labor Exemption
C. Player Restraints
D. Franchise Movement
E. League Versus League
F. TV Packaging
G. Cable TV
H. Amateur Sports
I. Miscellaneous
Chapter 6. Torts 145
A. Negligence
1. Duty of Care
2. Standard of Care
3. Breach of Duty
4. Proximate Cause
5. Damages
B. Medical Malpractice
1. Duty of Care
2. Duty to Disclose and Informed
Consent
3. Fraudulent Concealment
4. Team Physicians
5. Failure to Refer and Vicarious
Liability
C. Product’s Liability
D. Strict Liability
E. Warranty Liability
F. Facility Liability
1. Status of Injured Party
2. Invitees
3. Minors
4. Unreasonably Hazardous Conditions
5. Design, Construction, Maintenance and Repair
G. Professional Sports
Chapter 7. Participant Injuries 197
A. Generally
B. Violation of Safety Rules
C. Unsportsmanlike Conduct
D. Professional Sports
E. Contact Sports
F. Third Persons
Chapter 8. Spectator Injuries 211
A. Generally
B. Baseball
C. Golf
D. Hockey, Car Races and Wrestling
E. Minors
F. Facilities
Chapter 9. School Liability 229
A. Negligence
B. Vicarious Liability
C. Failure to Warn
D. Failure to Instruct
E. Failure to Hire Competent Coaches
F. Failure to Properly Supervise
G. Failure to Maintain Equipment and
Facilities
Chapter 10. Coach Liability 245
A. Generally
B. Qualifications
C. Preparation of Participants
D. Supervision
Chapter 11. Referee Liability 259
A. Duty to Enforce Rules
B. Duty to Protect Participants
C. Duty to Warn
D. Anticipating Reasonably Foreseeable
Dangers
E. Failure to Control Game
Chapter 12. Defamation 269
A. Sportswriters
B. Per Se
C. Public Figures
D. Rule of Repose
E. Invasion of Privacy
F. Defenses
Chapter 13. Tort Defenses 299
A. Generally
B. Assumption of Risk
1. Primary Assumption of Risk
2. Expressed
3. Implied
4. Jockeys and Car Racers
5. Skiing, Golf and Baseball
6. Minors
C. Contributory Negligence
D. Comparative Negligence
E. Warnings
F. Waivers
1. Foot Races
2. Car Races
3. Minors
G. Sovereign Immunity
1. Discretionary Acts
2. Policy Considerations
H. Charitable Immunity
I. Recreational Use Statutes
Chapter 14. Workers’ Compensation 343
A. Professional Sports
B. Collegiate Sports
C. Employer-Based Sports
D. Non-Participants
Chapter 15. Criminal Liability 351
A. Violence in Sports
B. Criminal Action Generally
C. Inherently Violent Sports
D. Battery
E. The Canadian Approach
Chapter 16. Amateur Sports 363
A. Generally
B. Administration
C. Status of Athlete
D. Rule-Making
E. NCAA
Chapter 17. Eligibility 377
A. Generally
B. Scope of Eligibility Rules
C. Participation as a Right or Privilege
D. State Actors
E. Due Process and Equal Protection
F. Types of Rules
1. Red Shirting
2. No Transfer Rules
3. Anti-Marriage
4. “No-Agent” Rule
G. Proposition 48 and Progeny
H. No Pass, No Play Statutes
Chapter 18. The Disabled Athlete 403
A. Generally
B. Eligibility to Participate
C. Section 504 of the Rehabilitation Act
D. Americans with Disabilities Act
Chapter 19. College Scholarships 419
A. The Nature of Scholarships
B. Scholarships as Contracts
C. Workers’ Compensation
D. Taxation
E. Employee Status
Chapter 20. International Sports 433
A. Olympics
B. Olympic and Amateur Sports Act
C. Boycotts
D. Drug Testing
E. Court of Arbitration for Sport
Chapter 21. Discipline and Penalties 453
A. Power to Discipline and Penalize
Generally
B. NCAA
1. Power to Sanction
2. Death Penalty
C. High School Sports
D. Professional Sports
Chapter 22. Drug Testing 473
A. Generally
B. Professional Sports
C. Amateur Sports
D. Right of Privacy
E. Reasonableness of Search
F. Due Process and Equal Protection
Chapter 23. Civil Rights 495
A. Generally
1. Title VII
2. Title II
3. Section 1981
4. Section 1983
B. State and City Civil and Human Rights
Act
C. Racism in Sports
1. Discrimination Generally
2. Sexual Discrimination and
Harassment
3. Native American Team Nicknames and Mascots
Chapter 24. Sex Discrimination 509
A. Discrimination Generally
B. Separate but Equal
C. Contact and Non-Contact Sports
D. Title IX
1. Application
2. Grove City and Civil Rights Restoration Act of 1987
E. Equal Protection
F. State ERA’s
Chapter 25. Intellectual Property 529
A. Generally
B. The Nature of Marketing
C. Athletes as Entertainers
D. Patents
E. Copyrights
F. Trademarks
G. Trade Dress
H. Trade Secrets
I. Domain Names
Appendices
Index
 TABLE OF CASES
References are to Pages

—————
A.K.W. ex rel. Stewart v. Easton Bell Sports, Inc., 182
ACI Int’l, Inc. v. Adidas-Salomon AG, 541
AFL v. NFL, 131
Agnew v. NCAA, 135
Ahmed (Bobby), Regina v., 361
Akins v. Glens Falls City School District, 190
Alabama Football, Inc. v. Greenwood, 9
Alabama Football, Inc. v. Stabler, 9
Ali v. Playgirl, Inc., 289
Allen v. Dover Co-Recreational Softball League, 147
Already LLC v. Nike, Inc., 542
Alwin v. St. Paul Saints Baseball Club, 217
American League of Professional Baseball Clubs, 69
American Needle v. New Orleans Louisiana Saints, 142
American Needle, Inc. v. NFL, 542
Anderson v. Branch Banking and Trust Co., 57
Anderson v. IOC, 452
Andrew D., In re, 359
Apilado v. North American Gay Amateur Alliance, 512
Arbitration of Terrell Owens, In re, 466
Arendas ex rel. Arendas v. North Carolina High School Athletic Ass’n, Inc., 378
Armstrong v. Tygart, 484, 485
Arnold v. City of Cedar Rapids, 214
Arrington v. NCAA, 371
Ashcroft v. Calder Race Course, Inc., 308
Associated Students, Inc. of California State University-Sacramento v. NCAA, 398
Atlanta Falcons Football Club, LLC v. National Football League Player’s Ass’n, 346
Atlanta v. Merritt, 191, 227
Atwater v. NFLPA, 46
Australian Olympic Comm. v. Federation Internationale de Bobsleigh et de Toboganning,
446
Averill v. Luttrell, 197
Badgett ex rel. Badgett v. Alabama High School Athletic Ass’n, 407
Bailey v. Truby, 401
Baker v. Mid Maine Medical Center, 223
Banks v. NCAA, 395
Barillari v. Ski Shawnee, Inc., 312
Barron v. PGA Tour, Inc., 486
Bartmess, State, ex rel. v. Board of Trustees of School Dist. No. 1, 401
Bayless v. Philadelphia National League Club, 344
Beahn v. N.Y. Yankees Partnership, 151
Becker v. Litzenberger, 201
Beer v. La Crosse County Agricultural Soc., 329
Begley v. Corporation of Mercer University, 423, 426
Belik v. Carlson Travel Group, Inc., 318
Bell v. Dean, 311
Bell v. Lone Oak Independent School District, 385, 394
Benejam v. Detroit Tigers, 216
Bentley v. Cleveland Browns Football Co., 15
Besler v. Board of Edcn. of West Windsor-Plainsboro Reg’l Sch. Dist., 248
Blair v. Washington State University, 526
Blancher v. Metropolitan Dade County, 194, 209
Bloom v. NCAA, 368
Board of Education of Independent School Dist. No. 92 v. Earls, 490
Board of Education v. New Jersey State Interscholastic Ath. Ass’n, 393
Board of Trustees of the University of Arkansas v. Professional Therapy Services, 538
Bonds, United States v., 477
Bourque v. Duplechin, 197, 202, 300
Boyd v. Bert Bell/Pete Rozelle NFL Retirement Plan, 26
Boyd v. Board of Directors of McGehee School District, 381
Boyd v. Feather River Community College Dist., 501
Brady v. NFL, 77
Brahatcek v. Millard School District, 251
Brenden v. Independent School District, 523
Brentwood Academy v. Tennessee Secondary School Athletic Association, 383
Brewer v. Memphis Pub. Co., 282
Brocail v. Detroit Tigers Inc., 102
Brooks v. Paige, 277
Brosko v. Hetherington, 226
Brown v. County of Nassau, 417
Brown v. Electronic Arts, Inc., 542
Brown v. Pro Football, Inc., 118, 125, 144
Bryant v. NFL, 466
Buday v. New York Yankees Partnership, 536
Bukowski v. Clarkson University, 304
Butterworth v. National League of Professional Baseball Clubs, 118
C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P.,
535
C.H. v. Los Lunas Schools Bd. of Edn., 232
Camacho v. Major League Baseball, 49
Carabba v. Anacortes School District, 208, 239, 259, 265, 268
Carmichael v. Galbraith, 512
Carroll v. New Orleans Saints, 345
CBS Corp. v. FCC, 455
Centennial Turf Club, Inc., 70
Chicago Bears Football Club, Inc. v. Haynes, 95
Churilla v. School District, 334
Chuy v. Philadelphia Eagles Football Club, 176, 282
Clarett v. NFL, 102, 125
Clark v. Goshen Sunday Morning Softball League, 215
Clemens v. McNamee, 483
Clemens, United States v., 483
Cleveland, City of v. Swiecicki, 353
Cohen v. Sterling Mets, L.P., 219
College Sports Council v. Dep’t of Education, 519
Collegiate Licensing Co. v. American Casualty Co. of Reading, 24
Colorado Seminary v. NCAA, 380
Colucci v. Callaway Golf Co., 534
Combs v. Georgetown College, 190
Comprehensive Drug Testing, Inc., United States v., 478
Connecticut Professional Sports Corp. v. Heyman, 19
Coomer v. Kansas City Royals Baseball Corp., 221
Corona v. State, 267
Costello v. University of North Carolina at Greensboro, 414, 415
Cottrell v. NCAA, 285
Craig v. Boren, 524
Creel v. L & L, Inc., 341
Crocker v. Tennessee Secondary School Athletic Association, 407
Curcio v. Watervliet City School District, 232
Cureton v. NCAA, 399
Cutrone v. Monarch Holding Corp., 147
D’Agostino v. Easton Sports, Inc., 181
Dalton v. Jones, 217
Dambrot v. Central Michigan University, 501
Davidson v. University of North Carolina at Chapel Hill, 146
Davis v. NCAA, 370
Debassio v. Moscato, 154
DeFrantz v. United States Olympic Committee, 441
Dempsey v. Time Inc., 287
Dent v. Texas Rangers, 214
Detroit Football Co. v. Robinson, 1
Detroit Lions, Inc. v. Argovitz, 37, 40
Dimeo v. Griffin, 474
DiPietro v. Farmington Sports Arena, LLC, 194
Dodson v. Arkansas Activities Association, 524
Doe v. Marshall, 411
Doe v. TCI Cablevision of Missouri, 290
Doody v. Evans, 201
Doyle v. Bowdoin College, 331
Draughon v. Harnett County Board of Education, 235, 256
Duckett v. Williams, 38
Duffy v. Midlothian Country Club, 222
Edward C. v. Albuquerque, 220
EEOC v. The Chicago Club, 496
Eller v. National Football League Players Ass’n, 78
Everett v. Bucky Warren, Inc., 185, 248
Fagan v. Summers, 239
Falls v. Sporting News Publ. Co., 295
Farmer v. Bd. of Regents of the Univ. Sys. of Ga., 387
Fawcett Publications, Inc. v. Morris, 278
Federal Baseball Club, Inc. v. National League of Professional Baseball Clubs, 69, 116
Fila U.S.A. v. Kim, 539
Filer v. Adams, 304
Finebaum v. Coulter, 284
Finneran, People v., 354
Flood v. Kuhn, 116, 117, 120
Florida High School Activities Association, Inc. v. Bradshaw, 383
Fontaine v. Boyd, 312
Ford Motor Co. v. Kahne, 4
Foronda ex rel. Estate of Foronda v. Hawaii International Boxing Club, 306
Fraley v. Griffin, 163
Friedman v. Houston Sports Association, 227, 320
Front Line Promotions and Marketing, Inc. v. Mayweather Promotions, LLC, 2
Garber v. Office of the Com’r of Baseball, 121
Gardner v. Holifield, 173
Garvey v. Roberts, 78
Gary v. Party Time Co., 319
Gaspard v. Grain Dealers Mut. Ins. Co., 198, 315
Geiersbach v. Frieje, 152
Gennrich v. Zürich American Ins. Co., 154
Gertz v. Robert Welch, Inc., 296
Gibbs-Alfano v. The Ossining Boat & Canoe Club, Inc., 498
Giuliani v. Duke University, 3
Givens v. Tennessee Football, Inc., 104
Goff v. Clarke, 358
Golden v. Milford Exempted Village School District Bd. of Edn., 232
Goldman v. Young Israel of Woodmere, 241
Goosen v. Commissioner, 56
Grady v. Green Acres, Inc., 304
Grant v. Bert Bell/Pete Rozelle NFL Retirement Plan, 26
Green v. Arizona Cardinals Football Club LLC, 105
Green v. Schutt Sports Mfg. Co., 181
Green, Regina v., 361
Greer v. Richardson Independent School Dist., 416
Griffin High School v. Illinois High School Association, 383
Griggas v. Clauson, 197
Grillier v. CSMG Sports, Ltd., 52
Grisim v. TapeMark Charity Pro-Am Golf Tournament, 222
Grove City College v. Bell, 521
Grube v. Bethlehem Area School District, 405, 409
Gulf South Conference v. Boyd, 379, 423
Gvillo v. DeCamp Junction, Inc., 200
H.R. ex rel. S.R. v. Minnesota State High School League, 394
Hackbart v. Cincinnati Bengals, Inc., 203
Haffer v. Temple University, 522
Hague v. Summit Acres Skilled & Rehab., 306
Hall v. University of Minnesota, 380
Hampton v. Orleans Parish School Board, 239
Harris v. Five Point Mission-Camp Olmsted, 194
Hart v. Electronic Arts, Inc., 292
Harting v. Dayton Dragons Professional Baseball Club, LLC, 218
Harvey Barnett, Inc. v. Shidler, 546
Hawley v. Binghamton Mets Baseball Club, Inc., 215
Hemphill v. Sayers, 252
Hennigan v. Chargers Football Co., 11
Herman v. Lifeplex, LLC, 303
Hewitt, State ex. rel. v. Kerr, 97
Hill v. NCAA (Hill I), 489, 491
Hill v. NCAA (Hill II), 489, 491
Hills v. Bridgeview Little League Assn., 147
Hlywa v. Liberty Park of America, 201
Hobby v. City of Durham, 216
Home Box Office v. Champs of New Haven, Inc., 535
Horvath v. Ish, 156, 311
Hoshijo, State v., 235
Houston McLane Co. v. Connecticut General Life Ins. Co., 22
Hyde v. North Carolina Cent. Sch. Dist., 315
Illinois High Sch. Ass’n v. GTE Vantage Inc., 540
Indianapolis Colts v. Metropolitan Baltimore Football Club, 538
Isler v. New Mexico Activities Ass’n, 390
J & J Sports Productions, Inc. v. Allen, 536
Jackson v. Birmingham Bd. of Educ., 519
Jani v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 26
Jaworski v. Kiernan, 263, 264
Jenkins v. NCAA, 139
Johnson v. Amerus Life Ins. Co., 21
Johnson v. Green Bay Packers, Inc., 7
Johnston v. Time, Inc., 287
Jones v. Dirty World Entertainment Recordings, LLC, 273
Jones v. Three Rivers Management Corporation, 213, 314
Jones v. University of Iowa, 511
Jones v. West Virginia State Board of Education, 385
Jozewicz v. GGT Enterprises, LLC, 182
Kabella v. Bouschelle, 205
Kalen v. Fox, 200
Kampmeier v. Nyquist, 405
Kansas City Chiefs Football v. Allen, 98
Kansas City Royals Baseball Corp. v. MLBPA, 91
Karas v. Strevell, 207
Kavanagh v. Trustees of Boston University, 234
Keller v. Electronic Arts, Inc., 137, 292
Keller v. Mols, 198, 206
Kendrick v. Ed’s Beach Service, Inc., 318
Kingray, Inc. v. NBA, 112
Kirby v. Loyalsock Tp. School Dist., 388
Kircos v. Goodyear Tire and Rubber Co., 329
Kite v. Marshall, 387
Kivisto v. NFL Players Ass’n, 46
Kleinknecht v. Gettysburg College, 146, 157
Koffman v. Garnett, 257
Krueger v. San Francisco Forty Niners, 167
Laffin v. NFL, 14
Laing v. Minnesota Vikings Football Club, Inc., 141
Lampe v. Allstate Ins. Co., 23
Lansdowne Swim Club, United States v., 498
Larkin v. United States, 217
Larson v. Cuba Rushford Cent. Sch. Dist., 240
Laumann v. National Hockey League, 120
Leach v. Texas Tech University, 336
Leavell v. Commissioner, 63
Lee v. Orion Management Solutions, Inc., 149
Leja v. Community Unit School Dist. 300, 243
Liddell v. Comdot Internet Services Private, Ltd., 548
Limones v. School District of Lee County, 233
Lincoln Hockey, LLC v. Semin, 17
Lindland v. U.S. Wrestling Ass’n, Inc., 94
Lizardo v. Board of Education of the City of New York, 241
Los Angeles Memorial Coliseum Commission v. NFL, 111, 129
Los Angeles Rams v. Cannon, 1
Loughran v. The Phillies, 217
Ludwig v. Dick Martin Sports, Inc., 178
Mackey v. NFL, 108, 122
Magee v. Covington County Sch. Dist., 165
Major League Baseball Players Ass’n v. Garvey, 79
Major League Baseball Properties, Inc. v. Salvino, Inc., 545
Major League Baseball v. Butterworth, 119
Major League Baseball v. Crist, 119
Maki, Regina v., 361
Mangan v. Engineer’s Country Club, Inc., 313
Mann v. Palmerton Area Sch. Dist., 155
Mantovani v. Yale University, 219
March Madness Athletic Ass’n, LLC v. Netfire, Inc., 540
Margarita v. State Athletic Commission, 454
Marshall v. NFL, 543
Mason v. Board of Education, 411
Matson v. Oregon Arena Corp., 195
Matthews v. NFLMC, 346
Mauro v. Trenton Thunder Baseball Club, 218
Maynard v. Pelican Leisure Sports, Inc., 182
McAdoo v. University of North Carolina at Chapel Hill, 397
McBryde v. Ritenour Sch. Dist., 32
McCollin v. Roman Catholic Archdiocese of New York, 232
McCourt v. California Sports, Inc., 123
McFadden v. Grasmick, 407, 415
McFayden v. Duke University, 500
McGarry v. University of San Diego, 286
McKinley v. Arizona Cardinals, 347
Melton v. Ousley, 272
Mercer v. Duke University, 518
Metropolitan Sports Facilities Commission v. Minnesota Twins Partnership, 80
Miami Dolphins, Ltd. v. Newson, 346
Midwest Employers Casualty Co. v. Harpole, 267
Mike Vaughn Custom Sports, Inc. v. Piku, 545
Milkovich v. Lorain Journal Co., 276
Miller ex rel. Miller v. Liberty Park Joint Venture, LLC, 191
Miller v. California Speedway Corp., 415
Miller v. Holiday Valley, Inc., 312
Miller v. Walters, 52
Minnesota Muskies, Inc. v. Hudson, 13, 19
Minnesota Twins Partnership v. Minnesota, 118
Mississippi High School Activities Ass’n, Inc. v. R.T., 365
Mitre Sports Intern. Ltd. v. Home Box Office, Inc., 286
Mobley v. Madison Square Garden, L.P., 8
Mogabgab v. Orleans Parish School Board, 245
Mohr v. St. Paul Fire & Marine Ins. Co., 186
Molinas v. National Basketball Association, 8, 461
Molinas v. Podoloff, 8, 461
Montefusco v. ESPN, Inc., 269
Montgomery v. Ohio State University, 165
Moore v. Hoffman, 312
Morsani v. Major League Baseball, 119
Munchak Corp. v. Cunningham, 12
Munday v. Churchill Downs, Inc., 344
Murphy v. Steeplechase Amusement Company, 145
Nabozny v. Barnhill, 146, 197, 200, 202, 300
Nassau Precision Casting Co., Inc. v. Acushnet Co., Inc., 532
Nathans v. Offerman, 359
National Football Scouting v. Rang, 547
NBA v. Motorola, Inc., 535
NBA v. National Basketball Players Ass’n., 465
NCAA Student Athlete Names & Likeness Litigation, In re, 137, 138, 291
NCAA v. Board of Regents of the University of Oklahoma, 111, 132, 134, 138
NCAA v. Christie, 462
NCAA v. Corbett, 458
NCAA v. Lasege, 367
NCAA v. Smith, 517
NCAA v. Tarkanian, 382, 455, 493
NCAA v. Yeo, 368
Neal v. Team Kalamazoo, LLC, 218
Neeld v. National Hockey League, 409
Netherland Antilles Olympic Committee v. IAAF, 451
New York Football Giants, Inc. v. Los Angeles Chargers Football Club, Inc., 19
New York Times Co. v. Sullivan, 282, 288
NFL Management Council, 70
NFL Players Ass’n v. NFL, 471
NFL Properties, Inc. v. Wichita Falls Sportswear, Inc., 538
NFL v. Bonner, 549
NFL v. EE Nation, 548
NFL v. Fireman’s Insurance Co., 25
NFL v. Governor of Delaware, 142
NFL v. Rondor, Inc., 535
NFLMC v. NFLPA, 472
NFLP Concussion Injury Litig., In re, 155
NFLPA v. NFL Management Council, 346
NFLPA v. NLRB, 75
Niemczyk v. Burleson, 199
North American Soccer League v. NFL, 141
North American Soccer League v. NLRB, 73
Novak v. Lamar Ins. Co., 198
Nussbaumer v. Time, Inc., 283, 293
Nydegger v. Don Bosco Preparatory High School, 255
O’Bannon v. NCAA, 137, 140, 374, 420
O’Bannon v. NFL, 138
O’Connell v. New Jersey Sports & Exposition Authority and the New York Giants, 189
O’Halloran v. University of Washington, 489
Ordway v. Superior Court, 307
Oswald v. Township High School District, 202
Outlaw v. Bituminous Ins. Co., 317
Pacquiao v. Mayweather, 275
Palmer v. Kansas City Chiefs Football Club, 344
Pape v. State, 260, 264
Pasquel v. Owen, 4
Patch v. Hillerich & Bradsby Co., 186
Pebble Beach Co. v. Tour 18 I, Ltd., 544
Pennsylvania Manufacturer’s Association Insurance Co. v. Penn State, 24
Pennsylvania v. NCAA, 112
Peters v. Herrin, Cmty. Unit. Sch. Dist. No.4, 338, 339
PGA Tour, Inc. v. Martin, 412
Phelan v. Huntington Tri-Village Little League, Inc., 297
Philadelphia Ball Club v. Lajoie, 7, 16
Philippou v. Baldwin Union Free Sch. Dist., 195
Phillips v. Selig, 71
Piazza v. Major League Baseball, 117
Pickel v. Springfield Stallions, Inc., 212
Pippen v. NBC Universal Media, LLC, 276
Pistorius v. IAAF, 408, 450
Poole v. South Plainfield Board of Education, 406, 409
Powell v. NFL, 124
Pressler v. Duke University, 33
Price v. Time, 271
Procopio v. Town of Saugerties, 217
Pro-Football, Inc. v. Harjo, 540
Prouncha v. Vermont Motocross Ass’n Inc., 330
Pryor v. Iberia Parish Sch. Bd., 193
Radovich v. NFL, 117, 131
Ramsey v. Gamber, 161
Rasado v. Doe, 220
Ray v. Hudson Valley Stadium Corp., 217
Regan v. Mutual of Omaha Ins. Co., 236
Regents of University of California v. ABC, 133
Rensing v. Indiana State University Board of Trustees, 424, 426, 427, 430
Richardson, Estate of v. Bowling Green State Univ., 157
Ridell, Inc. v. Schutt Sports, Inc., 532
Right Field Rooftops, LLC v. Chicago Baseball Holdings, LLC, 5
Rispoli v. Long Beach Union Free School Dist., 265
Robillard v. P & R Racetracks, Inc., 309
Robinson v. Downs, 236
Rochford v. Woodloch Pines, Inc., 314
Rock v. NCAA, 136
Rodgers v. Georgia Tech Athletic Ass’n, 31
Rosen v. LTV Recreational Development, Inc., 321, 325
Roundtree v. Boise Baseball, LLC, 221
Rudzinski v. BB, 154
Rung v. Pittsburg Assocs., LP, 151
Russell v. NCAA, 138
Rutherford v. Talisker Canyons Fin. Co., LLC, 331
S.S. v. Whitesboro Cent. Sch. Dist., 405
Salerno v. American League of Professional Baseball Clubs, 116
San Francisco Seals, Ltd. v. NHL, 128
San Jose, City of v. Office of the Commissioner of Baseball, 120
Sanchez v. Candia Woods Golf Links, 313
Sanchez v. Hillerich & Bradsby Co., 147
Sanders v. Madison Square Garden, L.P., 506
Sandholm v. Kuecker, 272
Schaill v. Tippecanoe County School Corporation, 384, 489, 491, 493
Scheff v. Homestretch, Inc., 323
Schentzel v. Philadelphia National League Club, 213
Schlobohm v. Spa Petite, Inc., 325
Schwilm v. Pennsylvania Sports, 224
Sciarrotta v. Global Spectrum, 225
Score Group, Inc. v. Dad’s Kid Corp., 535
Scott v. News-Herald, 288, 294
Scott v. Oklahoma Secondary School Activities Ass’n, 390
Scott v. Workmen’s Compensation Appeal Board, 349
Seal-Flex v. Athletic Track & Court Construction, 535
SEC v. Wright, 46
Sellers v. Rudert, 336
Seminole County School Bd. v. Downey, 392
Serrell v. Connetquot Cent. School Dist. of Islip, 231
Seymour v. New Bremen Speedway, Inc., 309, 329
Shain v. Racine Raiders Football Club, Inc., 318
Shivers v. Elwood Union Free Sch. Dist., 302
Shoemaker v. Handel, 473, 492
Shubert, United States v., 117
Simmons v. Sangerties Cent. Sch. Dist., 241
Simms v. Jones, 14
Sisson v. Virginia High School League, Inc., 393
Smith v. IMG Worldwide, Inc., 44
Smith v. Pro Football, Inc., 127
Socia v. Pacers Basketball Corp., 153
Sollami v. Eaton, 186
South Shore Baseball, LLC v. DeJesus, 221
Southeastern Community College v. Davis, 406
Spahn v. Julian Messner, Inc., 289
Sparks v. Sterling Doubleday Enterprises, LP, 216
Sports Authority v. Prime Hospitality Corp., 539
Sprewell v. NYP Holdings, Inc., 279
Spring Branch I.S.D. v. Stamos, 381, 387, 401
St. Louis Convention & Visitors Commission v. NFL, 129
State Compensation Insurance Fund v. Industrial Commission, 427
Stehn v. Bernarr McFadden Foundations, Inc., 249
Steinberg Moorad & Dunn Inc., a California Corporation v. Dunn, 51
Steines v. Ohio High School Ath. Ass’n., 408
Stelluti v. Casapenn Enterprises, LLC, 324, 327
Stepien v. Franklin, 294
Stirgus v. St. John the Baptist Parish School Board, 236
Stouter v. Smithtown Central School Dist., 496
Streeter v. Oakland Raiders, 95
Stringer v. Minnesota Vikings Football Club, LLC, 149
Strock v. USA Cycling, Inc., 170
Sullivan v. University Interscholastic League, 387, 393
Tavernier v. Maes, 198
Taylor Made Golf Co., Inc. v. Carsten Sports, Ltd., 545
Taylor Made Golf Co., Inc. v. Trend Precision Golf, Inc., 545
Taylor v. Wake Forest University, 422, 426, 428
Teixiera v. New Britain Baseball Club, Inc., 218
Theiler v. Ventura County Community College Dist., 389
Thomas v. Barlow, 198
Thomas v. Chicago Board of Education, 253
Thomka v. Massachusetts Interscholastic Athletic Ass’n, Inc., 527
Thompson v. Park River Corp., 258
Three Blind Mice Designs v. Cyrk, Inc., 538
Thurmond v. Prince William Professional Baseball Club Inc., 217
Tiemann v. Independent School District, 242
Tiffany v. Arizona Interscholastic Association, Inc., 381, 389
Tillman v. New Orleans Saints, 7
Time Warner Sports Merchandising v. Chicagoland Processing Corp., 539
Time, Inc. v. Firestone, 282
Tone v. Song Mountain Ski Center, 312
Toolson v. New York Yankees, 117
Toone v. Adams, 208
Toscano v. PGA Tour, Inc., 111
Tose v. First Pennsylvania Bank, N.A., 142
Turner v. Mandalay Sports Entertainment, LLC, 219
U.S. Olympic Committee v. Ruckman, 439
UCF Athletics Ass’n, Inc. v. Plancher, 336
Ulrich v. Bronx House Comm. Center, 150
University of Denver v. Nemeth, 426, 430
University of Pittsburgh v. Champion Products, 538
USAD v. Merritt, 447
USFL v. NFL, 132
Valdes v. Optimist Club of Suniland, Inc., 181
Van Horn v. Industrial Accident Commission, 426
Vendrell v. School District, 252
Vernen’s v. Wang, 213
Vernonia School District 47J v. Acton, 490, 491, 492, 494
Vilma v. Goodell, 275
Vincennes University v. Sparks, 33
VKK Corp. v. NFL, 130
W.L.D. v. Kentucky High School Athletic Ass’n, 392
Wagenblast v. Odessa School District, 323
Walters, United States v., 135
Ward v. Jackson State University, 497
Ward v. Michigan State University, 335
Ward v. Retirement Bd. of Bert Bell/Pete Rozelle NFL Retirement Plan, 26
Washington v. National Football League, 138
Webb, United States v., 434
Weinbergen v. Solomon Schechter School of, Westminister, 303
Welch v. Dunsmuir Joint Union High School District, 176
West Virginia Secondary School Activity Com’n, State ex. rel. v. Webster, 378
White v. Averill Park Central School District, 231
White v. NFL, 11, 72, 80, 81, 90, 127, 468
Whitfield v. Cox, 225
Wichard v. Suggs, 97
Wilkinson v. Hartford Accident and Indemnity Company, 192, 255
Williams v. Cox Enterprises, Inc., 328
Williams v. NFL, 102, 487
Wilson v. Daily Gazette Co., 284
Wood v. NBA, 111, 124
Woodman v. Kera, LLC, 331
Worldwide Basketball & Sports Tours, Inc. v. NCAA, 110
Woy v. Turner, 282
Wright City Public Schools v. Oklahoma Secondary School Activities Ass’n, 378
Wright v. Columbia University, 410
Yonkers Raceway, Inc., 70
Zacchini v. Scripps-Howard Broadcasting Co., 289
Zajaczkowski v. Connecticut State Soccer Assn. Inc., 262
Zinn v. Parrish, 37, 39
SPORTS LAW
IN A NUTSHELL®
FIFTH EDITION
 1

CHAPTER 1
CONTRACTS
A. FORMATION
A valid contract is formed only if both parties intend the act of
signing to be the last act in the formation of a binding contract. In
evaluating contract validity, first identify the offeror and the offeree
and then ascertain whether there was a proper acceptance. If the
player’s response includes a variance, it is a counter-offer.
In earlier versions of the contract between players and
management, the wording of the contract was such that the
commissioner’s signature in approving the agreement was a
condition precedent to the formation of a binding contract. Without
that approval the player’s signature was merely a counter-offer. The
failure to obtain the commissioner’s signature was deemed a
material breach of the agreement pursuant to the contractual
language of the contract. Los Angeles Rams v. Cannon, 185 F.Supp.
717 (S.D.Cal.1960). Without the commissioner’s signature, the
player’s signing was a revocable offer. Detroit Football Co. v.
Robinson, 186 F.Supp. 933 (E.D.La.1960).
World boxing champion Floyd Mayweather, Jr., moved for partial
summary judgment on breach of contract claims brought against
him by two marketing companies after allegedly entering into a
deal requiring Mayweather to appear at an event during the NBA
All-Star Weekend in New Orleans

2
which Mayweather failed to show. Front Line Promotions &
Marketing agreed to secure Mayweather, and signed a deal with a
woman who worked for Mayweather Promotions, LLC, and
purported to be the boxer’s talent representative. The court
concluded that there was a genuine issue of fact as to whether the
woman who purported to be the boxer’s talent representative had
the actual authority to contract appearances on his behalf. Front
Line Promotions and Marketing, Inc. v. Mayweather Promotions,
LLC, 2009 WL 916576 (E.D. La.), part. sum. j. gr. 2009 WL
1108891 (E.D. La.).
Andrew Giuliani, son of the former Mayor of New York and a
student-athlete at Duke University, sued the university and its golf
coach, alleging that his dismissal from the golf team and the
revocation of his access to the University’s golf facilities reached a
contract. The student alleged that he was recruited to play varsity
golf at the University and accepted the offer based on a promise
from the coach that he would be on the team and have access to the
University’s training facilities. He further contended that the
coaches’ promise constituted an offer, and that his agreement to
attend the University was an acceptance of the offer, which created
a legally binding contract, that was memorialized in several student
handbooks. The court held that the student’s breach of contract
claims failed because he did not show the existence of a valid and
binding contract. In particular, the magistrate found that the student
policy manuals did not create a binding contract since they could
be

unilaterally altered at any time. The student’s claims for breach of

the covenant of good faith and fair dealing and tortious interference
with the contract similarly failed because there was no contract.
Giuliani v. Duke Univ., 2009 WL 1408869 (M.D.N.C.), j. mot. pl.
2010 WL 1408869 (M.D.N.C.), aff’d 2010 WL 1292321
(M.D.N.C.).
1. OFFER
A player’s contract is drafted by the team, and it is the team that
seeks out the services of the player. The team makes the offer and
the player expresses his acceptance by signing the contract.
However, if the signing is not accompanied by consideration and a
withdrawal is advanced to the team before an acceptance, then the
signing is an authentication of a revocable offer as opposed to the
formation of a binding contract. It is the intent of the parties that
will determine this conflict.
2. ACCEPTANCE
The problem that arises with an acceptance is the timeliness of
the alleged acceptance. Acceptance is indicated by any showing
that expresses the player’s willingness to be bound by the offer’s
exact terms.
3. INTERPRETATION
In determining the meaning of an indefinite or ambiguous term in
a contract, the language should be read in light of all the
surrounding circumstances. The interpretation that is placed on a
contract by the parties prior to the time that it becomes a

matter of controversy is entitled to great, if not controlling

influence in ascertaining the intent and understanding of the
parties.
 In Pasquel v. Owen, 186 F.2d 263 (8th Cir.1950), the ambiguous
term in question was “player-manager.” The defendant, Mickey
Owen, a major league baseball player, abandoned his contract to
play baseball in the Mexican League when he was relieved of his
duties as manager but still continued as a player. The question is
whether the removal of Owen as either a player or a manager
constituted a breach of contract by one party that was of such a
character as to warrant abandonment of the contract by the other
party. But to permit abandonment, the failure to perform by the
defaulting party must go to the substance of the contract. In this
case, although the contract referred to defendant as a “player-
manager,” it did not indicate at what time he was to function as
either a player or a manager or both. Therefore, the act of relieving
Owen as a manager but continuing to pay his whole salary resulted
in no financial loss to the player and thus did not constitute a
breach of contract sufficient to warrant the player’s abandonment
of the contract.
In Ford Motor Co. v. Kahne, 379 F.Supp.2d 857
(E.D.Mich.2005), Ford sued Kasey Kahne, a famous NASCAR
driver, alleging breach of personal services contract. In 2000,
Kahne entered into his first contract with Ford, which was to be
effective until August 2002. Kahne’s contract with Ford provided
Ford the opportunity to match any racing-

related or driving-related employment offer. On February 4, 2002,

Kahne executed a “Contract for Services” with Robert Yates
Racing, which provided that Kahne would drive exclusively for
them in NASCAR sanctioned racing series. The court found that
Ford and Kahne did not reach an agreement on all essential terms
of the personal services contract under which the driver would have
“opportunities to participate in one or more mutually acceptable
racing series with a reasonably competitive team,” and thus the
agreement was unenforceable because the contract’s clear and
unambiguous language indicated that the parties intentionally left
the meanings of “series” and “team” unexpressed.
“Bleacher Bums” and others watch Chicago Cubs’ games from
the vantage point of building rooftops near Wrigley Field. The
Cubs and the Rooftop ventures agreed to a “License Agreement”
which permitted them to continue their business of wining and
dining fans while watching the games (from a distance). Right
Field Rooftops filed a complaint on January 20, 2015, against the
Cubs stemming from the Cub’s intention to install a “jumbotron”
video board and billboard signage over right field bleachers at
Wrigley Field which would have blocked their view. The court
denied Right Field Rooftops motion for preliminary injunction.
Right Field Rooftops, LLC v. Chicago Baseball Holdings, LLC, 87
F.Supp.3d 874 (N.D. ll. 2015).

B. STANDARD PLAYER’S CONTRACT

Contracts in sports define the rights and responsibilities of the
various participants in the business of professional sports. The so-
called Standard Player’s Contract (SPK) (see Appendices), is an
employment contract which specifies the player’s rights. The SPK
will state that the player has unique skills and that the team will
control the activities of the player.
The average player has little job security. For him the SPK is a
contract of adhesion. However, the SPK can be modified if that
particular player has “juice”. “Juice” is the ability to write your
own ticket based on unique skills or rampant popularity (e.g.,
Michael Jordan). LeBron James or Tom Brady has juice; Bobby
Nobody, a free agent from Slippery Rock, does not. The more juice
a player possesses, the greater his ability to modify his SPK by
attaching standard modifications such as no-cut, no-trade, roster, or
attendance clauses. Management will usually not give their players
anything.
The SPK can be modified through collateral agreements, e.g., the
incorporation of the collective bargaining agreement (c.b.a.) and
the League’s By-Laws and Constitution into the contract.
The parol evidence rule is incorporated into the SPK. If the
agreement is written and it is their final expression then the
contract as it stands cannot be modified by other agreements or
promises. In the interpretation of ambiguous terms, the contract
will be interpreted against the writer of the contract.

Handwritten provisions will prevail over printed provisions.

Johnson v. Green Bay Packers, Inc., 272 Wis. 149, 74 N.W.2d 784
(1956).
The club’s responsibility for liability for injuries is limited by the
terms of the SPK.
There is no right by the team to demand performance of a player
for a player’s non-performance as exhibited by his jumping to
another team, however, they can obtain equitable performance by
way of injunctive relief through a contractual clause. Philadelphia
Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973 (1902).
The SPK calls for annual physical examinations. In these
examinations, the club can ascertain if the player suffered an off-
season injury. If a player passes this examination, then the club
cannot later claim that a current (under contract) injury is a result
of a previous (non-contract) injury. Tillman v. New Orleans Saints,
265 So.2d 284 (La.App. 4 Cir.1972). The player further promises to
be in “good physical condition” and to swear “loyalty” to the club.
The SPK includes a termination clause which gives the team the
right to terminate the athlete’s contract. The termination must be
“for cause,” but “for cause” could be simply that the employee no
longer fits the team’s needs. There is also a no-tampering clause
which avers that one player cannot attempt to entice another
employee to enter negotiations with another club while under
contract to a different team. The SPK demands that a copy of

the contract must be filed by the team with the office of the
league’s commissioner within 48 hours of the execution of the
contract. The wording of current SPKs contain language such that
the filing of a copy is merely a condition precedent to the execution
of the contract.
The SPK further provides that the Commissioner possesses the
ability to fine players for infractions of league rules. The
Commissioner, in his sole discretion, can expel a player for
gambling on a game’s outcome if the player is a participant in that
game. Molinas v. National Basketball Association, 190 F.Supp. 241
(S.D.N.Y.1961) and Molinas v. Podoloff, 133 N.Y.S.2d 743
(N.Y.Sup.1954).
The SPK merges all the peculiarities of contract formation into
one document that must be signed before an athlete can participate.
The SPK, since it is drawn by the team, is drawn in their favor and,
therefore, if ambiguities arise, they are interpreted against the team.
However, since the particular wording of each SPK is essential, it
must be carefully read and completely understood.
In Mobley v. Madison Square Garden, L.P., 2012 WL 2339270
(S.D.N.Y. 2012), professional basketball player Cuttino Mobley
was diagnosed with hypertrophic cardiomyopathy, a genetic
mutation which causes thickening of the wall of the heart.
However, Cuttino was medically cleared to play every year
regardless of his condition. Mobley alleges that the Knicks
attempted to use his condition to leverage concessions from the
Clippers in a proposed trade, and that his SPK was

terminated due to his physical condition. The court held that he

failed to allege sufficient facts to state a disability discrimination
claim, and since the Knicks made the deal primarily for salary cap
reasons, they decided to finalize the contract anyhow.
C. SPECIALTY CLAUSES
The more juice a player possesses, the more specialty clauses he
can add to his SPK so as to enhance it. This is where negotiation
skills come in handy; negotiation-wise, the SPK is a dead issue.
The preeminent specialty clause is the signing bonus. To secure
this bonus, a player at a minimum, must appear in training camp in
good shape and ready to play. It is not considered salary. The
employee may receive it for merely signing and not actually
playing. If he is “cut” later on, he will still keep the signing bonus.
To secure the bonus, the player must at least try to perform. Or, in
the case of a team folding before camp, the signed player must
show his willingness to perform by allowing the team to use his
good name for public relations purposes. Alabama Football, Inc. v.
Stabler, 294 Ala. 551, 319 So.2d 678 (1975) and Alabama
Football, Inc. v. Greenwood, 452 F.Supp. 1191 (W.D.Pa.1978).
On March 20, 2006, a special master ruled that the Seattle
Seahawks would have to match all of the terms in the seven-year
$49 million offer that the Minnesota Vikings made to Seahawks
All-Pro left guard Steve Hutchinson, including the term providing
that the entire contract amount would

10

become fully guaranteed if Hutchinson was not the highest paid

offensive lineman of the team. He became their transition player,
meaning that the Seahawks retained the right to match any offer.
Sixteen million of the 49 million was guaranteed, but it still
contained the “poison pill” “escalating clause”. In order for the
Seahawks to match the Vikings offer they would have to include
the clause guaranteeing the full $49 million since Seahawks tackle
Walter Jones now made more money. The Seahawks claimed that
the right to match only required to match the financial terms, not an
ancillary term like the guarantee provision. The Special Master
rejected this argument. The Seahawks declined to match (and
guarantee) the Vikings offer. Hutchinson signed with the Vikings
on March 20, 2006. Just prior to the hearing, the Seahawks
restructured Jones’ contract so that the annual average was reduced
to $6.68 million. However, the maneuver failed, since at the time of
the offer, Jones still averaged $7.5 million.
On April 26, 2007, an arbitrator concluded that San Francisco
49ers wide receiver Ashley Lelie must repay the Denver Broncos
nearly $600,000 of his rookie signing bonus. In 2002, Lelie was
drafted by the Broncos and signed a contract including a $3.3
million signing bonus. Prior to the 2006–07 season, Lelie refused
to attend off-season workouts or training camp after the Broncos
acquired a new wide receiver. The Broncos fined him $14,000 for
each day missed, eventually totaling over $300,000. The Broncos
traded Lelie to the Atlanta Falcons, but sought to recover a portion
of his signing bonus

11

and the fines. The arbitrator ruled that Lelie had to pay back a
prorated amount of his signing bonus for holding out and forcing
the trade to Atlanta. However, the arbitrator determined that Lelie
did not have to pay the Broncos the $300,000 in fines because
franchises could not collect fine money from players that have been
traded. In a related grievance, the Special Master ruled that the
Broncos were not entitled to a portion of Lelie’s $1.1 million
option bonus because that was barred by an express clause in an
extension of the c.b.a., a decision that was appealed and then
upheld by U.S. District Judge David Doty in Minneapolis, who
continues to oversee “system” matters controlled by the 1994 White
litigation settlement. See White v. NFL (App. of Ashley Lelie), 2007
WL 939560 (D. Minn.).
1. OPTION
Another part of the SPK is the so-called option clause which
allows the team to unilaterally bind the player for another year at a
stated per cent (usually ten per cent less) of the prior year’s salary.
Since this clause restrains trade, it often exhibits antitrust
implications. However, the option year is usually softened through
collective bargaining. As an agent, when an option clause is sent to
a player, advise him not to sign it, since it may be interpreted as yet
another signed contract and if so, will include another mandatory
option year. Also, make sure that all the benefits of the original
contract are carried over to the option year. See Hennigan v.
Chargers Football Co., 431 F.2d 308 (5th Cir.1970).

12

2. RESERVE
Baseball’s former infamous reserve clause was truly
unconscionable since it gave management a perpetual option year.
Under baseball’s old reserve system a player belonged to a team for
life. The only alternatives left to a player was to either request a
trade or retire from the sport. However, the team could at their
whim, release a player or trade him without consent to another
team. This hated version of the option clause was eradicated from
baseball’s lexicon in 1975 as a result of a bargained-for grievance
procedure.
3. NO-CUT
This type of clause assures the player that he will not be “cut”
during the life of the contract. There are many ways and reasons
that a player can be terminated: skill, physical condition, off-season
injuries, suspension, death, etc. Because of this, a standard no-cut
clause does not exist since each clause only protects the player
from a certain type of termination.
The basic types of no-cut clauses are the Cunningham model, the
standard NFL clause and the Hudson model. In Munchak Corp. v.
Cunningham, 457 F.2d 721 (4th Cir.1972), the parties agreed to a
“no-cut contract” using that term and anticipating that this clause
would protect the player from a cut based on a lack of skill. This
clause would still not protect the player from “cuts” due to bad
physical or mental condition, inability to perform as a result of off-
field injuries and
 13

suspension without pay for disciplinary reasons. The standard NFL

“no-cut” clause is comparable to the Cunningham model except
that it is more specific concerning the necessity of the player to
maintain a superior physical condition. The best for the player, is
the Hudson model (Minnesota Muskies, Inc. v. Hudson, 294
F.Supp. 979 (M.D.N.C.1969)), which employs the following
language: “salary payable in any event.” Even with this language,
the club will still not waive its right to suspend a player; nor will it
protect a player who fails to exhibit a good faith effort. Any no-cut
clause, however, only guarantees that the player will continue to be
paid; it does not correspondingly guarantee a player an automatic
spot on the roster.
D. COLLATERAL AGREEMENTS
A sports contract can also be modified through inclusion of
collateral agreements by way of an incorporation clause. The
standard collateral agreements are collective bargaining agreements
and the league’s constitution and by-laws; these additional
documents will then be incorporated into the SPK as if they were a
part of the contract. Less standard agreements can also be
incorporated into the contract, for example, drug usage guidelines,
player-agent standards, etc. When a player signs an SPK he not
only agrees to abide by the ten pages in that contract but he also
impliedly agrees to abide by the some 300 pages of responsibilities
and obligations contained within the collateral documents.

14

E. TERMINATIONS
 The termination of an athlete will be construed as a breach of
contract if the termination is not justified. An employer can
terminate an athlete if he is physically unable to perform. If a team
terminates an employee on the basis of an injury there is usually a
procedure that will cover this situation in the collective bargaining
agreement.
A club must act within its rights when it terminates a contract. A
player can be rightfully terminated for being out of shape, a lack of
skill, defying club and league rules or a material breach of the SPK.
In reality, a player with unique and proven skills will not be
released, whereas, a marginal player will be released due to a lack
of skills judged solely by the club.
Disgruntled Super Bowl XLV ticket holders sued the Dallas
Cowboys and the NFL for denying, relocating or delaying seating
of over 2000 fans. On February 9, 2011, several affected ticket
holders filed a class action lawsuit alleging fraud, breach of
contract, fraudulent inducement, negligence, negligent
misrepresentation and attorney’s fees. On February 18, 2011,
defendants moved the class action to federal court, specifically
alleging that the amount in controversy exceeded $5,000,000.
Laffin v. NFL, 2011 WL 1396887 (N.D. Tex, 2011).
Similarly, in a case styled Simms v. Jones, 879 F.Supp.2d 595
(N.D. Tex. 2012), the court evaluated a breach of contract claim
arising out of the purchase of a Super Bowl game ticket. That
ticket,

15

however, is a contract only between the NFL and a ticket purchaser

and not the Dallas Cowboys. The fact that the Cowboys resold
tickets, issued by the NFL, to one or more plaintiffs does not alter
the nature of the contract.
Bentley v. Cleveland Browns Football Co., 958 N.E.2d 585 (Ohio
App. 2011), discusses the arbitration clause in an NFL standard
player’s contract which is generally viewed as an expression of the
parties’ agreement to arbitrate disagreements within the scope of
the arbitration clause. But, parties cannot be compelled to arbitrate
a dispute if the parties have not agreed to submit to arbitration.
LeCharles Bentley was a center for the Cleveland Browns who
claims that his career was shortened as a result of a staph infection
that he acquired in the Browns’ training facility. The court denied
the Browns’ motion to compel arbitration and stay proceedings
pending arbitration. Bentley and the Browns reached a confidential
settlement in 2012.
F. ASSIGNMENTS
A necessary evil of a professional sports environment is the
assignment of contracts, that is, trading players. SPK’s contain a
clause that allows the team to trade players at will. Players can, of
course, negotiate “no trade” contracts; another alternative is that
c.b.a.s can also provide certain agreed-upon no-trade provisions.

16

G. REMEDIES
A breach of contract can usually be remedied by either money
damages, restitution or specific performance. In the typical
scenario, a party will seek the benefit of that bargain, that is, that
which was promised in relation to what was received. If the legal
remedy is inadequate then the aggrieved party may seek specific
performance if the services are unique.
 As regards specific performance, a court will not force an athlete
to play against his will. But because an athlete’s particular skills are
unique and the addition of his participation to the chemistry of a
team can never be successfully delineated, divided or understood, a
court will allow the prevailing team to enjoin the athlete from
playing for another team.
The use of injunctions as a remedy in professional sports was
established in Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A.
973 (1902) which allowed a ball club to enjoin a professional
baseball player, a future Hall of Fame member, one Napoleon
Lajoie, when he attempted to play for another team. The injunction
was authorized to restrain Lajoie from rendering services to another
team since his services were of a unique character which would
render them of peculiar value to the baseball club. In short, it
would be difficult to find a substitute for the services of Napoleon
Lajoie.
Because of this uniqueness, the first team can enjoin the player
from playing for another team during the continuation of the
contract. The

17

provisions in the contract which prohibited the athlete from

jumping to another team were a part of the consideration for the
employer’s agreement to pay the athlete his salary. These promises
were not lacking mutuality of remedy or were they so unreasonable
as to prevent the issuance of an injunction. Another rationale was
that the contract was already partially performed and the employer
was desirous of its continuance.
In Lincoln Hockey, LLC v. Semin, 2005 WL 3294008
(D.D.C.2005), a professional hockey player, signed a three-year
contract to play hockey for the Washington Capitals. The contract
stated a specific time and place to which he must report to play
hockey, unless he was released from the terms of the deal.
Plaintiff’s skills were exceptional and thus his loss could not have
been justly compensated by damages. The plaintiff agreed to a term
in the contract that an injunction was the proper remedy to prevent
him from playing for another team. The NHL’s season was
cancelled for the 2004–05 season due to a labor dispute. He left the
country and played in Russia and the Capitals fined him $1,000 per
day. Plaintiff claims that he was required to serve in the Russian
military and could not perform under the terms of his original
contract with the Capitals. He made arrangements with the Russian
military that allowed him to play hockey in lieu of formal military
service. When the lockout ended, the team asked that the plaintiff
report to training camp.

18

Plaintiff claimed that he had worked out another arrangement

with the military and he would be allowed to return to the country
to play hockey. After hiring new agents, Semin was suddenly no
longer allowed relief from his military obligations.
The Capitals initiated this lawsuit and asked the court for
injunctive relief. The club also filed a suit for tortious interference
with a contractual obligation against Semin’s new agents. The court
granted a temporary restraining order and held a hearing discussing
the injunction on December 1, 2005. The court found that
arbitration was the potential forum for such a dispute, reducing
further the Capitals chances of success.
H. DEFENSES
 When there is an alleged breach of contract, there are several
defenses that can be posited. Of course, when an employer
terminates the contract due to an injury, the c.b.a. will spell out the
appropriate procedures. Usually, the team doctor’s diagnosis will
be submitted to arbitration after a review by a neutral physician.
Club’s defenses that can be raised in arbitration are: failure to pass
the preseason physical exam, failure to make complete disclosure
of a physical or mental condition, injury occurring prior to exam, a
non-sport injury, no new sports-related injury after exam and no
aggravation of prior injury after exam.

19

1. UNCLEAN HANDS
It is axiomatic that one cannot request a remedy in equity if he
comes to court with unclean hands. Players have successfully used
the doctrine of unclean hands in defending against suits by
management for negative injunctions. A court of equity will not
grant injunctive relief to a plaintiff who has acted in bad faith as
regards the problem to be litigated. See New York Football Giants,
Inc. v. Los Angeles Chargers Football Club, Inc., 291 F.2d 471 (5th
Cir.1961).
In Minnesota Muskies, Inc. v. Hudson, 294 F.Supp. 979
(M.D.N.C.1969), plaintiff was not entitled to enjoin defendant
basketball player from joining another team during the life of his
contract since plaintiff professional basketball team had already
soiled its hands in negotiating a contract with the player while the
player was still bound by contract to another professional
basketball club in a different basketball association. Therefore,
plaintiff club was not entitled to enjoin breach of that contract by
the player, who after signing with plaintiff then signed a new
contract with the original club and honored that contract by
performing under it.
2. UNCONSCIONABILITY
Another defense could be that the contract was illegal or unfair. A
court, for example, will not permit equitable enforcement if the
terms of the contract are too harsh and one-sided. Connecticut
Professional Sports Corp. v. Heyman, 276 F.Supp.

20

618 (S.D.N.Y.1967). Historically some form of the reserve clause

might well have been unconscionable and thus unenforceable. At
present, the once overly harsh player retention systems have all
been, to a certain extent, ameliorated by collective bargaining; as a
result, they are now more narrowly drawn and less likely to be
viewed as unfair, illegal or unconscionable.
3. MUTUALITY
Another defense to a club’s suit for a negative injunction is the
lack of mutuality. That is, either inequality between the player’s
obligation of many years and the team’s obligation for a minimal
amount of time or the fact that the club can avail itself of an
opportunity to obtain the specific performance of an athlete’s
negative promise, whereas, specific performance is unavailable to a
player.
I. INSURANCE AND PENSIONS
Insurance and pensions are types of contracts that have a great
influence on the relative success and well-being of athletes. Many
athletes, both professional and amateur, take out insurance policies
against the possibility of injury. In addition, many teams, arenas,
leagues, universities, school districts, etc., take out liability
insurance so they can be paid by the insurer for loss that results
from legal liability to a third person. It protects the insured against
the financial loss brought upon by lawsuits based on negligence.
“Common subjects for

21

liability insurance are risks from use of the premises, from faulty
products, from use of vehicles, and from the practice of
professions.” NCAA, 2002–2003 NCAA Division I Manual
31.7.4.1. Host institutions and sponsoring agencies of NCAA
championships are similarly obligated to provide “primary
comprehensive general public liability insurance coverage” of “at
least $1 million per occurrence for bodily injury and property
damage.” NCAA, 2002–2003 NCAA Division I Manual 31.7.4.1.
Andre Johnson, the plaintiff in Johnson v. Amerus Life Ins. Co.,
2006 WL 3826774 (S.D. Fla.), played football at the University of
Miami and then for the Houston Texans. Prior to playing for the
Texans, Johnson claimed that Amerus Life Insurance made false
representations to induce him to purchase unnecessary insurance.
Both Johnson and Amerus filed a third party complaint alleging
that Johnson’s former financial adviser, made material
misrepresentations regarding Johnson’s financial status, which led
to the Johnson-Amerus litigation. The court dismissed third party
claims because Johnson’s and Amerus’ negligent
misrepresentations were not alleged with sufficient particularity.
Another form of contract that is extremely important to sports
participation due to the nature of its inherent physical abuse are the
pension systems that are usually made part of the employment
contract within the plan itself and in the collective bargaining
agreement and

22

incorporated into the contract by way of the incorporation clause.

For example, the NFL retirement and disability benefits, as worked
out through the collective bargaining process, are now covered by
the Bert Bell/Pete Rozelle NFL player retirement plan.
The Houston Astros Baseball Club purchased a total disability
insurance policy from Defendant Connecticut General Life
Insurance Company that covered Astros first baseman Jeff
Bagwell. The policy provided that if Mr. Bagwell became totally
disabled before the policy terminated on January 31, 2006, the
Astros would recover. See Houston McLane Co. v. Connecticut
General Life Ins. Co., 2006 WL 3050812 (S.D.Tex.).
Mr. Bagwell suffers from a degenerative arthritic condition in his
right shoulder. He was placed on the disabled list in May 2005, and
he underwent surgery on his shoulder in June 2005. After a period
of physical therapy and rehabilitation, Mr. Bagwell was activated
and returned to the Astros’ roster in September 2005 for the end of
the regular season, as well as the playoffs and World Series. After
the conclusion of the 2005 season, the Astros directed Mr. Bagwell
to be examined by a sports medicine physician. The physician
concluded that Mr. Bagwell was disabled completely from playing
professional baseball and based on that evaluation, the Astros filed
a claim for total disability on January 24, 2006. In February 2006,
Mr. Bagwell reported to Astros spring training, and Connecticut
General subsequently denied the Astros’ disability

23
claim on March 13, 2006. On March 25, 2006, the Astros placed
Bagwell on the team’s disabled list. He was subsequently retired.
The Astros filed suit against Connecticut General, alleging breach
of contract, violations of the Texas Insurance Code, and breach of
common law duty of good faith and fair dealing. The court denied
Connecticut General’s motion for separate trials to bifurcate the
causes of action.
On December 15, 2006, Connecticut General Life Insurance
Company settled a lawsuit with the Houston Astros over the team’s
entitlement to recoup $15.6 million of the $17 million veteran first
baseman Jeff Bagwell was paid for the 2006 season in which he
was unable to play because of injuries. Bagwell, Houston’s first
baseman for nearly 15 years, formally announced his retirement on
December 16, 2006.
In Lampe v. Allstate Ins. Co., 755 N.W. 2d 810 (Wis. App. 2008),
the court determined whether a volunteer wrestling coach was a
“volunteer worker” as defined by a school’s insurance policy. A
student was injured when the student and coach engaged in a take
down maneuver during practice. The policy included volunteer
workers only while performing duties related to the conduct of the
school’s business and who acted at the direction of and within the
scope of duties determined by the school district. Due to the
coach’s experience and skill, he was not directly supervised or told
what to do at practices by the head coach. The student’s injury did
not occur during a regular wrestling practice but during a

24

commonly extended practice. The two competing inferences were

both equally reasonable, and therefore, the trial court erred in
granting summary judgment.
 Another insurance related matter are the lawsuits generated by the
Penn State sexual abuse scandal. In Pennsylvania Manufacturer’s
Association Insurance Co. v. Penn State, 63 A.3d 792 (Pa. Super.
2013), a general liability insurer requested a declaratory order
limiting its obligation under a policy to defend and indemnify in
Philadelphia County. Penn State countered with a breach of
contract and bad faith actions in Centre County; the Superior Court
consolidated both actions and transferred the Centre County
lawsuit to Philadelphia.
Many lawsuits have sought financial redress from the NCAA for
their licensing of student/athlete likenesses to video game
companies such as Electronic Arts, Inc. (EA). The insureds in
Collegiate Licensing Co. v. American Casualty Co. of Reading, 713
F.3d 71 (11th Cir. 2013), are the NCAA and the CLC, which is the
licensing arm for more than 200 colleges and universities. The
CLC licenses trademarks and trade dress to its licensees, including
EA, which is a “publicly-traded company that sells NCAA football
and basketball related video games that utilize licensed trademarks,
logos, and college colors” (Collegiate Licensing Co., 713 F.3d at
75). Here, the insureds seek a declaration that the insurers are
obligated to defend and to indemnify under the terms of their
commercial

25

general liability (GCL) and umbrella liability policies. The first-

filed rule protects the insured’s lawsuit from insurers’ intervention
complaints.
The insurance companies have been active in an attempt to avoid
coverage on burgeoning issues in sports law, most notably lawsuits
based on the reoccurrence of concussions in contact sports.
Concussion-related lawsuits in football have generated the most
consternation and insurance frenzy. The NFL, for example, is
staking its turf in NFL v. Fireman’s Insurance Co., 216 Cal. App.
4th 902 (2013), by suing 32 liability insurers for declaratory relief
as to insurers’ duty to defend against lawsuits that claim that the
NFL is responsible for concussive brain damage suffered by
football players. This is not the only lawsuit of its kind, but in this
particular instance, the judge stayed California proceedings
pending the outcome of parallel New York proceedings.
On December 13, 2006, the U.S. Court of Appeals for the Fourth
Circuit affirmed a ruling that the NFL players pension fund must
pay the estate of NFL Hall of Fame center Mike Webster close to
$2 million in back disability benefits for the brain damage he
suffered during his playing days that left him unable to work after
retirement. The amount is the difference between the disability
benefits he received and the amount he should have received, plus
interest, and legal fees.
Webster played 16 seasons in the NFL, 14 of which were spent
with the Pittsburgh Steelers, including their glory years in which
they won

26

several Super Bowls. After his retirement in 1991, Webster was

homeless at times, sleeping in his car, or on the floor of the Kansas
City Chief’s equipment room, when the team briefly employed
him. Webster often needed to be reminded to do rudimentary tasks
such as changing his clothes, going to bathroom, and eating meals.
In 1999, Webster applied for disability benefits under the NFL’s
pension plan. If his disability was caused by playing football, he
would be entitled to higher level payments. The NFL players’
retirement and disability board voted that the condition was not
caused by playing football, despite medical testimony to the
contrary. The court states that the board “completely ignored
overwhelming evidence” that Webster was totally and permanently
disabled as a result of brain injuries incurred while playing
professional football. The court said that the board could not
simply ignore the opinion of its own expert and others who found
that Webster was disabled after retirement. The financial recovery
will benefit Webster’s widow and four children. This decision is
the first time the NFL and NFLPA ever lost a disability status
challenge case. Jani v. Bert Bell/Pete Rozelle NFL Player
Retirement Plan, 209 Fed.Appx. 305 (4th Cir.2006).
In Grant v. Bert Bell/Pete Rozelle NFL Retirement Plan, 2010
WL 3749197 (N.D. Ga. 2010), Boyd v. Bert Bell/Pete Rozelle NFL
Retirement Plan, 2011 WL 2066565 (D. Md. 2011), and Ward v.
Retirement Bd. of Bert Bell/Pete Rozelle NFL Retirement Plan, 643
F.3d 1331 (11th Cir. 2011),

27

plaintiffs attempted to define the parameters of the NFL retirement

system. In Grant, a former player requested line-of-duty (LOD)
disability benefits under the Bert Plan, which is an employee
benefit plan governed by the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001, et seq. LOD
disability benefits are for players who have incurred “substantial
disablement arising out of League football activities.” The
American Medical Association describes “substantial disablement”
as a permanent disability. The Bert Bell plan, of course, is a
product of a collective bargaining agreement between the National
Football League Players Association and the Nation Football
League Management Council, and is described as a retirement plan
that provides retirement disability and related benefits to eligible
NFL players. In Grant, a federal district court found that the Bert
Bell Plan’s Retirement Board was wrong and then asked the
Medical Advisory Physician to ensure that his report was consistent
with AMA standards and that he was willing to accept the
conclusion that he disregarded those standards. The court found
that this decision was an abuse of the Board’s discretion because it
failed to comply with the terms of the Plan. Grant’s claim was
remanded back to the board to conduct and evaluation that
complied with the language of the Plan.
Brent Boyd, former NFL football player and participant in the
ERISA governed Bert Bell Plan, who had been granted inactive
total and permanent disability benefits under the Plan for a
concussion that he had received while playing football, filed

28

suit against the Plan administrator alleging wrongful denial of

reclassification of his disability. However, the court held that Plan
administrator’s denial of reclassification request was supported by
substantial evidence.
In Ward, a law firm and retirement plan for retired football
players filed actions seeking declaratory relief about whether the
plan was required to pay two retired players’ disability benefits into
law firm’s trust account. The Eleventh Circuit Court of Appeals
held that spendthrift provision of retirement plan prohibited
disbursement of benefits to the law firm.
J. COACHING CONTRACTS
Professional coaches received salaries nearly as staggering as
some of their players’ contracts. The salaries that collegiate
basketball and football coaches can receive in some premier sports
programs have also exceeded the multi-million-dollar barrier.
However, coaches absolutely lack job security. Coaches have no
real union or standardized contract.
The modern coach must perform many diverse duties: each duty,
if not performed to the desires and satisfaction of the university’s
administration, can result in immediate termination.
Another part of a college coach’s responsibility is to assist in
achieving high graduation rates. This responsibility includes
monitoring their athlete’s

29

grade point average so as to continue NCAA eligibility.

Many of these university athletic programs have the capacity to
generate great sums of money. These generated funds are needed to
pay for other athletic programs in that university and to provide
money that is used for that school’s general fund. Lastly, a winning
athletic program affords the university with heightened prestige and
boosts their status vis-à-vis attracting better and more affluent
students.
A collegiate coach’s contract will offer not only a salary with
institutional fringe benefits, but also additional compensation
packages, which might include shoe, apparel, and equipment
endorsements, television and radio shows, speaking engagements,
personal appearances, and summer camps. Additionally, the job
may also provide for housing, insurance premiums, country club
memberships, business opportunities, and the use of university
automobiles.
 Most coaches, because of the variety of their tasks, have
historically been able to leave their position virtually at will despite
their prior contractual commitments. However, as in standard
player’s contracts, a university can include a clause within the
coach’s contract that allows an injunction to prohibit a coach from
“jumping” his contract and working for another school. Upon
termination prior to contract expiration, the courts will usually
allow the coach to recover monetary damages. The coach’s right to
be compensated, however, may be reduced if there is a mitigation
of damages clauses, which will

30

offset the relief if he or she obtains other employment. The

question of severance pay will usually involve the amount of
money earned in related contracts (perquisites), such as shoe
endorsements.
There is no standard coach’s employment contract. There is no
formal union that represents coaches. The crux of the contract is
whether the coach agrees to perform all duties and responsibilities
that accompany the position. The coach must also agree to comply
with all pertinent NCAA regulations. Collegiate coaching contracts
are usually three to five years in length. Many contracts contain a
“rollover” provision, which extends the contract for an additional
year. That is, if a coach had a five-year contract with a rollover, the
university, at the end of each season, with the coach’s consent, has
the right to extend it for an additional year.
A coach’s contract may also contain a reassignment clause which
will allow the university to remove a person as a head coach,
without per se ending his contract, by assigning him to a new title
or new responsibilities. This clause may contain a caveat that will
stipulate that this job reassignment will not be inconsistent with the
coach’s education and experience. If the coach refuses to accept
this reassignment then the school may dissolve the employment
contract pursuant to the contract’s termination provisions.

31

In regards to compensation, every coaching contract will contain

a guaranteed base salary. For example:
The guaranteed based salary paid by the University to the coach
for services and satisfactory performance under the terms and
conditions of this Employment Agreement shall be at rate of
$_______ per year, payable in _______ installments by the
University to the Coach on the _______ day of each calendar
month during the term of this Agreement.
The contract will usually stipulate periodic increases to the
guaranteed base salary during the length of the contract.
The contract will also contain a provision for fringe benefits,
which may include: life and health insurance, vacation with pay,
retirement, travel, out-of-pocket expenses, use of an automobile,
auto insurance, gas credit card, car maintenance, tuition waiver, for
family members, complimentary tickets, country club and health
club memberships, and possibly living accommodations, etc. See
Rodgers v. Georgia Tech Athletic Ass’n, 166 Ga.App. 156, 303
S.E.2d 467 (1983). There will also be bonus clauses. They may be
in the form of a set amount or a percentage of either base salary or
net revenues. The bonus mat be in the form of a signing bonus or
based on post-season tournament participation or win/loss record,
home attendance, graduation rate, or length of service. All
contracts will also provide the coach with outside or supplemental
income sources common to many major sport-coaching
 32

contracts, e.g., added benefit of payment for radio and TV talk

show programs. Perhaps the most consistent moneymaker in
coaching contracts is the caveat that the coach supervises summer
athletic camps and clinics.
Coaching often attracts endorsement offers. The types of product
endorsements run the gambit from car dealerships to sporting
goods to restaurants to health clubs, etc. Apparel and equipment
contracts are usually negotiated between the coach and the
merchandise company. This company will pay the coach to act as a
consultant and provide shoes, etc., in exchange for the players
wearing their products.
In McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162
(Mo.App.2006), plaintiff was an assistant high school basketball
coach. When the plaintiff was hired, he was told by the head
basketball coach that he needed an African American coach that
could relate to his players. Plaintiff was the only African American
on the basketball coaching staff. All other assistant coaches
received full time teaching positions at the school, received
contracts before the start of the basketball season, and received
only verbal warnings as a result of misconduct. Plaintiff was
offered a position as a teaching assistant only during the basketball
season, always received his contracts after the start of the
basketball season, and was suspended as a result of misconduct
without first receiving a verbal warning. In his suit claiming racial
discrimination, the trial court awarded damages and attorney’s fees
for plaintiff. The high school appealed claiming the instructions

33
were incorrect. The court affirmed the circuit court’s decisions
because the court had used Missouri Model Instructions, and a
Missouri court is not bound to follow Eighth Circuit case law.
In Pressler v. Duke University, 685 S.E. 2d 6 (N.C. App. 2009),
Duke lacrosse coach, Mike Pressler, resigned in midst of
allegations that members of the lacrosse team had raped a stripper
at a team party. As part of the severance package, all obligations
arising from the previous contracts were canceled, as both parties
agreed not to disparage each other. Although two unnamed school
officials made false statements about Pressler, he was unable to use
the dispute resolution policy from the earlier, now canceled
agreement. The University fired Pressler, but he eventually settled
with them for wrongful termination.
The head basketball coach at Vincennes University was fired
under a “zero tolerance” misconduct policy which is comparable to
the one that Coach Bobby Knight had in his final contract with
Indiana University. But what constitutes a violation of zero
tolerance? The initial offense in Vincennes University v. Sparks,
988 N.E. 2d 1160 (Ind. App. 2013), was that the coach allegedly
falsified the records of a recruit, which is a violation of NCAA
rules. He was then placed on double-secret probation (whatever
that is). After he signed the agreement, the university eventually
failed to renew his one-year contract. The court held that the signed
written contract, regardless of whether it was achieved only after
duress, in which he forfeited his

34

tenure and agreed to be bound by the “zero tolerance” misconduct

policy, did not contain a promise of continued employment and
because of that the university’s failure to renew his contract at the
end of the one-year term did not constitute a breach of contract.
K. NEGOTIATING THE CONTRACT
The art of negotiating a contract in sports is very similar to the art
of negotiating in other more standard venues. Although the SPK is
in many ways a contract of adhesion, there are ways to flesh out the
contract in an attempt to get the best deal for your client. As an
overview, the more money up front the better; the more money in
the signing bonus the better. Also, management will usually not
object to the addition of incentive clauses (e.g., bonus money for
achieving “all-rookie” status, attendance clauses, etc.).
The unions have greatly improved an agent’s ability to
successfully negotiate by providing players and agents with a
complete statistical file of the relative worth of each potential
professional athlete. This way, the athlete and his agent will have a
clear idea of the contracts that similarly-positioned athletes were
able to obtain. This takes the guess work out of ascertaining the
“bottom line” and shows the athlete his market place comparative
worth figure.
As an aside, much of the athlete’s would be negotiation strengths
are defined and refined through collective bargaining. Therefore, it
would

35

behoove the good agent to immerse himself into the c.b.a. before
attempting contract negotiation. Although the SPK and c.b.a.
include rules and benefits that automatically accrue to a player
there are still certain concerns that reside completely in the domain
of the individual contract negotiator. For example, signing bonus
amount, time of payment of the bonus, desirability of a loan,
insurance, contract length, injury or skill guarantees, ascertaining
the appropriate mix of initial year salary and annual installments,
option clauses, salary adjustments, roster bonuses, individual and
team incentives, etc.
Suppose an athlete chooses you as his agent. What does your job
description include? Although agents aren’t required to be
attorneys, the first document that you must be familiar with is the
collective bargaining agreement (c.b.a.), a legal document (written
by lawyers). The document that the agent must negotiate is the
standard player’s contract (SPK). This agreement is part of the
c.b.a. which controls the union-management relationship in that
sport. Most team sports have some form of a salary cap (or, at least,
a luxury tax). The salary cap information is found in the c.b.a. It is
imperative that you must know the “cap status” of the team that
you are negotiating with.
 37

CHAPTER 2
AGENTS
A. BACKGROUND
With the great increases in salaries and benefits in professional
sports, a need developed for athletes to have personal
representatives, or agents, to manage their affairs. This
representation includes the negotiation of a personal services
contract with a professional sports team. There is a fiduciary
relationship between agents and athletes; therefore, agents are
under an obligation to exercise the utmost care and good faith in
their dealings with athletes.
B. STANDARD REPRESENTATION AGREEMENTS
The main connection between player and agent is the standard
representation contract (SRK). This contract establishes the rights
and responsibilities between the parties. It only calls for a good
faith effort. The actions of the agent do not necessarily have to
prove successful. Zinn v. Parrish, 461 F.Supp. 11 (N.D.Ill.1977).
However, the agent does have the obligation to make a full and
complete disclosure of all areas of potential conflicts of interest and
must receive prior consent from the athlete if representation is
continued after this disclosure. Detroit Lions, Inc. v. Argovitz, 580
F.Supp. 542 (E.D.Mich.1984). Like any other contract, the key to
an SRK is its

38
particular wording. There are at least four essential clauses within
an SRK: notice in writing of potential conflicts, a negotiation in
good faith clause, an arbitration provision, and a clause that
stipulates which state’s law will govern if interpretation of the
contract is necessary.
The basic responsibility of an agent is to exercise good faith effort
overall and to act as a trustee for his client’s money when investing
it. Investments must be similar to those that a prudent investor
would engage in for his own account, keeping in mind both safety
and income.
In Duckett v. Williams, 86 F.Supp.3d 268 (S.D.N.Y. 2015), NFL
player Mike Williams and his agents entered into an NFLPA
Standard Representation Agreement. On that same date, one of his
agents agreed to pay plaintiff $17,500 for an expense advance for
the recruitment of defendant Williams. The agents also filed on the
same date, an “SRA Disclosure Form for Recruiting Assistance
Payments.” The question is whether the SRA Disclosure Form is a
binding contract that entitles plaintiff, as a third party beneficiary,
to one-third of the proceeds of defendant’s NFL contracts. The
Disclosure Form only apprised defendant of the fact that his agents
had agreed to pay plaintiff one-third of what they receive as
defendant’s agents. This is not a binding contract and is “patently
absurd.” Defendant’s motion to dismiss is granted.

39

C. DUTIES
The most essential part of the SRK is the agent’s obligation to
negotiate a contract. Implied in this obligation is the understanding
that the agent possesses the necessary background, skills,
experiences, and expertise to perform this task to a degree that
corresponds with the skills and knowledge that are standard to the
profession. An agent does not have to secure the best contract; the
agent must only negotiate the contract in good faith using his or her
best abilities.
The responsibilities of the agent will usually include contract
negotiation, investments, taxes and public relations. The number of
functions that an agent can perform is limited only by the agent’s
imagination. The list of functions that might be covered include:
1) contracts, 2) taxes, 3) financial planning, 4) money management,
5) investments, 6) income tax preparation, 7) incorporation, 8) estate
planning, 9) endorsements, 10) sports medicine consultations,
11) health and physical training consultations, 12) career and
personal development counseling, 13) post-career development,
14) insurance and 15) legal consultations.
Zinn v. Parrish, 461 F.Supp. 11 (N.D.Ill.1977), established the
obligations that an agent must meet in his effort to satisfy his client.
Plaintiff, an agent, brought an action to recover commissions that
were allegedly due under an SRK. The agent secured three
professional football team contracts for his client and pursuant to
the SRK was entitled to a 10% agency fee. The agent was to
negotiate

40

contracts, furnish advice on business and tax matters, seek

endorsements and assist with off-season employment. The plaintiff
performed some of these obligations; he solicited some investment
advice and assisted defendant in investing a small amount of his
money in buying a house. No jobs, though; no endorsements; no
off-season employment and, for tax advice, plaintiff sent his client
to H & R Block.
 Defendant alleged that his agent acted as an investment advisor
under 15 U.S.C.A. § 80(b)–2(a)(11) and since he was not
registered, the contract was void. However, the court held that the
investment advice was merely an incident to the primary purpose
of the management contract which was to negotiate a professional
contract. In short, defendant alleged that plaintiff failed to perform
his duties competently. However, plaintiff satisfied his obligations
by performing these duties in good faith.
D. CONFLICTS OF INTEREST
The agent must not have any conflicts of interest that might
influence or affect his ability to do the best job for his or her client.
The agent must inform the principal of all facts that come to his
knowledge which may be material or might affect his principal’s
rights or interests or influence the actions that the athlete may or
may not take. Detroit Lions, Inc. v. Argovitz, 580 F.Supp. 542
(E.D.Mich.1984).
An agent should err on the side of a complete and detailed
disclosure of any possible or potential

41

conflicts of interest that might occur between the agent and the
athlete.
Avoidance of conflicts of interest is even more important if the
agent is also an attorney. Under the rules of professional conduct,
an attorney must decline representation if it will be directly adverse
to the interests of another client or if the attorney’s personal
interests materially limit his responsibilities to his client.
An attorney must perform his legal duties with unabated loyalty.
This loyalty is necessarily questioned if the agent has conflicting
interests that appear to be adverse to the interests of the athlete,
e.g., representation of a competing athlete or ties with management.
The attorney-agent is under the restriction of the attorney-client
privilege of confidentiality. The agent cannot use confidential
information to the athlete’s disadvantage.
E. REGISTRATION OF AGENTS
Although their relationship is fiduciary in nature, sports agents
were unregulated for many years. As a result of this, there were
many infamous cases of abuse on the part of the agents. The
perceived need for reform created a public outcry that resulted in
attempts to regulate agents by both the states and the professional
sports unions.
1. STATE LEGISLATION
Many state legislatures entered into the controversy by enacting
legislation that requires

42

that agents register with that state if they are from that state or if
they sign an athlete from that state. Registration must occur before
they proceed with contract negotiations for an athlete.
The earliest registration model came from California. It requires
that any agent who represents an athlete in an attempt to gain an
employment contract with a professional sports team must register
with the state labor commission. The act does not include
“advisors” who do not negotiate contracts nor does it include
California attorneys that act as legal counsel. Non-California
attorneys are not exempted, they’re treated as non-attorney agents.
The act requires that agents must register and post a $10,000.00
surety bond to satisfy any damages for misrepresentation or fraud.
The labor commissioner acts as an arbitrator for agent-athlete
disputes. Any violation of the statute is a criminal misdemeanor.
West’s Ann. Cal. Labor Code § 1546.
A newer, “tougher” approach is represented by a Florida statute
which targets both the agent and the athlete for criminal and civil
penalties for violations. This act requires registration of all agents
who do business in Florida. However, the registration itself is
routine and is accompanied by only a minimal fee. The act applies
to all agents who communicate with any Florida athlete regardless
of whether the athlete is or is not ultimately signed. Failure to
register is a third-degree felony with penalties of up to five years’
incarceration and a $5,000.00 fine. The athlete and the agent must
notify the college’s

43

athletic director within 72 hours of the signing of an SRK. There

are sanctions involved which include voiding the SRK as
unenforceable, subjecting both the athlete and the agent to criminal
penalties and allowing the school an opportunity to bring a civil
suit against the athlete and the agent. West’s Fla.St.Ann. § 468.451,
et seq.
2. UNION REGULATIONS
Another way to curb abuses is through mechanisms provided by
the sports unions. Basically, the unions created their own plan so
that any agent who wanted to represent a union member must first
register with, or be certified by, the union. This gives the union a
certain amount of control. They can keep out unsavory would be
agents while also mandating continuing education to improve the
overall caliber of representation. All major sports unions currently
maintain some form of agent registration.
 However, the seminal model is from the National Football
League Players’ Association (NFLPA), which in 1983 established
guidelines requiring agents to become certified as contract
advisors. To gain certification, an agent must apply; pay a fee;
submit an application providing information about education,
employment, membership in business and professional
associations, and criminal history; and pass a test. Two major
aspects of the qualification process are 1) full disclosure and 2) an
absence of a prior history that reveals incidents of serious
misconduct. A procedure such as this,

44

however, only excludes those whose conduct is egregious.

After they become contract advisors, the newly certified agents
must use an NFLPA SRK, agree to abide by NFLPA limits to the
percentage of the athlete’s compensation that the agent can receive
for representation, attend annual NFLPA continuing education
seminars, agree not to give a player anything of value in exchange
for the opportunity to secure representation, fully comply with
applicable state and federal rules and regulations, and agree to
avoid potential conflicts of interests by not having any financial
interest in a professional sports teams. A violation of these rules
will subject the agent to fines and penalties along with the
possibility of a revocation of his contract advisor status.
The purpose of this type of regulation is to provide quality control
in representation and to limit the fees that agents can charge
NFLPA members for contract negotiation. However, its protective
umbrella will not cover charlatans that might masquerade as
publicity consultants or marketing experts. All other union-
orchestrated, agent-certification schemes copy to a large extent the
NFLPA model. In 2003, the NFLPA established a similar
certification program for financial advisors.
In Smith v. IMG Worldwide, Inc., 360 F.Supp.2d 681
(E.D.Pa.2005), the defendant, an NFL agent, and his company
attempted to compel arbitration under the NFLPA Bylaws. The
plaintiff argued that

45

the defendant made defamatory statements about him and

intentionally interfered with a prospective contract. Both the
plaintiff and defendant are certified NFL agents. The defendant did
not file a motion to compel arbitration until after the discovery
period was ending. The court concluded that arbitration was
appropriate because the claims fell within the scope of the
arbitration clause. However, defendant waived his right to arbitrate
by not timely requesting arbitration and actively litigating the case
for 16 months, resulting in prejudice to plaintiff.
On June 23, 2006, seven current and former players sued the NFL
and NFL Players Association in U.S. District Court for the
Northern District of Georgia for negligence in not investigating and
warning the players about a financial advisor with whom they
entrusted money and who subsequently lost it. The NFL and
NFLPA listed Kirk Wright as an acceptable financial adviser. The
players claim that the NFL and NFLPA are responsible for their
losses because an investigation of Wright, should have shown that
there were several outstanding tax liens and judgments against him
and that he was uninsured.
Wright was also indicted on May 25, 2006 on 48 counts of mail
and securities fraud. Wright and his company were sued in
February 2005 by the SEC for numerous violations. Wright’s
company filed for bankruptcy later in 2005. More than 500
investors lost over $110 million entrusted to Wright. He used false
statements and documents to mislead some

46

investors into believing that the value of their investments was

increasing when in fact, they were significantly decreasing. The
players seek compensatory and punitive damages as well as an
injunction to ensure that the NFL and NFLPA provide background
checks of listed financial advisors to protect players from fraud in
the future. In Atwater v. NFLPA, all of the NFL’s and NFLPA’s
pretrial motions to dismiss were denied and he was convicted of 47
counts of fraud and money laundering on May 21, 2008. He killed
himself in his jail cell on May 31, 2008. See Atwater v. NFLPA,
2007 WL 1020848 (N.D.Ga.) and S.E.C. v. Wright, 261 Fed.Appx.
259 (11th Cir.2008).
In Kivisto v. NFL Players Ass’n, 435 Fed. Appx. 811 (11th Cir.
2011), certified NFLPA agent Jake Kivisto claims that the district
court erred when it found that his complaint asking for
recertification was within the scope of an NFLPA arbitration
agreement. His agent certification expired since he failed to
negotiate and sign a player during a three-year period. But when
Kivisto signed his Application for Certification as an NFLPA
Contract Advisor, he agreed to abide by the arbitration procedures
set forth in the NFLPA Regulations, which includes the revocation
of Kivisto’s agent certification.
3. NCAA-BASED
The National Collegiate Athletic Association (NCAA), an
unincorporated association of individual schools, is the primary
regulator of intercollegiate
 47

athletics. It also promulgates regulations that attempt to police

agents. Athletes will lose their remaining collegiate eligibility if
they accept gifts or enter into contracts with agents. In 1984, the
NCAA established a voluntary “Player Agent Registration Plan”
which urges agents to register with the NCAA. Once the agent
chooses to register with the NCAA, the agent must provide
information on employment and education background. In addition,
he or she must notify the athlete’s coach or athletic director before
contacting an athlete who still possesses NCAA eligibility.
Through this process, the agent’s name is placed on a list of
registered agents that is then provided to NCAA schools. An agent
is removed from this list if he or she provides gifts to a still eligible
athlete or if the agent fails to contact the school’s athletic director
before contacting either the athlete or the athlete’s coach.
Many states have designed their regulatory legislation so that it
facilitates and corresponds to the NCAA rules. These statutes are
considered NCAA-based in that they put teeth into the NCAA
eligibility rules. Although these statutes vary greatly, many are
similar in that they provide for 1) a written notice regarding the
possibility of losing eligibility upon the signing of an SRK and 2) a
cooling off period which allows the athlete an opportunity to
rescind the contract. Usually an SRK which violates the statute is
void. Also, an agent must notify the school of a potential contract.
Some statutes require that notice be given to the university prior to
the proposed signing. Other

48

statutes simply prohibit the signing of an athlete before the

expiration of his NCAA eligibility.
 F. CRIMINAL LIABILITY
Some state statutes regulate the conduct of professional sports
agents by the imposition of criminal sanctions. For example, in
Alabama, an agent can be prosecuted under a statute that prohibits
tampering with a sporting event. Ala.Code § 13A–11–143 (1982).
Criminal sanctions are applicable. Ala.Code § 8–26–1 to 8–26–41
(Supp.1989). The penalty provisions of the Alabama act establish
that all offenses under the act are felony violations. These offenses
range from failure to properly register to failure to provide a ten-
point type on the face of the SRK warning that the athlete’s
amateur standing might be jeopardized by entering into the
contract.
G. REPRESENTING THE ATHLETE
The agent-athlete agreement typically demands that the agent will
be the exclusive representative for the athlete. The fee for these
services can range from 3% to 50% of the athlete’s contract; the
specific share will depend on the agent’s responsibilities, the sport,
etc. The athlete should expect that the agent’s results will be
comparable to the results of other agents. The agent has an
affirmative duty to be aware of the customs and practices that are
relevant to that particular professional sport. Also, as regards
publicity, the agent must use his best

49

efforts in a good faith attempt to find employment opportunities

outside of the sporting arena.
As regards negotiating a contract, it is essential to acquire the
necessary background and then map the most appropriate
strategies. One must also possess the flexibility to counter
management’s negotiation thrusts.
Other aspects of representation may include counseling,
managing the athlete’s assets, marketing his image through
personal appearances and commercial endorsements, assisting the
athlete to resolve his disciplinary or salary disputes through
mediation or arbitration, and planning life-time strategies that will
guarantee the athlete financial, mental and emotional security at the
time of the athlete’s retirement from the work force.
The goal is to spread income from a short period of time so that it
extends through a long period of time, and/or to create employment
and business opportunities after retirement from the playing field in
order to continue the athlete’s standard of living past his days as an
athlete.
In Camacho v. Major League Baseball, 297 F.R.D. 457 (S.D. Cal.
2013), a Mexican baseball agent was unable to negotiate a contract
with the Boston Red Sox for a Mexican baseball player, Daniel
Pesqueira, on the grounds that he was already under contract with
the Mexico City Red Devils, a Mexican major league team, and
any contract negotiations must be handled through the Mexican

50

club, which owned his rights. In short, MLB refused to negotiate

with the Mexican agent.
H. TORTIOUS INTERFERENCE WITH CONTRACTUAL
RELATIONS
Many times in the field of sports agency, one associate leaves the
firm and takes clients when he departs. Alternatively, one agent
sues another for tortious interference with contractual relations
when the second agent woos away a signed athlete.
The U.S. Court of Appeals for the Ninth Circuit in San Francisco
reversed a jury award of $44.6 million and ordered a new trial in
the dispute between NFL agent Leigh Steinberg’s former athlete
representation firm and his ex-partner David Dunn. After Dunn left
Steinberg, Moorad & Dunn, which had been acquired and was then
part of the mega-agency firm Assante, to set up a rival agency,
Athletes First, Steinberg accused Dunn of violating a noncompete
clause in his employment contract and of breaching his fiduciary
duty to Steinberg, Moorad & Dunn by stealing a number of its
clients. In 2002, a jury ordered Dunn to pay $22 million in
compensatory damages and $22.6 million in punitive damages.
However, a unanimous three judge panel of the Ninth Circuit
found that U.S. District Judge Ronald S.W. Lew erred by:
(1) allowing a statutory unfair competition claim to be submitted to
the jury in contravention of the pre-trial conference order;
(2) rendering evidentiary rulings related to Dunn’s employment
contract that prejudiced the jury;

51

(3) failing to instruct the jury that the employment contract’s

noncompete clause was invalid under California law; and
(4) failing to instruct the jury that Dunn’s assignment agreement
was invalid.
While the Ninth Circuit observed that Judge Lew recognized and
tried to rectify his mistake, it concluded that his jury instruction
that liability for common law unfair competition could be found on
the basis of conduct intended to comprise statutory unfair
competition was reversible error. In addition, the Ninth Circuit,
ruled that Judge Lew abused his discretion by sustaining multiple
hearsay objections when Dunn attempted to testify about what he
was told during his contract negotiations. Further, the appellate
court found the noncompete clause to be invalid under California
state law, which establishes that such clauses are unenforceable
whether or not the term of employment has ended. See Cal. Bus. &
Prof. Code 16600 (2005). Finally, the panel similarly ruled that the
assignment agreement was unenforceable to the extent that it
required Dunn to assign all proceeds earned from representing
Steinberg, Moorad, & Dunn clients in perpetuity. The Ninth Circuit
felt that the entire judgment against Dunn was tainted by the
submission of the statutory unfair competition claim because, under
California state law, it is an equitable claim and does not provide
for either damages or a jury trial. See Steinberg Moorad & Dunn
Inc., a California Corporation v. Dunn, 136 Fed.Appx. 6 (9th
Cir.2005).

