TORTS Pg251-249 1. Negligence: Negligence is any conduct that falls below the reasonable man standard. Negligence in sports is measured against the particular facts and circumstances of each and every case. The defendant’s negligent act or omission must be the proximate cause of the athelete’s injury. Recovery for sports related injuries was covered by Cardozo: “ the timorous may stay at home” “some …restraints of civilization must accompany every athlete onto the playing field.” Duty of Care: whether duty existed b/w injured participant or spectator and the defendant. W/o duty no negligence. Need to have a relationship b/w person and team for sports. Kleinknecht v. Gettysburg College: The court found that the college owed a DUTY to a deceased lacrosse player based on the relationship between the athlete and the school and the foreseeability of the injury. Held that recruited lacrosse player who suddenly collapsed and died during practice was owed a duty of care by college to provide prompt emergency medical service. The special relationship was the active recruitment of the player. Duty of care arose b/c of special relationship b/w college and recruited athlete. If it were intramural team plaintiff would not recover. This special relationship created a duty. Davidson v. University of N.C. at Chapel Hill: court found that a special relationship existed b/w an injured JV cheerleader and the university, in that the defendant voluntarily undertook to educate the cheerleaders on safety, which this created a separate duty of care. Northcut v Sun Valley Co.: A duty of care also arises by way of statute. A statute limited liability for Idaho ski area operators. A skier was injured when another skier collided with him and then forced him into a signpost. The operator had no duty to eliminate, control, or lessen the inherent risk of the sport beyond those stated in the act. Although there was a statutory duty to post signs, there was no duty to accomplish this to any standard of care; therefore, the operator was not liable for the improper placement of guided signs. Also, the operator had only a duty to provide a ski patrol that met the standards of the national ski patrol members to chase down the individual who caused plaintiff’s injuries. Thus, Sun Valley was not liable for their failure to determine the skier’s identity. 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. But there is no duty under the doctrine of in loco parentis for a college and its coach to prevent an adult student from becoming excessively intoxicated with resulting severe bodily injury to himself while on a college- sponsored expedition at an out-of state resort. Proximate cause: the connection b/w the negligent act and the resultant injury. The breach of duty must be the injury’s proximate cause. Fact q. determined by the jury on case by case basis. Proximate cause is in natural and continuous sequence, unbroken by a efficient intervening cause, produces the injury, without which the injury would not have occurred. Causation can be inferred. Does not have to the only cause just substantial cause. Damages: must prove up damaged. Nominal damaged are insufficient to sustain a COA 2. Products Liability: helmets, sue the team b/c has insurance, golf carts = strict liability, * manufactures must use reasonable care in manufacturing products * Sports equipment is strict liability 3. Medical Malpractice: medical suits against doctors and personnel who administered care to athletes. Medical personnel’s duties toward athletes can include the duty to disclose, the duty to instruct, the duty to disclose whether doctor is employed by 3rd party and duty to disclose medical negligence. There are preseason physicals, post-injury examinations and the examination that give clearances to athletes to return to active competition after an injury. Consent to treat must be obtained from the athlete. Must get enough information from doctor to make an informed decision Duty to Disclose and Informed Consent: Doctor has related duty to disclose all possible side effects so that the patient will have sufficient information to make all possible informed decisions. Doctor must disclose any material information regarding the athlete’s physical condition. Duty to disclose included duty to inform athlete that he must seek additional medical advice Consent should be in writing, and should be clear and understandable in terms and scope. Duty to disclose remains even when doctor hired by a party other than the athlete: doesn’t matter who pays duty still remains. Teams doctor should not disclose and information to media about athlete b/c could severely damage career. Doctor could be subject to liability of defamation, invasion of privacy, or breach of confidential relationship. The element of a COA in fraudulent concealment of medical info are a misrepresentation or suppression of a material fat, knowledge of falsity, intent to induce reliance, actual and justifiable reliance and resulting damages. Kruger v. San Francisco 49: football player brought COA for fraudulent concealment of medical information about his injuries against employer for actions of team physician who “patched him up” year after year and allowed him to continue to play w/o revealing the true extent of injuries, w/c cause him to be permanently disabled. He had knee injuries to his left knee and never told how bad it was. He was never informed of the damage associated with steroids. The failure to make such disclosure constitutes not only negligence, but where the requisite intent is shown – fraud or concealment as well. Without this info, he was unable to make an informed decision about whether to continue to playing pro football.