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Sports and the Law


									Sports and the Law Spring 2007 Stephen D. Sugarman The class normally meets Monday and Wednesday from 1:50 until 3:10 p.m. in room 115. However, please note, we will not hold our first class until Wednesday, January 17. Course requirements: 1. Reading, attending, and participating: Although there is no exam in this course, I don’t want you to enroll unless you are prepared to do the reading, and, be warned, there is a lot of it – about 100 pages a week. Our casebook is Weiler and Roberts, Sports and the Law 3rd ed. 2004. Each week, three or four students will have primary responsibility for taking the lead in our discussions (i.e., that means twice for each of you). But this won’t work as a seminar unless everyone is prepared. By the end of class on January 17, I expect everyone then enrolled to have selected the two weeks for which he/she wants special responsibility. As of this writing, there is a long waiting list for the course. Please do not remain in/join the class unless you are prepared to attend all the time. If you miss three times or more, you risk being dropped. This is serious. 2. Writing: A seminar paper is required. This means something in the 25-30 page range. If you want to do your Writing Requirement through the seminar, the paper must be more ambitious – more original and longer. The main restriction is to try to pick something that hasn’t already been so directly covered that you would have little to offer beyond what has already been published.
If you are to stay in the class, you must select a seminar paper topic no later than January 19, and preferably by the end of class on January 17. You can switch later on if necessary. To help you think about possible topics, 1) I recommend that you look through the casebook to see what interests you, 2) I urge you to look at Susan K. Menge et al., 2005 annual survey: recent developments in sports law, 16 MARQUETTE SPORTS LAW REVIEW 381 (2006) and Darren R. Merten, Index: Sports law in law reviews and journals, 16 MARQUETTE SPORTS LAW REVIEW bi-bvi (2006) and 3) I urge you to look at the list of recent scholarship in the sports and the law field that follows at the end of this memo.

Topics suggested to me that are examples of things you might want to write about are: 1) the recent dispute between the NFL and U-Tube over the posting on U-Tube of highlights from games in which it is claimed that referees made mistakes, 2) recent legislation in Europe that makes it a special crime to engage in violence or utter hate speech at sporting events (laws mainly aimed at soccer hooligans); 3) the different legal relationships that Major League Baseball has with baseball in Japan, the Dominican Republic, and the Minor Leagues; 4) how has UC Berkeley responded to various regulatory and policy considerations relating to university sports – academic qualifications, tutoring and academic progress of its athletes; preventing its athletes from gaining disallowed financial help and disallowed access to agents; student athlete gambling; gender balance in student athlete slots, scholarships, coaching, and material support.

Tentative schedule: Here is a brief overview of the tentative schedule. Basically, we will meet twice a week and cover a chapter a week. Because of the way the book is constructed, my experience is that it is best to approach it in the order set out by the authors. Let me emphasize again that most of the chapters are in the range of 100 pages (plus or minus). I will expect that everyone will have read the full week’s assignment before the Monday class so that we can use both days to cover the material together. Sometimes, I will lecture, but mainly I want this to be a discussion seminar. I don’t expect us to discuss everything in the reading and I hope to have the matters we emphasize guided by your interests. I hope to have a few guests join us, and you will see from the schedule that I have already tentatively blocked out space for guests a) during the short week when Presidents’ Day falls, and b) during the week we cover Chapter 8, which is otherwise the shortest chapter. I might have guest other times as well. No promises. Because of guest schedules, I may have to adjust to accommodate them. Note, too, that in the final week (Pope Gregory Days), we meet on Monday and Tuesday. Introduction Chapter 1 Chapter 2 Chapter 3 Chapter 4 Guest Chapter 5 Chapter 6 Chapter 7 Chapter 8 and guest Chapter 9 Chapter 10 Chapter 11 Chapter 12 January 17 January 22 and 24 January 29 and 31 February 5 and 7 February 12 and 14 February 21 (no class on the 19th) February 26 and 28 March 5 and 7 March 12 and 14 March 19 and 21 April 2 and 4 April 9 and 11 April 16 and 18 April 23 and 24 (Tuesday)