52

An athlete representation agency moved to compel arbitration of

breach of contract claims against it by agent Kim Grillier after he
failed to receive a percentage of fees earned by NBA clients that he
recruited. There was a written consulting agreement when Grillier
originally joined the agency as an independent contractor. It was
stipulated that disputes would be settled in arbitration. Three years
later, he allegedly became an official employee under an oral
contract, Frillier argues that this agreement did not provide for
dispute arbitration. Grillier was granted compensation for players
he recruited as an independent contractor but denied claims
premised on the alleged oral contract. The arbitration clause in the
consulting agreement contemplated disputes related to
compensation, so it was broad enough to encompass claims related
to the agency’s alleged promise. If there was any doubt whether the
arbitration claim continued to apply, it must be resolved under the
FAA. However, the language of the written agreement did not
contemplate disputes related to compensation earned by Grillier if
he became an employee. Grillier v. CSMG Sports, LTD., 2009 WL
87152 (E.D. Mich.), mot. to compel arbit. gr. in part, 2009 WL
1689601 (E.D. Mich.).
In Miller v. Walters, 46 Misc. 3d 417, 997 N.Y.S.2d 237 (Sup.
2014), plaintiff sports management firm sues defendant’s sports
management firm for tortious interference with his contractual
relationship by the alleged “theft” of his client, NBA player Larry
Sanders. Plaintiff executed a Standard Player Agent Contract
before Sanders’

53

second season, plaintiff argues that Sanders was lured to defendant

by his girlfriend and a childhood friend. Sanders terminated his
contract with plaintiff and selected defendant to negotiate his
second contract. The court dismissed the complaint for failure to
state a cause of action.
 55

CHAPTER 3
FINANCIAL CONSIDERATIONS
The astute agent of a professional athlete, through tax and
financial planning, should maximize the athlete’s income and
minimize the tax bite on his earnings. Success is measured by the
athlete’s financial security at the time of his retirement from the
work force rather than at the end of his playing career. One must
strive to preserve capital and lessen any adverse tax consequences
during the peak income period.
A. TAXATION
Taxation is the application of tax rates to taxable income during a
given tax year. To determine an athlete’s tax liability one must
calculate the gross amount of all income attributed to the athlete-
taxpayer during the taxable year. After that, subtract from this gross
amount, all deductions; that amount is the taxable income figure
which will be used to determine the athlete’s tax liability by the
application of rates.
Income is a gain derived from any source whatsoever. It includes
not only salary, but also bonuses, prize money, the value placed on
interest-free loans, endorsement revenues, sportswear companies’
gift products, gifts for radio or TV appearances, employer-provided
insurance benefits in excess of $50,000.00, “free use of an
automobile,” etc.

56
 In Goosen v. C.I.R., 136 T.C. 547, 2011 WL 2271441 (2011),
appeal dismissed, 2012 WL 1155683 (D.C. Cir. 2012), Retief
Goosen, a non-domiciliary United Kingdom resident and famous
professional golfer, petitioned for determination of income tax
deficiencies and tax percentages for various categories of income,
including trading cards and luxury timepiece endorsements.
1. GROSS INCOME
An athlete’s gross income is where many of the athlete’s expenses
can be deducted. Gross income can be reduced by deductions for
business-related expenses. Business-related expenses are all the
ordinary and necessary expenses that are incurred by reason of an
athlete’s performance in an athletic event including the cost of tools
of his trade, expenses related to maintaining a good physical
condition, travel, professional services, business entertainment and
necessary gratuities. In order to prove the deductibility of an
expense, the athlete must maintain a system of record-keeping of
expenditures so that the business expense deduction can be
maximized and all expenses can be monitored to determine if they
are excessive.
2. PLANNING
The crux of the “problem” is that, typically, athletes receive a
large amount of income in a very short amount of time. Therefore,
tax planning is imperative. The purpose of this planning is to
maximize the benefit from those years in which a

57

high income is recognized by spreading the tax liability to those

years of lower income. There are many different ways that one can
arrange a tax plan. These arrangements can include deferred
compensation plans, tax sheltered investments, and other
contractual arrangements that spread out the receipt of income over
a period longer than the playing period of the athlete.
In Anderson v. Branch Banking and Trust Co., 56 F.Supp. 3d
1345 (S.D. Fla. 2014), 15 current and former NFL players entered
into separate “Client Service Agreement” with sports agency under
which the agency would provide each player with tax planning and
counseling. The agency deposited tens of millions of dollars of
plaintiffs’ money into defendant’s bank, however, some of these
accounts were illegitimate, and some were opened using forged
signatures. Plaintiffs’ claims for refund of unauthorized and
ineffective funds transfer survives defendant’s motion to dismiss.
B. ASSIGNMENT OF INCOME
The idea behind income assignment is to avoid realization of
income from professional services as an athlete by assigning a
portion of that income to a third person. This assignment would
reduce overall tax liability by spreading the income to another
person who is in a lower marginal tax bracket than the athlete.
It is a good strategy, however, an attempted assignment will be
nullified unless it avoids the assignment of income doctrine which
stipulates that

58

he who is entitled to income cannot circumvent tax liability by

causing it to be paid to another through an anticipatory assignment.
There must be a legitimate basis for the other person to receive the
assigned income from the athlete. The way to establish this basis is
to show that the recipient performed valuable services which aided
in the production of the income so as to be entitled to the
assignment. The highest tax rate in 2009 was 35 percent, any
technique that required the assignment of $1.00 to save 35 cents
would be of dubious value. This technique is advisable only if tax
rates increase. However, in 2016, the highest tax rate is 39.6%.
C. DEFERRALS
The principle behind deferring income is to lessen tax liability by
prolonging the incident of taxation from the years in which the
athlete earns income to a time in the future. An employee can
arrange income deferral through his employer by way of the
contract or it can be arranged separately by either the athlete or the
athlete’s agent. Income can be deferred through pension plans, by
contract or by the receipt of restricted property. The latter technique
can be accomplished through “substantially nonvested property.”
That is, property that is not required to be included as income until
the first time that the beneficial percentage in the property becomes
substantially vested.

59

1. BY CONTRACT
Deferral of the receipt of income can be arranged by way of
contract through the SPK. The contract can stipulate that the
payment of income will be extended over a period of years and
paid in equal sums during each year of that period.
2. BY PENSION PLANS
An extremely popular deferral plan is one arranged by a pension
plan that can be created by or for the benefit of a professional
athlete. These plans can be individually negotiated or they can be
the result of a collective bargaining agreement. A qualified pension
plan will provide several benefits including deferring the income to
later years to the extent of the employer’s contributions; making the
employer’s contribution deductible, and tax-deferring the pension
income.
For relatively high-paid athletes, the most important fact of a
qualified pension plan is the extent of the tax reduction on current
income. Usually, the athlete will receive monthly payments on
retirement or disability. These payments are a part of the athlete’s
income. The athlete, however, can exclude an amount equal to a
portion of the higher payment into the plan. This portion is
determined by the exclusion ratio which is determined by dividing
the athlete’s investment by its expected return. The amount to be
excluded will equal the figure that is produced by multiplying
payment by the percentage. Since most athletes do

60

not personally contribute to the pension plan, then all of the

payments will be included as income.
One other option is a pension plan that is available to the athlete
who does not participate in team or league plans. These plans
usually cover non-team sports, such as tennis or golf, and allows
the athlete as a self-employed person to be treated as both employer
and employee for pension plan purposes.
The final option concerns individual retirement accounts. These
accounts are for those people who are not active in a qualified plan
and could be established by the athlete for a non-working spouse.
The athlete then can contribute and deduct a maximum of $5,000
of the compensation included in the gross income for the taxable
year. The nondeductible contribution is advisable because the
income earned on the contribution is tax-deferred until final
withdrawal. Penalty-less withdrawals are not permitted prior to age
59 1/2 and do not qualify for the five year forward averaging rule
for lump sums under qualified plans. Currently, the most attractive
option appears to be the Roth IRA; this is yet another retirement
vehicle that affluent athletes can utilize. A tax advisor should
suggest the appropriate retirement option.
3. SUBSTANTIALLY NON-VESTED PROPERTY
Another deferral technique concerns substantially non-vested
property which is property that is transferred in connection with the
performance of services. The value of this property does not have
to

61

be included in the athlete’s income until the first time its beneficial
interest becomes substantially vested; that is, until it is transferable
or no longer possesses a substantial risk of forfeiture. This
mechanism can provide the athlete with a means of deferring
income recognition while providing some security.
The athlete can acquire possession of property at the time services
are rendered while allowing taxation deferral until the time when
there is a lapsing of a substantial risk of forfeiture. For this to work,
the athlete must have the party to whom the services are to be
rendered take the deferred amount and purchase the type of
property that is preferred by the athlete, e.g., corporate stock or real
property. This property then must be transferred to the athlete with
a restriction that would qualify as a substantial forfeiture risk such
as a provision that would require the athlete to transfer the property
to the other party in the event that the athlete ends his athletic
services during a particular period of time.
D. TAX-SHELTERED INVESTMENTS
 Another method to lessen taxes is through tax-sheltered
investments. These investments are those that through appropriate
deductions shelter the athlete’s income from tax liability. Although
such investments vary in kind and activity, they often possess the
following tax-minimizing characteristics: leveraging, tax-deferral
and tax-free cash flow.

62

Leveraging: Some tax-shelters offer the investor the use of

someone else’s money to finance an investment. This is called
leveraging.
Tax-deferral: When an investment permits deductions to be
accelerated in the early years of the investment and applied to the
investor’s other income, such an investment offers tax-deferral.
Positive cash flow: When a tax-sheltered investment combines
deductions with investment income and generates both
simultaneously; the investor receives all the cash that exceeds
actual expenses.
Two programs that remain viable are real estate investments
especially in low income housing, and oil and gas. However, as
with any investment, these programs involve a degree of risk. Thus,
a professional athlete must carefully evaluate each program prior to
making the investment.
E. INCORPORATION
Another form of temporary tax planning is to create a personal
services corporation based on the athlete’s athletic participation,
commercial endorsements, etc. This type of corporation is
organized for the purpose of using the athlete’s abilities. The
athlete will form the corporation and then become its major
shareholder. He is obliged to perform specialized services with the
corporation which would then contract with the sports team. This
type of corporate structure allows a deferral of income by the
adoption of a corporate pension and

63

profit sharing plan along with a corporate fiscal year.

The corporation can adopt corporate fringe benefits programs and
can also allow the creation of various estate planning advantages
that are offered by the corporate form of organization. The
corporation, though, must have some other purpose than merely
avoiding taxes. See Leavell v. C.I.R., 104 T.C. 140 (1995).
F. FINANCIAL PLANNING
The aims of planning should be capital preservation, tax
minimization, protection against risk and an orderly estate plan.
The primary objective of financial planning is to increase long-term
capital at the expense of current income.
The four basic ways of managing an athlete’s assets are to let him
decide his own choices, invest in mutual funds, turn the account
over to a broker or retain an investment manager. The latter is the
most preferred since the investment manager acts as a personal
agent and is not a broker.
An investment manager makes decisions on an investor’s behalf
based upon research of the investment’s potential. Rather than
receiving payment for each stock transaction, the manager is paid
an annual fee for structuring an investment portfolio. As part of this
structure, the manager will invariably attempt to achieve financial
security for the athlete’s investments.
 64

1. PRESERVATION OF CAPITAL
The number of years the average professional athlete can compete
is extremely short: for example, approximately 3.5 years in football
and 5.6 in baseball. Since the athlete will probably have 40 or so
years until retirement age it is imperative that a strategy be adopted
to maximize his investment portfolio. There are many products that
can assist in achieving the goal of capital preservation such as
certificates of deposit, common stock and annuities. An annuity is a
contract between the athlete and an insurance company for fixed
payments at regular intervals over some period of time. An
example would be a 30-year-old athlete who purchases an annuity
for $100,000 with payments of money per month beginning at age
45.
2. TAX MINIMIZATION
The planner also should consider the following tax measures to
minimize the income tax burden of the athlete:
1. Making a contribution to an IRA for a non-working spouse.
All income earned on the IRA is tax-deferred until final
distribution.
2. Making Keogh contributions: for athletes with substantial
endorsement income, contributions of up to the lesser of
$49,000 or 25% of this self-employment income are
allowable. Endorsement income is normally self-
employment income. This presents an opportunity for
savings.

65
 3. Converting taxable income into tax-exempt income.
4. Making family gifts so that earnings can be removed from
income.
5. Making contributions to a college fund for the athlete’s
children.
6. Converting personal non-deductible interest into qualified
residence income.
3. PROTECTION AGAINST RISK
There is an ongoing struggle between investing in assets that
appreciate rapidly and investing in assets that protect against risk.
Since the money that the athlete can earn from his skills is finite, it
is imperative that he does not lose money. Therefore, investment
plans should be balanced against his risk. Conservative instruments
such as certificates of deposit and money market funds are
available but the skilled investment professional should be capable
of structuring a more profitable conservative plan while retaining
emphasis on preservation of capital. This approach can achieve a
higher return at little risk to the athlete/investor.
4. ESTATE PLANNING
Estate planning is important for athletes since they risk accidental
death with every tackle or misplaced fast ball. An athlete should
have a will to pass title to property on death. A will can be used to
place funds in a trust for the benefit of others unable to manage
property. For example, a trust

66

can be used to educate and care for the deceased athlete’s children;
and when they reach maturity, provide for the principal to be paid
out as specified in the will.
Another aspect of estate planning is the creation of a revocable
trust. A trust takes effect at the time of its creation and operates as a
will substitute. A trust is an agreement between grantor and trustee
which contains instructions to the trustees so as to assist in the
disposition of the property that is transferred to the trustee.
Revocable trusts seldom establish a workable asset management
arrangement during the athlete’s life; a durable power of attorney
provides for continued action on behalf of the athlete upon
disability that renders him incompetent. An added advantage of a
trust is that trust property is not subject to probate upon the owner’s
death. The trust can be freely revoked or amended during the
owner’s life and the cost and delays are less than those in an
administration of a will.
Estate tax is the government’s tax on the value of property that
passes from a person who has died to his beneficiaries. The tax is
assessed against the fair market value of all property that was
owned by the decedent upon death. Estate tax is calculated on the
taxable estate which is the gross estate less deductions and credits.
There is a marital deduction which allows an unlimited deduction
for property passing from the decedent to the surviving spouse.
There is also a charitable deduction which can benefit the athlete in
his estate plan by providing a

67

deduction from estate taxes. Like property that passes to a spouse,

property that passes to a qualified charity is also deductible from
the gross estate. While spousal and charitable deductions are
deducted from the athlete’s gross estate, the “unified credit” is
applied to reduce the tax itself. This credit can currently eliminate
estate taxes on $5,450,000 worth of property.
There is also a generation skipping tax which is a separate tax
designed to prevent avoiding estate or gift taxes which would have
been applicable if the property in question had first been given to
the intervening generation and then transferred to the
grandchildren. However, there’s a significant exemption from
generation-skipping taxes which allows each individual today to
transfer up to $5,450,000 of property, free from this tax.
Life insurance is yet another aspect of many financial plans.
Because of their age and robust physical condition life insurance is
readily obtainable at a reasonable price by professional athletes.
Insurance proceeds can be important to his family if the athlete
does die young. These proceeds can be used to pay debts, taxes,
bequests, and/or provide funds for trusts for family members of the
athlete.
 69

CHAPTER 4
LABOR LAW
A. NATIONAL LABOR RELATIONS ACT
Union-management relations in professional sports are controlled
under the auspices of the National Labor Relations Act (NLRA), 29
U.S.C.A. §§ 151–166. However, sports for many years was viewed
as an anomaly that was not a business, and it thus escaped the
protection of the NLRA during those years. Baseball, for example,
in the early days was a classic case of management abuse. Yet, in
Federal Baseball Club, Inc. v. National League of Professional
Baseball Clubs, 259 U.S. 200 (1922), the Supreme Court excepted
baseball and the reserve clause from antitrust regulations, thus
stagnating any attempts by the players to organize as a union.
But, professional sports include other employees than just
athletes. There are also the relatively low-paid club house
attendants, bat boys, traveling secretaries, physical therapists,
ushers, ticket sellers, etc. Collective bargaining and the umbrella
protection of the NLRA finally came to baseball in 1969.
In American League of Professional Baseball Clubs, 180
N.L.R.B. 190 (1969), the National Labor Relations Board (NLRB)
moved to take jurisdiction over professional baseball. The NLRB
can decline jurisdiction when a particular industry’s impact on
interstate commerce is deemed to be insubstantial.

70
The NLRB has accordingly declined jurisdiction over some forms
of recreational activity, for example, harness racing. Yonkers
Raceway, Inc., 196 N.L.R.B. 373 (1972); see also Centennial Turf
Club, Inc., 192 N.L.R.B. 698 (1971). However, the NLRB will
generally take jurisdiction of all organized team sports.
American League of Professional Baseball Clubs involved
baseball umpires. The NLRB held that since baseball is an industry
that affects commerce it is subject to the coverage and the
jurisdiction of the NLRB. The policy of the NLRB is to encourage
collective bargaining through the protection of the rights of
employees to self-organize and choose the representation of their
choice. These goals were felt to be best served by asserting
jurisdiction over professional baseball and thus subjecting all labor
disputes to determination under the NLRA. The NLRB also
specifically took jurisdiction over professional football in National
Football League Management Council, 203 N.L.R.B. 958 (1973).
The NLRB’s § 7 demands that “employees should have the right
to self-organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities
for the purpose of collectively bargaining or other mutual aid or
protection.” The NLRB was formed to administer and police these
§ 7 rights: the NLRA applies to all employers whose business
affects commerce, although the NLRB can decline to intervene if
the effect on commerce is minimal. Today, there is no question that
professional sports

71

and the corresponding collective bargaining relationship between

players and management falls firmly under the NLRA’s protection.
 Richie Phillips, former Chief of the Major Leagues Umpires
Association (MLUA), sued MLB and everyone else for his demise
as chief. He claimed interference with existing and prospective
contractual relations and conspiracy—these claims arose from his
failed labor negotiation tactic when he suggested a mass
resignation, instead of striking. A majority of MLUA’s members
followed his suggestion, but MLB countered by hiring minor
league umpires. Some of Richie’s army panicked and withdrew
their resignations; and MLB hired back all but 22 of the MLUA
umpires. MLUA was not amused with Richie’s failed strategy.
Another union was formed to compete with MLUA. A new union,
represented by Robert Shapiro filed a successful petition with the
NLRB to decertify MLUA. Phillips failed to meet his burden that
defendants had specific intent to harm him. Additionally, all of
defendant’s actions, including decertifications, were within their
power under the National Labor Relations Act. Phillips v. Selig,
2007 WL 711820 (Pa. C.P. 2007).
College scholarship athletes were able to unionize after the
NLRB regional decision that allowed Northwestern University
scholarship athletes the ability to unionize. In this decision,
scholarship athletes were deemed to be “employees.” As
employees, they will be taxed. This presents a conflict between the
union’s right of freedom of

72

association and freedom of speech versus the NCAA’s and the

college’s constitutional rights. Also, many states do not view
college scholarship athletes as employees. However, the NLRB
reversed on limited grounds. Northwestern Univ. and College
Athlete Players Ass’n., case 13–RC–121359 (NLRB, Region 13,
March 26, 2014), rev’d (NLRB, Aug. 17, 2015).
 Legendary defensive end, Reggie White passed away in 2004, but
the class action that bears his name lives on in federal court. In
1993, a class of plaintiffs represented by White settled an antitrust
lawsuit with the National Football League by signing an extensive
collective bargaining agreement and the Stipulation and Settlement
Agreement (SSA) that governed labor relations between the
League and its players for almost two decades. In 2011, the NFL
Players’ Association and several law firms authorized to represent
NFL players’ sued the League, asserting that the League had
violated the SSA in 2010 by instituting a secret cap on player
salaries. The League and the Association settled this lawsuit as
well, this time by signing a Stipulation of Dismissal.
In White v. National Football League, 756 F.3d 585 (8th Cir.
2014), the Association asserts that the dismissal is invalid because
the district court never approved it and should be set aside under
F.C.R.P. 60(b) because the League secured the dismissal by fraud,
misrepresentation, or misconduct. The court allows the Association
to seek Rule 60(b) relief from dismissal, however, the court
emphasizes that this

73

does not, in any way, express the court’s view of the merits of the
Association’s Rule 60(b) motion.
B. UNIONS AND MANAGEMENT
It was a tough struggle for unions to organize in professional
sports: management was especially adamant in the defense of what
they considered their personal and private fiefdom. For many years,
labor groups were not sufficiently organized to be recognized as
unions by the NLRA. Even after recognition, the relationship
between unions and management was stormy, with the owners’
behavior characterized by a demeanor that was both procrastinating
and bullying.
The first question the NLRB must decide when considering if a
particular industry is eligible for protection under the NLRA is
whether the coverage of the NLRA is broad enough to include that
industry. The NLRB answered in the affirmative regarding the
sports industry, since the effect of professional sports on commerce
is not minimal.
Next, the NLRB must determine the appropriate bargaining unit.
In most sports, the unit is determined to be the sport as a whole
instead of individual teams or particular positions (e.g., not a union
for catchers only). Once a union is recognized it becomes the
exclusive bargaining representative for all members of the unit.
In North American Soccer League v. NLRB, 613 F.2d 1379 (5th
Cir.1980), the court found the bargaining unit to be all professional
soccer players

74

on clubs that are based in the United States. The court held that the
league and its member clubs are joint employers. The key to the
decision was the joint employer status of the individual teams and
the league. The court, however, was momentarily swayed by the
apparent individuality of each team: “Contrary to our first
impression, which was fostered by the knowledge that teams in the
League compete against each other on the playing fields and for the
hire of the best players, * * * .” However, after further
consideration, the court agreed with the NLRB that there was a
joint employer relationship among the league and its member
clubs; they then designated the league as the appropriate bargaining
unit.
 The NLRB is not required to select the most appropriate
bargaining unit, but only to choose an appropriate unit under the
circumstances. The NLRB’s decision not to exercise jurisdiction
over the three Canadian clubs did not undermine its evidentiary
base for their finding that there was a joint employer relationship
between the league and the clubs.
There is one caveat. The duty to bargain requires that both sides
must bargain in good faith. Section 8(d) of the NLRA states that
both parties must meet at reasonable times and confer on
mandatory subjects of collective bargaining. The failure to do so is
an unfair labor practice. This duty to bargain in good faith can be
defined as a willingness to enter in negotiations with an open and
fair mind and with a

75

sincere desire to find a basis of agreement. The duty to bargain

calls for sincerity, not results.
An example of the above process was revealed in NFLPA v.
NLRB, 503 F.2d 12 (8th Cir.1974). In the case, various National
Football League owners and their management council unilaterally
promulgated and implemented a rule that provided for an automatic
fine against any player who left the bench while there was a brawl
or altercation on the playing field. The unilateral enactment of this
rule without the benefit of collective bargaining was an unfair labor
practice. This rule was an unfair labor practice since it involved a
mandatory subject of collective bargaining and should have been
sifted through the collective bargaining process. Also, the c.b.a.
itself provided that any change in current practices that affect the
players’ employment conditions shall be negotiated in good faith.
 The union has the responsibility to fairly represent all members of
the bargaining unit, even those who are not members. This is the
duty of fair representation. In order to prove a violation of this duty
one must show that the union acted arbitrarily or in bad faith. For
example, a union always defends any of its players when they are
disciplined for clubhouse brawls, but then the union ignores one
particular player who happened to be anti-union. This case would
reflect a violation of the duty of fair representation.

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C. COLLECTIVE BARGAINING GENERALLY

Collective bargaining is the process under the NLRA where
owners and the players’ union participate in a give-and-take that
produces a document which is called the collective bargaining
agreement (c.b.a.). This document establishes the rules and
regulations of their relationship. Once they have entered into
collective bargaining, they are obliged to bargain in good faith. The
failure of either party to bargain in good faith is an unfair labor
practice.
The subject matter of collective bargaining, that is, what must be
discussed at the bargaining table, includes wages, hours and
conditions of employment. There are also permissive subjects of
bargaining which include anything other than wages, hours and
conditions. The parties must bargain in good faith about mandatory
subjects, but they may refuse to bargain about permissive subjects.
A party may insist that the other party agree to their proposal on a
mandatory subject, even to the point of impasse. If an agreement
does not materialize, a party then may resort to economic pressure,
i.e., strikes or lock-outs, without risking NLRA §§ 8(a)(5) or 8(b)
(3) unfair labor practice charges. This is important because if a
strike is an unfair labor practice, it can be enjoined.
Brady v. NFL is comprised of five opinions from the Minnesota
District Court and Eighth Circuit Court of Appeals written from
April 25, 2011, to July 8, 2011. In her April 25, 2011 opinion,
Judge Susan Richard Nelson of the District Court of

77

Minnesota gave the locked-out NFL players a great bargaining

advantage in a lawsuit of prospective, current, and retired
professional football players who brought actions against the
professional football league and its 32 separately-owned teams,
seeking a declaratory judgment, injunctive relief, and damages,
alleging antitrust violations, breach of contract, and related tort
claims based on defendants’ actions in inter alia, imposing a
“lockout” or “group boycott” of players. After actions were
consolidated, players moved for a preliminary injunction, which
Judge Nelson surprisingly granted. The decision would not stay the
union’s decision to decertify as a union. The opinion held that the
union’s “disclaimer” or decertification was effective. Importantly,
she held that the Norris LaGuardia Act did not preclude issuance of
an injunction.
To Judge Nelson, after decertification, the conflict between the
league and its players was no longer a “labor dispute” subject to the
NLRA. This opinion and the granting of a preliminary injunction
was vacated and remanded by the Eighth Circuit on July 8, 2011.
However, by this time the parties were well on their way to solving
their labor problems and completing the CBA. The Circuit Court
held that Norris LaGuardia deprived the federal courts of the power
to issue an injunction prohibiting a party to a labor dispute from
implementing a lockout of its employees. Brady v. NFL, 779
F.Supp. 2d 992 (D. Minn. 2011), mot. for stay pend’g app. den.,
779 F.Supp. 2d 1043 (D. Minn. 2011), order vac’t’d 644 F.3d 661
(8th Cir. 2011) (short hand version).

78

In Eller v. National Football League Players Ass’n, 731 F. 3d 752

(8th Cir. 2013), retired NFL players filed class action lawsuit
against NFLPA and certain Brady plaintiffs alleging that
defendants wrongfully barred retirees from the Brady plaintiffs’
settlement negotiations, negotiated on retirees’ behalf without
authority, and ultimately agreed to a CBA with fewer benefits for
retirees. Defendants’ motion to dismiss all claims was affirmed.
D. THE COLLECTIVE BARGAINING AGREEMENT
Collective bargaining agreements express the complete range of
relationships between management and their athlete employees.
This document will specify the scope of the union—management
agreement and will prohibit the use of either strikes or lockouts.
Although the collective bargaining agreement will vary with the
sport, it will cover at a minimum the following: club discipline,
non-injury grievances, commissioner discipline, injury grievances,
the SPK, college draft, option clauses, waivers, base salaries,
access to personnel files, medical rights, retirement, insurance and
the duration of the c.b.a.
In Garvey v. Roberts, 203 F.3d 580 (9th Cir.2000), a celebrated
former baseball player won a part of the baseball collusion
settlement ex post facto. The 9th Circuit ruled on February 10,
2000, that a district court improperly refused to consider former
major league baseball all-star Steve Garvey’s appeal
 79

of an arbitration decision denying him a portion of the settlement

fund established as a result of Major League Baseball owner’s free
agent collusion in the 1980’s. In 1986–88, the union filed
grievances alleging collective bargaining agreement violations by
engaging in collusion in the market for players’ free agent services
after the 1985–87 seasons. Arbitrators agreed and on December 21,
1990, a settlement agreement was reached that established a $280
million fund that would be distributed to players who were
financially damaged as a result of the collusion. A framework was
put into place to distribute the funds properly. Garvey claimed he
was entitled to a piece of the settlement because the San Diego
Padres, for which he had played the prior four seasons, had offered
him a $3 million contract extension for the 1988 and 1989 baseball
seasons only to withdraw the offer due to the club’s collusion. The
Ninth Circuit overruled the arbitrator, since he ignored the recently
obtained letter from the former Padres’ CEO Ballard Smith that
substantiated Garvey’s allegations. The court found this letter to be
credible, whereas Smith’s testimony during Garvey’s original
hearing clearly was not credible.
However, the U.S. Supreme Court in Major League Baseball
Players Ass’n v. Garvey, 532 U.S. 504 (2001), held that the Court
of Appeals erred in reversing the denial of the motion and in
directing the arbitrator to enter judgment for Garvey. The appellate
court usurped the arbitrator’s role by resolving the dispute and
barring further

80

proceedings, a result at odds with the governing law.

 In Metropolitan Sports Facilities Commission v. Minnesota Twins
Partnership, 638 N.W.2d 214 (Minn.App.2002), the Minnesota
Court of Appeals blocked professional baseball’s contraction
scheme regarding the Minnesota Twins. The Metropolitan Sports
Facilities Commission, which operates the Metrodome in
downtown Minneapolis, settled its lawsuit against the Minnesota
Twins and Major League Baseball, insuring that the Twins will be
playing in that stadium through the 2003 season. Under terms of
the settlement, MLB will not contract the team out of baseball
during those two seasons. The Twins also agreed to a lease
extension to play in the Metrodome through the 2003 season. News
leaked out that baseball intended to eliminate two teams. The
Commission then brought suit, seeking to enjoin Major League
Baseball from rescinding the Twins franchise for the 2002 season
on the ground that the team was contractually obligated by its
stadium lease to play the 2002 season in the Metrodome. A TRO
and then a preliminary injunction was granted. The Minnesota
Court of Appeals affirmed and concluded that the team’s lease
agreement warrants such equitable relief and that the lower court
did not abuse its discretion in granting it.
In White v. NFL, 899 F.Supp. 410 (D.Minn.1995), (one of many
cases under that name issued by Judge Doty, the special master
who brokered the stipulation and settlement agreement (SSA) that

81

settled an earlier lawsuit between the National Football League and

the National Football League Players Association), under the NFL
collective bargaining agreement, a football player was entitled to
become an unrestricted free agent if he had four or more accrued
seasons. The c.b.a. further specified that a player was credited with
an accrued season if he was on full pay status for six or more
regular season games. The special master determined that he was
prevented from receiving a fourth accrued season, thereby denying
him unrestricted free agency, since his team had a bye week during
one of his qualifying weeks. The sole question before the court was
whether the bye week, during which the player was on full pay
status, counted as a “game” for purposes of defining an accrued
season under the c.b.a. provisions. The special master concluded
that its clear language provided that a player would only be
credited with an accrued season if he was on full pay status for a
total of six or more regular season games in a given year and that
games played by other terms during a week in which a player’s
team had a bye did not count toward the calculation of an accrued
season. After a de novo review, the court concurred and affirmed
the decision.
White v. NFL, 149 F.Supp.2d 858 (D.Minn.2001) (re Kyle
Richardson), was a case which arose out of a proceeding
commenced by class counsel and the NFLPA regarding the status
of Kyle Richardson, a punter for the Baltimore Ravens. Under the
Collective Bargaining Agreement, an NFL player is entitled to
become an unrestricted Free Agent if he has four or more Accrued
Seasons. The CBA further

82

specifies that a player is credited with an Accrued Season if he was

on full pay status for six or more regular season games. Richardson
has three Accrued Seasons in the NFL apart from his service in
1997. On class counsel’s objections to the special master’s
decision, the court held that games played by other professional
football teams during a week in which punter’s team had a bye
could not count as a “game” for the player for purposes of
calculating an “Accrued Season.”
 The following is a so-called “free-agent glossary” for the
National Football League, as of March 2, 2002, when free agency
began for 2002:
EXCLUSIVE RIGHTS FREE AGENT—A player whose contract
expires at a time when he has fewer than three accrued seasons in
the NFL can’t market his services to other teams if his former team
gives him a minimum salary tender on or before March 1. If the
tender is provided, the player can only sign with his old team
unless the tender is later withdrawn.
RESTRICTED FREE AGENT—A player whose contract expires
when he has three accrued seasons is in this category in a capped
year. If his former club provides him with sufficient qualifying
offer on or before March 1, it retains the right to either match an
offer the player gets from another team or receive draft
compensation from the team making the offer.
UNRESTRICTED FREE AGENT—A player whose contract has
expired when he has

83

accumulated at least four accrued seasons in a capped year is free

to sign with any other team if he does so by the beginning of
training camp of the same year. If he does not sign elsewhere, the
exclusive rights revert to his former team after that date provided
the former team has given him a written tender by June 1, offering
to re-sign him for an additional year at a 10 percent increase in
salary.
FRANCHISE PLAYER—Each team can designate one player
who otherwise would be an unrestricted free agent as a franchise
player. The team must tender the franchise player a one-year offer
equal to the average of the top five salaries in the league at his
position or a 20 percent salary increase, whichever is greater. The
former team can match any offer to retain the player or receive two
first-round draft picks if it decides not to match.
A TRANSITION PLAYER—A team can elect to use a transition
player designation for one free agent instead of using a franchise
player designation. If it does so, the team must tender the player a
one-year offer equal to the average of the top 10 salaries in the
league at his position or at a 20 percent increase, whichever is
greater. A transition player can obtain an offer from another team,
but his former team can match if it chooses. No draft choices can
be collected as compensation for losing a transition player.
The National Basketball Association and the National Basketball
Players Association reached a new collective bargaining agreement
that will run

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through the 2020–21 season, while allowing either party to opt out
of the agreement after the 2016–2017 season by submitting a
proposal before December 15, 2016.
The National Hockey League and the National Hockey League
Players Association reached a new collective bargaining
agreement, which will run through the 2021–22 season, while
allowing either party to opt out of the agreement in 2020 by
submitting a proposal in September 2019.
On August 5, 2011, after the longest lockout in league history, the
NFL and NFLPA reached a new collective bargaining agreement,
which will run through the 2020 season with no opt-out clause.
On November 30, 2016, the Major League Baseball Players
Association reached a deal with Major League Baseball to finalize
a new 5-year Collective Bargaining Agreement on the eve of the
expiration of the previous deal. The new c.b.a. will assure labor
peace through 2021, by which time Major League Baseball will
have enjoyed 27 consecutive years without a lockout or strike since
1994.
During the period from 1972 to 1995, there were a total of eight
work stoppages as a result of stalled or unsuccessful negotiations
between the union and ownership. The unrest culminated in 1994
when the MLBPA elected to strike in August, almost two-thirds of
the way into the season. The strike led to the cancellation of that
year’s World Series and a delay in the start of the 1995 season.

85

The highlights of the NFL labor agreement as negotiated

throughout the 2011 lockout are as follows:
ECONOMICS
Salary cap plus benefits of $142.4 million per club in 2011
($120.375 million for salary and bonus) and at least that
amount in 2012 and 2013.
Beginning in 2012, salary cap to be set based on a combined
share of “all revenue,” a new model differentiated by revenue
source with no expense reductions. Players will receive 55%
of national media revenue, 45% of NFL Ventures revenue and
40% of local club revenue.
Also beginning in 2012, annual “true up” to reflect revenue
increase or decreases versus projections.
Clubs receive credit for actual stadium investment and up to
1.5% of revenue each year,
 Player share must average at least 47% for the 10-year term
of the agreement,
League wide commitment to cash spending of 99% of the
cap in 2011 and 2012.
For the 2013–2016 seasons, and again for the 2017–2020
seasons, the clubs collectively will commit to cash spending of
at least 95% of the cap.

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Each club will be committed to cash spending of 89% of the

cap from 2013–2016 and 2017–2020.
Increases to minimum salaries of 10% in Year one with
continuing increases each year of the agreement.
PLAYER AND HEALTH SAFETY
Reducing the offseason program by five weeks, reducing
organized team activities from 14 to 10.
Limiting on-field practice time and contact.
Limiting full-contact practices in the preseason and regular
season.
Increasing number of days off for players.
Opportunity for current players to remain in the player
medical plan for life.
An enhanced injury protection benefit of up to $1 million of
a player’s salary for the contract year after his injury and up to
$500,000 in the second year after his injury.
No change to the 16-game regular-season/4-game preseason
format until at least 2013; any subsequent increase in the
 number of regular-season games must be made by agreement
with the NFL Players Association.
$50 million per year joint fund for medical research,
healthcare programs and NFL

87

Charities, including NFLPA-related charities.

RETIRED PLAYER BENEFITS
Over the next 10 years, there will be additional funding for
retiree benefits of between $900 million and $1 billion. The
largest single amount, $620 million, will be used for a new
“Legacy Fund,” which will be devoted to increasing pensions
for pre-1993 retirees.
Other improvements will be made to post-career medical
options, the disability plan, the 88 Plan, career transition and
degree completion programs, and the Player Care Plan.
DRAFT AND FREE AGENCY SYSTEM
An annual draft of seven rounds, plus compensatory picks
for teams which lose free agents.
Unrestricted free agency for players after four accrued
seasons; restricted free agency for players with three accrued
seasons.
Free agency exceptions for franchise and transition players.
ENTRY LEVEL COMPENSATION SYSTEM
All drafted players sign four-year contracts.
Undrafted free agents sign three-year contracts.

88
 Maximum total compensation per draft class.
Limited contract terms.
Strong anti-holdout rules.
Clubs have option to extend the contract of a first-round
draftee for a fifth year, based on agreed-upon tender amounts.
Creation of new fund to redistribute, beginning in 2012,
savings from new rookie pay system to current and retired
player benefits and a veteran player performance pool.
2011–2012 TRANSITION RULES
Special transition rules to protect veteran player in 2011. All
teams will have approximately $3.5 million in what would
otherwise be performance-based pay available to fund veteran
player salaries.
Each club may “borrow” up to $3 million in cap room from
a future year, which may be used to support veteran player
costs.
In 2012, each club may “borrow” up to $1.5 million in cap
room from a future year. Both these amounts would be repaid
in future years.
OTHER
No judicial oversight of the agreement. Neutral arbitrators
jointly appointed by the

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NFL and NFLPA will resolve disputes as appropriate.

Settlement of all pending litigation.
E. CONCERTED ACTIONS
 The process of collective bargaining only works because of the
threat of concerted action that each party can legally invoke if
negotiation reaches an impasse. This is especially true in
professional sports where the season is only so long and the
athlete’s career is limited in duration. Even though the history of
collective bargaining in professional sports is not very long, there is
an almost annual ritual in the major sports of either concerted
actions, the threat of concerted actions or accusations of unfair
labor practices.
1. STRIKES
The NLRA guarantees employees, and thus professional athletes,
the right to engage in strikes and in other concerted activities. If
collective bargaining reaches an impasse then the players’ union is
legally allowed to strike. A strike is the failure to report to training
camp or to the playing field. The strike is the players’ primary
weapon in coercing the owners to either adhere to the players’
demands, compromise, or at least get back to the bargaining table
and continue to negotiate in good faith. All strikes are a double-
edged sword with the “winner” being the side that can most easily
withstand the economic hardships that concerted actions by nature
bring.

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This right to strike cannot generally be diminished or thwarted

and will receive considerable legal protection. Even though there is
a right to strike, the union must still continue to bargain in good
faith. The union will also lose their legal right to strike if it agrees
to a no-strike clause in the c.b.a., if the players’ union engages in
an activity that has an unlawful objective or if the union uses
improper means. The owners can impose sanctions on the strikers;
however, they are still employees and cannot be punished for any
unfair labor practices committed by management during a strike.
2. LOCKOUTS
On the other hand, the owners have the ability to lockout the
players, that is, to not allow the athletes to report to training camp.
The lockout is the owners’ primary economic weapon; it is the
power to withhold employment. It is used as a means to
economically coerce the players to either return to the bargaining
table and/or rekindle their desire to continue good faith
negotiations. Lockouts are legal as long as bargaining continues in
good faith and the lockout occurs only after impasse.
During the great NFL lockout of 2011, the owners suffered a
defeat in a case styled White v. NFL, 766 F.Supp.2d 941 (D. Minn.
2012), where the special master, Judge David Doty, held that the
NFL could not actively negotiate broadcast contracts to ensure
favorable changes for itself and disadvantage to the players, while
failing to seek revenue from

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modifications to the broadcast contract for seasons covered by the

Stipulation and Settlement Agreement (SSA) that had been entered
into between the league and players. This constituted breach of the
provision of the SSA requiring the league to use best efforts to
maximize revenue for the league and players during years covered
by the SSA. In short, it was illegal for the league to negotiate
broadcast agreements so as to ensure revenue for itself during
possible player lockout.
F. ARBITRATION AND MEDIATION
 The arbitration and mediation procedures in professional sports
are probably the most important result and ingredient in the
collective bargaining process. In fact, in baseball, the grievance
procedure which began in the 1970 c.b.a. helped to end the reserve
clause; and salary arbitration which began in the 1973 c.b.a. is
perhaps the greatest additive to the players’ quest for higher
salaries.
If there is an applicable clause, arbitration will be the exclusive
remedy for achieving peace. Courts rarely reverse an arbitrator’s
decision if the party seeking arbitration makes a claim that on its
face is governed by the arbitration provisions of the c.b.a. The
basic issue in arbitration is whether the dispute is “arbitrable,” that
is, is it within the range of matters that were intended to be
arbitrated through the grievance procedure.
The seminal case of Kansas City Royals Baseball Corp. v.
MLBPA, 532 F.2d 615 (8th Cir.1976), is a good illustration of how
grievance arbitration works

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in sports. In this case, a major league baseball team brought an

action against the players’ association to overturn an arbitration
award that ruled in favor of two professional baseball players who
played out their option years and then sought to be declared free
agents. The court’s review was limited to the legitimacy of the
arbitration process. The court’s favorable ruling was predicated on
the following: The arbitration provision of the c.b.a. was broad
enough to cover the dispute in question; there was nothing in the
history of their collective bargaining relationship that showed a
strong intent not to arbitrate grievances that involved the reserve
clause, that is, there was nothing to overcome the presumption that
the question of free agency was arbitrable; that the documents in
question (e.g., the c.b.a.) were at least susceptible of the arbitration
panel’s interpretation; that the decree was not impermissible
against other entities that were not party to either the arbitration or
the court proceedings; and that the decree was not vague and
indefinite as regards the granting of free agency.
In an SPK a party has certain rights. The question becomes how
to enforce these rights; the answer generally is arbitration. An
agreement to arbitrate is a promise to resolve disputes by non-
judicial means. Arbitration is preferred to judicial remedies because
it is more informal, less costly and less time-consuming. It is also
more private, which is important in an industry which is concerned
with its public image and constantly under intense media scrutiny.
The parties can pick the person who will hear the case which can
guarantee that that person

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is at least familiar with the peculiarities of the particular sport.

As regards determining what controversies are subject to
arbitration, one must look to the actual wording of the SPK. Most
sports contracts contain a very broad arbitration clause: it will
cover nearly all disputes. However, in most agreements the club
will still retain the right to seek judicial redress as regards the
players’ promise to perform exclusively for that club during the
term of the contract. Clubs want the power of an injunction to stop
players from club or league jumping.
Matters that are not subject to arbitration include controversies
not covered in the agreement, situations when the breaching party
waived his arbitration rights (e.g., initiating a law suit instead of
proceeding with arbitration) and cases where the court recognizes
certain claims that they believe require direct judicial enforcement
because of public policy reasons (e.g., equal employment or
antitrust).
There are few grounds for vacating an arbitrator’s award. A court
will set aside awards only in extreme cases; therefore, agents
should not approach arbitrations with a cavalier attitude. The
rationale behind the “finality” of the award is that the parties have
freely bargained away their rights to seek judicial remedies and
presumably each party has received something in return. Therefore,
the parties should be made to keep their bargain. Also, arbitration is
deemed to be a desirable mechanism for dispute resolution and as a
result, arbitration decisions should be maintained and honored.

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In Lindland v. U.S. Wrestling Ass’n, Inc., 230 F.3d 1036 (7th Cir.
2000), an arbitration award directing the United States wrestling
association to rerun a wrestling bout, after the original bout had
resulted in another wrestler, rather than the grievant, being
nominated a member of the United States Olympic wrestling team,
entitled the grievant to be nominated for the U.S. team after he won
the rematch. The arbitrator “did not order an exhibition match,” but
instead ordered that the bout was to “be re-wrestled” in accordance
with the association’s rules, which, in turn stated that its winner
would receive its support in going to the Olympic Games as the
U.S. representative. The fact that the first nominated wrestler had
initiated his own arbitration, thus creating the possibility that the
association would be subject to inconsistent awards, did not
absolve the association of the duty to implement the original
arbitration award. Moreover, the grievant was not required to have
named the first nominated wrestler as a party in the earlier
arbitration.
 Plaintiffs/football players filed an action pursuant to section 201
of the Labor Management Relations Act, 29 U.S.C.A. § 185 et seq.,
to enforce an arbitration award that resolved consolidated
grievances filed by plaintiffs pursuant to the 2006–2012 Collective
Bargaining Agreement and the NFL Players’ Contracts. The
plaintiffs include the Chicago Bears Football Club and the National
Football League Management Council, and the collective
bargaining unit responsible for negotiating player contract on
behalf of all NFL

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member clubs. The defendants are Michael Haynes, Joe Odom, and
Cameron Worrell, players that entered into the Agreements with the
Bears between 2003 and 2008, and the National Football League
Players Association, the collective bargaining unit responsible for
negotiating player contracts on behalf of NFL players, including
Haynes, Odom, and Worrell. Chicago Bears Football Club, Inc. v.
Haynes, 816 F.Supp.2d 534 (N.D. Ill. 2011). In 2009 and 2012, the
players filed claims for workers’ compensation benefits with the
California Workers’ Compensation Board seeking benefits under
the California Workers’ Compensation Act. Plaintiffs claimed that
the players violated their individual contracts by pursuing these
claims in California rather than in Illinois. The NFLPA disagreed,
and the matter proceeded to arbitration pursuant to the terms of
their agreements. The arbitrator held that Illinois law, not
California law, governs the formation of relevant agreements.
In Streeter v. Oakland Raiders, 2009 WL 33207401 (Cal. App.
Dist. 1), appellants Oakland Raiders and team owner Al Davis
appealed from an order denying their petition to compel arbitration.
They argued that respondent George Streeter waived any objection
to arbitrating his employment dispute with appellants by
voluntarily initiating binding arbitration. The California Appeals
Court, however, affirmed the trial court’s decision to deny the
Raiders’ motion to compel arbitration. The Raiders hired Streeter
in May 2007 after Davis offered him a job, Streeter claimed, and
appellants disputed, that he was hired for a term of one year. It

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is undisputed that there was no written contract between Streeter

and the Raiders regarding Streeter’s employment and Streeter was
fired in January 2008. Streeter spoke with a friend who worked in
the NFL about his termination, and the friend mentioned that
Streeter could contact the NFL for help. Streeter contacted the NFL
and was told to speak with Derrick Crawford, the NFL’s counsel
for policy and litigation/operations. According to Streeter,
Crawford told him that he should write a letter to the commissioner
of the NFL, that “this would be an informal process,” and that
Streeter did not need an attorney. Crawford did not use the word
“arbitration,” did not inform Streeter that he would be waiving his
right to pursue his claims in state court if he wrote to the
commissioner, and did not mention NFL guidelines that governed
dispute resolution. According to Streeter, following his
conversation with Crawford, Streeter believed that any grievance
he submitted would be “an informal mediation proceeding,
whereby the NFL would attempt to resolve the dispute,” and he did
not believe that he would be submitting his dispute to the NFL for
binding arbitration. After all, he was only employed for eight
months. Crawford wrote back with the heading “Dispute Certified
for Arbitration.” Streeter then allegedly hired an attorney and
initiated this lawsuit. The appeals court held that there was no error
in finding that Streeter had not agreed to submit his dispute to the
league’s dispute process or waived his write to object to it, nor did
he have a

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pre-dispute understanding that his grievances would be submitted

to arbitration.
The St. Louis Rams sought to compel arbitration of a dispute with
their former equipment manager. Plaintiff’s employment agreement
contained a provision that required them to refer any dispute to the
NFL Commissioner for resolution. Plaintiff was terminated from
his position and alleges age discrimination. The court holds that the
selection of an arbitrator in the contract is unconscionable. Here,
the arbitrator is a designee of the Commissioner, and the
Commissioner owes his position to the NFL teams (including St.
Louis). Also, the Commissioner’s decisions are final, binding,
conclusive, and unappealable. Therefore, the court will select a
(truly) neutral arbitrator. State ex. rel. Hewitt v. Kerr, 2013 WL
5725992 (Mo. Ct. App.).
Until his death in March of 2011, Gary Wichard was a certified
NFLPA Contract Advisor. In Wichard v. Suggs, 2015 WL 1321527
(E.D. Va.), the underlying arbitration award involved a contract
dispute between Wichard and NFL football player, Terrell Suggs.
Wichard was Sugg’s agent. The arbitrator found in favor of
Wichard’s estate and awarded the estate $172,800 in agent fees for
the 2013 season. The court confirmed the award and based its
decision on the fact that Wichard’s fee vested the moment he
negotiated Suggs’ 2009 contract. The amount of that fee was
finalized once Suggs received compensation for playing an NFL
season under the 2009 contract.
 98

1. GRIEVANCE
The standard grievance arbitration clause will usually stipulate
that all problems that arise out of a dispute or grievance that
emanates from an interpretation or misinterpretation of the c.b.a. or
SPK must be handled through agreed upon arbitration procedures.
Arbitration procedures are relatively standard in most SPKs and
c.b.a.s. Usually they deal only with grievance or contract disputes,
but, as in professional baseball, they can be formulated to deal with
other concerns, such as salary disputes.
The grievance arbitration procedure as usually stipulated in the
c.b.a. is an extremely practical method for both parties to settle
their differences. The purpose of this clause is to provide an orderly
and expeditious procedure for the handling and resolving of certain
disputes, grievances and complaints. Although it is similar to all
other sports, baseball’s arbitration procedure specifically excludes
the benefit plan, union dues check-off and complaints involving the
integrity of the sport.
Kansas City Chiefs Football v. Allen, 2013 WL 1339820 (W.D.
Mo.), stems from a standard arbitration provision in an NFL SPK.
The CBA includes a collectively-bargained standard NFL Player
Contract that each player enters into with an NFL Club. The NFL
Player contract provides that all disputes involving the
interpretation or enforcement of the CBA or NFL player contract
must be submitted to final and binding arbitration

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before a mutually selected arbitrator. Pursuant to the CBA, a “non-

injury grievance” may be initiated by a player, a member team, the
NFLMC, or the NFLPA by filing a written notice to the opposing
parties. Each NFL Player contract at issue in this case stated it was
made under and governed by Missouri law and contained a clause
governing the resolution of disputes concerning workers’
compensation claims. The plaintiffs filed “cumulative injury”
claims with the California Workers’ Compensation Appeals Board,
alleging injuries sustained at least in part while playing NFL games
in California. In Response, the NFLMC filed grievances against the
players, claiming each application for Workers’ Compensation
benefits in California violated the choice-of-law and/or choice-of-
forum provisions of each player’s NFL Player Contract with the
Chiefs. The court confirms the plaintiff’s arbitration award since
their review is limited because it is based on an underlying CBA
that does not offend public policy.
2. SALARY
In baseball, a player or a club is allowed to submit a dispute over
a player’s salary to binding arbitration without the consent of the
other party after a certain number of years in service have been
accumulated by the player. (It was two years, then it was three,
now, it falls between two and three years; more precisely, as a
result of the 1990 lockout, 17% of the two to three year players are
eligible for salary arbitration). The technique that is used in this
type of arbitration is called “high-low,”

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which means that both parties must submit proposed salary figures
to the arbitrator who then must choose only one figure, without
modification or compromise. The tool of the arbitrator and also the
tool for both the players and owners, is statistics: the player’s
statistics covering productivity, longevity, potential and comparable
worth as compared to like-situated players. Each party will offer
statistics in order to prove their contention that their salary figure is
most correct. The arbitrator must then decide the significance of
mutually contradictory figures and choose the one that he feels is
most correct. A major complaint about this type of arbitration is
that the arbitrator who is chosen (under mutual agreement by both
the union and the owners) is often lacking in the requisite baseball
expertise to properly decipher the often confusing statistics.
G. PREEMPTION SUITS
Both sides in a labor-oriented complaint, may claim that a state
issue is preempted by a federal statute, usually the Labor
Management Relations Act of 1947 (LMRA) (§ 301, 29 U.S.C.A.
§ 185). To survive preemption under the LMRA, a tort claim
asserted under state law must be independent of the collective
bargaining agreement, neither a tangential relationship to collective
bargaining agreement, nor a defendant’s assertion of the contract,
so as to preempt the claim under the LMRA. The court follows a
two-step approach to determine whether a state law tort claim is
sufficiently independent of a c.b.a. to survive

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preemption under LMRA. First, the court must examine weather

proof of the state law claims requires interpretation of c.b.a. terms.
Second, the court must ascertain whether the right claimed by the
plaintiff is created by the c.b.a. or by state law. A state law tort
claim is preempted under the LMRA unless the claim is created by
state law and does not require interpretation of a c.b.a. If a plaintiff
can prove all the elements of a state law tort claim without the need
for interpretation of a c.b.a., then his claim is independent of the
labor agreement and it is not preempted under the LMRA, but if
resolution of the state law claim is substantially dependent on an
analysis of the terms of the c.b.a. or inextricably intertwined with
it, then the claim is preempted by LMRA.
Doug Brocail is a professional relief pitcher and a member of the
baseball union. As such, his employment agreements with MLB
teams are subject to a c.b.a. negotiated between the players and
member clubs. Brocail sued the Tigers for injuries to his arm. He
was required to specifically accept the alleged failure of Tigers to
cite the specific provisions of the c.b.a. or player’s contract that
needed to be interpreted to resolve his tort claims. In Tigers’
motion for summary judgment, Brocail challenged the omission
substantially, instead of specifically excepting to the alleged
commission and thus his argument was waived. However, his state
law claims that require employers to provide reasonable medicals,
did not require c.b.a. interpretation and thus was preempted by
LMRA. His allegation of wrongful

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trade was also preempted. Brocail v. Detroit Tigers Inc., 268 S.W.
3d 90 (Tex. App. Houston [14th] 2008).
The so-called “StarCaps” litigation as memorialized in Williams v.
NFL, 654 F.Supp. 2d 960 (D. Minn. 2000), aff’d 582 F.3d 863 (8th
Cir. 2009), began innocently enough when two Minnesota Vikings
players, Kevin Williams and Pat Williams, were suspended for four
games for violating the NFL’s drug policy by taking an over-the-
counter weight loss supplement called StarCaps. Nobody warned
the players that it contained a banned substance bumetanide, which
is an undisclosed ingredient in StarCaps. The NFL argued that its
drug policy was a part of the Collective Bargaining Agreement thus
preempting Minnesota state law. Although the Federal Court of
Appeals for the Eighth Circuit agreed with most of the NFL
arguments, it did reject their claim that the CBA preempted state
law pursuant to § 301, LMRA. This was a huge setback for the
NFL, which usually wins these types of cases where labor law is in
competition with other laws (see, e.g., Clarett v. NFL, where labor
“trumped” antitrust), in that the NFL feared that state law
application would thwart its goal of a uniform drug policy. On
remand to the Minnesota state court, although it refused to keep the
injunction in force and averred that the players had not been
damaged, it was still at best a Pyrrhic victory since the state court
also ruled that the NFL was the employer of the two Vikings’
players, and as such are subject to Minnesota’s employment laws.

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The U.S. Supreme Court denied certiorari, and let stand and
Eighth Circuit decision that their suspensions for testing positive
for banned substances, was not preempted by the Labor
Management Relations Act. The Eighth Circuit stated that section
301 of the LMRA, 29 U.S.C.A. § 185, preempts state law claims
that are “substantially dependent” upon the analysis of a collective
bargaining agreement. Here, the Eighth Circuit concluded that a
court considering the players’ claim would not have to consult the
policy on banned substances incorporated into the NFL’s CBA with
the players’ union in order to resolve their claim. Instead, a court
would compare the NFL’s procedures with DATWA, which
imposes minimum standards and requirements for employee
protection under an employer’s drug and alcohol testing policy.
The en banc Eighth Circuit denied rehearing, though several
judges dissented from this decision. One dissenting judge asserted
that the panel had incorrectly declared the NFL’s defenses to the
players’ claim irrelevant to the question of ordinary as opposed to
complete preemption under section 301. The defense noted that
although preemption may not be premised on a federal question
raised in a defense, ordinary preemption provides a substantive
defense to a state law action on the basis of a federal law, in
whatever forum the case is litigated, the dissenting judge stated.
Here, the NFL invokes an ordinary preemption defense, based on
section 301 against the players’ state law claim.

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The petition for certiorari noted that the Seventh and Tenth
Circuits have held, in conflict with the Eighth and Ninth Circuits,
that when principals of ordinary rather than complete preemption
apply, defenses that require analysis of a CBA preempt state law
claims under section 301.
David Givens, a former professional football player, brought a
diversity action against his former football team, alleging that it
committed torts of outrageous conduct and negligence and/or
intentional infliction of physical and emotional injury, and
performed its contractual obligations in bad faith, by withholding
certain medical information regarding his injured left knee. The
court held that all claims were preempted under the LMRA. The
player alleged that the team’s independent physician failed to
inform the player of an injury to his left knee discovered during a
physical examination, and subsequent playing on a “bad” knee, as
well as the team’s failure to advise the player of his medical
condition, was “inextricably intertwined” with provisions of the
parties’ CBA and preempted by § 301 of the LMRA and thus
subject to arbitration pursuant to mandatory grievance and
arbitration procedures contained in the CBA. Givens v. Tennessee
Football, Inc., 684 F.Supp. 2d 985 (M.D. Tenn. 2010).
 Three former NFL players alleged that they suffered multiple
concussive and sub-concussive blows to the head between
September 1, 1987, and December 1987. The Arizona Cardinals
removed the case to federal court on the grounds that the Labor

105

Management Relations Act preempts state law claims. The duties

owed to plaintiffs arise independently from the CBA, therefore, the
merits of their case can be evaluated without any interpretation of
the terms of the CBA. The case was remanded to state court. Green
v. Arizona Cardinals Football Club LLC, 21 F.Supp. 3d 1020 (E.D.
Mo. 2014).
 107

CHAPTER 5
ANTITRUST
A. GENERALLY
The Sherman Antitrust Act, 15 U.S.C.A. § 1, et seq., makes
illegal every combination in the form of a conspiracy that restrains
interstate commerce. Every person who monopolizes or combines
to monopolize is guilty of a felony. The goal of the antitrust acts is
to stop monopolies and protect fair competition.
These laws are the major mechanism available to effect change in
sports. That is because the basic leitmotif in organized sports is
summarized by the oxymoron of competitive cohesion. In sports
one competes in some respects and cooperates in others. Organized
sports must have honest competition to be attractive, but to be
organized it must establish rules to assure fair play, arrange
schedules, punish wrongdoers, etc. “Cooperation” is necessary for
the college draft, cable TV, roster limitations, player restraints,
preseason games, season tickets, franchise movement and league
competition.
The antitrust laws have been used by various groups: e.g.,
players, owners, colleges, etc. The goal of these antitrust plaintiffs
is to achieve some result at the expense of management, whether it
was better wages, better conditions, a new location or less control.

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The typical situation involves players who contend that they are
victims of anti-competitive practices. The thrust of the Sherman
Act is to protect the public interest from anti-competitive practices.
(Interestingly, these players, or victims of anti-competition, are
paid millions a year to play sports.)
Monopolies are deemed to be against public interest: the concern
is that a monopolized industry can result in exorbitant prices
because it is unchallenged by free competition.
There are two basic ways to interpret an antitrust controversy:
either as a “per se” violation or through a rule of reason approach.
Professional sports usually will merit the rule of reason analysis
rather than a mechanical “per se” review.
The per se approach is most applicable to overt antitrust
violations. Throughout the years, the courts have gained enough
experience with antitrust problems to identify certain types of
agreements that are so consistently unreasonable that they may be
deemed to be illegal per se without further inquiry into their
purported rationales. Among the practices that are so pernicious
that they are illegal per se are group boycotts and concerted
refusals to deal. A concerted refusal to deal is an agreement by two
or more persons either not to do business with other persons or to
do business with them only on particular terms. Group boycotts are
refusals to deal or inducements to others not to deal or to have
business relations. Mackey v. NFL, 543 F.2d 606 (8th Cir.1976).

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In the district court’s opinion in Mackey, which analyzed the

legality of the Rozelle Rule (allowing the commissioner, one Pete
Rozelle, in his sole opinion, to require the club that acquires a free
agent to compensate the free agent’s former club in the form of
money, players and/or valuable draft picks), the court held that the
Rule significantly deterred clubs from negotiating with and signing
free agents. Because of the Rule, a club would only sign free agents
if it was able to reach an agreement to compensate the player’s
former team or when it was willing to risk the commissioner’s
awarding of unknown compensation. The court held that the rule as
enforced constituted a group boycott and a concerted refusal to deal
and thus a per se violation of the Sherman Act.
The Court of Appeals in Mackey, however, acknowledged that it
was inappropriate to declare the Rozelle Rule illegal per se without
reviewing the purported justifications behind the Rule. The per se
approach is typically used with agreements between business
competitors in the traditional sense. Professional sports combines
aspects of both competition and cooperation; also, the NFL does
assume some characteristics of a joint venture in that each member
club has a stake in the success of the other teams. That is, no one
club is interested in driving any other team out of business, since if
the league fails then no one team can survive.
The Mackey appellate ruling reviewed the Rozelle Rule under a
rule of reason analysis. The focus of inquiry under a rule of reason
approach is whether

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the restraint as imposed is justified by legitimate purposes and it is

no more restrictive than necessary. A rule of reason analysis poses
the question of whether the restraint is reasonable under all the
circumstances.
In Worldwide Basketball & Sports Tours, Inc. v. NCAA, 273
F.Supp.2d 933 (S.D. Ohio 2003), the court applied a full rule of
reason analysis when it disallowed a permanent injunction
prohibiting the NCAA from forcing its “Two in Four Rule.”
Plaintiff sports promoters sued the NCAA alleging that the “Two in
Four Rule” limited Division I college basketball teams from
participating in more than two “exempt” tournaments every four
seasons. Historically “exempt” tournament participation was not
considered in calculating the number of regular season games. The
NCAA saw this as a problem. Since its adoption in 1999, the rule
has led to a significant decrease in the number of exempt
tournament games, number of tournaments, and the number of
basketball games scheduled by Division I teams. The NCAA also
increased the maximum number of allowed regular season games.
The effect essentially defeated one of the NCAA’s jurisdictions:
namely, to allow lesser known teams to play in more desirable
tournaments. Another justification of limiting the total games was a
concern for athlete welfare which was also nullified. The “Two in
Four Rule” has a substantially adverse effect on competition in the
relevant product market of all Division I college basketball games.
The plaintiffs were not able to show that the restraint had
significant anti-competitive effects, such as a

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reduction in output. The court found that the promoters failed to

establish a relevant market. Therefore, the court chose not to
permanently enjoin the NCAA from enforcing the “Two in Four
Rule.”
Most of the obvious antitrust infractions, for example, certain
onerous player restriction procedures that were a part of the SPK,
have now been ameliorated through collective bargaining so that
currently these procedures can either pass antitrust examination or
they are protected by an exemption to the antitrust laws. However,
antitrust actions are still very much part of attempts to regulate and
readjust both amateur and professional sports. For example, the
NBA salary cap was attacked but found to be legal, Wood v. NBA,
602 F.Supp. 525 (S.D.N.Y.1984); the NCAA violated the antitrust
laws by restricting college football broadcasts, NCAA v. Board of
Regents, 468 U.S. 85 (1984); and the NFL violated antitrust laws
by restricting franchise movement, Los Angeles Memorial
Coliseum Commission v. NFL, 726 F.2d 1381 (9th Cir.1984).
In Toscano v. PGA Tour, Inc., 201 F.Supp.2d 1106
(E.D.Cal.2002), senior professional golfer brought action against
professional golf association (PGA) for alleged antitrust violations
associated with PGA media rights, conflicting events rules that
prevented competition from rival senior professional tours, and
eligibility rules that protected PGA player directors and tour
members from competition from other senior golfers. PGA filed
motion for summary judgment. The District Court held that
(1) golfer did

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not have antitrust standing to challenge media rights and

conflicting events rules; (2) PGA’s eligibility rules did not have
sufficient anticompetitive effect under rule of reason analysis;
(3) even if golfer had provided evidence of significant
anticompetitive effects associated with PGA eligibility rules for
senior professional golf tournaments, rules had sufficient
procompetitive justifications to withstand rule of reason analysis;
and (4) evidence consisting of extrapolation of golfer’s prospective
future profits during period of alleged anticompetitive activity was
insufficient to support golfer’s damages claim in antitrust action
against PGA.
In Kingray, Inc. v. NBA, 188 F.Supp.2d 1177 (S.D.Cal.2002),
purchasers of satellite broadcast of NBA games brought antitrust
action against NBA and satellite pay-per-view TV providers in
connection with contract between NBA and providers that gave
them exclusive right to broadcast out-of-market games; court held
that evidence was insufficient to support price fixing or restriction
of output claims; also, purchasers waived tying arrangement claim
and the purchasers did not have the standing to bring antitrust
action for damages against NBA.
The Coach Sandusky/Penn State scandal has generated many
different lawsuits in many different fields, from contracts to
criminal law to insurance coverage to vicarious tort liability to
antitrust. In Pennsylvania v. NCAA, 984 F.Supp. 2d 416 (M.D. Pa.
2013), the State of Pennsylvania alleges that the

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NCAA has participated in an unlawful antitrust conspiracy in

sanctioning and penalizing Penn State to near SMU-death penalty
standards. The NCAA’s motion to dismiss was granted. The NCAA
imposed sanctions against Penn State football. Penn State agreed to
the sanctions and waived any legal challenge. The governor of
Pennsylvania brought an antitrust action challenging the sanctions
under Section 1 of the Sherman Act as an unlawful agreement to
restrain trade and seeks an injunction.
The challenged sanctions were imposed following the child sex
scandal that allegedly implicated Penn State officials. On Nov. 4,
2011, former Penn State assistant football coach Gerald A.
Sandusky was criminally charged with sexual abuse of children for
over a decade. That same day, charges were brought against senior
Penn State officials for allegedly covering up to protect the football
program. Defendant NCAA then issued a letter to Penn State
President Rodney Erickson demanding that the university produce
information related to the grand jury indictment to assist the NCAA
in its review of Penn State’s response to the sexual abuse scandal.
Joe Paterno was fired and then he died.
On June 22, 2012, after a three-week trial, a jury in the Court of
Common Pleas of Centre County found Sandusky guilty of 45
counts of criminal charges against him. The Freeh Report
confirmed that senior Penn State officials had collaborated to
conceal accusations that Sandusky sexually abused children, and
that Penn State leadership had

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exhibited a total and consistent disregard for the safety of

Sandusky’s victims and worked together to conceal Sandusky’s
crimes for fear of publicity. The university accepted full
responsibility for the failure of its administration to protect the
victims abused by Sandusky, and began the process of
implementing many of the recommendations contained in the Freeh
Report.
Defendant NCAA initiated sanctions against Penn State. At the
direction of NCAA President Dr. Mark Emmert, the NCAA’s
established disciplinary procedures were bypassed and the matter
was directed to the NCAA’s Executive Committee and the Division
I Board of Directors, which informed Penn State that if it did not
accept the proposed consent decree of sanctions, the NCAA would
impose the football “death penalty” on the school for a period of
four years.
By its terms the consent decree: (1) required that Penn State pay a
$60 million dollar fine into an endowment for sexual abuse
education and sexual abuse victims over a period of five-years;
(2) banned Penn State from football post-season play for a period
of four years; (3) reduced the number of football scholarships that
Penn State was authorized to offer from 85 to 65 total scholarships
per year for a period of four years, and 25 to 15 initial scholarships
per year for a period of four years; (4) placed Penn State on
probation for four years, necessitating the appointment of an on-
campus integrity monitor; (5) vacated Penn State’s football wins
between 1998 and 2012; (6) waived the

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NCAA’s bylaw restricting transfer of student athletes from Penn

State to other colleges; and (7) required that Penn State permit
football players to retain their athletic scholarships regardless of
whether they continued to play football.
Penn State’s President accepted the terms of the consent decree.
Rodney Erickson waived any further litigation against the NCAA.
The court appeared sympathetic to Penn State’s plight and whether
the NCAA’s sanctions were fair. The Court’s review was limited to
the question of whether the State of Pennsylvania has articulated a
violation of antitrust law. The NCAA posits that the antitrust suit
must fail because their sanctions and penalties do not seek to
regulate commercial activity, and thus an antitrust action must fail
by definition since penalties and sanctions do not merit antitrust
review. After being sued, the NCAA rolled back its sanctions in
January 2015. Coach Paterno had 111 wins returned to him again
making him the all-time leader in victories for a head coach at the
FBS level. The $16 million dollar fine will stay in Pennsylvania.
The scholarship limit and post-season ban were removed earlier.
B. EXEMPTIONS
Although many of the policies, rules, regulations and procedures
of organized sports appear on the surface to violate both the letter
and the spirit of the antitrust laws, they are deemed to be legal
because they fall under certain exemptions to these laws. Usually,
an allegedly underpaid professional athlete

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claims that league rules have financially disadvantaged him

because he cannot achieve free agent status and test the market.
Facially, this appears to be an antitrust violation; however, this
procedure might be protected by an exemption. In this hypothetical,
the exemption used by management would be the non-statutory
labor exemption which protects agreements that are a product of
good faith union-management negotiation.
1. BASEBALL
Professional baseball is exempt from the antitrust laws. Baseball’s
exemption is an anomaly that was categorized by Justice William
Douglas as “a derelict in the stream of law.” Flood v. Kuhn, 407
U.S. 258 (1972) (Douglas, J., dissent). The Supreme Court realized
its mistake but preferred for Congress to formulate a solution: “If
there is any inconsistency or illogic in all this, it is an inconsistency
and illogic of long standing that is to be remedied by the Congress
and not by this court.”
Baseball’s exemption began in 1922 when Justice Holmes
declared that professional baseball was not a business that involved
interstate commerce. Federal Baseball Club of Baltimore, Inc. v.
National League of Professional Baseball Clubs, 259 U.S. 200
(1922). Even though it was freely acknowledged “that Federal
Baseball was not one of Mr. Holmes happiest days.” Salerno v.
American League of Professional Baseball Clubs, 429 F.2d 1003
(2d Cir.1970). No court would dare overrule Holmes and

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a unanimous court. In fact Federal Baseball was affirmed in 1953
and again in 1972. Toolson v. New York Yankees, 346 U.S. 356
(1953); Flood v. Kuhn, 407 U.S. 258 (1972). However, Piazza v.
Major League Baseball, 831 F.Supp. 420 (E.D.Pa.1993), redefined
the exemption to apply solely to baseball’s reserve system. Piazza,
an opinion by the Eastern District of Pennsylvania, has limited
precedential merit; it involved an attempt to purchase and relocate
the San Francisco Giants.
There is no chance that baseball’s exemption will be extended to
any other sport. Professional football was specifically denied
immunity despite the obvious similarities between the two sports.
Radovich v. NFL, 352 U.S. 445 (1957). Baseball’s exemption then
is just “a narrow application of stare decisis.” United States v.
Shubert, 348 U.S. 222 (1955).
The Curt Flood Act of 1998, 15 U.S.C.A. § 27, establishes a
partial repeal (or retrenchment) of baseball’s long-time common
law exemption to the antitrust laws. The Act is narrow, it allows for
only those issues relating to the employment of major league
baseball players and the potential for antitrust scrutiny. This partial
repeal specifically does not apply to minor league reserve clauses;
the amateur draft; the “Professional Baseball Agreement,”
franchise relocation, club ownership rules, ownership transfer, and
the relationship between commissioner and owners; baseball
marketing; the Sports Broadcasting Act of 1961, 15 U.S.C.
§§ 1291, et seq.; the relationship with

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umpires; and “persons not in the business of organized professional

Major League Baseball.” The most interesting narrowing of the
application of this retrenchment can be found in § 27(d)(4):
“Nothing in this section shall be construed to affect the application
to organized professional baseball of the nonstatutory labor
exemption from the antitrust laws.”
In Butterworth v. National League of Professional Baseball
Clubs, 644 So.2d 1021 (Fla.1994), the court held that baseball’s
antitrust exemption only cover matters that concern players and
does not protect the business-side of baseball, including sale and
relocation of existing franchises. The Curt Flood Act was
promulgated in late October 1998; but, it revokes the exemption
only for labor relations, not for matters that involve franchise
relocation, league expansion, or the minor leagues. But, because of
the Supreme Court’s 1996 decision in Brown v. Pro Football, Inc.,
518 U.S. 231 (1996), the Act has limited implications since union
members are essentially estopped from seeking antitrust relief on
the basis of the numbing effect of the nonstatutory labor exemption
to the antitrust laws.
In Minnesota Twins Partnership v. Minnesota, 592 N.W.2d 847
(Minn.1999), the proposed sale and relocation of a professional
baseball team was an integral part of the business of professional
baseball, and thus, fell within the exemption from antitrust laws,
such that the Attorney General could not enforce compliance with
Civil Investigative Demands served pursuant to an investigation of

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potential antitrust violations based on the proposed sale and

relocation. This case rejected Piazza, Butterworth, and Morsani,
and the validity of baseball’s antitrust exemption for franchise
relocation cases.
In Morsani v. Major League Baseball, 79 F.Supp.2d 1331
(M.D.Fla.1999), state court’s granting of summary judgment on
antitrust count precluded federal court from asserting jurisdiction
on basis of baseball’s federal antitrust exemption. Morsani applies
Butterworth and overturns a trial court’s decision that dismissed the
lawsuit of a rejected prospective buyer who tried to locate a major-
league baseball franchise to Tampa Bay.
In Major League Baseball v. Butterworth, 181 F.Supp.2d 1316
(N.D.Fla.2001), Major League Baseball’s proposed contraction of
teams was part of the “business of baseball” exemption from
federal and state antitrust laws. The number of clubs allowed to
compete was a decision integral to the business of baseball. Thus,
the Florida Attorney General was enjoined from issuing Civil
Investigative Demands regarding the proposed contraction pursuant
to state antitrust laws.
In Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir.2003),
the Eleventh Circuit considered whether baseball’s antitrust
exemption extends to the realm of investigation. The controversy
arose following Major League Baseball’s contraction decision to
eliminate two teams (the Florida Marlins and the Tampa Bay Devil
Rays) from the league on November 6, 2001. The Florida State
Attorney

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General issued several civil investigative demands (CIDS) to Major

League Baseball pursuant to his authority under Florida’s antitrust
statute. MLB challenged these CIDS contending that its federal
exemption provided a right to be free of both antitrust prosecution
and investigation under either federal or state antitrust law. They
argued that the “business of baseball” was exempt from both
antitrust enforcement and investigation. Additionally, it argued that
the Florida antitrust investigation was precluded by the exemption
because federal law preempts state antitrust law. The court based its
decision on Supreme Court precedent of Flood v. Kuhn and the
Supremacy Clause. Contraction fell within the “business of
baseball,” and accordingly, it could not be subject to federal
antitrust prosecution.
In City of San Jose v. Office of the Commissioner of Baseball,
2013 WL 5609346 (N.D. Cal. 2013), aff’d 776 F.3d 686 (9th Cir.
2015), the city of San Jose sued Major League Baseball for their
failure to approve the Oakland Athletic Baseball Club’s proposed
relocation from Oakland to San Jose. The District Court for the
Northern District of California again used Federal Baseball,
Toolson, and Flood v. Kuhn to defeat the city’s antitrust lawsuit on
the basis of baseball’s antitrust exemption.
Laumann v. National Hockey League, 56 F.Supp. 3d 280 (S.D.
N.Y. 2014), is a class action antitrust lawsuit against NHL, MLB,
and regional sports networks that produce and distribute
professional baseball and hockey programming. Judge

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Scheindlin declined to apply baseball’s exemption to baseball’s

contract for television broadcasting rights. In Garber v. Office of
the Com’r of Baseball, 2014 WL 4716068 (S.D. N.Y. 2014), Judge
Scheindlin consolidates Laumann and denies MLB’s interlocutory
appeal.
2. LABOR EXEMPTION
The “statutory” labor exemption originated in certain provisions
of the Clayton Act (15 U.S.C.A. § 12, et seq.) and the Norris-La
Guardia Act (29 U.S.C.A. §§ 101–115) in which unions are
allowed to enter into agreements, inter se, which might eliminate
competition from other unions and create monopolies of all union
organizational activities. Businesses cannot claim this privilege.
3. NFL EXEMPTIONS
Other “minor” exemptions to the antitrust laws in professional
sports are those that were specifically created for the National
Football League (NFL). One allows agreements between the NFL
and the TV networks to pool and sell a unitary video package. 15
U.S.C.A. § 1291. Another allows blackouts of non-local games
telecasted into home territories when the home team is playing. It
will also permit the blackout of home games in the home territory.
15 U.S.C.A. § 1292. Also, when the two major leagues (NFL and
AFL) were merged the merger of their two draft systems was
specifically excluded from antitrust scrutiny. 15 U.S.C.A. § 1291.

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4. NON-STATUTORY LABOR EXEMPTION

The non-statutory labor exemption is a derivative of the labor
exemption that protects union activity from antitrust scrutiny. It is
the crux of nearly all antitrust actions in professional sports.
Basically, any union-management agreement that was a product of
good faith negotiation will receive protection from the antitrust
laws.
The goal of this exemption is certainly laudable; however, it is
increasingly used by management as a means of legitimating
certain agreements that were clearly forced on a weak union.
Management attempts to wrap their anti-competitive policies with
the mantle of this exemption. This is not the intent of the original
Supreme Court decisions.
 The non-statutory labor exemption is based on the policy that
favors collective bargaining and gives it preference over the
antitrust laws. The exemption will apply where the restraint on
trade primarily affects only the parties to the collective bargaining
agreement; where the restraint concerns a mandatory subject of
collective bargaining; and where the agreement that is sought to be
exempted is a product of bona fide arms’ length bargaining.
Mackey v. NFL, 543 F.2d 606 (8th Cir.1976).
In Mackey, although the Rozelle Rule did not deal with a
mandatory subject of collective bargaining on its face, since it was
neither wages, hours or conditions of employment; however, since
the Rule operated to restrict a player’s ability to move from one
team to another and thus depress salaries, the

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court held that the rule constituted a mandatory subject of

collective bargaining. Id., at 615.
Regarding the Rozelle Rule in Mackey, it was established that
there was no bona fide arm’s length bargaining over the Rule. The
Rozelle Rule imposed significant restraints on player mobility. The
form of the Rule was unchanged since it was unilaterally
promulgated by management in 1963. Also, there was no evidence
to suggest that the players received any benefits from the Rule.
Because of this, the Rule did not qualify for an exemption from the
antitrust laws.
However, in McCourt v. California Sports, Inc., 600 F.2d 1193
(6th Cir.1979), an action by a professional hockey player
challenging the National Hockey League’s reserve system, the
court held that the nonstatutory labor exemption applied since the
reserve system was incorporated into the c.b.a. as a result of good
faith, arms’ length bargaining. In this case, good faith bargaining
was deemed to exist even though one of the parties to the
negotiation did not yield on its initial bargaining position. The fact
that one party’s position on a mandatory subject prevailed
unchanged does not necessitate the conclusion that there was no
bargaining over the issue. A failure to succeed is not the same thing
as a failure to negotiate.
However, recent court decisions which have sought to decipher
the National Football League’s labor-management imbroglio have
expanded the protection of the non-statutory labor exemption to
continue not only after the expiration of the c.b.a.,

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but even after the parties have reached an impasse. Powell v. NFL,
888 F.2d 559 (8th Cir.1989). In Powell, the policies under question
were the “free agent” and draft procedures. These policies are
protected by the non-statutory labor exemption even though they
are actively opposed by the union and its constituents. This
opposition exists regardless of the fact that these policies carry an
alleged favorable imprimatur by way of an earlier c.b.a. (1982).
At the same time, there have been situations where labor and
management have compromised enough to create policies that
reflect bona fide, good faith collective bargaining. For example, in
Wood v. NBA, 602 F.Supp. 525 (S.D.N.Y.1984), a district court
analyzed the legality of the NBA’s salary cap provision, which
limits the total amount that each team can annually pay to their
players. This procedure could limit the salary that a particular
player could negotiate from his club. But, the cap was agreed to by
both labor and management and became a part of their c.b.a. The
court held that the cap was exempt from antitrust regulations and
that the player in question, Leon Wood, came under the coverage of
the agreement even though as a rookie he only entered the
bargaining unit after the agreement was negotiated. The exemption
was applicable since the salary cap affected only the parties to the
c.b.a. (management and players), involved mandatory subjects of
bargaining and was the result of bona fide, arms’ length
negotiations.

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In Brown v. Pro Football, Inc., 518 U.S. 231 (1996), professional

football players assigned to developmental squads of substitute
players brought an antitrust class action against the professional
football league challenging the league’s unilateral imposition, after
bargaining to the point of impasse, of a fixed salary for
developmental squad players ($1,000 per week). The Supreme
Court held that the league’s conduct in unilaterally imposing a
fixed salary for developmental squad players fell within the scope
of the nonstatutory labor exemption from antitrust liability. That is,
the exemption continues after the expiration of the agreement and
impasse. Justice Stevens’ dissent in Brown (at 257) reminded the
sports community that exemptions should be construed narrowly;
whereas the majority opinion allows for a broad interpretation.
The case of Maurice Clarett and his attempt to opt early for the
NFL draft was truly the “case of the century” as regards sports law
and media attention to it. Clarett v. NFL, 369 F.3d 124 (2d
Cir.2004). Maurice Clarett, star freshman tailback for Ohio State’s
undefeated 2002 football season, initiated an antitrust challenge to
the NFL’s rule that limits eligibility for the NFL entry draft to those
players who are three full college football seasons removed from
high school. Because of disciplinary concerns, he was forced to sit
out (at least) what would have been his second year out of high
school. He sought to be included in the pool of players eligible for
the 2004 NFL draft to be conducted April 24–25, 2004. Judge
Scheindlin of the federal district court for the Southern District of

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New York granted plaintiff’s motion for summary judgment on

February 5, 2004. She also denied the NFL’s motion to stay
pending appeal on February 11, 2004. But, the Second Court of
Appeals reversed and remanded Judge Scheindlin’s summary
judgment on May 24, 2004. Judge Scheindlin found for plaintiff
opining that the NFL’s rule did not fall within the scope of the non-
statutory labor exemption on the basis that the rule was not a
mandatory subject of collective bargaining. The Court of Appeals
found that the rule, since it represented a condition for initial
employment, affected the job security of veteran players, and thus
had tangible effects on the wages, hours, and working conditions
(i.e., mandatory subjects), of current NFL players. Also, the fact
that the NFL and the players’ union did not bargain over the rule
(per se), did not exclude the rule from the scope of the non-
statutory labor exemption, since these rules were included in the
NFL’s Constitution and By-Laws; the union was aware of these
rules; and the union generally agreed to waive any challenge to the
Constitution and By-Laws.
C. PLAYER RESTRAINTS
The use of antitrust litigation as a means to force change in
professional sports historically developed from policies that
restrain the movement of the athletes. Player restraint mechanisms
limit the player’s ability to negotiate the best dollar from the
highest bidder and thus restrict the player’s commerce; these
procedures appear on their face to violate antitrust laws.
 127

For example in Smith v. Pro Football, Inc., 593 F.2d 1173

(D.C.Cir.1978), football’s draft of collegiate talent was held to
violate the antitrust laws. The draft is a procedure where
negotiating rights to graduating college seniors are allocated each
year among the NFL teams in reverse order of the club’s finish in
the previous year. The NFL draft as it existed in 1968 had a
severely anticompetitive impact on the market for player’s services;
also, this type of restraint was not reasonably necessary to
accomplish whatever legitimate business purposes that might be
asserted as a rationale for a 17-round draft. In short, it was
anticompetitive in both its purpose and its effect.
However, many of the earlier player restraint mechanisms have
been modified through collective bargaining so that they are no
longer considered to be an antitrust violation. As in the NBA salary
cap dispute, the current generation of player restraints will now be
decided under the purview of the non-statutory labor exemption.
In the 2009 version of White v. NFL, 585 F.3d 1129 (8th Cir.
2009), professional football player brought antitrust class action
against the NFL and its member clubs seeking injunctive relief and
damages stemming from various league rules, including the
mandatory right of first refusal system, the standard league
contract, and the league draft. Following the approval of a
stipulation and settlement agreement in White v. NFL, the league
sought a declaration that a team could recover a prorated portion of
the players’ roster

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bonuses for the year he did not play without violating the anti-
forfeiture provisions of the settlement agreement in the parallel
CBA. Judge David S. Doty of the United States District Court for
the District of Minnesota held that the team could not recover the
bonus payment and denied the league’s motion to vacate the
judgment.
D. FRANCHISE MOVEMENT
Antitrust strategies in professional sports have shifted in recent
years. Once the sole domain of relatively underpaid athletes, they
are now used by the team owners themselves to gain advantage
from the league, usually in the form of attempts to relocate their
franchise. Professional sports is a big business; the precise
geographical location of a team at a particular moment in time can
be essential to that team’s economic life or death. Franchise
movement, however, is regulated by league regulations.
In San Francisco Seals, Ltd. v. NHL, 379 F.Supp. 966
(C.D.Cal.1974), an individual NHL team brought suit against the
league when they denied their request to relocate from San
Francisco to Vancouver, British Columbia. The court held that the
team was not competing economically with the league and the
other teams. Because of this, the league’s relocation rules did not
restrain trade within the relevant market. Also, the Seals did not
have standing to sue the league and the other teams for an alleged
§ 2 Sherman Act violation of monopolizing the business of major
league hockey,

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since an individual team was not within the target area with respect
to the claimed conspiracy.
 However, in Los Angeles Memorial Coliseum Commission v.
NFL, 726 F.2d 1381 (9th Cir.1984), the applicable league
regulation directed that 3/4 of all NFL teams must approve any
franchise relocation into the home territory of another team. The
court held that the NFL’s rule violated antitrust laws as the NFL
was not a “single entity” and the regulation was an unreasonable
restraint of trade. If it was not a single entity, the NFL could be
held liable under a rule of reason analysis for unreasonably
restraining the trade of the Oakland Raiders by thwarting their
plans to relocate in Los Angeles. However, if the league was
viewed as a single entity, it would be immune from suits against it
by individual teams.
The NFL was not a single entity since each team had a separate
identity independent from the league; the teams competed with the
others for revenue and personnel; and each team was independently
owned and operated. If the league was a single entity, it would be
logically and legally unable to conspire with itself to restrain trade.
However, since that is not the case, the league is simply a group of
individual competitors whose joint votes on league matters could
constitute an illegal group boycott.
In St. Louis Convention & Visitors Commission v. NFL, 154 F.3d
851 (8th Cir.1998), a public commission that was charged with the
obligation of returning professional football to St. Louis sued the

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NFL on antitrust grounds. The theory the St. Louis Convention &
Visitors Commission (CVC) presented “was that the league’s
relocation rules and the way they had been applied had created an
atmosphere in which teams were unwilling to relocate. It contended
that this anti-relocation atmosphere had discouraged interested
teams from bidding on the St. Louis lease.” As a result, there was a
one-buyer market. However, the court held that CVC failed to
establish concerted action by the NFL teams simply from the fact
that only one team responded to CVC’s offer to provide an
attractive stadium lease to lure an existing franchise that was
willing to relocate; that CVC failed to show a causal connection
between league rules that regulated relocation and absence of more
than one relocation suitor; and that CVC failed to show an antitrust
injury.
In VKK Corp. v. NFL, 244 F.3d 114 (2d Cir.2001), a federal
district court in New York dismissed an antitrust suit brought by
former New England Patriots owner Victor Kiam against the NFL
over Kiam’s allegations that the NFL illegally conspired to prohibit
him from relocating the Patriots. The jury returned a verdict for the
NFL on the severed issue of whether the former owner’s signing of
a condition for obtaining the NFL’s approval for his sale of his
majority interest to another, was made under economic duress. The
release was held dispositive and plaintiff’s claims were dismissed.