(extreme and outrageous situation) Hank Gathers: although he had a previous problem with arrhythmia, his dr. allowed him to play under certain conditions. He had collapsed earlier in the season, was put on medication, and after several weeks away from basketball, was allowed to compete. His heirs sued on various legal grounds, and the case was settled in 1992. This case calls into question the loyalty of the dr. Is his first obligation to the player or to the employer? 4. Facility Liability: Many lawsuits are against stadium owners and operators. What duty does the owner-operator owe to spectators? Is it foreseeable? Wilkinson v Hartford Accident & Indemnity Co. : Unreasonably Hazardous Conditions: part of the rink was safety glass pane and the other was still glass pane. 12 year old kid was racing and fell through glass pane and injures himself. Held that school board was liable b/c had knowledge of unreasonably hazardous conditions. Owners are liable if they have prior knowledge of unreasonably hazardous conditions. Foreseeability, has it happened before and if so must warn. Prior knowledge of a reasonable discoverable but unreasonably dangerous condition was shown by a previous event when a visiting coach walked into the same glass panel. MINORS The standard of care for the owner-operator also changes with the type of person who enters the premises. If the invitee is a minor the question is whether he or she is capable of appreciating the risk involved in either watching or participating in a sport. City of Atlanta v. Merritt: the court held that a factual question exited as to whether the injured 8 yr old appreciated the risk of watching the game in the unscreened, high risk picnic area adjacent to the right field line. Whether the design of the screening was negligent in that it ignored the high-risk area of the unprotected picnic grounds area adjacent to the right field line. A steep and hilly golf-cart path has a concealed 180 degree hairpin turn. First time users speed down the hill, the brakes on the cart lock, and the cart crashes and tips over at the turn. Under the circumstances, is this an unreasonably hazardous condition? Uhler v Evangeline Riding Club: A horse show participant was injured when she struck a utility guywire appurtenant to the horse arena. Plaintiff escaped summary judgment on the grounds that the riding club may have been negligent in failing to remove or relocate the guywire in question or in failing to warn the horse show participants by flags or otherwise, of its location. Furthermore, they may have also been negligent in failing to provide proper lighting in or near the arena. 5. Product Liability: was almost only for football helmets. However, can sue for sport equipment – golf carts, lawn darts, softball bases, shi bindings, jet-ski, outboard, roller skates, Astroturf, aluminum bats etc. A product is defective if it is not reasonably fit for the purpose for which it was sold. Everett v. Bucky Warren Inc.: a hockey coach’s decision to supply helmets with a design defect, when other, safer helmets were available, was sufficient to create a product liability claim. A 3 piece hockey helmet is reasonably safe they are 1) the gravity of the danger posed by the design defect 2) likelihood that danger will occur 3) mechanical feasibility of safer design 4) cost of an improved design and 5) the adverse consequences that night result from an alternative design. Warranty Liability: a promise about the product’s quality and condition. If product doesn’t meet the promise’s expectations, then the warranty is breached and the seller is liable for the resulting damage. Must have privity for warranty liability. 6. Defamation: athletes are defamed by journalists, sportswriter, media personalities or others. Defaming is taking from ones’ reputation. Statements are defamatory they are published, false, and cause damage to reputation. Defenses: truth, fair comment, opinions, or privilege. Public Figure: can’t prevent others from criticizing or insulting them for their acts or deeds. If you have a press conference you auto become public figure. Athlete, and college sports. Sport athlete’s wife that did a press conference. Invasion of Privacy: unauthorized use for commercial purposes, Rule of Repose: done something a long time ago person can slip back to being unfamous/not public figure. Look for 10, 20, to 30 years. Defenses: Falls v. The Sporting News: A sports writer was deemed to be a public figure with regard to his sports writing activities. He could not prove actual malice under the New York Times standard, which requires that false disregard of the truth to be actionable. At worst, his former employer’s remarks were ill-considered. Unprofessional terminology and an intemperate tone do not satisfy the actual malice standard. Milkovich v Lorain Journal Co.: Opinions are not capable of defamatory content. However, assertions of fact are unprotected and this capable of a defamatory meaning. Sports commentary that carries with it a “mixed opinion” is capable of implying an underlying defamatory act and therefore is actionable. Woy v. Turner: Bucky Woy, the agent, became a limited public figure when he thrust himself into the forefront of a public controversy during a contract dispute by using the media, through press conferences, to help make his point. Dempsey v. Times: the heavy weight boxing champion, Jack Dempsey, was defamed 45 years after the alleged event in a Sports Illustrated article in which his manager claimed that he had loaded Dempsey’s gloves with plaster of paris. The court held that reaching back that far was not within the New York Times standard; therefore, the veil of privilege did not cloak the recitation of the glove incident. INVASION OF PRIVACY: This protects the athlete from distress created by the public exposure to accurate but private facts. Privacy is the right to be left alone; to live one’s life as one chooses free from assault, intrusion or invasion except as they an be justified by the clear needs of community living under a government of law. Zacchini v Scripps-Howard Broadcasting Co.: the Supreme Court gave 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. 