Brief overview of the topics in our casebook: The first eight chapters are largely about professional team sports – baseball, football, basketball, hockey (Professor Weiler is Canadian), and soccer. Chapters 9-11 are about inter-collegiate athletics. Chapter 12 is about what our authors call individual sports – tennis, golf, the Olympics, and the like. Chapter 1 addresses the “moral integrity” of sport and explores the authority of the “commissioner” to act to safeguard that integrity. Topics briefly considered include cheating/gambling, drug use and drug testing, and extreme misconduct on the field (and off). Chapter 2 examines the way that teams have controlled the services of the players and the counter-effort of players to be mobile and play for whomever they wish (typically a team that

pays the most). In a sense, this chapter is centrally about the early history of baseball’s “reserve clause.” We first look at how teams sought to use negative injunctions to enforce their contracts with players and then at how players tried to fight back by using the anti-trust laws. Chapter 3 explores, in more modern contexts, the effort of players (and players’ unions) to use anti-trust laws to attack a wide variety of league restraints especially in the context of football, and it leads up to more recent U.S. Supreme Court decisions the decide when anti-trust rules are to be displaced on account of the existence of collective bargaining arrangements. Chapter 4 is about labor law and professional team sports. We start by seeing how it was a labor arbitrators’ decision that eventually upended the “reserve clause” and then we see how lots of other conventional labor issues play out in the professional sports field. Chapter 5 is about sports agents, their relationship to the players’ unions, their public regulation, disputes they wind up having with players, and so on. We begin to explore sports agents’ misconduct with respect to college athletes, a topic examined again later. Chapter 6 looks at intellectual property rights and their ownership in the sports field – the broadcast, the gear, the trademarks, player publicity rights, and so on. These disputes can be between players and teams/leagues, leagues and outsiders, players and outsiders, etc. Chapter 7 examines two related themes – to what extent can and do the leagues control who owns the franchises and where they can locate, and to what extent can and do the leagues control the right to broadcast games. Chapter 8 returns to anti-trust mattes and it focuses on monopoly aspects of professional sports – the way leagues use their economic power to control stadiums and television, their history of driving out or merging with competitor leagues, etc. It raises the audacious question of whether it would be better if the main professional leagues were broken up into truly separate and competing leagues. Chapter 9 looks at two key issues with respect to university sports: What sorts of procedural rights do players and coaches have to challenge decisions of the NCAA/Conferences/and the like? And what does the NCAA do to assure that participants are “students” - most especially through academic eligibility rules? Chapter 10 addresses the other big issue with respect to the “student athlete” - the “amateurism” requirements imposed on colleges and their athletes (all the while contrasting that position with today’s commercialism in university athletics). Chapter 11 explores gender discrimination in university sports (Title IX). Chapter 12 turns to a miscellany of issues (some of which have already been explored in other contexts) that arise with respect to the golf and tennis tours, the Olympics and other international competitions, and so on. I do not plan to cover Chapter 13 on sports injuries (from accidents or violence), but some of you may want to write papers on topics raised by this chapter.

Recent Literature:
* Roger I. Abrams, Alcohol, drugs and the National Pastime, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 861 (2006) * Paul M. Anderson, Book Review, Reviewing Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX, 16 MARQUETTE SPORTS LAW REVIEW 461 (2006) * Daniel A. Applegate, Comment, The NBA gets a college education: an antitrust and labor analysis of the NBA’s minimum age limit, 56 CASE WESTERN RESERVE LAW REVIEW 825 (2006) * Jonathan Bell, Student article, Ticket scalping: same old problem with a brand new twist, 18 LOYOLA CONSUMER LAW REVIEW 435 (2006) * Jonathan C. Benitah, Student article, Anti-scalping laws: should they be forgotten?, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 55 (2005) * Melissa Steedle Bogad, Note, Maybe Jerry Maguire should have stuck with law school: how the Sports Agent Responsibility and Trust Act implements lawyer-like rules for sports agents, 27 CARDOZO LAW REVIEW 1889 (2006) * Kristen Boike, Note, Rethinking gender opportunities: non-traditional sports seasons and local preferences, 39 UNIVERSITY OF MICHIGAN JOURNAL OF LAW REFORM 597 (2006) * Sabrina Bosse, Casenote, Is the price of victory just?: Attorney's fees, punitive damages, and the future of Title IX in . . . (Mercer v. Duke University, 401 F.3d 199, 4th Cir. 2005), 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 319 (2006) * Emily Tumbrink Brackstone, Case note, Civil rights--Title IX--an individual may maintain a private right of action under Title IX when the federal funding recipient retaliates against the individual due to his complaints about sex discrimination, discussing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 2005, 73 TENNESSEE LAW REVIEW 115 (2005) * Christopher A. Callanan, Advice for the next Jeremy Bloom: an elite athlete’s guide to NCAA amateur regulations, 56 CASE WESTERN RESERVE LAW REVIEW 687 (2006) * Peter A. Carfagna, John Farrell and Mike Hazen, The business of minor league baseball: amateur eligibility rules, 56 CASE WESTERN RESERVE LAW REVIEW 695 (2006) * Will Carroll, The real story of baseball’s drug problems, 40 NEW ENGLAND LAW REVIEW 711 (2005-2006) * W. Burlette Carter, The Age of Innocence: the first 25 years of the National Collegiate Athletic Association, 1906-1931, 8 VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW 211 (2006) * Kevin J. Cimino, Note, The rebirth of the NBA - well, almost: an analysis of the Maurice Clarett decision and its impact on the National Basketball Association, 108 WEST VIRGINIA LAW REVIEW 831 (2006) * Rick Collins, Changing the game: the congressional response to sports doping via the Anabolic Steroid Control Act, 40 NEW ENGLAND LAW REVIEW 753 (2005-2006). * Ryan Connolly, Note, Balancing the Justices in anti-doping law: the need to ensure fair athletic competition through effective anti-doping programs vs. the protection of rights of accused athletes, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 161 (2006) * Brian R. Cook, Dealing with the devil: “a commentary,” 40 NEW ENGLAND LAW REVIEW 765 (2005-2006)