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E. LEAGUE VERSUS LEAGUE

Antitrust conflicts also arise in professional sports when a nascent
league claims that the dominant, established league is guilty of
unfair competition. There is a cyclical history in professional
sports: when it appears that there is money to be made a new
league will form to compete against the established league. The end
result is either that the older league conquers the new league upstart
or they compromise and the two leagues merge as one (e.g., the
NFL-AFL merger).
 Many of the famous law suits that have shaped the current state of
antitrust in professional sports have involved interleague rivalry.
Radovich v. NFL, 353 U.S. 931 (1957). Radovich involved the
blacklisting of a football player by an NFL affiliate for playing
with a competing league and held that football is not exempt from
antitrust laws.
In AFL v. NFL, 323 F.2d 124 (4th Cir.1963), the American
Football League (AFL) sued the more established NFL on grounds
that the older league monopolized all the best markets. The court
found that the older league did not have the power to monopolize
the relevant market; and did not attempt a conspiracy to
monopolize the market. That is, the court found that any monopoly
that the NFL might have possessed over the AFL was a natural
monopoly.
A natural monopoly does not violate antitrust laws unless the
natural monopoly was misused to gain a competitive advantage.
Basically, the NFL

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acquired markets that the latecomer thought desirable. But, the first
league is not required to surrender any, or all, of its advantageous
sites to the second league simply to enable the latecomer to
compete more effectively with the NFL. However, one must
acquire a natural monopoly by means which are neither
exclusionary, unfair, nor predatory.
In USFL v. NFL, 644 F.Supp. 1040 (S.D.N.Y.1986), although the
USFL won treble damages ($3.00), and attorney fees
($5,515,290.81) years later, the USFL immediately disintegrated.
The court held that the NFL’s superiority in the bidding war was
due to the USFL’s poor management and the NFL’s natural
superiority and not entirely the result of illegal antitrust violations;
therefore, the jury award of nominal damages was not in error.
F. TV PACKAGING
Although antitrust litigation is endemic in professional sports, it
has also arisen in amateur sports, especially in the area of the
NCAA’s packaging of television broadcasts of college football
games. In NCAA v. Board of Regents, 468 U.S. 85 (1984), the court
held that the NCAA’s plan of packaging these broadcasts was
unlawful under a rule of reason analysis since, inter alia, the plan
was not intended to equalize competition, it did not regulate the
money that the schools spent on their football programs, and it
gave control of the packaging to schools that either did not have

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football programs or would not be affected by the restrictions (i.e.,

small-time collegiate football).
The NCAA’s TV package was an unreasonable restraint of trade
since the plan restricted the total number of football games that an
NCAA member could televise, and further, the plan did not allow
the member schools to sell their TV rights except in accordance
with the NCAA’s stipulations. By limiting the output and curtailing
the big schools’ ability to respond to network offers the NCAA was
found to restrict the trade of these colleges. The Board of Regents
decision set the networks free to negotiate TV contracts with the
major college football teams; as a result, two large groups of
universities were formed under the auspices of the two major
television networks. See Regents of University of California v.
ABC, 747 F.2d 511 (9th Cir.1984).
G. CABLE TV
 Sports has become an increasingly noticed phenomenon because
of the advent and prosperity of cable TV. During recent years a
number of prime time regular season professional football games
and the National Hockey League’s TV package have shifted from
the major TV networks to cable TV, i.e., football to ESPN and
hockey to Sportschannel America. Cable TV is limited access TV,
in that viewers must pay for the pleasure of enjoying their
programming. Many fans who once watched sports programming
without payment are now forced to pay for that privilege. ESPN is
a basic cable

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network whereas Sportschannel America costs more than the basic

cable rate and thus reaches far less viewers.
There is also the emerging technology of pay-per-view broadcasts
of one-of-a-kind sports spectaculars, e.g., the Holyfield-Foreman
professional boxing match billed as the “Battle of the Ages”; and,
of course, the Mayfield-Pacquiao fight. Does this migration of
sports programming from the major networks to cable TV violate
the antitrust laws? There is a court defined methodology that can
deduce whether a package sale of broadcast rights increases or
decreases the viewing of sports events. When these agreements
diminish viewership, then they will constitute an unreasonable
restraint of trade and thus can be enjoined. NCAA v. Board of
Regents of the University of Oklahoma, 468 U.S. 85 (1984).
These package sales are agreements among individual teams who
would otherwise sell their rights to broadcast their own games.
Package sales are agreements among competitors and as such will
often invoke a per se analysis. However, courts have consistently
reaffirmed that the special needs of professional sports leagues
demand the more careful analysis of a rule of reason review.
Broadcast rights agreements when analyzed under a rule of
reason analysis will be found to be anticompetitive and thus illegal
if the prices become higher and the output lower. Cable TV, by
definition, increases the costs and reduces the number of potential
viewers since not everyone is

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covered by cable. Therefore, the phenomenon of the transfer of

sports broadcasts from the major networks to cable TV may well be
determined to be anticompetitive when it comes under judicial
analysis.
H. AMATEUR SPORTS
TV packaging is not the only area in which antitrust litigation has
arisen in amateur sports. The typical situation involves the National
Collegiate Athletic Association (NCAA) as a defendant versus
either a college, an athlete or another athletic governing
organization. The plaintiffs will claim that NCAA policies and
regulations have acted as an illegal restraint on their trade and
commerce. Although the court found against the NCAA as regards
their television packaging regulations, that is not the case for their
eligibility requirements. Neither the NCAA eligibility rules that
restrict compensation to athletes nor the enforcement of these rules
are violations of the antitrust laws. These eligibility rules are
justifiable means of encouraging competition among amateur teams
and therefore, are pro-competitive since they enhance public
interest in intercollegiate sports. See United States v. Walters, 711
F.Supp. 1435 (N.D.Ill.1989).
 In Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012), student-athletes
sued the NCAA under the Sherman and Clayton Acts alleging
various anticompetitive regulations including capping the number
of scholarships that are allowed per team

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and prohibiting multi-year scholarships. Plaintiffs insist that these

regulations have an anticompetitive effect on the market for
student-athletes. The court held that these regulations are not
directly related to the separation of amateur athletics from pay-for-
play athletics and, therefore, did not assist in preserving the
existence of student-athletes because in the end they actually
limited the number of athletes who were awarded financial aid and
also the amount of financial aid that each athlete would receive.
In Rock v. National Collegiate Athletic Ass’n, 928 F.Supp.2d 1010
(S.D. Ind. 2013), plaintiffs claim that NCAA Div. III rules that
prohibit multi-year scholarships and the number and amount of
scholarships unlawfully restrained trade among NCAA member
schools for the labor of student-athletes. These student-athletes
waive antitrust standing to challenge bylaws that prohibit multi-
year Div. III athletics-based scholarships. But student-athletes
failed to adequately allege anti-competitive effect in their proposed
market, so NCAA’s motion to dismiss was granted.
Famous former UCLA basketball player Ed O'Bannon sued the
NCAA and the Collegiate Licensing Company (CLC) over the
plaintiff’s allegations that the NCAA and the CLC violated federal
antitrust laws by conspiring to prevent former collegiate student
athletes from receiving compensation for the use of their images.
Plaintiff, a Nevada resident, was a student athlete at UCLA. The
NCAA is an unincorporated Association
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headquartered in Indianapolis, Indiana, and CLC is a Georgia

Corporation with a principal place of business in Atlanta.
O’Bannon v. NCAA, 2009 WL 4899217 (N.D. Cal.).
Plaintiff asserted that while he was a student athlete at UCLA, he
competed pursuant to NCAA rules and regulations, which required
student-athletes to sign NCAA Form 08–3a as a prerequisite to
their participation in intercollegiate competition. Plaintiff
maintained that Form 08–3a and associated NCAA rules constitute
anti-competitive conduct because they prevent him from licensing
his own animated likeness. He alleged that the NCAA’s and CLC’s
anti-competitive practices were facilitated by non-dependent
conspirators, including Electronic Arts, Inc. (EA), a video game
software company based in Burlingame, California. Plaintive
alleges violations of § 1 of the Sherman Act. He intended to move
to certify this case as a class action. This case is related to Keller v.
Electronic Arts, Inc., 2010 WL 530108 (N.D. Cal.), which involved
allegations that the NCAA, CLC, and EA violated former student
athletes’ right of publicity by using their likenesses without their
consent.
In re NCAA Student Athlete Names & Likeness Litigation, 2011
WL 1642256 (N.D. Cal. 2011) consolidates cases where antitrust
plaintiffs bring claims based on defendants’ alleged conspiracy to
restrain trade in violation of § 1 of the Sherman Act. These antitrust
plaintiffs are eight former college basketball players and four
former college football players, who allege that, during their
respective

138
collegiate careers, they “competed pursuant to the NCAA’s rules
and regulations” and signed one or more release forms “that the
NCAA had interpreted as the release of the student athlete’s rights
with respect to his image, likeness and/or name in connection with
merchandise sold by the NCAA, its members, and/or its licensees”.
To participate in an NCAA sanctioned competition, antitrust
plaintiffs allege, a student athlete had to sign form 08 3a or a
similar form. By signing form 08 3a, the student-athletes agreed to
“authorize the NCAA to use your name or picture to generally
promote NCAA championships . . . ” Russell v. National Collegiate
Athletic Ass’n, 2012 WL 1747496 (N.D. Cal. 2012) is another
associated lawsuit associated with In re NCAA Student-Athlete in
which Bill Russell claims NCAA and CLC never consented to their
agreement with EA, and neither he nor other athletes received
compensation for use of their images. Bill Russell claims violations
of § 1 of the Sherman Act for unreasonable restraint of trade and
group boycott, and refusal to deal. The court denied defendants
NCAA’s and CLC’s motion to dismiss. Washington v. National
Football League, 880 F.Supp. 2d 1004 (D. Minn. 2012), which is
similar to Russell, but deals with former professional football
players, who contend that by not allowing them the rights to game
films and images from the games in which they played, defendants
are monopolizing the market for former players’ likenesses in
violation of the Sherman Act. 15 U.S.C.A. §§ 1 et seq.
O’Bannon v. NFL, 802 F.3d 1049 (9th Cir. 2015), distinguishes
NCAA v. Board of Regents, 468 U.S.

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85 (1984) and exposes the NCAA to antitrust liability.

 Jenkins v. NCAA is the antitrust law suit against the NCAA.
Compl. and jury demand, (D. N.J., March 17, 2014); and class
action certified, Jenkins v. NCAA (In re NCAA Ath. Grant-in-Aid
Cap Antitrust Litig.), 2015–2 Trade Cas. (CCH) ¶ 79, 381 (N.D.
Cal. 2015).
Jenkins v. NCAA is an antitrust lawsuit that calls into question the
very existence of the NCAA on the basis that their regulations “are
pernicious, have no legitimate pro-competitive justification, and
should now be struck down . . . ” The Jenkins complaint asserts
that the NCAA “earn billions of dollars in revenues each year
through hard work, sweat, and sometimes broken bodies of top-tier
college football and men’s basketball athletes who perform services
for defendants’ member institutions in the big business of college
sports.” In their complaint, the Jenkins plaintiffs assert that the
NCAA has “entered into what amounts to cartel agreements with
the avowed purpose and effect of placing a ceiling on the
compensation that may be paid to these athletes for their services.”
The Jenkins plaintiffs received an incredible boost of momentum in
their antitrust lawsuit against the NCAA when the district court of
the Northern District of California on December 4, 2015, granted
plaintiffs’ motion for class certification. The Jenkins lawsuit
challenges the NCAA restrictions on the compensation of student-
athletes.

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The district court’s opinion in O’Bannon v. NCAA, was a

landmark decision that was later affirmed in part, and vacated in
part by the Ninth Circuit. The district court stated that the NCAA’s
rules that ban payment to college athletes violate antitrust laws,
which was affirmed on appeal. The district judge, Judge Chandra
Wilkins of the District Court of the Northern District of California
granted an injunction against current NCAA rules that prohibit
athletes from earning money from the use of their names and
images in video games. “The O’Bannon case could afford schools
beginning in 2015 the opportunity to recruit athletes by offering
them more than scholarship in the form of trust funds and annual
payments.” The district court injunction, however, allows the
NCAA to cap payments, but if it does, the minimum amount is
$5000 per year for particular collegiate football and basketball
players. The appeals court affirmed the district court’s decision that
the NCAA’s compensation rules were not exempt from antitrust
scrutiny. The court of appeals agreed with the district court’s
remedy of “allowing NCAA’s members to give scholarships up to
the full cost of attendance but the District Court’s other remedy,
allowing students to be paid cash compensation up to $5000 per
year, was erroneous.” O’Bannon v. NCAA, 2014 WL 3899815
(N.D. Cal. 2014), aff’d in part and vacated in part, 802 F.3d 1049
(9th Cir. 2015).
I. MISCELLANEOUS
Other than the primary arenas of antitrust litigation discussed
above, there are also some

141

peripheral areas of litigation. Most of these miscellaneous antitrust

actions coalesce around tie-ins, rival sports and business-type
problems.
A tie-in is the practice of tying the purchase of preseason tickets
to the purchase of season tickets. Fans do not like this practice and
have sued on antitrust grounds. This practice is legal since there is
no consumer compulsion and there are always individual seats left
for all home games. Laing v. Minnesota Vikings Football Club,
Inc., 372 F.Supp. 59 (D.Minn.1973).
A corollary of the more famous league versus league suits, are
those that involve rival sports. In North American Soccer League v.
NFL, 505 F.Supp. 659 (S.D.N.Y.1980), a soccer league sued the
NFL for its cross-ownership ban which stipulated that an NFL team
owner could not own a part of another sports franchise. The court
stated that, if there was a limited sub-group of
sportsmen/entrepreneurs, then plaintiff had the burden of proving
that that somewhat illusory fraternity did indeed exist. A rule of
reason analysis was applied with the caveat that not every
concerted action of professional sports league members possessed
antitrust implications.
In another area, the NFL sued a state for trademark infringement
concerning a state lottery that was based on the outcome of NFL
games. The state claimed that the NFL’s restrictions on trademark
usage was violative of the antitrust laws since all NFL licenses
were only obtainable through a package arrangement. The state
lost, even though the scores, etc., were not property. However,
since

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there was an illusion of sponsorship the state must issue a

disclaimer. NFL v. Governor of Delaware, 435 F.Supp. 1372
(D.Del.1977).
Business-related antitrust implications also arose when the owner
of a controlling partnership in a professional football franchise
brought an action against certain banks for allegedly attempting to
force a distress sale of the club. This claim failed in part because
plaintiff could not establish that this alleged action by the banks
violated the rule of reason. Tose v. First Pennsylvania Bank, N.A.,
648 F.2d 879 (3d Cir.1981).
NFL Properties (NFLP) is a corporation that licenses NFL
trademarks. NFLP changed its policies by granting an exclusive
license for its apparel trademarks to a single manufacturer. The
plaintiff received a license to manufacture apparel with NFL
trademarks, but now the exclusive license was granted to Reebok,
so it sued claiming antitrust violations. The plaintiff claimed a per
se violation of Section 1 of the Sherman Act and a monopolization
claim under Section 2. The court held that the most appropriate
standard is the rule of reason. The plaintiff then must establish an
affected market for an antitrust violation. The plaintiff alleged that
the policy affects the licensing, manufacturing, and wholesale
markets for the NFL teams’ trademarks. The court held that the
NFL teams’ trademarks was not a relevant market for antitrust
violations because the teams’ trademarks are not interchangeable.
In American Needle v. New Orleans Louisiana Saints, 385
F.Supp.2d 689 (N.D.

143

Ill. 2005), mot. part. sum. j. gr., 496 F.Supp. 2d 941 (N.D. Ill.
2007), aff’d 538 F.3d 736 (7th Cir. 2008), rev’d & rem’d 130 S.Ct.
2201 (U.S. 2010), the court held that professional football teams
were a single entity; and as a single entity for purposes of licensing,
professional football teams were free to license their intellectual
property on an exclusive basis.
However, the U.S. Supreme Court on May 24, 2010, reversed and
remanded American Needle in an opinion written by Justice
Stevens for a unanimous Court. The court held that the licensing
activities for individual teams’ intellectual property, conducted
through a corporation separate from the team and with its own
management, constituted a concerted action that is not categorically
beyond the coverage of § 1 of the Sherman Act, which makes
illegal a contract, combination or conspiracy in restraint of trade.
But, the court reiterates that “[a]s the case comes to us, we have
only a narrow issue to decide: . . . whether the alleged activity by
the NFL respondents ‘must be viewed as that of a single enterprise
for purpose of § 1.’ ”
“ . . . [D]ecisions by the NFLP regarding the teams’ separately
owned intellectual property constitutes concerted actions. Thirty-
two teams operating independently through the vehicle of the
NFLP are not like the components of a single firm that acts to
maximize the firm’s profits. The teams remain separately
controlled, potential competitors with economic interests that are
distinct from NFLP’s financial well-being . . . . the 32 teams

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capture individual economic benefits separate and apart from

NFLP’s profits as a result of the decisions they make for the NFLP.
NFLP’s decisions thus affect each team’s profit on licensing its
own intellectual property.”
“Football teams that need to cooperate are not trapped by antitrust
laws. [T]he special characteristics of this industry may provide
justification for many kinds of agreement.” Brown, 518 U.S., at
252, 116 S.Ct. 2116 (Stevens, J., dissenting). The fact that NFL
teams share interest in making this highly successful and profitable,
and that they must cooperate in the production and scheduling of
games, provide a purposely sensible justification for making a host
of collective decisions. But the conduct at issue in this case is still
concerted activity under the Sherman Act that is subject to § 1
analysis.
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CHAPTER 6
TORTS
A. NEGLIGENCE
The tort action of choice for sports-related injuries is negligence.
Negligence is any conduct that falls below the reasonable man
standard. In sports, there is a myriad of possible variations of what
that standard is as it relates to the varieties of sporting conduct.
Negligence is measured against the particular facts and
circumstances in each and every case.
The burden is on the plaintiff to show that a negligent act or
omission occurred on the part of the defendant and that it was the
proximate cause of that injury. That is, there must be an established
duty of care, a breach of that duty, a proximate cause between
defendant’s action and the injury, and damages that resulted from
that breach.
Negligence in sports is a relatively new phenomenon. In earlier
days, the law was dominated by Justice Cardozo’s maxim that “the
timorous may stay at home.” Murphy v. Steeplechase Amusement
Company, 250 N.Y. 479, 166 N.E. 173 (1929). Basically, the law
did not want to place an unreasonable burden on active
participation in sports. One was assumed to voluntarily embrace
any danger that might occur in a sporting activity. However, the
courts slowly began to understand that athletic competition did not
exist in a vacuum; “some other restraints of

146
civilization must accompany every athlete onto the playing field.”
Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975).
1. DUTY OF CARE
The inquiry of whether the defendant owed a duty to the injured
party is one of law. Whether that duty has been breached or
whether there is a causal connection between breach and injury are
questions of fact.
A duty is an expression of the sum total of policy considerations
that would lead an adjudicator to find that a particular plaintiff is
entitled to some sort of protection. A duty can be created by either
common law, statute, contract or policy. If no duty is evident then
an action in negligence will be unsuccessful.
A duty of care can also arise through a special relationship. Duty
is predicated on the existing relationships between the parties at the
relevant times. Kleinknecht v. Gettysburg College, 989 F.2d 1360
(3d Cir.1993) held that a recruited lacrosse player who suddenly
collapsed and died during practice was owed a duty of care by the
college to provide prompt emergency medical service. The special
relationship here was the active recruitment of the player.
In Davidson v. University of North Carolina at Chapel Hill, 142
N.C.App. 544, 543 S.E.2d 920 (2001), like in Kleinknecht, the
Court found a special relationship between the injured JV
cheerleader

147

and the university in that the defendant voluntarily undertook to

educate the cheerleaders on safety, which thus created a separate
duty of care as a matter of law.
 In Hills v. Bridgeview Little League Assn., 195 Ill.2d 210, 253
Ill.Dec. 632, 745 N.E.2d 1166 (2000), a little league coach was
horribly beaten by two rival coaches, the court held that the
association did not have an affirmative duty to protect plaintiff
from the criminal attack of another coach. Similarly, in Cutrone v.
Monarch Holding Corp., 299 A.D.2d 388, 749 N.Y.S.2d 280 (2
Dept. 2002), the owner and operator of a skating rink did not have
a duty to protect a spectator from the unexpected and unforeseeable
criminal assault by a deranged hockey player.
In Allen v. Dover Co-Recreational Softball League, 148 N.H. 407,
807 A.2d 1274 (2002), the team sponsors, field owners, etc., were
not responsible for the injury that a softball player suffered from an
errant throw. Defendants had no duty to protect player from such
an ordinary risk. Infielder did not have a duty to refrain from
making errant throws. Team sponsors did not have the duty to
conduct game using certain equipment or to enforce male-female
ratio on teams. League sponsor and insurer had no duty to warn and
instruct league regarding the risk of injury.
However, in Sanchez v. Hillerich & Bradsby Co., 104
Cal.App.4th 703, 128 Cal.Rptr.2d 529 (2002), a college baseball
pitcher who brought a negligence action against bat manufacturer
and college sports

148

association, for severe brain injuries sustained when he was hit by a

baseball was able to withstand summary judgment for the
manufacturer on the basis that a genuine issue of material fact
existed as to whether the design and use of a newly designed
aluminum baseball bat substantially increased the inherent risk the
pitcher faced during a baseball game. There was also a genuine
issue of material fact as to whether the design and use of a newly
designed aluminum baseball bat caused the pitcher’s severe brain
injury by increasing the speed at which the baseball left the bat
compared to other metal and wood bats. Although a defendant
owes no duty of care to protect plaintiff against risks inherent in a
particular sport voluntarily played by the plaintiff; the defendant
does owe a duty to participants not to increase the risk of harm over
and above that inherent in the sport.
Korey Stringer, of the Minnesota Vikings, died of heat stroke
following training camp practice in 2001. In the two days of
practice before he died, he vomited numerous times and collapsed
to his knees on several occasions. Fre Zamberletti, coordinator of
medical services for the Vikings, and Paul Osterman, an assistant
trainer, gave him fluids for hydration. On the second day, Stringer
became ill again and was taken to a trailer to cool off. While in the
trailer, Stringer began moving his head back and forth for about ten
minutes. Osterman called the training room for a golf cart to pick
up Stringer, but Stringer was unresponsive. No one took Stringer’s
temperature or monitored his heart beat. An ambulance was finally
called after Stringer’s

149

conditioned worsened. Stringer was unconscious at the hospital, his

pulse was 148 beats per minute and his blood pressure was
undeterminable. Stringer had a body temperature of 108.8 degrees.
After many failed attempts to help him, Stringer died at the
hospital.
In a wrongful death action, Korey’s widow asserted that both
Osterman and Zamberletti had a personal duty to protect and care
for Korey’s health. The Court of Appeals held that both men did
owe Stringer a personal duty, but their actions were not grossly
negligent as a matter of law. The Minnesota Supreme Court applied
the personal duty test. This test indicates that the defendant must
take or direct another to take action toward the injured employee
and that defendant acted outside the course and scope of
employment. As a result of applying the personal duty test, the
Supreme Court determined that the defendants did not owe Stringer
a personal duty and affirmed the granting of summary judgment to
both defendants. See Stringer v. Minnesota Vikings Football Club,
LLC, 705 N.W.2d 746 (Minn. 2005).
In Lee v. Orion Management Solutions, Inc., 2010 WL 4106696
(D. Kan.), plaintiff suffered personal injuries while hitting golf
balls on the golf club driving range. The range had two ropes that
extended the entire width of the driving range. The ropes were on
the ground and secured by spherical tee markers with a height of
approximately 3 to 4 inches. Plaintiff hit a ball that struck a tee
marker, bounced back, and struck plaintiff in the left eye.

150

Defendant owed plaintiff a duty to exercise reasonable and

ordinary degree of care in making the premises safe for operation
of the golf club. It is uncontested that bounced back balls is a
consideration in designing a golf course and it is a common
knowledge that it is possible that a golf ball could strike one of the
tee markers. There is a genuine dispute of fact as to whether the
golf club had an affirmative duty to minimize the risk posed by the
tee marker because it should have been expected that plaintiff was
distracted or forgot the danger posed by tee markers.
A basketball player unsuccessfully sued a community center for
damages sustained when another player punched him in the jaw.
An assault that occurs with such lightning speed could not have
been prevented regardless of the level of supervision. Ulrich v.
Bronx House Comm. Center, 96 A.D.3d 582 (1st Dep’t 2012),
rev’d 99 A.D.3d 472 (1st Dep’t 2012).
The New York Yankees were not negligent for an injury that
occurred when a patron slipped and fell in the row where his seat
was located. Plaintiff testified that while the walking surface of the
steps, ramps, and concourse area in the stadium was slick, he did
not recall any specific condition, for example, liquid or food, in the
row where he fell, although there was a puddle of liquid on the
stairs at the entrance to the aisle where the seats were located and
the puddle had been there for at least 15 minutes. But, plaintiff’s
sister also admitted that plaintiff fell at a spot that was three or four
seats

151

away from the puddle. Beahn v. N.Y. Yankees Partnership, 934

NYS 2d 7 (1st Dep’t 2011).
However, genuine issues of material fact existed when a female
spectator slipped and fell in a bathroom at PNC Park, the home of
the Pittsburgh Pirates. The question is whether the stadium
manager’s alleged conduct amounts to professional or gross
negligence. “The difference between reckless misconduct and
conduct involving only such a quantum of risk as is necessary to
make it negligent is a difference in the degree of risk, but this
difference of degree is so marked as to amount substantially to a
difference in kind.” Plaintiffs allege that the Pirates acted
recklessly: (1) she testified that as she entered the rest room she
observed that the floor was shiny and wet; (2) she attempted to
avoid the many large and small puddles; and (3) she fell when she
exited the stall and attempted to avoid the standing water, but
instead stepped into water and slipped. The court found that the
Pirates’ conduct could be reckless since the Pirates knew or should
have known that their conduct creates an unreasonable risk of
physical harm to another. Rung v. Pittsburg Assocs., LP, 515 Fed.
Appx. 136 (3rd Cir. 2013).
2. STANDARD OF CARE
The key to discovering a breach of a duty is to determine whether
defendant’s conduct falls below an applicable standard of care. For
example, a violation of a league safety rule could constitute an
actionable duty, if that rule is recognized as a

152

standard of care created for the protection of participants.

In some instances a school is held to the same degree of care as
the children’s parents. The school is in loco parentis, and the
applicable standard is that of reasonably prudent parents acting
under similar and comparable circumstances.
The level of care will vary with the plaintiff’s situation. The more
foreseeable the injury, the higher the standard. An example of this
would be an injured football player who is carried off the field in a
stretcher in an unreasonable and dangerous manner. The standard
of care for an already injured player is one of extreme caution. An
absence of a specific standard of care as created by a safety rule or
a physical education standard does not defeat negligence. Without a
specific applicable rule, the standard of a reasonable man acting
under similar circumstances will be applicable. Established rules
and regulations will merely assist the plaintiff in his or her burden
of proof.
 In Geiersbach v. Frieje, 807 N.E.2d 114 (Ind.App.2004), a
university baseball player filed suit against university, coach, and
another player for personal injuries sustained during a team drill.
The Indiana Court of Appeals held that the standard of care for
university sporting events and practices was to avoid reckless or
malicious behavior or intentional injury, rather than the reasonable
care standard; and that a participant in a sporting event, including
any person who was part of the event or practice such as players
and coaches, did

153

not have a duty to fellow participants to refrain from conduct which

was inherent and foreseeable in the play of the game. A teammate,
who did not act recklessly or maliciously, was not liable to player;
also coaches were not liable to player, and the university was not
vicariously liable to player.
In the brawl at the Palace of Auburn Hills, an employee was
struck by a chair thrown by a fan which hit her in the head. On
appeal, she argued that NBA players Jermaine O’Neal and David
Harrison owed a duty to protect her from harm. The appellate court
held that an individual does not owe a duty to protect another from
third party criminal acts on the basis that the fan failed to establish
a special relationship between herself and the NBA players. Socia
v. Pacers Basketball Corp., 2010 WL 446912 (Mich. App. 2010).
In the celebrated case of the beat-down of Giants fans by Dodgers
fans, the family of Brian Stow sued the Dodgers. Stow, who was
hospitalized and in a coma, and his friends were allegedly harassed
before, during, and after the baseball game. The plaintiffs allege
that security guards ignored the taunting. The lawsuit argues that
the financial problems of Dodgers owner Frank McCourt led to the
inadequate security which was the cause of the injury. It was
suggested that the Dodgers might have prevented the situation by
providing more security in the parking lot, barring “known
criminals or gang members” from attending games, ejecting unruly
patrons, and promoting responsible consumption of alcohol. (See
“Dodgers Named in

154

Long- Anticipated Lawsuits,” 8 Sports Litig. Alert 22 (June 3,

2011)).
In a case where a golfer fell after leaning on a fence by a tee box
that gave away, the court held that the owner had a duty to inspect
the fence. Gennrich v. Zürich American Ins. Co., 789 N.W.2d 106
(Wis. App. 2010).
Plaintiff’s son who was hit in the face with a golf club failed to
establish that defendant’s duty of care encompasses the risk of
injury since the alleged injury is consistent with golf’s inherent risk
absent no evidence of intentionally injurious or reckless conduct.
Rudzinski v. BB, 2010 WL 2723105 (D. SC). Similarly, in Debassio
v. Moscato, 2011 WL 2739527 (Conn. Super. 2011), defendant
swung a golf club that had been lying in a wooded area and struck
plaintiff’s minor son in the head causing severe injuries. There was
no existence of a foreseeable legal duty since it is not negligent to
merely leave an unattended golf club lying on the ground.
3. BREACH OF DUTY
A breach will occur when there is sufficient evidence for a jury to
conclude that defendant breached a duty; and if so whether the jury
could reasonably infer that defendant’s breach was the proximate
cause of the injury. When a duty exists, the question of breach is
one for the trier of fact to resolve unless the evidence is so obvious
that reasonable minds could not differ in their conclusions. Since
the question of breach is one of

155

fact, the determination must be on a case-by-case basis.

In the ongoing concussion injury litigation by former NFL
players, plaintiffs allege that “the NFL has not only failed to satisfy
its duty to take the reasonable steps necessary to protect its players
from devastating head injuries, it has done everything in its power
to hide the issue and mislead its players concerning the risks
associated with concussions.” (See Plaintiff’s Original Compl., In
re NFLP Concussion Injury Litig. , MDL No. 2323 (S.D. Tex., July
5, 2011)). Most of these lawsuits were consolidated before a federal
judge in Philadelphia. The gist of all of these lawsuits is that the
NFL failed to act on a large and convincing body of medical
evidence that proves that repeated hits to the head can cause long-
term health problems. (See, e.g., “Stabler Joins the Head-Injury
Battle,” Houston Chronicle at C6 (July 26, 2012)).
The NFL Players’ Concussion Injury Litigation (Turner v. NFL),
was “resettled” on April 22, 2015 by Judge Anita Brody in a
document entitled “Final Order and Judgment.” This final order
uncapped the Judge’s July 7, 2014 memorandum opinion of $675
million, which is now an uncapped inflation-adjusted fund. (See In
re NFLP Concussion Injury Litig., 301 F.R.D. 191 (E.D. Pa.
2014)). In Mann v. Palmerton Area Sch. Dist., 33 F.Supp. 3d 530
(M.D. Pa. 2014), the court found that a high school student who
suffered brain injury during football practice stated an actionable
claim under the Fourteenth Amendment. The gist of the case, and
why there
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was a successful conclusion, is that the coaches observed the

symptoms of the student’s injury but instructed him to continue to
practice.
The Supreme Court of Ohio in Horvath v. Ish, 979 N.E.2d 1246
(Ohio 2012), analyzed the potential duty of a ski area operator for
the injuries to a skier who collided with a minor snowboarder. The
injured skier alleges that the snowboarder’s actions were reckless,
willful, and wanton. The court held that a genuine issue of material
fact existed which precluded summary judgment on the grounds
that it must be determined whether minor defendant’s actions were
more than negligent, that is, whether he acted recklessly or
intentionally.
4. PROXIMATE CAUSE
The next factor is whether there is a connection between the
negligence and the resulting injury. The question is whether the
breach of a duty was the proximate cause of the injury. This is a
fact question and must be decided by a jury on a case-by-case
basis.
Proximate cause is that cause which in a natural and continuous
sequence, unbroken by an efficient intervening cause, produces the
injury and without which the injury would not have occurred. In
proving proximate cause, the plaintiff is not required to eliminate
all of the other potential causes. One needs only to prove a
sufficient evidentiary basis from which causation could reasonably
be inferred, and the causation must only be a substantial factor in
bringing about the injury.

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 As in Kleinkecht v. Gettysburg College, 989 F.2d 1360 (3d Cir.
1993), which looked at the estate of a dead athlete, Estate of
Richardson v. Bowling Green State Univ., 2010 Ohio 3475 (Ohio
Ct. Claims), aff’d as modified, 2011 WL 1137298 (Ohio App. 10th
Dist.), alleged that the university did not meet the appropriate
standard of care and that the call for emergency attention, if made
at an earlier time, would have saved the life of plaintiff’s decedent
Aaron Richardson who was a walk-on football player and had just
finished “gassers,” a series of sprints, when he experienced leg
cramps. He was helped to the locker room and assisted by a student
assistant to the women’s soccer program. The cramping spread,
telephone calls were made to the athletic trainers, and ultimately
there was a 911 call. Aaron suffered cardiac arrest and never
regained consciousness. He was diagnosed with sickle cell trait as a
child, and his brother also suffered from sickle cell disease. The
training staff was not aware that Aaron had the sickle cell trait. The
court held that there was competent credible evidence showing a
lack of proximate cause of student’s death due to the negligence of
state university personnel. A physician who was board certified in
emergency medicine testified that the severe cramping was so dire
that summoning medical attention earlier could not have saved his
life. This constituted competent credible evidence of a lack of
proximate cause of student’s death due to negligence of state
personnel, which precluded university’s liability. The physician
also testified that an abnormally high concentration of sodium in

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the body was the cause of the student’s death and that the student’s
sodium ion reading of 200 was the highest physician had seen in 30
years of medical practice, and that the reading was inconsistent
with life.
 5. DAMAGES
Negligence requires that the plaintiff must suffer some damages.
The phenomenon of a sporting activity is such that it is action-
oriented and creates a situation in which the participant is
extremely prone to injuries as a result of physical contact.
Therefore, damage is usually easy to prove. The only requirement
is that actual loss or damages must result to the interest of another.
Nominal damages alone where no actual loss has occurred will be
insufficient. Likewise, the threat of future loss without more is also
insufficient.
The question of damages is intertwined with the requirement of
proximate cause. If the negligence in question is the proximate
cause of the injury then it follows that the resulting damages, if
more than nominal, would be sufficient to complete the negligence
cause of action.
B. MEDICAL MALPRACTICE
Malpractice is a bad or unskilled practice by a physician or other
medical professional. As in other negligence actions, the element of
duty is essential to malpractice. Duty is an obligation to conform to
a particular standard of conduct towards another. In the medical
sports area, this duty can include the

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duty to disclose, the duty to instruct, the duty to disclose whether

the physician is employed by a third party, e.g., a sports team, and a
duty to disclose medical negligence. The duty is evaluated by a
standard of conduct taking into account the skill and knowledge of
the medical community as a whole.
 A key element in any suit against a team for potential malpractice
is whether the doctor in question was a team physician. The
problem is that there is great deal of flexibility and variety among
the possible relationships between doctor and team. The problem
will usually translate into a question of whether the doctor is an
employee of the team or an independent contractor. A doctor-
patient relationship requires mutual acceptance between a doctor
and an athlete (or an athlete’s agent or parents or guardians). When
mutual acceptance has occurred, a doctor-patient relationship is
established; then consent to treat must be obtained. Consent must
come from either the adult patient himself or from the parents of a
minor athlete, since a minor is deemed incapable of giving valid
consent.
Plaintiff Austin Chaz Ramsey, a former football player at Auburn
University, sued the defendant Arnold Gamber, a former athletic
trainer at Auburn, for failing to properly supervise his
rehabilitation, in violation of state law. Ramsey asserted three
claims under Alabama law: negligence, wantonness, and
interference with the physician-patient relationship. Ramsey
became a scholarship football player for Auburn University in the
fall of 2007. He

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began playing as a guard on the offensive line early in his freshman

year.
In December 2007, Ramsey suffered a back injury while lifting
weights. Auburn University’s athletic-program staff supervised
Ramsey’s rehabilitation with the goal of returning him to the
football field. Dr. Michael Goodlett was the primary coordinator
for Ramsey’s rehabilitation. He worked closely with athletic
trainers and coordinated the rehabilitation of injured athletes.
Gamber was the head athletic trainer for Auburn’s football team.
Gamber was responsible for evaluating and reporting all player
injuries to Dr. Goodlett. He worked in conjunction with Dr.
Goodlett and was required to follow Goodlett’s medical
instructions regarding athlete patients. Kevin Yoxall was Auburn’s
strength and conditioning coach who supervised Auburn’s weight
training room.
After physical therapy failed to relieve the continuing pain in his
leg, Ramsey underwent surgery on April 21, 2008, with Dr.
Goodlett’s approval. Following the surgery it was determined that
Ramsey would be allowed to gradually increase his activities as
tolerated with some strength training.
Gamber, Dr. Goodlett, and Yoxall met to formulate a
rehabilitation plan for Ramsey. The plan was based on
rehabilitation programs used by other players with similar back
injuries. Neither the trainer nor the doctor supervised the exercise
program since the strength and conditioning coach independently
managed the weight room where the

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injury that resulted in the loss of Ramsey’s scholarship occurred.

Ramsey also asserted the novel claim of “interference with
physician-patient relationship.” “Nevertheless, the court need not
reach the question of whether such a claim exists, for Ramsey
would not even recover under the claim as he describes it. In the
pretrial conference in this case, Ramsey’s counsel said the
proposed tort would consist of three elements: (1) the existence of
the doctor-patient relationship; (2) failure to carry out doctor’s
orders; and (3) complaint of interference by the patient to the
tortfeasor. However, there is no evidence that the trainer failed to
comply with the directives of Dr. Goodlett, and if there were any
interference, there is no indication that plaintiff ever complained to
Gamber. Ramsey v. Gamber, 2011 WL 486139 (M.D. Ala.), aff’d
2012 WL 851228 (11th Cir.).
In Fraley v. Griffin, No. 10–cv–000150, complaint filed (N.C.
Super. Ct., Orange County, Jan. 27, 2010), the parents of a
promising high school football player who died alone at home only
hours after a paramedic evaluated him filed a wrongful death action
alleging that EMT breached numerous protocols. The lawsuit was
described in the following manner by West’s Medical Malpractice
Law Report:
David and Malinda Fraley say their son Atlas, 17, called Orange
County emergency services August 12, 2008 at 1:46 p.m. with
complaints that he was suffering from body cramps that rated at 7
on the scale of 10.

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Atlas, who was a senior at Chapel Hill School and top college
prospect, had played in a morning football scrimmage, according to
the suit filed against paramedic James Griffin and the emergency
service in the Orange County Superior Court.
Atlas told the dispatcher that he thought he might need an IV
because of dehydration.
Griffin responded to the call at 1:54 and spent only 16 minutes
with the teen. He noted that Atlas’ pains were so bad he could not
sit or stand still, the complaint says.
Griffin recorded a blood pressure of 134/102 and a heart rate 92
beats per minute while standing.
 The complaint, however, notes Griffin failed to perform
orthostatics, did not perform an electrocardiogram and failed to
take Fraley’s temperature.
Orthostatics are serial measurements of blood pressure and pulse
that are taken with the patient lying down, sitting, and standing.
The results are used to assess for possible body-fluid volume
depletion.
Griffin did not treat Atlas’ condition seriously, the complaint
contends, and instead of taking him to a hospital for further
evaluations, Griffin left him at his home alone, where he died.
The Fraley’s found their son dead on the living room floor at 6:30
that evening when they returned home from work.

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The complaint says that in his report of the call, Griffin claimed
he tried to contact the Fraleys but phone records show no such
attempts. Had he contacted them, their son would not have died,
the Fraleys argue, because they would not have allowed Griffin to
leave him alone.
According to the complaint, an internal investigation conducted
by the Orange County EMS revealed Griffin violated county
protocols in his care of Atlas and Griffin’s paramedic practice
privileges were suspended.
The complaint accuses Griffin of negligence in failing to exercise
reasonable care in the evaluation and treatment of Atlas.
The plaintiffs are seeking damages sufficient to compensate the
estate for their son’s pain and suffering, his medical and funeral
expenses, and the loss of his service, society and companionship to
his parents. (See Fraley v. Griffin: EMT’s Negligence Contributed
to Death of Teen Football Player” 19 ANMEDMALR 5 (Feb. 12,
2010). See also Fraley v. Griffin, Compl. w/Interrogatories Req. for
Prod. of Docs. & Req. for Adms. Attached, Trial Pleading (Jan. 27,
2010), 2010 WL 430115).
1. DUTY OF CARE
Like in any other negligence action, there must be a duty, breach
of duty, causation and damages. The most typical potential for
malpractice will come from the medical examination.
Examinations, however, are conducted for a variety of purposes

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with various degrees of thoroughness: for example, pre-

participation exams, determination of fitness to participate, and
examinations to prevent subsequent injury and to assess
rehabilitation status. Since each type of examination calls for a
different degree of analysis by the attending physician, it is difficult
to establish a precise standard by which a physician’s conduct may
be evaluated. However, as in all medicine, a physician must act
with the skill and knowledge that will be utilized by other doctors
acting in similar circumstances.
In analyzing a physician’s duty of care for medical examinations,
one factor that must be considered is whether this particular
physician is acting for the benefit of the team or for the benefit of
the athlete. When a team physician acts for the benefit of the
athlete, the duty of care owed will also include a duty not to
increase the risk of other, foreseeable losses. Therefore, a missed
diagnosis would be subject to liability for any lost opportunities
that the athlete could prove were resulting losses.
 A nurse practitioner cleared a 17-year-old football player
weighing 297 pounds on a pre-participation physical. The player
subsequently collapsed and died at practice from heat stroke. She
did not breach applicable standard of care in clearing plaintiff for
sports participation after performing pre-participation physical
evaluation (PPE) the day before he collapsed and died. Plaintiff’s
mother provided nurse practitioner with false information that her
son did not have history of heart condition,

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high blood pressure, or any other medical ailments. The

examination by the nurse practitioner was thorough and detailed,
his weight did not raise a red flag, and his blood pressure (140/86)
was not considered sufficiently elevated for a 17-year-old. Magee v.
Covington County Sch. Dist., 2012 WL 48026 (Miss. App. 2012).
In Montgomery v. Ohio State University, 2012 WL 5949038
(Ohio App.), a former Buckeye football player began the NFL
employment recruitment process. As a part of his recruitment
process, the NFL sent Ohio State a “Medical and Injury History
Questionnaire” requesting information relating to Joseph
Montgomery’s medical history from Ohio State’s team physicians,
athletic trainers, or other medical personnel. An Ohio State athletic
trainer completed the form, and under the section inquiring as to
whether the football player had a history of specified diseases or
illnesses, the trainer checked boxes indicating hay fever and high
blood pressure. Montgomery alleges that the trainer was negligent
in making the responses regarding his medical condition, however,
he fails to allege the existence of a duty owed by the team doctor to
the student-athlete.
2. DUTY TO DISCLOSE AND INFORMED CONSENT
 A physician must disclose any material information regarding the
athlete’s physical condition. This duty to inform emanates both
from the fiduciary nature of the relationship and from the

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athlete’s right to determine the procedures that will be performed

on his own body. A failure to disclose any medical information that
ultimately results in damages to the athlete will create tort liability
for the physician. The duty to disclose includes the duty to inform
the athlete that he must seek further medical advice. Since an
athlete is expected to perform at his highest obtainable level, a
doctor’s concealment or failure to disclose might cost the athlete
his career through the aggravation of an injury.
A duty to disclose will remain even in the case where the doctor
is hired by a party other than the athlete: the duty will exist
regardless of who pays or even whether the doctor is paid or has an
expectation of payment.
A corollary to the duty to disclose, at least as regards who needs
the information to make a well-reasoned decision, is the doctrine of
informed consent. A patient’s consent to treatment is valid if it is
informed. An athlete is informed when the doctor has released an
amount of medical information relevant to the proposed treatment
and sufficient to allow the athlete to make an intelligent choice as
whether he should continue that treatment. This includes the
reasonable disclosure of available alternative procedures as well as
the dangers that correspond with each and an indication of
whatever applicable advantages might ensue. The consent by the
athlete should always be in writing and should be clear and
understandable in terms and in scope.
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Finally, in the world of sports, physicians’ disclosure of

information relative to the physical or even mental condition of the
athlete is unusually important since any disclosure to the media
could severely damage an athlete’s potential to successfully
continue his career. For example, if a team’s doctor communicates
any information on an athlete’s conditions to the media, with or
without consent, the doctor may be subject to liability for
defamation, invasion of privacy or breach of a confidential
relationship. Also, disclosure in the absence of consent may subject
that doctor to potential liability if the team relies upon the
physician’s statement and it is subsequently proved inaccurate.
3. FRAUDULENT CONCEALMENT
The Charlie Krueger case revolved around allegations that the
team physicians for his professional football team fraudulently
concealed medical information about his injuries, the extent of his
injuries and his ability to continue to play. Krueger v. San
Francisco Forty Niners, 234 Cal.Rptr. 579 (1987). Mr. Krueger
was an exemplary defensive lineman for the San Francisco 49ers
from 1958 until 1973 when he retired; he missed only parts of two
seasons due to injuries. During his career he suffered numerous
injuries but continued to play through the pain: for example, a
broken arm, broken ring fingers on each hand, numerous broken
noses, multiple dislocations of fingers and thumbs on both hands, a
blow-out

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fracture of the right ocular orbit, an eye infection, a sprained right

knee and hypertension.
 Those injuries, however, were somewhat minor compared to the
problems that befell his left knee. It was operated on in college and
in 1963 he ruptured his medial collateral ligament; the team
operated on it at that time and told him it was in “good repair”. He
continued to play with the help of rehabilitative therapy from the
team trainer and a brace which he wore while playing until 1967.
The team physician noted that Krueger’s anterior cruciate ligament,
which prevents the tibia from shifting forward on the femur,
appeared to be absent. An injury like this produces instability in the
knee, particularly when combined with other injuries; Krueger was
never told of this injury.
His left knee continued to hurt and swell; in 1964, he received
further treatment from the team physicians in the form of an
aspiration of bloody fluids by syringe and a contemporaneous
injection of novocaine and cortisone, a steroid compound. Krueger
testified to 50 such treatments in 1964 and a 14 to 20 average per
year from 1964 to 1973; through all this he was never informed of
the dangers that are associated with steroids: possible rupturing of
tendons, weakening of joints and cartilage, and destruction of
capillaries and blood vessels. In 1971, he underwent another
operation on his left knee by the team doctor to remove “loose
bodies” as a result of chronic chondromalacia, thinning and loss of
cartilage on the knee cap’s undersurface; this condition is fully
consistent with

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steroid abuse. Also, x-rays from 1964 to 1971 revealed

degenerative post-traumatic changes in the knee; he was not
informed of any of these afflictions by the 49ers medical staff.
Added to this, in 1971, Krueger felt a hit on his knee with a
resulting feeling that a piece of substance dislodged on the outside
of his knee joint; still, he played the five remaining games. During
this time period he was never advised by the team doctors that he
risked permanent injury by continuing to play without surgery.
Finally, five years after retirement, he was shown x-rays and was
advised for the first time that he suffered from a chronic and
permanent disability. He now suffers from traumatic arthritis and a
crippling degenerative process in the left knee; he cannot stand up
for prolonged periods; he cannot run; he is unable to walk up stairs
without severe pain; his condition is degenerative and irreversible.
Under the informed consent doctrine an integral part of the
physician’s overall obligation is to the patient: there is a duty of
reasonable disclosure of the available choices with respect to the
proposed therapy and of the dangers that are inherently and
potentially involved in each procedure. The physician must
disclose all information that is necessary to make a knowledgeable
decision about the proposed treatment. This duty is imposed so that
the patient can meaningfully exercise their right to make decisions
that affect their own bodies; therefore, even if the patient rejects the
recommended treatment the duty will still continue.

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The failure to make this type of disclosure not only constitutes

negligence, but, where the requisite intent is shown, fraudulent
concealment can also be established. A physician, especially a team
doctor, cannot avoid responsibility for failure to fully disclose
simply by claiming that information was not specifically withheld.
Krueger was never advised of the adverse effects of the injection of
steroids or the continued medical risks that would occur as a result
of his continuing in football; therefore, the requisite disclosure was
not forthcoming.
 Intent also must be established for fraudulent concealment;
plaintiff must show that at the time of the concealed information
defendant intended to induce the patient to adopt or abandon a
course of action. In this case, the intent was to induce Krueger to
continue to play despite his injuries. The team in its desire to keep
their player on the field consciously failed to make full, meaningful
disclosure as to the magnitude of the risk he took in continuing to
play a violent contact sport with a profoundly damaged left knee. It
is axiomatic in the situation of an athlete and a team doctor that the
element of reliance was also present.
In Strock v. USA Cycling, Inc., 2006 WL 1223151 (D.Colo.), two
cyclists on the junior team were doped by their coach; apparently, a
mixture of cortisone and vitamins. About three years later, the
coach told the two plaintiffs that there were rumors circulating
about that the coach had doped the junior team; but, they had no
reasonable reason to

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believe the veracity of these rumors. Some five years later, one of
the plaintiffs, now in medical school, began to believe for the first
time that he had been given steroids. In medical school, he learned
that there was no such thing as an “extract of cortisone.” Eight
years earlier, the coach gave him a substitute for antibiotics which
he assured him was both safe and legal. The coach described it as a
mixture of extract of cortisone and vitamins. The coach further
informed him that he should not question the good judgment of the
coaching staff. Both plaintiffs were thereafter injected many times;
the second plaintiff alleged that he was injected 42 to 48 times.
Both of them suffered severe medical conditions that have been
associated with steroid abuse (parovirus and lung infection). Since
the coach concealed his doping of the two athletes, the legal
question is whether it was reasonable for them not to know that
they had been given steroids. The court thwarted defendants’
motion to dismiss on the grounds that genuine issues of material
fact existed as to when both plaintiffs knew or should have known
the cause of their health issues.
4. TEAM PHYSICIANS
The major conflict inherent in analyzing potential medical
malpractice claims in athletics is the role or roles of the team
physician. The question is what is the doctor’s relationship to the
athlete’s employer and how does that relationship affect the
physician’s relationship with the patient, the athlete.

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Since most claims against team physicians will be based on

negligence, the first hurdle will be to establish a duty and a
standard of care. The duty to act will usually be predicated on the
existence of a physician-patient relationship. A standard of care, on
the other hand, will be based upon society’s expectations that
physicians act reasonably under the circumstances.
Usually, the existence of a physician-patient relationship is a
given; however, it is much more complicated when the physician
works for a school or a professional sports team. It is clear that
when the primary purpose of the medical service is actual care and
treatment, then a relationship will be deemed to exist; however, it is
less clear when a doctor is hired for non-therapeutic purposes, for
example, a preparticipation physical exam. Traditionally, no duty
will exist for non-therapeutic examinations. However, many states
currently hold that doctors may owe a duty of care to discover
dangerous conditions and then to report these conditions to the
athlete, even if the physician is paid by a third party.
 There is also the question of the extent to which the medical
doctor may limit the scope of his relationship to the athlete/patient.
The physician-patient relationship is consensual in nature and as
such a doctor may generally limit the scope of his professional
involvement at the beginning of said relationship. However, he
must inform the athlete of these limitations in advance unless the
limitations are reasonably expected based upon common

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practices or past dealings. This truism is relevant for

preparticipation and post-injury physical examinations, especially
if the doctor is hired on a one time only basis for school preseason
physicals. Even these physicians must be responsible both for
conditions that are within the scope of the examination that they
knew or should have known and for those conditions that are
outside the scope of the examination but which the doctor knew or
had reason to know about as a result of the examination.
A standard of care for a team physician can be typically defined
as performing to the level of expertise that conforms to a
reasonably competent medical practitioner under similar
circumstances taking into account all reasonable limitations that are
placed on the scope of the doctor’s undertaking. However, it
appears that sports medicine has reached a specialty status for
purposes of establishing a minimal standard of care. In the future,
courts will probably elevate sports medicine doctors to a
specialist’s standard. This standard will be limited to the
fundamentals of the sub-field of sports medicine which are known
to all practitioners in the field based on the types of athletes with
whom the doctor is primarily involved. Traditional specialists, such
as orthopedic surgeons, who happen to concentrate in sports
medicine, will still be expected to act to the standard of a
reasonable orthopedist.
In Gardner v. Holifield, 639 So.2d 652 (Fla.App. 1st Dist.1994),
decedent mother sued her son’s physician for alleged acts of
negligence, which

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contributed to her son’s death from Marfan’s syndrome at the age

of 18. Her son, a scholarship basketball player at Florida A & M
University, was examined at the school’s clinic for a basketball
physical and was diagnosed as possibly suffering from Marfan’s by
the defendant physician. The suit alleged that the doctor failed to
properly identify the extent of his illness or to implement an
appropriate course of treatment. The question before the court was
whether, at the time of the alleged negligent act, a state-employed
physician was acting in the scope of the immunity statute (Fla. Stat.
Ann. § 768.28(a)). The question of scope of a state employment
statute presents a jury issue when it arises upon disputed facts. It
was clear that although the doctor made referrals to other medical
specialists, he never referred the decedent to another cardiologist
after the initial examination revealed a potential heart condition.
The doctor’s decision to order and read the EKGs at a regional
medical center, considered in light of the matters raised by the
plaintiffs experts, leads in the court’s view, to competing references
that may not properly be resolved in favor of the party moving for
summary judgment. A permissible reference from the lack of a
referral is that the clinic doctor (who was also a cardiologist)
assumed responsibility for the basketball player’s condition as a
private cardiologist. The doctor’s responsibilities as a clinic chief
consisted solely of referring the decedent to an appropriate medical
specialist outside the school, to advise him of the confirmed
diagnosis of Marfan’s Syndrome, and to advise the athletic
department

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that he had not been medically cleared to participate in basketball.

If the doctor was acting as the athlete’s personal cardiologist then
he was exceeding his scope of employment (and thus would lose
the cloak of immunity). Accordingly, the doctor’s motion for
summary judgment was denied on appeal.
The types of legal relationships between a doctor and the school
or professional team are myriad. In an attempt to establish the type
of relationship, the preliminary inquiry goes to the contractual
obligations between the parties and the degree of control the doctor
retains in his management of the athlete. The duties and obligations
of the physician to the team should be delineated by their contract.
This is more true with professional teams. It is less the case in the
amateur level where the duties are often less well-defined. The
physician for an amateur team may be paid little or nothing for his
participation, and his ties to the team may be limited solely to
preparticipation physicals and treatment of specific injuries on a
referral basis as opposed to the plethora of duties that a team
physician to a professional sports enterprise will generally contract
for (e.g., preparticipation, injury treatment, attending practices and
games, referrals, rehabilitation, certification of fitness, etc.).
The next question is the degree to which the school or
professional team controls the doctor’s treatment of the
athlete/patient. If the doctor maintains autonomy in his therapeutic
decision-making, then he will usually be deemed to be an

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independent contractor. If that is the case, then the doctrine of
respondeat superior will be inapplicable and the team or school as
the employer will not be vicariously liable for any negligent acts of
the physician.
A team physician is usually deemed to be an independent
contractor; however, in some cases a professional sports franchise
will be found vicariously liable for the physician’s tortious conduct.
In one such case, a team physician detailed a story that alleged that
a particular player had a fatal disease and then released that story to
the media. The physician was liable for the intentional infliction of
emotional distress and the team was liable under the doctrine of
respondeat superior. Chuy v. Philadelphia Eagles Football Club,
431 F.Supp. 254 (E.D.Pa.1977). Also, a school district was held
vicariously liable for the negligence of both the football coach and
the team doctor who exhibited improper techniques in the removal
from the playing field of an injured player who was suspected to
have suffered a fractured neck; this improper removal technique
exacerbated the existing injury. Welch v. Dunsmuir Joint Union
High School District, 326 P.2d 633 (Cal.App. 3 Dist.1958).
5. FAILURE TO REFER AND VICARIOUS LIABILITY
To establish vicarious liability the team must have the power to
select, control and dismiss the doctor. Also, there must be
responsibility by the

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team to supervise; the doctor’s services must be part of the services

rendered by the team; the services supplied by the doctor must
assist the purposes of the team; and there must be at least a certain
amount of control asserted by the team over the doctor in the
carrying out of his or her work.
 A physician may also be liable when she identifies the problem or
potential problem; fails to warn the patient of the nature of that
problem; and then fails to recommend further care or treatment
pursuant to a solution that will ameliorate those medical problems.
However, courts have distinguished between the liability of the
doctor and the liability of the team for failure to refer. Whether a
team can be liable has turned on the degree of control that the team
has over the doctor and whether the doctor served the interests of
the athlete or those of the team when he allowed the athlete to play
without informing him of the conditions that warranted a referral.
C. PRODUCT’S LIABILITY
Actions in product’s liability are associated with tort actions that
involve defective items that are used in sports. These items would
include football helmets, golf carts, lawn darts, etc. An equipment
manufacturer must meet state regulated standards of safety and care
in the product’s design, manufacture, and use; the supplier and
seller may likewise be liable for negligence if they fail to exercise
reasonable care. A manufacturer must adhere to the standard of
reasonable care in the

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manufacture and design of sports equipment. The manufacturer

must assure that the product is reasonably safe when used for the
intended purpose and in the intended matter.
When the product is dangerous, e.g., a golf cart, then even if
properly used a manufacturer will still have a duty to warn of
potential hazards. Sellers or retailers of sports equipment will be
liable if they know that the equipment is dangerous and fail to warn
an otherwise oblivious purchaser. A seller may also have a duty to
inspect if she knows that the product may be dangerous. Similarly,
advertisers may also have the duty to warn about the dangers
associated with the product. Suppliers or wholesalers of equipment
must also use reasonable care to make the product safe. However,
warnings are not required when the danger is obvious or when the
user already knows of the product’s dangerous propensities.
Product warnings must be adequate to perform the intended
function of risk reduction. A warning will be inadequate if it does
not particularize the risk presented by the product, if it is
inconsistent with how the product will be used, if it does not
provide the reason for the warning, or if the warning was not
designed so as to reach the foreseeable user.
In Ludwig v. Dick Martin Sports, Inc.,, 2003 WL 22736591
(Mich.App.2003), a middle school student, Jacqueline Ludwig,
suffered a serious eye injury while jumping rope with two other
students during an open gym period at school. Jacqueline’s friends

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were twirling the jump rope while Jacqueline was preparing to

enter the arc of the rope. When Jacqueline turned around to face the
rope, one end of the rope flew loose and the rope struck Jacqueline
in the eye.
Jacqueline was transported to the hospital and treated for an
ocular laceration and severe ocular trauma, necessitating the
removal of the lens of the eye. She has a permanent loss of vision
in the eye. Subsequent inspection of the jump rope indicated that it
was composed of plastic segments strung on nylon rope that had
been knotted together, and numerous segments were cracked or
broken. Evidence indicated that the damage to Jacqueline’s eye was
likely caused by one of the broken pieces on the jump rope.
 Plaintiffs filed this action against several companies involved in
the manufacture, distribution or sale of the jump rope, the two other
students involved, the school, and school personnel. This appeal
involves the granting of summary disposition in favor of defendant
Dimmer-Warren, the seller of the jump rope, and defendants Beebe
and Wilson, physical education teachers at Imlay Community
School District Middle School, where the injury occurred.
In its opinion granting summary disposition for Dimmer-Warren,
the trial court framed plaintiffs’ claim as a design defect claim “that
the ropes were made from breakable plastic segments, which made
them dangerous to use when the segments become splintered.” The
trial court concluded that plaintiffs

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failed to go beyond the mere allegations in the pleadings to show

that a design defect existed in the ropes at the time of sale.
However, plaintiffs’ claim against Dimmer-Warren was premised
on a failure to warn. Considering the affidavits, pleadings,
depositions, admissions, and other evidence in the light most
favorable to plaintiffs, the Appeals Court concluded that summary
disposition of plaintiffs’ failure to warn claim was improper.
Additionally, given the legal predicate of plaintiffs’ claim of
failure to warn, the trial court erred in granting summary
disposition on the ground that plaintiffs failed to go beyond the
mere pleadings to show that a design defect existed in the ropes at
the time of sale. Plaintiffs submitted sufficient evidence to survive
Dimmer-Warren’s motion for summary disposition.
Athlete who suffered brain injury as a result of heat stroke and
cardio-respiratory arrest suffered during a roller hockey game
brought a product liability action against manufacturer of a non-
prescription cold medication that he had taken on the morning of
his collapse. Athlete’s state law product liability action against
manufacturer of non-prescription cold medication containing
pseudoephedrine, for failing to warn of increased risk of heart
related illness and heart related risk when ingested with caffeinated
products coupled with strenuous athletic events in a hot
environment, was not preempted by federal law governing labeling
requirements for over-the-counter and nonprescription drugs
(Federal Food, Drug, and

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Cosmetic Act, § 751, 21 U.S.C.A. § 379r). See Valdes v. Optimist

Club of Suniland, Inc., 27 So.3d 689 (Fla. App. 2009).
Jeremy Green was a high school football player who became a
quadriplegic after tackling a player during a scrimmage. He sued
the helmet manufacturer. At trial, the jury did not find a design
defect. Green appealed, seeking punitive damages and numerous
evidentiary rulings. A Texas statute precluded punitive damages
since no damages were awarded. Although it is hard to believe,
Thomas “Hollywood” Henderson was not deemed to be an expert
on helmet safety. Also, the court held that there was no abuse of
discretion in allowing evidence that the manufacturer complied
with industry standards, that the high school continued to use the
same helmet that the injured plaintiff used, that it was in the court’s
discretion to permit a bar graph comparing results showing that
football helmets cannot protect against neck injuries, and that it’s
discretionary to exclude evidence on bike helmet safety. Green v.
Schutt Sports Mfg. Co., 369 Fed. Appx. 630 (5th Cir. 2010).
Plaintiff pitched in the softball game when defendant hit him in
the face with a line drive using an Easton Synergy II bat.
Apparently the bat was altered so as to increase the bat’s swing
speed. The court found that the bat was not defective and
unreasonably dangerous. D’Agostino v. Easton Sports, Inc., 2010
WL 5492731 (Conn. Super.).
Injured skier was unable to show that defective binding caused
his injury, since an adjustment to

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the bindings after the skier purchased them served as an

intervening event. Skiers expert witness was unable to give an
opinion as to why the bindings did not release but stated it was
readily correctable by a mechanical adjuster. Maynard v. Pelican
Leisure Sports, Inc., 2010 WL 3327627 (N.J. Super 2010).
While skiing at Alta ski area, plaintiff Laura Jozewicz fell and
injured her neck. Jozewicz contends that she fell because the
binding on her skis unexpectedly released due to a product defect.
Jozewicz rented skis from the defendant GGT Enterprises, LLC. At
the time of the rental, a recall notice was in effect for the binding,
but GGT did not remove the product from its rental inventory.
Nevertheless, GGT sought dismissal of Jozewicz’s negligence
claim on the basis that she signed a release from liability by the
time she rented the skis. The court denied GGT’s motion to
dismiss. Jozewicz v. GGT Enterprises, LLC, 2010 WL 2244102 (D.
Utah).
In A.K.W. ex rel. Stewart v. Easton Bell Sports, Inc., 454 Fed.
Appx. 244 (5th Cir. 2011), a 9th-grade football player was injured
during practice when he tore his carotid artery causing partial
paralysis. Plaintiff alleges that his Riddell helmet was deceptively
designed because it used a discrete liner padding system and
traditional foam (“traditional discrete padding”). Defendants argues
that plaintiff could not prove a defective design because the helmet
that he wore when he was injured was lost and because at least four
different types of Riddell helmets were in use on the date of the
injury, in

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addition to helmets by other manufacturers. However, plaintiff’s

expert indicated that all the Riddell helmets were defective per se
because of the traditional discrete padding.
Plaintiff’s expert further opined that a continuous padding system
using thermoplastic urethane (“TPU continuous padding”) is
“better” at dealing with impacts such as the one sustained by
plaintiff’s helmet. Under Mississippi Products Liability, plaintiff
must prove the existence of a “feasible design alternative.”
Plaintiff’s expert noted that this design is used in motorcycle
helmets as well as other manufacturers’ football helmets. “The fact
that the alternative design offered by Appellant’s expert was in use
by Riddell’s competitors is proof of its feasibility and Riddell
should have known about the dangerous condition.”
Rhett Ridolfi was injured in a pre-season two-day football
practice. He was engaged in the “machine gun” drill as the lone
defensive player to “shred” the offensive player running at him.
Helmet contact was prevalent, which violated National Federation
of High School Football Rules. Rhett alleges that he received
several helmet blows to the head and he immediately exhibited
headaches, nausea, dizziness, and vomiting. Rhett suffered severe
brain damages including a subdural hematoma. Plaintiff was
wearing a Riddell Revolution helmet containing a urethane front
pad. Riddell allegedly knew that the material in the front pad was
defective and dangerous. The jury found for plaintiff with a $16.5
million verdict, consisting of $5,500,000 for non-

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economic losses, $10 million for economic losses, and $1 million

for physical impairment or disfigurement. (See William Jordan,
“16.5 million Football Helmet Manufacturer Found Partially
Liable, In Suit Arising from Injuries Sustained by High School
Football Player,” 33 Verdicts, Settlements, & Tactics art. 54 (no. 7,
July 2013)).
D. STRICT LIABILITY
Strict liability is liability without fault. Athletic equipment
suppliers will be liable if they sell an unreasonably dangerous piece
of sporting equipment which is harmful as a result of a defective
condition. The manufacturer will be liable to the ultimate consumer
for injuries suffered provided that the seller is in the business of
selling that product and the product has not been substantially
changed or altered.
Plaintiff has the burden of proving that the defect existed when
the product left defendant and that the defect caused injury to a
reasonably foreseeable user. However, plaintiff does not have to
prove the negligence of the manufacturer. To prove that the
equipment is defective will require more than the mere showing
that the product caused injury. Defects can be the result of the
manufacturing process or it can be in the design.
Regarding design, factors that should be weighed to determine if
a particular piece of equipment is reasonably safe include the
gravity of the danger posed by the design defect, the likelihood that
danger will occur, the mechanical feasibility of a
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safer design, the cost of an improved design and the adverse

consequences to the product and to the consumer that might result
from an alternative design. Everett v. Bucky Warren, Inc., 376
Mass. 280, 380 N.E.2d 653 (1978).
Strict liability is imposed by operation of law for public policy
reasons and the protection of the public. A product is defective if it
is not reasonably fit for the purposes for which it is sold. This is
important in sports since each piece of protective equipment is
specifically geared for a particular function. The seller may avoid
liability by proper instructions and warnings which if followed
properly would avoid injury. The seller can also assume that the
athlete will read and follow these admonitions. With strict liability
the defense of contributory negligence is generally unavailable
although assumption of risk still applies.
Father of 15-year-old who was injured while jumping on
trampoline brought premises liability claim on her behalf against
owner of property on which trampoline was located and strict
liability claim against manufacturer. The Supreme Court of Illinois
held that a reasonable 15-year-old teenager would appreciate the
danger of rocket jumping on a recreational trampoline, and thus,
manufacturer of trampoline had no duty to warn the minor of the
danger of two or more jumpers jumping on a trampoline. Neither
the distraction exception nor the deliberate-encounter exception
applied to require owner to warn of obvious danger. The owner had
no duty to warn of obvious risk, and there was

186
no duty to supervise or a duty to prevent use of the trampoline. See
Sollami v. Eaton, 201 Ill.2d 1, 265 Ill.Dec. 177, 772 N.E.2d 215
(2002).
In Mohr v. St. Paul Fire & Marine Ins. Co., 269 Wis.2d 302, 674
N.W.2d 576 (App.2003), a student, who was injured while
practicing racing starts from an 18-inch starting platform at shallow
end of high school swimming pool sued manufacturer of platform,
state athletic association, and national association of state athletic
associations. The court held that:
1. the manufacturer could raise sophisticated user defense;
2. a genuine issue of material fact also precluded summary
judgment for manufacturer on strict product liability claim;
and
3. a genuine issue of material fact as to whether state athletic
association exercised reasonable care in adopting rule
regarding starting platforms precluded summary judgment
for association.
The Supreme Court of Montana, in Patch v. Hillerich & Bradsby
Co., 257 P.3d 383 (Mont. 2011), looked into the possibility of strict
liability for failure to warn of the bat’s risks, as well as
manufacturing and design defect claims for injuries suffered
because of aluminum baseball bats. Plaintiff’s decedent, a minor,
was a pitcher in a baseball game and was fatally struck in the head
by a ball batted with manufacturer’s aluminum bat.

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Pitcher was a “user” or “consumer” who was placed at risk by the

increased exit speed caused by the aluminum bat. Therefore, bat
manufacturer was subject to liability for the physical harm caused
by its increased exit speed in products liability suit against
manufacturer alleging failure to warn by the parents of the
deceased pitcher. Also, the assumption of risk defense is
inapplicable here because there is no evidence that the deceased
pitcher actually knew that he would be seriously injured or killed
when pitching to a batter using an H&B model CB13 aluminum
bat. That is, H&B failed to show that the pitcher was aware of
CB13’s enhanced risks, and because he lacked that awareness, he
voluntarily proceeded to pitch to a batter using that bat.
E. WARRANTY LIABILITY
Breach of warranty is another theory of recovery under product’s
liability. Warranty liability is based on a breach of contract. A
warranty is akin to a promise that concerns the quality and
condition of the product. If the product fails to meet the
expectations of the promise then the warranty is broken and the
seller is liable under contract law for the resulting damage.
There are two types of warranties under the Uniform Commercial
Code (UCC), express and implied. Express warranties are those
warranties that are made by statements or conduct on the part of the
manufacturer or seller; these warranties exist if a reasonable person
would take the seller’s actions

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or conduct to be a promise or representation of fact concerning the

quality or condition of the product.
There is also an implied warranty of merchantability.
Merchantability means fitness for ordinary use. There will be a
breach of the implied warranty of merchantability when a specific
piece of sporting equipment does not meet the representations that
are made on its label; and therefore, it is not fit for the ordinary use
for which it was sold.
Privity may be required to maintain an action for breach of
warranty. Privity is the direct line that goes from the manufacturer
to the buyer. It is a relation between parties that is sufficiently close
and direct to support a legal claim on behalf of the plaintiff against
the other person with whom this relationship exists. UCC § 2–318
waives the requirement of privity if a purchase is made by a
member of the victim’s immediate family.
F. FACILITY LIABILITY
1. STATUS OF INJURED PARTY
A large portion of sports negligence suits are against stadium
owners and operators. The question in these suits is the status of the
injured party who has entered the premises. Is that person an
invitee, licensee or trespasser? With each category there is a
different standard of care on the part of the facility owner or
operator.

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The infamous “Snowball” game at Giants Stadium on December

23, 1995, in which fans tossed snow and ice that had accumulated
under the seats and in the aisles, among themselves and onto the
field, produced a case, O’Connell v. New Jersey Sports &
Exposition Authority and the New York Giants, 337 N.J.Super. 122,
766 A.2d 786 (App.Div.2001), that determined that a fan who
slipped and fell on ice in the stands during this melee has the right
to sue the Giants for his injuries.
2. INVITEES
 Generally, participants and spectators are business invitees. The
occupier is not an insurer of the invitee’s safety. The duty to an
invitee is one of ordinary and reasonable care including protection
from negligence and reasonably discoverable hazards created by a
third party and an obligation to inspect premises and make them
safe for a visit. There is also a duty to warn of known, unsafe
conditions.
For example, a health spa patron is a business invitee and the
owner-operator owes a duty to keep the premises in a reasonably
safe condition for his protection. This duty will include the
detection of reasonably discoverable conditions on the premises
which might be unreasonably dangerous and the correction of these
conditions or warnings to the invitee of the danger. Examples
would be the need to shut down a faulty Stairmaster that might
injure

190

a shin and/or the need to post a warning that one should stop
exercising when dizziness occurs.
The invitor/owner/operator also has the duty to furnish reasonable
security and protection against the possibility of injury; and to
refrain from negligent or careless acts which might make the
premises hazardous to invitees. This duty to an invitee does have
realistic boundaries and practical ramifications. For example, a ball
park owner who screens in the home plate area where the danger of
being struck by a foul ball is the greatest was deemed to have
provided sufficient protection for as many invitees who could
reasonably be expected to desire screened seating. In this situation,
the proprietor fulfilled his duty of care and could not be held liable
in negligence for injury to a spectator from a foul ball. Akins v.
Glens Falls City School District, 53 N.Y.2d 325, 441 N.Y.S.2d 644,
424 N.E.2d 531 (1981).
Grandmother was injured when she slipped on platform’s “lip”
while watching grandson play at a summer basketball game. The
court saw her as a licensee, and as such, the defendants only owed
her a duty to not willfully or wantonly injure her and to warn about
known dangerous conditions. She was neither an invitee nor in
implied invitee, because she watched the game from the gym
second floor, which the defendant never used and had no
knowledge that the lip would be a danger to potential spectators.
Combs v. Georgetown College, 2011 WL 3793410 (Ky. App.).

191

A tennis tournament participant was deemed to be an invitee, but

he could not recover for injuries suffered when he slipped on the
court when his arm and elbow slid under the surrounding fence
because the gap between the fence framing and tennis court was
not defective. Miller ex rel. Miller v. Liberty Park Joint Venture,
LLC, 84 So.3d 88 (Ala. App. 2011).
3. MINORS
The standard of care will change with the type of invitee, e.g., if
the invited person is a minor, invalid or senior citizen. Health spa
operators have a duty to keep their premises in a reasonably safe
condition for the protection of a patron. In negligence actions
against spas the court will consider the type of person entering the
establishment: for example, whether the customer was someone
who joined the club for treatment of a physical infirmity.
Where minors are involved, one question is whether the minor is
capable of appreciating the risk involved in either watching or
participating in the sport. For an eight-year old who was struck by a
foul ball, the factual question presented to the court was the boy’s
ability to appreciate the risk of occupying the place that he
occupied and whether the design of the screening was negligent
since it ignored the high risk area of a picnic grounds adjacent to
the right field foul line. Atlanta v. Merritt, 172 Ga.App. 470, 323
S.E.2d 680 (1984). The key is the foreseeability of the injury.
However,

192

even with children all the elements of negligence must be present.

4. UNREASONABLY HAZARDOUS CONDITIONS
An owner will be liable in negligence when he has prior
knowledge of unreasonably hazardous conditions. The proprietor’s
duty of reasonable and ordinary care to an invitee includes the
detection of reasonably discoverable conditions which may be
unreasonably dangerous and the correction of them or at least a
warning of their danger. When there is a question of whether the
condition is unreasonably dangerous or not, the court may look at
prior events. In a case where a high school student crashed through
a glass panel located near a gymnasium, the court found negligence
because a similar act had occurred several years earlier when a
visiting coach walked into that panel. The school authorities should
have known of the hazard that this situation created and then have
taken steps to either ameliorate or warn of the potential of the
danger. Wilkinson v. Hartford Accident and Indemnity Company,
411 So.2d 22 (La.1982). However, recovery will not be allowed for
obvious dangers.
Elder, disabled spectator brought premises liability action against
school board for damages suffered as a result of her fall, alleging
bleachers in high school stadium were defective since there was a
drastic height differential between the first and second seat board.
The court held that defect in stadium bleachers created
unreasonable risk of

193

harm despite the fact that school board allegedly provided safe
seating for handicapped persons on home side of stadium and there
was a lack of past accident history involving bleachers. However,
this decision was subsequently reversed by the Supreme Court of
Louisiana. Pryor v. Iberia Parish Sch. Bd., 42 So.3d 1015 (La.
App. 2010), writ gr., 50 So.3d 822 (La. 2010), and j. rev’d 60 So.3d
594 (La. 2011).
5. DESIGN, CONSTRUCTION, MAINTENANCE AND REPAIR
Owners of premises will be liable for the negligent design,
construction, maintenance or repair of their sports facilities. The
preeminent example is when the negligent design and construction
of screening at a baseball stadium allegedly causes injury to a
spectator from a foul ball.
Another typical case from baseball is when a player slides into an
unprotected spike at a base and then alleges that the injury was a
result of the negligent design, construction, maintenance or repair
of the base. The question will be whether the alleged negligent
design of the base and the spike was the cause of the runner’s
injury. Still, there must be an applicable duty. When a player
fractured his ankle while sliding into third base and alleged that the
field was negligently packed and the infield dirt too hard, the court
found that plaintiff failed to state a claim from which relief would
be granted since the player did not allege that the defendant had
any duty to maintain the infield dirt in any particular manner or that
there

194

was any owed duty. Blancher v. Metropolitan Dade County, 436

So.2d 1077 (Fla.App. 3 Dist.1983).
Soccer player sued summer camp to recover damages for
personal injuries sustained in a soccer game. The injury occurred
when an opposing player kicked plaintiff’s leg and then fell on his
leg. The court held that the camp did not negligently supervise the
player or negligently maintain the soccer field. Where an accident
occurs in so short a span of time that even the most intense
supervision could not have prevented it, any lack of supervision is
not the proximate cause of the injury, and summary judgment in
favor of the defendant school or camp is warranted. Harris v. Five
Point Mission-Camp Olmsted, 73 A.D. 3d 1127, 901 N.Y.S. 2d 678
(A.D. 2010).
Minor daughter injured her ankle while playing soccer on indoor
facility’s carpeted playing surface. The standard of care embodied
in the legal principles governing premises liability, rather than a
standard of care specifically applicable to indoor soccer facilities,
was applicable. Since the defendant did not have actual or
constructive notice of the carpet’s dangerous proclivities, then they
are not responsible for the daughter’s injuries. DiPietro v.
Farmington Sports Arena, LLC, 2 A.3d 963 (Conn. App. 2010),
rev’d & rem’d 49 A.3d 951 (Conn. 2012).
Attendee of professional basketball game brought negligence
action against arena owner to recover damages for injuries she
sustained when she fell 40 feet from arena railing in the arena. The
court held that pleading stated ways in which arena’s agent
 195

was negligent, and that jury instruction on agent’s negligence

attributable to arena owner was properly limited to pleading.
Matson v. Oregon Arena Corp., 242 Or. App. 520, 256 P.3d 161
(2011).
A student did not assume the risk of injury for striking his head
on the floor when two taped together mats parted during a
wrestling match. Philippou v. Baldwin Union Free Sch. Dist., 105
A.D. 3d 928, 963 N.Y.S. 2d 701 (2d Dep’t 2013).
G. PROFESSIONAL SPORTS
In professional sports, a participant can now sue another
participant (see Chapter 7, § D). The appropriate standard for the
intentional striking of an opposing player during a professional
football game is one of recklessness.
 197

CHAPTER 7
PARTICIPANT INJURIES
A. GENERALLY
Historically, participants could not recover for injuries that
occurred on the playing field. The defense of assumption of risk
would block all attempts at recovery. Today, as a general rule,
participants assume the risk of unintentional injuries but will not
assume injuries that are intentionally inflicted or result from a
disregard for safety.
The injured participant might also face the defenses of consent
and contributory negligence. Also, an injured participant cannot
recover from another participant if the latter did not breach a
recognized duty of care.
Liability was found when a basketball player struck an
unprovoked blow to an opponent whose back was turned. Griggas
v. Clauson, 6 Ill.App.2d 412, 128 N.E.2d 363 (2 Dist.1955).
Liability was also found when a player violated a safety rule by
kicking a soccer goal keeper in a penalty area. Nabozny v. Barnhill,
31 Ill.App.3d 212, 334 N.E.2d 258 (1975). Another example of
liability was when a base runner deliberately ran into a second
baseman who was five feet from the bag. Bourque v. Duplechin,
331 So.2d 40 (La.App. 3 Cir.1976). Liability was found when a
catcher deliberately and without warning struck a batter. Averill v.
Luttrell, 44 Tenn.App. 56, 311 S.W.2d 812 (1957).

198
 Recovery was denied when a second baseman was injured as an
unintended consequence of an opposing player’s slide into the base.
Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575 (1
Dist.1966). Liability was likewise denied when a bat slipped out of
the hands of a batter and struck another player. Gaspard v. Grain
Dealers Mut. Ins. Co., 131 So.2d 831 (La.App. 3 Cir.1961).
Recovery was also denied when a basketball player was
accidentally struck by an opposing player. Thomas v. Barlow, 5
N.J.Misc. 764, 138 A. 208 (1927).
Other cases illustrate the difficulty that participants have in
recovering for athletic injuries inflicted through contact with
another participant. In Keller v. Mols, 156 Ill.App.3d 235, 108
Ill.Dec. 888, 509 N.E.2d 584 (1 Dist.1987), a minor was injured
while playing goalie in a floor hockey game. Recovery was
disallowed on the grounds that participation in contact sports
precluded recovery in negligence if the players were organized and
coached; the shooting of plastics pucks in an attempt to score was
not viewed as either willful or wanton conduct. Similarly, in a 1986
Louisiana case which involved a softball player injured in a
collision with a second softball player, the court found that
defendant was neither reckless nor unsportsmanlike while running
to first; therefore, the risk of collision between defendant and
plaintiff/first baseman was a reasonable risk and one that the player
assumed. Novak v. Lamar Ins. Co., 488 So.2d 739 (La.App. 2
Cir.1986).

199

In Niemczyk v. Burleson, 538 S.W.2d 737 (Mo.App.1976), an

action was based on injuries sustained when defendant shortstop in
a softball game ran across the infield and collided with
plaintiff/base runner as she was running from first to second base.
A sports participant accepts reasonable dangers that are inherent to
the sport; but only to the point that they are obvious and a usual
incident to that sport. Material factors that can be used in
determining if a participant’s conduct which causes injury to
another constitutes actionable negligence include the specific game
involved, ages and physical attributes of the participants, their
respective skills at the game, their knowledge of its rules and
customs, their status as amateurs or professionals, the type of risks
which are inherent to the game and those which are outside the
realm of reasonable anticipation, the presence or absence of
protective uniforms or equipment and the degree of enthusiasm
with which the game is played. In Niemczyk, the plaintiff
sufficiently stated a claim on which relief could be granted on the
grounds of negligence.
A softball player was injured when he collided with another
player, allegedly because the field was set up in an unreasonably
dangerous manner. Plaintiff argued that the manner in which the
field was set up violated two safety rules of the Amateur Softball
Association that are designed to prevent collisions like this one.
The alleged deficiencies concerned first base, which must be a
double base with half painted white, and half painted green.

200

Also, the running lane between home and first base must have a
white line painted parallel to the base line three feet away from the
base line in foul territory. Defendant organizer failed to prove that
the contact sports exception to ordinary negligence rules was
applicable here. But, there were genuine issues of material fact as
to whether informal league had adopted these safety rules and
whether the collision was intentional. Gvillo v. DeCamp Junction,
Inc., 959 N.E. 2d 215 (Ill. App. 2011).
 In a women’s softball game where the plaintiff catcher was
injured by defendant who allegedly “barreled” into plaintiff, the
court held that rule infractions, either deliberate or unintentional,
are almost inevitable in contact sports. Certain contacts between
participants in a softball game, whether by slide, tag, or even
collision are ordinary parts of the game, and therefore, a negligence
analysis is inappropriate under such circumstances. However, the
court also held that a genuine issue material fact existed as to
whether defendant permissibly slid or recklessly “barreled” into
plaintiff. Kalen v. Fox, 2010 WL 2560082 (Ohio App. 2010).
Catcher, who was injured when base runner from the opposing
team collided at home plate during organized adult recreational
softball game, brought negligence action against base runner,
alleging that the runner collided with the catcher without
attempting to slide or to avoid the collision. The trial court entered
summary judgment for the base runner, and catcher appealed.
Unlike Nabozny v. Barnhill, 31 Ill. App. 3d 212, 314 N.E.2d 258,
77

201

A.L.R.3d 1294 (1st Dist. 1975), the court held that the base
runner’s violation of the league’s “no collision” rule was not
reckless behavior, and, therefore, the runner was not liable for the
catcher’s injuries. Doody v. Evans, 188 Ohio App. 3d 479, 935
N.E.2d 926 (Ohio App. 2010).
Participant, who allegedly performed slide tackle during adult
soccer game which injured opposing player, did not exceed the
normal bounds of conduct associated with the activity. Therefore,
participant did not engage in reckless misconduct. Risk of injury
from physical contact was inherent in soccer, so player who played
soccer for three or four years had accepted the risk. Recreational
league’s decision not to allow the use of slide tackles during soccer
games did not render the move, recognized under the general rules
of soccer, outside the normal boundaries of soccer conduct. Hlywa
v. Liberty Park of America, 2010 WL 2793562 (Mich. App. 2010).
In an accident where a 15-year-old member of a girl’s high school
lacrosse team was struck in practice by another team member with
her own lacrosse stick which was deflected into the plaintiff’s
mouth causing extensive dental damage; defendant was able to
successfully defend on the basis that as a matter of law, a lacrosse
stick is not a dangerous instrumentality when used for an intended
purpose on a lacrosse field by a nine-year-old who is an
experienced lacrosse player, and just happens to be the son of the
assistant coach. Becker v. Litzenberger, 44 Misc. 3d 720, 989
N.Y.S. 2d 823 (Sup. 2014).

