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Sports Law > Final Last Deck > Flashcards

Final Last Deck Flashcards

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1
Q

pros of a traditional league

A

1) easy to raise capital

2) owners can put as much money as they want

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2
Q

cons of a traditional league

A

1) subject to Sherman 1 and 2 (always deemed a conspiracy or joint venture and therefore subject to section 1 where the burden of proof is not high)

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3
Q

why would you want to sue under Sherman 2 if they are already able to sue for Sherman 1 and it’s easy to prove?

A

in case you cannot show evidence of trading restraint, you can say they have too much market power

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4
Q

how do expenses work with single entity leagues?

A

expenses are shared equal and each owner owns interest in the LLC

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5
Q

pros of a single entity league

A

not subject to Sherman 1 (they are not a combination, conspiracy or joint venture)

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6
Q

cons of a single entity league?

A

no incentive for owners to invest money because it doesn’t benefit them and they’re still subject to Sherman 2

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7
Q

if you have 2 single entities doing an act together to restrain trade how would you sue them?

A

Sherman 1

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8
Q

who is a CBA between?

A

the employer (owner) and the union (player association)

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9
Q

what does the CBA establish?

A

the mandatory terms and working conditions between the two

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10
Q

what happens when a CBA expires?

A

all terms continue until a new one is in place

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11
Q

what is the only sport with guaranteed contracts?

A

MLB

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12
Q

what can you do with a negative injunction?

A

you can force a team to stay and without this you can only sue for damages

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13
Q

what happens when you have an impasse on all issues?

A

the league (not the union) may unilaterally change the working conditions

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14
Q

what happens during a lock out?

A

the OWNERS take action

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15
Q

what happens during a strike?

A

the PLAYERS take action

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16
Q

what happens during a strike over economic conditions?

A

the employer can use permanent replacements

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17
Q

what happens during a strike over unfair competition?

A

the employers can only use temporary replacements

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18
Q

what is the commissioner’s role?

A

absolute dictator when it comes to teams and team owners but NOT over players (players are governed by the CBA)

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19
Q

what is the non-recourse rule?

A

commissioner has full and exclusive authority on all matters of the league, so no lawsuits by an team or employee, and cannot sue the commissioner or the team in court

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20
Q

do courts say that they non-recourse rule is valid in Baseball

A

Yes, they knew it existed when they came into baseball as long as there’s due process in the arbitration process the court will not step in

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21
Q

what are the commissioner’s duties?

A

1) power to discipline
2) power to decide disputes among owners
3) power to represent league in CBA negotiations

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22
Q

does a commissioner need to sign a contract for it to be valid?

A

No but the signature is required in order for the player to play (LA RAMS v. CANNON)

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23
Q

what type of contracts does the NFL have?

A

separate annual contracts

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24
Q

what happens when an NFL player gets cut?

A

he still gets paid for the rest of the year, if he goes to another team that year he still collects both salaries

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25
Q

what do non sport executives have that sports executives don’t?

A

1) salary continuation where if they’re terminated for any reason other than “for cause” the executive continues to be paid under the contract
2) severance pay
3) negative covenants
5) sports execs are subject to salary mitigation (not players)

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26
Q

what is a negative covenant?

A

if an executive (not sports exec)quits, he is paid separately not to work as a competitor for a reasonable particular time and must be willing to reinstate

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27
Q

what does the TM sign mean?

A

it’s a common law trademark only protected by state statutes

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28
Q

what does the R mean?

A

a sign is protected by federal statutes

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29
Q

what is the state common law for trademarks in New York?

A

anyone who uses an individual’s face or name for commercial purposes is illegal and is liable to the person for damages

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30
Q

who does the New York trademark rule apply to?

A

the person who is harmed can get an injunction and it only applies to the FACE and NAME and must be a living person

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31
Q

what are trademarks protected by federally?

A

the Lanham Act

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32
Q

what are the exceptions of things that cannot be trademarked?

A

1) newsworthy
2) historical
3) freedom of artistic expression

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33
Q

are fantasy leagues liable for trademark infringement? why or why not?