* Jackie J. Cook, Casenote, Determining who wears the pants in thoroughbred horseracing (Albarado v. Ky. Racing Comm'n, 2004 U.S. Dist. LEXIS 16378, W.D. Ky. July 20, 2004), 2004 THOMAS M. COOLEY LAW REVIEW 635 (2005) * Wm. David Cornwell Sr., The imperial Commissioner Mountain Landis and his progeny: the evolving power of commissioners over players, 40 NEW ENGLAND LAW REVIEW 769 (2005-2006) * Timothy Davis, Regulating the athlete-agent industry: intended and unintended consequences, 42 WILLAMETTE LAW REVIEW 781 (2006) * Jonathan Deem, Note, Freedom of the press box: classifying high school athletes under the Gertz public figure doctrine, 108 WEST VIRGINIA LAW REVIEW 799 (2006) * Chip Dempsey, Steroids: The media effect and high school athletes, 40 NEW ENGLAND LAW REVIEW 731 (2005-2006) * Christian Dennie, Is Clarett correct? A glance at the purview of the antitrust labor exemption, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2005) * Giovanna D’Orazio, Comment, Taking private property to build an urban sports arena: a valid exercise of eminent do-main powers?, 69 ALBANY LAW REVIEW 1135 (2006) * Leslie Ann Dougiello, Casenote, Inequitable procedures win gold in Olympic arbitration, discussing Jacobs v. United States Track & Field, 374 F.3d 85, 2d Cir. 2004, 24 QUINNIPIAC LAW REVIEW 887 (2006) * N. Jeremi Duru, Fielding a Team for the Fans: The Societal Consequences and Title VII Implications of Race-Considered Roster Construction in Professional Sport, 84 WASHINGTON UNIVERSITY LAW REVIEW (forthcoming 2006) * Joel Eckert, Note, Student-athlete contract rights in the aftermath of Bloom v. NCAA, 59 VANDERBILT LAW REVIEW 905 (2006) * Chad Ford, Peace and hoops: basketball as a role player in sustainable peacebuilding, 42 WILLAMETTE LAW REVIEW 709 (2006) * Paul A. Fortenberry and Brian E. Hoffman, Illegal muscle--a comparative analysis of proposed steroid legislation and the policies in professional sports’ CBAs that led to the steroid controversy, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 121 (2006) * Jessica K. Foschi, Note, A constant battle: the evolving challenges in the international fight against doping in sport, 16 DUKE JOURNAL COMPARATIVE & INTERNATIONAL LAW 457 (2006) * Kenneth B. Franklin, Note, A brave attempt: can the National Collegiate Athletic Association sanction colleges and universities with Native American mascots?, 13 JOURNAL OF INTELLECTUAL PROPERTY LAW 435 (2006) * Denise A Garibaldi, The challenge and the tragedy, 40 NEW ENGLAND LAW REVIEW 717 (2005-2006). * Eric T. Gilson, Exploring the Court of Arbitration for Sport, 98 LAW LIBRARIAN'S JOURNAL 503 (2006) * Paul H. Haagen. The players have lost that argument: doping, drug testing, and collective bargaining, 40 NEW ENGLAND LAW REVIEW 831 (2005-2006) * Casey N. Harding, Casenote, Nickel and dimed: North Carolina court blocks Carolina Panthers' attempt to avoid payment of workers' compensation benefits to injured athletes (Larramore v. RIchardson Sports Ltd. Partners, 540 S.E.2d 768, N.C. Ct. App. 2000, aff'd 546 S.E.2d 87, N.C. 2001), 28 NORTH CAROLINA CENTRAL LAW JOURNAL 241 (2006)