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B. VIOLATION OF SAFETY RULES

A participant can avoid the defenses of assumption of risk and
contributory negligence by basing his cause of action on
defendant’s violation of a safety rule. In Nabozny v. Barnhill, 31
Ill.App.3d 212, 334 N.E.2d 258 (1975), plaintiff, a soccer goal
keeper, was allowed recovery for being kicked in the head while
holding the ball in the penalty area. It was a clear rule violation for
the defendant to make contact with the goal keeper in this manner.
Safety rules charge participants with a legal duty, breach of which
produces actionable negligence. Each player is charged with a legal
duty to every other player on the field to refrain from conduct
proscribed by a safety rule.
 In a 1980 Illinois case, Nabozny was interpreted to reflect that a
violation of the rules of the National Federation of High School
Associations was alone insufficient to establish negligence, since
liability for injuries based on a breach of safety rules cannot be
predicated on ordinary negligence. A rule violation only establishes
a duty if the conduct was more than ordinary negligence; either
deliberate or willful conduct or conduct with a reckless disregard
for the safety of others. Oswald v. Township High School District,
84 Ill.App.3d 723, 40 Ill.Dec. 456, 406 N.E.2d 157 (1 Dist.1980).
C. UNSPORTSMANLIKE CONDUCT
Recovery may be allowed when a plaintiff was injured through
defendant’s unsportsmanlike conduct. In the case of Bourque v.
Duplechin, 331

203

So.2d 40 (La.App. 3rd Cir.1976), defendant base runner in a

softball game charged the plaintiff who was five feet from second
base, with the result that plaintiff suffered substantial damages.
Defendant was under a duty to play softball in an ordinary fashion
without unsportsmanlike conduct or attempting wanton injury to
fellow participants. Defendant breached this duty. A player on the
other hand, will most likely assume the risk of injuries from
standing on a base and being spiked by someone sliding into that
base, which is common in softball.
Participants assume all the ordinary and foreseeable risks
incidental to that particular sport. However, they do not assume the
risk from fellow participants who act in an unexpected or
unsportsmanlike manner with a reckless lack of concern for other
players.
 D. PROFESSIONAL SPORTS
At one time, recovery for participant injuries was extremely
unusual in professional contact sports such as football, due to the
defense of assumption of the risk. This ended with Hackbart v.
Cincinnati Bengals, Inc., 435 F.Supp. 352 (D.Colo.1977). In
Hackbart, one Booby Clark, a member of defendant’s team, ran a
pass pattern during which the ball was intercepted by the opposing
team. Plaintiff Hackbart was a defensive back. After the
interception, Hackbart and Clark both ended up on the ground near
each other and were watching the progress of the play as it
transpired up field. Clark,

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acting out of anger and frustration but without a specific intent to

injure, struck a blow with his right forearm to the back of the
kneeling Hackbart’s head and neck. Neither player complained
during the game. Clark testified that his frustration was brought
about by the fact that his team was losing. Although there were no
protests or any fouls called by the officials, the game film clearly
showed that the incident had occurred. Plaintiff later suffered great
pain which ultimately forced him out of the game. The injury was
eventually diagnosed as a serious neck fracture.
The question was whether in a regular season professional
football game an injury which is inflicted by one professional
player on an opposing player could give rise to liability in tort
when the injury was inflicted by the intentional striking of a blow
during a game. The district court ruled in favor of defendant on the
grounds that conventional standards of tort liability cannot apply to
professional football, since it is a business which is violent by its
very nature.
 The Court of Appeals, however, reversed and brought
professional football back into the standard orbit of recovery for
negligent injuries. The Court of Appeals stated that principles of
law governing the infliction of injuries must not be disregarded
simply because an individual’s injury occurred during a
professional football game. The alternative would be to admit that
the only available option left to the injured football player would be
retaliation. The court determined that the instigating player acted

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impulsively and in the heat of combat in intentionally striking an

opposing player in the back of the head during a professional
football game. The appropriate standard was recklessness, since
Clark intended to inflict serious injury.
Probably the most famous incident in professional sports violence
occurred during a National Basketball Association game in 1977
when Kermit Washington of the L.A. Lakers punched Rudy
Tomjanovich of the Houston Rockets; Rudy was acting as a peace
maker when Kermit saw a red jersey coming at him and landed
with a right that caused a concussion, broken nose, broken jaw,
skull fractures, facial lacerations, loss of blood, and leakage of
brain cavity spinal fluid. Tomjanovich won a substantial jury award
(nearly $3 million) in a suit for civil damages against the Lakers, as
Washington’s employer. His theory was that the Lakers were
vicariously liable for his actions since they knew about and even
encouraged his dangerous tendencies and reputation as evidenced
by a front page Sports Illustrated cover that proclaimed him as one
of the league’s enforcers.
E. CONTACT SPORTS
 Contact sports are different from other sports in regard to
potential for recovery. In contact sports a certain amount of contact
between participants is not only expected but even required.
In Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290
(App.1983), a minor sued another minor in an attempt to gain
damages for injuries sustained in an

206

informal game of tackle football. Plaintiff did not have a

negligence cause of action. Voluntary participation in a sport like
football constitutes an implied consent to the normal risks that
attend permissible bodily contact. But, participation in football still
does not constitute consent to contact prohibited by rules which are
designed to protect participants and not merely to control the
game’s flow.
Keller v. Mols, 156 Ill.App.3d 235, 108 Ill.Dec. 888, 509 N.E.2d
584 (1 Dist.1987), involved a minor who was injured while acting
as a goalie in an informal game of floor hockey on a friend’s patio.
The court held that the inquiry should be whether floor hockey was
a contact sport and not whether the participants were organized or
coached. After they decided that floor hockey was a contact sport,
the court established that the standard for contact sports is that
mere negligence is insufficient to establish a cause of action.
However, willful and wanton behavior will be sufficient to
establish a participant negligence suit. Willful and wanton contact
is an intentional or reckless disregard for the safety of others. The
defendant’s action in this case was neither willful nor wanton.
Anything normal in the game will not rise to the level of willful or
wanton conduct and thus will be insufficient to support an action in
negligence.
 The contract sports exception to negligence, which provides that
participants in a contact sport are only liable for willful and wanton
conduct, was applicable to a hockey league, a hockey officials

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organization, and an amateur hockey association, for purposes of

the negligence claims that were brought against them by a father of
a minor player who was injured when he was checked from behind
at a hockey game by the opposing players. In an issue of first
impression, the Illinois Supreme Court noted that while the father
alleged that the defendants failed to adequately enforce the rule
against bodychecking from behind, rules violations were inevitable
in contact sports and are generally considered an inherent risk of
playing the game. Additionally, the Court noted that the rules in an
organized contact sport directly affect the way in which the sport is
played and that imposing too strict of a standard of liability on the
enforcement of those rules would have a chilling effect on vigorous
participation in sport. Karas v. Strevell, 227 Ill.2d 440, 318 Ill.Dec.
567, 884 N.E.2d 122 (2008).
F. THIRD PERSONS
Another aspect of participant injuries is the interaction of
participants with non-participants: spectators or other third persons,
such as, referees, coaches, camera men, facility operators, etc.
There is also the phenomenon of spectator abuse. Spectator abuse
may take various forms: from a bottle thrown at an outfielder to a
mob scene involving an umpire. The key to any evaluation lies in
deciding who is responsible for the injuries. A bottle thrower who
is caught will obviously be responsible for the consequences of his
acts. However, the more difficult situation is when there is no clear
cut correlation between injury and the
 208

person allegedly responsible. In Toone v. Adams, 262 N.C. 403, 137

S.E.2d 132 (1964), an umpire was injured after a call during a
minor league baseball game. The umpire contended that fan
reaction began and was inspired by the manager of the home team.
The court dismissed this claim on the grounds that the injury was
not contemporaneous with the manager’s antics nor could the
manager be held responsible for the acts of the fans.
Some participant injuries stem from the negligent acts of third
persons. Many of these types of injuries are created by the conduct
of coaches. Courts have imposed tort liability when an athlete was
required to compete after sustaining a previous injury, when a
coach or a team failed to render medical assistance, when a coach
failed to provide proper equipment and when there was negligent
instruction. Another third party, in this case, a wrestling referee,
was liable for injuries suffered by a participant because of the
referee’s negligent supervision in not detecting an illegal hold.
Carabba v. Anacortes School District, 72 Wash.2d 939, 435 P.2d
936 (1967).
In a softball injury case, a player alleged that his fractured ankle
which he suffered while sliding into third base, was due to the
negligence of the owner of the field who was responsible for the
negligent maintenance and packing of the infield dirt in a way that
made it too hard. However, the court held that there was neither a
duty to maintain the infield dirt in any particular manner nor was
there a breach of

209
an owed duty. Blancher v. Metropolitan Dade County, 436 So.2d
1077 (Fla.App. 3 Dist.1983).
 211

CHAPTER 8
SPECTATOR INJURIES
A. GENERALLY
Like participants, spectators run the risk of injury while observing
a sport. These injuries can come from foul balls, errant pucks, out
of control halfbacks, etc. Spectators, however, will not recover for
injuries that result from ordinary and foreseeable risks that are
inherent to that particular sport. This is true because they have
legally assumed those risks. However, they will not assume the risk
of intentional harm, nonforeseeable injury or the negligent acts of a
participant. Spectators will also not assume the risk of an arena
operator who fails to meet his duty of care.
Although filled with exceptions in most jurisdictions, the doctrine
of assumption of risk remains a viable defense in the area of
spectator injury, especially baseball spectators. The classic example
of an unassumed risk is the outfielder who charges into the stands
and assaults a heckler. Under certain circumstances, ordinary
negligence is sufficient to establish a participant’s liability for
injuries to a spectator.
Also, spectators do not assume the risk of an arena operator’s
failure to meet his duty of care. The owners or operators are
business invitors and as a result are liable for conditions which
cause harm to invitees, if they knew or should have known that a
condition existed which posed an unreasonable risk

212
to the spectators, the spectators could not have discovered and
protected themselves against this risk, and the owners failed to
exercise reasonable care for the spectator’s protection. Arena
operators have a duty to maintain the premises in a reasonably safe
condition and to supervise the conduct of those on the premises so
as to prevent injury. Therefore, spectators may assume that the
operators exercised reasonable care to make the arena safe for the
purposes of the invitation. The operator is not an insurer of the
spectator’s safety. The spectator must prove that the acts were a
breach of the duty of care and that the breach was the proximate
cause of the injury.
Spectator was injured while watching an indoor football game
when a player ran out of bounds and fell over a separating wall.
The appellate court allowed plaintiff to continue on her willful and
wanton count on the basis that defendant’s duty is to take
reasonable action to protect invitees against an unreasonable risk of
harm. Pickel v. Springfield Stallions, Inc., 926 N.E.2.d 877 (Ill.
App. 2010).
Ice hockey spectator who was injured at a hockey game when she
was struck in the face by a hockey puck, brought negligence action
against premises owner, which controlled the interior of the arena
at which hockey game was played. Connecticut Superior Court, as
a matter of apparent first impression, held that the limited duty rule,
also referred to as the “baseball rule,” similarly applied to hockey,
and under the limited duty rule, premises owner was not
responsible for the spectator’s

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injuries. Vernen’s v. Wang, 2010 WL 1546049 (Conn. Super.).

B. BASEBALL
 Baseball has traditionally been America’s number one pastime.
Cases of foul ball injuries have received numerous judicial reviews
throughout the years. However, the general rule is that a spectator
cannot recover for ordinary risks inherent in the sport; and in
baseball, foul balls are viewed as an ordinary risk. In Schentzel v.
Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d
181 (1953), a female spectator was hit by a foul ball at
Philadelphia’s Shibe Park. Although she had watched televised
broadcasts and had viewed foul balls that went into grandstands,
this was her first visit to a ball park. She claimed that defendant
had a legal duty to extend the screen protection to encompass all
the women patrons, many of whom were both ignorant of the game
and lured there by special invitations, such as free admissions.
Although plaintiff did not expressly consent to the foul ball injury,
the court found that stray balls were a matter of common everyday
practical knowledge. As a matter of law the plaintiff had impliedly
assumed the normal and ordinary risk incident to attendance at a
baseball game. As long as the risks were ordinary, the mere fact of
plaintiff’s attendance signified that she had assumed those risks.
However, in Jones v. Three Rivers Management Corporation, 483
Pa. 75, 394 A.2d 546 (1978), the

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court argued that the no-duty rule applies only to common, frequent
and expected risks, and in no way affects the duty of a sports
facility to protect patrons from foreseeably dangerous conditions
not inherent in the amusement activity. Jones involved a patron
who was injured when she was hit by a batting practice foul ball
while standing in the interior walkway of a stadium concourse. One
who attends a baseball game as a spectator cannot properly be
charged with anticipating as inherent to baseball the risk of being
struck by a baseball while properly using an interior walkway. The
court held that concourse openings are simply not a part of the
spectator sport of baseball. As a result, the no-duty rule did not
apply and plaintiff was not barred from recovery.
An owner fulfills his duty of ordinary care when there is
sufficient screening to provide adequate protection for as many
spectators as may reasonably be expected to desire this type of
seating. The stadium owner or operator does not have a duty to
inform their patrons of the availability of protected seats because
their existence is obvious. Dent v. Texas Rangers, 764 S.W.2d 345
(Tex.App.—Fort Worth 1989). Assumption of risk to spectators has
also been extended to include errant softballs. Arnold v. City of
Cedar Rapids, 443 N.W.2d 332 (Iowa 1989). As in baseball, the
court held that the owner discharged their duty to protect spectators
when they supplied sufficient screened seats. The owner could not
be held liable for those who chose to sit elsewhere.

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In Clark v. Goshen Sunday Morning Softball League, 129

Misc.2d 401, 493 N.Y.S.2d 262 (Sup.1985), a father who brought
his son to a pregame softball practice was struck by a warm-up
pitch as he stood around the infield as a bystander. The court held
that it was inconsequential that the injury occurred during warm up
because the father was a spectator as a matter of law and neither the
league nor the player who threw the pitch had a duty to warn him
of that danger. Whether or not the umpire actually called “play
ball” did not minimize the dangers to spectators who are present
during warm up prior to the game. When a ball is thrown from
point A to point B, its arrival at the last point is not guaranteed in
the normal course of baseball. Even after reasonable care, there is
some risk of being struck and injured by thrown balls. Interestingly,
the father was viewed as a spectator since he was not a casual
passerby on the sidewalk. He elected to come specifically into the
ballpark thereby placing himself in the zone of danger subject to all
the known and inherent risks that are a part of attendance at a
ballpark, including casually standing around the infield.
In Hawley v. Binghamton Mets Baseball Club, Inc., 262 A.D.2d
729, 691 N.Y.S.2d 626 (1999), a spectator was struck in the eye
during a fly ball catching contest held during the game; the court
found for the defendant and held that the fan was aware of and
assumed the unique risks inherent in attempting to catch fly balls
and that the pitching machine operator did not enhance risks by
firing balls at varying trajectories and that neither team

216

nor sponsor has the duty to provide protective eyewear or warn

fans.
In Benejam v. Detroit Tigers, 246 Mich.App. 645, 635 N.W.2d
219 (2001), the Michigan Court of Appeals was asked to determine
whether it should adopt, as a matter of Michigan law, the “limited
duty” law rule that other jurisdictions have applied with respect to
spectator injuries at baseball games. Under that rule, a baseball
stadium owner is not liable for injuries to spectators that result
from projectiles leaving the field during play if safety screening has
been provided behind the home plate and there are a sufficient
number of protected seats to meet ordinary demand. The Court
concluded that the limited duty doctrine should be adopted as a
matter of Michigan law and there is no evidence that defendants
failed to meet that duty. There is no duty to warn spectators at a
baseball game of the well-known possibility that a bat or ball might
leave the field. This is so even though the injured plaintiff was a
minor and was struck when a player’s bat broke and a fragment of
it curved around the net.
The following are brief summaries of baseball spectator injury
cases: Infant struck by batting practice ball, defendant supplied
sufficient screening and was, therefore, not liable. Sparks v.
Sterling Doubleday Enterprises, LP, 300 A.D.2d 467, 752
N.Y.S.2d 79 (2002). Spectator suffered permanent brain damage
from foul injury; again, no liability since protective screening was
adequate. Hobby v. City of Durham, 152 N.C.App. 234, 569 S.E.2d
1 (2002). Softball spectator hit by bat thrown

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in frustration after final out that struck plaintiff by penetrating

chain link fence was able to recover on the grounds that she did not
assume this type of risk as a spectator. Larkin v. United States of
America, 2002 WL 31553993 (E.D.La.2002). Spectator struck
while returning from restroom assumed risk. Alwin v. St. Paul
Saints Baseball Club, 672 N.W.2d 570 (Minn.App.2003). Spectator
struck while behind dugout assumed risk. Ray v. Hudson Valley
Stadium Corp., 306 A.D.2d 264, 760 N.Y.S.2d 232 (2003).
Spectator struck by baseball thrown into grandstands by player
assumed the risk of injury. Dalton v. Jones, 260 Ga.App. 791, 581
S.E.2d 360 (2003). In Thurmond v. Prince William Professional
Baseball Club Inc., 265 Va. 59, 574 S.E.2d 246 (2003), the
Supreme Court of Virginia upheld the Schentzel assumption of risk
for foul balls axiom, by rejecting plaintiff’s argument that the
minor league field’s lighting was deficient and that the dimensions
of the field were less than standard.
Spectator assumed the risk while standing at concession stand
which faced bullpen. Procopio v. Town of Saugerties, 20 A.D.3d
860, 799 N.Y.S.2d 316 (3d Dep’t 2005), leave to appeal denied,
807 N.Y.S.2d 17, 840 N.E.2d 1031 (2005). Similarly, after a
Phillies game, spectator assumed the risk when the centerfielder
threw a ball into the stands after final out. This is deemed to be an
inherent risk of the game. Loughran v. The Phillies, 2005 Pa.
Super. 396, 888 A.2d 872 (2005).

218

Plaintiffs walked towards exit and stopped to speak with a friend.

While on the sidewalk with her view of the field obscured by a
promotional deck, she was struck by a foul ball between the eyes.
As a spectator she assumed the risk. Neal v. Team Kalamazoo,
L.L.C., 2006 WL 2380966 (Mich.App.).
Spectator struck in the testicles by an errantly thrown baseball
before the baseball game. He was unable to recover since the
stadium met its’ limited duty, possibility of injury was open and
obvious, and stadium adequately warned spectators of the danger
of thrown or batted balls. Teixiera v. New Britain Baseball Club,
Inc., 2006 WL 2413839 (Conn. Super.).
Even though spectator was distracted by a mascot, here the
Famous San Diego chicken, the court held that the claim was
barred under the doctrine of primary assumption of the risk.
Harting v. Dayton Dragons Professional Baseball Club, L.L.C.,
171 Ohio App.3d 319, 870 N.E.2d 766 (2 Dist.2007).
Plaintiff injured by long toss warm-up from centerfield to near
dugout between innings, assumed the risk of being struck in the
face. Mauro v. Trenton Thunder Baseball Club, 2007 WL 776763
(N.J. Super. A.D.).
Spectator was struck and injured by baseball while located in
right field pavilion area, brought negligence action against operator
of stadium. Summary judgment failed since the limited-duty rule
only applies to injuries that occur in the stands,

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and a genuine issue of material fact existed as to whether the risk of

foul ball into right field pavilion was open and obvious danger.
Mantovani v. Yale University, 44 Conn.L.Rptr. 13, 2007 WL
2318331 (Conn.Super.Ct.2007).
Concession vendor brought negligence action against professional
baseball team for injuries sustained when he was caused to fall
when he was struck by a fan who was diving for a shirt that was
launched into stands by team. Team moved for summary judgment.
The court held that the vendor assumed the risk of being injured by
a fan. Cohen v. Sterling Mets, L.P., 17 Misc.3d 218, 840 N.Y.S.2d
527 (Sup.2007).
Spectator, who was injured when foul ball struck her in the face
as she sat in baseball stadium’s concession area, which had no
protective screen surrounding it, brought negligence and emotional
distress claims against minor league baseball team. The Supreme
Court of Nevada held that the “limited duty rule” establishes the
totality of the duty owed by baseball stadium owners and operators
to protect spectators from foul balls within the confines of the
stadium, and that spectator failed to show that concessions area
posed an unduly high risk of injury under the limited duty rule.
Turner v. Mandalay Sports Entertainment, LLC, 180 P.3d 1172
(Nev.2008).
Parents of child struck by a baseball while sitting in commercial
baseball stadium’s picnic area brought action against various
defendants. The Supreme Court of New Mexico rejected the
“baseball
 220

rule,” and held that an owner/occupant of a commercial baseball

stadium owes a duty not to increase the inherent risk of being hit by
a projectile that leaves the field of play. Edward C. v. Albuquerque,
241 P.3d 1086 (N.M. 2010).
A spectator at a middle school baseball game was struck when the
batter’s practice swings with a weighted bat slipped out of his
hands and struck plaintiff in the face. The court found that a
reasonable fact finder could find that the batter was negligent. For
example, the location where he chose to take his practice swings
may have been unreasonable and negligent. However, the baseball
league was a voluntary, unincorporated association, and as such,
the fact finder cannot consider it a separate legal entity that the
plaintiff could sue. Rasado v. Doe, 2011 WL 4424064 (Mass.
Super. 2011).
In a case of first impression, the Supreme Court of Idaho held that
the Baseball Rule does not apply in Idaho and the doctrine of
implied assumption of risk was inapplicable in a case where
plaintiff was injured by a foul ball while attending a professional
baseball game. Plaintiff was injured at the “Executive Club,” which
is one of the only protected areas in the whole stadium that is not
covered by vertical netting. Plaintiff was struck by a foul ball and,
as a result, lost his eye. The most common formulations of the
Baseball Rule is that stadium owners and operators must provide
screened seats for as many spectators as may be reasonably
expected to call for them on an ordinary occasion.

221
The Supreme Court of Idaho found no compelling public policy
rationale to adopt the Baseball Rule. Roundtree v. Boise Baseball,
LLC, 296 P.3d 373 (Idaho 2013).
In South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, the
court opened with, “It’s hard not to be romantic about baseball”
(from “Moneyball,” Columbia Pictures, 2011) and then found for
the baseball park in a lawsuit where a female fan was struck by a
foul ball at a minor-league baseball game. On the back of her ticket
was the standard release and warning about batted or thrown balls.
She was seated in the area immediately outside of the protected,
screened area and not relying on the netting to protect her from the
danger of foul balls. Additionally, DeJesus’ claim must fail as a
matter of law because she does not allege an increased risk of harm
and thus cannot establish reliance. She even admitted that she had
seen foul balls enter the stands before at the stadium and knew she
could be struck while sitting in the seats that she occupied.
In Coomer v. Kansas City Royals Baseball Corp., 2013 WL
150838 (Mo. App 2013), vacated & remanded, 437 S.W.3d 184
(Mo. 2014), a spectator was injured at a baseball game when the
Kansas City Royals’ mascot, “Sluggerrr,” threw a hot dog behind
his back and struck plaintiff in the eye. Plaintiff alleges that
defendant failed to exercise ordinary care in throwing hot dogs into
the stands and failed to properly train and supervise its employees
as to the proper method of tossing franks. Plaintiff has attended
more than 100 Royal games

222

at the stadium, which apparently convinced the jury that he

assumed the normal risk of watching a game and thus found
plaintiff 100% at fault. However, on appeal, the court found for the
injured spectator on the basis that substantial evidence did not
support instruction on primary assumption of the risk. The
Missouri Supreme Court vacated and remanded on the grounds that
the affirmative defense of implied secondary assumption of risk
does not survive comparative fault, and that the Royals were liable
for the injuries caused by the “hot dog launch.”
C. GOLF
Unlike baseball where there is some predictability to the flight of
a foul ball; there is far less predictability when one improperly
strikes a golf ball. In order to avoid possible liability, golfing
sponsors and owners must meet standard safety requirements. Golf
spectators assume the inherent dangers and risks involved with the
sport. However, golf courses and sponsors still must provide
reasonably safe premises for spectators. For example, in Duffy v.
Midlothian Country Club, 135 Ill.App.3d 429, 90 Ill.Dec. 237, 481
N.E.2d 1037 (1 Dist.1985), a golf ball struck a spectator’s eye
causing total blindness during a tournament while in a roped off
concession area. The court held that the sponsors had a duty of
reasonable care towards the spectators as business invitees. In a
similar case, Grisim v. TapeMark Charity Pro-Am Golf
Tournament, 394 N.W.2d 261 (Minn.App.1986), plaintiff alleged
that there was a negligent failure to

223

provide adequate safety to spectators and cited the fact that she was
forced to sit on the ground because of a lack of space in the stands.
Even golf tournaments have minimal safety requirements as
established by various golf associations; these standards usually
include the use of barricades and marshals, neither of which were
provided for during this particular tournament.
 The landowner does not have to protect the invitee from known
or obvious dangers unless the landowner anticipates the possibility
of harm. Golf exhibitions, however, do carry a certain amount of
risk. The key is whether the defendant has reason to expect harm to
the plaintiff from an obvious risk in circumstances where the
plaintiff’s attention might be distracted from the risk, causing him
to forget to protect himself against that harm. Baker v. Mid Maine
Medical Center, 499 A.2d 464 (Me.1985).
D. HOCKEY, CAR RACES AND WRESTLING
Inherently dangerous sports tend to define the legal parameters
that control spectator injuries. However, the crux is still whether a
plaintiff clearly knows and understands the risk that has occurred
and, if so, whether that choice is entirely free and voluntary.
A knowing and voluntary assumption of risk is especially
important in ice hockey, automobile racing and professional
wrestling. Spectators assume all risks that are matters of common
knowledge. Spectators assume the risk of injury from these
potential harms as a matter of law.

224

However, what is common knowledge at one time may not have

been common knowledge at an earlier time. In a 1952 Pennsylvania
case, Schwilm v. Pennsylvania Sports, 84 Pa. D. & C. 603
(Pa.Com.Pl.1952), a female hockey fan was deemed not to have the
requisite knowledge to understand that the area behind the hockey
net was dangerous. Defendants breached their duty to her by
improperly screening the goal area; however, they did not breach
their duty to her husband, who was a co-plaintiff and an
experienced hockey buff who knew the danger and assumed the
risk of sitting near the goal. Arguably this case might be decided
differently now because of the widespread popularity that hockey
currently enjoys.
It is the duty of management to exercise ordinary care for the
safety of spectators at hockey games. Courts often contrast
knowingly encountered danger with a negligently encountered risk.
In the first example, plaintiff consents to the possibility of harm,
whereas in the second example plaintiff fails to accurately assess
the possible results of his or her own actions. Hockey clubs are not
insurers of the safety of their spectators. But they do have a duty to
use reasonable care. The clubs should eliminate or warn of hazards
which they ought to know of and which are not reasonably
expected by patrons.
Hockey spectator hit in head by a puck that entered the stands
during warm-up, withstood summary judgment on basis that issue
of material fact existed as to whether defendant took appropriate
steps to protect spectators from, or

225

warn them about, the special dangers inherent in warm-up

activities. Sciarrotta v. Global Spectrum, 392 N.J.Super. 403, 920
A.2d 777 (App.Div.2007).
In professional wrestling and automobile racing, the operators
must also exercise reasonable care for the safety of their patrons.
But, like in all other sporting endeavors, they are not insurers and
are likewise not liable unless they fail to act reasonably. For
example, in one professional wrestling match (which is by
definition noisy and undignified), an unknown person threw a
whiskey bottle into the crowd. The court held that the operator was
not negligent because there was no showing that the facility
breached its duty of care. Whitfield v. Cox, 189 Va. 219, 52 S.E.2d
72 (1949). But a spectator at an automobile racing event should
expect the same type of screened protection that is required at a
baseball park. For example, an operator would be negligent if he
failed to provide sufficient protection in the form of fencing
between the pit and the area where the spectator is seated near the
edge of the track.
E. MINORS
The capability of a person to assume a risk is extremely
important. This is especially true for minors. The nature of the risk
that may be assumed is not conclusive as to whether it has been
assumed. The plaintiff must know and understand the risk that he
incurs. Also, the choice to incur that risk must be free and
voluntary. With minor spectators, the question is whether they can
assume the risks

226

that are inherent in the activity. In Brosko v. Hetherington, 16 Pa.

D. & C. 761 (Pa.Com.Pl.1931), an eleven year-old caddy in the
first day of service recovered damages when a defendant
negligently struck a golf ball that injured him, without warning of
the potential danger. The defendant had a duty to observe if anyone
was in the area where the ball could possibly travel if sliced (i.e.,
hit to the side) and had a duty to warn anyone in that area in order
that they might protect themselves. In golf it is customary to give a
warning when driving a ball from the tee under certain
circumstances.
It is not customary to give a warning in a baseball game for each
ball that is either pitched or batted. When an eight year-old was
struck in the face by a foul ball during a game in which he and his
parents attended in an inadequately screened picnic area directly
adjacent to the right field foul-line, the court observed that
spectators at a baseball game are presumed to be aware of the
dangers inherent in that sport. However, whether a child’s
assumption of that risk bans recovery is a question for the jury
unless the facts are so plain that they demand a finding by the court
as a matter of law. The court found nothing which demanded the
conclusion that the eight year-old plaintiff understood the risk of
occupying the place he occupied or that he assumed the inherent
risks. Because of his age, the lack of evidence in the records
concerning his ability to appreciate the risk and his actual
understanding of the risk, the court held that the child did not as a
matter of law assume the risk of the injury that he sustained. To
recover, the child must not possess the

227

ability to appreciate the risk of occupying the place that he

occupies and must not understand the risk involved. Atlanta v.
Merritt, 172 Ga.App. 470, 323 S.E.2d 680 (1984).
However, in a similar Texas case where an eleven year-old
baseball spectator was injured by a foul ball the court held that the
stadium had no duty to warn the spectator of the danger of being hit
by a foul ball while in the area behind the first base dugout.
Friedman v. Houston Sports Association, 731 S.W.2d 572
(Tex.App.—Houston 1st Dist.1987). The operator met his duty by
providing an adequately screened area for those that desire it,
although the spectator chose to sit elsewhere. The court concluded
that it would have been absurd and no doubt resented by many
patrons if the ticket seller had warned each person entering the park
that there was a danger of vagrant baseballs in unscreened areas.
The fact of the child’s age did not alter the fact that the stadium
operator had fulfilled his duty to provide adequately screened seats
for those who desire them. Under the circumstances, the operator
met his duty to exercise reasonable care to protect patrons against
injury.
F. FACILITIES
Spectators will not assume the risk of an arena operator who fails
to meet his or her duty of care. Operators are business invitors and
will be liable for conditions which cause harm to invitees, if 1) the
operators know or should have known that the conditions existed,
2) the conditions imposed an

228

unreasonable risk to spectators which they could not discover or

protect themselves against, and 3) if the operators failed to exercise
reasonable care for their protection. Operators have a duty to
maintain premises in a reasonably safe condition and to supervise
the conduct of those on the premises so as to prevent injury.
Spectators can assume that operators have exercised reasonable
care to make arenas safe for the purposes of the invitation. But,
operators are not insurers of the spectator’s safety, therefore, the
spectator must prove that the acts were a breach of the duty of care
and that the breach was the proximate cause of the injury.
The proprietor’s duty of reasonable and ordinary care to an
invitee includes the duty to detect reasonably discoverable
conditions which may be unreasonably dangerous. In deciding
whether a condition is unreasonably hazardous a court may look at
prior events. One significant question is what constitutes prior
knowledge of a dangerous condition. Courts typically deny
recovery for obvious dangers.
 229

CHAPTER 9
SCHOOL LIABILITY
A. NEGLIGENCE
In the past, courts were reluctant to hold school systems liable in
ordinary negligence because the courts felt that a teacher could not
give personal attention to every student all of the time. There were
also a number of powerful defenses at the service of the school
districts which helped to create a dearth of actions against schools;
these defenses included sovereign immunity, assumption of the
risk, etc. Today, there are many negligence actions against schools,
school employees, school districts and school boards. A majority of
these actions involve either participant injuries in interscholastic
sports or injuries that occur while participating in mandatory
physical education courses. These actions center on the following
acts of alleged negligence on the part of various school officials:
failure to warn, failure to instruct, failure to supervise, failure to
hire and train competent coaches and staff, and the failure to
provide adequate equipment and safe facilities.
The key for recovery against school districts is the determination
of whether a duty exists. Along with the duty, there must be some
causal connection or proximate cause between the alleged
negligence and the injury, without which recovery will not be
allowed. Generally, there are several factors that bear on a school’s
potential liability. For example,

230
public schools are liable for tortious conduct when under the
circumstances they owe a duty of ordinary care to participants and
spectators in athletic events. The duty owed an athlete takes the
form of adequate instruction, proper equipment, reasonable
matching of participants, non-negligent supervision and proper post
injury procedures. Also, there is a duty of the school to take
reasonable protective precautions for spectators; this will extend to
those injured by players, those injured because of rowdyism where
it is reasonably anticipated and those who are injured as a result of
inadequate grandstands. A basic issue is whether the school district
fulfilled its duty of care owed to the injured person and more
importantly whether recovery was barred by assumption of risk or
contributory negligence.
The school district may be liable for negligent supervision by a
person not an employee of the district where the school district
encouraged the athletic activity and had a duty to provide non-
negligent supervision. The school district is also liable when an
injury to an invitee occurs in an athletic event as the result of a
defect in the premises.
A school district can also be liable for injuries that occur during a
non-sponsored athletic event if the event is conducted by the
student body under school district auspices, is encouraged by the
district, and held on school property. Questions of contributory
negligence are always for the jury, whereas

231

assumption of the risk has been disposed of as a matter of law in a

number of cases.
In White v. Averill Park Central School District, 195 Misc.2d 409,
759 N.Y.S.2d 641 (Sup.2003), an action was brought against a
school district, board of education, head football coach, assistant
football coach, athletic director, principal, school district
superintendent, and assistant superintendent arising from a student-
on-student hazing incident. Athletic hazing appears to be on the
rise in both high school and college campuses. Generally, the
offending student-athletes are prosecuted under state anti-hazing
statutes, and the institutions are held responsible for the care of
their students under the doctrine of vicarious liability.
An injured high school football player brought a personal injury
action against the school district. The court held that the school
district was not liable for injuries sustained by the varsity football
player during practice, since the player assumed the risk of injury
by participating in varsity football practice as an experienced
football player. Serrell v. Connetquot Cent. School Dist. of Islip, 19
A.D.3d 683, 798 N.Y.S.2d 493 (2d Dept.2005).
Referee who allegedly was injured when he was punched by
student during basketball tournament that was organized by non-
profit organization and held at high school sued student and school
district to recover for his injuries The court held that the school
district had no duty to supervise student and that the absence of a
special relationship between school district and referee precluded
school district’s

232

liability for referee’s injuries. Curcio v. Watervliet City School

District, 21 A.D.3d 666, 800 N.Y.S.2d 466 (3d Dept.2005).
Suit was brought on behalf of eighth-grade student against
archdiocese and other private school defendants to recover for
injuries student sustained in attack by another student during
basketball practice. The court held that school defendants exercised
reasonable supervision and were not responsible for unforeseen and
spontaneous attack by older student and recent graduate who
kicked the eighth-grader in the face while at practice to assist
coach. McCollin v. Roman Catholic Archdiocese of New York, 45
A.D.3d 478, 846 N.Y.S.2d 158 (1st Dept. 2007).
High school basketball and football players were allegedly
victims of hazing. In the basketball case, Golden v. Milford
Exempted Village School District Bd. Of Edn., 2011 WL 4916588
(Ohio App), another member of team allegedly rubbed his penis in
the plaintiff’s face. In an action against the school and the coach,
his actions were deemed insufficient to constitute “hazing”. Also,
the coach was not liable for negligent supervision. However, in the
football case, C.H. v Los Lunas Schools Bd. of Edn., 2012 WL
1109637 (D. N.M.), three seniors threw plaintiff down and
physically and sexually battered him. A nearly identical widely
publicized incident occurred at the same school two years earlier.
The court found for the plaintiff on the basis that the new hazing
incidents, the school district failed to educate the team about
hazing.

233

Like Kleinknecht, the case of Limones v. School District of Lee

County, 111 So.3d 901 (Fla. App. 2013), discusses the question of
whether a school has a duty to provide emergency medical services
for athletes. In Limones, the question is whether the unavailability
of an automated external defibrillator (AED) is negligence. Abel
Limones was playing in a high school soccer game when he
collapsed. The court held that the school board’s common law duty
to use appropriate post-injury efforts to protect his injury against
aggravation did not include a duty to maintain, make available, or
use an AED, nor did the school board voluntarily undertake the
duty to use as required by Fla. Stat. Ann. § 1006.165.
B. VICARIOUS LIABILITY
Lawsuits against school districts are usually predicated on the
negligence of the school district’s employees. Schools, on the other
hand, attempt to avoid negligence by claiming that they are not
responsible for their actions or that the events are not school
sponsored. However, an employer is vicariously liable for the
wrongful acts of his servants and a principal for those of his agent,
when the acts are performed within the scope of their employment.
Vicarious liability is used to bring the liability of the coach, referee,
trainer or groundskeeper under the school board’s insurance
coverage.
Typically, coaches, aides, teachers, janitors, principals,
administrators, groundskeepers, referees, trainers, etc., are viewed
as agents of the

234

school district. Without specific statutory immunity the school

board will be vicariously liable for their actions. The school board
will be liable for the negligent actions of their employees if alleged
negligence occurs during the course of employment.
There also is the question of individuals who are not actual
employees, but act as quasi-employees, for example, volunteers.
The school board may be liable for the actions of the quasi-
employee under the principle of vicarious liability. The end result
will depend on the amount and quality of the indices that connect
the volunteer and his actions to the school board.
 In Kavanagh v. Trustees of Boston University, 440 Mass. 195, 795
N.E.2d 1170 (2003), a basketball player brought vicarious liability
action against university and coach of opposing basketball player
who punched him in a basketball game. The court held that
opposing basketball player was not an agent or servant of the
university for purposes of respondeat superior; and that the
university and coach did not have a special relationship with
basketball player for purposes of determining whether they had a
duty to protect him from the assault and battery. The court further
held that the assault and battery by the opposing basketball player
was not reasonably foreseeable. The attacking player was a
scholarship athlete, but the lack of reasonable foreseeability
negated Kleinknecht-type duty. Also, his status as a scholarship
athlete does not transform the student-

235

university relationship into any form of employment relationship

for purposes of respondeat superior.
However, in matter of State v. Hoshijo, 102 Hawai’i 307, 76 P.3d
550 (2003), the student-manager of a state university basketball
team was deemed to be an agent of the university while interacting
with the public. The court held that student manager’s actions in
shouting racial slurs and threats at spectator fell within the scope of
his authority as an agent of the university. Furthermore, the racial
slurs and threats were not protected speech within the scope of First
Amendment.
The personal representative of a high school athlete’s estate
brought a wrongful death action against county Board of Education
and individual school employees after athlete collapsed during
football practice and died from complications due to heatstroke.
The court held that the dismissal of wrongful death claims against
the individual employees on the merits precluded any vicarious
liability for wrongful death against school board. Draughon v.
Harnett County Bd. of Educ., 166 N.C.App. 464, 602 S.E.2d 721
(2004).
Mother on behalf of her minor daughter, commenced two actions
against various defendants that subsequently were consolidated,
seeking damages for injuries sustained by her daughter when she
was struck by an automobile owned by youth basketball coach and
driven by an assistant coach, who was a high school age student. In
the first action, mother specifically alleged that church

236

diocese was negligent in training, supervising, and instructing

basketball coach, and that is was thus vicariously liable under the
doctrine of respondeat superior for the alleged negligence of coach
in entrusting his automobile. In the second action, mother alleged
that church diocese was negligent in supervising, hiring, assigning,
and retaining coach. The Court held that the diocese was not
negligent in training, instructing, supervising, hiring, assigning, and
retaining coach, but there was a genuine issue of material fact
which precluded summary judgment on the issue of whether coach
could be considered a servant of the church as a volunteer, and
whether coach was acting within the scope of his duties. Robinson
v. Downs, 39 A.D.3d 1250, 834 N.Y.S.2d 770 (4 Dept.2007).
College was vicariously liable for injuries suffered by baseball
player who traveled with team to Florida baseball tournament and
was paralyzed when he dove into a wave and hit the ocean floor at
the beach next to the team’s hotel. Plaintiff recovered under the
college’s catastrophic athletic insurance policy on the basis that he
was not violating any team rules while on the beach. Regan v.
Mutual of Omaha Ins. Co., 375 Ill.App.3d 956, 314 Ill.Dec. 336,
874 N.E.2d 246 (1st Dist.2007).
In Stirgus v. St. John the Baptist Parish School Board, 71 So.2d
976 (La. App. 2011), plaintiff was injured when he slipped and fell
on the gym floor at East St. John High School during an indoor
football practice. Plaintiffs assert that the school board was liable
for the actions of the athletic director and

237

football coach who ran practice on the day of the incident, under
the doctrine of respondeat superior. Plaintiffs contend indoor
football practice was inherently dangerous and that the danger was
compounded by a gym floor that was wet because the players had
been practicing outside in the rain prior to being moved inside by
their coaches. Plaintiffs allege defendants breached their duty of
care to the students by failing to provide adequate supervision to
allow players to keep them free from unreasonable risks of harm.
The court found that there were genuine issues of material fact that
preclude summary judgment. Plaintiff slipped and fell in the gym
while executing a “32 slant” football drill. Some players changed
into dry clothes and shoes, and some did not. Everyone agreed that
the gym floor was slippery with moisture.
Defendants have a legal duty to adequately and reasonably
supervise the safety of the football players during practice. The
court also found an issue of fact as to whether defendants should
have known there was moisture on the floor in light of the
circumstances. The question is whether they should have known
there was moisture on the floor based on squeaking shoes, which
according to plaintiff’s experts indicate the probability of a wet
gym floor, the fact that another player fell during the indoor
practice prior to Armand’s fall, and the fact that not all players
changed out of wet shoes and clothes.

238

C. FAILURE TO WARN
One basis of liability under negligence is a failure to warn.
Coaches have a duty to warn of both unforeseeable risks and those
risks that although not completely unforeseeable are still not
entirely and fully understood.
D. FAILURE TO INSTRUCT
Another basis for liability is the failure to properly instruct. In
these cases it must be shown that the coaches’ or teachers’ failure
to instruct the student in a proper manner, or no way at all, is the
proximate cause of the student’s injuries.
E. FAILURE TO HIRE COMPETENT COACHES
Schools may also be liable for the negligent hiring of employees
if that negligence is the proximate cause of the athlete’s injuries.
The school has a duty to hire a coach of reasonable ability whose
competence, experience and training is comparable to other
similarly situated coaches.
F. FAILURE TO PROPERLY SUPERVISE
The most important duty of a coach or instructor is the
supervision of students. School officials cannot be absent from
their appointed places at the appointed times if students injure
themselves during that period. In those cases, plaintiff will only
have to show that the injury was reasonably foreseeable and that
proper supervision would have
 239

prevented the harm. However, the lack of supervision must be the

proximate cause of the injury. Liability would not lie if the injury
would have occurred notwithstanding the presence of the school
official. Where the gravity of harm increases, then the degree of
supervision must also correspondingly increase. In certain
activities, continuous and constant supervision is demanded by the
nature of the activity. An example would be Carabba v. Anacortes
School District, 72 Wash.2d 939, 435 P.2d 936 (1967), where a
high school wrestler was severely injured when the referee looked
away while an illegal hold was applied to the plaintiff. Negligence
was found on the failure to adequately supervise the match due to
his attention being diverted. The failure to break the hold was the
proximate cause of the injury.
However, supervisors do not have the duty to supervise every
student every second in every possible area. For example, when a
student was injured by rocks thrown in a playground, it was held
that there was no liability on the part of the school district. See
Fagan v. Summers, 498 P.2d 1227 (Wyo.1972); and Hampton v.
Orleans Parish School Board, 422 So.2d 202 (La.App. 4 Cir.1982).
Even though there is a requirement that there must be reasonable
supervision by school officials at a playground; there is no
requirement that supervisors have every child under direct, constant
and continual supervision.
A school district’s duty to supervise is best served when
supervision is constant and consistent. The

240
lack of direct supervision of activities that are foreseeably
dangerous and failure to continually supervise potentially harmful
activities are unwise procedures as regards the range of possible
personal injury suits that might develop from any injury.
High school cheerleader fell while performing a stunt during
cheerleading practice. The court held that defendants were not
entitled to summary judgment on the doctrine of primary
assumption of risk, although defendants demonstrated that
plaintiff’s daughter voluntarily participated in the stunt and the risk
of falling was obvious. However, plaintiff raised a triable issue of
fact as to whether the cheerleading coach failed to provide proper
supervision of cheerleading activities, thereby exposing plaintiff’s
daughter to unreasonably increased risk of injury. Larson v. Cuba
Rushford Cent. Sch. Dist., 78 A.D.3d 1687, 912 N.Y.S.2d 827 (4th
Dep’t 2010).
A 10-year-old boy was injured during a kickball game when he
ran into a gymnasium door after running through home plate. He
claimed that the defendants were negligent in placing home plate
too close to the unpadded doors. Also, plaintiff alleged that the
school failed to properly supervise the game. As regards the
padding, plaintiff’s expert from the World Adult Kickball
Association claimed that kickball guidelines recommend that a
space of 10 feet is needed to allow a runner to slow down. But
since the expert failed to identify any violations in the gymnasium,
the court granted summary judgment on that issue. Similarly,
summary

241

judgment was granted on failure to supervise. The lack of

supervision was not the proximate cause of the injury because the
incident occurred in so short an amount of time that no reasonable
person could have stopped plaintiff from hitting the door. The court
also held that plaintiff assumed the risk on the basis that he had
played kickball in that gymnasium five times before and did not
complain. Goldman v. Young Israel of Woodmere 2010 WL
4530239 (N.Y. Sup. 2010).
A high school student was injured when he fell into a large hole
while he was playing touch football. Plaintiff alleges negligent
supervision even though the hole was open and obvious.
Regardless, his long-standing knowledge of it did not bar an
inquiry into whether an allegedly dangerous condition resulted
from the school’s negligent maintenance of its property. But,
factual issues existed as to whether school’s maintenance of the bus
circle created a dangerous condition over and above the usual
dangers that were inherent in sport of touch football; and whether
the school’s supervision was inadequate and resulted in failure to
exercise reasonable care to protect student from unreasonably
increased risk. Simmons v. Sangerties Cent. Sch. Dist., 78 A.D.3d
1407, 918 N.Y.S.2d 661 (3d Dep’t 2011).
However, in Lizardo v. Board of Education of the City of New
York, 77 A.D.3d 437, 908 N.Y.S.2d 395 (1st Dep’t 2010), the court
held the teacher’s alleged negligent supervision was not the
proximate cause of one student’s injuries during a collision in a

242

kickball game during an elementary school physical education

class.
G. FAILURE TO MAINTAIN EQUIPMENT AND
FACILITIES
 Schools have a duty to provide proper and safe equipment and
facilities. To their students, they owe a duty to use reasonable care
to inspect and maintain equipment and to protect the students from
an unreasonable risk of harm. Schools must maintain reasonably
safe facilities for both participants and spectators. A breach of the
school’s duties to provide and maintain equipment or to provide
and maintain reasonably safe facilities will be actionable if it is the
proximate cause of plaintiff’s injuries.
Certain sports demand a very particular type of protective
equipment, for example, football and hockey. It will be a breach of
duty if the schools do not provide and maintain appropriate
protective equipment. Schools also have a duty to inspect and
maintain the equipment that they already possess. In fact, there is a
duty of reasonable care to protect students from unreasonable risks
even when that harm was a prevailing custom if that custom fell
below the reasonable care standard. (Tiemann v. Independent
School District, 331 N.W.2d 250 (Minn.1983); student injured
during physical education gymnastics instruction on a pommel
horse with exposed holes.)
Owners and operators are required to show ordinary care and
diligence in maintaining both

243

premises and equipment in a reasonably safe manner. Included in

this duty is the establishment of a cleaning, inspection and
maintenance schedule. The frequency of inspection will depend on
the potential harm anticipated, e.g., scuba diving equipment by its
very nature demands almost constant inspection. Owners and
operators do not have to possess actual knowledge of a dangerous
condition, only that they either knew or should have known of its
existence. School employees have a duty of reasonable care to
inspect the premises for hidden and lurking dangers. School
districts will be liable for harm caused by dangers that coaches
discovered or should have detected and failed to warn. However,
they are not liable for unconcealed dangers that are known or
should be obvious to participants.
In a fairly typical situation, a high school student was injured
when a volleyball net crank kicked back—it either “broke loose” or
“snapped back” and struck her in the face. The fact that there was a
warning label on the crank which apprised the school and the user
of the high risk of injury was insufficient to state a cause of action
for wanton or willful activity so as to fall within immunity
exception (S.H.A. 745 Ill. Comp. Stat. 10/1201, 10/3106). Leja v.
Community Unit School Dist. 300 (Ill. App. 2d Dist. 2012).
 245

CHAPTER 10
COACH LIABILITY
A. GENERALLY
Coaches must use reasonable care to avoid the creation of
foreseeable risks to the athlete under their supervision. The
standard of reasonableness will change from sport to sport. That
degree of care will increase if the activity involves a contact sport.
Generally, coaches have a duty to exercise reasonable care for the
safety of their players.
Coaches may also be liable for the breach of certain duties.
Coaches have a duty to instruct their athletes regarding safety
procedures and methods to minimize injuries. Coaches have a duty
to provide safe and effective protective equipment. Also, they
cannot force their athletes to participate when those athletes have
already sustained injuries, if there is a risk that further participation
will only aggravate the original injury. Coaches must also take
reasonable steps to provide medical assistance when and if it is
necessary. Liability has been found when a coach failed to summon
medical aid in a timely fashion when a player showed symptoms of
heat stroke. Mogabgab v. Orleans Parish School Board, 239 So.2d
456 (La.App. 4 Cir.1970).
Negligence will not lie if the coach has fulfilled his duty to
exercise reasonable care for athletes under his supervision. This
duty will be satisfied by providing proper instructions and
explaining to the athlete how to play the game and also by showing

246
due concern that the athlete is in proper physical condition. This
duty of care will be satisfied if the coach takes all reasonable steps
to minimize the possibility of injury. Although the player must
have proper and sufficient instruction, the coach will only be liable
if he fails to exercise reasonable care for the protection of his
players and that the injury was a result of that failure.
In a New Jersey trial decision, a novice player, a track star who
was recruited for football solely for his speed as a receiver, was
severely injured while tackling an opposing player on an
interception. The player contended that his injury was a result of
the negligence of the coaching staff who failed to provide sufficient
training, conditioning, equipment and supervision. Specifically, he
only had one practice session on tackling. Expert testimony averred
that tackling is an extremely dangerous aspect of the sport and that
the correct technique and manner, including keeping the head
elevated which plaintiff did not do, must be reinforced by repeated
practice. The experts agreed that one practice session was
insufficient. Plaintiff also contended that he was not provided with
sufficient preseason training, including weight training, to
strengthen neck muscles which experts contended was essential
and the absence of which contributed to the incident. The jury
found the head coach 40% negligent and the interior line coach
60% negligent; they then awarded 6.5 million dollars. The jury was
presented with an array of coaching techniques which could be
viewed as an indifference to the player’s health. The jury
emphasized that the plaintiff was a senior who

247

was trained in track and did not receive extensive training in his
first year of football; this lack of training only reinforced their view
that this was a coaching staff who stressed victory over safety. This
inference was reinforced by the deposition testimony of the interior
line coach who indicated that the plaintiff was only a name to him.
Woodson v. Irvington Board of Education (1987), Coburn, J., 3
Natl. Jury Verdict Rev. & Anal. 10 (No. 8, 1988).
To determine negligence, some states apply the so-called locality
rule which is comparable to the one used to establish applicable
standards in medical malpractice cases: this requires that the coach
will be held to the standard of other coaches in that specific
geographical area. For example, coaches in rural areas might not be
expected to possess the expertise that their big city colleagues
undoubtedly possess.
Coaches are judged by regional rather than a state or national
standard. The locality rule was originated at a time when new
coaching techniques were not expected to travel to the more
obscure rural areas in America. However, in these days, in an era of
coaching clinics, videos, consumer education, instructional
pamphlets and coaching magazines, the rationale for a locality rule
may no longer be legitimate.
Female basketball player sued her former high school basketball
coach, claiming emotional distress from an eating disorder and
amenorrhea as a result of the actions of her coach during her senior
year. Plaintiff alleged that her coach became abusive and

248

told her to lose weight. A jury trial found in her favor, holding that
she suffered emotional distress as related to the amenorrhea, but
not to the eating disorder. This verdict was reversed by the trial
judge, and all claims were dismissed. However, on appeal, the
court held that the Board of Education was liable for violating
parent’s First Amendment right and that evidence supported the
jury’s verdict, but the award of $100,000 in damages to the father
was clearly excessive. Besler v. Board of Edcn. of West Windsor-
Plainsboro Reg’l Sch. Dist., 2008 WL 3890499 (N.J. Super. A.D.
2008), aff’d in part, rev’d in part and rem’d, 201 N.J. 544, 993
A.2d 805 (N.J. 2010).
B. QUALIFICATIONS
There is a movement in amateur sports that would demand a basic
minimum in education and experience before one could become
certified as a coach. Also, coaches would be obliged to take a
certain amount of continuing education to maintain certification. In
Everett v. Bucky Warren, Inc., 376 Mass. 280, 380 N.E.2d 653
(1978), an injured school hockey player sued his coach and a
helmet manufacturer for injuries received when a puck struck him
in the head causing severe injuries. The helmet in question was a
three-piece helmet which allowed for gaps that under the wrong
circumstances allowed enough space for a puck to squeeze through
and cause injury. At the time there was another type of helmet
available which was a single piece and would have prevented the
injury. This single piece design was known to all parties

249

and was available at the time of the accident but at a slightly higher
price than the three-piece helmet. The coach was negligent in
supplying the helmet: he should have known that the three-piece
design was faulty and that another more safely designed helmet
was also readily available. The coach who had substantial
experience in hockey, could be held to a higher standard of care
and knowledge than the average person as it relates to the ordering
of the unsafe hockey helmet. Coaches are expected to possess a
minimum of education and experience that is thought to be
generally prevalent within the industry as a whole. The coach in
Everett went below that standard.
Coach certification is the key. Approximately half of the physical
education departments in institutions of higher learning provide
professional training in coaching. As an example, the American
Alliance for Health, Physical Education, Recreation and Dance
recommends that a minor in coaching should include the following
courses: Medical Aspects of Coaching, Problems of Coaching,
Theory and Techniques, and Kinesiological and Physiological
foundations.
However, the majority of the states still require only teacher
certification, regardless of the subject area, as a prerequisite for
coaching. If you are certified to teach you are also qualified to
coach. In Stehn v. Bernarr McFadden Foundations, Inc., 434 F.2d
811 (6th Cir. 1970), a student was injured during a wrestling
program supervised by a faculty member who had only a small
amount of wrestling

250

or coaching experience. This so-called coach was supervising two

matches at once. The hold that allegedly caused plaintiff’s injury
was one that the coach had learned while in the service. However,
the coach failed to explain a method of escape and a defense to that
hold. The plaintiff’s case was built on the failure of the coach to
supervise and his lack of qualifications in coaching wrestling.
Since one has to be certified to teach, arguably the school districts
should require additional training and education as a prerequisite
for coaching. This would be a logical step since coaching does
provide extra monetary income. This extra preparation should
require courses in physical conditioning, the learning and
performance of physical skills, first aid, theory and techniques of
coaching, and the legal aspects of coaching. Additionally, a
minimum of three to five years’ experience in coaching should be a
prerequisite to a head coaching position. School boards should
support this trend since they are the ones who will usually be
responsible for the acts and omissions of their coaching staffs.
Another aspect of the qualification issue is the training and
preparation of assistants and assistant coaches. Under the doctrine
of respondeat superior, it is possible that coaches will be
responsible for the actions of their assistants whether paid or
voluntary, whether student or non-student, and whether or not they
were student teaching. Generally, coaches have a duty to warn their
athletes of any hidden dangers known to them and

251

then instruct them in methods to avoid these hazards. If the

instruction is negligent because of the lack of training of the
assistants then the coach would be responsible.
In Brahatcek v. Millard School District, 202 Neb. 86, 273 N.W.2d
680 (1979), plaintiff’s decedent was a fourteen year-old junior high
school student who was injured during mandatory golf instruction
when he walked into the back swing of a fellow student who he had
asked for instruction. The deceased had never had a golf lesson
prior to the accident. His actual instructor was busy instructing
another student and thus unable to supervise the decedent. This
instructor was actually a student teacher, who only had five weeks
experience; the regular teacher was absent that day. Although he
had helped with golf instruction in four to six classes on the
previous two days, this was his first class as an instructor. In this
case the inexperience of the student teacher was found to be the
proximate cause of the injury.
C. PREPARATION OF PARTICIPANTS
It is obvious that every athlete must be prepared before he enters
the playing field. It is the responsibility of the coach to make sure
that the athletes under his charge are ready and prepared to
participate. This preparation should consist of the following
specific duties: instruction, physical preparation, providing proper
equipment, maintenance of equipment and issuance of warnings.
Coaches have a duty to prepare; a failure of which could lead to
liability based on negligence.

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A coach has the responsibility to minimize serious injuries. One

way of accomplishing this goal is to provide competent and
thorough instruction in the sport’s technical aspects and their
corresponding safety rules. In Vendrell v. School District, 233 Or. 1,
376 P.2d 406 (1962), no negligence was found when football
coaches provided adequate, standard instruction and practice
without negligently omitting any detail. The program in Vendrell
contained a daily calisthenic “bull-neck” exercise which was
designed to strengthen the neck muscles and thus help to prevent
neck injuries. The Vendrell court averred that the player had a duty
to ask questions on matters to which he was unclear. Since there
were no questions, the coaches could have assumed that he was
aware of the possibility of injury occurring from using his head as a
battering ram.
Another aspect of preparation is the physical preparation of the
athlete. This includes weight training, calisthenics, coordination
drills, stretching exercises, etc. The requirement here is to prove
that this lack of training was the proximate cause of the injury.
It is also expected that the athlete will be furnished with the
proper protective and safety equipment which is appropriate for the
sport especially if it is a contact sport. Added to that, the athlete
must be properly instructed as to the appropriate use of this
equipment; also, the equipment must be properly maintained so
that its effectiveness is maximized. In Hemphill v. Sayers,

253

552 F.Supp. 685 (S.D.Ill.1982), the coaches were potentially liable

for the negligent failure to warn the football player of the danger
inherent in the use of a football helmet.
When one defends against these types of charges, the school can
protect themselves by having enough equipment brochures and
equipment specifications available so as to show a conscious effort
to choose the best available equipment. Equipment manufacturers
will generally provide fitting and maintenance instructions with
their equipment at the time of purchase and will usually supply
additional copies upon request. Coaches should read, understand
and file these instructions; distribute copies to players and make
sure they comprehend the instructions; and retain extra copies so
they can maintain a permanent library of information. Coaches
should also follow the manufacturer’s recommended instructions
for periodic inspection and maintenance. These programs of
inspection, maintenance and proper repair must be documented.
For example, there must be a maintenance history for each helmet.
Coaches can never be totally free from the fear of potential
liability. However, one way to decrease potential liability is to
check the equipment before the contest and to develop enough
expertise in the field so that the equipment that is available is state
of the art.
In Thomas v. Chicago Board of Education, 77 Ill.2d 165, 32
Ill.Dec. 308, 395 N.E.2d 538 (1979), a coach was protected from
suit on basis of sovereign

254

immunity since his conduct was neither willful nor wanton. The
conduct in Thomas was furnishing, but failing to inspect defective
football equipment. This conduct was held to be ordinary
negligence as it related to injuries that resulted from defective
equipment.
In many jurisdictions a coach’s act of ordinary negligence is
protected by sovereign immunity. However, wanton or gross
negligence in the supplying of faulty equipment will still usually
expose the coach to liability.
The preparation of the athlete by the coach also includes
appropriate warnings about certain types of dangers, potential
injuries, conduct, and techniques before the athlete actually
participates. Failure to warn exists if the coach fails to specifically
warn the student about the potential dangers of using one’s head as
a battering ram in football; moreover, the student should also be
warned that using the head in this way could cause permanent
paralysis. In football, each helmet has a written warning explaining
the dangers of using a helmet as a ram. However, it would be
beneficial to the coach to reinforce this warning orally: if possible,
prior to each game or practice.
The duty to warn is the last defense that the coach should use in
his preparation of the athlete before participation; however, it
relates only to dangers that are non-obvious to the coaches. This
applies to all potential dangers including equipment use, proper
techniques, and the quality and consistency of the playing field.

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The preparation of the participants may appear to be harsh on

coaches, but they are usually in the position to give the last piece of
advice and check the athlete one more time immediately prior to
the athlete’s entering onto the playing field. Also, many coaches
are in a semi-paternal position to their athletes: the students trust
their coaches and rely on their expertise.
D. SUPERVISION
Coaches also have a responsibility to properly supervise the
athletes under their charge. This duty is not an absolute but varies
with the danger of the activity and the age and maturity of the
participant. Coaches are not insurers of the actions of the students
under their supervision. An instructor, was not negligent when a
student in a physical education class was injured when she and her
classmates decided to run a race in the foyer of the gymnasium.
The plaintiff, while running at full speed, crashed into a glass wall;
the coach was not negligent since he had exercised proper
supervision over the class. Wilkinson v. Hartford Accident and
Indemnity Co., 411 So.2d 22 (La.1982).
In Nydegger v. Don Bosco Preparatory High School, 202
N.J.Super. 535, 495 A.2d 485 (Law Div.1985), a high school soccer
player was injured and brought an action against the opposing
coach for failure to supervise his players and for teaching them to
compete in an aggressive and intense way and to believe that
victory was all important. The court held that in the absence of
instruction by the
 256

coach to one of his players to specifically commit a wrongful act or

his instructing the player in procedures that would increase the risk
of harm to opposing players, the coach would not be responsible to
the injured player. There was no proximate cause, and the
aggressive athlete was not an agent of his coach.
Ignoring a potentially dangerous activity might be sufficient to act
as a breach of that coach’s duty to supervise. This rationale would
apply to supervising a spectator’s contact with players, leaving
children unattended at a swimming pool or not correcting an
athlete’s faulty maneuver during play. A coach has to use
reasonable care in the supervision of athletes under his control so
as to avoid the unreasonable risk of harm to the athletes and those
associated with the activity.
In Draughon v. Harnett County Board of Education, 158
N.C.App. 705, 582 S.E.2d 343 (2003), the personal representative
of deceased student’s estate brought wrongful death suit against
county Board of Education, and several school employees,
including coach, based on student’s death from a heat stroke while
at football practice. The coach was not liable for wrongful death
since coach neither prohibited student from getting water while
directing him to run wind sprints, nor failed to recognize symptoms
of heatstroke exhibited prior to student’s collapse; therefore, coach
was not liable for death of athlete, where coach denied he refused
water or failed to notice symptoms, and denial was supported by
testimony of others.

257
 In Koffman v. Garnett, 265 Va. 12, 574 S.E.2d 258 (2003), a
middle school football player was injured when football coach
thrust his arms around player’s body, lifted him off his feet and
slammed him to the ground while explaining proper tackling
technique, brought negligence, assault, and battery claims against
coach. The Supreme Court of Virginia held that player consented to
physical contact with players of like age and experience, but that he
did not expect or consent to his participation in aggressive contact
tackling by adult football coaches; therefore, plaintiff stated a cause
of action in battery.
The parents of a student who was injured when he was pushed
into a pool by another student in swimming class brought
negligence claims against the pool’s owners, the instructor, the
other student, and the other student’s parents. The court held that
the owners did not have reason to know that the handrail in the
pool posed a latent hazard and that they did not breach their duty to
inspect the pool or to have it inspected. To the extent that the
handrail posed any risks to patrons, it was an open and obvious
danger. Even if the 1 to 50 instructor to student ratio was too high
to be considered safe, that unsafe ratio did not establish that the
owners of the pool were negligent. The instructor’s failure to
prevent the student from being pushed into the pool did not
constitute negligence and the instructor was not negligent when she
had the students position themselves on the deck of the pool above
the handrail. Similarly, the other student’s act of pushing the
student into the pool did not amount to

258

reckless and intentional behavior. Thompson v. Park River Corp.,

161 Ohio App.3d 502, 830 N.E.2d 1252 (1st Dist. Hamilton
County 2005).
 Stafon Johnson was an outstanding tailback at U.S.C. who was
injured while participating in required weight-training exercises.
An assistant coach agreed to spot Stafon in bench pressing 275
pounds. While he was adjusting his grip, the coach was allegedly
distracted and bumped the weight bar, causing it to fall on
Johnson’s neck. Johnson suffered neck trauma including crush
injuries to his larynx, resulting in separation of the upper and lower
portions of his voice box, breathing problems, and speech
difficulties. He required six surgeries over ten months. Johnson
sued, alleging gross negligence in failing to pay proper attention
while spotting him and becoming distracted by other players.
Johnson also claimed that the U.S.C. was vicariously liable, and
that he was not required to assume the risk of injury caused by the
assistant coach’s negligence. While the motion was pending, the
parties agreed to a confidential settlement. Johnson v. U.S.C., No.
BC453551 (Cal., Los Angeles Cty. Super., Jan. 17, 2012).
 259

CHAPTER 11
REFEREE LIABILITY
Many referees and officials are now finding themselves named as
defendants in personal injury suits for alleged acts of negligence.
Although they are usually not found personally liable, these suits
are still an inconvenience.
To counteract what is viewed as an alarming trend, some states
have promulgated laws that eliminate suits against referees and
umpires unless they are grossly negligent. For example, New
Jersey passed a law that provides partial immunity for volunteer
referees from civil suits for damages that result from acts or
omissions during the ordinary course of their supervision.
N.J.Stat.Ann. 2A:62 A–6.
It is a referee’s duty to properly supervise an athletic contest. For
example, a wrestling referee was held to be negligent for not
properly supervising a match; while the referee’s attention was
diverted one wrestler used an illegal hold to the other wrestler
which resulted in permanent paralysis below the neck. The referee
was negligent in that he breached his duty to non-negligently
supervise conduct. The referee’s standard is one of an ordinarily
prudent referee under similar circumstances. The injured athlete
will not assume that risk since one cannot assume another’s
negligence or incompetence. Carabba v. Anacortes School District,
72 Wash.2d 939, 435 P.2d 936 (1967).

260
 When the standard of care is met, recovery will not be allowed. In
Pape v. State, 90 A.D.2d 904, 456 N.Y.S.2d 863 (3 Dept.1982),
personal injuries were sustained during a college intramural floor
hockey game when plaintiff attacked an opponent. Plaintiff alleged
that the injuries were attributable to a lack of proper supervision
and training by the referee. The referee’s alleged inexperience was
argued to be the proximate cause of plaintiff’s cervical spine
fracture. The court held that the duty owed by the referee to
plaintiff was the duty to exercise reasonable care under the
circumstances to prevent injuries. The court concluded that the
duty had been met.
A. DUTY TO ENFORCE RULES
The referee has a duty to enforce the rules of the sport and to
prevent illegal holds or actions. The standard is one of an ordinarily
prudent referee. Id. Although referees have a duty to enforce the
rules of the game, there is no separate referee malpractice for bad
calls. Referees cannot prevent all rule violations, and they only
have a duty to use reasonable care to see that the rules of the game,
including safety rules, are followed. Reasonable care consists of
advising the participants of adverse conditions and illegal
maneuvers, showing due diligence in detecting rule violations,
penalizing the rule breakers, etc.
Plaintiff was playing in an adult soccer game when he was injured
after colliding with a goalkeeper. In his suit against the Connecticut

261

State Soccer Association, Inc., the Amateur Soccer League of

Connecticut and their referees and officials, plaintiff alleges the
following:
1. They allowed the game to be played on a field which had a
substandard playing surface, which was not safe for various
stated reasons;
2. They failed to repair the field or remedy the conditions;
3. They failed to inspect the field before allowing the game to
be played;
4. They failed to provide a safe playing field;
5. They failed to post signs or notices to warn the plaintiff of
unsafe field conditions;
6. They failed to properly officiate the game to eliminate violent
or improper behavior of players that was likely to cause
injury to other players, including plaintiff;
7. They failed to provide properly trained officials;
8. They allowed players to participate, who they knew or should
have known were likely to cause injury to others;
9. They failed to properly supervise officials that they provided
to referee the game;
10. They failed to properly train such officials;
11. They permitted the game to continue, knowing it wasn’t
being properly officiated

262

to prevent violent behavior and to prevent violation of the

rules;
12. They failed to properly train players as to the rules of the
game and proper technique for playing the game before
allowing them to participate in the games;
 13. They failed to appropriately discipline players for violence
and/or violation of the rules;
14. They failed to enforce the rules of the game of soccer;
15. They failed to warn the plaintiff that they permitted and/or
allowed violent behavior and rules violations during the
games that were likely to cause injury;
16. They misrepresented to the plaintiff that the game would be
conducted in accordance with the rules and violent behavior
would not be tolerated; and
17. They allowed the game to be played without the number of
officials required to properly enforce the rules by Law 5 and
6 of the Laws of the Game, so as to eliminate violent and
improper behavior. Zajaczkowski v. Connecticut State Soccer
Assn. Inc., 2010 WL 1052937 (Conn. Super.).
In filing the motion for summary judgment, the defendants argued
that they did not own or maintain the playing field and that any
alleged

263

negligence by the defendants was not the proximate cause of

plaintiff’s injuries. There was no evidence that the referee was
negligent, and if he was, neither defendant could be held
vicariously liable, since the referee was an independent contractor,
rather than an employee, and the defendants had no duty to train
the referee. The court noted that neither the plaintiff, his manager,
nor members of his team complained to the referee regarding the
condition of the playing field or any violent level of play. No one
ever requested that the referee stop the game. The number of
referees assigned for a game was controlled by the competing
teams who were reluctant to pay for additional referees. In
addressing injuries in athletic competition, the Supreme Court of
Connecticut recognized that the very nature of athletic competition
makes it reasonably foreseeable that competitors may be injured
during the contest. In athletic competitions, the object obviously is
to win. In games, particularly those played by teams and involving
some degree of physical contact, it is reasonable to assume that the
competitive spirit of the participants will result in some rule
violations and injuries. Some injuries may result from such
violations, but such violations are nonetheless an excepted part of
any competition (citing with approval, Jaworski v. Kiernan, 241
Conn. 399, 407–08, 696 A.2d 332 (1997)).
“ ‘Soccer, while not as violent a sport is football, is nevertheless
replete with occasions when the participants make contact with one
another during the normal course of the game. When two soccer
players vie for control of the ball, the lower limbs

264

are especially vulnerable to injury. If a player seeks to challenge

another player who has possession of the ball or seeks to prevent
another player from gaining possession of the ball, the resulting
contact could reasonably be for seen to result in injury to either
player.’ (Jaworski at 406–07, 696 A.2d 332).” Plaintiff argues that
defendant breached that duty by failing to select, employ, and train
its referees to protect and to prevent attacks on competitors. In
short, plaintiff claimed that the referee failed to prevent the
opposing goalie from running into plaintiff. The referee’s actions
and those of the defendants were not the proximate cause of
plaintiff’s injuries. Even when a player has been warned or is aware
of behavior that creates a risk of injury to others, he may fail to
heed such warning. As a matter of law, the defendants did not owe
plaintiff a duty of care.
B. DUTY TO PROTECT PARTICIPANTS
As a part of a referee’s duty to provide non-negligent supervision
there is also an implied duty to protect and warn participants.
However, like coaches, referees are not insurers of the safety of
participants. In Pape v. State, 90 A.D.2d 904, 456 N.Y.S.2d 863 (3
Dept.1982), where plaintiff was injured in a floor hockey game, the
court found that there was no connection or proximate cause
between the referee’s alleged negligence and the injuries. The
referee cannot guarantee the safety of each participant; moreover,
the court found that the plaintiff’s injury occurred while using his
own initiative to attack his opponent. Therefore, the

265

injury could not be attributed to a lack of supervision or training on

the part of the referee. The duty owed to the plaintiff only required
that the referee exercise reasonable care under the circumstances to
prevent injury; the referee did not have a duty to protect the
plaintiff from the danger that was inherent in a maneuver that was
initiated and controlled by the plaintiff himself.
In Rispoli v. Long Beach Union Free School Dist., 111 A.D.3d
690, 975 N.Y.S.2d 107 (2d Dep’t 2013), unlike Carabba v.
Anacortes School Dist., plaintiff injured in a wrestling match when
he fell on the mat could not recover. His claim of negligent
refereeing failed on the basis that the referee did not stop the match
when he entered into a dangerous position even though he stopped
the match earlier under similar circumstances. The court held that
the dangerous position was potentially more dangerous for his
opponent, and therefore, the referee’s failure to stop the match did
not unreasonably increase plaintiff’s risk of injury.
C. DUTY TO WARN
There is an implied duty on the part of the referee to warn
participants of possible dangers. For example, it is the duty of a
wrestling referee to warn participants of the consequences and
dangers of an illegal maneuver. Carabba v. Anacortes School
District, 72 Wash.2d 939, 435 P.2d 936 (1967). This duty can
arguably be expanded to include the referee’s responsibility of
controlling the game as regards hazardous conditions and
inclement

266

weather; for example, ceasing play during the following

circumstances: a lightning storm or an overly oiled basketball court
or inadequate lighting for a baseball game. It also includes
protecting participants from more aggressive players by penalizing
or warning athletes of their inappropriate conduct.
D. ANTICIPATING REASONABLY FORESEEABLE
DANGERS
Comparable to the duty of the referee to protect and warn
participants is his duty to anticipate reasonably foreseeable
dangers. Before the contest and while the game is in progress, it is
the responsibility of the referee to determine that the playing
conditions are safe. This could reasonably include checking for the
following: glass on the running track, holes on the field in football,
metal stakes protruding from the dirt in a baseball diamond, loosely
secured bases in softball, etc. Officials have an obligation to inspect
field conditions. In basketball, the safety rules provide that a
referee must ascertain whether there are loose basketballs in the
vicinity of the court, whether the padding at the basket support is
secure and continuous around the entire pole, and whether the area
surrounding the court is clear for the players.
Another group of reasonably foreseeable dangers that the referee
ought to anticipate are adverse weather and overall unsafe playing
conditions. Before the game, it is the referee’s responsibility to

267

decide whether the game should start. His first duty is to inspect the
overall playability of the playing surface. It is conceivable that a
referee could be held liable for allowing play to continue if a
football field is overly muddy and correspondingly unsafe. The
crux of this issue is the referee’s reasonable judgment: the
responsibility to call a game will rest solely on the shoulders of the
referee.
In Midwest Employers Casualty Co. v. Harpole, 293 S.W.3d 770
(Tex. App.—San Antonio, 2009), a coach sustained injuries in high
school football game when the linesman referee ran into him in the
restricted area during “live play”. The court held that there was no
evidence that the linesman referee failed to use reasonable care or
that he should have foreseen that the coach would enter the
restricted area during live play, and therefore, the referee owed the
coach no duty.
In Corona v. State, 100 Cal. Rptr. 3d 591 (Ct. App. 2009), a
boxing referee and wife sued commission for allowing him to work
on match with an HIV-infected boxer who was allowed to fight
without proof that he had tested negative for HIV. The
commission’s director notified the referee that the fighter had tested
positive at sometime, and that he needed to take precautions in case
he was exposed. However, the referee had already engaged in
unprotected sex with his wife, therefore, the appellate court held
that defendants were not entitled to governmental immunity
because the commission had a mandatory duty to ensure that all

268

boxers provide a negative HIV test before being licensed.

E. FAILURE TO CONTROL GAME
One other potential area for referee liability is the failure to
control and properly supervise the flow of the game. Carabba v.
Anacortes School District, 72 Wash.2d 939, 435 P.2d 936 (1967). It
is the duty of the official to detect and control the use of illegal and
dangerous maneuvers. The standard of care is one of an ordinarily
prudent referee.
However, the duty to supervise and control only requires that the
referee exercises reasonable care under the circumstances to
prevent injury. It is clear that the referee has the duty to stop the
match if it appears that an opponent is in serious danger of injury.
This is especially true in the dangerous contact sports of boxing
and wrestling.
Most of the cases to date have revolved around actions against
referees for personal injuries to participants. There are many other
conceivable tort cases that could be brought against referees. The
most probable would be actions based on “blown calls”. However,
absent corruption or bad faith, no independent tort exists for
“referee malpractice”. There has been no court yet that has
recognized a viable cause of action against an official for either an
honest error in judgment or a misapplication of a game rule. The
rulings of an umpire or referee are presumptively correct.
 269

CHAPTER 12
DEFAMATION
Sports is an established part of the American existence, and
because of that sports figures and people involved in the sports
industry are constantly commented on in various ways. The
business of sports journalism is to create controversy through
opinions and accusations about the problems of different athletes.
Therefore, there is a great possibility that sports figures will be
defamed by journalists or newscasters. The question is whether
journalistic tirades are defamatory and, if so, are they also
actionable? Statements will be defamatory if they are published,
false and cause damage to one’s reputation. Defamation is the
taking from one’s reputation: it is defamatory if it tends to diminish
the esteem, respect, goodwill or confidence in which the plaintiff
was held, or, if the remarks excite adverse, derogatory or
unpleasant opinions.
In Montefusco v. ESPN, Inc., 47 Fed.Appx. 124 (3d Cir.2002),
former major league baseball player, Jon “the Count of”
Montefusco filed action against television network for defamation
and false light invasion of privacy. Under New Jersey law, sports
news broadcast describing criminal proceedings against former
major league baseball player based on domestic violence charges
by his ex-wife was not defamatory, despite comparison between
player and another ex-athlete accused of domestic violence, where
comparison and all statements related to

270
criminal charges against Montefusco were factually accurate and
not misleading.
On July 15, 2005, a three-judge panel of the U.S. Court of
Appeals for the Eleventh Circuit remanded Mike Price’s
defamation lawsuit against Time, Inc., for further depositions to
identify a confidential source. The court held that the defendants
are not protected by Alabama’s reporter shield law. However, since
Price has not yet exhausted all reasonable efforts to discover the
source’s identity, the court required further depositions before
compelling the defendants to reveal their confidential source.
In December 2002, the University of Alabama (“Alabama”)
agreed to pay $10 million over seven years for Price to coach the
Crimson Tide football team. Four months later, Price attended a
pro-am golf tournament in Pensacola, Florida. While at the
tournament, Price visited a club known as “Artey’s Angels.”
Subsequently, a Sports Illustrated article cited a confidential source
as alleging that Price had sex with two women from the club in his
hotel room. Price denied any sexual encounter, but Alabama still
fired him soon afterward. On June 20, 2003, Price filed a $20
million lawsuit for defamation. In response to Price’s
interrogatories, Time asserted Alabama’s reporter shield statute and
the First Amendment’s qualified reporter privilege as grounds for
refusing to identify its confidential source. See Ala. Code § 12–21–
142.
However, the Eleventh Circuit panel unanimously agreed with the
district court.

271

Regarding Alabama’s reporter shield law, the court observed that

the plain and unambiguous language of the statute protects persons
“connected with or employed on any newspaper, radio
broadcasting station or television station.” Since Sports Illustrated
is a magazine, the court reasoned that it is not included. As for the
First Amendment’s qualified reporter privilege, the court believed
that Price’s own testimony under oath constituted substantial
evidence that the challenged statement is untrue, and the identity of
the source is necessary to the presentation of the case. However,
the court also noted that Price could still depose four more
individuals in an effort to discover the source’s identity. As such,
the court concluded that he had not exhausted all reasonable efforts
as required by the First Amendment. Therefore, the court remanded
the case for the depositions to occur before it compelled the
defendants’ disclosure.
On October 7, 2005, a settlement was reached between Price and
Time, Inc. However, the following week Time filed a motion with
the district court alleging that Price statements, as well as those of
his lawyers, regarding the settlement breached its confidentiality
provisions. The motion requested that the settlement be thrown out,
the case be dismissed, and sanctions be imposed upon Price and his
lawyer. Price v. Time, 416 F.3d 1327 (11th Cir.2005), as modified
on denial of reh’g, 425 F.3d 1292 (11th Cir.2005).
Golf instructor brought action against head golf professional of
the country club for defamation and

272

tortious interference with contractual business relationship. The

golf professional made statements to the other professional that the
instructor was a “cheat,” “cheater,” and was “cheating the system”;
the court found the statements to be true and as such a complete
defense to claims for defamation. Also, statements in a letter
written by professional’s counsel in response to cease and desist
letter to professional sent by instructor’s attorney did not meet
publication requirement for defamation. Similarly, the
professional’s complaints in a letter to the executive director of the
PGA Indiana Section expressing concern whether instructor’s main
employment qualified him as a teaching professional under PGA
classification system were deemed to be justified and not
defamatory. Melton v. Ousley, 925 N.E.2d 430 (Ind. App. 2010).
In Sandholm v. Kuecker, 942 N.E. 2d 544 (Ill. App. 2010), a
former high school basketball coach brought action against
numerous defendants, asserting claims of defamation based on
defamatory statements criticizing coach’s conduct and demanding
that the school district board have the coach removed from his
position as coach and school athletic director. This was a case of
first impression involving interpretation of the Citizen Participation
Act (935 Ill. Comp. Stat. 110/1 et seq. (2008)), Illinois’ anti-
SLAPP (“Strategic Lawsuit Against Public Participation”) statute.
While the Act’s clear objective as an anti-SLAPP statute was to
provide citizens with an immediate way to dispose of such
lawsuits, the Act was written

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more broadly than similar statutes in other states. The Act includes
the right to speak, assemble, or otherwise participate in
government, and it is not limited to matters of social or civic
concern. The ramification of the Act was present here in the
context of a defamation lawsuit. The appellate court held that the
Citizen Participation Act did not violate the coach’s state
constitutional right to seek remedy; and the Act did not violate
equal protection. Furthermore, the Act did not limit privilege to
actions or speech done only during government proceedings nor
were defendants defamatory statements privileged under the Act.
In Jones v. Dirty World Entertainment Recordings, LLC, 840
F.Supp.2d 1008 (E.D. Ky 2012), rev’d 755 F.3d 398 (6th Cir.
2014), plaintiff, the Cincinnati Bengal cheerleader captain (a.k.a. a
BenGal) and school teacher, sued the operator of a website named
“thedirty.com” alleging defamation and invasion of privacy. “The
defendants admitted that facially defamatory and privacy-violating
posts were made to their website concerning the plaintiff Sarah
Jones.” The defendant accused Sarah of being promiscuous and
having several sexually-transmitted diseases. She “emailed the
website and requested that the post be removed because she was
concerned it could affect her job” [as a teacher]. The defendants
claimed absolute immunity under the Communications Decency
Act of 1996 § 509(f)(3), 47 U.S.C.A. § 230(f)(3), which immunizes
it as providers of interactive computer services against liability
arising from content created by third parties. The defendants claim
immunity because

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they are not “information content providers” but instead merely

post comments made by the public. The principal content of
“thedirty.com” website is not only offensive but also tortious. At
common law, it would have been libelous per se because it implied
unchastity to a woman and stated that a person had a localism
disease. “If the statement was defamatory, it made no difference
whether the defendant intended it as so, or exercised reasonable
care before publishing it.” Also, “[e]ven if some of these
allegations were true, since the plaintiff is a private person, the
objectionable post on ‘thedirty.com’ may be found to have invaded
her right of privacy.” Defendant, Nik Richie, operator of the
website, adds his own comments to many postings, including
several of those concerning Sarah Jones. In his comments, he refers
“to the fans of this site” as “the DirtyArmy.” The Sixth Circuit held
that Sarah Jones cannot recover under Communications Decency
Act of 1996 from the online publisher, since “thedirty.com” did not
materially contribute to the allegedly tortious content.
Manny Pacquiao was the world’s premiere boxing personality. He
has filed a defamation per se action against his nemesis, Floyd
Mayweather, Jr., and others. Pacquiao alleges that the defendants
have publicly stated that he has a used and is using performance
enhancing drugs including steroids and human growth hormone.
These comments occurred during fight negotiations with Floyd
Mayweather, Jr., in late 2009. Eventually, these negotiations
completely broke down, however, the fight was

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ultimately resurrected as the “Fight of the Century” on May 2,

2015. Plaintiffs were able to establish a prima facie case of
defamation. “The court . . . finds that defendant’s alleged
statements are actionable defamatory statements because they
falsely assert an objective fact; namely, that Pacquiao was using
and had used PEDs” [performance enhancing drugs]. Pacquiao v.
Mayweather, 803 F.Supp.2d 1208 (D. Nev. 2011).
In Vilma v. Goodell, 917 F.Supp.2d 591 (E.D. La. 2013), the
allegations of an NFL player who was accused in the “bounty”
scandal was insufficient to state defamation claims against the
NFL’s Commissioner Roger Goodell.
Famed retired basketball player Scottie Pippen claimed he was
defamed when several news organizations reported that he had
filed for bankruptcy, which was false. Pippen, of course, was
named to the NBA’s “list of the 50 greatest players in its history,
[however, he] has encountered financial reverses since his playing
days ended in 2004. He has lost through bad investments a large
portion of the fortune he amassed during his playing days. In an
effort to recoup some of these losses, he has pursued multiple
lawsuits against former financial and legal advisors whom he
believes let him astray . . . ” “Pippen contends that the false reports
have impaired his ability to earn a living through product
endorsements and personal appearances.” The court held that
incorrect bankruptcy accusations do not ruin reputations per se, as
there are more legitimate strategic reasons to

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file. Also, these inaccurate reports cannot imply incompetence in

his ability to perform his job as Bulls ambassador, analyst, and
endorser. Pippen v. NBC Universal Media, LLC, 734 F.3d 610 (7th
Cir. 2013).
A. SPORTSWRITERS
The usual source of defamation in sports is the sportswriter,
sports journalist or radio sports personality. These people are paid
to create as much controversy as possible concerning sports heroes.
It is their job and they do it well. They are also protected in a
majority of the cases by the privilege of fair comment: their
analyses are deemed opinions and are thus protected by the First
Amendment. But, a “mixed opinion” that is capable of implying an
underlying defamatory fact is actionable. Milkovich v. Lorain
Journal Co., 497 U.S. 1 (1990).
In one instance a television sports commentator called a soccer
player a quitter and then at the end of the broadcast took a
photograph of the athlete and drew a mustache and a beard on it,
spat on the photograph, laid it on the floor and jumped on it, and
then threw it off the set. The question is whether these antics are
defamatory. The Colorado Court of Appeals said they were not and
that the commentator’s comments were merely opinions and thus
constitutionally protected. These comments were not deliberate or
reckless falsehoods, since the athlete did decide not to play for the
team in question during playoffs. Therefore, these comments

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were not capable of defamatory meaning. Brooks v. Paige, 773 P.2d

1098 (Colo.App.1988).
B. PER SE
There are two forms of defamatory publication, libel and slander.
Publication is a necessary element of the tort and is the means of
communication of the defamatory statement to a third party. The
tort of libel originally referred to the written or printed work
whereas slander was oral. The distinction is that libel must have
some embodiment in some permanent physical form. The slandered
plaintiff must prove actual damages as opposed to libel where the
damages are assumed to be greater because the language is in a
more permanent form.
There are four exceptions to a plaintiff’s requirement of proof in a
slander action. A statement that imputes one of the four exceptions
is slander per se or slander which is actionable per se. These
instances are so egregious that no actual proof of damages is
necessary to support an actionable slander claim. Slander per se
occurs when one imputes a crime, imputes a loathsome disease,
adversely affects the plaintiff in his trade, business or profession, or
imputes unchastity to a woman. Therefore, if one accuses an athlete
of suffering from AIDS or states that a coach lacks good
sportsmanship and is a rowdy drunk, then these comments may be
per se defamatory.
Many courts apply this rule: a libelous statement that imputes one
of the exceptions is libel per se and any other libel is libel per quod.
Under libel per

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quod the plaintiff must prove damages. Some decisions, however,

accept the proposition that any libel is actionable because it is more
permanent than the spoken word and is accordingly more
circulated.
Other courts use the term “defamation per se,” that is, defamation
on its face, which is thereby actionable. In Fawcett Publications,
Inc. v. Morris, 377 P.2d 42 (Okla.1962), the plaintiff was a member
of the 1956 Oklahoma University football team and was allegedly
defamed in a 1958 True Magazine article entitled “The Pill that can
Kill Sports” in which that Oklahoma team was alleged to have used
amphetamines. The court found that the article was defamatory on
its face and was libel per se, in that it exposed the entire football
team to a public hatred and contempt and tended to deprive the
team and its members of any public confidence they might have
earned. The reader was unequivocally informed that members of
the team had illegally used drugs.
This case also stood for another principle: that as a member of the
team, plaintiff could sue even though he was not specifically
named in the libelous article. The court’s view was that since it was
libelous per se and since the suggestion of drug use is both criminal
and adverse to plaintiff’s professional and business standing, it
libeled every member of the team including plaintiff even though
he was not specifically named. Moreover, the court felt that the
average reader would identify the player as a subject to these
accusations since he was

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a starting player and thus not a changing element within the

defamed group.
In Sprewell v. NYP Holdings, Inc., 1 Misc.3d 847, 772 N.Y.S.2d
188 (2003), a professional basketball player, Latrell Sprewell,
brought action against newspaper publisher and journalist for
allegedly libeling him in a series of articles. The Court held that the
fact that average sports reader would already have been aware of
previous incident in which player allegedly choked his former
coach during practice did not, as a matter of law, preclude finding
that later series of newspaper articles allegedly imputing the crimes
of assault and/or battery to player further damaged his reputation.
Additionally, statements about player in newspaper articles could
be read as imputing crime or attempted assault to player, which, in
light of prior publicity of incident in which player allegedly
attempted to choke his former coach, was sufficiently serious to be
actionable as libel per se without proof of special damages. Also,
statements in newspaper articles implying that player delayed in
reporting his injury from an alleged altercation to team
management, whether implying that such delay was deliberate or
merely negligent, defamed player in his business or profession, and
were thus actionable as libel per se without proof of special
damages. However, the N.Y. Supreme Court Appellate Division
reversed and held that Sprewell could not recover damages for
defamation (11 Misc.3d 1091(A), 819 N.Y.S.2d 851 (N.Y. Sup. Cty.
2006), rev’d 43 A.D.3d 16, 841 N.Y.S.2d 7 (N.Y.A.D. 1 Dept.
2007)).
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C. PUBLIC FIGURES
Certain people must meet a heightened burden of proof of actual
malice before they can maintain a successful libel suit. These
certain individuals would include public officials and public
figures. Public figures are people who by reason of their notoriety
or success or their achievements or the manner in which they seek
the public’s attention are categorized as public personalities.
The first remedy of a defamatory victim is self-help, that is, using
available opportunities to offset the lie or correct the error and
thereby minimize its adverse impact on his or her reputation. Public
officials and public figures enjoy significantly greater access to
channels of communications, and, therefore, have a much more
realistic opportunity to counter false statements than a private
individual would enjoy. Private individuals are more vulnerable to
injury and the state’s interest is correspondingly greater. More
important is the likelihood that private individuals will lack the
opportunity to rebut. Consequently, the press is allowed more room
for error with public figures since the stars have greater access to
the press for rebuttals than a truly private person.
Usually public figures want to be one, that is, they obtain that
status and purposely assume roles of special prominence in the
affairs of society. Some occupy a position of such pervasive power
and influence that they are public figures for all purposes; more
commonly, however, public figures have thrust themselves to the
forefront of a

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particular public controversy in order to influence the resolution of
the issues involved. In either event, they invite attention and
comment. When a public figure thrusts himself to the forefront of a
public controversy, he can become a public figure for a limited
purpose.
The media is entitled to act on the assumption that public people
have voluntarily exposed themselves to an increased risk of
defamatory falsehood. Courts have focused on whether the libel
plaintiff has voluntarily sought media attention in determining
whether he or she is a public figure. Several courts have even held
that individuals by entering certain lines of work have voluntarily
exposed themselves to media attention. Entertainers and
professional athletes in major sports are considered to be public
figures. This presumption of a public figure is also applicable to
coaches who share the limelight with their athletes. Player
disagreements, coaching philosophy or just plain personality
problems will always be given great attention by the media.
Therefore, an individual who manages a professional sports team
or who is involved with the management has voluntarily stepped
into the public eye. Since the organization that he works for attracts
and courts media attention, he is a public figure at least for the
limited purpose of stories that relate to his job.
Athletes are usually deemed to be limited public figures. In
sports, there are many personal factors in an athlete’s life which
may affect his career but

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which may not be the proper subject of unlimited publication.