A

They are not protected, the court says they are just statistics and name, they have been in the papers and everywhere

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34
Q

what makes a sporting event copyrightable?

A

if you have a fixed or determinate medium (the game itself is not copyrighted but the recording is)

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35
Q

what are the copyright exceptions?

A

1) news worthy
2) artistic expression
3) fair use doctrine

36
Q

are player’s rights to their performance a mandatory subject of collective bargaining?

A

Yes, although copyright law supersedes, they have the right to negotiate

37
Q

if the yankee game is neither telecast nor broadcast, who owns the copyright of the game?

A

No-one, there is no copyright (copyright belongs to the person that would record it)

38
Q

what are the characteristics of Sherman Act 1

A

1) conspiracy joint venture
2) restrains trade
3) much easier to prove
4) all traditional leagues are subject to it

39
Q

what are the characteristics of Sherman Act 2

A

1) based on market power (need at least 60% of the market)
2) does not need to be based on an act or action
3) applies to both traditional and single entity leagues

40
Q

if there is no action, what is your only recourse?

A

Sherman 2

41
Q

what violates Sherman 2?

A

monopolies

42
Q

what type of monopolies are there?

A

1) natural monopoly
2) artificial monopoly
3) passive monopoly

43
Q

what are the characteristics of a natural monopoly?

A

1) based on demographics
2) external factors
3) not created by an act of a monopolist
4) need an affirmative unlawful act to be illegal

44
Q

what are the characteristics of an artificial monopoly?

A

1) created by a monopolist

2) doesn’t matter whether the act is lawful or unlawful, you can still bring the claim

45
Q

what is a passive monopoly?

A

1) obtained by generally doing the jobs that others don’t want to do
2) subject to Sherman 2 if they have an action to sustain a monopoly

46
Q

what is the essential facility doctrine?

A

a stadium, tv rights, or capital cannot be reproduced or duplicated to cost and cannot be denied by competitors

47
Q

what is a monopolist required to provide access to?

A

a “facility” that the monopolist controls and that is deemed necessary for effective competition

48
Q

what is the sovereign exception doctrine

A

the sovereign (state) is exempt from anti-trust

49
Q

timeline of baseball and anti trust

A

1) 1922 baseball is NOT COMMERCE and it is engaged in interstate activity therefore state anti trust laws don’t apply
2) 1953 upheld antitrust exemption
3) 1956 exemption extends to NFL, declaring FB a business
4) 1972 reserve clause
5) 1976 independent arbitrator ends the reserve clause but not for antitrust reasons but for CBA reasons
4) 1998 antitrust exemption repealed and applied to the reserve clause and eliminates the remainder of the exemption

50
Q

why did nobody care that the reserve clause was repealed in baseball?

A

because baseball has the same protection under the NLE as it did with the reserve clause and the Merzerschmidt arbitration rendered the issue moot.

51
Q

who is statutorily exempt from anti-trust attacks under Clayton 6?

A

duly certified unions

52
Q

what characteristics must be present to satisfy the NLE?

A

1) issue must be mandatory subject of collective bargaining
2) must be negotiated in good faith
3) must be a signed CBA

53
Q

when a new league is formed, are they subject to the NLE prior to signing the CBA?

A

NO

54
Q

what is the only way to get rid of a NLE?

A

DECERTIFY THE UNION

55
Q

what do you need to decertify a union?

A

30% to be able to vote and 50% + 1 vote is needed to decertification

56
Q

is it a group boycott when players are barred from playing?

A

Yes because it is in the CBA, the NFL can get away with it under the NLE

57
Q

what needs to be created for Clayton 6 to protect you?

A

a union needs to be formed

58
Q

what needs to be created for NLE rights to be created?

A

rights are created when the CBA is signed

59
Q

what is maintained with Clayton 6?

A

protecting the unions from all attacks on legit union activity

60
Q

what is maintained with an NLE?

A

protects management against antitrust by the union or its members

61
Q

how do you terminate Clayton 6?