* Aaron J. Hershtal, Note, Does Title IX work after school? California applies the three part test to municipal sports, 12 CARDOZO JOURNAL OF LAW AND GENDER 653 (2006) * Holly Hogan, Student Article, What athletic departments must know about Title IX and sexual harassment, 16 MARQUETTE SPORTS LAW REVIEW 317 (2006) * Jacob Jacoby, Sense and nonsense in measuring sponsorship confusion, 24 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 63 (2006) * Andrew M. Jones, Comment, Hold the mayo: an analysis of the validity of the NBA’s stern no preps to pros rule and the application of the nonstatutory exemption, 26 LOYALA LOS ANGELES ENTERTAINMENT LAW REVIEW 475(2005-2006) * Lacie L. Kaiser, Comment, Revisiting the Sports Broadcasting Act of 1961: a call for equitable antitrust immunity from section one of the Sherman Act for all professional sport leagues, 54 DEPAUL LAW REVIEW 1237 (2005) * Richard T. Karcher, Solving Problems in the Player Representation Business: Unions Should be the "Exclusive" Representatives of the Players, 42 WILLAMETTE LAW REVIEW 737 (2006) * Lindsay M. Korey Lefteroff, Student Article, Excessive heckling and violent behavior at sporting events: a legal solution?, 14 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 119 (2005) * Lewis Kurlantzick, Is there a steroids problem? The problematic character of the case for regulation, 40 NEW ENGLAND LAW REVIEW 789 (2005-2006). * Lisa K. Levine, Jeremy Bloom v. National Collegiate Athletic Association and the University of Colorado: all sports are created equal; some are just more equal than others, 56 CASE WESTERN RESERVE LAW REVIEW 721 (2006) * Matthew Levine, Comment, Despite his antics, T.O. has a valid point: why NFL players deserve a bigger piece of the pie, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 425 (2006) * Bennett Liebman, Reversing the refs: an argument for limited review in horse racing, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 23 (2005) * Gordon A. Martin, Jr, How it all began: the move to drug testing, 40 NEW ENGLAND LAW REVIEW 705 (2005-2006) * Matthew G. Massari, Note, When fantasy meets reality: the clash between on-line fantasy sports providers and intellectual property rights, 19 HARVARD JOURNAL OF LAW AND TECHNOLOGY 443 (2006) * Lisa Pike Masteralexis, Drug Testing Provisions, an examination of disparities in rules and collective bargaining agreement provisions, 40 NEW ENGLAND LAW REVIEW 775 (20052006). * Joseph McBurney, Note, To regulate or to prohibit: an analysis of the Internet gambling industry and the need for a decision on the industry’s future in the United States, 21 CONNECTICUT JOURNAL OF INTERNATIONAL LAW 337 (2006) * Michael A. McCann, It's Not About the Money: The Role of Preferences, Cognitive Biases, and Heuristics Among Professional Athletes, 71 BROOKLYN LAW REVIEW 1459 (2006) * Michael A. McCann & Joseph S. Rosen, Legality of age restrictions in the NBA and the NFL, 56 CASE WESTERN RESERVE LAW REVIEW 731 (2006) * Michael A. McCann, Social Psychology, Calamities, and Sports Law, 42 WILLAMETTE LAW REVIEW 585 (2006)