It may be hypothetically possible for someone to become a public
figure through no purposeful action of his own, but the instances of
truly involuntary public figure status are exceedingly rare. One can
be a public figure if one thrusts himself into the forefront of a
public controversy like Bucky Woy, the sports agent who during a
contract dispute with one of his athletes used the media (through
press conferences) to help make his point. Woy v. Turner, 573
F.Supp. 35 (N.D.Ga.1983).
But in Time, Inc. v. Firestone, 424 U.S. 448 (1976), the court held
that the spouse of a millionaire was not transformed into a public
figure by filing for divorce. She had no less of a public forum than
filing to assert her rights; she did not freely choose to publicize
issues as to the propriety of her married life. She was compelled to
seek judicial relief from the State in order to obtain release from
the bonds of matrimony.
In a 1980 case the court found that a football player and his wife,
an ex-movie star, were limited public figures. Brewer v. Memphis
Pub. Co., 626 F.2d 1238 (5th Cir.1980); see also Chuy v.
Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir.1979).
Every story that is related to a public career is controlled by the
New York Times standard. New York Times Co. v. Sullivan, 376 U.S.
254 (1964). That standard is that public officials and public

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figures must demonstrate that the statements were made with actual
malice. In Nussbaumer v. Time, Inc., 1986 WL 12640 (Ohio App. 8
Dist.1986), the plaintiff was in a high profile job with an
organization, the Cleveland Browns, that sought and thrived on
media and public attention. Nussbaumer, an official with the team,
was viewed as a public figure in a controversy where an article five
years after the event characterized him as “spying” on a team
meeting. A professional football team is a business whose product
is sold by having people purchase tickets or watch the games on
television. Media attention is a critical tool to attract and keep the
public’s interest. During the football season the local daily paper
carried at least one story on that team every day; in fact, part of
Nussbaumer’s job was to help this coverage by informing the
media about things that affected the club’s performance. The
managing of a professional club attracts intense media coverage.
Decisions that control what a player will do on the field, coaching,
and general management philosophy are all publicized and much
discussed by the public. News conferences are frequently held to
announce changes that affect the team. When Nussbaumer accepted
a front office job with the Cleveland Browns, he stepped into the
public eye. He was in charge of player selection, and he helped
arrange player trades with other clubs, select possible choices in the
college player draft, and negotiated contracts with players on the
team. All of these chores directly affected who would be playing
for the team; hence, these activities attracted continuing

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media coverage. Since the article in Nussbaumer dealt solely with

the management of his team, Nussbaumer was required to
demonstrate actual malice on the part of the defendant even though
the article stated that he was spying on the head coach for the front
office.
Plaintiff, a sportscaster, sued another sportscaster and a radio
station alleging defamation, conspiracy, tort of outrage, and
invasion of privacy. The Court held that defendant sportscaster’s
on-air statement that compared a conversation he had heard
between plaintiff and another male participant on plaintiff’s
program to “oral sex” did not give rise to liability for defamation,
tort of outrage, or invasion of privacy. Plaintiff/sportscaster was a
public figure. A public figure cannot recover for defamation unless
he proves by clear and convincing evidence that the defendant
published the defamatory statement with actual malice, i.e., with
knowledge that it was false or with reckless disregard of whether it
was false or not. The most repulsive speech enjoys immunity
against defamation liability provided it falls short of a deliberate or
reckless untruth. Finebaum v. Coulter, 854 So.2d 1120 (Ala.2003).
A high school athlete brought defamation action against
newspaper publisher for repeating rumors that he had exposed
himself after championship basketball game. The Court held that
the athlete was not a public figure. Wilson v. Daily Gazette Co., 214
W.Va. 208, 588 S.E.2d 197 (2003). This high school athlete,
although outstanding in both football

285

and basketball, and the son of former professional football player

Otis Wilson, was certainly not an all-purpose public figure.
Additionally, the Court held that he was neither a limited purpose
public figure nor an involuntary public figure.
The Supreme Court of Alabama in Cottrell v. NCAA held that
former assistant football coaches at the University of Alabama who
had been charged by the NCAA with recruiting violations, were
limited purpose figures as regards their defamation claims asserted
against the NCAA for their allegedly false statements in its penalty
summary report.
However, assistant coach who served as recruiting coordinator
was a private person in his defamation claim against independent
recruiting scout who alleged that his coach stole money and
videotapes. Cottrell v. NCAA, 975 So.2d 306 (Ala.2007).
 Plaintiff was collegiate head football coach for seven years prior
to being fired. He filed a complaint against the athletic director
after a tense exchange with her. The athletic director confronted
him about kicking a football towards trainers and a player during
practice. A day after receiving a written memo memorializing these
conversations, he was fired. After he was fired an article appeared
in the local newspaper that states several incidents had led to his
firing, which included information from anonymous university
sources. After the article was published two university officials met
with the parents of the players and implied that the coach had
committed immoral acts. He sued the university

286

for defamation. The court denied his motion to compel depositions

of the reporters because the coach was a limited purpose public
figure and the statements were a matter of public interest. The court
also dismissed the claims because he could not show malice on the
part of any of the university officials. McGarry v. University of San
Diego, 154 Cal.App.4th 97, 64 Cal.Rptr.3d 467 (4th Dist.2007).
In Mitre Sports Intern. Ltd. v. Home Box Office, Inc., 22
F.Supp.3d 240 (S.D.N.Y. 2014), plaintiff sued HBO alleging that
defendant’s distribution of a portion of “Real Sports with Bryant
Gumbel Episode #138” entitled “Children of the Industry”
allegedly defamed plaintiff by falsely portraying that he employs
child labor in the manufacture of soccer balls in India. On the
particular grounds of whether plaintiff, Mitre Sports International
Limited, is a public figure, the court held that it was not.
D. RULE OF REPOSE
Hypothetically, after one attains public status, he might possibly
slip back into the veil of privacy. This is called the rule of repose.
But this is difficult in sports since sports heroes are in many ways
larger than life and therefore, their public image will last. A sports
personality will usually always be a sports personality. However,
there can be exceptions. One case in this area involved Jack
Dempsey, the great heavyweight boxing champion. The champion
was defamed 45 years after the alleged event occurred when in a
Sports Illustrated article his manager claimed that he had loaded
the

287

champion’s boxing gloves with plaster-of-paris. This was too much

for even a sports icon, that is, to reach back almost 50 years to
discuss non-noteworthy tactics. The court averred that reaching
back that far is not within the purview of the New York Times
standard; therefore, the glove loading was not cloaked with the veil
of privilege. Dempsey v. Time Inc., 43 Misc.2d 754, 252 N.Y.S.2d
186 (N.Y.Sup.1964).
However, in Johnston v. Time, Inc., 321 F.Supp. 837
(M.D.N.C.1970), a former professional basketball player sued a
sports magazine for publishing an allegedly defamatory article by a
professional basketball coach who described him as being
“destroyed” by another player. This article was published 12 years
after the event and nine years after plaintiff’s retirement. At the
time of publication, plaintiff was an assistant basketball coach at a
university. There is no question that plaintiff was a public figure in
his days as a basketball player, but this article was 12 years later.
The lower court acknowledged that the rule of repose could apply.
At the time of the publication of the article, the plaintiff did not
command a continuing public interest nor did he have access to the
means of a counter argument. The Court of Appeals, however, held
that plaintiff was still a public figure since he remained in
basketball.
Public officials will also usually continue their role as a public
person after retirement. In Ohio, the retirement of a public school
superintendent did not diminish his status as a public official
concerning

288

his alleged perjury at a high school athletic association hearing

regarding a fracas which had occurred at a wrestling match and was
related to his former position. In short, he was still a public figure
for purposes of a defamation action. Scott v. News-Herald, 25 Ohio
St.3d 243, 496 N.E.2d 699 (1986).
E. INVASION OF PRIVACY
Related to defamation is the right to protect one’s privacy. The
right to privacy will compensate the athlete for the distress created
by the public exposure to accurate but private facts. Privacy is the
right to be left alone and to live one’s own life as one may choose,
free from assault, intrusion or invasion except what can be justified
by the clear needs of the community living under governmental
law. However, to the extent the athlete is a public figure, the actual
malice standard of New York Times Co. v. Sullivan, 376 U.S. 254
(1964), will still apply, since to recover one must prove that the
defendant published the report with the knowledge of its falseness
or in reckless disregard of the truth. In the absence of malice,
invasion of privacy suits must deal with an athlete’s private life as
opposed to his athletic pursuits.
The test for determining whether information on the star’s private
life is newsworthy and thus privileged under the First Amendment,
or non-privileged and an invasion of privacy, is to discover if the
information is the type that the public is entitled to or just a morbid
and sensational delving

289

into the private lives of people for some prurient machination.

In Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d
877, 221 N.E.2d 543 (1966), a publication of a fictitious biography
of the Hall of Fame pitcher, Warren Spahn, was found to constitute
an unauthorized exploitation of his personality for purposes of
trade. Although Spahn gave away his rights to his public privacy,
he still maintained the right to secure his privacy in his personal,
non-public life.
Comparable to the right of privacy is the athlete’s right to his
commercial representation. The right of publicity recognizes the
commercial value of a non-newsworthy pictorial representation and
protects the propriety interests in the profitability of his public
image. In Ali v. Playgirl, Inc., 447 F.Supp. 723 (S.D.N.Y.1978), an
unauthorized pictorial representation of Muhammed Ali was used
for commercial purposes. The portrait depicted a nude black man
sitting in a corner of a boxing ring and was claimed to be
unmistakably recognizable as Muhammed Ali. The court upheld
his right to the commercial value of this photograph. In Zacchini v.
Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the court
gave the entertainer, in this case, the “human cannonball,” the
power to protect his publicity rights in that it did not immunize the
television station from liability for televising Zacchini’s entire act.
On January 12, 2004, the United States Supreme Court “rejected
without comment” an appeal from
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“Spawn” comic book creator Todd McFarlane, who argued that his
comic depiction of NHL tough-guy Tony Twist as a mafia thug was
free speech protected by the First Amendment. Twist is now free to
pursue a second trial, which is the result of the reversal of a jury
verdict in Twist’s favor in 2000. Circuit Court Judge Robert H.
Dierker, Jr., granted McFarlane’s motion for judgment
notwithstanding the verdict in an en banc decision, thus negating a
$24.5 million St. Louis jury verdict for Twist. In the event Judge
Dierker’s verdict was overturned on appeal, his ruling provided for
a new trial. Doe v. TCI Cablevision of Missouri, 30 Media L. Rep.
(BNA) 2409, 2002 WL 1610972 (Mo.App.E.D.2002), transferred
to Mo. S. Ct., 110 S.W.3d 363, 31 Media L. Rep. (BNA) 2025, 67
U.S.P.Q.2d (BNA) 1604 (Mo.2003) (judgment notwithstanding the
verdict reversed; judgment granting new trial affirmed), cert.
denied, 540 U.S. 1106, 124 S.Ct. 1058, 157 L.Ed.2d 892 (2004).
The right of publicity and free speech issues at hand stem from
the introduction of a character named “Anthony ‘Tony Twist’
Twistelli” to the Spawn comic in 1993. The fictional character,
Tony Twist, is a mob guy who engages in murder and mayhem.
The real life Tony Twist was an NHL hockey player known both
for his “enforcer” abilities on the ice and his involvement with
children’s charities and the community. In 1997, Twist found out
about the “Tony Twist” character when he was asked by children to
autograph Spawn trading cards. In October 1997, Twist filed suit,
seeking an injunction and damages for misappropriation of

291

name and defamation. The defamation claim was dismissed.

McFarlane defended against the misappropriation claim on First
Amendment grounds. The Missouri Supreme Court ordered a new
trial. Twist argued that the Spawn character, Anthony (Tony)
Twistelli, damaged his image and cost him endorsement
opportunities. The Missouri Supreme Court found the
misappropriation of name claim to actually be a right of publicity
claim and analyzed it under the following elements: (1) defendant
used plaintiff’s name as a symbol of his identity (2) without
consent (3) and with the intent to obtain a commercial advantage.
While elements (1) and (3) were both the subject of argument, the
judgment notwithstanding the verdict was due to the belief that the
latter had not been proved.
In Doe v. McFarlane, on remand to the Circuit Court, the court
awarded $15 million. On appeal, the court affirmed and held that
the creator’s use of the hockey player’s name was not protected
speech. Additionally, the creator’s admission in a magazine article
that he named comic book character after hockey player, was not
relevant to right-of-publicity claim.
In re NCAA Student Athlete Name and Likeness Litigation, 2011
WL 1642256 (N.D. Cal.) & 2011 WL 3240518 (N.D. Cal.), is a
class action suit by former student athletes against the NCAA, its
licensing arm, CLC (Collegiate Licensing Company), and the
popular video game maker, Electronic Arts, Inc., (EA). The court
for the Northern District of

292

California on May 2, 2011, ruled that the claims by groups of

“Publicity Plaintiffs” and “Antitrust Plaintiffs” would proceed
against one or more of those defendants. The “Publicity Plaintiffs”
asserted claims based on alleged violations of their statutory and
common-law rights of publicity and the “Antitrust Plaintiffs”
asserted claims based on an alleged conspiracy to restrain trade in
violation of Section 1 of the Sherman Act. EA and CLC bailed out
for $40 million.
Keller v. Elec. Arts, Inc., 2010 WL 530108 (N.D. Cal.), and Hart
v. Elec. Arts, Inc., 740 F.Supp. 2d 658 (D.N.J. 2010), rev’d &
rem’d 717 F.3d 141 (3d Cir. 2013), are individual law suits against
the same NCAA Student-Athlete’s defendants. Sam Keller and
Brian Hart are former college quarterbacks who brought lawsuits
against EA alleging violations of their rights of publicity by using
their likenesses and images in the “NCAA football” series video
games. The Keller court held that the precise use of his image
including the same jersey number, height, and weight, in the video
game went beyond reporting information about Sam Keller. Also,
the game setting was identical to the football field at Arizona State
University where Keller played during his collegiate career. Ryan
Hart, former quarterback at Rutgers University was initially unable
to state a claim for appropriation of a commercial likeness, but the
court allowed him to leave to amend his claim. On appeal,
summary judgment in Hart was reversed on the grounds “that the
NCAA Football 2004, 2005 and 2006 games at issue . . . do not
sufficiently transform appellant’s

293

identity to escape the right of publicity claim . . . ” (at 170).

F. DEFENSES
Even though certain statements about athletes can certainly
appear to be defamatory in their content, they may still be non-
actionable if there are defenses that are available to the defendant,
for example, truth, fair comment or privilege. Truth is a defense to
any civil action for libel or slander; also, it is a defense that the
comment was substantially true. For example, in Nussbaumer v.
Time, Inc., 1986 WL 12640 (Ohio App. 8 Dist.1986), defendant
claimed that plaintiff spied on a team meeting after a loss to the
Los Angeles Rams, but instead it occurred after a loss to the San
Diego Chargers. The defendant’s claim was substantially true.
Another way for a sportswriter to avoid defamation is the doctrine
of fair comment. Everyone has a right to comment on matters of
public interest if it is done fairly and with an honest purpose. Public
individuals, especially those who engage in sports, must expect
critical reviews, but they may not complain unless they are in fact
falsely accused of wrong-doing. The New York Times standard
requires that false comments about public figures must be knowing
and in reckless disregard of the truth to be actionable. Reckless
disregard means that the defendant entertained serious doubts as to
the statement’s truth before publication.

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The corollary to fair comment is the First Amendment right to

express an opinion. Sports columns are usually opinions and thus
protected. An Ohio Supreme Court case discussed the parameters
of a sports columnist’s right to express opinions. The key here was
the determination of whether an alleged defamatory statement was
an opinion or an assertion of fact; this determination is a question
of law. Scott v. News-Herald, 25 Ohio St.3d 243, 496 N.E.2d 699
(1986). The standard to be applied is totality of the circumstances
which will include specific language, whether the statement is
verifiable, the general context of the statement, and the broader
context in which the statement appears. Sports columns are
traditionally the home of hyperbole and invective. Columns can be
protected when the headlines of these captions show in some way
that the statements are protected opinions (e.g., “in my opinion,”
etc.). When a column is prefaced with an opinion-like statement,
then it is highly suggestive that it is indeed the opinion of the
author; however, such language is not always dispositive,
particularly in view of the potential for abuse.
In Stepien v. Franklin, 39 Ohio App.3d 47, 528 N.E.2d 1324
(1988), the former owner of the NBA Cleveland Cavaliers was
verbally attacked by a radio sports talk show host. He was
described as stupid, dumb, buffoon, nincompoop, scum, a cancer,
an obscenity, gutless liar, unmitigated liar, pathological liar,
egomaniac, nut, crazy, irrational and suicidal. Nevertheless, these
attacks were viewed as opinions and thus constitutionally

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protected. The First Amendment protects unrestricted debate on

issues of concern to the public including what may well be viewed
as vehement, caustic and unpleasant attacks. Public figures like the
owner of this basketball team have thrust themselves in the public
eye, and because of that they cannot later prevent others from
criticizing their actions. Opinions are not capable of defamatory
content; assertions of fact on the other hand are unprotected and
thus capable of a defamatory meaning.
Sportswriters can also sue for defamation. In Falls v. Sporting
News Publ. Co., 834 F.2d 611 (6th Cir.1987), a long time columnist
was terminated by his employer, who issued uncomplimentary
remarks that categorized the writer as less energetic than other
sportswriters and out of touch with the current sports scene and
implied that plaintiff was on a “down swing.” The court observed
that certain opinions of public concern could qualify as forms of
privileged criticism which are protected in the name of fair
comment. There are three kinds of expressions of opinion. First,
simple expression of opinion which occurs when the comment
maker states the facts on which he bases his opinion and then
expresses a comment as to the plaintiff’s conduct, qualifications or
character. The statement of facts and the expression of opinion are
treated separately at common law in the sense that either or both
could be defamatory. Secondly, a pure type of opinion may occur
when the maker of the comment does not express the facts on
which he bases an opinion, but both parties of the

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communication know the facts or assume their existence and the

comment is clearly based on those facts and does not imply the
existence of other facts in order to justify that comment. The
privilege of fair comment is said to apply to the pure type of
opinion. Thirdly, the mixed type of opinion, while an opinion in
form, is apparently based on facts regarding the plaintiff that have
not been stated by the defendant or assumed to exist by the parties
to the communication. The expression of the opinion gives rise to
the inference that there are undisclosed facts which justify the
forming of the opinion.
The Supreme Court, in Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974), determined that the common law rule that an opinion of the
pure type may be a basis of an action for defamation offends the
First Amendment guarantee of freedom of speech. However, the
mixed type of expression of opinion may still be the basis of
defamation since it could imply undisclosed defamatory facts as the
basis of the opinion. It is the court’s responsibility to determine
whether opinion can reasonably imply the assertion of undisclosed
facts, and it is the responsibility of the jury to determine if this
meaning was attributed by the recipient of the communication.
 In Falls, the defendant’s “on the down swing” comment, was held
to be capable of a defamatory meaning since the jury could
reasonably find that the defendant knew of undisclosed facts that
could justify such an opinion. For example, the plaintiff’s writing
and reasoning ability might have

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deteriorated or the quality of his work might have declined to the

point that other people had to rewrite or cover for him. Similarly,
defendant’s implication that plaintiff was inferior to his
replacements could create a reasonable inference that the comment
was also justified by the existence of other undisclosed facts, for
example, the plaintiff did not work hard, etc.
Coach of children’s baseball team brought action against umpire
and children’s baseball league for libel, alleging that he was
defamed when umpire wrote a letter complaining about the coach’s
language and behavior at a game to the town which employed the
coach. The court held that communications in the letter were
entitled to a qualified privilege, so as to defeat coach’s claim absent
a showing of malice on part of the umpire. Phelan v. Huntington
Tri-Village Little League, Inc., 57 A.D.3d 503, 868 N.Y.S. 2d 737
(2d Dep’t 2008).
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CHAPTER 13
TORT DEFENSES
A. GENERALLY
There are many defenses that the stadium owner or team owner or
school district can use in their attempts to avoid liability. The
preeminent defenses are assumption of risk, contributory
negligence and comparative negligence.
B. ASSUMPTION OF RISK
Assumption of risk can be defined as a voluntary assumption,
expressed or implied, of a known and appreciated risk. A
participant or a spectator who assumes the risk created by the
conduct of another cannot recover when harm in fact occurs.
In sports or recreational activities, the plaintiff will assume the
ordinary risks of the game; however, he does not assume the risk of
injury from a violation of a duty owed him by the promoter or
stadium operator and thus is not precluded from recovery for injury
that results from their negligence. This duty will include reasonable
care in the construction, maintenance and management of the
facility and reasonable care with regards to the character of the
exhibition and the customary conduct of invited patrons. But the
operator is not an insurer of the safety of the plaintiff. For recovery
for injuries sustained in a sports facility, the participant or spectator
must prove both that specific acts or omissions constituted a breach
of

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defendant’s duty of care and that the breach was the proximate
cause of the injury.
Professional baseball park operators are required to provide seats
protected by screens for as large a number of patrons as may
reasonably be expected to call for such seats on an ordinary day of
attendance. A breach of this duty may constitute negligence which
would make the operator liable to injured spectators. It is generally
held that a spectator who has knowledge of the game and takes an
unprotected seat will assume the risk of injuries from thrown or
batted balls and thus cannot recover for those injuries when they
occur.
Assumption of risk was once an impenetrable and monolithic
defense. This, however, has markedly changed in recent years.
Recovery is now allowed for injuries which result from safety
violations. Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258
(1975). Plaintiff can also recover for the intentional misconduct of
another participant. Bourque v. Duplechin, 331 So.2d 40 (La.App. 3
Cir.1976). Participants also might recover when the injury was
caused by the negligent acts of third persons, usually coaches or
referees. Nabozny and Bourque both involved participants, as
opposed to spectators. Voluntary participants usually are viewed to
assume all risks that are incident to the contest which are also
obvious and foreseeable.
Spectators assume the risk of hazards incident to the game.
Spectators assume the risks that are a matter of common
knowledge. Courts have allowed recovery where the risk of the
sport was not

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considered common knowledge. Spectators will assume only the
ordinary and inherent risks of attending sports activities. For
example, a swinging gate at a baseball game and a baseball flying
into an interior corridor are not ordinary risks and thus will not
preclude recovery.
Spectators will also not assume the risk of unreasonable conduct
by participants, e.g., a ball player who intentionally throws his bat
into the stands. Assumption of risk will not apply as a complete bar
when there is either a direct dereliction of a duty by the defendant
or a lack of knowledge of the risk on the part of the plaintiff.
There may be a question of whether plaintiff had actual
knowledge of the specific danger involved. This knowledge must
include not only a general knowledge of the danger but also
knowledge of the particular danger and the magnitude of the risk
involved. Actual knowledge of the risk may be inferred from the
circumstances.
For plaintiff to assume risk, he must knowingly and voluntarily
encounter those risks which cause harm: he must also understand
and appreciate the risks involved and accept the risk as well as the
inherent possibility of the danger which can result from that risk.
The necessary ingredient for plaintiff to assume risk is
knowledge: there must be a knowing assumption of risk which
means that the plaintiff has actual knowledge of the risk involved
or that knowledge is imputed because of certain

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observations and from that he should have reasonably known that

the risk was involved.
 For example, coaches can assume that a football player knows he
may get hurt if he uses his head as a battering ram. The high school
football player has a duty to ask his football coach questions
concerning any matter on which he is not clear; and coaches have a
right to assume that their players possess the intelligence and stock
of information of a normal young man interested in sports.
Therefore, it has been held that coaches can assume that a player
knew of the possibility of injury that comes to the player who uses
his head as a battering ram.
It has been held that voluntary participation in football games
constitutes an implied consent to the normal risks that go with the
bodily contact that is permitted by the rules of football. However,
participants involved in contact sports do not automatically consent
to contacts which are prohibited by the rules or customs of that
sport, if those rules are designed for protection rather than the
control of the mode of play.
Many assumption of risk type questions arise when there is a
special athletic event for students, or alumni, or friends of
participants, etc. You’re basically faced with the dilemma of
inexperienced novices participating in potentially dangerous
athletic maneuvers. The classic example is “powder puff football.”
In Shivers v. Elwood Union Free Sch. Dist., 109 A.D.3d 977, 971
N.Y.S.2d 568 (2d Dep’t 2013), there was a “competition night” at
the high school, where a 17-year-old female high school

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senior was injured in the “human railroad” which consist of a relay

team race where one member straddles the previous participant and
then lays down in front of the now prone student. Plaintiff with
injured when her teammate “dove down too early” and made
contact with plaintiff’s head. Plaintiff assumes the injuries which
occur during voluntary sporting activities if it is determined that
she assumed the risk as a matter of law. Here, plaintiff understood
and voluntarily assumed the risks inherent in the “human railroad”
activity.
1. PRIMARY ASSUMPTION OF RISK
The doctrine of primary assumption of risk provides that a
voluntary participant in a sporting or recreational activity consents
to those commonly appreciated risks that are inherent in and arise
out of the nature of the sport generally and flow from such
participation. However, in Herman v. Lifeplex, LLC, 106 A.D.3d
1050, 966 N.Y.S.2d 493 (2d Dep’t 2013), the court held that triable
issues of fact, such as whether the condition that allegedly caused
plaintiffs to slip and fall during the tennis game was concealed,
precluding summary judgment. In Weinbergen v. Solomon
Schechter School of Westminister, 102 A.D.3d 675, 961 N.Y.S. 2d
178 (2d Dep’t 2013), the doctrine of primary assumption of risk did
not bar lawsuit for injuries to a junior varsity softball player who
was injured when L-screen protective shield fell because of a
defect right before ball was batted back that struck plaintiff.

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The doctrine of primary assumption of risk requires actual

knowledge of the sport’s risks, which may be inferred from
experience in the sport. For example, an experienced snow tuber
assumes well-known incidental risks associated with the sport,
therefore, defendant has no duty to protect the plaintiff from well-
known incidental risks that accompany the sport of snow tubing.
Grady v. Green Acres, Inc., 826 N.W. 2d 547 (Minn. App. 2013).
 However, the doctrine of primary assumption of risk does not
apply to insulate from liability a jogger whose dogs allegedly
barked so incessantly that it cost a horse to break into a canter on a
public highway, causing the horse-rider to fall and sustain injuries.
But, the horse-rider was required to bring a claim for strict liability,
rather than ordinary negligence, to recover from injuries caused by
the barking dogs. Filer v. Adams, 106 A.D.3d 1417, 966 N.Y.S.2d
533 (3d Dep’t 2013).
In Bukowski v. Clarkson University, 19 N.Y.3d 353, 948,
N.Y.S.2d 568, 971 N.E.2d 849 (2012), an experienced university
pitcher in indoor practice who was struck by a line drive is held to
have assumed the inherent risk of that type of injury since the risk
of being hit by a batted ball was obviously enhanced by the multi-
colored pitching backdrop and low lighting. The primary
assumption of risk doctrine extends to risks created by less than
ideal circumstances, provided these circumstances and conditions
are open and obvious and the consequently heightened risks are of
the type that are easily appreciated. Also, it was immaterial that

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plaintiff watched others pitch batting practice without the

protective L-screen shield, and that prior to that practice, he had
never practiced “live” indoors without an L-screen.
2. EXPRESSED
The injured spectator or participant may expressly assume the
risk and waive his right to be free from those bodily contacts
inherent in the sport, that is, he takes his chances and is therefore
barred from recovery. The doctrine of expressed assumption of risk
includes expressed covenants not to sue and situations of actual
consent (such as voluntary participation in contact sports) which
will create a complete bar to plaintiff’s recovery against the
negligent defendant.
In the determination of whether a plaintiff who is injured in a
contact sport subjectively appreciates the risk giving rise to the
injury, it is within the power of the jury to review all evidence as to
what plaintiff really expected while participating in that sport. If
plaintiff is found to have recognized the risk and continued
participation in the face of danger, then the defendant can raise the
defense of expressed assumption of risk.
3. IMPLIED
An injured spectator or plaintiff may also impliedly assume the
risk of injury. This situation will arise when the plaintiff is aware of
the risk created by defendant’s negligence but continues to
voluntarily proceed. Plaintiff’s consent is implied

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from the continuation of the activity in that he goes forward

although aware of the risk. Plaintiff’s actions in assuming the risk
may be unreasonable or reasonable, however, if the conduct is
unreasonable then it is no different from contributory negligence.
Some states have abolished the doctrine of implied assumption of
risk by statute. In other states the defense is still applicable.
Under the doctrine of primary implied assumption of risk, in
Foronda ex rel. Estate of Foronda v. Hawaii International Boxing
Club, 96 Hawai’i 51, 25 P.3d 826 (2001), a boxer assumed all risks
that contributed to his death. As regards whether defendants
created or enhanced risk beyond that inherent to the sport by failing
to utilize two spacer ties, properly tied, on each side of the ring;
there was no evidence that the ring was otherwise unsafe or
substandard; in fact, it appeared that the coach, in renovating and
maintaining the ring, reduced rather than increased the inherent
risks.
Fitness center member injured on treadmill brought action against
fitness center, alleging that fitness center was negligent in failing to
provide any instruction or supervision on her first day at the
facility. The Ohio Court of Appeals held that the release document
was ambiguous, but regardless, the member assumed the implied
risk of using treadmill. Hague v. Summit Acres Skilled & Rehab.,
2010 WL 5545386 (Ohio App.).

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4. JOCKEYS AND CAR RACERS

Assumption of risk is more intransigent as a doctrine in the ultra-
hazardous sports of horse racing and race car driving. Where a
horse racing jockey is injured in an accident and sues a fellow
jockey to recover for injuries sustained as a result of the other
jockey’s alleged negligence; barring a specific intent to injure on
the part of the fellow jockey there can be no recovery for injuries
which the jockey sustained as a result of jockey error or careless
riding.
In a case where a jockey was thrown and injured during a race as
a result of the closing of two other horses, it was held that
reasonable implied assumption of risk remained a viable defense in
the absence of comparative fault since the jockey assumed the risk
of injury as a result of the negligence of another jockey even
though the second jockey was in violation of the rules as long as
that jockey’s conduct was not reckless. Ordway v. Superior Court,
198 Cal.App.3d 98, 243 Cal.Rptr. 536 (1988).
 Thoroughbred horse racing by its very nature is a sport that poses
great peril to its participants. It is a situation where up to a dozen
horses each weighing up to 1200 pounds break from a starting
point and attempt to gain a preferred position at the rail as the first
turn approaches. On these charging horses moving at full speed are
persons weighing approximately 100 pounds; these jockeys also
drive for position.

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In this attempt to acquire the best position, due to both jockey

error and the difficulties in controlling a sensitive thoroughbred
horse, contacts and collisions are common place which
occasionally result in spills that create injuries. These dangers are
inherent to the sport of horse racing and are well known to the
jockeys especially those who have significant experience in riding
professionally.
Although a participant in a horse race does relieve his fellow
participants of the duty of care in respect to those dangers that are
normally associated with the sport, he does not relieve them of the
duty to refrain from reckless, wanton or intentionally injurious
conduct. A jockey also does not have to assume the risk brought
about by the negligence of others.
A jockey was injured when his horse veered across the track
towards a negligently placed exit gap; he then brought a negligence
action against the race track alleging that the accident resulted from
the negligent placing of the exit gap. The jockey was deemed not to
have assumed the risk of the negligent placement of the gap in the
race track which was also determined to be the proximate cause of
his injuries. Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309
(Fla.1986).
 Even more obvious is the application of assumption of risk to the
race car driver. When a race car driver has actual knowledge of the
presence of a disabled automobile off the drag strip and several
hundred feet beyond the finish line, he will be held to know the
conditions of the track. Since he

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knew of the inherent danger, he actually and subjectively

comprehended the risk of undertaking the trial run under the
existing conditions including proceeding in the face of a known
danger by voluntarily racing his car and knowingly assuming the
risk of injuring himself. Robillard v. P & R Racetracks, Inc., 405
So.2d 1203 (La.App. 1 Cir.1981).
A race car driver, whether he signs a release or not, assumes the
risks of known, inherent dangers by simply entering the race. When
an oil slick developed on the surface of a race track during the
course of a race, it constituted a development over which the
defendant had no control. Yet when an accident occurred as a
natural result of the slick, it was held to be among the type of risks
which were assumed by the plaintiff in taking part in the race.
Seymour v. New Bremen Speedway, Inc., 31 Ohio App.2d 141, 287
N.E.2d 111 (1971).
5. SKIING, GOLF AND BASEBALL
Assumption of risk is also applicable to skiing, golf and baseball
spectator injuries. Skiers are business invitees. The operators owe
the skiers the duty to exercise reasonable care to keep the premises
in a safe condition so that skiers are not unnecessarily or
unreasonably exposed to danger. A skiing operator not only owes
the duty to protect the skier from known dangers but is also
required to exercise reasonable care in locating unknown dangers
which pose a potential threat to skiers. Whether the duty to exercise
reasonable care has

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been discharged is the key issue in ski injury litigation.

Often the issue of reasonable care is not reached in a ski injury
suit, because the skier assumes the risk inherent in that sport. For a
skier to assume the risk, the defendant must show that plaintiff
knew the risk, appreciated the extent of those risks and accepted
those risks voluntarily. Thus, where ski areas have changed the
nature of the sport by improving slope grooving and maintenance,
one can argue that these improvements make it questionable that
the hazards encountered by skiers are currently obvious and
necessary to the sport and therefore, they might be viewed as no
longer inherent to that sport.
Since skiing may be a large part of a particular local or state
economy, many state legislatures have enacted statutes protecting
resorts. Some statutes have created presumptions that skiers, rather
than resorts, are responsible for collisions occurring between skiers
and other individuals and for injuries not incurred on improved
trails or slopes.
Generally, courts have held that skiers assume the risk of dangers
that are obvious, necessary or inherent in skiing. Courts have held
that the hazards presented by the presence of a tree stump or a
metal pole used for ski lift supports, snow making or other utilities
are obvious, necessary or inherent to the sport and thus assumed by
participants. A skier who collides with a pole subsequent to a
collision with another skier is required to demonstrate that the pole
constituted a
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hazard capable of producing liability on the part of the resort

independent of the initial collision.
Courts generally reject plaintiff’s argument that skiing is an
activity to which a standard greater than reasonable ordinary care
applies. Ski resorts will also protect themselves through releases on
the back of lift tickets which waive the skier’s right to bring an
action against the resort.
Ski resorts must use at least reasonable care in the marking of
trails and taking other precautions to assure that skiers do not stray
from the designated trails. Liability, may be imposed on a ski area
for selling its service in such a manner that allows persons on
toboggans access to the same hill used by beginning skiers.
Likewise, the variation of the terrain of a slope, a loose bush and an
unmarked rock outcropping have been found to be hazards for
which ski areas may be held liable.
Skier was injured when 14-year-old snowboarder cut across the
hill from the snowboarding area and collided with the skier from
behind. The court held that “[a]ssuming without deciding that the
[plaintiffs] may recover only if the [defendant] was acting in a
reckless manner, a question of fact exists as to whether [defendant]
was reckless.” Horvath v. Ish, 954 N.E.2d 196 (Ohio App. 2011).
In Bell v. Dean, 5 A.3d 366 (Pa. Super. 2010), a skier who
collides with a snowboarder assumes the risk. Generally, a veteran
skier assumes the risk of chairlift accident. However, summary
judgment was precluded by triable issue of fact as to whether

312
resort operator created dangerous condition over and above the
usual dangers inherent in downhill skiing. Miller v. Holiday Valley,
Inc., 85 A.D.3d 1706, 925 N.Y.S.2d 785 (4th Dep’t 2011).
In Fontaine v. Boyd, 2011 WL 675208 (R.I. Super. Ct. 2011)
(Trial Order), one colliding skier sued the other skier, which was
barred as a matter of law by the doctrine of primary assumption of
risk under New Hampshire law. In Tone v. Song Mountain Ski
Center, 113 A.D.3d 1126, 977 N.Y.S.2d 857 (4th Dep’t 2014),
plaintiff was injured while using a triple chairlift at Song Mountain
Ski Center. The court looked at a ski lift injury as somewhat
different than the more typical skier collision scenario. That is, the
owner operator of the lift can still be liable for negligent
supervision and/or negligent maintenance and operation where
there are triable issues of fact whether the owner operator was
negligent in the operations of the chairlift, thereby, unduly
enhancing risk to plaintiff. In Moore v. Hoffman, 114 A.D.3d 1265,
980 N.Y.S.2d 684 (4th Dep’t 2014), minor skier’s arm fractured by
defendant’s “carelessness and negligence” in colliding with
plaintiff’s daughter from behind created a triable issue of material
fact as to whether defendant’s actions amounted to recklessness and
thus were beyond “the risk assumed by plaintiff’s daughter, a
novice skier who was injured while skiing slowly on an easy trail
in a slow skiing area.” But, in Barillari v. Ski Shawnee, Inc., 986
F.Supp.2d 555 (M.D. Pa. 2013), plaintiff was struck by a skier
while she watched her husband and children take ski lessons. She
was not included in

313

the coverage of Pennsylvania’s Skiers Responsibility Act, 42 Pa.

C.S.A. § 71102(c)) since she was not engaged in the sport of
downhill skiing at the time of the collision, therefore, the doctrine
of voluntary assumption of the risk is inapplicable.
In golf, golfers assume only some of the risks of the game. It is
negligent for a golfer to drive another ball without warning when
his prior drive is already on the fairway: he has a duty to warn
under those circumstances. Also, when a golfer allows another
party to play through and is struck by a golf ball, assumption of the
risk will bar recovery even though the defendant did not yell “fore”
since plaintiff voluntarily placed himself in the orbit of the shot of
the person behind him. Plaintiff purposely requested the defendant
to shoot; therefore, he certainly had notice that defendant would
indeed shoot. This notice obviated defendant’s duty to warn.
Golfer sued golf course for injuries received when golf ball
ricocheted off yardage marker and struck golfer in eye. The
Supreme Court of New Hampshire held that the golf course owed
no duty to protect golfer from risk of injury inherent in game, and
that expert testimony was irrelevant to determination of whether
golf course breached duty of care to golfer upon determination that
golfer voluntarily assumed inherent risk of injury. Sanchez v.
Candia Woods Golf Links, 13 A.3d 268 (N.H. 2010).
In Mangan v. Engineer’s Country Club, Inc., 79 A.D.3d 706, 912
N.Y.S. 2d 643 (2d Dep’t 2010), golfer allegedly slipped and fell
while playing golf.

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The doctrine of primary assumption of risk applied to golfer’s

descent down staircase leading from the cart path to a tee box.
Similarly, in Rochford v. Woodloch Pines, Inc., 824 F.Supp.2d 343
(E.D. N.Y. 2011), golfer who slipped and fell on stairs near 15th
hole in rain voluntarily assumed the risk of injury inherent in
ascending wet stairway at outdoor golf course.
As regards to baseball spectators, the spectator assumes the
foreseeable and known risks of a baseball game. For example, he
would assume the risk of a foul ball at an evening baseball game.
However, spectators do not assume injuries from baseballs that are
projected into the stands by non-normal means. Also, a spectator
does not assume the risk of a foul ball while she was walking in the
inner corridor of a baseball stadium. Jones v. Three Rivers
Management Corp., 483 Pa. 75, 394 A.2d 546 (1978).
6. MINORS
Assumption of risk takes a slightly different variation when the
injured person is a minor. A young child need not conform to the
behavioral standard which is reasonable as an adult, that is, his
conduct is to be judged by the standards that are expected from a
child of a like age, intelligence and experience. However, when a
minor was injured when a baseball bat flew from the hands of
another minor, evidence failed to establish defendant’s negligence.
The minor plaintiff voluntarily participated in the game and thus
assumed the risk

315

of injury. Gaspard v. Grain Dealers Mut. Ins. Co., 131 So.2d 831
(La.App. 3 Cir.1961).
In baseball, or softball, if the voluntary participant is experienced,
then they are usually deemed to assume the commonly appreciated
risks inherent to that sport. But, a minor junior varsity softball
player who was injured while attempting to slide into second base
and claimed that she was not taught to slide in practice was able to
withstand summary judgment on the grounds that there was a
question as to whether she was aware of and appreciated the risks
of sliding. Hyde v. North Carolina Cent. Sch. Dist., 83 A.D.3d
1557, 922 N.Y.S.2d 677 (4th Dep’t 2011).
C. CONTRIBUTORY NEGLIGENCE
If an athlete or spectator with knowledge of conditions goes into
danger then he or she assumes the consequences of that danger
even though there might be negligence on the part of another; if his
or her negligence is the proximate cause of the injury then he or she
is barred from recovery. This is contributory negligence.
In a health spa slip and fall case, a spa member who allegedly
slipped and fell on a foreign substance in the shower was
contributorily negligent where she had used the spa facilities on
several occasions and had heard that the showers were slippery,
filthy and dirty. She exposed herself to the risk without ever
protesting the danger and without ascertaining the condition of the
showers on that day.

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Contributory negligence is a question for determination by the

jury, but when the evidence admits but to one reasonable inference
then it becomes a matter of law for determination by the court.
There will be no recovery for negligently inflicted injuries if the
injured person proximately contributed to his own injury.
Contributory negligence is conduct that falls below the standards
which a plaintiff should meet for his own protection and which is a
contributing cause of his injuries. It frequently involves plaintiff’s
inadequate failure to notice and appreciate danger; however, absent
notice to the contrary, a spectator can usually assume that the
premises are reasonably safe. Plaintiff’s contributory negligence is
a complete bar to recovery even if the plaintiff was only slightly
negligent and defendant was primarily so.
At common law, a plaintiff who had negligently contributed to his
own injury was barred from recovering damages. This situation
imposes a duty for his acts or omissions towards others with a
similar obligation existing as regards his own safety. Therefore, if a
plaintiff does not use reasonable care for his own safety and his
lack of care is a substantial factor in causing his own injury, a
defendant may raise plaintiff’s contribution in defense of his own
acts. Under this theory, the existence of contributory negligence on
the part of the plaintiff is sufficient to preclude recovery.
For minors, contributory negligence involves three distinct issues:
the existence of capacity on the

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part of the child, the standard of care to be applied and

conformance by that child to the applicable standard of care. Courts
have recognized the general rule that the ultimate determination of
a child’s capacity to be contributorily negligent is a question of
fact, and some courts have specifically held that children within a
certain age group as a matter of law may not be contributorily
negligent. Generally, children over five may or may not be
contributorily negligent depending upon the circumstances.
Where a young golfer was struck by the ball hit by a mature
golfer, the older golfer must be aware that young children possess
limited judgment and are likely at times to forget the dangers and
behave in a thoughtless manner. The negligence of a child golfer in
standing on the fairway or raising his head from safety into danger
when the mature golfer drove a golf ball at his general direction
was not contributory negligence which would bar recovery for
injuries. A nine-year old may be capable of contributory negligence
but like a 12-year old, he is not held to the adult standards of
comprehending danger and the duty of self care. Outlaw v.
Bituminous Ins. Co., 357 So.2d 1350 (La.App. 4 Cir.1978).
A youth football coach’s contributory negligence outweighed any
negligence on the part of a football team or league in setting up
football games on adjacent fields without any sideline distance
between them. The coach was coaching his own team when players
from the game behind him ran

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into his leg and caused a knee injury. The coach was familiar with
the risks involved in youth football games, had seen countless
youth football games, and was fully aware that the players who
injured him were playing in a game directly behind him. Sideline
areas, including the area in which the coach stood, were in zone of
danger. Thus, the coach’s own contributory negligence in standing
in that area precluded recovery for his negligence. Shain v. Racine
Raiders Football Club, Inc., 297 Wis.2d 869, 726 N.W.2d 346
(App.2006).
Plaintiff was on a Singles Cruise Cozumel Beach Party excursion
at Señor Frog’s when he was injured on a water slide. Belik v.
Carlson Travel Group, Inc., 2011 WL 2221224 (S.D. Fla.). The
Belik court quotes with approval Kendrick v. Ed’s Beach Service,
Inc., 577 So.2d 936, 938 (Fla. 1991): (“[E]ven when a person
engaging in a noncontact sport such as driving knows of an open
and obvious danger, the person may still recover damages under
the principles of comparative negligence if the elements of the tort
have been proven.” In Belik, the court could not say as a matter of
law that the danger was so open and obvious as to obviate
Carnival’s duty to warn.).
D. COMPARATIVE NEGLIGENCE
Many states have responded to the onerous effects of assumption
of risk and contributory negligence by creating comparative
negligence as an alternative. Comparative negligence compares the
fault of defendant to that of plaintiff. Although each

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state may have a different version of comparative negligence, the

essential principle is that plaintiff will be allowed to recover at least
a proportion of the damages sustained if plaintiff’s negligence was
proportionally less than the negligence of defendant.
Also, assumption of risk is not necessarily merged into the
defense of contributory negligence under principles of comparative
negligence. For example, an experienced skater who intentionally
and voluntarily chose to perform an unsupervised traverse on a
ramp while holding a ski pole in either hand will assume the risk of
injury. Gary v. Party Time Co., 434 So.2d 338 (Fla.App. 3
Dist.1983).
E. WARNINGS
Courts favor warnings. Warnings explain the inherent dangers
that are involved in a certain activity as opposed to a release which
by means of an agreement releases the defendant from all potential
liability that might accrue from injuries to participants.
Participants must be warned about inherent risks in a sport. The
more dangerous the sport, the more important the warnings. It is
preferable to place warnings in writing and to read through the
written warnings with players and parents, if the sport is a
particularly hazardous one and the players are minors. A signed,
written warning, dated and understood by players and parents, will
assist the coach in his attempt to defend himself against liability.

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Certain types of sports equipment, e.g., football helmets or

trampolines should also contain general warnings that explain the
hazards that are associated with that product. Each warning should
contain a description of the demands and stresses that the sport
places on the human body. It is especially important that the
description include any potential cardiac stress so that the players
can appreciate the physiological demands that are a part of the
sport.
On the other hand, it has been held that a stadium owner did not
have the duty to warn an injured spectator of the danger of the
possibility of being hit by a foul ball while in the area behind the
first base dugout; the stadium owner met his duty to provide
adequately screened seats for those desiring them even though
spectators chose to sit elsewhere. Friedman v. Houston Sports
Association, 731 S.W.2d 572 (Tex.App.—Hous. 1 Dist. 1987).
An owner or occupier of premises owes a duty to invitees to
exercise reasonable care such as inspecting the premises for any
latent defects and making safe any defects or providing an adequate
warning about those defects.
In practice, warning sometimes merge with waivers. There are
usually both warnings and waivers on the back of a baseball ticket.
There are also statements on the back of season passes that
acknowledge the hazards that exist in skiing and that specifically
waive injury from the carelessness or negligence of fellow skiers.
However, in a suit against a ski area for injuries when plaintiff
collided

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with a metal pole after a collision with another skier, the court
analyzed that type of warning and waiver, and since the document
was ambiguous, the court decided against the drawer of that
document. Rosen v. LTV Recreational Development, Inc., 569 F.2d
1117 (10th Cir.1978).
F. WAIVERS
The main feature of all exculpatory agreements is to relieve one
party of all or part of his responsibility to another. A waiver is
simply one form of an exculpatory agreement. A waiver is a
contract and presents a conflict between two fundamental legal
axioms: one in contracts where all persons are free to contract as
they desire, and one in negligence where one is responsible for
negligent acts which cause injury to others. Although exculpatory
clauses are valid in certain circumstances, they are not favored in
the law. Any clause which exonerates a party from liability will be
strictly construed against the party that benefits. If the clause is
ambiguous in scope or purports to release the benefiting party from
liability for intentional, willful or wanton acts, it will not be
enforced. Waivers, to be valid, must be nonambiguous, particular
as to the wording regarding liability, not against public policy, not
intimate condemnation of gross negligence, and not allow results
that would indicate a large disparity in bargaining power.
The most significant aspect of a release is the particular words
that are used. For example, when the injured plaintiff is an expert in
a particular
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sport, the failure of the release to include the word “negligence”

does not preclude other language which may have the same effect.
The release will be enforceable as long as the release agreement is
sufficiently clear to show the party’s intent that defendant is to be
held harmless for any injury that is caused by his own negligence.
A waiver will be valid if it does not contravene any policy of law
and does not involve a quasi-public entity that supports or supplies
essential services, but rather relates to the private affairs of
individuals.
If there is no ambiguity and the contract is not one of adhesion,
the exculpatory clause will not violate public policy. Ambiguity
will not be an issue if the clause simply purports to exonerate a
facility owner from liability for acts of negligence and for
negligence only. However, where a contract is drafted unilaterally
by a business enterprise and forced on an unwilling and often
unknowing public for services that cannot readily be obtained
elsewhere then that contract is an “adhesion contract”, that is, a
contract that is generally not bargained for but one that is imposed
on the other party on a take it or leave it basis.
However, this view will not apply to health club memberships
when there is no disparity in bargaining power and no evidence that
the services were necessary or that the services could not be
obtained elsewhere. Since the services were not essential, suitable
for public regulation or of such great importance as to be clearly a
necessity for

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some members of the public, then the waiver clause did not violate
public policy.
However, it is universally held that a waiver will not bar a claim
for gross negligence. This is correct even though the same
exculpatory clause would bar an action for simple negligence.
Similarly, a disclaimer is against public policy if it is
inconspicuous.
Where a release was obtained only from racing participants and
those choosing to be in the pit area of a race track, the exculpatory
clause was held unenforceable as regards protecting the race track
owner against possible dram shop liability. The exculpatory
agreement did not release the defendant from dram shop liability,
because if it did it would be against public policy. Scheff v.
Homestretch, Inc., 60 Ill.App.3d 424, 18 Ill.Dec. 152, 377 N.E.2d
305 (1978).
Waivers that public school students are required to sign as a
prerequisite for participation in high school sports which release
the school district from the consequences of all future school
district negligence are invalid because they are a violation of public
policy. Wagenblast v. Odessa School District, 110 Wash.2d 845,
758 P.2d 968 (1988).
The factors that are essential in a determination of whether a
release will violate public policy include the following: whether the
agreement concerns the type of business that is generally thought
suitable for public regulation; whether the party seeking the waiver
is engaged in performing

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services of great importance to the public; whether the party holds

itself out as willing to perform these services for any member of
the public; whether the party invoking exculpation possesses the
decisive advantage and bargaining strength; whether the party thus
invoking confronts the public with a standardized adhesion
contract; and whether as a result of this contract the purchaser is
placed under the control of the seller and, therefore, subject to the
risk of carelessness by the seller.
Stelluti v. Casapenn Enterprises, LLC, 1 A.3d 68 (N.J. 2010), is
an important decision from the Supreme Court of New Jersey
which appears to give more leeway to health club owners and
occupiers in their fight to enforce waivers.
The bottom line, at least in New Jersey, might be that even if the
agreement is a “contract of adhesion” (take it or leave it), it will not
necessarily fail if the owner/occupier’s commission or omission
that led to the injury is something less than gross negligence.
However, there was a strong dissent, but it does, at least in New
Jersey, shift the discussion from “waiver writing” to analyzing the
incident itself. Most courts before Stelluti, tended to disfavor
waivers: but also exculpatory clauses are valid under certain
circumstances namely, high risk activities with experienced
participants. Waivers, to be valid, must be non-ambiguous and
specific as to the wording regarding liability, not against public
policy, not intimate condonation of gross negligence, and not allow
results that would indicate a large

325

disparity in bargaining power. See Schlobohm v. Spa Petite, Inc.,

326 N.W. 2d 920 (Minn. 1982).
The Tenth Circuit held that a waiver will not be enforced if there
is a lack of give and take (the definition of an adhesion contrast) as
regards a season ski ticket waiver. This type of waiver will be
strictly enforced against the defendant as author of a one-sided
agreement. When an “adhesion contract” waiver is ambiguous, it
will not be construed as a waiver of liability for injuries resulting
from negligent ski area conditions. Rosen v. LTV Recreational
Development, Inc., 569 F.2d 1117 (10th Cir. 1978).
Stelluti changes the dynamics of this discussion (in New Jersey)
by now initially focusing on whether the waiver is non-ambiguous.
If it is, then the fact that it’s also a contract of adhesion is
immaterial if the defendant does not engage in gross negligence. In
Stelluti, a new fitness club member fell and was injured during a
spinning class when the bike handlebars dislodged. She brought a
negligence action against the club, alleging that the club failed to
properly maintain and set up the bike or exercise proper care,
which caused a dangerous and hazardous condition to exist.
Furthermore, it allowed a nuisance to exist, failed to provide proper
and safe equipment, and maintained the bike in an unsafe,
hazardous and/or defective condition.
The Stelluti court, held inter alia, that the club’s exculpatory
agreement was one of adhesion and that the exculpatory agreement
was not void based on any notion of procedural unconscionability.

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Furthermore, the member was presumed to understand the terms of

the exculpatory agreement and that public policy does not demand
a per se ban against enforcement of an exculpatory agreement
based on the mere existence of a duty recognized in the common
law in respect to premises liability. Although that private gyms and
fitness centers have a duty not to engage in reckless or gross
negligence, the release in question was still enforceable.
 Stelluti was a 5 to 2 decision, with Justice Albin and Long voting
for a reversal. In a dissent, Justice Albin opined that:
[t]oday the court has abandoned its traditional role as a steward
of the common law. For the first time in its modern history, the
Court upholds a contract of adhesion with an exculpatory clause
that will allow a commercial profit-making company to operate
negligently-injuring, maiming, and perhaps killing one of its
consumer-patrons-without consequences. Under the Court's
ruling a health club will have no obligation to maintain its
equipment in a reasonably safe manner or to require its
employees to act with due care toward its patrons. That is
because, the Court says, a health club patron has the right to
contract not only for unsafe conditions at a health club, but also
for careless conduct by an employee. The Court’s decision will
ensure that these contracts of adhesion will become an industry-
wide practice and that membership and health clubs will be
conditioned on powerless

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consumers signing a waiver immunizing clubs from their own

negligence. The Court’s ruling undermines the common-law
duty of care that every commercial operator owes to a person
invited on its premises. Stelluti, 1 A.3d 678, 695 et seq. (Albin,
J., dissent, emphasis in original).
1. FOOT RACES
An integral part of any jogger’s routine is to scrutinize the
ubiquitous waiver on the form for road race participation. A waiver
of this sort will not release the defendant from all types of liability.
The question is when and under what circumstances this release
will be applicable.
 The leading case in this area involves a young law student who
was gravely injured while participating in a 10,000 meter event in
Atlanta, Georgia, in July. The young man accused the organizer of
being negligent by failing to adequately warn that he could suffer
serious injuries from participation in the extreme heat and
humidity; also, that defendant failed to provide liquids and medical
facilities along the race and failed to ascertain whether all entrants
were physically capable of completing the race. However, the
plaintiff not only signed but understood the waiver agreement.
Each participant was required to pay a fee and sign a very specific
and particular application form that described the race and the
physical conditioning necessary in a very specific manner, along
with a particular description of the type of heat and humidity that
would be expected. The

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application form added that all of this made it “a grueling ten

thousand meter race.” Williams v. Cox Enterprises, Inc., 159
Ga.App. 333, 283 S.E.2d 367 (1981).
Regardless of the explicit warning, the law student, as a result of
extreme exertion in the exact conditions that were described in the
waiver, succumbed to heat prostration which resulted in a
permanent impairment of some motor functions. It was decided
that this waiver was not against public policy. There was no
disparity in bargaining position. Plaintiff alleged that road racing
had become so popular and this race in particular was one of a
kind, that he and other participants were under enormous pressure
to enter it under whatever terms were offered to them. The court
saw this argument as “ludicrous.” The court also determined that
recovery was precluded under assumption of risk because the
waiver was described in extremely particular terms and the plaintiff
agreed that he read the waiver and was already aware of the danger.
Because of this, any injury that resulted from overheating and
dehydration could not reasonably be construed to have emanated
from any breach of duty on the part of the defendant.
2. CAR RACES
Releases also will usually be allowed in ultra-hazardous sporting
activities such as race car driving, especially when the signed
waiver is voluntary and a product of knowledgeable agreement.
Waivers for participation in a vehicular

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racing event will especially be upheld where there is valuable

consideration as an exchange for a signed released. The valuable
consideration deemed important in law is the right to participate in
the event with the hope of winning prize money. In this situation,
the waiver constitutes a full defense to any claim for damages
except those due to wanton or willful negligence. However, willful
negligence does not occur, for example, when an oil slick develops
on the surface of the race track during the course of the race and as
a result creates an accident which causes injury to plaintiff.
Seymour v. New Bremen Speedway, Inc., 31 Ohio App.2d 141, 287
N.E.2d 111 (1971).
Even a race car driving release, however, will not waive liability
for defendant’s gross negligence. Similarly, it will not always act as
a bar to an action by decedent’s spouse on the grounds of loss of
consortium (the courts are split). Nor will a waiver release a
defendant for liability under the state’s dram shop act, since that
type of waiver even under the conditions of a car race would
violate public policy. Another question is, who is included under a
waiver which stipulated that both “participants” and “advertisers”
were released from liability; it was held that the tire distributor and
tire manufacturer respectively, were included in those descriptions.
Kircos v. Goodyear Tire and Rubber Co., 108 Mich.App. 781, 311
N.W.2d 139 (1981).
In Beer v. La Crosse County Agricultural Soc., 797 N.W.2d 934
(Wisc. App. 2011), plaintiffs suffered severe injuries at speedway
when they were struck

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by an out-of-control race car while standing in the restricted area of

the track’s infield. The release that the plaintiffs signed was a valid
exculpatory contract that released the speedway from liability for
injuries sustained by both men. On appeal, plaintiffs argued that the
waivers they signed were void as against public policy. Although
exculpatory contracts are not favored by Wisconsin law, the Court
of Appeals noted that it had previously held that a nearly identical
waiver was not void as against public policy. Therefore, on
precedential grounds, the court affirmed the granting of summary
judgment in favor of the defendant.
In Prouncha v. Vermont Motocross Ass’n Inc., 974 A.2d 1261 (Vt.
2009), motor cross athlete was injured when race officials failed to
display a caution flag. The day before, he signed a waiver, but the
court upheld the waiver because it was sufficiently clear even
though the entry form did not specifically include the word
“negligence”; however, the court found that the waiver was invalid,
since it asserted that defendants were immune from all types of
injury claims which were in any way connected with the event.
3. MINORS
 Generally when a minor is involved with a release, the law will
not bind him to it. This is correct whether he signs it or whether it’s
signed by his parents or any combination thereof. A minor who
was injured while attending an ice hockey clinic was not bound by
the fact that his father had signed

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a release on behalf of his son which purported to exempt the city

and the hockey league for injuries. Also, since the father’s cause of
action was derivative to his child, the father’s waiver was not
barred by the waiver that involved his child. The father’s cause of
action was derivative to his son’s and drew its life from the
existence of the cause of action which inured to the benefit of the
infant. A parent cannot release a child’s cause of action. Doyle v.
Bowdoin College, 403 A.2d 1206 (Me.1979).
A minor’s waiver is unenforceable because a child does not have
the capacity to contract; the traditional rule for minors is that they
can disaffirm a contract unless it involves life’s necessities. Since
recreation is not a necessity then an exculpatory contract signed by
a minor is usually voidable. This is true even when a minor
misrepresents his age.
In Rutherford v. Talisker Canyons Fin. Co., LLC, 333 P.3d 1266
(Utah App. 2014), the Court of Appeals of Utah discusses the
application of the Inherent Risks of Skiing Act (Utah Code Ann.
§§ 78B–4–401 to 78B–4–404) to a situation where a minor ski
racer was injured during practice. In 2006, the Act expands the
definition of scheme to include participation and practicing for
competitions (Utah Code Ann. §§ 78B–4–402(1)(g) (2012)). Here,
summary judgment was denied on the basis that the court
determined that there were disputed issues of material fact
regarding the applicability of the machine-made snow exemption.
The Supreme Court of Michigan in Woodman v. Kera, LLC, 785
N.W.2d 1 (Mich. 2010), found for the

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plaintiff when the injured participant was a minor. The court held
that the waiver signed by a father on behalf of his child was
unenforceable. The child was injured in an indoor play area after he
jumped off a slide and broke his leg. His mother brought an action
on his behalf against the corporate operator of the play area.
G. SOVEREIGN IMMUNITY
Another way for tortfeasors to avoid liability for sports-related
injuries is to plead immunity based on the fact that the particular
activity was protected from liability. These immunities are
designated as either sovereign or charitable. Recently, however,
courts and legislatures have made broad-based attacks against these
doctrines so that in many jurisdictions, public, private and
charitable institutions receive the same status as most other
tortfeasors, that is, they must compensate those who are injured by
their wrongful acts.
Broadly, sovereign immunity provides that a state or its
instrumentalities shall not be subject to suit without its consent.
This immunity relies on several policy considerations including
that as a sovereign entity the state can do no wrong, that public
agencies have limited funds and can expend them only for public
purposes, that public bodies cannot be responsible for the torts of
their employees, and that public bodies do not possess the authority
to commit torts. Immunity in its purest form will protect actions of
all public bodies, including school districts, their employees, school

333

boards, racing commissions, board members of a state university,

etc., in as much as they are agents or instrumentalities of the state
itself.
Although sovereign immunity once provided a broad umbrella of
protection to state and state-related agencies, consent to suit has
been provided by the legislatures in many states in a variety of
ways. Where such consent is not allowed, courts in several
jurisdictions have responded to the criticism of sovereign immunity
by abrogating it through judicial action.
When trying to understand sovereign immunity, it is important to
distinguish between state and municipal entities. Municipal
corporations have a duality which have influenced their tort
liabilities. These corporations are entities that perform both
governmental functions and subdivisions with special local
interests which are comparable to those of a private corporation
and not shared by the state. The doctrine of sovereign immunity
has attempted to respond to this duality. Immunities are provided
for the acts of the municipal corporation while in its governmental
posture, but not when it’s in a corporate posture. Political or
governmental functions can be described as those which are
necessary to the well-being of the community. Therefore, public
education and protecting public health are governmental functions
while mere amusement or entertainment is not.
An example of the governmental-private duality is provided by
cases that turned on the status of the party which is utilizing a
public owned stadium for
 334

sporting events. When a public school is using the stadium, courts

have generally found that the contests are a part of the state’s
educational responsibility and thus are governmental functions to
which sovereign immunity would apply. However, if a public
school leases its stadium, courts have held that through that process
the school has conducted a proprietary activity and will be liable
for injuries sustained as a result of negligent facility maintenance.
One convenient standard in determining whether an event is
governmental or private is the charging of a fee; but usually that is
viewed as only one factor in reaching a determination.
In a Michigan case, when an injured football player brought suit
against both his football coach and a helmet manufacturer for
damages which left him a quadriplegic, the court held that football
coaches were entitled to governmental immunity. The court stated
that a public school in the operation of its athletic program will
include the administration and supervision of football and, thus, is
entitled to governmental immunity. Teachers and their supervisors
are entitled to immunity when their duties are performed within the
scope of their employment. The argument is that a physical
education program, as either part of a general curriculum or as an
extracurricular activity, is in furtherance of and an integral part of
the total public education provided to students. Football is a part of
these day-to-day operations and is therefore immune. Churilla v.
School District, 105 Mich.App. 32, 306 N.W.2d 381 (1981).

335

Similarly, in Illinois, a high school varsity football player brought

an action against the board of education and his coach for injuries
sustained in football. The court held that the coaches were immune
under the school code from liability for ordinary negligence as it
relates to a player’s injuries due to allegedly defective equipment.
Absent willful and wanton conduct in the course of their
supervision, which encompasses inspecting and supplying students
with appropriate equipment, coaches will be immune from liability
for alleged negligence under the Illinois school code.
Spectator brought negligence action against state university,
alleging she was struck in the head and injured by a hockey puck
during college hockey game at university’s arena. The court held
that the service on university of notice of occurrence of injury and
defect was precondition to bringing suit under the public building
exception to government immunity, and university's operation of its
ice hockey program did not constitute a proprietary function, as
would provide an exception under governmental tort liability act to
governmental immunity. Ward v. Michigan State University, 782
N.W.2d 514 (Mich. App. 2010).
Student at state university who was injured during a football
game brought negligence action against coaches and trainers for the
football team. Trainers owed a duty of care that was independent of
their state employment, and thus sovereign immunity did not bar
student’s claim against trainers for breach of this duty; under
Athletic

336

Trainers Practice Act, trainers were licensed and were subject to

administrative discipline for malpractice. S.H.A. 225 ILCS 5/1 et
seq.; 745 ILCS 5/0 et seq. This student failed to establish that team
coaches owed a duty to student independent of their state
employment, so as to avoid application of sovereign immunity.
S.H.A. 745 ILCS 5/0.01 et seq.; Sellers v. Rudert, 918 N.E.2d 586
(Ill. App. 2009).
Former celebrated Texas Tech football coach Mike Leach sued
the school for breach of contract, violation of the whistleblower
statute, and violation of the takings clause. Tech fired the winning
coach on December 30, 2009, two days after suspending him on the
allegation that he mistreated a player who had a concussion. The
Texas Appeals Court dismissed his breach of contract claim
because Tech was shielded by the doctrine of sovereign immunity.
The Court of Appeals, however, allowed Leach the opportunity to
pursue nonmonetary claims against Tech. Leach v. Texas Tech
Univ., 335 S.W.3d 386 (Tex. App. Amarillo 2011).
In UCF Athletics Ass’n, Inc. v. Plancher, 121 So.3d 1097 (Fla.
App. 2013), appr’d in part, quashed in part, and rem’d 2015 WL
2458015 (Fla.), the court evaluated the claims of a University of
Central Florida football player who collapsed and died during
practice after participation in a series of conditioning drills. The
court, held that UCFAA (UCF Athletics Association, Inc.), the
statutorily authorized direct support organization responsible for
administering UCF’s Athletic Department, is immune from suit
based on the issue of limited

337

sovereign immunity under § 768.28(2), Fla. Stat. (2011), as it

focuses primarily as an instrumentality of UCF.
1. DISCRETIONARY ACTS
The doctrine of discretionary immunity allows state officials and
their employees to receive partial immunity but usually only for
discretionary duties as opposed to ministerial duties. Under the
doctrine of discretionary immunity, state officials are not absolutely
immune from suit, but ordinarily will be liable only in the
performance of ministerial duties. The question is what type of
activities are properly construed as ministerial as opposed to
discretionary. Discretionary duties are those which call for the
exercise of the public official’s judgment or discretion; for these
types of activities, he will not be personally liable to an individual
for damages unless he is guilty of a willful or malicious wrong. A
ministerial duty is one in which nothing is left to discretion, that is,
a simple, definite duty arising under and because of stated
conditions as imposed by law. An official duty is ministerial when
it is absolute, certain and imperative, involving only the execution
of a specific duty arising from fixed and designated facts.
The determination of what is discretionary as opposed to
ministerial is often a difficult one. The distinction is nebulous and
abstruse because almost any act involves some aspects of both
freedom of choice and perfunctory execution. Generally, the
answer will be decided after evaluating the nature,

338

quality and the complexity of the decision-making process

involved in that particular responsibility. The question is deciding
whether a teacher’s performance in a physical education course is a
discretionary or ministerial function. If it is discretionary then
defendant is protected by the doctrine of discretionary immunity.
Applicability of this doctrine is not dependent upon whether a
person’s duty requires some degree of judgment and discretion.
The crucial analysis centers on the nature of the act undertaken.
Decisions intended to be protected by discretionary immunity are
those made on the planning level of conduct.
 The doctrine of discretionary immunity is intended to protect
public officials or employees whose policy making duties include
choosing between various alternatives even if one of the options is
to do nothing. If a teacher never engages in the type of decision
making that is relevant to developing and administering a physical
education curriculum, then his negligence will not involve
decision-making on the planning level. Therefore, the teacher’s
activities would be construed as ministerial rather than
discretionary.
In Peters v. Herrin Cmty. Unit. Sch. Dist. No.4, 28 N.E.3d 913
(Ill. App. 2015), a high school football player was injured when he
ran into a bumper that was not visible during a summer camp held
on the high school’s football field. Plaintiff alleges that defendants
were negligent in maintaining their football facility by failing to cut
and mow the weeds where the bumper was located. A local public
entity

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will only lose sovereign immunity protection if their actions

constitute wanton misconduct. “The trial court should review the
record to determine whether the coaches were informed of the
dangerous condition the bumper presented and whether the actions
of the coaches amounted to willful and wanton conduct.” (Peters,
28 N.E. 3d at 922).
2. POLICY CONSIDERATIONS
Traditionally the crown could do no wrong and hence suit against
the crown was not allowed. The primary policy consideration
behind this view was that for governmental officials to do their job
they must be free from the fear of suit.
 At direct conflict with this idea is the equitable principle that
every plaintiff must have his day to plead his case when an alleged
negligent action produces injury. This is especially true in sports
where robust activity is coupled with the possibility of catastrophic
injury. Although the strength of the immunity doctrine has been
decreased by both the governmental/proprietary distinction and the
ministerial/discretionary question, this relic still survives.
Therefore, it is imperative that the first step for plaintiff’s attorney
is to evaluate the status of the immunity doctrine in the relevant
jurisdiction before evaluating a sports injury case that involves a
governmental or charitable institution.
H. CHARITABLE IMMUNITY
Like sovereign immunity, charitable immunity, if applicable, will
provide an umbrella from suits

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against charitable institutions that is comparable to that provided

governmental institutions. Like governmental immunity, the bases
of charitable immunity are large and diverse. The most prevalent is
the concept of a trust fund in which charitable funds are held in
trust for charitable purposes and may not be diverted for other uses.
Another theory is that charities are immune from the doctrine of
respondeat superior and therefore are not responsible for the injury-
causing actions of their employees since no profit is derived from
their work. Under this theory liability can result only from the acts
of the charity itself.
However, even where this doctrine is still applicable it has
exceptions and distinctions which neutralize it to a great extent.
One distinction is that charities may be liable to strangers but
cannot be liable to their beneficiaries, that is, to the recipients of
their charity. Another distinction has been drawn between
employees and non-employees, with only employees allowed to
recover from that charitable organization. Finally, charities have
been held liable for activities which involve non-charitable aspects:
e.g., when admission fees are charged or for those activities that
constitute a nuisance.
I. RECREATIONAL USE STATUTES
A recent addition to the immunity umbrella is the so-called
Recreational Use Statutes (R.U.S.). Although they vary from state
to state, the basic principle is that landowners who allow free

341

recreational use of their property, owe no duty of care to keep their

premises in safe condition or warn of dangerous or hazardous
conditions. However, if a fee is paid for use, then the statute will
not apply. As with sovereign immunity, these statutes offer some
protection from suit for those entities (either public or private) that
perform a “state-like” function, namely, providing the means and
opportunities for the masses to satiate their recreational and
sporting needs.
It is axiomatic that a recreation use statute such as WRSA
(Wyoming Recreational Safety Act, Wyo. Stat. Ann. § 11123),
removes a duty to protect from inherent risks of the sport; however,
it does not bar recovery for all risks. In Creel v. L & L, Inc., 287
P.3d 729 (Wyo. 2012), the court determines whether an inherent
risk of golf caused plaintiff’s head injuries while he was a spectator
at the 2006 Wyoming Open Golf Tournament following his son,
who was a participant. Wyoming’s Recreation Safety Act bars
actions against provider of a sport or recreational activity for an
injury that is caused by a risk that is inherent in the activity. In
Creel, an official urged a participant to tee off, even though other
players were still on the green. The Supreme Court of Wyoming
concludes as follows: “Based on the conflicting evidence and the
reasonable inferences the can be fairly drawn from the record, we
find genuine questions of material fact exist that the jury must
resolve whether L & L [tournament and course operators] increase
the risk that James Creel would be struck by a golf ball, beyond the
risk inherent in the sport . . . ” (Creel, 287 P.3d at 744).
 343

CHAPTER 14
WORKERS’ COMPENSATION
Usually, the first step in recovering for an injured athlete is to sue
in tort. However, there is a parallel universe created by state
statutes that provides for employees to secure compensation for
employment-related injuries. This alternate form of recovery is
workers’ compensation. The relevant statutes will differ from state
to state. Even though a singular description does not exist, the
following is an overview of the basic attributes of the various state
laws.
A. PROFESSIONAL SPORTS
Professional athletes and other employees of professional teams
will usually come under the protection of their particular state’s
workers’ compensation statutes. However, there are certain states
that specifically exclude professional athletes from coverage.
As a general caveat, the basic requirements for any workers’
compensation statutes is usually that the person must be an
employee who was injured by an accident while involved in a job-
related function. Workers’ compensation will also generally be the
exclusive remedy against the employer for that injury if the injury
is covered under the statute; if that is true then the employee will
not have the option to bring a judicial action against either his
employer or his co-workers for injuries that result from the same
accident.

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 For injuries to professional athletes, it must be determined
whether the injured person is an employee. For an injury to a horse
jockey it was held that because he was employed and paid by the
job as an independent contractor, he did not come under the control
of the owner or trainer and thus was not an employee. Since he was
not an employee he was not covered under workers’ compensation.
Munday v. Churchill Downs, Inc., 600 S.W.2d 487 (Ky.App.1980).
Another obstacle for the professional athlete is whether the event
that created the injury was an accident. This can be an interesting
question in physical sports such as football. Where the injury
occurred to an offensive guard while blocking, that event could not
be construed to be an accident under the applicable workers’
compensation statutes. That was because the relevant statute only
protected against injuries that were the result of an accident, that is,
trauma from unexpected or unforeseen events in the usual course of
the employee’s occupation. This statute did not contemplate that
the deliberate collision between human beings during a
professional football game was an accident, or that the injury, in the
usual course of his occupation was caused by an unexpected event.
Palmer v. Kansas City Chiefs Football Club, 621 S.W.2d 350
(Mo.App.W.D.1981).
In Bayless v. Philadelphia National League Club, 472 F.Supp.
625 (E.D.Pa.1979), a former pitcher brought an action against a
professional baseball team seeking damages for mental illness
allegedly

345

caused by the team’s administration of drugs following complaints

of severe back pain. Plaintiff based his claims on a breach of
defendant’s contractual duty to provide him with sound medical
care in the event that his skills were impaired by injury. The court
held that the pitcher’s exclusive remedy was workers’
compensation. In the athlete’s complaint, he averred that his injury
was caused by the club’s failure to provide medical care thus
placing himself within the ambit of the Pennsylvania Workmen’s
Compensation Act.
The pitcher then attempted to skirt coverage of the Act by placing
his injury in the same category as an exception for exposure to
diseases whose gradual progression would not constitute an
accident. However, the court disagreed on the grounds that the
pitcher’s complaint established that the onset of mental illness was
directly traceable to treatment received from the club and not a
gradual progression of a disease that preexisted the club’s
administration of the drugs. The court also held that the Act applies
equally to high paid professional athletes as well as lower paid
athletes; it applies to all athletes regardless of their earnings.
However, in Carroll v. New Orleans Saints, case no. ADJ
2295331 (ANA 0397551), (Calif. Workers’ Comp. Appeals Bd.
2013), the worker’s compensation remanded the case for factual
findings on the jurisdictional exception, including whether the
Bengals’ coverage should be determined under Ohio law, instead of
California law. Wesley Carroll was a wide receiver for the

346

Bengals and the New Orleans Saints from 1991 to 1994. Like many
retired players, Carroll chose to file in California for his
“cumulative” because of its favorable workers’ compensation laws,
even though he only played three games and had three practices in
California.
 The Miami Dolphins football team, in a workers’ compensation
suit against them by former wide receiver Kendall Newson, was
ordered to not dispute Pennsylvania jurisdiction. Newson was
injured in a 2005 preseason game at Heinz Field in Pennsylvania,
which like California is user-friendly for compensation claimants.
Miami Dolphins, Ltd. v. Newson, 783 F.Supp.2d 769 (W.D. Pa.
2011). However, in a lawsuit filed by Hall of Fame football player,
Bruce Matthews, the court upheld an arbitrator’s decision that
Matthews could pursue a workers’ compensation claim in
California, but that the claim must proceed under Tennessee law.
The Matthews court, (NFLPA v. NFL Management Council, 2011
WL 31068 (S.D. Cal.), aff.d sub nom Matthews v. NFLMC, 688
F.3d 1107 (9th Cir. 2012)), ultimately confirmed arbitration award
preventing the players from seeking California Workers’
Compensation benefits.
In Atlanta Falcons Football Club, LLC v. National Football
League Player’s Ass’n, 906 F.Supp. 2d 1278 (N.D. Ga. 2012), the
Falcons in Georgia moved to confirm an arbitration award that
orders certain players to cease and desist from bringing claims
under California’s Workers’ Compensation regime. An Arizona
Cardinal

347

applicant heard from another former NFL player that he could file a
claim for cumulative industrial injury in California even though he
played only seven games in California. The court held that the
former football player’s forum selection clause in his Cardinals
contract was enforceable, and thus Arizona is the most convenient
forum for workers’ compensation disputes. McKinley v. Arizona
Cardinals, 2013 WL 183945 (W.C.A.B.).
 B. COLLEGIATE SPORTS
In professional sports the injured athlete is an employee of the
team. A more ambiguous situation occurs when the injured athlete
is a member of a college sports team. The question then is whether
the injured athlete is an employee for purposes of workers’
compensation. If the athlete was a walk-on and had no financial
relationship with the school, the courts will not view that person as
an employee for workers’ compensation purposes. However, some
courts will view the athlete as an employee if the athlete is paid in
anyway whatsoever for his participation. For scholarship athletes,
the general view is that if there is a contract to pay for the athlete’s
participation, then there is a relationship on which to base
compensation coverage. If there is a continued receipt of a job, free
meals or money, and it is contingent upon the athlete’s continued
participation in a sport, then a contract to play that sport has been
created. Since there is a contract of employment, then
compensation coverage will exist for student-athletes who are
injured in accidents

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during the course of their employment as an “athlete.”

C. EMPLOYER-BASED SPORTS
Another frequently used category of sports compensation
plaintiffs covers those that are injured in employment-related
sports, such as team softball or bowling leagues. Employment-
related sporting activities that have been brought under the
coverage of workers’ compensation include those which occur on
the jobsite during job hours, those which are controlled by the
employer who furnishes uniforms, league fees, equipment and
encourages participation; and those that the employer will receive
direct benefit from, such as advertisement, public relations or
improved customer relations.
The key to coverage is whether the employer has brought this
sporting activity within the course of employment. If there are few
or no indices that bring the activity under the course of
employment, workers’ compensation will not be applicable. This
includes those sports-related activities that are significantly
employee-generated, have little contact with the employer and are
basically an ad hoc employee recreational activity. However, the
opposite is true in those situations when the employer actively
encourages and provides for participation in the sporting enterprise.
The more indices that show that the activity is within the course
of employment then there is more of a chance that the court will
find that coverage applies. Indices can include that the team was

349

entered in an industrial league and played against teams of other

employers who were involved in a similar occupation as defendant
employer; that a championship trophy is displayed on the
employer’s premises; that the employer paid the entrance fee to the
league; that the employer required bats, balls, and other equipment
to be kept on the company’s premises; that equipment is paid for by
the employer and that the name of the company was displayed on
the uniforms of the athletes; and that the uniforms were paid for by
the employer and/or that the employer paid towards the costs of
each uniform. Other indices would be that the umpires of each
game were paid for by the employer; that a raffle was allowed to be
held in cooperation with the employer and the members of the team
on the employer’s premises during working hours in order to help
gain more financial support for the team; that schedules were
passed out at the plant, copies of which were given to the
employer; and that when the employer withdrew support from the
team, it resulted in the disbanding of the team for lack of support.
All these factors are the type which will be used in the
determination of whether the activity falls within the course of
employment. Scott v. Workmen’s Compensation Appeal Board, 113
Pa.Cmwlth. 80, 536 A.2d 492 (1988).
D. NON-PARTICIPANTS
There is always the possibility that coaches, physical education
teachers, team managers, stadium attendants, trainers, umpires,
referees, and similar athletic personnel will also be employees

350

and because of that fall under the coverage of workers’

compensation statutes for job-related injuries. Because of their
proximity to the field of action, trainers, referees and coaches are
the most likely non-athletic personnel to be injured and thus apply
for coverage.
Trainers and referees are usually not viewed as employees but
instead as independent contractors who are not covered under the
applicable workers’ compensation statute. The question is who has
the right to control the details of another’s performance. If there is
control of the details of the performance of the referee or the
trainer, then that could be used to show the necessary indices to
prove employee-status.
Coaches, on the other hand, are usually employees of the school
district or team. However, in those situations where the coach is not
a salaried employee per se, it must be determined what type of
relationship exists between the coach and the supervising authority.
 351

CHAPTER 15
CRIMINAL LIABILITY
A. VIOLENCE IN SPORTS
There is no question that some degree of violence is a part of
sports. This is especially true in contact sports. This is even more
true in the extreme contact sports, like football and hockey. There
is some degree of violent contact that is unavoidable in any contact
sport. However, arguably there is an unnecessary amount of
violence in today’s professional sports. This excessive violence has
spilled over to amateur sports.
One attempt to deter unnecessary violence is through league and
disciplinary rules in professional sports. Each team and league
through their SPK and their collective bargaining agreement
(c.b.a.) have established rules and procedures to penalize and
control violence that is deemed to be unnecessary and not an
inherent part of the sport. These procedures include an independent
arbitrator to decide if there is a conflict between the player and
league as regards disciplinary disputes. But, these documents
contain ambiguous terminology which does not precisely reflect
the degree that violent behavior cannot exceed. For example, the
standard language is “contrary to the best interests of the game.”
Subjective language of this type does not clearly define the
parameters of acceptable behavior.