A

when the union decertifies

62
Q

how do you terminate an NLE?

A

when there is no union or CBA

63
Q

what are the five types of torts in sports?

A

1) participant vs. participant (intentional)
2) negligence
3) defective equipment
4) spectator injury
5) defamation and violation of privacy

64
Q

what is the difference between reckless and battery?

A

with a reckless act you injured someone but didn’t intend to but with battery you injured someone with intention to injure them

65
Q

do you recover with contributory negligence or comparative negligence?

A

with contributory negligence you will be barred from recovery but with comparative negligence they will weight the two apportion damages that way

66
Q

do workers that are injured get workers comp?

A

yes but they cannot sue the employer (only can claim under workers comp)

67
Q

what do you need in order to relocate a team?

A

a unanimous vote of every member of the league but if you are within your home territory, you can move them as you wish

68
Q

what are the four approaches to discrimination in sports?

A

1) 14th Amendment
2) Title VII of the 1964 Civil Rights At (discrimination in employment)
3) Title IX (amended in 1990)
4) equal pay for equal work act (out of Civil Rights Act of 64)

69
Q

what do you need for the 14th Amendment to apply?

A

there needs to be some sort of nexus/state action (after LUDTKE v. KUHN the leagues collapsed and women were allowed in mens locker rooms)

70
Q

what type of case is a title VII and what must be established?

A

a prima facie case and must establish to assert discrimination in employment

71
Q

what are the 5 requirements to bring a Title VII claim?

A

1) member of a protected class
2) applied for the job
3) was qualified for the job
4) was denied the job
5) the job was given to a member of a non-protected class

72
Q

what are the defenses for a title VII claim?

A

1) bona fide occupation qualification (Hooters)

2) subjective business defense (hired more qualified)

73
Q

what does title IX provide?

A

may segregate within an institution for contact sports and separate facilities provided they are equal

74
Q

what are the 2 things that you need to assert with a Title IX claim (don’t need to prove prima facie)

A

1) gender participation in sports (percentages of genders equal to percentages of people)
2) facilities (there are separate facilities and they are not equal)

75
Q

what are the 3 safe harbors that a school can use to make themselves safe from a Title IX claim?

A

1) gender participation equal
2) if they are not equal, the university is making good faith efforts to correct it
3) if 1 or 2 is present, a reasonable accommodation for all selective participants

76
Q

what is the equal pay for equal work act?

A

when employees perform the same task they should be paid the same amount the court said no that it turns on 1) responsibility

2) effort
3) skill

77
Q

what is disparate treatment and what is a defense for it?

A

intentional discrimination and the only defense is bona fide occupation qualification

78
Q

what is disparate impact and what is a defense for it?

A

may start out as innocent but ends up being discriminatory and a valid defense is the subjective business defense

79
Q

what are independent arbitrators seen as?

A

another restriction on the commissioner’s authority

80
Q

what are courts not authorized to do with arbitration?

A

review the arbitrator’s decision on the merits

81
Q

what are the 7 distinctions of arbitration from litigation?

A

1) cheaper
2) quicker
3) private
4) punitive damages
5) discover and evidence is different (litigation has more stringent standards)
6) not self-enforceable, have to goto court
7) the appeal process is different

82
Q

how do you overturn an arbitrator’s decision?

A

show that it’s arbitrary or capricious or it lacked due process

83
Q

what are 2 types of arbitration?

A

1) grievance

2) salary

84
Q

who arbitrates a grievance arbitration?

A

the commissioner or an independent arbitrator (as set forth in the CBA)

85
Q

who arbitrates a salary arbitration?

A

always a independent arbitrator

86
Q

what are the two types of salary arbitration?

A

1) final offer arbitration (arbitrator has to use one of the numbers that either the player said or the team said)
2) compromise arbitration (arbitrator can award a number between the player’s number and team)

87
Q

what is a salary cap?

A

an agreement b/t labor and management that establishes a league wide team payroll

Sports Law (9 decks)

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