* Michael A. McCann, The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 819 (2006) * Robert A. McCormick & Amy C. McCormick, The Myth of the Student Athlete: The College Athlete as Employee, 81 WASHINGTON LAW REVIEW 71 (2006) * Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQUETTE SPORTS LAW REVIEW 193 (2006)* * Susan K. Menge et al., 2005 annual survey: recent developments in sports law, 16 MARQUETTE SPORTS LAW REVIEW 381 (2006) * Darren R. Merten, Index: Sports law in law reviews and journals, 16 MARQUETTE SPORTS LAW REVIEW bi-bvi (2006) * Matthew J. Mitten, Drug testing of athletes—an internal, not external matter, 40 NEW ENGLAND LAW REVIEW 797 (2005-2006) * Clary Moorhead, Note, Revenue sharing and the salary cap in the NFL: perfecting the balance between NFL socialism and unrestrained free trade, 8 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 641 (2006) * Sue Ann Mota, Title IX after thirty-four years--retaliation is not allowed according to the Supreme Court in Jackson v. Birmingham Board of Education, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 245 (2006) * Brian R. Moushegian, Comment, Native American mascots' last stand? Legal difficulties in eliminating public university use of Native American mascots, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 465 (2006) * Cameron A. Myler, Resolution of doping disputes in Olympic sport: challenges presented by “non-analytical” cases, 40 NEW ENGLAND LAW REVIEW 747 (2005-2006) * James A.R. Nafzinger, The future of international sports law, 42 WILLAMETTE LAW REVIEW 861-876 (2006) * Ola Olatawura, The "theatre of dreams"?--Manchester United FC, globalization, and international sports law, 16 MARQUETTE SPORTS LAW REVIEW 287 (2006) * Tracy W. Olrich and Mario J. Vassallo, Running head: psychological dependency to anabolic-androgenic steroids; exploring the role of social mediation, 40 NEW ENGLAND LAW REVIEW 735 2005-2006). * Jessica J. Penkal, Comment, When legislative regulation strikes out: proving a products liability case against metal baseball bat manufacturers, 67 MONTANA LAW REVIEW 315 (2006) * Tyler Pensyl, Comment, Let Clarett play: why the nonstatutory labor exemption should not exempt the NFL's draft eligibility rule from the antitrust laws, 37 UNIVERSITY OF TOLEDO LAW REVIEW 523 (2006) * Geoffrey Christopher Rapp, Affirmative injunctions in athletic employment contracts: rethinking the place of the Lumley rule in American sports law, 16 MARQUETTE SPORTS LAW REVIEW 261 (2006) * Robert T. Razzano, Comment, Intellectual property and baseball statistics: can Major League Baseball take its fantasy ball and go home?, 74 UNIVERSITY OF CINCINNATI LAW REVIEW 1157 (2006) * Stephen F. Ross & Stefan Szymanski, Antitrust and inefficient joint ventures: why sports leagues should look more like McDonald's and less like the United Nations, 16 MARQUETTE SPORTS LAW REVIEW 213 (2006)

* Ryan Schaffer, A piece of the rock (or the Rockets): the viability of widespread public offerings of professional sports franchises, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 201 (2006) * Amanda Schlager, Note, Is the suite life truly sweet? The property rights luxury box owners actually acquire, 8 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 211 (2006) * Herb Smith II, Comment, More a warning than a victory (Clarett v. Nat’l Football League), 7 FORIDA COASTAL LAW REVIEW 745 (2006) * Jeffrey Standen, The Beauty of Bets: Wagers as Compensation for Professional Athletes, 42 WILAMETTE LAW REVIEW 639 (2006) * Joshua A. Stein, Comment, Hitting below the belt: Florida’s taxation of pay-per-view boxing programming is a content-based violation of the First Amendment, 14 JOURNAL OF LAW AND POLICY 999 (2006) * Howard M. Wasserman, Fans, free expression, and the wide world of sports, 67 UNIVERSITY OF PITTSBURGH LAW REVIEW 525 (2006) * Toni Wehman, Comment, Not part of the game plan: school district liability for the creation of a hostile athlete environment, 77 UNIVERSITY OF COLORADO LAW REVIEW 767 (2006) * Paul Weiler, Renovating our recreational crimes, 40 NEW ENGLAND LAW REVIEW 809 (2005-2006) * Maureen A. Weston, Internationalization in college sports: is-sues in recruiting, amateurism, and scope, 42 WILLAMETTE LAW REVIEW 829 (2006) * Jack F. Williams, The coming revenue revolution in sports, 42 WILLAMETTE LAW REVIEW 669 (2006) * Matt Williams, Note, Making encouraged expression impercep-tible: the Family Movie Act of 2005 is inconsistent with the purpose of American copyright, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 233 (2006)

* Matthew R. Wilmot, Baseball Bats in the high tech era: a products liability look at new technology, aluminum bats, and manufacturer liability, 16 MARQUETTE SPORTS LAW REVIEW 353 (2006)

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