352
 Another way to curb violence is civil actions for injuries that
occur through participant contact. These tort cases are few and far
between, and they usually revolve around principles of negligence
and/or assault and battery. They have not effectively decreased the
amount of unnecessary violence that is evident today in
professional sports.
A third way to deter violence is to punish the offenders
criminally. Criminal sanctions might be useful in this endeavor if
one accepts that the rationale behind criminal punishment is
deterrence. As an example, other athletes would be on notice that
incidents of that type will no longer be tolerated or unpunished.
The trial of a professional athlete would be a highly publicized
media event which would be both embarrassing to all parties and
expensive. The time lost through litigation and possibly a jail
sentence would be irretrievable. The end result is that the athlete’s
career might be significantly altered or even destroyed.
The threshold question that arises when one contemplates
criminal sanctions for violent conduct is to determine if the facts
require the imposition of criminal sanctions, i.e., if the particular
penal laws in question are intended to be applied to conduct in
sporting events. Next, one needs to concentrate on the elements of
the particular crime, for example, assault and battery, or
manslaughter, and then to ascertain if these elements were present
at the time of the incident. It must be determined if the accused had
a defense. The standard defense is that the injured person consented
to the injury by voluntary

353

engagement in that sport. Also, if the conduct was provoked, a self-

defense argument might arise.
 In City of Cleveland v. Swiecicki, 149 Ohio App.3d 77, 775
N.E.2d 899 (2002), defendant was convicted of disorderly conduct
and resisting arrest in connection with his heckling of a
professional baseball player. The Court held that words uttered by
defendant to professional baseball player did not rise to level of
criminal disorderly conduct, and defendant’s heckling did not
provide a reasonable police officer basis to believe that it
constituted a criminal offense, as was required to convict defendant
of resisting arrest.
The major “sporting event” in 2004 was the brawl that occurred
during an NBA game between the Indiana Pacers and the Detroit
Pistons on November 19, 2004. One Pacer, Ron Artest ran into the
stands after he was pelted with ice and liquid. Commissioner Stern
levied the harshest penalties ever and some players and fans were
charged with assault and battery.
Defendant youth football coach of 10-year-old boy participated in
a scrimmage with another team of 11-year-old boys. During the
scrimmage, an 11-year-old allegedly hit several 10-year-olds after
the play had been completed. As a result of these actions, the coach
defendant ran across the field and knocked the 11-year-old down.
“The judgment convicted defendant, upon a jury verdict, of
endangering the welfare of the child and in the second degree.” On
appeal, defendant contends that the District Court erred in
declining to charge the jury with the

354

defense of justification. The court found “that the people failed to

prove, beyond a shadow of a doubt, that defendant knowingly acted
in a manner likely to be injurious to the physical, mental or moral
welfare of the minor.” The “conviction is modified by vacating the
conviction of endangering the welfare of a child and dismissing the
count of the accusatory instrument charging that offense.” People v.
Finneran, 43 Misc. 3d 34, 984 N.Y.S. 2d 539 (App. Term 2014).
Violence in sports certainly includes violent athletes. Former
Patriots’ tight end Aaron Hernandez is probably America’s only
alleged serial killer who received a $40 million contract extension.
The Patriots, symbolizing the “Patriot Way,” released Hernandez
within hours of his arrest. He was charged with the murder of his
former friend and is under investigation in two more killings. Crim.
Compl. & Warrant Docket no. 1334CR002057, Trial Court, Mass.,
Dist. Crt. Dept. (6/26/13).
B. CRIMINAL ACTION GENERALLY
The philosophy behind criminal law is based on society’s need to
be free from harmful conduct. Criminal law defines criminal
contact and prescribes the punishment to be imposed on persons
convicted of that proscribed conduct. Violence and possibly
criminal conduct, however, is looked on differently when that
violence occurs in a sporting or recreational event. That is because
the harm and violence are confined to the participants who
obviously know and assume the risks that are

355

inherent to the game. Also the innocent public is not subjected to

that risk of physical harm. The question becomes whether the
violent conduct is accidental or within the rules of the particular
sport or criminal conduct. The crux is that certain sports are
extremely physical and violent physical conduct is part of the sport.
For battery to be a crime, there must be illegality. Yet, that element
is to some extent negated in conventional sports. However,
arguably the most onerous and heinous acts that occur in contact
sports such as football, hockey and basketball extend beyond any
possible justification that is built within the scope of the game.
The criminal defendant will use consent and self-defense as
defenses in a criminal prosecution that accrues from sports
violence. Consent usually is not a defense to a criminal act since
one cannot consent to be a victim. In the crime of battery, consent
of the victim is not an element, but in certain battery cases, the
unlawful force application element is not present because of
consent. Consent to application of force per se is not unlawful. The
difficult problem with the consent defense is establishing a
demarcation between reasonably foreseeable hazards that one can
consent to and unreasonably foreseeable hazards to which one
cannot consent. One can knowingly consent to the normal violence
associated with a sport, whereas, one cannot knowingly consent to
non-normal physical contact. To use the consent defense in this
context, one must ascertain for each particular sport the type of
violence that is foreseeable and thus capable of consent.

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On January 22, 2009, in a nationwide first, Jefferson County

Kentucky prosecutors charged a high school football coach with
reckless homicide resulting from the death of a 15-year-old
sophomore who died as a result of a heat stroke during what was
termed by prosecutors as a barbaric practice in 94° heat. The
coach’s trial began on August 24, 2009, and the jury returned its
verdict on September 17, 2009. After only 90 minutes of
deliberation, they found him not guilty. See DesAutels, “Changing
the Play: Football and the Criminal Law After the Trial of Jason
Stinson,” 8 Willamette Sports L.J. 29 (Fall 2010).
C. INHERENTLY VIOLENT SPORTS
 In inherently violent sports, the question is to what type of violent
conduct is consent a defense. Consent is arguably a defense to
criminal charges that arise from injury so long as it is a reasonably
foreseeable hazard of that sport and not a result of intentional
conduct that is not reasonably related to that particular sport.
Although there is no direct American authority on point, the
situation where consent would not be a defense is arguably the type
of unforeseeable and unexpected punching incident that occurs
every once in a while in professional basketball. An athlete would
arguably be criminally responsible for an intentional and reckless
act. As regards the consent defense, an athlete would not be
deemed to consent to intentional or reckless acts that are not
reasonably related to the conduct of the particular sport.

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A certain degree of consent to violent behavior and contact is

expected in professional contact sports. Consent is an effective
defense to conduct that does not threaten or cause serious injury or
to reasonably foreseeable conduct that results in reasonably
foreseeable harm. Therefore, in the attempt to prove that plaintiff
did not consent to defendant’s violent conduct, one must prove that
defendant’s behavior was not or could not have been reasonably
foreseeable by the plaintiff. There is a difficulty in distinguishing
between reasonably foreseeable conduct and injurious non-
foreseeable harmful conduct; this difficulty as a rule will
discourage athletes from seeking criminal charges against fellow
participants and has added to the dearth of criminal prosecutions in
sports cases. If criminal prosecutions are going to be regularly
pursued in sports that have an inherently violent nature drawn into
their very existence, like football and hockey, it is essential to
define and ascertain the acts that will incur criminal penalty.
Currently, there are no neat and predictable lines as to when a
certain act will go beyond the parameters of the game and the rules
and be eligible for criminal sanctions.
D. BATTERY
Battery is the criminal offense that is most usually applicable in
cases of sports violence. A battery is an unlawful application of
force to the person of another that results in bodily injury. Battery
possesses an element of unlawfulness and that is the key to the
question of whether battery is

358

relevant or not in the sports arena. Society and the criminal codes
have made sports violence an exception from criminal laws by
treating it as lawful. The type of activity that is unlawful on a city
street might be entirely lawful when used in a professional football
game. The elements of battery are a guilty state of mind, an act, a
physical touching of a victim and causation. Battery’s state of mind
does not require actual intent. Criminal negligence or a conscious
disregard of known and serious risks will be sufficient. Both states
of mind allow for aggravated battery and will punish battery as a
felony when the use of a deadly weapon or the causing of serious
bodily injury is a part of the criminal act. Deadly objects can be
ordinary objects if they are used in a way that may cause death. For
example, hockey sticks or baseball bats, under certain
circumstances, could easily qualify as deadly objects.
In Goff v. Clarke, 302 A.D.2d 725, 755 N.Y.S.2d 493 (2003), a
varsity basketball player brought personal injury action against
high school basketball coach, alleging he was hurt during an
altercation that occurred while the two were waiting for practice to
begin. The Court held that triable issue of fact as to whether contact
between high school basketball coach and varsity basketball player
during physical altercation that occurred while the two were
waiting for practice to begin was offensive or whether it was jovial
in nature, precluding summary judgment.

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Former major league infielder José Offerman lost his cool and
charged the mound swinging his bat after being struck by a pitch in
a minor league baseball game while playing for the Long Island
Ducks. The opposing catcher took after Offerman and was struck
by a bat causing severe concussions. Offerman’s battery against the
pitcher was transferred to the catcher. But, a genuine issue of
material fact exists as to preclude summary judgment against the
Ducks on the theory of respondeat superior. The question is
whether charging the pitcher with his bat after being struck by a
pitch was so unexpected as to be outside the scope of Offerman’s
employment with the Ducks. Nathans v. Offerman, 922 F.Supp.2d
271 (D. Conn. 2013).
Two juveniles were playing flag football during a high school
physical education class and although they were both on the same
team and both receivers, they somehow collided with each other.
The collision knocked T.H. to the ground and made him cry so hard
he struggled to speak or breathe. The other student was charged
with assault. T.H. testified that he was not blocking the other
student’s path and he ran “straight at” and “head-on” into T.H. The
flag football rules prohibit tackling or hitting other players. The
court affirmed the decision to convict a defendant because the
incident was beyond an accident to almost malicious in nature. In
re Andrew D., 2011 WL 5299445 (Ariz. App.).

360
 E. THE CANADIAN APPROACH
American courts have been very hesitant to cross the line between
physical contact that is a part of violent sports and that type of
contact that is deemed to be criminal behavior. However, in
Canada, criminal prosecutors have used criminal laws much more
frequently against athletes accused of violent contact towards
fellow players. This is especially true in hockey because of its
popularity and the dangerousness that is inherent in the use of ice
skates and hockey sticks. There have been numerous criminal
convictions for offenses that involve player to player violence in
Canada, as opposed to a near absolute dearth of reported cases in
the United States.
As in the United States, the major problem that Canadian courts
have faced is the status of the consent defense. The statutory
definition of assault in Canada specifies that the intentional
application of force to the person of another must be without that
person’s consent; a finding that there was consent will negate a
necessary element of this offense. Three issues have evolved in the
consent defense in reported Canadian cases: consent implied by
participation, consent implied by specific acts and a public policy
limitation on ones’ ability to consent.
Self-defense is also a tool that is commonly used by defendants in
Canadian criminal prosecutions for assault and battery. A defendant
may use whatever force is reasonably necessary to repel an attack;
this is especially logical in the sport of hockey where one

361

is attacking with a hockey stick while his opponent is using his

stick to parry blows and thrusts.
 In the case of Regina v. Maki, 14 D.L.R.3d 164 (1970) and
Regina v. Green, 16 D.L.R.3d 137 (1970), defendants were able to
successfully assert the defense of self-defense in hockey injury
prosecutions. In Green, the court found that plaintiff did indeed
consent to being hit with a glove during a hockey match. An
incident of this type was found to be a common occurrence in that
sport. The court, however, brushed over the consent defense and
justified defendant’s action by the use of a self-defense explanation
which ended with the court’s conclusion that defendant did nothing
“more in the circumstances than protecting himself.”
For a successful assertion of self-defense, defendant must show
that he was not the aggressor. This creates a problem in sports
injury cases since the athlete will often fail to qualify as a non-
aggressor. Therefore, self-defense will be unavailable in the
majority of sports violence cases.
In the Canadian case of Regina v. Ahmed (Bobby), 2001 WL
31397586 (CA (Crim Div) 2002), defendant/soccer player initially
was involved in a scuffle with the opposing goalkeeper and trouble
broke out involving both teams. During that initial trouble the
defendant punched the goalkeeper in the face. He broke the
goalkeeper’s nose and caused it to bleed profusely. The referee then
intervened. He sent the defendant off the pitch and in doing so held
up a red card. With the red card aloft, the defendant punched the
referee in the face. The referee

362

contended that was done with a fist, but the defendant said it was
with an open hand. In any event, he caused bruising and soreness to
the referee’s left check. That act constituted common assault.
 The defendant then left the pitch. There was approximately a 30
second intermission. He walked around behind the goal where the
goalkeeper was receiving treatment for his broken nose. The
defendant then moved quickly towards the goalkeeper and kicked
him with force in the face.
The goalkeeper’s injuries were serious. He spent three nights in a
hospital, where he was treated for a broken jaw, a broken eye
socket and the broken nose. His jaws were wired together and three
metal plates and 13 screws were inserted. When arrested some
three months later the defendant admitted pushing the referee. He
denied kicking the goalkeeper. The referee did not consent to any
form of physical contact, and in this particular case he was
particularly defenseless, having one arm raised in the air with a red
card in it. So far as the goalkeeper is concerned, the more violent of
the two blows was inflicted when he was off the field of play, lying
on the ground completely defenseless behind the goal. If there is
some lesser penalty applicable to those who are actually engaged in
sports, it would not be available here for this defendant. Defendant
has been violent and unruly on numerous occasions in the past;
accordingly, his appeal was denied and his conviction for causing
grievous bodily harm was affirmed.
 363

CHAPTER 16
AMATEUR SPORTS
A. GENERALLY
The term, “amateur athlete,” is a true oxymoron. Amateurism was
at one time a pure recreational outlet for the upper class. Today, all
amateur sports are tinged with some shadings of professionalism.
The distinction between amateur and professional athletes is
ambiguous and uncertain. Amateur athletes of the past did not
expect remuneration in any form for their athletic endeavors.
However, this is certainly different today: for example, many
college athletes are supported by scholarships. Also, many college
athletic programs are a grooming ground for professional sports.
The student athlete is subject to rigid rules, requirements and
restrictions.
B. ADMINISTRATION
Amateur sports can be divided into two basic forms: restricted
competition and unrestricted competition.
Restricted competition includes high school and collegiate
competition. It means that competition is restricted to essentially
the same groups at different levels. Administratively, competition is
controlled and organized by athletic conferences or associations or
leagues which encompass high schools and colleges. These entities
establish rules of competition and organize the means of scheduling

364
competition within these groups. Part of their function is to
ascertain and establish participant eligibility. These entities are
established to insure that their members comply with pertinent
rules and regulations; that is, they will determine if inappropriate
conduct has occurred. They will also impose sanctions if applicable
to either the individual athlete or the school.
Unrestricted competition, on the other hand, is open to all
athletes. An example would be Olympic competition, which in the
United States is controlled by the United States Olympic
Committee (USOC). This type of competition allows competition
among all types of people and groups and is not restricted by age or
college or other restrictive criterion.
C. STATUS OF ATHLETE
What is amateur sports turns on the status of the amateur athlete.
If one is an amateur then one cannot by definition also be a
professional. But the applicable categorizations are ambivalent,
especially in the context of collegiate sports where a well-known
amateur athlete can also be a quasi-professional since he is under
scholarship and perhaps creating revenue in other ways. The
definition of an amateur is defined by the governing body of that
particular sport and for that particular athlete. The definition of an
amateur athlete may change from one organization to another. For
example, it is possible that an individual can be viewed as an
amateur under the rules of the USOC

365

but not recognized as an amateur under NCAA rules.

D. RULE-MAKING
 The courts are generally reluctant to overrule the rules,
regulations and restrictions of the athletic associations as regards
eligibility, participation and discipline of their members. Generally,
courts will not interfere with the internal affairs of voluntary
associations. Unless there is mistake, fraud, collusion or
arbitrariness, the decisions and the rules of the governing body will
be accepted by the courts as conclusive.
Voluntary associations may adopt reasonable bylaws, rules and
regulations which will be valid and binding on their members
unless their rules violate law or public policy. Courts eschew the
responsibility of inquiring into the expediency, practicability or
wisdom of these rules and regulations. Courts will not substitute
their interpretation of an association’s rules and regulations for
those interpretations that are placed on these rules by the
association itself, so long as the association’s interpretations are
fair and reasonable.
In Miss. High Sch. Activities Assn. v. R.T., 163 So.3d 274 (Miss.
2015), the Supreme Court of Mississippi asserted that the high
school activities association has a duty to follow their own
eligibility rules. The court decided that a high school athlete, a star
quarterback, who was denied eligibility due to a transfer rule, has
standing to challenge adverse

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decisions concerning the student’s eligibility to participate in high

school athletics.
E. NCAA
The NCAA is only one of a very large number of groups of
governing bodies that control athletic participation in amateur
sports; however, regarding college sports, it is easily the most
important one and perhaps it is the most important governing body
in sports of any type at any level. The NCAA is controversial in
that many critics view it as paternalistic. There has been much
debate, for example, on the various propositions (e.g., proposition
42, proposition 48 and proposition 16) which limit academic
eligibility based on achievement on standardized tests and high
school grade point averages in core courses.
The NCAA was founded in the early 1900s and throughout the
years has offered championships in a variety of sports. It eventually
obtained football television contracts, and accordingly, greatly
increased its financial and regulatory powers. It is a voluntary,
unincorporated association of colleges of which approximately 50
percent are state supported. At the present, the NCAA is composed
of about 1300 member schools; all schools that are accredited by a
recognized academic accrediting agency will meet NCAA
standards and may become a member. Not only does it sponsor
national championships but it also possesses the authority to make
and enforce rules and regulations. The purpose of the NCAA is to
formulate policy and

367

regulations that in essence govern almost all aspects of

intercollegiate athletic participation.
The NCAA is governed by a large and detailed compendium of
rules and regulations. This compendium, or manual, contains the
constitution and bylaws, as established at the annual convention of
its members; it also contains interpretations and executive actions
that emanate from these conventions. In between the annual
conventions, NCAA affairs are controlled by a council, its
executive committee and a paid staff. The interpretation and
enforcement of the large body of NCAA rules, regulations and
precedents are interpreted, enforced, and reviewed by legislative
assistants and enforcement personnel; attorneys are involved when
and if litigation occurs.
The NCAA general policies were formally promulgated at their
annual convention. However, it is no longer one school, one vote.
The governing structure is changed so that policy is now
implemented through a series of levels (see enclosed chart for the
procedures that make up the process for approving legislation). It
has a professional staff with headquarters in Indianapolis. When the
convention is not taking place, policy is established, controlled, and
directed by the NCAA council which is elected by the entire
membership at the annual meeting.
In NCAA v. Lasege, 53 S.W.3d 77 (Ky.2001), the university and
student athlete who had been declared ineligible to compete in
intercollegiate basketball by NCAA, sought a temporary injunction

368

requiring the NCAA to reinstate the student’s athletic eligibility.

The Circuit Court entered the injunction and banned the association
from imposing future restitution sanctions if the injunction was
subsequently reversed. The Supreme Court of Kentucky, however,
held that the injunction was an abuse of discretion and the trial
court could not enjoin NCAA from imposing restitutionary
sanctions pursuant to bylaw which university agreed to abide by.
In Bloom v. NCAA, 93 P.3d 621 (Colo.App.2004), a state college
football player and professional skier sought preliminary relief,
enjoining college and NCAA from application of its bylaws, which
restricted him from engaging in paid entertainment and commercial
endorsement work in connection with his skiing career. The Court
held that football player had standing as a third-party beneficiary to
challenge bylaws, but he was not entitled to injunctive relief, as he
failed to demonstrate that there was a reasonable possibility of
success on the merits.
In NCAA v. Yeo, 114 S.W.3d 584 (Tex.App.—Austin 2003), an
intercollegiate swimmer and former Olympian from Singapore who
transferred from Cal-Berkeley to the University of Texas ran afoul
of the NCAA transfer rules. The Court, however, found that the
swimmer was denied due process. The Court held that she had a
constitutionally protected property interest in her athletic reputation
as an Olympian swimmer, which was formed prior to her
enrollment at Cal-Berkeley.

369

Joscelin Yeo had an established liberty interest in her reputation as

an athlete and was thus entitled to due process. The University of
Texas, as a state actor, had an obligation to protect that liberty
interest; the university breached this duty by failing to provide
notice (of the problems with her eligibility) to Yeo.
On January 10, 2005, the NCAA Division I Board of Directors
adopted a new academic reform structure, the Academic
Performance Program, which will impose “contemporaneous
penalties” on Division I college sports teams whose athletes’
performance in the classroom falls below a new minimum
standard. The Board approved use of the Academic Progress Rate,
which is based on individual academic performance and retention
over a five-year period and will apply to all Division I men’s and
women’s sports starting in the 2005–06 school year. If a team’s
APR falls below the minimum cut score of 925, roughly equivalent
to an expected fifty percent graduation rate, the NCAA will
penalize the offending team by reducing its available scholarships
by up to ten percent. Currently, the NCAA estimates that 7.4% of
all Division I sports teams, including 30.7% of football, 23.9% of
baseball, and 20.1% of men’s basketball teams do not meet the
APR cut score of 925. The NCAA also estimates that 51.2% of the
325 Division I schools have at least one team that does not
currently meet the standard. The Committee on Academic
performance is drafting the second phase of the program,
“historical penalties,” which will be

370

more severe and directed at schools with ongoing noncompliance.

Davis v. NCAA, 2011 WL 2531394 (N.D. Cal.), is a purported
civil-rights class action in which plaintiff’s challenged enactments
and application of NCAA Division I Bylaw 14.5.2, which governs
eligibility of certain transfer students from athletic participation
and scholarship. At the time of matriculation from high school,
each student athlete is determined to be either a “qualifier” or “non-
qualifier.” “If a non-qualifier attends a two-year college
immediately after high school, but later wishes to transfer to a four-
year Division I school and participate in athletics, their eligibility is
determined by Bylaw 14.5.4.2. This bylaw was amended in August
2009. Before the amendment, it required the student to have
(1) graduated from the two-year college, (2) completed a minimum
of 48 semester hours or 72 quarter hours of transferable degree
credit, (3) spent at least three semesters or four quarters as a full-
time student and (4) achieved a grade point average of at least a 2.0
on 4.0 scale. The August 2009 amendment added the additional
requirement that the student’s transferable degree credit earned at
the two-year college must include (a) six semester hours or eight
quarter hours of English credit and (b) three semester hours or four
quarter hours of math credit. This additional requirement generally
translates to two English classes and one math class.
If a non-qualifier attends a four-year college immediately after
high school and later wishes to

371

participate in a Division I program, his or her eligibility is

determined by different bylaws. To become eligible for athletic
scholarships and participation, the student must complete one year
in residence at the four year school during which he or she earns a
minimum amount of degree credit and achieves a minimum grade
point average.
Similarly, if a qualifier attends a two-year college immediately
after high school, yet another set of rules govern his or her
eligibility to participate in Division I athletics upon transfer to a
four-year Division I school. The student must spend at least one
semester or quarter as a full-time student at the two-year school,
and he or she must earn a minimum amount of degree credit and
achieve a minimum grade point average. The student, however,
need not stay at the two-year school long enough to earn a degree,
and no substantive curriculum requirements apply to the
transferable credits earned there.
Plaintiff seeks to represent a class of non-qualifier student athletes
who enrolled in a two-year college after the August 2009
amendment bylaw 14.5.4.1 took effect. Plaintiffs wish to transfer to
a four-year Division I colleges and participate in their athletic
programs. Plaintiffs, however, failed to satisfy the academic
requirement of bylaw 14.5.4.2 and therefore are not eligible to
receive athletic scholarships or participate in athletic program at
Division I schools.
Arrington v. NCAA, 2011 WL 4374451 (N.D. Ill.), is the ongoing
class action lawsuit against the

372

NCAA. Basically, it seeks to assist the NCAA in readjusting their

priorities from money to safekeeping their young student-athletes
from premature dementia. The lawsuit takes particular delight in
emphasizing the many reputable concussion studies that the NCAA
has ignored. The chief contentions of the original class action
complaint as explained in their “Nature of the Action” are as
follows:
1. For over 30 years, the NCAA has failed its student-athletes—
choosing instead to sacrifice them on an altar of money and
profits. The NCAA has engaged in a long-established pattern
of negligence and inaction with respect to concussions and
concussion-related maladies sustained by its student-
athletics, all the while profiting immensely from those
student-athletes.
2. Specifically, the NCAA has failed to address and/or correct
the coaching of tackling methodologies that cause head
injuries; the NCAA has failed to implement system-wide
“return to play” guidelines for student-athletes who have
sustained concussions; the NCAA has failed to implement
legislation addressing the treatment and eligibility of student-
athletes who have sustained multiple concussions in the
course of play; and the NCAA has failed to implement a
support system for student-athletes who, after sustaining
concussions, are left unable to
 373

either play football or even lead a normal life.

3. On average, the NCAA makes over $740 million in revenue
each year. Unlike professional sports organizations, the
NCAA does not use revenues to pay its athletes, nor does the
money go towards pensions or medical benefits for post-
collegiate athletes. The NCAA gives no medical or financial
support to post collegiate student-athletes who sustained
concussions while playing an NCAA sport and who then
cope with the costs and care needed resulting from their
injuries.
4. The NCAA’s conduct is particularly egregious in light of the
fact its policies and procedures—or lack thereof—leave
student-athletes like Plaintiff and members of the below-
defined Classes inadequately protected from sustaining,
monitoring, and recovering brain injuries at a particularly
early and vulnerable point in their lives. Unlike professional
athletes, who at least have resources to pay for medical care
necessitated by head injuries caused during their professional
careers, collegiate players typically range in age from 18–23
and are just beginning their adult lives. For each NCAA
student-athletes, including Plaintiff and the putative Classes,
these injuries have long-term, debilitating effects, ranging
from an

374

inability to finish their education, to loss of memory, to

depression, and early-onset dementia.
 5. Accordingly, this nationwide class action seeks medical
monitoring and financial recovery for the long-term and
chronic injuries, financial losses, expenses and intangible
losses suffered by the Plaintiff and members of the Classes
as a result of the NCAA's carelessness, negligence, and
concealment of information.
The NCAA is apparently shaken by court decisions that
temporarily allow unions (See Northwestern University and
College Athletes Players Association (CAPA), Case 13–RC–
121359 (NLRB, Region 13, March 26, 2014) rev’d (NLRB, Aug.
17, 2015)) and erode their treasured idea of “amateurism” by
allowing (temporarily) cash payments to some collegiate athletes
(See O’Bannon v. National Collegiate Athletics Association, 2014
WL 3899815 (N.D. Cal. 2014), aff'd in part and vacated in part,
802 F.3d 1049 (9th Cir. 2015)). In other disturbing developments to
the NCAA's “plantation system” “[a] day before Wilken’s ruling
[in O’Bannon], the N.C.A.A. Division I board of directors granted
greater autonomy to its five wealthiest conferences. The move
allows the elite conferences to make their own rules on several
issues.” (William C. Rhoden, “With Judge’s Rebuke, a System
Built on Hypocrisy is Wobbling,” N.Y. Times at Sp5 (Aug. 10,
2014).

375

In the Appendices, we have included the Knight Foundation

Commission on Inter-Collegiate Athletics. It sets the standards that
should be effectuated if there’s any hope to bring any real change to
big-time collegiate athletics.
 377

CHAPTER 17
ELIGIBILITY
A. GENERALLY
The key to amateur sports is the question of eligibility. Eligibility
is the decision by the athletic governing body of whether a
particular athlete or team is eligible to participate in a specific sport
or a specific event. Establishing eligibility under a particular rule or
bylaw is the province of the applicable governing association. The
question is whether a denial of eligibility is a violation of that
participant’s constitutional or civil rights. An athlete’s right to
participate may be protected by the constitutional guarantees of due
process and equal protection.
B. SCOPE OF ELIGIBILITY RULES
Eligibility rules cover all of the possible requirements and rules
that might control a potential athlete including age, years of
participation and academic standards. They range from grade point
average to length of hair, transfer rules, red shirting rules, the
number of semesters enrolled in school and married status. All
these elements are used as a means to restrict an athlete’s eligibility
to participate. Whatever the regulation, it still has the same
common objectives: the protection of the athlete, the promotion of
education and the continuation of amateurism. A further objective
is the control and regulation of a system of fair

378

competition between the various schools and their athletes.

 A West Virginia appeals court ruled that the trial court exceeded
its authority when it interfered with the athletic association’s
legitimate rulemaking authority when it issued a T.R.O. and a
preliminary injunction that prevented the suspension of football
players who participated in a melee. State ex. rel. West Virginia
Secondary School Activity Com’n v. Webster, 2011 WL 723113 (W.
Va. 2011).
The residency rule was discussed in Arendas ex rel. Arendas v.
North Carolina High School Athletic Ass’n, Inc., 718 S.E. 2d 198
(N.C. App. 2011), where it was determined that at least two players
from a state championship team did not reside in the district during
the time that they had participated on the team. The defendant
vacated the plaintiff’s championship season. On appeal, the court
held that the plaintiff’s complaint was dismissed because the
members and the coach lack standing. That is, it was the school
that sustained the loss rather than the plaintiffs.
The Supreme Court of Oklahoma in Wright City Public Schools v.
Oklahoma Secondary School Activities Ass’n, 313 P.3d 891 (Okla.
2013), held that a state high school athletics association elimination
of a public high school’s baseball team from the annual state
tournament based on the alleged violation of the association’s 22-
game limit was arbitrary and without force and effect.

379

C. PARTICIPATION AS A RIGHT OR PRIVILEGE

The threshold question in an analysis of the eligibility of the
student athlete to participate is whether that individual has a right
or privilege to participate. When there is a right, then the
relationship between the athlete and the governing body which
administers the competition will be on a much different legal status
than if the participation is viewed as a mere privilege. The question
becomes whether an athlete in a public institution has a sufficiently
important interest in participation so as to require due process
safeguards. If the questioned interest is a right, then due process
will apply. To receive due process protection, the constitutionally
guaranteed right must be either a liberty or property interest.
There is a great difference in the way that high school and
intercollegiate sports can be analyzed. For example, a high school
athlete will receive no present economic benefit from participation;
his only benefit is the possibility of the receipt of an offer of a
college scholarship. This possibility is too speculative to be
recognized as a property right. However, a college athlete can
receive a scholarship of substantial monetary value. Scholarships
often cover the complete cost of attending a school; therefore, for a
college athlete the right to participate is not a mere speculative
interest but a property right of some present economic value. Gulf
South Conference v. Boyd, 369 So.2d 553 (Ala.1979).

380

One federal district court case has also recognized an athlete’s

limited property interest in being allowed to participate in
intercollegiate sports. Hall v. University of Minnesota, 530 F.Supp.
104 (D.Minn.1982). In this case, procedural due process was
ignored when a basketball player (who had the requisite g.p.a. to
continue in school but did not have sufficient credits for a
particular program) was disallowed the opportunity to participate
further in intercollegiate basketball. The court held that he had a
sufficient property interest in the continuation of his basketball
career to warrant constitutional protection since it was a distinct
possibility that this lack of playing time would affect his ability to
be drafted by a professional basketball league and earn a livelihood
as a basketball player. The court held that if he played his senior
year, he would have a significant opportunity to be drafted in the
second round of the NBA draft, thus assuring a guarantee of his
first-year salary.
Yet, in a Court of Appeals case, the court found that the interest
of student athletes including scholarship athletes to participate in
intercollegiate hockey did not rise to the level of any right that
would earn due process protection in connection with the NCAA’s
imposition of sanctions against the school for failure to declare
several of its players ineligible. Colorado Seminary v. NCAA, 570
F.2d 320 (10th Cir.1978). The court found no difference between
high school and collegiate athletes. The court did concede that
though other courts may aver that scholarships create a distinction
between high school and collegiate sports, that type of distinction

381

is more of a difference in degree. The court observed that the

fundamental positions of these athletes are the same and the goals
and issues are the same. Since the same relations exist between the
primary academic functions of both colleges and high schools, it
was held that the degree of difference does not lead to a different
result.
In high school sports, the courts rarely find that a right to
participate exists. In the Texas no pass, no play case, for example,
the court held that fundamental rights are born in the express and
implied protection of personal liberties as recognized in federal and
state constitutions. Therefore, a student’s so-called right to
participate in extracurricular activities does not rise to the same
level as the right to free speech or religion both of which have long
been recognized as fundamental rights. Spring Branch I.S.D. v.
Stamos, 695 S.W.2d 556 (Tex.1985).
Although the opportunity to participate in extracurricular
activities is not by itself a property interest, under certain
circumstances a high school student can establish an entitlement to
due process in connection with his suspension and exclusion from
high school athletics. Tiffany v. Arizona Interscholastic
Association, Inc., 151 Ariz. 134, 726 P.2d 231 (App.1986); and
Boyd v. Board of Directors of McGehee School District, 612
F.Supp. 86 (E.D.Ark.1985).

382

D. STATE ACTORS
In a determination of the eligibility of an athlete, it is essential
that one ascertains if the association’s regulation is deemed to be
state action. Generally, the protections of the 14th Amendment, due
process and equal protection, will not extend to private conduct that
abridges only individual rights. The question is whether the actions
of the governing body are state action or fall under the color of
state action. This question is extremely important as regards the
actions of the NCAA. At one time, this was a fairly close question.
However, a 1988 Supreme Court case suggests that NCAA
eligibility regulations may no longer be viewed as state action.
NCAA v. Tarkanian, 488 U.S. 179 (1988).
Tarkanian is a narrowly drawn opinion that establishes that the
NCAA did not assume the role of the state when it directed a state
university to initiate certain particular actions against one of its
employees. This case, however, does not definitively settle the
question of whether the NCAA can ever be a state actor. The court
observed that the action of removing a coach from a state
institution is a state action. However, in Tarkanian the NCAA did
not take part in that particular action.
Even after Tarkanian, state action nonetheless might lie if a
university by embracing the NCAA’s rules transforms them into
state rules and thereby arguably transforms the NCAA into a state
actor. Some states, e.g., Texas, have passed legislation that provides
for liability for violation of an NCAA rule. Vernon’s Texas Statutes
and Codes; Civil

383

Practice & Remedies Code § 131. With legislation of this type the
NCAA’s regulations will arguably be deemed to represent state
action.
On the other hand, all actions by a state high school athletic
association will usually be viewed as state action for constitutional
purposes. An example is the action of a state high school
association that declares a high school must forfeit football games
when an ineligible player suited up; this action is construed to be
state action for constitutional purposes. Florida High School
Activities Association, Inc. v. Bradshaw, 369 So.2d 398 (Fla.App. 2
Dist.1979). Also, a state athletic association, which is a purely
voluntary group with a membership made up of 85% public
schools, has sufficient public character to confer state action status
on the activities of the association. Griffin High School v. Illinois
High School Association, 822 F.2d 671 (7th Cir.1987).
In Brentwood Academy v. Tennessee Secondary School Athletic
Association, 531 U.S. 288 (2001), plaintiff sued the Association
alleging, inter alia, violation of its First Amendment rights and its
14th Amendments rights of substantive and procedural due process,
and sought a permanent injunction barring the TSSAA from
enforcing its recruitment rule. The rule prohibits “use of undue
influence . . . to secure or retain a student for athletic purposes.”
The claims against Brentwood included providing free game tickets
to a middle-school team, impermissible off-season practice, and
urging students who have already agreed to play at

384

Brentwood to attend spring football practice. The TSSAA found

the school guilty with penalties that included fines, probation, no
postseason play, and finding certain athletes ineligible. The appeals
court found for TSSAA on the grounds that it is not a state actor;
the United States Supreme Court, however, in 2001, reversed and
remanded.
The state action question has been reviewed in the context of
evaluating the legality of a mandatory drug testing program for
high school athletes. In that case, a public school district, as
opposed to a state athletic association, established the requirement
that all varsity athletes must consent to submit to random urine
analysis drug testing as a prerequisite to interscholastic athletic
participation. This regulation was viewed as an action that was
initiated under the color of state law. Schaill v. Tippecanoe County
School Corporation, 864 F.2d 1309 (7th Cir. 1988).
E. DUE PROCESS AND EQUAL PROTECTION
After determining whether a regulation is state action, one must
review it for purposes of equal protection. Although it is acceptable
to classify per se, it is not acceptable to differentiate among classes
when the purposes behind classification are not constitutionally
permissible. Permissibility is determined by applying either the
permissive or strict standard of review. If the standard is the
permissive one, all that is required is that there must be a
reasonable relation to the stated purpose.

385

The strict standard, however, requires that classifications be precise

and substantially justified. The strict standard will be applied
whenever a classification touches on a fundamental interest, e.g.,
freedom of religion, or is based on a suspect criteria, e.g., race or
national origin. When a suspect criteria is involved, constitutional
permissibility will be determined by whether the classification
promotes a compelling interest of the governing body. Usually,
participation in sports is not a fundamental right; and therefore,
eligibility is not entitled to a strict standard of review. However, a
strict standard of review might still be applied if the classification
is based upon suspect criteria.
Equal protection will only require a rational relation to a
legitimate state interest if the regulation does not infringe upon
fundamental rights and does not burden an inherently suspect class.
In a Texas Appeals case it was held that a regulation that prohibits
married high school students from participation in sports was a
violation of the equal protection clause. There was no logical basis
for the married student rule since the right to marry is a basic and
fundamental right; therefore, the no marriage rule established a
classification of individuals that was treated differently than other
students without promoting a compelling state interest. Bell v. Lone
Oak Independent School District, 507 S.W.2d 636 (Tex.Civ.App.—
Texarkana 1974).
In Jones v. West Virginia State Board of Education, 218 W.Va. 52,
622 S.E.2d 289 (2005), the
 386

West Virginia Supreme Court for Appeals decided that home-

schooled children can be excluded from sports. Aaron Jones was
home schooled. In order for Aaron to participate on a middle
school wrestling team, he must get approval from the West Virginia
Secondary School Activities Commission (WVSSAC). But he also
must be enrolled full-time in a WVSSAC participating school.
Jones filed a complaint against the school officials seeking
declaratory, equitable and injunctive relief. Surprisingly, the circuit
court entered a preliminary injunction permitting Aaron to
immediately participate based on its findings that school officials
inter alia violated the home-schooled student’s right to equal
protection. The appellate court reversed, finding that the circuit
court erred on the equal protection claim, since prohibiting home-
schooled children from participating in interscholastic athletics
does not violate equal protections under West Virginia’s state
constitution. In short, the court found that the WVSSAC did not
exceed its statutory authority in promulgating a rule pertaining to
the eligibility requirements for home-schooled children to
participate in interscholastic athletics.
However, in another Texas case, in 1981, a summer camp rule
was found to be constitutional. This rule did not allow students to
participate in interscholastic sports if they attended a same sport
summer camp. The compelling state interest was that the rule
sought to achieve a balance in interscholastic athletics. This interest
outweighed a parent’s freedom of choice in family matters as
regards the student’s participation in summer

387

activities. Kite v. Marshall, 661 F.2d 1027 (5th Cir.1981).

 In a 1981 Texas Supreme Court case, a state’s sports association’s
non-transfer rule which declared all non-seniors ineligible for
varsity football and basketball competition for one year following
their transfer to a new school was held to be unconstitutional on
equal protection grounds. The court stressed the over-inclusiveness
of the rule in light of its intended purpose of discouraging the
recruitment of student athletes and the irrebuttable presumption
created by that rule. In light of these two factors, the court declared
the rule not rationally related to its intended purpose. Sullivan v.
University Interscholastic League, 616 S.W.2d 170 (Tex.1981).
However, in the Texas no pass, no play case, the rule provided a
strong incentive to participate in extracurricular activities and to
maintain a minimal level of performance. In view of the rule’s
objective to promote and improve scholastic performance, the court
found that the rule was rationally related to a legitimate state
interest of creating quality education. Spring Branch I.S.D. v.
Stamos, 695 S.W.2d 556 (Tex.1985).
In Farmer v. Bd. of Regents of the Univ. Sys. of Ga., 589 Fed.
Appx. 913 (11th Cir. 2014), the court evaluated the discrimination
claims of four white football players, who were verbally offered,
but then not given, scholarships to play football at a state university
which is an HBCU (Historically Black College and University).
Plaintiffs claim they were

388

denied scholarships because of their race. Eventually, all

scholarships went to African-Americans from Georgia. No one can
dispute “that offering scholarships to in-state recruits would make
the scholarship money at SSU go much further, and offering one
scholarship to a single out-of-state recruit would not significantly
decrease the overall potential savings of the strategy of offering
scholarships to in-state recruits.” In short, the reasons for denying
the scholarships were not pre-textual and did not violate the Equal
Protection Clause of the 14th Amendment.
Female high school basketball player was subjected to a
continuing array of bullying and harassment from her teammates
for over two years. She brought an action against the school district
and school district officials alleging violations of her Constitutional
rights to freedom of association, substantive, and procedural due
process, and equal protection. Defendant’s motion for summary
judgment was granted. Plaintiff failed to establish the existence of a
fundamental right or interest of which she was supposedly deprived
by defendants. The student had no protected property interest in
playing basketball, attending her senior class night, and attending
her graduation. The officials’ conduct in failing to punish her
bullying teammates, which allegedly was the cause of her social
miscues, did not deprive student of her procedural due process
rights. Kirby v. Loyalsock Tp. School Dist., 837 F.Supp. 2d 467
(M.D. Pa. 2011).

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The next basic area of review is whether due process exists. Due
process is used to eliminate regulations which are overbroad in
application or those that overlook more reasonable alternatives,
which are less restrictive of protected liberties. Procedural due
process will only apply where a state or federal action is involved,
the aggrieved party is a person, and an interest in life, liberty or
property is threatened.
Due process as a whole is flexible and calls for such procedural
protections as the particular situation might demand. Where a
student asked for a hardship waiver from an athletic association’s
rule that limited eligibility to those who are 19 years old or
younger, the court recognized that the student did not have a
constitutional right to participate in high school sports, but
concluded that the executive board of the association was
unreasonable, capricious and arbitrary when it failed to exercise its
discretion in even considering the student’s request for a hardship
waiver from this rule. Tiffany v. Arizona Interscholastic
Association, Inc., 151 Ariz. 134, 726 P.2d 231 (App.1986).
A community college district summarily terminated the
employment of a basketball coach. The district claimed the coach
was not entitled to due process because he was a temporary
employee. Coach claimed he was a contract employee entitled to
due process. Theiler v. Ventura County Community College Dist.,
198 Cal. App. 4th 482, 130 Cal. Rptr. 3d 273 (2d Dist. 2011), as
modified Sept.

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12, 2011 and Aug. 24, 2011, and rev. filed, Sept. 12, 2011 and Sept.
26, 2011 (2d Dist.)).
A high school basketball coach in New Mexico was suspended
from all coaching duties by the New Mexico Activities
Association. He successfully alleges that the Association’s action
violates due process. “Plaintiff argues that the version of the
NMAA Bylaw 6.1.3(K) [“Undue Influence”] in effect at the time of
his suspension is unconstitutionally vague, and that violates the
Due Process Clause, both because it fails to provide adequate
notice of the conduct it prohibits and because it is subject to
arbitrary enforcement”. Isler v. New Mexico Activities Ass’n, 893
F.Supp. 2d 1145, 1150 (D. N.M. 2012).
 F. TYPES OF RULES
There are many rules, but they all possess the same theme of
attempting to control the way in which an individual will be
deemed to be eligible to participate in high school sports. Usually
these rules involve around such broad concepts as the “no transfer”
rule, the anti-marriage rule, rules that relate eligibility to grade
point average, no-agent rules and anti-red shirting rules.
The Supreme Court of Oklahoma in Scott v. Oklahoma Secondary
School Activities Ass’n, 313 P.3d 891 (Okla. 2013), found for a
high school student athlete who was denied eligibility even though
his case is usually determined as moot, since plaintiff graduated
and moved on to college and thus would never come under the
jurisdiction of the

391

Oklahoma Secondary School Activities Ass’n again. The Supreme

Court held that OSSAA acted in an arbitrary and capricious manner
in denying plaintiff eligibility based on their rules that member
schools cannot pay for their student athletes to attend individual
athletic camps.
1. RED SHIRTING
The concept of “red shirting” is a tendency of some schools to
hold students back academically so they can develop their bodies
and playing abilities in the hope of increasing their potential for
athletic success. In an attempt to stop this practice, some
associations have devised eligibility rules to prevent red shirting.
These rules can be classified as four year rules, eight semester rules
or age rules. All these regulations have in common the goal of
restricting eligibility to a certain time period and thus thwarting
attempts to red shirt. With these so-called anti-red shirting
regulations, plaintiffs will usually lose. When an athlete challenges
an anti-red shirting rule, he will usually argue that the rule violates
the 14th Amendment due process right. He will also argue that he
has a constitutional right to participate in interscholastic sports.
However, the courts will generally hold that a student does not
have a constitutionally protected right to participate. The courts
will not interfere with these regulations unless the action
complained of is fraudulent, an invasion of a property right,
capricious or an arbitrary instance of discrimination.

392

The rationale for supporting a regulation of this type is that the

classification made by the athletic association rule (for example,
that beginning with sixth grade a student that repeats any grade
which he has passed shall lose his fourth year of eligibility in high
school), is neither inherently suspect nor an encroachment on a
fundamental right but rather is reasonably related to the legitimate
state interest of defeating the anti-academic tendency of red
shirting. However, due process will usually require that the
association at least allow the student a chance to argue hardship as
a means to circumvent the eligibility rule.
Plaintiff, football player sought waiver of transfer rule on the
basis that the state athletic Association acted in an arbitrary and
capricious manner by refusing to allow a waiver. Here, plaintiff
was allowed to remand to a State Circuit Court from a Federal
District Court. W.L.D. v. Kentucky High School Athletic Ass’n,
2010 WL 4696860 (E.D. Ky.).
A high school wrestler sought a temporary injunction against
school and the Florida Athletic Association. The injunction was
granted, and the school board successfully appealed on the basis
that notice of injunction was inadequate and that injunction did not
meet the minimum requirements of the transfer rule. Seminole
County School Bd. v. Downey, 59 So.2d 1156 (Fla. App. 2011).
In an age rule case, plaintiff was one-day too old to participate in
league sports. After unsuccessfully attempting to obtain a waiver of
the age rule, plaintiff filed an action under 42 U.S.C.A. § 1983

393

asserting violations of her right to due process and equal protection.

Plaintiff’s motion for a TRO and a temporary injunction were
denied on the grounds that she was not likely to succeed. Sisson v.
Virginia High School League, Inc., 2010 WL 5173264 (W.D. Va.).
In Board of Education v. New Jersey State Interscholastic Ath.
Ass’n, 2012 WL 5199617 (N.J. Super. App. Div.), the state athletic
association would not waive the application of the Eight Semester
Rule that disallows plaintiff from participating in football and
baseball for a fifth-year.
2. NO TRANSFER RULES
The “no transfer rule” was created to thwart the negative effect of
recruiting athletes from one district or one school to another as a
means to enhance the athletic ability of the team to which the
athlete was recruited. This rule is usually viewed as rationally
related to a legitimate state purpose of preventing school shopping
by athletes and the prevention of their recruitment by coaches. This
type of regulation will usually not violate equal protection.
However, in one case, a transfer rule did not pass constitutional
analysis. Sullivan v. University Interscholastic League, 616 S.W.2d
170 (Tex.1981). This particular rule provided that a student who
represented any high school other than his present school in either
football or basketball was ineligible for a calendar year after
moving to another district

394

to participate in the same sport in the new school. This rule was not
rationally related to the purpose of thwarting recruitment of high
school athletes and, therefore, was violative of equal protection. It
was not rationally related to the purpose of stopping such
recruitment because it was overly broad and punished those
students, for example, who moved with their parents from one state
to another because of economic hardship.
A student ran afoul of the no-transfer rule and was unable to use
the fact that since he did not participate during his ninth-grade year
and was not required to sign the acknowledgment form (that he
read the brochure) while attending the high school. H.R. ex rel. S.R.
v. Minnesota State High School League, 2013 WL 147416 (D.
Minn. 2013).
3. ANTI-MARRIAGE
While transfer rules and red shirting rules usually will pass
analysis under constitutional standards, eligibility rules that
infringe on a fundamental right will not pass constitutional
analysis. The classic example of such a rule is the no-marriage rule,
which prohibits married high school students from participating in
high school sports. This rule is violative of equal protection since
the school board has the burden of proving that the regulation that
prohibits married students from participation promotes a
compelling state interest. Since there is no compelling state interest
and since the rule treats two classes in a different way, the
discrimination is unconstitutional. Bell v.
 395

Lone Oak Independent School District, 507 S.W.2d 636

(Tex.Civ.App.—Texarkana 1974).
4. “NO-AGENT” RULE
Another cluster of restrictions to eligibility are those created by
the NCAA. Most of their rules tend to restrict eligibility either for
incoming freshmen or continuing students. However, the so-called
“no-agent” rules are designed to terminate eligibility when an
athlete instigates any step towards a professional career.
These two rules are contained in a section of the NCAA rules
entitled “Amateurism.” The first rule (no. 12.2.4) states that an
athlete will lose his eligibility to participate in a particular sport
once the athlete requests to be included in the pool of players that
are eligible to be chosen in the annual professional draft of
collegiate athletes. The second rule (no. 12.3) renders an athlete
ineligible once that athlete agrees to be represented by an agent.
The combination of these two rules will clarify the line of
demarcation between professional and amateur athletes. An
example of how these rules tend to operate and their effect on a
student-athlete’s attempts to maintain his eligibility can be shown
in the case of Braxston Lee Banks. Banks v. NCAA, 746 F.Supp.
850 (N.D.Ind.1990). Mr. Banks filed a class action suit against the
NCAA alleging that these two rules were violative of the antitrust
laws. Banks was a talented Notre Dame football player who had
been injured throughout his collegiate career; at the end of the 1989
football

396
season, he had a year of eligibility remaining. Banks originally
wanted to use this remaining year of eligibility; however, he
changed his mind between the conclusion of the 1989 season and
the 1990 NFL college draft. His plan was to test the waters as
regards his marketability. Accordingly, he petitioned the NFL for
eligibility and retained an attorney to advise and represent him. The
NFL approved his petition and invited him to a league-wide
scouting combine. His plans failed in that a bad knee reduced
interest in him, and as a result he was neither drafted nor offered a
free agent contract. At that time, Banks decided to return to
college, complete his eligibility, and prove to the NFL scouts that
his knee was rehabilitated; however, his college refused to reinstate
him.
To test the waters, Banks had to petition the NFL; the NFL will
only invite players to their combine that have either exhausted their
eligibility or renounced their remaining eligibility by requesting to
be included in the draft. However, this process of petitioning and
obtaining legal counsel violated the NCAA’s so-called no-agent
rules and thus automatically eliminated his remaining year of
eligibility. It made no difference that Banks did not receive an offer
to contract with any team or that he received any monies from his
agent.
Banks filed suit. He was denied a preliminary injunction to enjoin
Notre Dame from enforcing the rules that prevented him from
playing football during the 1990 season. In the court’s ruling on a
subsequent motion to dismiss, it held that the

397

NCAA’s rules produced significant pro-competitive effects and that

Banks failed to show that the rules produced an adverse market
impact on either college players or NCAA member schools. Banks
alleged that the rules created a group boycott by restricting the
football labor market; however, the court held that the rules did not
have a non-competitive impact on any identifiable market.
Michael McAdoo due was a 6′7″ defensive end at the University
of North Carolina at Chapel Hill who was declared ineligible for
further intercollegiate competition due to alleged academic fraud.
McAdoo v. University of North Carolina at Chapel Hill, 736 S.E.2d
811 (N.C. App. 2013). Michael worked with a tutor, Jennifer
Wiley, who was a student paid by UNC to assist him in his studies.
Michael was assigned a new tutor but asked Jennifer to help him
complete a paper for Swahili 403. Jennifer responded to his email
and e-mailed the paper back to Michael with certain assurances,
including I “hope this helps!” (McAdoo, 736 S.E.2d at 816). About
this time the NCAA began investigating reports that UNC football
players had received improper benefits from agents. McAdoo
admitted to unknowingly receiving improper benefits valued at
$99. The investigation segued into inspecting UNC athletes’
emails, where they found reason to believe that Jennifer Wiley’s
assistance to McAdoo may have violated the school’s academic
honesty standards.

398

G. PROPOSITION 48 AND PROGENY

Proposition 48 and other proposed NCAA propositions create
academic requirements as a barrier for incoming freshmen who
desire to participate in interscholastic athletics. These requirements
relate to the prospective athlete’s academic performance in high
school and in certain standardized tests. An earlier rule, the 1.600
rule, required that NCAA schools grant athletic scholarships only
to prospective athletes with whom they could predict through high
school grades, class rank or scores in standardized tests, a
minimum of a 1.6 g.p.a. during the freshmen year. This rule passed
constitutional analysis since the classification was reasonably
related to the purposes for which the rule was created, that is, the
maintenance of academic excellence. Associated Students, Inc. of
California State University-Sacramento v. NCAA, 493 F.2d 1251
(9th Cir.1974). The 1.600 rule was rationally related to a legitimate
state purpose and the privilege of participation was deemed outside
the protection of the law.
Proposition 48 strengthened the old rules by requiring a
combination of required high school g.p.a. and a minimum score on
standardized tests as a prerequisite to freshman eligibility. When
Proposition 48 was promulgated, the effect was immediate; a great
deal of major college football and basketball recruits were
ineligible in the first year of the rule. During 1989, a great furor
was created when the NCAA discussed the possibility of
Proposition 42. Proposition 42 called for tighter

399

restrictions on borderline students. Proposition 42 would have

eliminated the possibility that a partial qualifier, either a 2.0 or a
passing score on a standardized test, of the Proposition 48
standards, could still receive an athletic scholarship in his freshman
year. To qualify, both were required.
Proposition 48 has been viewed by many experts as arguably
racist in that a disproportionate percentage of minorities are
affected by the results of the rule. In the final analysis, the NCAA’s
propositions will probably pass constitutional muster. Since the
NCAA’s bylaws will not be construed as state action, it appears that
most NCAA regulations and propositions will also be construed as
not state action; and because of that, due process protection will be
inapplicable. Replacing Proposition 48, Proposition 16 requires a
minimum g.p.a. in 13 core courses with a corresponding minimum
score on one of the standardized tests. This was declared invalid as
a violation of Title VI of the Civil Rights Act by a federal district
judge. Cureton v. NCAA, 37 F.Supp.2d 687 (E.D.Pa.1999).
However, the NCAA was granted a stay on March 30, 1999, re-
establishing the Proposition 16 standards.
H. NO PASS, NO PLAY STATUTES
An integral part of many states’ attempts to improve the
educational potentiality of their students is the enactment of
legislation that keys eligibility to play high school sports to the
participant’s ability to achieve certain academic

400

grades. This type of legislation is generally called, “no pass, no

play.” The basic format of this legislation will demand that no
student can participate in an extracurricular activity for a certain
period if he or she fails any course during the preceding period
other than the last grading period before the summer break. There
are variations to these statutes in that some grant the power to
specify the criteria to counties while some grant the power to a
state’s athletic association. Also, in Texas, for example, this statute
applies to all extracurricular activities, however, in West Virginia it
applies only to “non-academic” extracurricular activities (sports
and cheerleading). But all have one thing in common: they tie high
school athletic eligibility directly to the student’s previous
academic achievement.
 An equal protection analysis is the first question that arises as
regard to the constitutionality of no pass statutes. One can argue
that the state illegally discriminates against those who participate in
extracurricular activities as opposed to those who do not. However,
it is well established that participation in activities is not usually a
fundamental right. Because no pass neither infringes fundamental
rights nor burdens any inherently suspect class, it is not subject to
strict or heightened scrutiny. Usually, when the state’s regulatory
classification scheme neither infringes on fundamental rights nor
burdens an inherently suspect class, then the equal protection
analysis requires only that the classification be rationally related to
a legitimate state interest. For example,

401

since providing a quality education to Texas public school students

is a legitimate state interest, then the no pass rule has only to be
rationally related to that interest. Spring Branch I.S.D. v. Stamos,
695 S.W.2d 556 (Tex.1985).
Other states have analyzed similar no pass statutes in similar
ways. In State, ex rel. Bartmess v. Board of Trustees of School Dist.
No. 1, 223 Mont. 269, 726 P.2d 801 (1986), the Montana Supreme
Court was forced to deal with a school district rule that required a
student to maintain a 2.0 (or “C”) grade average for the preceding
9-week period as a prerequisite to participation in any
extracurricular activities in the following 9-week period. This
school district rule was even more stringent than the requirements
of the Montana High School Association which required only a 1.0
(or “D”) average for participation. However, the court held that this
rule had a rational relationship to the state’s legitimate goal in that
the rule was an incentive for those students who wished to enjoy
extracurricular activities and would also promote adequate time to
study for those students who have not maintained a 2.0 g.p.a. In a
strong dissent, Justice Sheehy opined that there was no rational
relation between the rule and the goal and that the rule was
overbroad.
It appears that all judicial reviews of comparable no pass statutes
will conclude that a rational relation to a legitimate state purpose
exists. In Bailey v. Truby, 174 W.Va. 8, 321 S.E.2d 302 (1984), the
West Virginia Supreme Court reviewed a rule

402

that required students to maintain a “C” g.p.a. in order to

participate in extracurricular activities. The court held that this rule
was a legitimate exercise of the State Board of Education’s general
supervision power over the educational goal of academic
excellence. The rule did not violate the student’s rights to
procedural due process, substantive due process or equal
protection. The rule in Bailey, however, differentiated between
academic extracurricular (theater, debate, school newspaper, 4–H,
band, etc.) and nonacademic extracurricular activities on the basis
that the academic extracurricular activities were too closely related
to identifiable academic courses and served to complement those
courses. In dissent, Justice Harshberger recommended that if a
student satisfies the State Board’s academic and attendance
requirements for graduation with his class, then all programs
should be open to that student. He also viewed the rule as violating
a common sense penumbra to equal protection in that it placed a
higher duty to achieve academically on those students who
participated in extracurricular activities than is required of those
students that loiter at malls. He further noted as to the distinction
between academic and non-academic extracurriculars: “My
brothers would let a flutist flunk without forfeiting his or her flute.
But pity the poor punter who did not pass.”
 403

CHAPTER 18
THE DISABLED ATHLETE
A. GENERALLY
There are many ways in which eligibility to participate can be
restricted; one way is through a person’s alleged disability whether
it is physical or emotional. Eligibility is restricted by rules that are
based on paternalism and disallow individuals who are viewed as
disabled from participation in interscholastic sports. Many schools,
colleges, athletic associations and school districts have such rules.
Guidelines that bar students from participation are often based on
rules provided by the American Medical Association (AMA),
which recommend that students with particular types of disabilities
be disqualified from participation in certain recreational activities.
When a student challenges a disqualification to participate based on
these rules, courts will usually defer to the judgment of the school
and uphold the disqualification unless the school’s actions are
arbitrary or capricious.
However, in recent years disabled students have used § 504 of the
Rehabilitation Act to establish a right for disabled athletes to
participate in interscholastic sports, if they are otherwise qualified.
29 U.S.C.A. § 794. The act provides in pertinent part that no
otherwise “qualified handicapped individual * * * shall, solely by
reason of his handicap, be excluded from the participation

404
in * * * or be subjected to discrimination under any program * * *
receiving federal financial assistance.” A handicapped individual is
described as any person who “has a physical or mental impairment
which substantially limits one or more of such person’s major life
activities, * * * has a record of * * * impairment or * * * is
regarded as having * * * an impairment.” 29 U.S.C.A. § 706. This
law is further refined in 45 CFR § 84.37(C)(1), in which disabled
students are specifically given the right to participate in organized
sports: “in providing physical education courses * * * a recipient
* * * may not discriminate on the basis of handicap. A recipient
that offers physical education courses or that operates * * *
interscholastic, club or intramural athletics, shall provide to
qualified handicapped students an equal opportunity for
participation * * * .”
The U.S. Education Department has told schools that disabled
students must be included in sports programs or provided equal
alternative options. This directive is reminiscent of Title IX and the
athletic opportunities it created for women. Schools would be
required to make “reasonable modifications” for disabled students,
or create parallel athletic programs that have comparable standing
to mainstream athletic programs. Section 504 and the Individuals
with Disabilities Education Act (IDEA) requires states to provide a
free public education to all students and ban those schools that
receive federal funds from discriminating against disabled students.
This new directive explicitly informs schools and colleges that
access to

405

interscholastic, intramural, and intercollegiate athletics for disabled

students is a right (not a privilege). See AP, “Feds Say Sports Are
Civil Right for Disabled Students,” Houston Chronicle at A5 (Jan.
25, 2013). See generally S.S. v. Whitesboro Cent. Sch. Dist., 2012
WL 280754 (N.D. N.Y. 2012)).
For example, an outstanding high school athlete was precluded
from playing his last year of football because he possessed only
one kidney; he then won an injunction on the ground that he was
discriminated against in violation of § 504 of the Rehabilitation Act
of 1973. Grube v. Bethlehem Area School District, 550 F.Supp. 418
(E.D.Pa.1982).
B. ELIGIBILITY TO PARTICIPATE
As mentioned above, disabled athletes were regularly restricted
under a paternalistic attitude. Even after medical assurance that
athletic participation would not harm the individual, school boards
would still restrict participation. Courts usually supported the
school board’s decision that the athlete was not qualified to
participate. For example, an individual who was blind in one eye
was precluded from participation in contact sports because of
medical testimony that indicated that continuation in that sport
would result in a high risk of injury to his good eye. Kampmeier v.
Nyquist, 553 F.2d 296 (2d Cir.1977).
Courts progressed to a point where a person who is otherwise
qualified would not be excluded from participation in a federally
funded program solely by reason of disability. The mere possession
of a

406

disability is insufficient to assume that there is a corresponding

inability to function in an appropriate manner in a particular sport.
Otherwise qualified individuals are people who are able to meet all
the program requirements in spite of their handicap. Southeastern
Community College v. Davis, 442 U.S. 397 (1979). A disabled
athlete must have the opportunity to participate for inclusion in a
sports team. An example is the person who only has one kidney but
still wants to participate in a contact sport such as interscholastic
wrestling. In Poole v. South Plainfield Board of Education, 490
F.Supp. 948 (D.N.J.1980), plaintiff and his parents were well aware
of the risk involved in his participation and were prepared to sign a
waiver that would release the school from all liability. The court
held that the school’s only duty was to advise the family of the risk
and not to impose a paternalistic view of the proper course of
action for the family.
The courts are now beginning to recognize that under the legal
definition of a disabled individual the more subtly handicapped
such as the emotionally disturbed or the learning disabled have the
same rights as other more overtly disabled students. A disabled
student who was learning disabled, sought an injunction against the
high school athletic association to preclude it from enforcing their
transfer rule that would prohibit him from participation for a year
after transferring from a private religious school to a public school.
This individual was a certified disabled student under the
Education of the Handicapped Act, 20

407

U.S.C.A. § 1400, et seq.; the association discriminated against the

student by prohibiting participation by failing to grant a special
hardship exception to the transfer rule. The student was granted a
preliminary injunction of the athletic association’s rule; the
association was similarly precluded from punishing the high school
by forcing them to forfeit games in which the student participated
pursuant to a federal court order. Crocker v. Tennessee Secondary
School Athletic Association, 735 F.Supp. 753 (M.D.Tenn.1990).
See also Crocker v. Tennessee Secondary School Athletic
Association, 873 F.2d 933 (6th Cir.1989).
High School wheelchair athlete was denied opportunity to
compete against able-bodied athletes in state-qualifying meet.
Badgett ex rel. Badgett v. Alabama High School Athletic Ass’n,
2007 WL 2461928 (N.D.Ala.2007). Similarly, another high school
wheelchair athlete was not entitled to preliminary injunction to
force state educational officials to allow her to earn points for her
team in state-wide track and field competition. McFadden v.
Grasmick, 485 F.Supp.2d 642 (D.Md.2007).
On May 16, 2008, the Court of Arbitration for Sport (CAS) ruled
that the previous decision of International Association of Athletics
Federations “fell short of the high standards that the international
sporting community is entitled to expect” when the IAAF denied
South African dual amputee quarter-miler Oscar Pistorius who runs
on two carbon-fiber blades a chance to run in the Summer Olympic
Games. Unfortunately, Pistorius

408

was unable to lower his time enough to qualify in 2008; so he

waited to compete in the 2012 Games in London. The CAS said
that there was not enough evidence to prove that his j-shaped
blades which attach to below his knees gave him an unfair
advantage; the court said he should be able to compete with able-
bodied athletes. Pistorius v. IAAF. CAS 2008/A/1480, CAS, May
16, 2008, rev’g IAAF No. 2008/01 (Jan. 14, 2008). He was
subsequently convicted of murder, so the question of competition
will be moot for a long time.
 In Steines v. Ohio High School Ath. Ass’n., 68 F.Supp. 2d 768
(S.D. Ohio 2014), plaintiff requests a waiver of the Ohio H.S. Ath.
Ass’n. (OHSAA) from enforcing its in-state residence requirement
(OHSAA Bylaw 4–6–3) as to plaintiff, a ninth grade student, who
resided in Kentucky but attended school in Cincinnati. Plaintiff was
diagnosed with learning disabilities since the first grade. He wants
to play soccer at his high school. “Plaintiffs allege that under the
circumstances, OHSAA’s refusal to grant the requested
accommodation amounts to a violation of the Rehabilitation Act of
1973 and the Americans with Disabilities Act (ADA).” The court
agrees with plaintiff and grants his motion for Preliminary
Injunction and enjoins defendant OHSAA from enforcing or
threatening or seeking to enforce OHSAA BYLAW 4–6–3. That is,
the defendant may not exclude plaintiff from participation in
OHSAA-regulated athletic programs on the basis of the Instate
Residency Rule. However, this decision was subsequently vacated
on appeal.

409

C. SECTION 504 OF THE REHABILITATION ACT

In § 504 of the Rehabilitation Act, the prohibition of
discrimination against otherwise qualified handicapped individuals
in a federally funded program creates a private course of action for
monetary as well as injunctive relief. Typically, where the school
board is aware of the parents’ knowledge of the dangers involved
in their handicapped son’s continued athletic participation and the
school board knows of the parents’ encouragement then the school
board will have neither the duty nor the right under § 504 to deny
the student’s right to participate. See Poole v. South Plainfield
Board of Education, 490 F.Supp. 948 (D.N.J.1980). See also Neeld
v. National Hockey League, 594 F.2d 1297 (9th Cir.1979).
 Under § 504, a high school student with one kidney must be
allowed to play football if his parents sign a waiver. Grube v.
Bethlehem Area School District, 550 F.Supp. 418 (E.D.Pa.1982). In
a case where a college student with vision in one eye wanted to
play football, the university claimed that § 504 was not applicable
to the football program because the program itself did not receive
federal funds. However, the court noted that under the regulations,
a recipient of funds was defined as “any public or private agency
* * * to which federal financial assistance is extended directly or
through another recipient * * * ” 45 CFR § 84.3(F). The court then
concluded that federal funds need not go to the football program
specifically to bring that program

410

within the protection of § 504. The court averred that, even if the
football program was not a recipient per se, the decision to prohibit
the athlete from participation was ultimately made by the school
itself and not the program. Therefore, the school was a direct
recipient of funds. Wright v. Columbia University, 520 F.Supp. 789
(E.D.Pa.1981).
As regards § 504, school districts must now consider the needs of
each handicapped student and devise a program which will enable
each individual handicapped student to receive an appropriate and
free public education. A part of this education is the right for all
otherwise qualified individuals to participate in the complete array
of extracurricular activities. This right will pertain to a facially
constitutional regulation (e.g., a rule that prohibits students from
transferring to different schools in an attempt to stop the
development of super-teams) when the impact of the rule would
disallow a handicapped student the chance to participate if the basis
of the decision involves his handicap.
 For example, an emotionally disturbed student moved in with his
grandparents and was urged by his therapist to play football at the
school in which his grandparents were located as opposed to the
school district in which his parents lived. The therapist felt that it
was necessary for the student’s emotional health. However, this
transfer was a violation of the league’s non-transfer rule. The rule
stated that a student who changes schools to a school district in
which his parents do not reside will be ineligible for varsity
contests. Also, a student

411

living with a guardian is ineligible if the guardianship is of a one-

year duration and both parents are still alive. The league generally
did not acknowledge the existence of legal guardianships. This was
to prevent athletes from shopping around for a school or a coach.
However, the result of this rule still violated § 504. The court
concluded that if the student was denied the opportunity to
participate in football, there would be a corresponding devastating
effect on his emotional stability. Doe v. Marshall, 459 F.Supp. 1190
(S.D.Tex.1978).
In Mason v. Board of Educ., 2011 WL 89998 (D. Md.), plaintiff
suffered from ADHD and was the beneficiary of a § 504 education
plan. Plaintiff alleges that an assistant football coach twice
attempted to attack him. Regardless, defendants issued an allegedly
baseless and retaliatory “Denial of Access Notice” to plaintiff
which prohibited him from coming onto school property. Plaintiff
offered many claims related to his suspension and detention, inter
alia, the alleged violation of his due process rights under the
Fourth, Fifth, and 14th Amendments as well as the ADA. Although
some claims were remanded, the court found that the complaint did
not state a claim under § 504 of the Rehabilitation Act, Title II of
the ADA, or § 1983.
D. AMERICANS WITH DISABILITIES ACT
To improve the conditions of the disabled, the massive Americans
with Disabilities Act was enacted. This act, the ADA, is § 504 of
the

412

Rehabilitation Act with teeth (42 U.S.C.A. § 12101, et seq.). The

ADA extends its coverage to most employers other than the
smallest and thus covers professional athletic teams and probably
college teams (in that scholarship athletes are often deemed to be
employees). The act prohibits employment discrimination against
individuals with real or perceived disabilities; it also prohibits
discrimination in employment against associates of the disabled.
This includes an employer who might refuse to hire a relative of an
individual suffering with an illness such as AIDS based on the fear
that this relative might contact the illness or that he or she might
miss too much work due to the illness of the other person.
The ADA, like § 504 of the Rehabilitation Act, requires
employers to make reasonable accommodations for otherwise
qualified disabled individuals. An accommodation would not be
reasonable under the ADA if it would impose an undue hardship on
the employer’s business. Undue hardship can be defined to be an
action that requires significant difficulty or expense.
In PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), a disabled
golfer, unable to walk a course due to significant leg atrophy as a
result of Klippel-Trenaunay-Weber Syndrome, challenged the
PGA’s “no cart” rule which precludes players from using carts
during the third stage of the PGA qualifying tour and the tour itself.
By not providing a cart, the PGA violated the ADA by failing to
make the tournaments accessible to the disabled.

413

Under the ADA, a qualified individual with a disability is one,

with or without reasonable accommodation, who can perform the
essential functions of the particular job. However, the ADA
provides that a disabled person is not qualified if he poses a direct
threat to the health or safety of other individuals in the work area.
But, absent an actual threat, an employer cannot refuse to hire a
disabled person based on fears relating to safety; for example, an
athlete with AIDS, a disease which is not transmitted by casual
contact will not fall within the safety exception and thus will be
protected from employment discrimination under the ADA.
Under the ADA, the term “qualified disabled person” will not
include those currently using illegal drugs so long as their
employer acts on the basis of such use. However, rehabilitated drug
users are protected from employment discrimination under the
ADA. Although the act allows employers to adopt policies,
including drug testing, to ensure that their employees (e.g.,
professional athletes) no longer use illegal drugs.
In a strengthening of § 504 of the Rehabilitation Act, Title III of
the ADA also prohibits discrimination against the disabled in all
places of public accommodation, including privately operated
stadiums, auditoriums, convention centers and places of exercise or
recreation (e.g., gymnasiums, health spas, bowling alleys, golf
courses, aerobic facilities, etc.). Unlike the definition of the term
employer under the ADA, the definition of the term
 414

places of public accommodation is not limited to entities of a

certain size or having a certain number of employees. All places of
public accommodation are now forced to comply with Title III
accessibility requirements.
In Costello v. University of North Carolina at Greensboro,
plaintiff, a scholarship golf player on the school’s team was
diagnosed with Obsessive-Compulsive Disorder. He notified his
coach of his disorder and told the coach that he would have to see a
psychologist weekly. Ultimately, the coach dismissed plaintiff from
the team for missed practices. Plaintiff lost his athletic scholarship.
He brought a disability discrimination suit alleging violations of the
Fourteenth Amendment, Title III of the Americans with Disabilities
Act of 1990, Section 504 of the Rehabilitation Act of 1973, and a
constitutional claim under Section 1983.
As regards his ADA claim, the court found that neither the
privilege to play collegiate sports nor the benefit of receiving a
scholarship, rose to the level of a fundamental right based on the
Eleventh Amendment. The plaintiff’s constitutional claims were
also denied because the Fourteenth Amendment created no cause of
action and because the university was not a public entity, it was not
subject to plaintiff’s ADA claims. Plaintiff’s Rehabilitation Act
claim did survive because he met the pleading requirements in
federal courts by alleging that with or without reasonable
accommodations he met the necessary requirements to participate
in the university’s golf program.

415
Costello v. University of North Carolina at Greensboro, 394
F.Supp.2d 752 (M.D.N.C.2005).
In Miller v. California Speedway Corp., the plaintiff, who was
disabled and uses a wheelchair, attended three to six NASCAR
races a year from 1997 to 2006 at the California Speedway, which
has wheelchair spaces located in the upper level. The plaintiff
claimed the Speedway violated the Americans with Disabilities Act
because he could not see the track when other spectators stood up.
The Department of Justice’s original interpretation of the ADA did
not mention sight lines in regards to standing spectators, but a
subsequent interpretation stated that wheelchair locations should
provide a line of sight over standing spectators. But, the second
interpretation was adopted without the required notice and
comment period. Miller v. California Speedway Corp., 453
F.Supp.2d 1193 (C.D.Cal.2006).
High School student-athlete, who used a wheelchair, sued state
educational officials and their agents and designees, claiming they
unlawfully discriminated against her, in violation of the
Rehabilitation Act (ADA) and § 1983, because their rules and
protocols for assigning team points in state-wide track and field
competition precluded her from earning points for her team.
Student moved for a preliminary injunction, but the court held that
the student was not entitled to preliminary injunctive relief.
McFadden v. Grasmick, 485 F.Supp.2d 642 (D.Md.2007).

416

Owners and operators of places of public accommodation must

allow the disabled to participate in an equal way or to benefit in an
equal manner from the goods, services and accommodations
provided by the establishment. These owners and operators must
make reasonable modifications in their practices or policies.
Likewise, the owners and operators must remove structural and
architectural barriers where such removal is readily achievable.
Wheelchair-using parent of high school football player sued
school district under Title II of Americans with Disabilities Act and
Rehabilitation Act because its stadium did not have handicapped
accessible seating in its bleachers. Although plaintiff had standing
to pursue injunctive relief, plaintiff failed to establish a prima facie
case of discrimination with regard to existing facilities at field.
However, as for the newly renovated portions of fields, an issue of
fact existed as to whether the district’s two handicap parking spaces
met ADAAG requirements. Plaintiff lacked standing to sue on
claim that the curb did not meet ADAAG standards as warnings
were intended for benefit of the visually impaired. But, plaintiffs
could sue for injunctive relief as to new ramp, which did not
comply with ADAAG requirements. Greer v. Richardson
Independent School Dist., 752 F.Supp.2d 746 (N.D. Tex. 2010),
aff’d 2012 WL 833367 (5th Cir.).
Disabled individual brought action against county, alleging
professional sports facility owned by county was not wheelchair
accessible in violation

417

of Americans with Disabilities Act and Rehabilitation Act. The

District Court held that fact issues as to whether facility was readily
accessible by individuals with disabilities and whether there were
plausible modifications that could be made precluded summary
judgment. Brown v. County of Nassau, 736 F.Supp. 2d 602 (E.D.
N.Y. 2010).
 419

CHAPTER 19
COLLEGE SCHOLARSHIPS
A. THE NATURE OF SCHOLARSHIPS
A major problem inherent in most cases that pertain to collegiate
athletics is the phenomenon of the scholarship athlete. Scholarships
are ways for colleges to get athletes into their schools to play
sports. The problem is that a scholarship really is not defined in any
neat or comprehensible manner. The question is whether the
scholarship is a contract or just some sort of informal arrangement
which does not require duties, responsibilities or obligations on
each party.
By accepting a scholarship, an athlete enters into a relationship
with the university which grants the award to the athlete. A
relationship of this sort will typically require the athlete to maintain
certain grade levels and to perform as an athlete for the school in
return for tuition, books and certain other educational expenses.
The question is whether a scholarship athlete is an employee of that
school. This is important for ascertaining whether the athlete will
be covered under workers’ compensation laws if he is injured, and
whether that scholarship is taxable as income.
Arguably, the better policy might be to accept college athletes as
entertainers and treat athletes as employees. This makes sense since
the big college football powerhouses recruit quasi-professionals to
play in collegiate athletics. Yet, schools have been

420
reluctant to acknowledge that the relationship between universities
and their athletes is one that can be characterized as a business
relationship. This in turn leads to a reluctance to recognize
scholarships as contracts and the athletes as the college’s
employees. To do this would be to legally recognize the rights and
responsibilities that are owed to the athlete as part of the
contractual relationship in which the athlete must perform for that
particular sports team. These institutions have benefited from the
talents of their athletes: sometimes financially, sometimes to the
detriment of the student-athlete. If there is a bargained-for
exchange that is legally universally recognized between the
institution and the athlete, then there will be significant
consequences for both the student-athlete and the school in terms
of the athlete’s status as an amateur, as an employee, or as one who
receives taxable income in the form of a scholarship.
When and if the schools admit that their athletes are indeed
employees and the scholarship is an employment contract, then it
may be necessary to compensate the athletes beyond the value of
the scholarship; and with those students who genuinely desire to
earn a degree, part of their compensation package might include
tuition, room and board and other fees.
The district court’s landmark decision in O’Bannon v. NCAA,
2014 WL 3899815 (N.D. Cal. 2014), aff’d in part and vacated in
part, 802 F.3d 1049 (9th Cir. 2015), afforded schools the

421

opportunity to recruit athletes by offering them more than

scholarships in the form of trust funds and annual payments. The
Court of Appeals agreed with the district court’s remedy of
granting scholarships up to the full cost of attendance, but refuted
the district court’s other remedy which allowed students/athletes
cash compensation up to $5,000 per year.
B. SCHOLARSHIPS AS CONTRACTS
Some courts have viewed the relationship between the
scholarship athlete and the university as contractual. The university
requires the student to meet certain requirements, e.g., maintain
academic eligibility, attend practices, compete in games and follow
the rules and regulations of the institution, the conference and the
NCAA. In return the athlete receives the benefits of the
scholarship. If an integral part of an agreement is not fulfilled or if
one or both parties are unable to comply with the agreement, then
the courts have allowed the college to rescind or revoke the
scholarship.
A contract is enforceable because of the interplay among offer,
acceptance and consideration. When a college extends a
scholarship offer to an athlete, the athlete who chooses to attend
that college accepts the offer. The receipt of the scholarship is the
athlete’s consideration, and it is in exchange for his participation in
sports which is the college’s consideration. With the presence of
offer, acceptance and consideration an enforceable contract is
deemed to exist.

422

The NCAA requires that before the student signs a letter of intent
that will form a relationship between the student and the college,
the college must provide him with a statement that will list the
terms and conditions, including amount and duration, of the
student’s financial aid packet. When the student signs this financial
aid agreement, both parties have consented to be bound by the
amount of the grant. Although each college will draft its own
financial aid statement, some clauses are uniform, e.g., the athlete
agrees to abide by the school’s rules and regulations, the rules and
regulations of the conference, and the rules of the team and the
coaching staff. This type of clause is standard. The athlete also
agrees to maintain athletic eligibility.
If the student does not meet any of the obligations as outlined in
the agreement, the college often will reserve the right to revoke the
student’s athletic scholarship. The national letter of intent and the
financial agreement combine to impose a series of obligations that
the athlete will owe to the institution, obligations that exceed those
imposed upon the average college student.
In Taylor v. Wake Forest University, 16 N.C.App. 117, 191 S.E.2d
379 (1972), the university terminated an athlete’s scholarship when
that athlete refused to continue in football practice. Because of the
contractual nature of the obligations between the athlete and the
school, the court decided that the student was obliged to participate
in the football program as an agreed upon exchange for his
scholarship.

423

A federal trial court in Begley v. Corporation of Mercer

University, 367 F.Supp. 908 (E.D.Tenn.1973), also used contract
law to determine the rights of both the athlete and the school. In
Begley, the school sought to terminate an agreement for an athlete’s
scholarship when it discovered that the entering student did not
have the required high school grade point average. The court found
that because the student did not meet one of the conditions of the
contractual agreement, he could not expect the university to
perform its part of the contract by allowing him to keep the athletic
scholarship.
 The contractual nature of the scholarship was further explored in
dictum in a 1979 Alabama case where the court noted that the
relationship between a college athlete who accepts a scholarship
and the school which awards that scholarship is contractual in
nature: the athlete agrees to participate and the school in return
agrees to give assistance to that athlete. Gulf South Conference v.
Boyd, 369 So.2d 553 (Ala.1979).
However, a different result was reached by the Indiana Supreme
Court. The court had to decide whether a scholarship athlete who
injured himself playing football was eligible for workers’
compensation. The Indiana Court of Appeals found that the athlete
was an employee and noted that the University had conceded that
some form of contract did indeed exist between the school and the
athlete. The Court of Appeals then found that there was a contract
between the athlete and the school to play football.

424

This decision, however, was unanimously reversed by the Indiana

Supreme Court. Although it agreed that the determination of
whether an employee/employer relationship existed between the
athlete and the school was indeed complex and involved many
factors, the court held that as regards whether a contract of
employment, either expressed or implied existed, the primary
consideration must be intent. The court found that there was no
intent to enter into an employee/employer relationship at the time
the parties entered into the agreement. The court found the
financial aid that was received was not considered by the parties to
be payable income; it was not given to the athlete in return for
playing football anymore than academic scholarships are given to
other students for their high scores in standardized tests.
 The court found that in both cases, whether academic or athletic
scholarships, the students will receive benefits based on their past
demonstrated ability in various areas which will enable them to
pursue opportunities for higher education as well as to progress
further in their own field of endeavor. Scholarship recipients then
are students that seek advance education opportunities and are not
professional athletes, musicians or artists that are employed by the
school for their skills in their respective areas. Rensing v. Indiana
State University Board of Trustees, 437 N.E.2d 78 (Ind.App. 4
Dist.1982).

425

After Rensing, there is a real possibility that the scholarship

agreements will not be viewed as an employment contract.
Accordingly, it should follow that there is no contractual obligation
between the athlete and the school. However, it is obvious that
athletes are obligated to perform under the tenets of at least a quasi-
contractual relationship. These schools may later deny that a
contract existed in order to avoid extending the protection and the
benefits of a contractual relationship to athletes. This will give the
school an advantage, however, the issues as presented in Rensing
are still far from being completely settled.
C. WORKERS’ COMPENSATION
The status of amateur athletes and the evaluation of college
scholarships has mainly occurred in workers’ compensation cases.
Typically an injured collegiate athlete on an athletic scholarship
seeks workers’ compensation coverage for that injury. The crux of
the problem usually is whether that athlete is or is not an employee
for purposes of the particular workers’ compensation statute. If that
individual is viewed as an independent contractor or a person of
some other status, rather than an employee, then that person would
not be included under workers’ compensation coverage. These
cases that interpret the eligibility of workers’ compensation
coverage for athletes on scholarships are important because they
ascertain whether and under what circumstances collegiate athletes
on scholarships will be viewed as employees.

426

Although there are numerous cases that hold that a scholarship

athlete is eligible as an employee for workers’ compensation
purposes, the case of Rensing v. Indiana State University Board of
Trustees, 444 N.E.2d 1170 (Ind.1983) (discussed supra), comes to
a different conclusion. In that case, the Indiana Supreme Court
denied workers’ compensation benefits and held that an individual
on an athletic scholarship is not an employee of the particular
school.
It must be noted, however, that pre-Rensing cases have indeed
decided that a scholarship athlete is an employee of the school; that
a contractual relationship exists between the scholarship athlete and
the school; and that the athlete who is injured during competition
should be awarded workers’ compensation. See Van Horn v.
Industrial Accident Commission, 219 Cal.App.2d 457, 33 Cal.Rptr.
169 (2 Dist.1963); University of Denver v. Nemeth, 127 Colo. 385,
257 P.2d 423 (1953); Taylor v. Wake Forest University, 16
N.C.App. 117, 191 S.E.2d 379 (1972); and Begley v. Corporation
of Mercer University, 367 F.Supp. 908 (E.D.Tenn.1973). The more
indices of employment that are present the more of a chance that
the athlete will be deemed an employee for workers’ compensation
purposes. The Colorado Supreme Court has stated that simply
performing for the school’s athletic team does not confer the status
of an employee upon the athlete for purposes of workers’
compensation. However, if the athlete receives a financial benefit
in exchange for and conditioned upon participation in that
university’s athletic program, then the athlete will

427

be construed as an employee of that school for purposes of

workers’ compensation coverage. State Compensation Insurance
Fund v. Industrial Commission, 135 Colo. 570, 314 P.2d 288
(1957).
In Rensing where the Indiana Supreme Court reviewed the issue
of whether the requisite employer/employee relationship existed
between plaintiff and the school, the court found that the claimant
failed to establish that a contract of employment existed between
the parties. Plaintiff’s failure to demonstrate the existence of this
essential element precluded the possibility of the court finding him
to be an employee for workers’ compensation purposes. However,
Rensing did not specifically disagree with the earlier decisions that
found that a scholarship athlete is an employee for workers’
compensation purposes; rather, Rensing turned on the question of
whether sufficient proof was proffered as regards the existence of a
contract of employment. Rensing v. Indiana State University Board
of Trustees, 437 N.E.2d 78 (Ind.App. 4 Dist.1982).
D. TAXATION
Courts have also reviewed whether athletic scholarships are
contracts and whether the athletes are employees in the context of
the taxability of scholarships. The question is whether scholarship
athletes are university employees and, if they are they should be
taxed on their scholarship income. Usually the scholarship is not
includable within a person’s taxable gross income. The athlete will
not
 428

be taxed for all services, accommodations, and amounts that cover

expenses for travel and equipment, as long as they are incident to
the scholarship and expended for that purpose. However, this
exclusion from taxation will not apply to amounts received by a
student athlete which represents payment for the rendering of
services for part-time employment as a condition of the receipt of
the award. To qualify as non-taxable, the scholarship must be in the
nature of a disinterested educational grant without the requirement
of any substantial quid pro quo from the student athlete.
If the factual circumstances indicate that the athlete received the
scholarship in consideration for his athletic participation, then the
award will not be within the exclusion from taxability for
scholarships because of the quid pro quo arrangement. The
scholarship grant will be taxable. Taylor v. Wake Forest University,
16 N.C.App. 117, 191 S.E.2d 379 (1972).
If the relationship is a “pay for play” arrangement between the
athlete and the school, the scholarship income will be taxable. The
IRS will use certain tests to determine the taxability of an athletic
scholarship. Some courts have used a primary purpose test. The
court will inquire whether the amount was given to benefit the
grantor or the grantee; if the scholarship primarily benefits the
grantor, then it is not an excludable scholarship. This test requires a
scrutiny of the grantor’s motives since they relate to the purpose of
the grant itself.

429

This test has generally given way to the quid pro quo analysis.
 The quid pro quo analysis involves an appraisal of whether the
grant results from a bargained for relationship as opposed to an
endowment or no strings grant. Only those grants which lack a quid
pro quo will be tax free. However, athletic scholarships usually
involve a quid pro quo. Accordingly, it is important to go to the
language of the scholarship grant itself. Also applicable to the quid
pro quo inquiry is the type and nature of the negotiations that led to
the awarding of the scholarship. If the grant is a result of a
bargained for arrangement, then the scholarship will not withstand
§ 117 scrutiny. Recruiting is very elaborate and coaches visit high
schools and bring prospective athletes to their colleges. This tends
to imply the existence of negotiation: the give and take of trying to
recruit a scholarship athlete and trying to sign scholarship athletes
indicate a bargained for arrangement to receive the scholarship.
This is further proven by the National Letter of Intent Program in
which a student certifies that he intends to attend a particular
school.
The last factor in the determination of the quid pro quo is the
evidence of a present contractual obligation. The finding of
consideration to support a contract will parallel to some extent the
finding of a quid pro quo to establish taxation. Therefore, if one
ascertains that a contract does indeed exist, this fact will support
the existence of a quid pro quo. As a caveat, a quid pro quo will be
established when an

430

athlete loses a scholarship if he withdraws for any reason other than

a physical injury.
E. EMPLOYEE STATUS
 The discussion of taxation, workers’ compensation, and
contractual position all relate to the question of the status of the
scholarship athlete as a possible employee. If a scholarship athlete
is deemed to be an employee, then he or she will be covered under
workers’ compensation; however, that income will also be taxable.
In the Rensing case, the Indiana Supreme Court concluded that
plaintiff did not receive pay for playing football within the meaning
of the applicable act. Because of that, an essential element of the
employer/employee relationship was lacking. Rensing v. Indiana
State University Board of Trustees, 444 N.E.2d 1170 (Ind.1983).
However, in University of Denver v. Nemeth, 127 Colo. 385, 257
P.2d 423 (1953), the court found that the college athlete was an
employee of the school. The consideration received by plaintiff was
actually an exchange for his participation in football even though
the consideration was directed to him through his salary for
cleaning the tennis courts. His financial gain was an exchange for
playing football. Since the compensation was conditioned upon
football participation, the court decided that he was an employee of
the school and his participation was the form of his employment.

431

After the NLRB decision in Northwestern University and College

Athletes Players Association (CAPA), case 13–RC–121359 (NLRB,
Region 12, March 26, 2014), scholarship athletes are deemed to be
University employees and allowed to unionize. However, this
decision was overturned on August 17, 2015, by the full Board
with the caveat that this decision is limited to Northwestern grant-
in-aid scholarship football players.
 433

CHAPTER 20
INTERNATIONAL SPORTS
Sports is international in scope, not only with the Olympics, but
also with international leagues in different sports. American sports
are becoming more and more international in their own outreach.
All the major leagues now have some teams with foreign venues
and some sports, for example, football and basketball, are actively
courting foreign markets. Under international law, a Court of
Arbitration (CAS) for sport and specialized tribunals help resolve
sports-related disputes that transcend national boundaries.
On May 22, 2015, the United States Attorney General filed an
indictment in the Eastern District of New York against FIFA
officials. This is an unprecedented attempt to penalize the soccer
giant, FIFA, by the U.S. Attorney General’s Office. It is also
unprecedented in its length—161 pages. The named defendants
were Jeffrey Webb, Eduardo Li, Julio Rocha, Costas Takkas, Jack
Warner, Eugene Figueredo, Rafael Esquiver, Jose Maria Martin,
Nicholas Leoz, Alejandro Burzaco, Aaron Davidson, Hugo Jinkis,
Mariano Jinkis, and Jose Margulies (a.k.a. Jose Lazare). The
indictment states that FIFA and its six confederations collectively
constitute an “enterprise” under 18 U.S.C.A. § 1961(4). The
indictment accuses the FIFA officials of conspiring to use their
FIFA positions to engage in schemes involving the solicitation,
offer, acceptance, payment, and receipt, of undisclosed

434
and illegal payments, bribes, and kickbacks. U.S. v. Webb,
Indictment, 15 CR 0252 (RJD) (RM2) (E.D. N.Y., May 22, 2015)
(see Appendices).
A. OLYMPICS
International competition generally involves open competition
among amateur and professional athletes. The United States
Olympic Committee (USOC) has governed American participation
in the Olympic and Pan American games and has operated under a
federal charter since 1950. 64 Stat. 902, 36 U.S.C.A. §§ 371–383.
The United States Olympics Committee is the sole organization in
the United States that is recognized by the international governing
board of the Olympics, the International Olympics Committee
(IOC). The USCO is the National Olympic Committee (NOC) for
the United States; it also serves as America’s National Paralympic
Committee. The USOC contains more than 200 amateur groups,
but under the IOC rules its voting control lies in the groups which
are recognized by the international sports federation for those
particular sports which are a part of Olympic competition. The
USOC has a constitution and bylaws which govern its
administrative functions. For example, pursuant to the Amateur
Sports Act of 1978, 36 U.S.C.A. § 391, the Athletic Congress
(TAC) was designated as the national governing body for track and
field athletes in the United States. TAC established a trust program
that enables its member athletes to receive athletic participation
funds and sponsorship payments

435

without losing their Olympic and international eligibility.

Under public international law, the IOC is registered under Swiss
laws as a non-profit, private society with legal status under both
national and international law. Switzerland has also given it special
status under tax and labor laws because of its international
character. Under its own charter, the IOC has a legal status under
international law and a perpetual succession. The Olympic Charter
serves as the best evidence of international custom in governing
international competition and related disputes. The Charter forms
the basis of international sports law.
B. OLYMPIC AND AMATEUR SPORTS ACT
As a response to the report of the President’s Commission on
Olympic sports, the Amateur Sports Act of 1978 (as it was then
called) was created. 36 U.S.C.A. §§ 371–396, et seq. (It was
reorganized under the name “Ted Stevens Olympic and Amateur
Sports Act,” 36 U.S.C.A. §§ 220501 et seq.). The Act was
established to coordinate amateur athletic activity; to recognize
certain rights that belong to amateur athletes; and to provide for the
resolution of disputes involving national governing bodies. The Act
amends the statutory provisions that relate to the United States
Olympic Committee. It also established that the USOC is
authorized (for any sport which is included in the Olympic or Pan-
Am games) to recognize as a National Governing Body (NGB) any
amateur sport group, which files an

436

application and is eligible for recognition. However, only one NGB

is recognized for each sport for which an application is approved.
Prior to recognition, the USOC holds a hearing on the application
which is open to the public. It also must publish notice as regards
the hearing. An amateur sports organization will be eligible to be
recognized as an NGB only if it, inter alia, is incorporated as a
domestic, non-profit corporation with the purpose of advancing
“amateur” athletic competition (the distinction between “amateur”
and professional is no longer a sharp one); submits an application
for recognition; agrees to submit to binding arbitration;
demonstrates that it is autonomous in its governance of the sport;
demonstrates open membership; provides equal opportunity to
amateur athletes and coaches without discrimination; is governed
by a Board of Directors who are selected without regard to race,
color, religion, national origin or sex except in sports where there
are separate male and female programs; demonstrates that the
Board of Directors includes among its voters individuals who are
actively engaged in amateur athletic competition in that sport;
provides for reasonable direct representation of the sport for any
amateur sports organization for which recognition is sought;
conducts national programs; demonstrates that none of its officers
have conflicts of interest with other national governing bodies;
provides procedures for prompt equitable resolution of grievances;
does not have eligibility criteria relating to amateur status which
would be more restrictive than those of the appropriate

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international sports group; and demonstrates that it is prepared to

meet the obligations imposed on an NGB. 36 U.S.C.A. § 391(A).
The USOC will recommend and support an NGB to the appropriate
international sports group as a representative of the United States
for that sport.
The Amateur Sports Act of 1978 is very detailed regarding
specification of the duties of an NGB and establishes a guide which
relates to the competition of amateur athletes and events sponsored
by other organizations. 36 U.S.C.A. § 392(B). The Act also
provides that any amateur sports group which is eligible to belong
to an NGB may seek to require the NGB to comply with its
responsibilities under the act, by filing a written complaint with the
USOC; but only after exhausting all remedies within the
appropriate NGB for correcting the problems (unless it can be
proven that those remedies would have resulted in unnecessary
delay). 36 U.S.C.A. § 395(A). The Act also provides that amateur
sports groups may seek to replace an NGB under certain
circumstances. 36 U.S.C.A. § 395(B). Disputes may be arbitrated
by the American Arbitration Association or under rules of
international sports federations, by the CAS or other special
tribunals. 36 U.S.C.A. § 395(c). Also, there are provisions which
are designed to protect the opportunity of amateur athletes to
compete. 36 U.S.C.A. §§ 374(8), 382(B).
On June 19, 2003, the Independent Commission on Reform of the
United States Olympic Committee issued its recommendations for
changing the

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structure of the United States Olympic Committee. The

commission, appointed by USOC at the request of U.S. Senators
McCain, Stevens, and Campbell, recommended the following
changes in USOC governance:
The business and operations of the USOC be governed by an
elected nine-person Board of Directors. The Board would
include five independent directors, two elected from individuals
proposed by the Athletes Advisory Council (“AAC”), and two
elected from individuals proposed by the National Governing
Bodies Council (“NGB Council”). The terms of Board members
would be limited to six years on a staggered basis. The Board
will be led by a Chair of its own selection.
 An Assembly be created to represent the volunteer core of the
U.S. Olympic Movement. Participants will include the National
Governing Bodies (“NGBs”), the athletes, community based
organizations (“CBOs”), education-based organizations
(“EBOs”), disabled-athlete sports organizations (“DSOs”), and
other groups, Olympian alumni and the American public. The
assembly will provide a forum for all of these groups and a
device through which the Board will have the opportunity to
exchange information and interact with those constituencies.
The USOC be required to report annually to the United States
Congress, the constituent

439

groups, and the American public on its finances and work done.
The Board of the USOC be required to establish financial and
ethical whistleblower procedures for the receipt of complaints
by USOC employees and volunteers and procedures prohibiting
retaliation against USOC volunteers and employees who
provide whistleblower information.
In 2013 and every ten years thereafter, an outside independent
commission be appointed to review whether the governance
structure remains appropriate for the current Olympic
movement in the United States.
It is the hope of Senator McCain, the chair of the Senate
Commerce Committee, that these changes can be incorporated
into amendments to the Amateur Sports Act.
Former U.S. rower Gregory Ruckman, along with other similarly
associated former rowers, sought arbitration under the Ted Stevens
Olympic and Amateur Sports Act, challenging the rowing
association procedures in selecting Olympic athletes. The
arbitration award was confirmed, but then only Ruckman sought to
remove the case to federal court. The court held that Ruckman
lacked subject matter jurisdiction because the Amateur Sports Act
expressly stated that it does not create a private right of action. U.S.
Olympic Committee v. Ruckman, 2010 WL 2179527 (D. N.J.).

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C. BOYCOTTS
Boycotts of Olympic sports occasionally occur by countries, who
attempt to make political gains through not participating. An
example is the boycott of the United States from the 1980
Olympics as a protest to the activities of the USSR in Afghanistan.
The 1980 games were set to occur in Moscow, and the Soviet
Union then correspondingly boycotted the 1984 games in Los
Angeles. Usually these boycotts are based on political motivation
(e.g., a protest in the 1980s against South Africa’s apartheid).
Boycotts are clearly illegal when their purpose is to induce conflict
or to engage in measures of coercion that would violate the United
Nations Charter. Similarly, they are also illegal when their purpose
is to confirm diplomatic non-recognition in violation of governing
international rules. Under some circumstances, boycotts can fall
within a protected range of retaliatory sanctions. To be within this
range the boycott must not violate provisions of the United Nations
Charter or other binding instruments, it must conform to state
practice, and it must not violate general principles of law. Also,
otherwise illegal boycotts may be acceptable in some
circumstances, if they are a reprisal measure against an illegal act
of another state.
 As regards the American boycott of the 1980 Moscow Olympics,
a federal district court held that the USOC has the authority to
decide not to send a team to the summer Olympics even if that plan
was based on reasons not directly related to sports considerations,
e.g., political considerations. While

441

reaching this decision, the court rejected an argument that the

provisions of the Amateur Sports Act of 1978 which relate to
athletes’ rights supersede the USOC’s authority. Also, it held that
there was no private cause of action under this Act to enforce a
right to compete in the Olympics in the face of a ruling by the
USOC not to compete. DeFrantz v. United States Olympic
Committee, 492 F.Supp. 1181 (D.D.C.1980).
What has reconfigured the legal process in sports is the rapidly
growing role of international sports law as a distinct regime
governing international and, to a lesser extent, domestic sports
activity. Until the 1990’s the principal focus within this process was
on political issues, such as boycotts of the Olympic Games or
competition involving athletes from apartheid South Africa, and on
issues of player eligibility, given a new more flexible distinction
between professionals and amateurs. Today, the focus of
international sports law has shifted toward organizing and judging
of competition, doping of athletes, violence in sports, and
commercialization of the sports arena and athletes.
The nongovernmental foundation of international sports law is
unusual. It is noteworthy that the constituent organizations of the
Olympic Movement, such as the International Olympic Committee
(IOC) and international sports federations (IFs) for each sport, are
nongovernmental organizations with international legal personality
whose normative instruments such as the Olympic Charter have

442

binding force. The development of this process is striking insofar

as the constituent organizations were intended to be not only
strictly nongovernmental but also limited to the staging of specific
events exclusively for amateurs. As the events became the peak of
aspiration for young athletes and as open competition blurred the
distinction between professional and amateur athletes, however, the
process of international sports law rooted in the Olympic
Movement began to influence professional athletes and purely
domestic competition.
National legal systems have strengthened this process. For
example, United States courts have normally refused to review
decisions of nongovernmental sports bodies and have characterized
the Olympic Charter as a binding international agreement.
Moreover, the Amateur Sports Act designates the United Olympic
Committee and constituent national bodies for each sport to govern
Olympic, Pan American and Paralympic competition in the United
States, participation of United States athletes in international
competition, and their solution of related disputes. The Act applies
to all participants in designated competition regardless of their
earnings from sport, thereby extending the process of international
sports law far beyond such competition so as to regulate athletes
and athletic activity, at least minimally, in all sports that are fully
recognized by the IOC. Even sports that have not been fully
recognized by the IOC, such as golf and North American-style
football, are influenced by

443
such aspects of the emerging regime as uniform testing procedures
and sanctions related to doping of athletes.
The resolution of sports-related disputes is complex, involving
administrative facilities within sports associations and IFs, national
and international arbitration, and courts of law. The Court of
Arbitration for Sport, headquartered in Lausanne, Switzerland, is a
particularly effective tribunal of both first instance and last resort.
Its jurisdiction extends, for example, to competing claims for
accreditation of sports bodies, Olympic judging controversies,
commercial and intellectual property right disputes, and appeals
from anti-doping sanctions.
Doping of athletes (and horses in equestrian events) has been a
particularly troublesome issue. Until recently, efforts to provide a
level playing field of competition by sanctioning and excluding
abusers suffered from a lack of uniformity among both national
regulatory systems and different sports. Now, however, the World
Anti-Doping Authority (WADA), assisted by constituent national
organizations (e.g., USADA), has established uniform rules,
sanctions, and testing procedures.
Regional Law, particularly within the European Union, has
played an increasingly important role in shaping sports activity at
both international and domestic levels. For example, the European
Court of Justice instituted new rules for free agency of football
(soccer) players and imposed restrictions on national formulas for
the constitution of football

444

(soccer) teams. Similarly, boycotts by the Supreme Council for

Sports in Africa encouraged the elimination of apartheid in South
Africa.
 D. DRUG TESTING
In the Olympic Charter and the constitutions and bylaws of
international sports federations, it is made clear that the use of
drugs contravenes the spirit of fair play in sports. The use of drugs
is forbidden in all Olympic competitions, and the competitors will
be liable to medical control and examination that are carried out in
conformity with the rules of the IOC medical commission. There
are a long list of procedures for more than 300 banned substances.
Individual violators and teams that benefit from the use of drugs
will be subjected to disqualification and exclusion under the
Olympic rules.
To enforce the ban on certain drugs, the International Olympic
Committee requires that each competition site have adequate
testing facilities and that each competitor also agree to submit to a
possible medical examination at the risk of exclusion. Any
competitor who refuses to submit to an examination or is found
using a drug must be excluded from competition. If this athlete is
also a team member, the competition in which the infringement
occurred will be forfeited by that team. Penalties will vary
according to whether use was deliberate or accidental or whether
the use constituted a first or a second offense. Any offense during
competition would lead minimally to

445

suspension from the games and forfeiture of all medals won during
that competition.
Although not related to drug testing per se, another similar
problem is the practice of blood doping. This is a technique in
which an athlete’s blood is drawn from his body during training
and then returned to his body just before competition. This
technique is used in sports that require endurance such as cycling
or cross-country skiing. These transfusions are banned by
international rules.
In addition to IOC regulations against drug usage, there also are
individual agreements between the various Olympic committees of
the various countries that are established to ensure drug testing
procedures. For example, the now moot United States Olympic
Committee (USOC)/Olympic Committee of the Soviet Union
(SOC) doping control agreement committed their organizations to
work together to eliminate blood doping and the use of
performance enhancing drugs (steroids) in athletes under their
control. The CAS has, however, upheld more drastic decisions of
sports bodies including exclusion of athletes from competition for
life.
In ruling on a longstanding dispute between the international and
American track federations, a panel of the Court for Arbitration for
Sports concluded that USA Track & Field did not have to disclose
the results of drug tests of 13 athletes because of its and the
athletes’ reliance on a confidentiality policy it had maintained,
despite

446

rules by the International Amateur Athletic Federation (IAAF)

requiring such disclosure.
Typically, a participant in Olympic competition will test positive
for a banned substance and have their case heard in front of the
Court of Arbitration for Sport. Such was the case in Australian
Olympic Comm. v. Federation Internationale de Bobsleigh et de
Toboganning, CAS ad hoc Division (O.G. Turin OG) 010, award of
Feb. 20, 2006, where the Brazilian and New Zealand four man
bobsled teams qualified for the Olympic Games by finishing first
and second in the North American Challenge Cup. The Australian
team finished third. However, the Olympic Committee conducted
tests, in which one bobsledder tested positive for nandrolone. The
result was announced to the press and the bobsledder was sent
home. The Australians appealed to CAS to declare Brazil
ineligible, and allow Australia to qualify. However, because the
positive result was announced without confirmatory analysis, it was
considered an adverse analytical finding and not a doping violation
per se. Therefore, the Brazilian team was not disqualified since
there was no doping violation.
A new global code against drugs in sports was approved by the
IOC. The World Anti-Doping Code (WADA Code), adopted in
March 2003 by sports bodies and governments, sets out uniform
rules and sanctions for all sports and countries and was approved
on the final day of the IOC general assembly. It is the first
international policy against banned performance-enhancing
substances and calls

447

for a two-year suspension for steroid or other serious drug offenses.

The Code adopts uniform testing procedures and standard
punishments for violations. Athletes will be subject to random, out-
of-competition testing for everything from ephedrine to steroids to
marijuana. The Code calls for a two-year suspension for a first
offense and a lifetime ban thereafter.
LaShawn Merritt, Olympic gold medalist in the 400 meters and 4
× 100 relay was declared ineligible for 21 months for taking
ExtenZe, a wildly advertised alleged male enhancement
supplement which he purchased at a 7-Eleven store. The
Arbitration Panel found that Merritt was clearly negligent because
he did not look at the label in fine print on the back of the product
to see what ingredients were included. But, the panel did find that
sports performance enhancement was the last thing on his mind,
and that the ingestion was accidental. USAD v. Merritt, ARA no. 77
190 00293 10 (Oct. 15, 2010).
E. COURT OF ARBITRATION FOR SPORT
The Court of Arbitration for Sport (CAS) was created and
formally established in 1984 by the IOC for resolving disputes
related to international sports. Its headquarters are in Lausanne,
Switzerland. The CAS also maintains offices in Sydney and New
York to facilitate its work. The purpose of the CAS is to provide a
central specialized authority to decide sports-related disputes. Its
jurisdictions is broad and extends to all

448

sports activities that are not otherwise provided for by the Olympic
Charter.
The Charter itself provides that “any dispute arising on the
occasion of, or in connection with, the Olympic Games” must be
submitted exclusively to the CAS. Olympic Charter, Rule 74.
According to the CAS Rules of Procedure, the applicable law to
decide a dispute is that chosen by the parties or, in the absence of
such a choice, Swiss law. In the instance, of a dispute between an
athlete and an IF where the parties have not chosen the governing
law, Swiss choice-of-law rules will refer to the statutes and
regulations of the IF. The parties may also authorize both written
and oral arguments.
 The CAS does not resolve technical questions such as those
related to the technical rules of the game, scheduling of
competition, or prescribed dimensions of the playing field or ball
court. The CAS addresses such issues as the eligibility and
suspension of athletes, the adequacy of protections for individual
athletes during drug testing, breaches of contract between an
athlete and a sports club, the validity of contracts for the sale of
sports equipment, television rights, licensing, sponsorship, and the
nationality of athletes for purposes of competition. Basically, the
CAS hears three kinds of disputes: disciplinary, eligibility-related,
and commercial.
The CAS arbitrates disputes brought by individual athletes as
well as by IFs and national governing bodies. The CAS is
empowered to review decisions of an IF if any of the following are
at issue: the IF’s constitution, its powers over an individual

449

athlete’s person or property, its adherence to the principles of good

faith and general contract law, or its compliance with procedural
fairness. Advisory Opinion at the request of the Australian
Olympic Committee, CAS 2000/c/267 ACO (2000).
The advantages of the CAS arbitral procedures have been
described as confidentiality, specialization, flexibility, and
simplicity of the procedure, speed, reduced costs and international
effectiveness of the arbitration award. CAS awards are final and
binding on the parties. They can be enforced internationally by the
New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards. Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, June 10, 1958, 330
U.N.T.S#3.
 The CAS instituted the 1994 reforms and also restructured the
CAS by creating two principal arbitration divisions: an Ordinary
Arbitration Division and Appeals Arbitration Division so as to
distinguish disputes of the first instance from those arising on
appeal of decisions by sports bodies, including IFs. In addition to
the two arbitration divisions to hear contentious cases, the Code’s
Procedural Rules provide for advisory opinions. Constituents of the
Olympic Movement may also request consultation proceedings
concerning any legal issue with respect to the practice or
development of sports or any activity related to sports. Since 1999
the CAS also offers a mediation procedure, but it excludes doping
and disciplinary disputes on the premise that an athlete should not

450

be allowed to negotiate a settlement of those issues. It follows the

parties’ own stipulations; failing, the CAS mediator determines the
appropriate procedure.
Beginning with the Atlanta Games in 1996, the CAS has
maintained on-site arbitration to render expeditious decisions on
issues that arise in major competition. Since 1996, the decisions
from these ad hoc proceedings have arbitrated numerous issues at
all the Olympic Games, the Commonwealth Games, and the
European football championships. The special rules for the ad hoc
proceedings provide for applicable regulations, general principles
of law, and rules of law.
The CAS allowed South African double amputee quarter-miler
Oscar Pistorius who runs on two carbon-fiber blades to compete
against able-bodied athletes. The court ruled that the decision by
the International Association of Athletics Federations “fell short of
the high standards that the international sporting community is
entitled to expect.” Pistorius v. IAAF, CAS 2008/A/1480 (May 16,
2008).
In the celebrated case of Churandy Martina, the IAAF may have
missed the mark when it stripped the sprinter from the Netherlands
Antilles of his silver medal in the 200-meter final in the 2008
Olympics for a lane violation. The medal was subsequently
awarded to U.S runner Shawn Crawford, whose teammate Walter
Dix was bumped up to receive bronze. Martina argued that he
should not have been disqualified since the USOC failed to

451

file its protest within 30 minutes of the final announcement of the

race’s results, which is required by IAAF rules. Think of it as a
mini-statute of limitations and comparable to a steward’s appeal in
horse racing, where the specified time for protest is sacrosanct.
Additionally, Crawford did not authorize the protest. Both the
IAAF and USOC agreed with Churandy Martina and the
Netherlands Antilles Olympics Committee that the CAS did not
have the authority to hear the appeal. On somewhat dubious
technical grounds, the CAS arbitrator determined that he could hear
the appeal under the Olympics Charter. In an action, which appears
to be ultra vires and beyond his level of decision-making, the
arbitrator concluded that both the IAAF rules and the “field of
play” doctrine banned him from overturning the decision of the
Jury of Appeal. He also determined that the scope of IAAF rules
and the “field of play” doctrine could be expanded to include a
decision as to the relative timeliness for filing a protest or a
committee’s authority to lodge an appeal. In short, he incorrectly
categorized the decision-making process here as a “field of play”
decision about an event and its results. His mistake was that he
challenged the IAAF, whose rules control track and field and
whose expertise must not be doubted. Netherland Antilles Olympic
Committee v. IAAF, CAS 2008/A/1641 (re Churundy Martina).
Andrea Anderson and six other female athletes who competed in
the 2000 Sydney Olympic Games and won a bronze in the 4 ×
400m. relay appealed the decision that stripped them of their
metals. The

452

missing member is Marion Jones, who admitted that she was

involved in the BALCO scandal; she also acknowledged that she
lied when she previously denied drug use. The CAS arbitrator
overturned the IOC’s decision to strip the female sprinters of their
metals and ordered the IOC to pay all costs associated with the
arbitration. Anderson v. IOC, CAS 2008/A/1545 (July 6, 2010).
 453

CHAPTER 21
DISCIPLINE AND PENALTIES
A. POWER TO DISCIPLINE AND PENALIZE GENERALLY
A major attribute of any amateur sports association is its power to
discipline and penalize its members. The power to discipline and
penalize is an essential and important aspect of the ability to
determine if a particular athlete is eligible to participate. Rule
enforcement by athletic organizations can include investigations,
prosecutions and adjudication. If there is a potential problem, the
organization will investigate the institution and, if applicable, the
individual player. Usually, the athletic regulatory group must
provide enforcement through fair, reasonable and constitutional
procedures.
Enforcement must adhere to procedural due process. Due process
will be determined by a judicial evaluation of the particular
circumstances of each case. Due process comes to play when the
act in question is a state action and infringes on a property right,
i.e., when the plaintiff can show a legitimate claim of entitlement to
the benefit which is sought to be protected.
If the incident is subject to due process, then it must be
determined what type of process is due. The courts will balance the
interest of parties including the importance of the interest, the type
of proceeding in which the interest is reviewed, the

454
appropriateness of the procedure required to prevent any
deprivation of the protected interest and the cost of the procedure.
Another consideration is the seriousness of the possible sanction
that may be imposed. Due process requires that before an action is
taken the person who is to be affected must be given a fair hearing
which will include notice and a hearing.
In Margarita v. State Athletic Commission, 189 Cal. App. 4th
159, 116 Cal. Rptr. 3d 888 (2d Dist. 2010), the court affirmed the
Commission’s revocation of the boxing license of Antonio
Margarito, who was scheduled to fight Shane Mosley for the
welterweight championship. Inspectors found an illegal “knuckle
pad” taped to one of Margarito’s hands. During the hearing,
Margarito argued that he could not be held liable for the conduct of
his trainer. The Commission, however, found that knowledge or
intent was not required to find an infraction.
Janet Jackson’s “wardrobe malfunction” in the Super Bowl
Halftime Show cost the television broadcasting company sanctions
and monetary forfeiture for the baring of her breast for 9/16 of one
second. The broadcasting company transmitted this brief image
over public airwaves, resulting in the FCC’s punitive actions. At
the time of the show, the FCC’s policy was to exempt fleeting
material, however, the FCC sanctioned petitioner under its new
policy, which was implemented after the Super Bowl incident. The
court held that the FCC could not change a well-established course
of action

455

without supplying notice and an explanation for its policy change.

CBS Corp. v. F.C.C., 663 F.3d 122 (3d Cir. 2011).
 B. NCAA
1. POWER TO SANCTION
The National Collegiate Athletic Association (NCAA) is the
regulatory board in collegiate athletics. Their preeminent function
is to penalize and discipline. After NCAA v. Tarkanian, 488 U.S.
179 (1988), their disciplinary measures will not be deemed to be
state action. The NCAA was not required to protect Tarkanian’s
constitutional rights because the NCAA is a private organization
which acted independently of the state supported University of
Nevada, Las Vegas (UNLV), when that school sought to discipline
its coach. Tarkanian argued that UNLV had delegated its
disciplinary power to the NCAA, and, because of that, the NCAA
acted under the color of state law. However, the Supreme Court did
not agree. The Supreme Court held that the NCAA is in actuality
an agent of its member institutions, which as competitors of UNLV,
have an interest in the even-handed enforcement of the NCAA’s
recruitment and disciplinary standards.
There is no question that the NCAA has significant power to
invoke sanctions against a university’s athletic program, but a few
states have added power legislatively to enhance preexisting
sanctions for any NCAA-imposed violations. Texas,

456

for example, enacted legislation that stipulates that anyone that is

shown to have violated the NCAA rules can be liable for monetary
damages resulting from the sanctions that were enforced against the
school. These damages can include ticket or television revenues
that were lost because of probation or suspension by the NCAA
against that university.
 The NCAA disciplined the former Tennessee men’s basketball
coach Bruce Pearl with a three-year show-cause penalty. Coach
Pearl was penalized individually. The NCAA punished Pearl for
lying to investigators about improperly hosting recruits at his
home. See “NCAA Hits Pearl with Three-Year Penalty. Sanction
Limits Job Prospects; Kiffin Receives Better Outcome,” Houston
Chronicle at C3 (Aug. 25, 2011). See also Lee, A Reception of
Impropriety: The Use of Package Deals in College Basketball
Recruiting, 17 Vill. Sports & Ent. L.J. 59 (2010).
2. DEATH PENALTY
The most onerous sanction that the NCAA can enforce against a
school is the “death penalty”. The death penalty, basically, will not
allow a school to participate in a particular sport for up to two
years. The only school to be assessed this penalty in football is
Southern Methodist University. After the imposition of the death
penalty, it was disclosed that boosters and officials had been
implicated in numerous violations. As a response, Texas enacted
legislation that made it a civil offense to violate

457

NCAA rules. Vernon’s Texas Statutes and Codes; Civil Practice &
Remedies Code § 131.
The death penalty is only for repeated violations, that is, if after a
major violation another major violation is found within the five-
year period following the starting date of the first violation.
Basically, the penalty prohibits the coaching staff and the team
from being involved in that sport, either directly or indirectly, for a
two-year period and includes the elimination of all scholarship and
recruiting activities. The price is severe and its effect can last for
more than a one year period; with SMU, the end result was that the
football team was disbanded for two years. The death penalty is
specifically reserved for repeat offenders, with the goal of having a
chilling effect on the prospect of future offenses and assisting in the
self-policing by member universities.
The NCAA has reformulated the “Death Penalty” in eviscerating
Penn State’s storied football program. The NCAA’s penalties
include a $60 million fine, loss of share of Big Ten bowl revenues
(estimated at $13 million), vacating of wins from 1998–2011
(dropping Joe Paterno from 490 to 298), an annual limit of 15 new
scholarships for four years, a four-year post-season ban, a waiver of
transfer rules for current football players, and a five-year probation.
Penn State commissioned an investigative report by former FBI
Director Louis Freeh, which found that Joe Paterno and three other
top university officials concealed sex-abuse claims against former
coach Jerry Sandusky, who

458

was found guilty of sexually abusing 10 boys for 15 years,

sometimes on campus. Most of these penalties were rolled back or
eliminated as a result of lawsuits against the NCAA. (See, e.g.,
NCAA v. Corbett, 296 F.R.D. 342 (M.D. Pa. 2013), mot. to dism.
den., 2014 WL 2619288 (M.D. Pa. 2014).)
C. HIGH SCHOOL SPORTS
Penalties and discipline in high school sports usually take the
form of a denial of eligibility to participate in a particular sport.
Courts usually will not interfere with eligibility determinations
made by a voluntary state high school athletic association. Unless
there is fraud or the defendant acted in an unreasonable manner, the
athletic association will usually be permitted to enforce its rules
without interference by the judicial system.
 Although high school students are not completely denied their
constitutional protections, determinations of these rights is different
in public schools than in other environments. Courts will not
substitute their interpretation of the bylaws of a voluntary athletic
association for an association’s interpretation of those rules, so long
as the association’s interpretation is fair and reasonable. If high
school associations do not act arbitrarily in applying a law which
punishes, disciplines or permits the eligibility of an athlete, then
there is no improper influence. An example would be an
association’s rule that limits eligibility for those who transfer
without a change in the residence of their parents; this rule is not
based on any suspect

459

classification and does not represent an improper discrimination

against a particular group. Therefore, it is constitutionally correct.
Participation in high school sports is not a constitutionally
protected right, even though the athlete may lose the opportunity to
play in tournaments or to compete for scholarships at the collegiate
level.
To help protect high school athletes from concussions, and to
establish rules, removal from athletics, procedures, and safeguards
to prevent and minimize their negative effect, Texas has a new bill
to deal with concussions. House Bill 2038, authored by Rep. Four
Price, R-Amarillo, establishes a three-step process for dealing with
concussions in student-athletes statewide. It was signed into law by
Gov. Rick Perry in June 2011 and became law on Sept. 1, 2011.
Natasha’s Law calls for state-mandated education for all parties,
removal from play of athletes suspected with a concussion, and
guidelines for return to activity. The Centers for Disease Control
and Prevention says 300,000 mild traumatic brain injuries, or
concussions, occur annually in the United States as a result of
participation in sports. The Sports Concussion Institute estimate 10
percent of athletes in contact sports suffer a concussion during a
season, and a 2006 report estimated there are 92,000 cases of
concussions in school sports yearly. See Natasha’s Law [Prevention
of concussions], 2011 Texas H.B. No. 2038, Texas 82nd Leg.,
adopted June 17, 2011.

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D. PROFESSIONAL SPORTS
In professional sports, the athlete-employer relationship is based
on consent and defined by agreements such as the SPK and the
c.b.a. These agreements along with some principles of antitrust law
define the boundaries that the employer must address as regards
disciplining or penalizing athletes for various infractions, e.g.,
gambling, referee arguments or drugs. Those who punish are the
club and the league, and those who receive the punishment are the
athletes. The power to discipline emanates from the consent of the
player himself.
The basic foundation of this power emanates from the SPK which
is an agreement between the employer and the athlete. The SPK,
however, is extremely broad and simply secures a player’s
agreement to abide by the rules which the team or league may
ultimately develop. A typical SPK will only outline that the club
has the power to establish rules that will govern the conduct of the
player, and in return, will require the player’s express agreement
that he will abide by those rules and regulations. Penalties can be in
the form of fines, suspensions, expulsion or a termination of the
contract. The SPK will stipulate the procedural rights that the
player will be protected under; usually they will be in the form of
notice and review by the league’s commissioner. The SPK will also
establish that the commissioner will have independent disciplinary
authority. The question is whether the player has consented to be
bound by

461

the particular disciplinary rules. The answer will depend on the

interpretation of the penalty clause in the SPK and an analysis of
the breadth of the discretion which the league has to define and
punish what they have determined to be inappropriate behavior.
Since it is controlled by both contract and the collective
bargaining agreement, the authority to discipline in professional
sports is not as broad as in amateur sports. The league’s
commissioner cannot use his disciplinary power solely to enhance
the league’s economic position or to restrict the competitive
opportunities of a player.
One example of misbehavior in professional sports is gambling.
Professional sports have always viewed gambling as contrary to the
goal of maintaining the competitiveness and credibility in the sport.
Gambling will diminish the fans’ belief in the honesty of the
games. When players gamble on the outcome, there is no guarantee
that any real competition exists. Leagues have a strong interest in
assuring that the contest is one of pure athletic skill and not
influenced by the participant’s desire to have their team perform in
relationship to the views of oddsmakers. In Molinas v. NBA, 190
F.Supp. 241 (S.D.N.Y.1961) (see also Molinas v. Podoloff, 133
N.Y.S.2d 743 (N.Y.Sup.1954)), a professional basketball player
was suspended for life because he gambled on the outcome of a
game. The court concluded that a rule in a contract such as this was
necessary for the survival of the league and

462

a rule invoked against gambling is as reasonable as could be

imagined.
NCAA v. Christie, 61 F.Supp. 3d 488 (D. N.J. 2014), aff’d, 799
F.3d 259 (3d Cir. 2015), is an attempt by New Jersey to have its
own sports book. The problem is the Professional and Amateur
Protection Act (PASPA), 28 U.S.C.A. §§ 3701 to 3704, which
preempts New Jersey’s own S. 2460, 216th Leg. (N.J. 2014). “This
matter comes before the Court on application for a preliminary
injunction by Plaintiffs,” NCAA, NFL, NHL, and MLB to enjoined
Christopher J. Christie, Governor of the state of New Jersey. “This
case presents the novel issue of whether the 2014 Law, which
purports to partially repeal New Jersey legislation, nevertheless is
preempted by PASPA” (at 498). New Jersey’s “2014 Law ‘repeals’
only those prohibitions to the extent they apply or may be
construed to apply at a casino or gambling house operating in this
State in Atlantic City or a running or harness horse racetrack in this
state to the placement and acceptance of wagers on professional,
collegiate, or amateur sports contexts or athletic events by persons
21 years or older. N.J. Stat. Ann. § 5:12A–7” (at 504). Accordingly,
the court has found that the 2014 Law to be invalid because “it is
preempted by PASPA, and the State Defendants are permanently
enjoined from violating PASPA through giving operations or effect
to the 2014 Law in its entirety” (at 508).
Daily Fantasy Sports (DFS) is traditional fantasy sports leagues
which now can be started and
 463

finished on the same day, using real-world statistics generated on

that day. The sports leagues embrace DFS since fans will now
watch a game to the end, hence earning more advertising dollars,
even though one team is wiping out the other, because fans want to
know the performance of their fantasy team players. Each state has
their own idea of whether the two major DFS sites, DraftKings and
FanDuel constitute illegal betting. See, e.g., California Assembly
Bill 1437, Cal. Legislature 2015–16, Reg. Sess. at 1–2 (amended in
Assembly, Jan. 12, 2016).
As a result of the highly publicized brawl involving players and
fans during the November 14, 2004 NBA game between the
Indiana Pacers and Detroit Pistons in Auburn Hills, Michigan,
NBA Commissioner David Stern handed down suspensions for
nine players, some of them unprecedented in their length. Stern
suspended the Pacers’ Ron Artest for the remainder of the season
(73 games plus the playoffs), Stephen Jackson for 30 games,
Jermaine O’Neal for 25 games, and guard Anthony Johnson for
five games. The Pistons’ Wallace was also suspended for six
games. For leaving the bench during the brawl, Pacers guard
Reggie Miller and Pistons center Elden Campbell, forward Derrick
Coleman, and guard Chauncey Billups were each suspended for
one game.
Although the collective bargaining agreement expressly provides
that discipline for on court conduct is exclusive and unappealable
within the Commissioner’s authority, the union filed an appeal in
early December with the designated grievance

464
arbitrator, Roger Kaplan, claiming that the brawl was not “on the
playing court” within the meaning of the bargaining agreement, and
the impartial arbitrator. Kaplan initially ruled in early December
that he did not have the authority to decide whether he has
jurisdiction over the case. Before the hearing on both the
jurisdictional and substantive issues, the NBA filed a lawsuit in
federal district court in Manhattan, claiming that Kaplan did not
have jurisdiction to hear the appeal, but it did not seek a
preliminary injunction to bar Kaplan from holding a hearing on the
issue of whether he had jurisdiction to determine his own
jurisdiction.
The NBA also did not participate in the December 9 hearing, after
which Kaplan ruled on December 22 that (a) he did have
jurisdiction because the incident was “obviously not on the playing
court,” and (b) that the Commissioner had just cause for all of the
disciplinary actions except for the suspension of Jermaine O’Neal,
which Kaplan reduced to 15 games. The union then immediately
sought a court order in the Southern District of New York
enforcing the arbitral decision as to O’Neal so as to prevent the
league from extending O’Neal’s suspension beyond 15 games. An
order enforcing the arbitral award was entered by Judge George B.
Daniels on December 23, allowing O’Neal to resume play on
Christmas Day. The NBA’s suit filed earlier to declare that the
arbitrator did not have jurisdiction continued, but on January 3,
2005, Judge Daniels upheld the arbitrator’s ruling that he had
jurisdiction and dismissed the NBA’s case. The NBA had not
appealed the merits of Kaplan’s ruling

465

reducing O’Neal’s suspension, so the court did not have to review

that. See National Basketball Ass’n v. National Basketball Players
Ass’n. 176 L.R.R.M. (BNA) 2487, 2005 WL 22869
(S.D.N.Y.2005).
On another legal front, Oakland County (Michigan) District
Attorney David Gorcyca on December 7, 2004, filed misdemeanor
assault and battery charges against five of the Pacers involved in
the brawl: Ron Artest, David Harrison, Stephen Jackson, Anthony
Johnson (all of whom were charged with one count), and Jermaine
O’Neal (who was charged with two counts). No Pistons were
charged. In addition, misdemeanor charges have also been filed
against seven fans who were involved; two for going onto the
playing court during a game, two with counts of assault and battery,
and three with one count of assault and battery. One of the fans was
also charged with felony assault for throwing a chair at Artest
during the melee.
An arbitrator upheld the Philadelphia Eagles’ four games
suspension and indefinite deactivation of wide receiver Terrell
Owens for conduct detrimental to the team. He held that the team’s
disciplinary action was based upon clear and convincing evidence
of misconduct and the team’s discretionary action did not violate
the NFL’s collective bargaining agreement. Owens was originally
suspended on November 5, 2005, for one game after he criticized
Eagles quarterback Donovan McNabb, called the team “classless”
for not recognizing a career milestone, and fought with popular
Eagles player Hugh Douglas. Two days later, the Eagles

466

increased the suspension to four games and indicated that it

intended to deactivate Owens with pay for the remainder of the
season. The arbitrator Bloch found that the four-game suspension
was for just cause because the record was full of facts
demonstrating that the team had taken progressive discipline for
Owens’ repeated detrimental conduct towards team. In re
Arbitration of Terrell Owens, Nov. 23, 2005, arbitrator, Richard
Bloch.
Antonio Bryant played for the NFL’s San Francisco 49ers until
the team terminated his contract on March 1, 2007. Despite this
termination, the NFL required Bryant to continue submitting to
random drug tests. Additionally the league told him that as
discipline for not complying with the tests, he would be sanctioned
as though he had failed a test. The NFL also told teams that if they
signed Bryant, he would be suspended. Bryant sued for tortious
interference with prospective contractual relations and filed a
motion for a temporary restraining order. The court denied the
temporary restraining order because Bryant failed to show that he
is at risk of suffering an immediate injury. Although the NFL has
disclosed the results of past tests to prospective NFL teams, there is
nothing that shows the NFL will disclose information in the future.
Bryant v. NFL, 2007 WL 3054985 (D.Colo.2007).
The year of 2007 has become the year of sports misbehavior,
most notably “Pacman” Jones, Michael Vick, and that NBA referee
(Tom Donaghy). NFL Commissioner Roger Goodell has initiated a

467

crackdown of what he perceives to be a “crime wave.” Goodell was

concerned about Tennessee Titans cornerback Pacman Jones strip-
club misadventure during the NBA All-Star week-end in Las Vegas
where Jones had showered more than 40 strippers on stage with
cash (about $81,000) that was intended to be a “visual effect.” NFL
Commissioner Goodell said that he expected to begin disciplining
players who were tainting the league with their misbehavior under
a new personal conduct policy. He threatened to punish repeat
offenders with one-year suspensions and teams with fines and the
loss of draft picks. Pacman Jones was suspended for the 2007
season without pay. The NBA referee resigned and was the target
of an FBI investigation that he bet on games. And, of course,
Michael Vick pled guilty on charges of interstate dog fighting
charges. The NFL suspended Vick indefinitely without pay on
August 24, 2007, after he admitted that he paid for dog fighting
bets and helped kill underperforming dogs. Vick was out for the
2007 and 2008 season.
Finally, some good news for Michael Vick, although he was
sentenced to 23 months in prison; and one cannot help but wonder
why education, fines, and community service would not have better
served the interest of society as opposed to incarceration? But, the
United States District Court for Minnesota found that Atlanta
Falcons could not recover roster bonuses of $22.5 million paid to
Michael Vick because 9(c) of the 2006 c.b.a. precluded the
forfeiture of those bonuses. The court also found that the c.b.a.
protected those bonuses

468

from forfeiture on any other legal or equitable theory. White v. NFL

(In re Michael Vick), 533 F.Supp.2d 929 (D.Minn.2008).
George Foreman wrote an impassioned plea for leniency to
Michael Vick’s sentencing judge:
Dear Judge Hudson:
I’m a fulltime minister at the church of the Lord Jesus Christ
in Houston, Texas, former two-time heavyweight Champion of
the world, and known all over the world as the king of the grills
because of the George Foreman Lean Mean Fat Reducing
Grilling Machine.
But the real story is that as a young boy I prowled the streets
of Houston, TX as a thief, and a teenage mugger until one night
while trying to escape the police, I laid in a hole and covered
myself with mud from a busted sewage pipe under a house so
the police dogs couldn’t sniff me out. For the first time I
realized that my life was in shambles, add that I had
disappointed my mother, father, and all of my family. I was no
more than a criminal, but that night I said to myself, “I’m going
to change my life. I’m going to be a different person, if I can
just get from underneath this house and not be caught by the
police.”
I made it home that night all stinky and filthy from the sewage
and I promised myself that I was going to be a better person and
that I would never steal from, nor harm another human being as
long as I live. I didn’t believe in

469

religion, and I laughed at songs such as Amazing Grace, with

words like, “I once was lost but now I’m found, was blind but
now I see.”
Judge, my friend Michael Vick is a bit older in “years”, but I
still feel that this man has come to that same crossroads in his
life where he can see his errors, and like me under the house
that night, he recognizes that he cannot blame anyone but
himself for his mistakes. But God in heaven gave me another
chance. On behalf of Michael Vick, I’d like to say that it’s not
too late for Michael. I have seen him grow personally, and have
sensed his genuine remorse over his misdeeds of the past. With
 assistance from myself, and all the wonderful people he has now
surrounded himself with want to see him do well, I believe he
can still be a productive member of our society. At the very least
Michael Vick can serve as an example to all American youth on
how abhorred behavior can ruin your life and the lives of people
around you.
I therefore ask you to consider leniency in the sentencing of
Michael Vick. This is a good tree, and with a little turning of the
earth, and fertilizer he can bring forth a lot of good fruit.
There are many other ways in which players can receive
penalties. In the NFL, for example, penalties will accrue for being
overweight, for being ejected from a game, for failing to properly
report an injury, for damaging club equipment, and for any contact

470

which is viewed to be detrimental to the club. “Detrimental to the

club” is the all-encompassing phrase under which a player can be
disciplined for associating with undesirables or involving
themselves in criminal activities off the field or acts which in any
way might exhibit qualities that could be viewed as “anti-social.”
Finally, it should be noted that since the league is judge and jury,
there is always the possibility of bias in the disciplinary process.
The Los Angeles Dodgers filed for bankruptcy protection in
Delaware Court, blaming Major League Baseball for refusing to
approve a multibillion-dollar TV deal that former owner Frank
McCourt was counting on to keep the troubled franchise of float.
McCourt was also going to do a contested divorce with his wife
Jamie. Baseball Commissioner Bud Selig rejected the proposed TV
deal. Baseball’s constitution allows the Commissioner to take
control of a team that seeks Chapter 11 protection. The Dodgers
were eventually sold for over $2 billion dollars on April 13, 2012,
the sale was approved by the bankruptcy court and on May 1, 2012,
the sale was officially closed. See Matthew Futterman, “TV Riches
Fuel $2 Billion Dodgers Deal,” Wall St. Journal at B1 (March 28,
2012); and Futterman, “Baseball’s Dodger Deal Strikes Out, MLB
Rejects Fox TV Pact Proceeds Were Needed for Payroll,
McCourts’ Divorce,” Wall St. J. at B1 (June 21, 2011).
Commissioner Gooddell’s reaction to the New Orleans Saints’
bounty scandal included the

471

suspension of head coach Sean Payton for a year without pay for
his role in the bounty program that promised money to players if
they injured opponents and knock them out of the games. (See
Battista, “N.F.L. Bars Coach of Saints a Year Over Bounty
Program,” N.Y. Times at A1 (March 22, 2012)).
Donald Sterling, the former owner of the Los Angeles Clippers,
was forced out of his position for recorded racist comments to his
mistress. NBA Commissioner Adam Silver acted swiftly and
correctly by barring Sterling for life from the NBA and fining him
$2.5 million. A California state judge allowed Rachelle Sterling,
Donald’s estranged wife, to make the sale on behalf of her husband,
who was found to be incompetent by competent medial evidence.
The team was sold for $2 billion to Steve Ballmer, the former chief
executive of Microsoft, in a forced sale. See Billy Witz, “N.B.A.
Signs Off on Ballmer’s Purchase of the Clippers,” N.Y.T. at B12
(August 13, 2014).
In NFL Players Ass’n v. NFL, 88 F.Supp. 3d 1084 (D. Minn.
2005), the court was called upon to vacate the arbitration award
against Adrian Peterson. The arbitration arises out of the discipline
imposed by NFL Commissioner Roger Goodell on Minnesota
Vikings running back Adrian Peterson for the corporal punishment
of his son in May 2014. The court held that the arbitrator strayed
beyond the issues submitted by the NFLPA and in doing so,
exceeded his authority.
The so-called “deflategate” concerns the alleged deflating of NFL
game balls by the New England

472

Patriots so as to gain a competitive edge. The NFL penalized the

team and its star quarterback Tom Brady by suspending him for
four games. However, he appealed this decision, and his suspension
was temporarily lifted on September 3, 2015. In an oral argument,
U.S. District Judge Richard Berman indicated that there was
precedent to toss out penalties issued by arbitrators in
“deflategate.” The gist of the NFL’s argument was that Brady
conspired with two Patriots equipment employees to deflate
footballs before the Patriots rout of the Indianapolis Colts in the
AFC Championship game on January 2015. The controversy
continues, the Second Circuit reinstated the four game suspension
on April 25, 2016, Brady asked for an en banc rehearing, and the
Patriots filed an Amicus Curiae brief. See NFLMC v. NFLPA, 2015
WL 5148739 (S.D. N.Y.). However, at the end of the day, Tom
Brady served his four-day suspension.
 473

CHAPTER 22
DRUG TESTING
A. GENERALLY
There are many different policies in the various sports that are
promulgated to restrict drug usage by their players. These policies
cover the entire range of policing activities from statutory
requirements for mandatory drug testing to voluntary programs.
The more dangerous sports, for example, boxing and horse racing,
have had drug testing and drug testing requirements as a part of
their sport for many years.
Although there are numerous policies and programs that detect
and punish drug usage in sports, there are limits to the range and
breadth of these various drug testing programs. These limits are
established by the Constitution.
B. PROFESSIONAL SPORTS
Every professional sport has a plan to evaluate and monitor drug
usage. These programs are usually developed through collective
bargaining, with a system that progressively punishes drug usage in
a step-by-step program, according to the amount of repeat offenses.
In these processes, elements of review and due process are made a
part of the procedures.
As regards the heavily regulated sports; for example, in
Shoemaker v. Handel, 795 F.2d 1136

474
(3d Cir.1986), there was a challenge to prevailing regulations
which directed jockeys to submit to testing for drug usage. In
upholding these regulations, the court emphasized the nature of
horse racing, which is highly regulated with people wagering on
the outcome. Drug abuse by jockeys could affect public confidence
in the integrity and legality of the sport.
However, the Seventh Circuit Court of Appeals enjoined a state
racing board from substance abuse rules that provided for random
drug testing and probable cause testing for all racing licensees
whether outriders, starters, jockeys, etc. The court held that the
racing board’s interest in safety and integrity were insufficient to
outweigh the invasion of privacy through an otherwise
unconstitutional random urinalysis. The court found that urine
testing possessed limited use for those purposes since it could not
measure plaintiff’s present impairment, and instead, only revealed
that drug usage had previously occurred at some earlier time.
Dimeo v. Griffin, 924 F.2d 664 (7th Cir.1991).
The seriously regulated sports, however, will usually be allowed
to maintain mandatory random drug testing. Those programs that
have developed through a collective bargaining agreement in the
less regulated sports, e.g., football, baseball and basketball,
combine potential redemption with punishment. Their aim is
education and treatment, and if that fails, punishment. These
collectively bargained for agreements usually provide for some sort
of amnesty for those players who voluntarily

475

seek treatment. However, there is a heightened schedule of

punishment which usually leads to a life banishment if the abuse
continues.
 Millions of dollars in cash payments by California-based BALCO
Labs are the focus of a federal Bay Area grand jury investigation
that could link more than 100 athletes to the use of a newly
detectable “designer” performance-enhancing steroid known as
THG. BALCO produced THG, a substance undetected by testing
until recently by a lab at UCLA under contract with the US Anti-
Doping Agency. Many athletes, Americans and non-Americans,
amateur and professional, were called to testify before the grand
jury. On February 12, 2004, four men were indicted on charges of
illegally distributing steroids and other performance-enhancing
drugs to professional athletes in football, baseball, and track and
field. The indictments were announced at a press conference in
Washington, D.C., by Attorney General John Ashcroft. However,
the names of the athletes supplied with steroids have not been
revealed to the public. The Internal Revenue Service has stated that
everyone involved, including the athletes, knew about the illegal
conduct. IRS agents found e-mails showing BALCO
communication with athletes and coaches about steroids.
In response to BALCO, Major League Baseball increased
punishments for steroid use that includes year-round random
testing: first positive test—10-day suspension without pay; second
positive test—30-day suspension without pay; third positive test

476

60-day suspension without pay; fourth positive test—one-year

suspension without pay; fifth positive test—discipline to be
determined by the commissioner.
On June 2, 2006, Barry Bonds requested that his lawsuit against
two San Francisco Chronicle reporters be dismissed. The suit was
dismissed without prejudice. The suit was filed in March 2006,
after two reporters published a book entitled Game of Shadows
claiming that Bonds used steroids and other performance-
enhancing drugs. The book included descriptions of the testimony
that Bonds gave to the grand jury, quotes from Bonds’ trainer Greg
Anderson, and references to supposedly-confidential grand jury
documents pertaining to steroid-use allegations. Bonds’ attorneys
also requested that the federal judge hearing the four criminal
prosecutions of the BALCO conspiracy, issue an order of contempt
against the reporters for publishing the grand jury proceedings and
information.
In the ongoing saga of Barry Bonds, the opinion of an expert who
authored numerous scholarly articles on athletic drug testing was
sufficiently reliable to be admitted into evidence. Bonds was
charged with 10 counts of false statements to grand jury regarding
anabolic steroid usage. He sought to exclude the expert’s testimony
as unreliable and having no scientific support. The expert’s
professional experience in the field of athletic drug testing and his
peer reviewed scholarly work

477

demonstrated that the expert’s opinions were reliable. U.S. v.

Bonds, 2009 WL 416455 (N.D. Cal.).
In United States v. Bonds, 608 F.3d 495 (9th Cir.2010), certain
testimony, blood and urine test results and laboratory log sheets of
test results were excluded from evidence. Barry Bonds was
convicted of obstruction of justice in April 2011. However, the
jurors could not reach a verdict on the remaining three charges.
District Judge Susan Illston scheduled a hearing on August 26,
2011, on whether the conviction should be overturned. At this
hearing, Judge Illston upheld Bonds’ obstruction of justice
conviction. She also denied his motion for a new trial or acquittal
on the charge. Ultimately, Bonds was convicted of giving evasive
answers to a grand Jury in 2003 and was sentenced to 30 days of
house arrest, two years of probation, 250 hours of community
service, and a $4,000 fine. Rather than say yes or no to whether he
received drugs that required a syringe, he rambled that he was a
celebrity child with a famous father. However, at the end of the day,
Barry Bonds emerged victorious when federal prosecutors dropped
what was left of their criminal case. In short, his meandering
answer was insufficient to trigger a conviction, therefore, the U.S.
D.O.J. decided to not ask the Supreme Court to review the
appellate decision that overturned Bonds’ obstruction of justice
conviction. See “Federal prosecutors drop remaining case against
Bonds,” Houston Chronicle at C7 (July 22, 2015).

478

In United States v. Comprehensive Drug Testing, Inc., 473 F.3d

915 (9th Cir.2006), w/drawn & superseded, 513 F.3d 1085 (9th
Cir.2008), as a part of an ongoing BALCO investigation, the
government sought drug testing information from Major League
Baseball for eleven players with connections to BALCO. MLB said
that it did not have the information. The government then
subpoenaed two drug testing companies to turn over the drug
testing information for all MLB players. The MLB Players
Association filed a motion to quash the subpoenas. The
government then applied for search warrants for the two drug
testing facilities. The district court ordered the government to
return seized property and quashed the government’s subpoenas.
The government appealed. The appellate court reversed and
remanded because the searches were reasonable. The government
did not have to return the evidence immediately, but it did need to
sort through the evidence and return the evidence that was not
needed. The appellate court also found it was abuse of discretion
for the district court to quash the subpoenas. In short, issuance of
subpoena, which sought drug testing records and specimens for all
professional baseball players who tested positive for steroids, and
contemporaneous execution of related search warrants, as a part of
government’s ongoing grand jury investigation into illegal steroid
use by professional athletes, was reasonable.
Major League Baseball and the Major League Baseball Players
Association agreed to a more comprehensive steroid-testing
program that

479

features year round tests and stricter penalties than previously. The
new agreement was announced on January 13, 2005. The new
program has been ratified by all 30 clubs and approved by the
players. The agreement will extend through the 2016 season.
Previously, testing occurred only from the first day of spring
training through the end of regular season. Players faced a single
mandatory test, and there was no automatic suspension for first
time offenders. The new agreement requires every player on each
team’s 40-man roster to take at least one unannounced test during
the season. In addition, random tests can occur during both the
regular season and the off-season regardless of a players country of
residence, and there is no specific limit on additional random tests
to which a player can be subjected. The list of the banned
substances includes not only steroids but also steroid precursors
and designer steroids such as tetrehydrogestrinone (THG), masking
agents, and diuretics. Amphetamines, however, are not included in
the new agreement. A single positive test will carry an automatic
10-day suspension. Second and third positive tests will carry 30
and 60-day suspensions. A fourth positive test will result in a one-
year suspension and any further positive tests will be punished at
the discretion of the Commissioner. All suspensions will be without
pay.
On January 24, 2007, the National Football League and the NFL
Players Association reached an agreement that will toughen the
league’s steroid testing policy. The league and the union agreed on
a series of substantial changes to its program, the

480

modifications include a 40% increase in the number of players who

are randomly tested, so that up to ten players from every team can
now be tested each week. This means more than 12,000 tests will
be given to 1,800 players each season. The NFL will also use the
sophisticated carbon-isotope test with greater frequency, which,
due to its high costs, was previously only used to confirm positive
tests. The NFL also becomes the first professional sports league in
the U.S. to add stamina-increasing drug erythropoietin (EPO) to its
list of banned substances. In addition, the new policy will carry
greater financial penalties for violations. Players who are
suspended for steroid use will now forfeit not only their salaries for
the games missed, but also the prorated portion of their previously
guaranteed signing bonuses attributable to those games, which can
be larger than their actual salaries.
George Bush himself initiated the war on steroid use in his 2004
State of the Union Address; “To help children make right choices,
they need good examples. Athletics play such an important role in
our society, but, unfortunately, some in professional sports are not
setting much of an example. The use of performing enhancing
drugs . . . is dangerous, and it sends the wrong message . . . ” State
of the Union Address, Jan. 20, 2004.
Former Senator, George Mitchell, was the chairman of the special
commission (“the Mitchell Report”) established to examine the use
of performance enhancing drugs in Major League

481

Baseball. (See App.) He had asked a number of active players to

appear before the commission, this was a move that represented a
major turning point in what was then a yearlong investigation.
However, Barry Bonds, declined to speak to the panel on the
grounds that he might risk incriminating himself. Bonds, of course,
was already under federal investigation; but Bond’s decision to
invoke his constitutional rights only reinforced the public’s belief
that he must have been guilty of something. This investigation left
baseball in the uncomfortable position of trying to decide how to
celebrate the magic moment when Bonds broke the home run
record.
Brian McNamee was Roger Clemens’ trainer and later an
informant; Clemens, of course, was prominently displayed in the
Mitchell Report; here, McNamee’s motion to disqualify Clemen’s
attorney Rusty Hardin is denied. The facts surrounding McNamee’s
Motion are essentially uncontested. According to Plaintiff William
Roger Clemens and his attorney, Rusty Hardin, on December 5,
2007, Hardin received a phone call from sports agent, Randy
Hendricks, who represented both Clemens and Andy Pettitte, a
professional baseball player who is not a party to this lawsuit.
During this phone call, Hardin learned that McNamee had alleged
to Senator George Mitchell and others, during a private
investigation commissioned by Major League Baseball, that both
Clemens and Pettitte had used performance enhancing drugs, and
that the two baseball players might be interested in retaining
Hardin to help defend them against the

482

allegations. Neither Hardin nor his firm had any dealings with
either Clemens nor Pettitte prior to this phone call.
On December 7, 2007, Hardin and other members met with
Hendricks to review a copy of a tape recorded phone conversation
between McNamee and one of Hendricks. On December 9, 2007,
Hardin and other firm members met with Clemens and Pettitte in
person and proceeded to interview each separately, first speaking
with Clemens, then Pettitte. According to Hardin, each individual
was interviewed outside the presence of the other.
On December 12, 2007, the firm sent two investigators to speak
with McNamee in person about his allegations. The investigators
arrived bearing two documents, signed by Clemens and Pettitte,
respectively, each stating, “This is to confirm that [the
investigators] work for the law firm that represents me.” The
investigators spoke to McNamee for several hours, and later that
evening they debriefed Hardin and Clemens as to the details of
their discussion.
On December 13, 2007 Senator Mitchell released his report,
which included McNamee’s allegations about Clemens and Pettitte.
The same day, Hardin held a press conference at which he
announced that he had been retained to represent Clemens, but not
Pettitte. Subsequently, Pettitte confirmed McNamee’s allegations
about him; Clemens denied them and filed this lawsuit alleging
defamation. Shortly thereafter, McNamee filed an instant motion,
arguing that Hardin’s prior joint
 483

representation of both Clemens and Pettitte created a conflict of

interest requiring the disqualification of Hardin and his law firm.
Pettitte ultimately retained his own counsel; his public testimony
regarding Clemens’ use of performance enhancing drugs has been
subject to various conflicting interpretations, and is likely to be
central to this lawsuit. Pettitte has neither consented nor objected to
Hardin representing Clemens, although McNamee’s attorney has
submitted a sworn declaration stating that, according to Pettitte’s
current attorney, Pettitte will not waive any attorney-client
privilege that attaches to his communications with Hardin. See
Clemens v. McNamee, 2008 WL 1969315 (S.D.Tex.2008).
Roger Clemens was indicted by a federal grand jury in
Washington, D.C., on August 19, 2010, on charges that he lied to
Congress when he said he never used performance-enhancing
drugs. The 19-page indictment charges Clemens with three counts
of perjury and one count of obstruction of Congress during his
testimony in a nationally televised hearing in February 2008 before
the House Committee on Oversight and Government Reform. At
the hearing, Clemens and his former trainer, Brian McNamee,
contradicted each other about whether Clemens had used steroids
and human growth hormones. U.S. v. Clemens, federal indictment,
Crim. No. CR–10–223 (Aug. 19, 2010). In U.S. v. Clemens, 793
F.Supp. 2d 236 (D.D.C. 2011), Clemens’ served subpoena duces
tecum on law firm where initial interview notes were “fact” work
product and thus subject to discovery, which

484

allowed that every statement given by two witnesses relating to

defendant would be provided to defendant. Roger Clemens’ case
was declared a mistrial on the second day of testimony due to
prosecutorial misconduct. However, in his second trial, on June 18,
2012, Roger Clemens was found not guilty by a federal jury. See
Champion, Op. Ed, “Government Derelict in Clemens’
Prosecution,” Houston Chronicle at 19A (June 21, 2012).
In the case styled Armstrong v. Tygart, 886 F.Supp. 2d 572 (W.D.
Tex. 2012), the now disgraced superstar bicyclist, Lance
Armstrong, sues the United States Anti Doping Agency (USADA).
The court, of course, found against Lance. The international
organizations that control drug testing created a patchwork of often
over-lapping jurisdictions:
[A]t the apex of the international hierarchy is the Olympic
Movement which is made up of three main constituents: The
International Olympic Committee (IOC), the International
Sports Federations (IFs) for each participating sport, and the
National Olympic Committees (NOCs) for each participating
country.
The IOC bills itself as “the supreme authority of the Olympic
Movement,” . . .
[T]he IOC recognizes the World Anti Doping Agency (WADA).
A Swiss private law Foundation which has its seat in Lausanne,
Switzerland and its headquarters in Montreal, Canada . . .

485

WADA also drafted a uniform set of anti-doping rules . . . the

. . . Code . . .
The IF for cycling is the Union Cyclists International (UCI),
also known as the International Cycling Union.
 [T]he NOC for the United States is the United States Olympic
Committee (USOC) . . . the USOC is a federally chartered
corporation under the terms of the Ted Stevens Olympic and
Amateur Sports Act (the Sports Act), 36 U.S.C.A §§ 220501,
220529. See U.S.C.A. § 220502(a).
The International Sports Federations are internationally non-
governmental organisations recognized by the International
Olympic Committee (IOC) as administering one or more sports
at the world level.
The NGB for cycling is USA Cycling . . . . [T]he United States
has its own set of anti-doping regulations . . . USADA has
implemented a set of anti-doping rules . . . the USADA Protocol
. . . (Armstrong, 886 F.Supp. 2d at 574–575).
In Armstrong v. Tygart, Armstrong unsuccessfully argues that
USADA does not have jurisdiction to bring charges of violations of
anti-doping rules against him and that he does not have a valid
agreement to arbitrate such matters with the USADA’s charging
and arbitration procedures violate his due process rights.

486

Professional golfer Stephen Douglas Barron was suspended from

the competition for using banned substances that have helped him
offset his abnormally low levels of testosterone. The PGA Tour
denied his application for an exception, and when he subsequently
tested positive he was suspended from competition for one year. He
challenged the PGA’s right to impose discipline under the ADA
and sought an injunction to compete in the second leg of the PGA
Tour’s “Q-School.”
The court denied the motion on the basis that he was unable to
demonstrate a likelihood of success on the merits. The court also
concluded that Barron could not show that the PGA Tour failed to
provide him with reasonable accommodations. Although his
condition fit the definition of a disability, the court held that the
requested accommodation was unnecessary for him to continue to
play golf. The PGA’s Tour’s drug testing program was not
unconscionable, arbitrary, and capricious. However, the suspension
was imposed retroactively so as to enable Barron to participate in
the 2010 Q-School. Barron v. PGA Tour, Inc., 670 F.Supp. 2d 674
(W.D. Tenn. 2009).
On February 8, 2011, the Minnesota Appeals Court sided with the
NFL and effectively ended the StarCaps dispute. The court
declined to overturn the suspension imposed by the NFL on the
Vikings defensive linemen Kevin and Pat Williams for taking a
banned substance. Since the diuretic they tested positive for did not
fall under the state’s Drug and Alcohol Testing in the Workplace
Act (DATWA),

487

the NFL was not required to follow DATWA notification

requirements. In 2008, the Williamses tested positive for
bumetanide, a powerful diuretic that was an unlisted ingredient in
the over-the-counter weight-loss supplement StarCaps. The NFL,
however, waited one month to inform them that they had violated
league policy and to announce their suspension. Williams v. NFL,
794 N.W. 2d 391 (Minn. App. 2011).
Many star baseball players were suspended for violating MLB’s
steroid policy in the ongoing investigation of the now-closed
Florida anti-aging clinic Biogenesis of America, which is accused
of distributing to athletes banned performance-enhancing drugs. Of
course, the main catch was Alex Rodriguez (A-Rod) who was
given an unprecedented ban of 211 games. Alex postured to appeal
the ruling, but eventually accepted the suspension which cost
Rodriguez $30.6 million to $32.7 million. See AP, “MLB Drug
Investigation Defiant A-Rod will appeal 211-game ban,” Houston
Chronicle at C3 (Aug. 6, 2013); Steve Eder, “Biogenesis Founder
Surrenders to D.E.A.,” N.Y. Times at B10 (Aug. 6, 2014); and
David Waldstein, “Alex Rodriguez Tries a New Legal Approach:
Conciliation,” N.Y. Times at B14 (Aug. 6, 2014).
C. AMATEUR SPORTS
The NCAA requires that all athletes annually sign a consent to
drug testing as part of their statement pertaining to eligibility,
recruitment, financial aid, amateur status and involvement in

488

organized gambling activities. Failure to adhere to this statement

will result in the student’s ineligibility to participate. The NCAA
also has a random, mandatory drug testing program in connection
with post-season intercollegiate athletic activities.
A student found to be on a substance which is included in the list
of banned drugs will be ineligible for post- and regular season
competition for a minimum loss of one season of competition or its
equivalent. If the student-athlete tests positive for the use of any
drug, other than a “street drug,” he/she shall lose all remaining
regular-season and post season eligibility in all sports. If the
student-athlete tests positive for a street drug after restoration of
eligibility, the student shall be charged with the loss of a minimum
of one additional season of competition in all sports.
In 1990, a California Court of Appeals granted a permanent
injunction against the NCAA prohibiting testing student athletes on
the grounds that their right to privacy under the California
Constitution was violated. The court averred that the NCAA did
not show a compelling interest which would justify an invasion of
an athlete’s right to keep their urine private and the right to
maintain the privacy of medical history, e.g., use of birth control
pills. The NCAA program was overly broad and produced results
whose accuracy was doubtful. Also, the court found that other
alternatives to testing that were less intrusive to a student’s right to
privacy were not considered by the NCAA as possible

489

alternatives. Hill v. NCAA, 273 Cal.Rptr. 402 (1990) (Hill I).

However, the California Supreme Court reversed Hill in 1994. Hill
v. NCAA (Hill II).
After Hill II the NCAA’s program of consent to drug testing
appears to be legal. The program demands that every athlete must
annually sign a statement as regards a consent to be tested. If they
do not, they can be declared ineligible. The standard seems to be
that the NCAA’s use of monitoring urine testing to enforce drug
testing is not an unreasonable infringement on a student athlete’s
expectation to privacy. See O’Halloran v. University of
Washington, 679 F.Supp. 997 (W.D.Wash.1988).
In a seminal 7th Circuit case dealing with a program which
appears on its face consistent with NCAA policies, the court held
that a high school consent program of urinalysis of prospective
athletes was legal. Schaill v. Tippecanoe County School
Corporation, 864 F.2d 1309 (7th Cir. 1988). This case dealt with an
athlete who had to sign a consent form for urinalysis before he
could be eligible for participation. Although the process of
safeguarding confidentially is important, the court held that a
consent program, such as this, is still legal. The court stressed that
there was a lessened expectation of privacy because of the general
locker room ambience. The court also averred that urine samples in
that particular school were already a part of the pre-participation
medical examination and, thus, were established prerequisites to
athletic participation. In short, participation in high school athletics
is a privilege rather than a right; because

490

of this, limited drug testing is an acceptable way to foster an

important state interest. See Vernonia School District 47J v. Acton,
515 U.S. 646 (1995).
Drug testing is also important to the United States Olympic
Committee. Its concern is not only with street drugs, but also with
performance enhancing drugs, that is, drugs taken by athletes to
increase their athletic powers, e.g., steroids. The USOC’s drug
program has been in place since 1983 and provides for both
informal and formal testing at Olympic trials. The USOC’s policy
stipulates that all Olympic athletes shall be drug tested at the trials
and at least be disqualified from joining the Olympic team if found
to be positive. In this program, there are a variety of legal
considerations: for example, the list of banned drugs, informed
consent, prevention of a false positive, prevention of a false
negative, confidentiality, accurate information and appeal.
However, this program in its application is arguably constitutional,
and it is not the subject of protest at this time.
In Board of Education of Independent School Dist. No. 92 v.
Earls, 536 U.S. 822 (2002), the U.S. Supreme Court allowed drug
testing of those students who participated in extracurricular
activities on the grounds that the policy did not constitute an
unreasonable search because it reasonably served the board’s
important interest in detecting and preventing drug use among its
students.

491

D. RIGHT OF PRIVACY
The question is whether an individual has a right to privacy as
regards to urinalysis. An expectation of privacy must be one that
society is prepared to recognize as legitimate. In Schaill v.
Tippecanoe County School Corporation, 864 F.2d 1309 (7th Cir.
1988), the court held that the students did not have a legitimate
right of privacy or an expectation of privacy in a situation where
high school students were forced to sign a consent form which
would allow random urinalysis as a prerequisite to athletic
participation.
The California Court of Appeals in Hill v. NCAA, 273 Cal.Rptr.
402 (Cal.App. 6 Dist. 1990) (Hill I), held that the NCAA did not
show a compelling interest to substantiate an invasion of a student
athlete’s right to keep their urine private and to maintain privacy of
medical records in a situation where the court viewed the program
as overly broad and capable of producing results whose accuracy
are doubtful. However, the California Supreme Court reversed in
Hill II. Even though a policy may violate some privacy rights, it
will still stand if it promotes a compelling state interest. However,
the California Supreme Court used the less rigorous, legitimate
interest standard with the NCAA, a private, nongovernmental
entity. The NCAA’s interests were sufficiently legitimate to
overcome the athletes’ privacy rights. Hill v. NCAA, 865 P.2d 633
(Cal.1994) (Hill II). Like the California Supreme Court in Hill II,
the United States Supreme Court in Vernonia School District 47J v.
Acton, for high

492

school students, concluded that student-athletes have a diminished

privacy expectation, the so-called locker room mentality, for
purposes of determining the reasonableness of drug urinalysis as a
“search.” Vernonia School District 47J v. Acton, 515 U.S. 646
(1995).
Urine is a private thing. One’s urine product is not normally
intended to be inspected or examined by anyone other than the
donor. An individual’s privacy rights will vary with the context. In
certain situations an individual’s expectation of privacy will be
diminished by a past history of significant governmental
regulations. But, the governmental interest furthered by a particular
search must be weighty and generally of such a nature that
alternate, less intrusive means of detection would not sufficiently
serve the government’s ends.
E. REASONABLENESS OF SEARCH
The legality of a urinalysis will depend on the reasonableness of
the search, under all the circumstances. Reasonableness is
determined by whether it is justified at the beginning of the search;
and whether the search as conducted was reasonably related in
scope to the circumstances that justified the search in the first
place. The standard for determining the legality of the asserted
force of intrusion is reasonableness. Shoemaker v. Handel, 795 F.2d
1136 (3d Cir.1986). The courts must balance the intrusiveness of
the search and an individual’s fourth amendment interest against a
legitimate governmental interest. The test is vague
 493

and gives the courts a great deal of discretion in this matter. Before
determining reasonableness, the athlete must show that he is
entitled to protection; after this, the legality of the search is
determined in light of Fourth Amendment reasonableness.
F. DUE PROCESS AND EQUAL PROTECTION
In all programs that involve drug testing, questions arise as
regards the athlete’s privacy, due process and equal protection
rights. The 14th Amendment protection of due process and equal
protection will not extend to private contacts that abridge only
individual rights. Only state action can be challenged under the
14th Amendment. It must be determined whether the action in
question is either state action or comes under the color of state
action. Under NCAA v. Tarkanian, 488 U.S. 179 (1988), at the
college level it appears that the NCAA’s actions will not be
construed to be state action.
In high schools, there is no fundamental right to play football. It
is more privilege than right and since it is not a fundamental right,
the strict scrutiny test will not apply in an equal protection claim.
The relevant standard is minimal rationality. This rational basis or
minimal rationality test only calls for a rational relationship
between the program and a compelling state interest. In Schaill v.
Tippecanoe County School Corporation, 864 F.2d 1309 (7th Cir.
1988), the compelling interest was control of drugs in high school
which is certainly a

494

positive goal. All that was required was a rational basis or

connection between the state’s interest and the drug testing
program. Whether this was the best way to achieve the interest, or
whether there were other appropriate alternatives was not the
question. The constitutionality of the drug testing program did not
rest on whether the program was the best choice of alternatives, but
only on whether it was a reasonable choice. See Vernonia School
District 47J v. Acton, 515 U.S. 646 (1995).
In the context of due process in drug testing, it would be a
violation of a high school athlete’s due process right, if, for
example, he was forced to strip in public and urinate every hour.
But as in Schaill, if the urine sampling is done in a discrete and
confidential way, it usually will be held to be constitutional. Due
process is provided for if there is multiple testing to assure the
accuracy of the test, protection of confidentiality, the availability of
an appeal of the determination at the school level, a limiting of the
sanction to suspension from athletic competition and the
availability of an appeal to the judiciary.
 495

CHAPTER 23
CIVIL RIGHTS
A. GENERALLY
The Civil Rights Act of 1964 is a comprehensive legislative plan
to prohibit discrimination. The goal of the Civil Rights Act of 1964
was to eliminate discrimination and to create disincentives to
discriminate (42 U.S.C.A. §§ 1981, 1983, 1985, & 2000). The Civil
Rights Act prohibits discrimination in employment practices
(§ 2000e); discrimination in places of public accommodation
(§ 2000a); and discrimination by persons acting under color of state
law (§ 1983). In addition, the Civil Rights Act of 1866, which
ended slavery, also bars racially motivated and intentionally
discriminatory acts in the making and enforcement of private
contracts (42 U.S.C.A. § 1981).
1. TITLE VII
Section 2000e (Title VII of the Civil Rights Act of 1964) applies
to employers with 15 or more employees who work at least 20
weeks per year, and whose business impacts interstate commerce.
Title VII makes it unlawful for an employer to discriminate against
an employee on the basis of color, religion, sex, or national origin
(42 U.S.C.A. § 2000e–2(a)). Title VII expressly excludes private
clubs from its scope and provides that the term “employer” does
not include a bona fide membership club (other than a labor
organization) that is exempt from taxation under section 501(c) of
the Internal

496
Revenue Code of 1954 (42 U.S.C.A. § 2000e(b)). Thus private golf
and country clubs would not be considered “employers” under Title
VII if they are indeed a bona fide private membership club. The
EEOC has promulgated a three-part inquiry for assessing whether
an organization qualifies as a private club pursuant to § 2000e(b).
An organization is a bona fide private club if: (1) it is a club in the
ordinary and common meaning of that word; (2) it is private; and
(3) it requires meaningful conditions of limited membership. EEOC
v. The Chicago Club, 86 F.3d 1423 (7th Cir.1996).
Fifty-nine-year-old female volleyball coach brought action
against school district, alleging gender, age, and sexual orientation
discrimination and retaliation in violation of the Age
Discrimination in Employment Act, Title VII, Title IX, and New
York Human Rights Law. The court held that the causes of action
for the elimination of the coach’s position and the appointment of
another coach to a different position accrued on the dates each
action occurred and the reclassification of the volleyball program
and the letter by the athletic director to the coach were part of a
continuing violation of the ADEA and Title VII. However, the fact
that the school district did not reappoint coach as varsity girls’
volleyball coach did not give rise to inference of discrimination
under Title VII or ADEA. Stouter v. Smithtown Central School
Dist., 687 F.Supp. 2d 224 (E.D.N.Y. 2010).
Under Title VII of the Civil Rights Act it is unlawful for an
employee to retaliate against

497

another employee for filing a sexual harassment report (42

U.S.C.A. § 2000e–3(a)). Plaintiff claims that the new athletic
director at a state university sexually harassed her while she was
employed as the secretary of the athletics department. The cause
was dismissed since plaintiff failed to show that the university
knew about her harassment complaint at the time it terminated her
employment. Ward v. Jackson State University, 602 Fed. Appx.
1000 (5th Cir. 2015).
2. TITLE II
Section 2000a (Title II of the Civil Rights Act of 1964) prohibits
discrimination based on race, color, religion, or national origin in
places of public accommodation affecting interstate commerce. It is
important to know that discrimination on the basis of gender is not
prohibited under Title II. An establishment is a place of public
accommodation under Title II if its operations affect commerce and
it is one of four categories of establishments that serve the public.
Private golf clubs are considered places of exhibition or
entertainment since most private golf clubs provide activities either
in the form of direct participation or through viewing sports
activities as spectators. Once an organization is covered by one of
the four categories in section 2000a, the next question is whether
the activities affect interstate commerce. The commerce
requirement has been easily satisfied with regard to golf and
country clubs due to golf outings with out-of-state professionals,

498

guest memberships, snack bars open to the general public, out-of-

state golf teams playing on the course, and service contracts
fulfilled by out-of-state contractors. Thus, since private golf clubs
are places of public accommodation and affect interstate
commerce, they are subject to the act unless they qualify for an
exemption. U.S. v. Lansdowne Swim Club, 713 F.Supp. 785
(E.D.Pa.1989).
 3. SECTION 1981
Section 1981 prohibits certain racially motivated acts, that are
intentionally discriminatory including the making and enforcement
of private contracts (42 U.S.C.A. § 1981). This prohibition applies
to both private and state actors. A private golf club and country
club is subject to the statutory mandate. A person is aggrieved by a
violation of this statute must show: (1) that he/she was a member of
a racial minority; (2) the defendant’s intent to discriminate on the
basis of race: and (3) the discrimination concerned the making or
enforcement of a contract. Gibbs-Alfano v. The Ossining Boat &
Canoe Club, Inc., 47 F.Supp.2d 506 (S.D.N.Y.1999). In Gibbs-
Alfano, the plaintiffs were members of the Ossining Boat & Canoe
Club. Gibbs-Alfano was expelled from the club for allegedly using
foul language. She contends that other members of the club who
were white also used foul language but were not expelled. She and
her husband further contended that her expulsion interfered with
their contractual rights.

499

4. SECTION 1983
Section 1983 prohibits a person acting under color of law from
depriving any citizen of the United States of any rights, privileges,
or immunities secured by the Constitution and law of the United
States. It is clear that Section 1983 only applies to persons acting
on behalf of a governmental entity. Thus, all public recreation
clubs, resorts, or areas would be covered by the statute; however,
private clubs do not come under the statute’s mandate. Public
recreation clubs, resorts, or areas affected could include public golf
courses, parks, lakes, camping areas, college and university
facilities, or any other area owned, operated, or maintained by a
governmental entity. While a private club would have no direct
responsibility for a violation of Section 1983, it could expose a city,
county, or state to liability if the governmental entity is involved in
a close relationship with the private club. For example, where a city
grants licenses or leases in order for a private club owner to
operate, the private club can be deemed to be acting under color of
state law if it deprives someone of membership privileges. The
courts will examine the relationship to determine whether a
mutually beneficial relationship exists between the private club and
the city; and whether the private club appears to be performing a
public function.
In a related case to the now-discredited rape charges against the
Duke University lacrosse team, three students who were
investigated but were not indicted, brought § 1983 actions for
claims arising

500

from the investigation. The court held that plaintiffs sufficiently

alleged that the non-testimonial order affected Fourth Amendment
search and seizure, and that a nurse acted “under color of state law”
in violating plaintiff’s Fourth Amendment rights. Also, one
plaintiff sufficiently stated a Fourth Amendment claim against
some, but not all defendants in connection with the search of his
dorm room. McFayden v. Duke University, 786 F.Supp. 2d 887
(M.D. N.C. 2011).
B. STATE AND CITY CIVIL AND HUMAN RIGHTS ACT
The U.S. Constitution provides no protection from discrimination.
Similarly, federal civil rights statutes only provide prosecution to a
limited class of persons in a limited number of situations. However,
the scope of state antidiscrimination statutes generally exceed the
scope of federal statutes as to both the classes of individuals they
protect and the type of organizations governed. For example, many
state public accommodation statutes not only prohibit
discrimination on the basis of race, religion, and national origin,
but also prohibit discrimination on the basis of gender, sex
orientation, age, disability, personal appearance, marital status and
familial status.
C. RACISM IN SPORTS
Racial discrimination in the United States in sports has deep
historical roots. African American athletes were not able to
participate at many

501

universities until after World War II. Jackie Robinson did not break
the color barrier in professional baseball until 1947. However now
African-American athletes dominate Division IA basketball and
football; that is, those sports that are revenue producing for
colleges and universities. One can certainly argue that African-
American athletes are in actuality taken advantage of and exploited
for financial reasons. These large revenues generated by African
American athletes are then used for purposes other than supporting
the educational development of these athletes. This too, is
exploitation in a manner that is at best ironic. The new assertion
that African Americans now have a natural superiority in sports,
acts as a negative and racist counter-balance to the implied
assertion that these athletes are correspondingly intellectually or
ethically inferior.
1. DISCRIMINATION GENERALLY
 In Dambrot v. Central Michigan University, 55 F.3d 1177 (6th
Cir.1995), the head basketball coach was fired for violating the
University Discrimination Harassment Policy. He successfully
argued that his words were protected by First Amendment. In
Dambrot, a basketball coach called his players “niggers” just to
motivate them. The plaintiff coach was fired. In essence, he was
disciplined because he violated his school’s discrimination policy.
In Boyd v. Feather River Community College Dist., 2011 WL
5024547 (E.D. Cal.), several

502

recruited African-American football players sued, complaining that

the defendants’ football program created a racially-hostile
environment. Plaintiffs argued that the coaches and athletic director
cut them from the team even though they were athletically and
academically eligible. They also stated they were subjected to
name-calling, harassment, and physical attacks. The plaintiffs
alleged six counts of a racially-hostile environment, racial
discrimination, and a claim under the Equal Protection Clause of
the Fourteenth Amendment. The court denied the defendant’s
motion to dismiss on all six counts.
1. The Rooney Rule
It can also be said that racism exists in the roster construction in
professional sports teams. Title VII of the Civil Rights Act of 1964
(U.S.C.A. § 2000e) is the most significant tool in shaping the legal
and political discourse on the practical application of equality. All
of America’s major professional leagues (e.g., basketball, hockey,
football, and baseball) have a history of racial discrimination and
either actual or implied Title VII violations and concerns. For
example, after the collapse of the “Caucasian” Boston Red Sox to
the much more integrated New York Mets in the 1986 World
Series, there developed a riot by white students against anything
deemed to be associated with the Mets. This ugly riot, which was
pursued by approximately 3,000 students implied racism as it was
directed not only against the “African American-Oriented” Mets,
but also the African-American students at the

503

University of Massachusetts at Amherst, who may or may not have

been Mets fans. The riot was peppered with racial invective
including beating and injuring students. Even if this was an
“isolated incident,” it was one that was clearly inspired by racism,
and the inherent racism and the racist duality that lies at the heart of
racism in sports.
Just as roster-construction was racist, so to was the lack of
African-American management hirings in professional sports. An
attempt to alleviate the situation was brokered by Johnnie Cochran
and Cyrus Mehri in a report entitled, Black Coaches in the National
Football League: Superior Performance, Inferior Opportunities,
which became the basis for the Rooney Rule. The Rooney Rule
requires every NFL team to interview at least one minority
candidate when there are head coaching vacancies or else suffer the
imposition of a significant fine. The rule has been expanded to
include women. Impetus to ameliorate what was coined an
“unconscious bias,” was ignited by racist assertions regarding the
management capabilities of African-American coaches and former
athletes. These ideals were most infamously asserted by Los
Angeles Dodgers executive Al Campanis and Cincinnati Reds
owner Marge Schott. Irrespective of good intentions, the question
unfortunately becomes whether the Rooney Rule has resulted in the
mandating of tokenism.
 2. Jackie Robinson and the Color Barrier
2007 marked that 60th anniversary of Jackie Robinson’s breaking
the color barrier and playing

504

professional baseball. It coincided with the racially insensitive

remarks of radio personality Don Imus who disparaged the
women’s basketball team of Rutgers University. In 1964, 20% of
all baseball players were African-Americans. In 2007, only 8% of
major league players are African-Americans, and only 3% of
players on NCAA Division I teams. One reason may be that
baseball holds little current interest in the imagination of young
African-Americans; baseball is a game of nostalgia. It sells itself
through the memory of being taken to a game by your father when
you were a child. But for African-Americans, going into baseball’s
past means recalling the Jim Crow era, where there was “White
Baseball” and “Black Baseball”—with the inevitable knowledge
that the Negro League Baseball was meant to exist under
conditions that were inferior to the white version. Even the
breaking of the color barrier by Jackie Robinson only serves to
remind African-Americans that their institutions were weak and
eventually abandoned. It is at best, a bitter sweet recollection of the
different ways that Americans look at African-American
institutions. African-American athletes who broke or distorted the
sanctity of the color barrier were the victim of death threats and
racial antagonism similar to the threats O.J. Simpson received as a
result of his victory in the “trial of the century.”
3. The Dual Consciousness of the African-American Athlete
Johnnie Cochran’s book, A Lawyer’s Life, “is dedicated to all
those lawyers, past, present, and
 505

future, who spend their lives seeking justice for others, especially
those who have used the law to change society for the better.”
Johnnie Cochran, however, was very much aware of the “racial
split personality.” He understood how an African-American in
America could, literally, be with it, but not of it—even as a lawyer;
even as a football icon. In his book, Johnnie Cochran paraphrased
from W.E.B. Dubois’ The Souls of Black Folks and explained that
African-Americans have a dual consciousness. “It is . . . inevitable
. . . that the Simpson case would be . . . a metaphor for the
seemingly intractable problem of race in America.”
2. SEXUAL DISCRIMINATION AND HARASSMENT
Anucha Sanders worked as a marketing executive for Madison
Square Garden from 2000 to 2006. Up until 2004, she received
favorable job reviews; however, beginning in 2004 she began
having problems with Isaiah Thomas, the President of Basketball
Operations for the New York Knicks, and Kevin Layden, the
President and General Manager of the Knicks. She was fired
because she complained that she was sexually harassed by Thomas
and for investigating the possible sexual harassment of other
female employees within the organization. Defendants claimed that
Sanders was fired because of her poor job performance, but it has
also issued an internal report that recommended Thomas receive
sensitivity training because he occasionally raised his voice, used
profanity, and had on occasion greeted Sanders with a hug and a

506

kiss; the report also indicated that Sanders had numerous business
disagreements, demonstrated poor job performance, and should be
terminated. However, the garden’s chairman stated during a
deposition that he would not have terminated Sanders even though
her job performance was poor. Sanders sued for sexual
discrimination and retaliation; the court, however, denied summary
judgment because there was a question of fact as to why Sanders
was fired. Sanders v. Madison Square Garden, L.P., 2007 WL
2254698 (S.D.N.Y. 2007), opin. w/drawn in part or reconsid. 525
F.Supp.2d 364 (S.D.N.Y.2007).
3. NATIVE AMERICAN TEAM NICKNAMES AND MASCOTS
In August 2005, the NCAA Executive Committee implemented a
policy that applied to UND and 17 other schools because the
NCAA Executive Committee found that some schools’ American
Indian nicknames were “hostile and abusive.” This policy prohibits
these schools from hosting NCAA championship events and from
displaying Native Americans nickname logos at their facilities or
on their uniforms during NCAA sponsored events. North Dakota
alleges that the NCAA has breached its contract because, according
to the NCAA Constitution and Bylaws, the Executive Committee
has no power to legislate such a policy. Also, North Dakota claims
that the NCAA has failed to implement an adequate appeals
process of clear standard in determining whether a Native
American nickname is “hostile or abusive,” thus

507

breaching an implied covenant of good faith. Finally, the state

alleges that the policy violates N.D.C.C. § 51–08.1–02 as an
unreasonable and unlawful restraint of trade or commerce. Thus,
the state seeks a preliminary, and then a permanent, injunction
against the NCAA’s policy, unspecified financial damages, and
attorney’s fees.
 On October 6, 2006, the state of North Dakota filed a lawsuit
against the NCAA for breach of contract, breach of good faith and
fair dealing, and unlawful restraint of trade. The state challenges
the NCAA’s rule that bars the University of North Dakota from
hosting any post-season NCAA tournament events as long as it
uses its Fighting Sioux nickname.
 509

CHAPTER 24
SEX DISCRIMINATION
A. DISCRIMINATION GENERALLY
Sexism can occur in almost every aspect of sports, including
different rules in girls’ sports and less opportunities for girls to
participate in amateur sports. Men historically have felt that women
are too frail to meaningfully participate in sports.
The most vital aspect of sex discrimination is the limiting of
athletic opportunities for girls. Ways in which opportunities can be
curtailed cover the gamut, from school regulations which exclude
girls from participation in athletic programs to rules which are not
per se discriminatory but discriminate in the method by which they
are applied. Another form of discrimination is the failure to provide
equal funding, facilities or opportunities for female athletes, their
coaches and managers.
In an attempt to solve or at least ameliorate these problems, there
are three basic types of athletic programs: separate but equal,
mixed competition and the component approach. All the other
programs which have been experimented with are variations of
these approaches.
A separate but equal type of program arguably appears to be the
perfect solution to the problem of discrimination. However, these
programs are often not equal, especially in their application which
will

510
disclose gross inequalities. Women lack coaching, sports selection,
equipment, scheduling and access to facilities which men and boys
take for granted. Funding and the type of available competition also
make the separate programs unequal. For example, a boy’s program
may have state wide competition and championships while the
girls’ program may not.
Another approach is to allow mixed competition in all sports that
do not involve physical contact. The only criteria for participation
would be the person’s ability to play. Here, the outstanding female
athlete would have the opportunity to participate at the most
competitive level. However, this type of program has its drawbacks
because females have traditionally had poor experiences in sports
training; therefore, the males would be likely to dominate every
sport. The end result would be that few females would be selected
and participate in the particular sporting program.
The last approach would be that each school would provide a
single team which could be made up of components. Each
component would contribute to the success of or failure of the team
in competition with other schools. The teams would win or lose
based on the total score of their components. This component
program has the effect of making recognition of one component
contingent on the performance of another component.
All these programs have flaws that in some way may enhance
discrimination. Yet they all have something to offer which would
could be positive

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and beneficial to the interests of female athletes. The best system is

one that enables the greatest number of participants to compete
against those of comparable ability.
 Discrimination is still rampant in sports, of course, but in 2014,
Mo’ne Davis became the first girl to pitch a shut-out in the Little
League World Series. She also became an instant celebrity, a role
model, and appeared on the cover of Sports Illustrated at age 13.
(See Mike Tierney, “A Novelty No Longer Roster of Girls in Little
League World Series in Expanding,” N.Y. Times at B11 (Aug. 14,
2014); and William C. Rhoden, “A Mound Becomes a Summit,”
N.Y.Times at B8 (Aug. 16, 2014)).
In a very unfortunate but sadly typical situation, there appears to
be a sick trend in college football programs to ignore rape
complaints by coeds against football players. Baylor University is,
of course, the latest example, which cost Coach Briles his job. The
Supreme Court of Iowa in Jones v. Univ. of Iowa, 836 N.W.2d 127
(Iowa 2013), affirms summary judgment on a former ‘Dean of
Students’ claims of wrongful termination for his less than stellar
response to a sexual assault of a female student athlete by two
football players.
Caster Semenya, a half-miler, was reinstated to compete as a
woman by track and field’s governing body, the International
Association of Athletics Federations in July 2010. It took the IAAF
11 months to clarify and confirm her eligibility through gender
tests. Semenya won the 2009 World Championship as an 18-year-
old in a fast 1:55.45.

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(See Christopher Clarey, “Semenya Returns but Acceptance of her

Lags,” N.Y. Times at B11 (Aug. 24, 2010); and Saleem, “The
Olympic Meddle: The International Olympic Committee’s
Intrusion of Athletes’ Privacy Through the Discriminatory Practice
of Gender Verification Testing,” 28 J. Marshall L. Computer &
Info. L. 49 (Fall 2010)).
Apilado v. North American Gay Amateur Alliance, 2011 WL
2148816 (W.D. Wash.), attempts to decide who is “gay” for
purposes of participation in a gay softball league. Here, members
of a softball team were disqualified from the “Gay Softball World
Series” for being “non-gay.” The court held that the North
American Gay Amateur Alliance was subject to Washington’s Law
Against Discrimination (WLAD). But it is an “expressive
association” for First Amendment purposes. Therefore, forcing
organizations to include an unlimited number of heterosexual
players would significantly affect its expressive activity. However,
since factual issues existed as to whether state interest outweighed
organization’s First Amendment protection, summary judgment
was precluded on the WLAD claim. Also, individual team
members are not entitled to enjoin enforcement of a rule that limits
the number of heterosexual players on each team.
Even though dozens of gay leagues exist throughout the country
for most sports, these leagues still wrestle with rules regarding the
limit on heterosexual players.
In Carmichael v. Galbraith, 574 Fed. Appx. 286 (5th Cir. 2014),
plaintiff’s deceased was a 13-year-

513

old student who committed suicide after allegedly being bullied by

his fellow students. The members of the football team would take
his underwear in the locker room and call him names such as,
“fag,” “queer,” and “homo.” Plaintiffs claim that school officials
were deliberately indifferent to a pattern of sexual harassment. The
Court of Appeals for the Fifth Circuit reversed the court’s dismissal
of the parents’ Title IX claim on the basis that the removal of a
person’s underwear, even if male to male, without consent, could
possibly constitute harassment of a sexual nature.
B. SEPARATE BUT EQUAL
A typical situation is one where a college has failed to provide
equally between its men’s and women’s athletic programs. An
institution can provide separate programs for men and women. The
question is not so much the separateness of the separate programs
but rather the equality of the different programs. Programs must
exist for both sexes; there also must be opportunity to participate in
intercollegiate sports.
One way in which to examine the distinctions between programs
is to analyze the revenue producing capability of each program.
The courts recognize that some athletic programs are intended to be
revenue generating and that the monies that are produced from an
individual sport will affect the financial support of the program.
Still, these discrepancies must have a basis in fact.

514

In an attempt to ascertain if a school’s action would result in a

disparate effect on one sex at the expense of the other sex, one must
analyze the amount of funding that is budgeted for the various
female athletic endeavors as compared to the monies budgeted for
the men. Another aspect of the comparison is the amount of money
spent on equipment, facilities and programs. If the differences are
blatant, then no other evidence is necessary to show that disparate
treatment exists between the programs. In short, equal money for
both male and female collegiate sports; or, to use the rallying cry of
the 90s, “gender equity.”
 C. CONTACT AND NON-CONTACT SPORTS
Courts have traditionally differentiated between contact and non-
contact sports as regards the level and commitment of participation
for girls in sports.
In the majority of cases that involve non-contact sports where no
women’s team is available, the courts usually allow the women to
participate on the men’s team. If there is not a team sponsored for
one sex in a particular sport and the excluded sex has had a history
of limited opportunity, then the excluded sex must be permitted to
try out for that team. The pertinent Health, Education and Welfare
regulations, 45 CFR § 86.41 (1979), contain a general prohibition
against sex-based discrimination in any school-sponsored athletic
program.
When there is ample opportunity for women to compete on their
own, courts appear less apt to

515

allow them to compete with men in contact sports. (See also

discussion of Title IX infra). The Health, Education and Welfare
Regulations under Title IX permit an athletic department which
receives federal funds to maintain separate teams if selection for
those teams is based on competitive skill or if the sport involved is
a contact sport. 45 CFR § 86.41(b).
Finally, the exception that provides for competitive skill applies
to most programs, because sports and the competition thereof, is
ultimately based on individual skills. Therefore, separate teams are
permissible for most sports, contact or non-contact, if they are
available.
D. TITLE IX
 Under Title IX of the 1972 Education Amendments (discussed
infra), contact sports include boxing, wrestling, rugby, ice hockey,
football, basketball and other sports in which the purpose or
preeminent activity involves bodily contact. Some courts, however,
have also included baseball and soccer as contact sports.
In order to win on a constitutional claim of gender discrimination,
plaintiff must show that state action was involved in the denial of a
request to participate. However, if the college shows that there is
potential physical harm to the female athlete due to the nature of
that particular contact sport, it is constitutional to limit participation
in that sport. The state must demonstrate that the preeminent
concern is for the average differences between males

516

and females and that its concern is for the health and safety of the
athletes. The criteria that will be used to justify the potential harm
(which the state must both allege and prove) are intimidation,
safety and displacement.
1. APPLICATION
The sexual discrimination in academics called for an answer
which was created in the form of Title IX of the 1972 Education
Amendments, which provided that no person shall on the basis of
sex be excluded from participation in, be denied the benefits of or
be discriminated against, in any education program that receives
federal financial assistance. 20 U.S.C.A. § 1681, et seq. This act
prohibited any federally funded educational program from
discrimination and intended to curtail discrimination in any
program, organization or agency that received federal funds.
 Title IX clearly applies to primary and secondary schools. Title
IX has been viewed as an illustration of congressional intent and
policy against discrimination based on stereotypical
characterizations of the sexes. It was an attempt to end misguided
paternalism. The objective was to give women an equal
opportunity to develop the skills that they hoped to develop and to
apply those skills in the way they had hoped.
Facts and situations as enforced by the Department of Health,
Education, and Welfare (HEW) are limited to discrimination
against participants in federally funded educational

517

programs. Title IX applies to the admissions policies of these

institutions, whether they are vocational, professional, graduate or
undergraduate in nature. It also applies to policies and practices
other than admissions in all educational programs, which will
include athletic programs, that also receive federal funds.
Title IX protection does not cover, however, educational
institutions that traditionally admit members of only one sex,
institutions that train individuals for the military, and institutions
under the control of religious groups whose compliance with Title
IX would violate their religious beliefs.
Even though the statute and the regulations appear to be rather
clear, problems have arisen regarding the scope of the act’s
application. The issue is whether the term “federal financial
assistance” encompasses indirect federal aid, and if so, what
constitutes a program or activity funded for the purposes of
regulation and fund termination under § 902 of the act, the
enforcement arm of Title IX. HEW regulations from 1975
determined that “federal financial assistance” include funds
received indirectly by a school, including grants and loans paid
directly to students but which ultimately are received by the school.
34 CFR § 106.2(G)(1)(ii). Under this analysis, indirect benefits that
emanate from federal funding will be sufficient in certain cases to
allow athletic departments to be characterized as Title IX
recipients.
In NCAA v. Smith, 525 U.S. 459 (1999), the U.S. Supreme Court
held that the NCAA is not subject to

518

the requirements of Title IX on the grounds that it receives dues

from its members, which receive federal financial assistance.
Renee Smith sued the NCAA alleging that the NCAA’s
enforcement of a by-law that prohibited students from participating
in athletics while enrolled in graduate programs other that her
undergraduate institution violated Title IX.
In Mercer v. Duke University, 190 F.3d 643 (4th Cir.1999), the
court held that the plaintiff/female kicker stated a claim under Title
IX on the basis that the university was prohibited from
discriminating against the student-athlete on the basis of her sex
once it allowed her to try out for its football team. A federal jury
awarded her 2 million dollars in punitive damages which she
ultimately lost, but she was still able to keep 80% of her attorney
fees. Mercer v. Duke University, 301 F.Supp.2d 454
(M.D.N.C.2004).
A closely divided Supreme Court (5–4) ruled that a coach who
claims sexual discrimination on behalf of others is protected from
firing under Title IX. This decision expands the scope of Title IX
gender equity law to protect whistle-blowers as well as direct
victims. It means that school officials, regardless of their gender,
may sue when they suffer retaliation for complaining about
discrimination. Justice Sandra Day O’Connor, writing for the
majority, said Alabama high school girls’ basketball coach
Roderick Jackson was entitled to pursue a Title IX lawsuit after he
was fired for complaining that the boys’ team received better
treatment.

519

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).

The College Sports Council claimed that the Title IX policy
interpretation and subsequent clarifications violated the
Constitution, Title IX, and the Administrative Procedure Act. It
filed a petition requesting that the Department of Education initiate
rulemaking in order to repeal the three-part test and to clarify
whether the Department’s regulations purported to create private
rights of action. The court remanded the case to the district court to
determine the plaintiffs’ challenge regarding the Department of
Education’s refusal to institute rulemaking procedures. College
Sports Council v. Dep’t of Education, 465 F.3d 20 (D. D.C. 2006).
Vice President Joe Biden and U.S. Secretary of Education Arne
Duncan announced April 20, 2010, that a “Dear Colleague” letter
revoking the 2005 “Intercollegiate Athletics Policy Clarification:
The Three-Part Test-Part Three” was issued. The “Dear Colleague”
letter was followed by a Question-and-Answer document, a Fact
Sheet, and a public promise by Assistant Secretary Russlynn Ali at
the NCAA Gender Equity and Issues Forum on April 26 that OCR
would step up enforcement of Title IX. The Office for Civil Rights
in the U.S. Department of Education has promised to increase
enforcement and it is expected that between six and ten colleges
and universities will be investigated for Title IX compliance this
year. See Dear Colleague Letter, D.O.E., Office for Civil Rights
(4/20/2010).

520

Title IX has created some chaos among coaches and athletic

directors. Doctors Staurowsky and Weight reported the following
Title IX opinions: 30% were not familiar with or did not know how
the basic three-part test (substantial proportionality or history and
continuing practice of program expansion or accommodating the
interests and abilities of athletes) to assess participation
opportunities under Title IX worked; just over 30% understood that
the enforcement scheme does not constitute a quota system while
nearly 50% were unsure or did not know; about a third of coaches
believed incorrectly that money generated by boosters does not
need to be accounted for in a Title IX analysis while another third
believed that booster money was not covered by title IX. The final
third were not sure or did not know if Title IX applied to booster
money. “As the 40th anniversary of Title IX’ s passage approached,
we recommend that . . . Title IX need not be characterized as a
problem but an opportunity for athletic departments to demonstrate
a commitment to equality and diversity.” (See Staurowsky, “The
Role of Title IX Coordinators in Fostering Title IX Literacy
Among NCAA Coaches and Administrators,” 8 Sports Litig. Alert
16 (June 3, 2011)).
2. GROVE CITY AND CIVIL RIGHTS RESTORATION ACT OF
1987
The authors of Title IX arguably intended the benefits of their
reforms to reach all federally funded programs; and thus athletic
participation would also receive the umbrella protection of Title
 521

IX. However, the United States Supreme Court in Grove City

College v. Bell, 687 F.2d 684 (3d Cir.1982), ruled that only those
programs within an institution that receive direct financial aid from
the federal government would be subjected to Title IX protection.
This case obviously limited the affect that Title IX would have in
general, and more particularly, the affect that Title IX would have
on female athletic participation. The issue here was whether Title
IX applied only to specific departments that received direct funding
or whether it extended to any department within an institution that
benefit from financial aid. The Supreme Court saw Title IX as
program specific.
The Supreme Court was unwilling to hold that the receipt of basic
education opportunity grants (BEOG’s) by particular college
students subjected the entire institution to coverage under Title IX.
The Supreme Court’s rationale was that in order for the entire
institution to be subjected to regulation there must be evidence that
the college used federal funds in areas other than the college’s own
financial aid program. However, the Supreme Court did hold that
the colleges’ financial aid program was covered under the program-
specific requirements of Title IX. In short, the court held that Title
IX applied only to individual programs that received federal
funding at an institution of higher education and not the entire
institution itself.
The ruling in Grove City College, however, was not the intent that
Congress had in mind when they

522
established Title IX. This ruling was a narrow approach and not
intended by the Title IX creators; therefore, they did the very
unusual step of rewriting Grove City College through a federal
statute: the Civil Rights Restoration Act of 1987. 29 U.S.C.A.
§ 1687. This Act extended the definition of “program” or “activity”
to include the entire program, for example, the college, as opposed
to the program specific approach as established in Grove City
College.
Haffer v. Temple University, 524 F.Supp. 531 (E.D.Pa.1981), is
arguably the most important Title IX case to be reviewed after the
passage of the Civil Rights Restoration Act. It was alleged that the
school, Temple University, failed to afford women an equal
opportunity to participate in interscholastic sports. The female
athletes claimed that disparities existed in the resources that were
distributed to the women’s athletic programs and that applicable
financial aid was unequally distributed among male and female
athletes. The Haffer plaintiffs also asserted violations of the federal
equal protection clause and Pennsylvania’s ERA.
In 1988, the parties in Haffer reached a settlement agreement that
followed the court’s decision in which the court ruled in favor of a
reconsideration of plaintiff’s claims and denied summary judgment
for the defendant. The settlement, inter alia, contained changes in
Temple’s athletic program that included proportional scholarships,
increased athletic

523

opportunities, and increased budget stipends for the female

programs. The agreement only applied to this school; however, it
has been viewed by many as the outline for collegiate compliance
with Title IX.
 In this case, for example, the cost of the expensive men’s football
and basketball teams were included in the overall sports budget;
also, the school agreed that the money spent on the female teams
would be within ten percentage points of the amount spent on the
men’s teams. The school was required to monitor participation in
the women’s sports programs to guarantee that their participation to
financial aid figures are proportionate to the agreed upon ratio in
the men’s sports programs.
E. EQUAL PROTECTION
When one brings an action founded on the equal protection clause
of the 14th Amendment, there must be a finding that state action is
involved. After state action is determined the next step is to
ascertain whether the athletic program’s provisions or the
enforcement of its prohibitions violate the equal protection clause
of the 14th Amendment.
When the equal protection clause was first applied to sexually
discriminatory sports rules, the standard was one of a “rational
relationship.” Brenden v. Independent School District, 342 F.Supp.
1224 (D.Minn.1972). The Supreme Court has since held that the
applicable standard of review for sex-based classification is one in
which classification based on gender must serve an important
governmental objective and also be substantially

524

related to the achievement of those objectives. Craig v. Boren, 429

U.S. 190 (1976).
This standard was followed in Dodson v. Arkansas Activities
Association, 468 F.Supp. 394 (E.D.Ark.1979), where the difference
of rules for girls and boys basketball was found to deprive the girls
of equal protection since these changes were not justified by an
important governmental objective.
In Dodson, a suit was brought to challenge the constitutionality of
different rules for girls’ and boys’ high school basketball, basically,
the difference was that there was full-court basketball for the boys
and half-court basketball for the girls. The court held that the
difference in the rules deprived the girls of their equal protection
rights. The association’s rationale behind the different rules was
based solely on tradition. Tradition alone without some supporting
substantive gender-based reason is insufficient to justify the rule
variations in light of the fact that those rules placed Arkansas girl
athletes at a substantial disadvantage in comparison to their male
counterparts.
Sex-based classifications will be held to violate equal protection
unless they are shown to rest upon a convincing factual basis that
goes beyond archaic, over broad, and paternalistic generalizations
about the differences between males and females. When equal
protection requirements are not met, the remedy will be to allow
the complainant to participate or try out for a particular athletic
team. Courts have not required that new teams be created

525

but that the existing teams be open to all qualified people.

Under equal protection the ultimate test becomes one’s ability
without regard to sex. Equal protection claims can be combined
with a Title IX action and also a state ERA claim. In an equal
protection claim in sports sex discrimination, courts have
considered elements that include demonstrations that show an
adverse effect by the state action and that the disparate impact was
a result of an invidious intent. This test is difficult since it requires
the court to guess as regards the motives behind the choices made
by the school, since schools usually do not document the intent
behind their regulations.
In an equal protection claim, the courts will also consider whether
the sport is or is not a contact sport. Women can be excluded from
a men’s team as long as there is a women’s team in the same sport.
If there is no female equivalent, the courts are divided; however,
the state’s interest here is usually expressed as the protection of the
participants’ health and safety. Some courts, however, hold that
total exclusion when there is no separate program is overly
inclusive since it is based on the assumption that females are
relationally fragile. However, in noncontact sports, where there is
no health or safety risks, and likewise no separate female team,
then the courts will hold that total exclusion violates equal
protection.
The last element that courts will consider as regards equal
opportunity is the requirement of separate teams or opportunities to
try out for the

526

only available team. The courts have allowed a “separate but

equal” policy when there is a separate girls’ team. When a separate
but equal policy is upheld, the court’s next determination is to
ascertain if the teams are truly equal in all levels of funding,
coaching and support. The court then will evaluate the intangibles
as regards the quality of the resources that are provided to the
women’s teams.
In summary, courts will apply an intermediate standard of review
in their evaluation of the constitutionality of sex-based
classifications. Sex-based classifications will only be allowed if
they are substantially related to an important governmental
objective. This test is somewhat subjective; and, as a result, each
court’s analysis can produce different or mixed results.
F. STATE ERA’S
Another route to attack alleged sex discrimination in athletics is
through that particular state’s Equal Rights Amendment (ERA).
Not all states have passed ERA’s (as of 2009, 35 states have passed
ERAs). There is no federal constitutional amendment that is
enacted at this time that prohibits sexual discrimination. Thus
ERA’s impact athletics at the state level for the particular state but
not at the federal level. If there is an applicable state ERA, it is
often helpful and may be crucial to the success of sex
discrimination cases.
For example, in Blair v. Washington State University, 108
Wash.2d 558, 740 P.2d 1379 (1987),

527

a class action was brought under the Washington ERA. It was held
that there was a substantive cause of action for victims of sex-based
discrimination in intercollegiate sports, that is, Washington’s ERA
prohibited sex-based classifications altogether. Blair illustrates that
state ERA’s can be instrumental in overcoming discriminatory rules
and practices which exclude or deny females the opportunity to
participate in sports.
An outstanding female high school golfer, brought a claim of
gender discrimination against the Massachusetts Interscholastic
Athletic Association claiming she was denied the opportunity to
play in the boys’ state championship even though she participated
on a mixed-gender team during the school year. A bylaw required
male and female players on mixed-gender teams to compete in
their own gender’s state tournaments. The association offered
spring seasons, but only offered a spring championship to female
golfers. She claimed that fall tournaments offered a higher level of
competition, a greater attendance of college coaches and recruiters,
and a better stage for her to showcase her talents. The court found
that the Association put the female players whose school decided to
play in the fall season at a disadvantage by holding two boy’s
tournaments and one girls’ tournament. Therefore, the court found
that the bylaw violated the Massachusetts Equal Rights
Amendment and enjoined enforcement of the bylaws against any
female golfers. Thomka v. Massachusetts Interscholastic Athletic
Ass’n, Inc., 2007 WL 867084 (Mass.Super.Ct.2007).

528

An important advantage of the ERA approach is that state courts

can now determine under state law whether gender classifications
are suspect and thus warrant strict scrutiny as a standard of review.
School rules will pass this standard if the gender classification is
deemed necessary to achieve a compelling state’s interest. Strict
scrutiny will enhance the female athlete’s opportunities for success
since the school must prove that the classification has a direct
relationship to the purpose of the regulation and that this purpose
cannot be achieved by less restrictive means.
 529

CHAPTER 25
INTELLECTUAL PROPERTY
A. GENERALLY
Intellectual property law encompasses ideas and subjects such as
patents, trademarks, copyrights, trade secrets, trade dress as well as
other subjects that relate to topics such as publicity rights,
misappropriation, false advertising and unfair competition.
B. THE NATURE OF MARKETING
The marketing of both the athlete and sports in general deal
directly with the laws of intellectual property. Sports marketing has
become a huge industry in the United States and in the international
community. The business of sports has become a billion-dollar
industry. The growth of sports has exposed millions of people to
sports every day in one form or another. Licensed sports
merchandise sales totaled $13.9 billion in the United States in
2006. The National Football League has consistently been the
leader in sports merchandise sales in the United States.
Sports licensing and marketing agreements are now
commonplace in the business of sports and are found in many
different forms. Corporate sponsorships are popular ways for a
company to promote company identification and product through
the purchasing of television time, etc. Corporations understand that
sports has a universal

530
appeal and they attempt to use that to their advantage to assist them
in expanding their presence in a global fashion. Licensing sports
properties and corporate sponsorship has become commonplace in
the sports world today.
The Super Bowl is the essence of sports marketing. Every year
corporate behemoths vie for the right to advertise their products on
commercials during the Super Bowl.
C. ATHLETES AS ENTERTAINERS
Sports has become a part of the huge entertainment landscape in
America. Sports is thought of as entertainment. Athletes have
become associated with the entertainment business in many
different fashions ranging from the movie industry to television
appearances. Athletes have always been somewhat associated with
the entertainment industry (think Johnny Weismuller). In the
1970’s, such noted athletes as Jim Brown, O.J. Simpson, Fred
Dryer and Merlin Olsen have had notable movie and television
careers. More athletes are now appearing in movies and on
television. LeBron James, Michael Jordan, Dennis Rodman, Terry
Crews, Shaquille O’Neal, and Dwayne “The Rock” Johnson have
been the most recent entries as cross-over athletes into the movie
arena. Athletes are now appearing in movies and television on a
regular basis as endorsers for major corporations.

531

D. PATENTS
Patent law is governed by the Federal Patent Act. 35 U.S.C.A.
§ 1, et seq. (1995). If an individual discovers or invents any new
machine, process, manufacture or composition of matter they may
apply to obtain a patent. An individual can secure a patent by filing
an application with the United States Patent and Trademark office
(PTO).
The patent act defines a potential patent as any “new and useful
process, machine, manufacture, or composition of matter” which
includes mechanical, chemical, and electrical structures and
processes. In order for an invention to be patentable, it must meet
four requirements. An invention must be (1) in a subject matter
category, (2) useful, (3) novel in relation to the prior art, and
(4) obvious from the prior art to a person of ordinary skill in the art
at the time the invention was made.
A patent confers on the owner the right to exclude others from
selling or using the process or product. A patent owner may sue
those individuals who directly infringe upon the patent by using or
selling the invention without the proper authority to do so. A patent
lasts 20 years from the date of the filing of the patent application
with the PTO.
Patent law is involved in the sports industry in many different
forms from golfing gizmos to football helmets to skates to rackets
to lawn darts, etc.
Patentee brought action against competitor, alleging infringement
of patents related to design improvements for football helmets. The
district

532

court held that patent claiming football helmet with notches in

lower edge surface of the shell to provide improved stability of
lower chin strap was not infringed by competitor’s helmet and
patent claiming football helmet with compression-deflecting jaw
pad was entitled to provisional application’s priority date. Ridell,
Inc. v. Schutt Sports, Inc., 2010 WL 2803461 (W.D. Wis.), mot. gr.
in part and den. in part 2010 WL 2838376 (W.D. Wis.).
The golf patent wars continue nearly unabated. Duffers will pay
anything to improve their game by adding another 50 yards to their
iron shots off the fairway. In Nassau Precision Casting Co., Inc. v.
Acushnet Co., Inc., 2013 WL 1649015 (E.D. N.Y.), patent assignee
brought infringement claim against manufacturer of the famous
(and expensive) Cobra golf clubs.
The allegedly infringed Patent reads as follows:
Claim 1 of the 000 Patent recites: In a golf iron club head of a
type having a ball-striking body of weight-imparting
construction material inclined at a selected angle for driving a
struck golf ball a corresponding selected height during its
trajectory, said body having spaced-apart top and bottom
surfaces bounding a ball striking surface there between the
method of improving weight distribution comprising removing
construction materials from said top-surface, relocating said
removed construction material from said top surface to
clearance positions below said top surface located

533

adjacent opposite ends of said bottom, [sic] surface whereby

said removed construction material from a location not using
during ball-striking service of said golf iron, is of no adverse
consequence thereto and said removed construction material in
said relocated positions contributes to increasing said height
attained by a struck golf ball.
Claim 2 of the 000 Patent recites:
 A method of improving the weight-distribution of a selected
construction material constituting a golf iron club head with a
ball-striking surface bounded in a vertical perspective by top
and bottom surfaces and in a horizontal perspective by toe and
heel portions said method comprising the steps of removing
construction material from a central portion of said top surface,
determining the weight of said removed construction material,
and embodying as part of selected bottom areas of said toe and
heel of said cub head said removed construction material having
said determined weight, whereby the weight is distributed to
said selected bottom area without any increase in overall weight
of the club head.
The manufacturer’s motion for summary judgment was granted
on the basis that the accused golf irons did not practice “location
not used during ball-striking” limitation in patent nor did they
involve relocating all of the determined weight from top to bottom
of golf club.

534

Similarly, in Colucci v. Callaway Golf Co., 750 F.Supp. 2d 767

(E.D. Tex. 2010), the holder of the patent for a golf club head
brought an action against competitor, alleging infringement.
Following jury verdict for holder, competitor brought a motion for
judgment as a matter of law. The court held that competitor’s putter
lacked sufficient corroboration to serve as invalidating a prior art
reference.
E. COPYRIGHTS
Copyright law protects original works of authorship embodied in
a tangible medium of expression. See the Copyright Act, 17
U.S.C.A. §§ 101, et seq. (1998). Subject matter that may be
copyrighted include music, drama, computer programs, sound
recordings and the visual arts. Copyright protects the original
expression of ideas, not the ideas themselves. A work may fall into
more than one category. Copyright law gives exclusive rights to
produce the work, to prepare derivative works based on the work,
to distribute copies or photo records of the work and to publicly
display or perform such work. A copyright term extends for the life
of the author plus 70 years after the author’s death. There are three
basic conditions. A work must be within the constitutional and
statutory definitions of a work of authorship; the work must be in a
tangible medium of expression and it must be original.
There are a myriad of copyright concerns that entangle the
sporting universe from autobiographies to instructional videos to
TV broadcasts and re-

535

broadcasts, etc. A typical and increasingly frequent example of a

modern sports copyright problem is the unauthorized reception (or
interception) of blacked-out (see National Football League of New
Haven v. Rondor, Inc., 840 F.Supp. 1160 (N.D.Ohio 1993)) or cable
(see Home Box Office v. Champs of New Haven, Inc., 837 F.Supp.
480 (D.Conn.1993)) TV sports programming by the way of a
satellite dish antenna. In this type of case, the copyright holder will
usually prevail and be granted a permanent injunction. Another
example is NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir.1997), in
which the second circuit ruled that a sports beeper company did not
misappropriate the NBA’s property by transmitting real-time NBA
scores and statistics taken from the broadcasts of games in
progress. See also Score Group, Inc. v. Dad’s Kid Corp., 1994 WL
794773 (C.D.Cal.1994) (alleged copyright infringement of
hologram baseball trading cards); and Seal-Flex v. Athletic Track &
Court Construction, 870 F.Supp. 753 (E.D.Mich.1994) (copyright
infringement over a rubber running track surface).
In the important case of C.B.C. Distribution and Marketing, Inc.
v. Major League Baseball Advanced Media, L.P., 2006 W.L.
2263993 (E.D. Mo.), aff’d 505 F.3d 818 (8th Cir. 2007), it was held
that public domain lists of major league baseball players, and their
statistics, lacked the originality element for copyright protection.
Consequently, players were precluded from claiming that a
producer of fantasy baseball games violated the players’ copyright
by using names and data in its games.

536

Plaintiff was the exclusive commercial distributor of the

broadcast of the De La Hoya vs. Pacquiao boxing match and
similar-type events. Businesses were required to obtain a license
from the plaintiff to transmit the events. Many businesses failed to
do so, and plaintiff seeks damages and filed lawsuits for the
interception and transmission of these events. J & J Sports
Productions, Inc. v. Allen, 2011 WL 941502 (N.D. Ga.).
Who designed the iconic New York Yankees logo? In the case of
Buday v. New York Yankees Partnership, 486 Fed. Appx. 894 (2d
Cir. 2012), one Tanit Buday alleged that her uncle Kenneth Timur
designed the logo and orally assigned her the rights. Buday further
alleges that her uncle designed the logo in the 1930s and revised it
in 1947 for the upcoming Bronx Bombers’ 50th anniversary. Poor
Buday today is out of luck for a variety of reasons. Buday herself
never possessed a copyright interest in the logo. And, her
allegations conclusively establish that she has no copyright,
whether “grandfathered” or not. Apparently, Kenneth Timur’s sister
“presented” the logo to the Yankees and they “accepted” it. Buday
fails to allege any fact that could overcome the work-for-hire
presumption, and therefore, lacks standing to assert a copyright
claim against the Yankees.
F. TRADEMARKS
A trademark is a type of symbol used by one to identify a
particular set of goods and to distinguish them from another’s
goods. A trademark owner can

537

prevent others from using the same or similar marks that create a
likelihood of confusion or deception. Under trademark law, an
individual can establish one’s manufactured goods and services
from another’s (think the Nike SWOOSH).
Trademark law distinguishes between the following: (1) the right
to use a mark, (2) the right to exclude others from using a mark,
and (3) the right to register the mark.
The Federal Trademark Act of 1946, which is commonly referred
to as the Lanham Act, governs the registration and law of
trademarks as well as the remedies and enforcement procedure for
infringement of trademarks. Under the Lanham Act, a trademark is
defined as including “any word, name, symbol, or device or any
combination thereof adopted and used by manufacturer or
merchant to identify his or her goods and also to distinguish from
those manufactured or sold by others.” The Lanham Act provides
for the registration of service marks, certification marks as well as
trademarks. Trademarks actually protect both the consumer and the
owner. A consumer can identify the goods and services that have
been satisfactory in the past because of a trademark.
 In a trademark infringement action, plaintiff must meet five
requirements: (1) there must have been either a reproduction or
counterfeit of the mark; (2) the reproduction must have occurred
without the authority of the registrant; (3) the reproduction has
been used in the stream of commerce; (4) the use must have been in
the sale,

538

distribution or offering of goods or services; and (5) the use of the

reproduction must be likely to cause confusion.
In sports, the most likely conundrum is whether the use of the
reproduction is likely to cause confusion. See National Football
League Properties, Inc. v. Wichita Falls Sportswear, Inc., 532
F.Supp. 651 (W.D.Wash.1982); and University of Pittsburgh v.
Champion Products, 686 F.2d 1040 (3d Cir.1982).
There are many trademark and trade dress concerns in the sports
cosmos. The battle between golf club manufacturers against knock-
off artists is just one example. The problem is, to most consumers,
the SWOOSH, or the Shark’s Shark, or the Cowboys’ logo, IS the
product itself. And the trademark holders must enforce their
property as vigorously as Coca-Cola® or any other business will,
since their identity is so intricately and completely associated with
the trademark.
For example, see Indianapolis Colts v. Metropolitan Baltimore
Football Club, 34 F.3d 410 (7th Cir.1994), in which Canadian
Football League (CFL) team in Baltimore was restrained from
using the “Colts” trademark as in the “Baltimore CFL Colts”, since
“Colts” was already owned by the National Football League
“Indianapolis Colts” (formerly of Baltimore). See also Board of
Trustees of the University of Arkansas v. Professional Therapy
Services, 873 F.Supp. 1280 (W.D.Ark.1995) (trademark
infringement suit for unauthorized use of the RAZORBACK name
and design logo); Three Blind Mice Designs v. Cyrk, Inc., 892
F.Supp. 303

539

(D.Mass.1995) (trademark infringement over caricatures of hockey

referees in the form of three blind mice); Fila U.S.A. v. Kim, 884
F.Supp. 491 (S.D.Fla.1995) (trademark infringement over athletic
shoes); Sports Authority v. Prime Hospitality Corp., 877 F.Supp.
124 (S.D.N.Y.1995) (trademark infringement between “The Sports
Authority,” a warehouse-type sporting good store and “Sports
Authority Food, Spirits and Sports”); and Time Warner Sports
Merchandising v. Chicagoland Processing Corp., 1995 WL 107145
(N.D.Ill.1995) (dispute over licensing of trademarks and trade
names associated with the 1994 World Cup of Soccer).
“March Madness” was upheld as a trademark of the joint venture
formed by the National Collegiate Athletic Association (NCAA)
and the Illinois High School Association (IHSA). The March
Madness Athletic Association, whose only two members are the
NCAA and IHSA, filed suit in 2000 against Netfire, Inc., and
Sports Marketing International, Inc. (SMI), claiming trademark
infringement and cybersquatting for their use of the domain name
www.​marchmadness.​com. The website offered contests and
information relating to the annual NCAA basketball championship
tournament.
The term “March Madness” was first used by the IHSA in
reference to its own male and female high school basketball
tournaments. The NCAA and the IHSA had previously battled in
court over which party had trademark ownership of the term. The
Seventh Circuit court in Chicago ultimately ruled

540

that the IHSA had been the first user, the term had developed a
secondary meaning with the NCAA’s annual collegiate basketball
tournament as well as because of the media’s use of the term in that
context. See Illinois High Sch. Ass’n v. GTE Vantage Inc., 99 F.3d
244 (7th Cir.1996). In February of 2000 the two entities created the
March Madness Athletic Association, LLC. March Madness
Athletic Ass’n, L.L.C. v. Netfire, Inc., 310 F.Supp.2d 786
(N.D.Tex.2003), j/ entered 2003 WL 22173299 (N.D.Tex.2003).
In Pro Football, Inc. v. Harjo, 284 F.Supp.2d 96 (D.D.C.2003),
the court considered a challenge to the existing marks of the
Washington Redskins of the National Football League through a
trademark cancellation proceeding. The team challenged the
decision of the Trial Trademark and Appeal Board (TTAB)
canceling six of its trademark registrations because the TTAB
found that the marks disparage Native Americans. The court
granted summary judgment for the team, finding that the TTAB did
not have substantial evidence to support its conclusion that the
marks were disparaging to a substantial composite of Native
Americans when used in connection with the team’s football
entertainment services.
Adidas has used its now infamous “Three-Stripe Mark” on the
side of its athletic shoes for over 50 years. The mark is famous
because of its use in connection with sports sponsorship. Adidas
has multiple federal trademark registrations for the “Three-Stripe
Mark” for athletic footwear. In its
 541

counterclaim, Adidas alleged that the plaintiff, offered for sale

shoes that bear features that are confusingly similar to the “Three-
Stripe Mark” (namely, a two-stripe mark). Adidas claimed it was
used to intentionally mislead and deceive consumers.
The court held that the two-stripe design was likely to be
confused with the Adidas “Three-Stripe Mark.” Adidas had shown
that there could also be a likelihood of initial-interest, point-of-sale,
and post-sale confusion among consumers. Adidas adequately pled
its dilution claim by showing that ACI was making commercial use
of Adidas’ famous mark in commerce. The use of the competing
two-stripe mark eroded the distinctiveness of the “Three-Stripe
Mark” by its capacity to identify and distinguish goods and
services. ACI Int’l, Inc. v. Adidas-Salomon AG, 359 F.Supp.2d 918
(C.D.Cal.2005).
The celebrated American Needle case began with a trademark
issue—it’s the logo that drives the market! Corporation that
designed, manufactured, and sold headwear caring trademarked
names and logos of various professional athletic teams brought
antitrust action against unincorporated association of professional
football teams, team owners, corporation established by association
and its member teams to licensed their trademarks, and competitor
that had received exclusive licensing agreement for trademarked
headwear and apparel. The Supreme Court held that licensing
activities for individual teams’ intellectual property, conducted
through a corporation separate from the teams and

542
with its own management, constituted concerted action that was not
categorically beyond the coverage of § 1 of the Sherman Act,
which made illegal a contract, combination, or conspiracy in
restraint of trade. American Needle, Inc. v. NFL, 130 S.Ct. 2201
(2010).
Former famous professional football player Jim Brown filed state
court action against videogame developer alleging developer’s use
of player’s name, identity, and likeness was violation of Lanham
Act, and constituted an invasion of privacy and an unfair business
practice under California law. Videogame developer removed, and
after action was dismissed, developer moved for attorney’s fees.
However, the court held that player’s suit was not groundless, as
required for award of attorney’s fees to developer under Lanham
Act, and player’s actions were not vexatious. Brown v. Electronic
Arts, Inc., 772 F.Supp. 2d 1148 (C.D. Cal. 2010).
The Supreme Court of the United States in Already LLC v. Nike,
Inc., 133 S.Ct. 721 (2013), reviewed Nike’s allegations that
Already’s athletic shoes violate Nike’s Air Force trademark.
Already denies these allegations and counterclaims challenging the
validity of Nike’s Air Force 1 trademark. Chief Justice Roberts
wrote for the majority and stated that the manufacturer’s covenant
not to sue renders case moot on competitors invalidity counterclaim
since manufacturer could not be reasonably expected to resume its
enforcement efforts.

543

In Marshall v. NFL, 787 F.3d 502 (8th Cir. 2015), six former NFL
players appealed the district court’s approval of the class-action
settlement between nearly 25,000 class members and the NFL
involving the NFL’s use of former NFL players’ likenesses and
identities.
The class action complaint alleges that for many years NFL
films—the commercial filmmaking wing of the NFL—has used
the names, images, likenesses, and identities of former NFL
players in its various videos to generate revenue and promote
the NFL. The NFL Film videos are “promotional film
productions with scripts, music, editing, direction and
production completely independent of the play and production
of the games themselves.” They seek to provide fans with the
story of the game, such as the “perspective of the game that
perhaps [fans] were not aware of when they watch the broadcast
on network television.” According to Appellate, the use of the
player; likenesses and identities has helped the NFL gain
substantial profits and improve the brand (at 506).
The class asserted claims for false endorsement under the Lanham
Act (15 U.S.C.A. § 1125). The Court of Appeals held that the
district court properly considered the relevant factors and did not
abuse its discretion and finding that the negotiated settlement was
fair, reasonable, and adequate to the class.

544

G. TRADE DRESS
Trade dress protection is available for non-functional features if
they distinguish the goods’ origin. The Lanham Act provides
protection against the creation of confusion by the simulation of a
product or services “trade dress”. Trade dress originally meant a
products’ packaging, but more recent court decisions have
extended trade dress to include the configuration and
ornamentation of the product.
 The signature case is Pebble Beach Co. v. Tour 18 I, Ltd., 942
F.Supp. 1513 (S.D.Tex.1996) which was described as “the
celebrated golf course design trade dress suit.” Tour 18 is a local
golf course outside of Houston that has purposefully attempted to
emulate America’s most famous golf holes from some of this
nation’s most prestigious golf courses. Plaintiffs, owners of three of
the copied holes, filed a complaint alleging that Tour 18 violated
their design proprietary rights, including infringement of their
trademarks, trade dress, copyrights, and goodwill. Judge Hittner
found trade dress infringement only with respect to the
reproduction of the “lighthouse” hole (#18) at Harbour Town; Tour
18 was enjoined from any use of it in its promotions. Tour 18 must
disclaim in all promotions, signage, etc., any association with the
replicated holes. In short, only the truly distinctive signature holes
(like Harbour Town’s 18th) deserve trade dress protection; other
than that, replica golf courses are legally permissible.

545

In Taylor Made Golf Co., Inc. v. Carsten Sports, Ltd., 175 F.R.D.
658 (S.D.Cal.1997), plaintiff vigorously asserted its trademark and
patented golf clubs against “knock-offs” of these clubs. Among its
protected registration is the trade dress of its “BURNER BUBBLE”
Metal Wood. Plaintiff’s motion for summary judgment was
granted, along with a monetary award based on infringer’s profits.
See also Taylor Made Golf Co. v. Trend Precision Golf, Inc., 903
F.Supp. 1506 (M.D.Fla.1995) (trade dress for Callaway Golf’s Big
Bertha Irons).
In Major League Baseball Properties, Inc. v. Salvino, Inc., 420
F.Supp. 2d 212 (S.D. N.Y. 2005), aff’d 542 F.3d 290 (2d Cir. 2008),
baseball club licensing entity sued maker of plush bean-filled bears
featuring the logo of certain clubs: genuine issue of material fact
existed as to whether clubs’ trade dress had acquired a secondary
meaning in the marketplace, precluding summary judgment for
defendant on plaintiff’s trade dress infringement claim.
In Mike Vaughn Custom Sports, Inc. v. Piku, 15 F.Supp. 3d 735
(E.D. Mich. 2014), plaintiff, a manufacturer of ice hockey
equipment for goaltenders, alleges that a former employee stole
design, product, and customer information. However, the amended
complaint fails as to trade dress but does espouse sufficient factual
allegations to validate claims in false designation of origin, breach
of duty of loyalty, and breach of fiduciary duty.

546

H. TRADE SECRETS
Closely related to the other causes of actions in intellectual
property is the area of trade secrets. Factors to determine whether
trade secrets exist include: (1) the extent to which information is
known outside business; (2) the extent to which information is
known to those inside business; (3) the precautions taken by holder
of trade secret to guard secrecy of information; (4) the savings
effected and value to holder in having information as against
competitors; (5) the amount of effort or money expended in
obtaining and developing information; and (6) the amount of time
and expense it would take for others to acquire and duplicate
information.
In Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125 (10th Cir. 2003),
an operator of a program for infant swimming instruction sued
former employees for, inter alia, misappropriation of trade secrets.
Library books and information downloaded from Internet offered
an issue of whether misappropriation of plaintiff’s swimming
instruction methods qualified as trade secrets were not excludable
on hearsay grounds. The court held that issues of material fact
existed as to whether infant swimming instruction program
qualified as protectable trade secret under Colorado law, even
though individual elements of it were in public domain, thus
precluding summary judgment on developer’s misappropriation
claim.
A football scouting service whose sole goal is to provide scouting
reports for 21 different NFL teams sues a sportswriter and website
owner claiming that

547

they “stole” the athletes’ GPA’s from service’s scouting reports.

The sportswriter’s publication of the grades in website articles was
fair use of the scouting service’s copyrighted player grades. But
fact issues precluded summary judgment on the misappropriation
of trade secrets claim under Washington law (Wash. Rev. Code
Ann. §§ 19.108.010 et seq.). National Football Scouting v. Rang,
2012 WL 5205889 (W.D. Wash.).
I. DOMAIN NAMES
A related aspect of trademarks in the relatively recent
phenomenon of domain names and cybersquatting. In order to
locate a business web page on the Internet, there is a need to know
its Internet address. The addresses are the key to effective
communication. By typing in a certain series of letters, numbers,
and symbols, which is referred to as an Internet domain name, the
user gains access to the intended website. Domain names are
usually the company’s nickname, trade name, abbreviation, ticker
name, or catch phrases. Many problems exist because domain
names are classified as trademarks. In sports, fans are now able to
receive the latest news of their favorite teams and players.
 Chuck Liddell, is an Ultimate Fighting Championship Superstar
who has appeared in movies and on television. The disputed
domain name, “http://www.chuckliddell.com” was registered by
Comdot Internet Services in 2004. At the time he was already well-
known. The domain name

548

provided links to other sites associated with Liddell. CHUCK

LIDDELL, however, was an unregistered mark, and therefore,
Liddell had to prove prior to filling that the public associated it
with goods or services and that he has a right to bring complaint.
The EIPO Panel determined that the name CHUCK LIDDELL had
acquired a secondary meaning so that he had common law rights to
the CHUCK LIDDELL trademark since the domain name was
identical to the CHUCK LIDDELL mark, and the domain name
was used to attract users for commercial gain, therefore, the
domain name was in bad faith and transferred to Liddell. Liddell v.
Comdot Internet Services Private, Ltd., WIPO case no. D2008–
1284 (Nov. 3, 2008).
The National Football League is very diligent in protecting its
trademarks and domain names, especially anything to do with the
“Super Bowl”—it is the Holy Grail of marketing. Respondent
attempted to redirect some of those 2011 Super Bowl millions to
the website, “Super Bowl Concierge.” Respondent, the erstwhile
“Super Bowl concierge” usually listed as “EE Nation,” for her
website. Obviously, respondent’s use of the domain name “Super
Bowl Concierge” unlawfully trades off the mega-goodwill and
value of the NFL’s SUPER BOWL mark. The WIPO panel orders
that the domain name <superbowlconcierge.com> be transferred to
complainant NFL. National Football League v. EE Nation, WIPO
Case No. D2001–1228 (Sept. 25, 2011).
 549

Vernard Bonner registered the domain name http://‌

www.‌official‌super‌bowl‌parties.‌com with http://‌www.‌godaddy.‌com.
The NFL sued on grounds that it owned the mark “Super Bowl.”
The domain name was identical or confusingly similar to the mark
SUPERBOWL. The NFL had made out a prima facie case that
Bonner had no legitimate interests in the name. Bonner registered
the domain name in bad faith, and therefore, it transferred to the
NFL. National Football League v. Bonner, WIPO Case No.
D2008–0605 (May 29, 2008).
 551

APPENDICES
NOTE
These appendices display documents that represent practical
ramifications of athletic participation and representation. These
documents are an essential aspect of the practice of sports law and
should be read as an adjunct to the chapters on contracts, amateur
sports, and drug testing.
UNIFORM PLAYER’S CONTRACT
THE NATIONAL LEAGUE OF PROFESSIONAL
BASEBALL CLUBS
Parties
Between _______, herein called the Club, and _______ of
_______, herein called the Player.
Recital
The Club is a member of the National League of Professional
Baseball Clubs, a voluntary association of member Clubs which
has subscribed to the Major League Rules with the American
League of Professional Baseball Clubs and its constituent Clubs
and to The Professional Baseball Rules with that League and the
National Association of Baseball Leagues.
Agreement
In consideration of the facts above recited and of the promises of
each to the other, the parties agree as follows:

552
Employment
1. The Club hereby employs the Player to render, and the Player
agrees to render, skilled services as a baseball player during the
year(s) 19__ including the Club’s training season, the Club’s
exhibition games, the Club’s playing season, the League
Championship Series and the World Series (or any other official
series in which the Club may participate and in any receipts of
which the Player may be entitled to share).
Payment
2. For performance of the Player’s services and promises
hereunder the Club will pay the Player the sum of $_______, in
semi-monthly installments after the commencement of the
championship season(s) covered by this contract except as the
schedule of payments may be modified by a special covenant.
Payment shall be made on the day the amount becomes due,
regardless of whether the Club is “home” or “abroad.” If a monthly
rate of payment is stipulated above, it shall begin with the
commencement of the championship season (or such subsequent
date as the Player’s services may commence) and end with the
termination of the championship season and shall be payable in
semi-monthly installments as above provided.
Nothing herein shall interfere with the right of the Club and the
Player by special covenant herein to mutually agree upon a method
of payment whereby part of the Player’s salary for the above year
can be deferred to subsequent years.

553

If the Player is in the service of the Club for part of the

championship season only, he shall receive such proportion of the
sum above mentioned, as the number of days of his actual
employment in the championship season bears to the number of
days in the championship season. Notwithstanding the rate of
payment stipulated above, the minimum rate of payment to the
Player for each day of service on a Major League Club shall be at
the applicable rate set forth in Article VI(B)(1) of the Basic
Agreement between the American League of Professional Baseball
Clubs and the National League of Professional Baseball Clubs and
the Major League Baseball Players Association, effective January
1, 1990 (“Basic Agreement”). The minimum rate of payment for
National Association service for all Players (a) signing a second
Major League contract (not covering the same season as any such
Player’s initial Major League contract) or a subsequent Major
League contract, or (b) having at least one day of Major League
service, shall be at the applicable rate set forth in Article VI(B)(2)
of the Basic Agreement.
Payment to the Player at the rate stipulated above shall be
continued throughout any period in which a Player is required to
attend a regularly scheduled military encampment of the Reserve of
the Armed Forces or of the National Guard during the
championship season.

554

Loyalty
3. (a) The Player agrees to perform his services hereunder
diligently and faithfully, to keep himself in first-class physical
condition and to obey the Club’s training rules, and pledges himself
to the American public and to the Club to conform to high
standards of personal conduct, fair play and good sportsmanship.
Baseball Promotion
 3. (b) In addition to his services in connection with the actual
playing of baseball, the Player agrees to cooperate with the Club
and participate in any and all reasonable promotional activities of
the Club and its League, which, in the opinion of the Club, will
promote the welfare of the Club or professional baseball, and to
observe and comply with all reasonable requirements of the Club
respecting conduct and service of its team and its players, at all
times whether on or off the field.
Pictures and Public Appearances
3. (c) The Player agrees that his picture may be taken for still
photographs, motion pictures or television at such times as the Club
may designate and agrees that all rights in such pictures shall
belong to the Club and may be used by the Club for publicity
purposes in any manner it desires. The Player further agrees that
during the playing season he will not make public appearances,
participate in radio or television programs or permit his picture to
be taken or write or sponsor

555

newspaper or magazine articles or sponsor commercial products

without the written consent of the Club, which shall not be
withheld except in the reasonable interests of the Club or
professional baseball.
PLAYER REPRESENTATIONS
Ability
4. (a) The Player represents and agrees that he has exceptional
and unique skill and ability as a baseball player; that his services to
be rendered hereunder are of a special, unusual and extraordinary
character which gives them peculiar value which cannot be
reasonably or adequately compensated for in damages at law, and
that the Player’s breach of this contract will cause the Club great
and irreparable injury and damage. The Player agrees that, in
addition to other remedies, the Club shall be entitled to injunctive
and other equitable relief to prevent a breach of this contract by the
Player, including, among others, the right to enjoin the Player from
playing baseball for any other person or organization during the
term of his contract.
Condition
4. (b) The Player represents that he has no physical or mental
defects known to him and unknown to the appropriate
representative of the Club which would prevent or impair
performance of his services.

556

Interest in Club
4. (c) The Player represents that he does not, directly or indirectly,
own stock or have any financial interest in the ownership or
earnings of any Major League Club, except as hereinafter expressly
set forth, and covenants that he will not hereafter, while connected
with any Major League Club, acquire or hold any such stock or
interest except in accordance with Major League Rule 20(e).
Service
5. (a) The Player agrees that, while under contract, and prior to
expiration of the Club’s right to renew this contract, he will not
play baseball otherwise than for the Club, except that the Player
may participate in post-season games under the conditions
prescribed in the Major League Rules. Major League Rule 18(b) is
set forth herein.
Other Sports
5. (b) The Player and the Club recognize and agree that the
Player’s participation in certain other sports may impair or destroy
his ability and skill as a baseball player. Accordingly, the Player
agrees that he will not engage in professional boxing or wrestling;
and that, except with the written consent of the Club, he will not
engage in skiing, auto racing, motorcycle racing, sky diving, or in
any game or exhibition of football, soccer, professional league
basketball, ice hockey or other sport involving a substantial risk of
personal injury.

557

Assignment
6. (a) The Player agrees that his contract may be assigned by the
Club (and reassigned by any assignee Club) to any other Club in
accordance with the Major League Rules and the Professional
Baseball Rules. The Club and the Player may, without obtaining
special approval, agree by special covenant to limit or eliminate the
right of the Club to assign this contract.
Medical Information
6. (b) The Player agrees that, should the Club contemplate an
assignment of this contract to another Club or Clubs, the Club’s
physician may furnish to the physicians and officials of such other
Club or Clubs all relevant medical information relating to the
Player.
No Salary Reduction
6. (c) The amount stated in paragraph 2 and in special covenants
hereof which is payable to the Player for the period stated in
paragraph 1 hereof shall not be diminished by any such assignment,
except for failure to report as provided in the next subparagraph
(d).
Reporting
6. (d) The Player shall report to the assignee Club promptly (as
provided in the Regulations) upon receipt of written notice from
the Club of the assignment of this contract. If the Player fails to so
report, he shall not be entitled to any payment for

558

the period from the date he receives written notice of assignment

until he reports to the assignee Club.
Obligations of Assignor and Assignee Clubs
6. (e) Upon and after such assignment, all rights and obligations
of the assignor Club hereunder shall become the rights and
obligations of the assignee Club; provided, however, that
(1) The assignee Club shall be liable to the Player for
payments accruing only from the date of assignment and shall
not be liable (but the assignor Club shall remain liable) for
payments accrued prior to that date.
(2) If at any time the assignee is a Major League Club, it shall
be liable to pay the Player at the full rate stipulated in paragraph
2 hereof for the remainder of the period stated in paragraph 1
hereof and all prior assignors and assignees shall be relieved of
liability for any payment for such period.
(3) Unless the assignor and assignee Clubs agree otherwise, if
the assignee Club is a National Association Club, the assignee
Club shall be liable only to pay the Player at the rate usually
paid by said assignee Club to other Players of similar skill and
ability in its classification and the assignor Club shall be liable
 to pay the difference for the remainder of the period stated in
paragraph 1 hereof between an amount computed at the rate

559

stipulated in paragraph 2 hereof and the amount so payable by

the assignee Club.
Moving Allowances
6. (f) The Player shall be entitled to moving allowances under the
circumstances and in the amounts set forth in Articles VII(F) and
VIII of the Basic Agreement.
“Club”
6. (g) All references in other paragraphs of this contract to “the
Club” shall be deemed to mean and include any assignee of this
contract.
TERMINATION
By Player
7. (a) The Player may terminate this contract, upon written notice
to the Club, if the Club shall default in the payments to the Player
provided for in paragraph 2 hereof or shall fail to perform any other
obligation agreed to be performed by the Club hereunder and if the
Club shall fail to remedy such default within ten (10) days after the
receipt by the Club of written notice of such default. The Player
may also terminate this contract as provided in subparagraph (d)(4)
of this paragraph 7. (See Article XV(H) of the Basic Agreement.)
By Club
7. (b) The Club may terminate this contract upon written notice to
the Player (but only after requesting and obtaining waivers of this
contract
 560

from all other Major League Clubs) if the Player shall at any time:
(1) fail, refuse or neglect to conform his personal conduct to
the standards of good citizenship and good sportsmanship or to
keep himself in first-class physical condition or to obey the
Club’s training rules; or
(2) fail, in the opinion of the Club’s management, to exhibit
sufficient skill or competitive ability to qualify or continue as a
member of the Club’s team; or
(3) fail, refuse or neglect to render his services hereunder or in
any other manner materially breach this contract.
7. (c) If this contract is terminated by the Club, the Player shall be
entitled to termination pay under the circumstances and in the
amounts set forth in Article IX of the Basic Agreement. In addition,
the Player shall be entitled to receive an amount equal to the
reasonable traveling expenses of the Player, including first-class jet
air fare and meals en route, to his home city.
Procedure
7. (d) If the Club proposes to terminate this contract in accordance
with subparagraph (b) of this paragraph 7, the procedure shall be as
follows:
(1) The Club shall request waivers from all other Major
League Clubs. Such waivers shall be good for three (3) business
days only. Such

561

waiver request must state that it is for the purpose of terminating

this contract and it may not be withdrawn.
 (2) Upon receipt of waiver request, any other Major League
Club may claim assignment of this contract at a waiver price of
$1.00, the priority of claims to be determined in accordance
with the Major League Rules.
(3) If this contract is so claimed, the Club shall, promptly and
before any assignment, notify the Player that it had requested
waivers for the purpose of terminating this contract and that the
contract had been claimed.
(4) Within five (5) days after receipt of notice of such claim,
the Player shall be entitled, by written notice to the Club, to
terminate this contract on the date of his notice of termination.
If the Player fails to so notify the Club, this contract shall be
assigned to the claiming Club.
(5) If the contract is not claimed, the Club shall promptly
deliver written notice of termination to the Player at the
expiration of the waiver period.
7. (e) Upon any termination of this contract by the Player, all
obligations of both Parties hereunder shall cease on the date of
termination, except the obligation of the Club to pay the Player’s
compensation to said date.

562

Regulations
8. The Player accepts as part of this contract the Regulations set
forth herein.
Rules
9. (a) The Club and the Player agree to accept, abide by and
comply with all provisions of the Major League Agreement, the
Major League Rules, the Rules or Regulations of the League of
which the Club is a member, and the Professional Baseball Rules,
in effect on the date of this Uniform Player’s Contract, which are
not inconsistent with the provisions of this contract or the
provisions of any agreement between the Major League Clubs and
the Major League Baseball Players Association, provided that the
Club, together with the other clubs of the American and National
Leagues and the National Association, reserves the right to modify,
supplement or repeal any provision of said Agreement, Rules
and/or Regulations in a manner not inconsistent with this contract
or the provisions of any then existing agreement between the Major
League Clubs and the Major League Baseball Players Association.
Disputes
9. (b) All disputes between the Player and the Club which are
covered by the Grievance Procedure as set forth in the Basic
Agreement shall be resolved in accordance with such Grievance
Procedure.

563

Publication
9. (c) The Club, the League President and the Commissioner, or
any of them, may make public the findings, decision and record of
any inquiry, investigation or hearing held or conducted, including
in such record all evidence or information given, received, or
obtained in connection therewith.
Renewal
10. (a) Unless the Player has exercised his right to become a free
agent as set forth in the Basic Agreement the Club may, on or
before December 20 (or if a Sunday, then the next preceding
business day) in the year of the last playing season covered by this
contract, tender to the Player a contract for the term of the next
year by mailing the same to the Player at his address following his
signature hereto, or if none be given, then at his last address of
record with the Club. If prior to the March 1 next succeeding said
December 20, the Player and the Club have not agreed upon the
terms of such contract, then on or before ten (10) days after said
March 1, the Club shall have the right by written notice to the
Player at said address to renew this contract for the period of one
year on the same terms, except that the amount payable to the
Player shall be such as the Club shall fix in said notice; provided,
however, that said amount, if fixed by a Major League Club, shall
be an amount payable at a rate not less than as specified in Article
VI, Section D, of the Basic Agreement. Subject to the Player’s

564

rights as set forth in the Basic Agreement, the Club may renew this
contract from year to year.
10. (b) The Club’s right to renew this contract, as provided in
subparagraph (a) of this paragraph 10, and the promise of the
Player not to play otherwise than with the Club have been taken
into consideration in determining the amount payable under
paragraph 2 hereof.
Governmental Regulation—National Emergency
11. This contract is subject to federal or state legislation,
regulations, executive or other official orders or other
governmental action, now or hereafter in effect respecting military,
naval, air or other governmental service, which may directly or
indirectly affect the Player, Club or the League and subject also to
the right of the Commissioner to suspend the operation of this
contract during any national emergency during which Major
League Baseball is not played.
Commissioner
12. The term “Commissioner” wherever used in this contract shall
be deemed to mean the Commissioner designated under the Major
League Agreement, or in the case of a vacancy in the office of
Commissioner, the Executive Council or such other body or person
or persons as shall be designated in the Major League Agreement
to exercise the powers and duties of the Commissioner during such
vacancy.

565

Supplemental Agreements
The Club and the Player covenant that this contract, the Basic
Agreement and the Agreement Re Major League Baseball Players
Benefit Plan effective April 1, 1990 and applicable supplements
thereto fully set forth all understandings and agreements between
them, and agree that no other understandings or agreements,
whether heretofore or hereafter made, shall be valid, recognizable,
or of any effect whatsoever, unless expressly set forth in a new or
supplemental contract executed by the Player and the Club (acting
by its President or such other officer as shall have been thereunto
duly authorized by the President or Board of Directors as
evidenced by a certificate filed of record with the League President
and Commissioner) and complying with the Major League Rules
and the Professional Baseball Rules.

566

Special Covenants
Approval
This contract or any supplement hereto shall not be valid or
effective unless and until approved by the League President.
Signed in duplicate this ___ day of ___, A.D. 199__

(Player) (Club)
By
(Home address of Player) (Authorized Signature)
Social Security No. _____
Approved ________, 199_

President, The National League

of Professional Baseball Clubs

567

REGULATIONS
1. The Club’s playing season for each year covered by this
contract and all renewals hereof shall be as fixed by The National
League of Professional Baseball Clubs, or if this contract shall be
assigned to a Club in another League, then by the League of which
such assignee is a member.
2. The Player, when requested by the Club, must submit to a
complete physical examination at the expense of the Club, and if
necessary to treatment by a regular physician or dentist in good
standing. Upon refusal of the Player to submit to a complete
medical or dental examination, the Club may consider such refusal
a violation of this regulation and may take such action as it deems
advisable under Regulation 5 of this contract. Disability directly
resulting from injury sustained in the course and within the scope
of his employment under this contract shall not impair the right of
the Player to receive his full salary for the period of such disability
or for the season in which the injury was sustained (whichever
period is shorter), together with the reasonable medical and
hospital expenses incurred by reason of the injury and during the
term of this contract or for a period of up to two years from the date
of initial treatment for such injury, whichever period is longer, but
only upon the express prerequisite conditions that (a) written notice
of such injury, including the time, place, cause and nature of the
injury, is served upon and received by the Club within twenty days
of the sustaining of said injury and (b) the Club shall have

568

the right to designate the doctors and hospitals furnishing such

medical and hospital services. Failure to give such notice shall not
impair the rights of the Player, as herein set forth, if the Club has
actual knowledge of such injury. All workmen’s compensation
payments received by the Player as compensation for loss of
income for a specific period during which the Club is paying him
in full, shall be paid over by the Player to the Club. Any other
disability may be ground for suspending or terminating this
contract.
3. The Club will furnish the Player with two complete uniforms,
exclusive of shoes, unless the Club requires the Player to wear non-
standard shoes in which case the Club will furnish the shoes. The
uniforms will be surrendered by the Player to the Club at the end of
the season or upon termination of this contract.
4. The Player shall be entitled to expense allowances under the
circumstances and in the amounts set forth in Article VII of the
Basic Agreement.
5. For violation by the Player of any regulation or other provision
of this contract, the Club may impose a reasonable fine and deduct
the amount thereof from the Player’s salary or may suspend the
Player without salary for a period not exceeding thirty days or both.
Written notice of the fine or suspension or both and the reason
therefor shall in every case be given to the Player and the Players
Association. (See Article XII of the Basic Agreement.)

569

6. In order to enable the Player to fit himself for his duties under
this contract, the Club may require the Player to report for practice
at such places as the Club may designate and to participate in such
exhibition contests as may be arranged by the Club, without any
other compensation than that herein elsewhere provided, for a
period beginning not earlier than thirty-three (33) days prior to the
start of the championship season, provided, however, that the Club
may invite players to report at an earlier date on a voluntary basis
in accordance with Article XIV of the Basic Agreement. The Club
will pay the necessary traveling expenses, including the first-class
jet air fare and meals en route of the Player from his home city to
the training place of the Club, whether he be ordered to go there
directly or by way of the home city of the Club. In the event of the
failure of the Player to report for practice or to participate in the
exhibition games, as required and provided for, he shall be required
to get into playing condition to the satisfaction of the Club’s team
manager, and at the Player’s own expense, before his salary shall
commence.
7. In case of assignment of this contract the Player shall report
promptly to the assignee Club within 72 hours from the date he
receives written notice from the Club of such assignment, if the
Player is then not more than 1,600 miles by most direct available
railroad route from the assignee Club, plus an additional 24 hours
for each additional 800 miles.

570

Post-Season Exhibition Games. Major League Rule 18(b)

provides:
(b) EXHIBITION GAMES. No player shall participate in any
exhibition game during the period between the close of the
Major League championship season and the following training
season, except that, with the consent of his club and permission
of the Commissioner, a player may participate in exhibition
games for a period of not less than thirty (30) days, such period
to be designated annually by the Commissioner. Players who
participate in barnstorming during this period cannot engage in
any Winter League activities. Player conduct, on and off the
field, in connection with such post-season exhibition games
shall be subject to the discipline of the Commissioner. The
Commissioner shall not approve of more than three (3) players
of any one club on the same team. The Commissioner shall not
 approve of more than three (3) players from the joint
membership of the World Series participants playing in the
same game. No player shall participate in any exhibition game
with or against any team which, during the current season or
within one year, has had any ineligible player or which is or has
been during the current season or within one (1) year, managed
and controlled by an ineligible player or by any person who has
listed an ineligible player under an assumed name or who
otherwise has violated, or attempted to violate, any exhibition
game contract; or with or

571

against any team which, during said season or within one (1)
year, has played against teams containing such ineligible
players, or so managed or controlled. Any player violating this
Rule shall be fined not less than Fifty Dollars ($50.00) nor more
than Five Hundred Dollars ($500.00), except that in no event
shall such fine be less than the consideration received by such
player for participating in such game.
PRINTED IN U.S.A. REVISED AS OF MAY 1990
 691

INDEX
References are to Pages

—————
ABANDONMENT OF THE CONTRACTS, 4

ACCEPTANCE, 3
See Offeror and Offeree, 3
ADIDAS, 540–541
AGENTS
Generally, 37–50
Conflicts of interest, 40–41
Criminal liability, 48
Registration, 41
NCAA, 46–48
 State legislation, 41
Union, 43–46
Representation, 48–50
Standard representation agreements, 37
AIDS, 278, 412–413
AMATEUR SPORTS, 111, 132, 135–140, 487
Administration, 334, 345, 363–364
NCAA, 366, 455
Rule-making, 365
Status of athlete, 364
AMATEUR SPORTS ACT, 435
AMERICANS WITH DISABILITIES ACT, 408, 411
ANTI-MARRIAGE RULES, 394
ANTITRUST
Generally, 11, 69, 72
Amateur sports, 135
Cable TV, 133
Collegiate draft, 127

692
Exemptions, 115
Baseball, 116–121
Labor, 121
NFL, 121
Nonstatutory labor, 122
Franchise movement, 128–131
League versus league, 131
Per se, 277
Player restraints, 107, 126–128
Rule of reason, 129, 133, 135, 142
Tie-ins, 141
TV packaging, 132
ARBITRATION AND MEDIATION, 91–99
Grievance, 98
Salary, 99
Vacating an award, 93
ARTEST, RON, 353, 464–465
ASSIGNMENTS, 15
Contracts, 15
Income, 57
ASSUMPTION OF RISK, 299–314
Expressed, 305
Implied, 305
Jockeys and car racers, 307
Minors, 191, 225, 314, 330
Skiing, golf and baseball, 309
BAGWELL, JEFF, 22
BALCO, 452, 475–478
BARGAINING UNIT, 74
BASEBALL, 116, 213, 309
Assumption of risk, 299
Exemption, 116
Salary grievance, 98–99
See Arbitration and Mediation
Spectators, 189–190, 207, 211–227

693
BATTERY, 234, 60
BERT BELL/PETE ROZELLE PLAN, 22, 26
BLOOD DOPING, 445
BONDS, BARRY, 476–477
BOYCOTTS, 440–443
BUSH, GEORGE W., 480
CABLE TV, 133–135
CANADA, 360
Criminal liability, 360–362
Self-defense, 353, 360–361
CAP STATUS, 35
CAR RACES, 223
Assumption of risk, 299–314
Spectators, 189–190, 207, 211–227
Waivers, 328
CHARITABLE IMMUNITY, 339
See also Sovereign Immunity, 332
CIVIL RIGHTS, 495–508
Generally, 495
Human Rights Act, 500
Section 1981, 498
Section 1983, 499
Title II, 497
Title VII, 495
CIVIL RIGHTS RESTORATION ACT OF 1987, 520
CLARETT, MAURICE, 102, 125
CLAUSES, SPECIALTY, 9–13
See Specialty Clauses
CLEMENS, ROGER, 481

694
COACHES
Contracts for, 28–33
Duty to warn, 265
Failure to hire competent, 238
Liability, 245–255
Preparation of participants, 251–254
Qualifications, 248
Supervision, 255–258
COCHRAN, JOHNNIE, 503–505
COLLATERAL AGREEMENTS, 13
COLLECTIVE BARGAINING, 76
Agreement, 78–88
Discipline and penalties, 453–460
COLLEGES
See also Schools, 229
Collegiate draft, 127
Scholarships, 419–430
See Scholarships, 419–430
COLLUSION, 78–79
COMMISSIONER’S SIGNATURE, 1
COMPARATIVE NEGLIGENCE, 318
CONCERTED ACTIONS, 89–90
Lockouts, 90
Strikes, 89
CONDITION PRECEDENT, 1
Material breach, l
Player’s signature as revocable offer, 1
CONFLICTS OF INTEREST, 40–41
Agents, 41
CONTACT SPORTS, 205–206
Sex discrimination, 509–526

695
CONTRACTS
See also Offeror and Offeree, 3
Abandonment, 4
See Abandonment of Contracts
Defenses, 18
See Defenses, Contract
Interpretation, 3
See Interpretation of Contracts
Negotiation, 9, 34–35
Scholarships, 419–430
Standard player’s,
See Standard Player’s Contract
CONTRIBUTORY NEGLIGENCE, 315–317
COPYRIGHTS, 534
COUNTER-OFFER, 1
COURT OF ARBITRATION FOR SPORT (CAS), 447–452
CRIMINAL LIABILITY
Generally, 48, 351–360
Agents, 41
Battery, 357–359
Canadian approach, 360–362
Self-defense, 353, 360–361
Inherently violent sports, 356
CURT FLOOD ACT OF 1998, 117–118
“DEATH PENALTY”, 456
DEFAMATION, 269–293
Defenses, 293–298
Fair comment, 276, 293–296
Opinions, 276, 294
Per se, 277
Public figures, 280–285
Rule of repose, 286
Sportswriters, 276

696
DEFENSES, CONTRACT, 18
Military Service, 17
Mutuality, 20
Unclean hands, 19
Unconscionability, 19
DEFERRALS, 58–60
Contracts, 28–33
Pension plans, 59
Substantially non-vested property, 60
DISABLED ATHLETE, 403–411
AIDS, 278, 412–413
Americans with Disabilities Act, 411–418
Eligibility, 405–408
§ 504, Rehabilitation Act, 409
DISCIPLINE AND PENALTIES
Generally, 453
High school sports, 458
NCAA, 455
“Death penalty”, 456
Power to sanction, 455
Professional sports, 460–472
DISCRIMINATION, SEX, 509–526
See Sex Discrimination
DONAGHY, TOM (NBA REFEREE), 466
DRAFT, COLLEGIATE, 127
DRUG TESTING
 Generally, 473
Amateur sports, 487
Due process and equal protection, 493
NCAA, 487
Olympics, 434
Professional sports, 473
Reasonableness of search, 492
Right of privacy, 491

697
DUE PROCESS, 384–493
Drug testing, 473, 493
Power to discipline, 453–455
DUTY OF FAIR REPRESENTATION, 75
EDUCATION AMENDMENTS, 1972, TITLE IX, 515
See Sex Discrimination, Title IX, 509–526
ELIGIBILITY, 377–402
Disabled athletes, 403–418
Due process and equal protection, 384–389
Right or privilege, 379–381
Scope of rules, 377
State actors, 382
Types of rules, 390–397
Anti-marriage, 394
“No agent” rates, 395
No transfer rules, 393
Red shirting, 391
EQUAL PROTECTION, 384–389, 493
Drug testing, 473, 493
Sex discrimination, 509–526
EQUAL RIGHTS AMENDMENTS, 526–529
ESCALATING CLAUSE, 10
ESTATE PLANNING
Generally, 65–68
Estate tax, 67
Generation skipping tax, 67
Life insurance, 67
Revocable trusts, 66
“Unified credits”, 67
EXEMPTIONS, ANTITRUST, 115
Baseball, 116–120
Labor, 121
NFL, 121
Non-statutory labor, 122

698
FACILITY LIABILITY, 176
Design, construction, maintenance and repair, 193
Invitees, 189–190
Minors, 191, 225, 314, 330
Status of injured party, 188
Unreasonably dangerous conditions, 192
FAILURE TO REFER, 176
FAIR REPRESENTATION, DUTY OF
See Duty of Fair Representation
FINANCIAL PLANNING, 63–68
Estate planning, 65–68
Estate tax, 67
Generation skipping tax, 67
Life insurance, 67
Revocable trusts, 66
“Unified credits”, 67
Preservation of capital, 64
Protection against risk, 65
Tax minimalization, 64
Keogh contributions, 64
FRANCHISE MOVEMENT, 128
FRAUDULENT CONCEALMENT, 167–170
GAMBLING, 8, 460
Power to discipline, 453–455
GENERATION SKIPPING TAX, 67
GIRLS AND WOMEN
See Sex Discrimination
GOLF, 222
Assumption of risk, 299–314
Spectators, 211
GOOD FAITH BARGAINING, 123
GOODELL, ROGER, 275
GRIEVANCE ARBITRATION, 98

699
HANDICAPPED ATHLETES
See Disabled Athletes
HIGH SCHOOL SPORTS
See also Schools
Discipline and penalties, 453–472
Drug testing, 473, 493
HOCKEY SPECTATORS, 223
HUTCHINSON, STEVE, 9
IMUS, DON, 504
INCOME ASSIGNMENT, 58
INCOME DEFERRALS, 58
See Deferrals
INCORPORATION, 62
INFORMED CONSENT, 165
INJUNCTIONS, 17, 19
INSTRUCTION, 51, 195, 208, 222, 230
Failure to, 238
INSURANCE AND PENSIONS, 20–27
Bert Bell/Pete Rozelle Plan, 22, 26
Life Insurance, 67
NCAA, 46
INTELLECTUAL PROPERTY
Generally, 529
Athletes as entertainers, 530
Copyrights, 534
Marketing, 529
Patents, 531
Trade dress, 544
Trademarks, 536
INTERNATIONAL OLYMPICS COMMITTEE (IOC), 434
Drug testing, 473, 493

700
INTERNATIONAL SPORTS, 327
INTERPRETATION OF CONTRACTS
Abandonment, 3
Ambiguous terms, 2
“Player-manager”, 2, 3
INVASION OF PRIVACY, 217–220
INVESTMENT, TAX-SHELTERED
See Taxation, Tax-Sheltered Investments
JOCKEYS
Assumption of risk, 230–232
Drug testing, 473, 493
KEOGH CONTRIBUTIONS, 64
KNIGHT FOUNDATION, 375
Report on Intercollegiate Athletics, see Appendices
LELIE, ASHLEY, 11
LIBEL AND SLANDER, 277
LIFE INSURANCE, 67
LOCALITY RULE, 247
LOCKOUTS, 89–90
See Concerted Actions
MARCH MADNESS, 540
MARFAN’S SYNDROME, 174
MARKETING, 529
MEDIATION AND ARBITRATION, 91–99
See Arbitration and Mediation
MEDICAL MALPRACTICE, 158–176
Doctor-patient relationship, 158
Duty of care, 163
Duty to disclose, 165
Failure to refer, 176
 701
Fraudulent concealment, 167
Informed consent, 165
Preparticipation physical exams, 164, 172
Team physicians, 171
Vicarious liability, 176, 233
MINORS, 191, 225, 314, 330
Assumption of risk, 314
Facility liability, 176
Spectators, 189–190, 207, 211–227
Waivers, 328
MITCHELL REPORT, 480
See Appendices
MLB COLLECTIVE BARGAINING AGREEMENT, 76, 78
MUTUALITY, 20
NATIONAL GOVERNING BODY (NGB), 434
NATIONAL LABOR RELATIONS ACT, 69
Bargaining unit, 74
Duty to bargain, 75
Good faith, 3, 13, 23, 70
Jurisdiction, 70
NATIVE AMERICAN MASCOTS, 506
NBA COLLECTIVE BARGAINING AGREEMENT, 6, 14, 78
NCAA, 46–48, 366, 455
Academic Performance Program, 369, 398
Amateurism, 363
American Indian Nicknames, 506
“Death penalty”, 456
Drug testing, 473, 493
Insurance, 20–27
“No-agent” rules, 395
Power to sanction, 455
Proposition 16, 367
Proposition 42, 367
Proposition 48, 367

702
Two in Four Rule, 110
NEGLIGENCE, 145–158
Generally, 145
Breach of duty, 154
Damages, 158
Duty of care, 146
Proximate cause, 156
Standard of care, 151
NEGOTIATIONS, CONTRACT
See Contracts, Negotiation, 42
NFL COLLECTIVE BARGAINING AGREEMENT, 27, 72
NHL COLLECTIVE BARGAINING AGREEMENT, 70–72
“NO AGENT” RULES, 395
NO-CUT CLAUSE, 12–13
NO-DUTY RULE, 157
NO PASS, NO PLAY, 399
NO-TAMPERING CLAUSE, 7, 48
NO TRANSFER RULES, 393
NON-STATUTORY LABOR EXEMPTION, 122–125
OFFEROR AND OFFEREE, 3
See also Contracts
Acceptance, 3
Binding contracts, 1
Revocable offers, 3
OLYMPICS, 434
International Olympics Committee (IOC), 434
Drug testing, 473, 493
U.S. Olympic Committee (USOC), 364, 439, 441
Drug testing, 473, 493
OPTION CLAUSES, 35
OWENS, TERRELL, 465

703
“PACMAN” JONES, 466
PAROL EVIDENCE RULE, 6
PARTICIPANTS
Coach’s preparation, 251
Contact sports, 205–206
Injuries, 197–207
Professional sports, 203
Referee’s duty to protect, 197
Third persons, 207
Unsportsmanlike conduct, 202
Violation of safety rules, 202
PATENTS, 402–403
PENALTIES AND DISCIPLINE
See Discipline and Penalties, 453–460
PENSION PLANS, 59
Deferrals, 58–60
PERSONAL SERVICES CONTRACT, 4, 37
PHILLIPS, RICHIE, 71
PHYSICIANS, TEAM, 165–168, 171
PISTORIOUS, OSCAR, 407
PLAYER RESTRAINTS, 126
PRICE, MIKE, 270–271
PRIVACY, 288
Drug testing, 473, 493
Invasion of, 288
PRODUCT’S LIABILITY, 177
Dangerous products, 178
Warnings, 178, 319
PROFESSIONAL SPORTS, 195, 203, 343, 460–472
Discipline and penalties, 460
Participant injuries, 197–210

704
Workers’ compensation, 95, 343–350, 425
PROPOSITIONS 16, 42 AND 48, 367
PUBLIC FIGURES, 280–285
RACISM IN SPORTS, 500–508
REASONABLENESS OF SEARCH, 492
Drug testing, 473, 493
RECREATIONAL USE STATUTES, 340
RED SHIRTING, 391
REFEREES, 207, 259–268
Anticipating reasonably foreseeable dangers, 266
Duty to enforce rules, 260
Duty to protect participants, 264
Duty to warn, 265
Failure to control game, 268
Liability
Generally, 259
REGISTRATION OF AGENTS, 41–47
NCAA, 46
State legislation, 41
Union, 43
REHABILITATION ACT, § 504, 409
REMEDIES, 16
Specific performance, 16
Injunctions, 17, 19
REPRESENTING THE ATHLETE
Generally, 48–50
Standard representation contracts, 6
RESERVE CLAUSE, 12
REVOCABLE TRUSTS, 66
RIGHT OF PRIVACY, 491
See Privacy

705
ROBINSON, JACKIE, 501–503
ROOKIE SIGNING BONUS, 10
ROONEY RULE, 502–503
RULE OF REPOSE, 286
SAFETY RULES, VIOLATION OF, 202
SALARY ARBITRATION, 91–99
SANDERS, ANUCHA, 505
SCHOLARSHIPS, 419–430
Contracts, 1–36, 15, 28–30
Employee status, 430
Taxation, 427
Workers’ compensation, 95, 343–350, 425
SCHOOLS, 229
See also Colleges; High School Sports
Failure to hire competent coaches, 238
Failure to instruct, 238
Failure to maintain equipment and facilities, 242
Failure to properly supervise, 238
Failure to warn, 238
Negligence, 229
Vicarious liability, 176,
SEARCHES AND SEIZURES, 492
See Reasonableness of Search, 492
SEPARATE BUT EQUAL, 513
SEX DISCRIMINATION, 509–528
Generally, 509
Contact sports, 514
Equal protection, 523
Separate but equal, 513
State ERAs, 526
Title IX, 515
Application, 515
Grove City and Civil Rights Restoration Act of 1987, 520–522

706
SKIING, 309
Assumption of risk, 299–314
SLANDER AND LIBEL, 277
SOVEREIGN IMMUNITY, 332
See also Charitable Immunity; Recreational Use Statutes, 339
Discretionary acts, 337
Governmental-private duality, 334
Policy considerations, 339
SPECIALTY CLAUSES, 9–12
No-cut, 12
Option, 11
Reserve, 12
SPECTATORS, 189–190, 207, 211–227
Injuries, 211
Baseball, 213
Facilities, 242
Golf, 222
Hockey, car races and wrestling, 223
Minors, 191, 225, 314, 330
SPORTSWRITERS, 276, 293, 546–547
STANDARD PLAYER’S CONTRACT, 6–8
See also Appendices
Ambiguous terms, 3
Commissioner’s signature, 1
Discipline and penalties, 453–460
Gambling, 8, 460
Handwritten provisions, 7
Injunctive relief, 7, 18–19, 77, 127, 368
No-tampering clause, 7, 48
Parol evidence rule, 6
Physical examinations, 164, 172
Termination clause, 7
STANDARD REPRESENTATION CONTRACTS, 37, 48–50
STATE ACTORS, 382

707
STEROIDS, 168, 170–171, 274, 443, 447, 475–490
Abuse, 474–475
STRICT LIABILITY, 184–187
STRIKES, 89
See Concerted Actions, 89–90
STRINGER, KOREY, 148
SUBSTANTIALLY NON-VESTED PROPERTY, 60
Deferrals, 58
TAC (THE ATHLETIC CONGRESS), 435
TAXATION
Generally, 55
Gross income, 56
Minimalization, 64
Keogh contributions, 64
Planning, 63
Scholarships, 419–430
Tax-sheltered investments, 61
Leveraging, 61
Positive cash flow, 61
Tax-deferral, 61
TEAM PHYSICIANS, 165–168, 171
TERMINATIONS, 14
THIRD PERSONS, 207–2010
THOMAS, ISAIAH, 505–506
TIE-INS OF TICKET PURCHASES, 141
TITLE IX, 1972 EDUCATION AMENDMENTS, 515
See Sex Discrimination, Title IX, 515
TOMJANOVICH, RUDY, 205
“TONY TWIST”, 290
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS, 50–54

708
TRADE DRESS, 544
TRADEMARKS, 536
TRAMPOLINES, 185–186
TRANSITION PLAYERS, 10, 83, 87
TRUSTS, REVOCABLE, 66
TV PACKAGING, 132
TWO IN FOUR RULE, 110
UNCLEAN HANDS, 19
UNCONSCIONABILITY, 19
UNFAIR LABOR PRACTICES, 89
Failure to bargain in good faith, 90
“UNIFIED CREDITS”, 67
UNIONS, 43–46
UNITED STATES OLYMPIC COMMITTEE (USOC), 364, 439, 441
Drug testing, 473, 493
UNREASONABLY HAZARDOUS CONDITIONS, 192
UNSPORTSMANLIKE CONDUCT, 202
URINALYSIS, 474
VICARIOUS LIABILITY, 176, 233
VICK, MICHAEL, 466–469
VIOLATION OF SAFETY RULES, 202
VIOLENCE, 351–354
WAIVERS, 328
Car races, 223
Foot races, 327
Minors, 191, 225, 314, 330

709
WARNINGS, 178, 319
Coach’s duty, 245, 256
Failure to, 176, 238, 242
Referee’s duty, 197
WARRANTY LIABILITY, 187
Express, 187
Implied, 188
WASHINGTON REDSKINS, 540
WEBSTER, MIKE, 26
WOMEN AND GIRLS
See Sex Discrimination, 509–528
WORKERS’ COMPENSATION, 95, 343–350, 425
Collegiate sports, 347
Employer-based sports, 348
Non-participants, 349
Professional sports, 343
Scholarships, 425
WORLD ANTI-DOPING AUTHORITY (WADA), 443
WRESTLING SPECTATORS, 223
WRIGHT, KIRK, 45–46

710
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