7. Participants and Spectators Injuries: participant will assume the risk for unintentional injuries but will not assume for injuries that are intentionally inflicted. Participants sue under Violation of Safety Rules and Unsportsmanlike Conduct. WILL BE ON TEST. This is how to avoid defenses of assumption of the risk and contributory negligence. Cause of injury must be wanton misconduct, mere negligence not enough. Griggas v. Clauson: liability was found when a basketball player struck an unprovoked blow to an opponent whose back was turned. Defendant maliciously, wantonly and willfully and without provocation assaulted plaintiff and with his fist repeatedly struck plaintiff violently in the head and knocked plaintiff unconscious to the floor; Plaintiff suffered …lacerations abrasions, contusions, concussions and other injuries, both temporary and permanent, and has been unable to go about his affairs and duties…lost four year scholarship. Nabozny v. Barhill: liability was found when player violated a safety rule that prohibits contact with the goal keeper when goal keeper is holding the ball in penalty area. Player kicked a soccer goal keeper in the head in a penalty area. A reckless disregard for the safety of other players cannot be excused. To engage in such conduct is to create an intolerable and unreasonable risk of serious injury to other participants. A player is liable for injury in tort action if his conduct is such that it is either deliberate, willful or with a reckless disregard for the safety of the other player so as to cause injury to that player. Bourque v. Duplechine: Plaintiff Jerom Bourque filed suit to recover damages for personal injures received in a softball game against Duplechine who inflicted injuries when base runner deliberately ran into a second basemen who was 5 feet from the bag. The court held a participant doesn’t assume the risk of injury form fellow players acting in unsportsmanlike way with reckless lack of concern for other playing. Hackbart v. Cincinnati Bengals: allow for recovery for injuries sustained in course of a professional football game if they result from wanton misconduct and are not directly related to the flow of the game. Hackbart was struck in back of the head and neck while kneeling by defendant’s forearm. Hackbart’s neck was seriously fractured. Schentzel v. Philadelphia National League Club: general rule spectator can’t recover for ordinary risks inherent in the sport and in baseballs foul balls are view as an ordinary risk. Here a female spectator was hit by foul ball. Although she watched baseball on TV and saw foul balls, it was her 1st game at park. She claimed defendant had legal duty to extend the screen protection to encompass all the women patrons. Ct held plaintiff impliedly assumed the normal and ordinary risk incident to attendance at a baseball game. Lawson v. Salt Lake Trapper: a minor was injured when struck by a foul ball. Ct said he assumed the risk of injury. Also the stadium owners did not breach their duty to provide adequate screened seating. The injured plaintiff was 6 yrs old and went with her parents to see a fireworks display immediately following the baseball game. Being struck by a foul ball is one of the natural risks assumed by spectators attending professional games. Benejam v Detroit Tigers, Inc.; An injured minor was it by a baseball bat fragment. Limited liability adopted: 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 home plate and there are a sufficient number of protected seats to meet ordinary demand. 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. Averill v Luttrell: Liability was found when a catcher deliberately and without warning struck a batter. Professional sports: if injury results to athlete, can recover for wanton misconduct and are not directly related to the flow of the game. Spectators of baseball: owners of stadiums have duty to provide screened seats for those spectators who wish them. However, no duty to inform spectator of the availability of protected seats since their existence is obvious. Assumption of the Risk: is defense for owner of team, operator of stadium, or school district. Contributory negligence, assumption of risk, and comparative negligence are 3 most powerful defenses. Used when sports related accident occurs. It’s defined as voluntary assumption, express or implied, of a known and appreciated risk. Athlete assumes only the ordinary risks of the game. School Liability: the duties owed to an athlete can take the form of adequate instruction, proper equipment, reasonable matching o opponents, nonnegligent supervision, and proper post injury procedures. The school also has a duty to take protective precaution for spectators, which include protection from participant inflicted injuries, reasonably expected rowdyism, and injuries resulting from overcrowded or defective bleachers. Ross v Creighton University: former scholarship basket ball player sues his college on the theory of “educational malpractice.” Claimed that he was barred from any participation in and benefit from the University’s academic faculty on academic matters. (negligent admission, educational malpractice) Coach Liability: coach’s duty is to use reasonable care to avoid creation of foreseeable risks to athlete under his or her supervision. Lack of supervision must be proximate cause of injury. Brahatcek v. Millard School District: wrongful death action case. David died as a result of being accidentally struck in skull by golf club during PE class. Ct held instructor’s failure to properly supervise was held to be cause of plaintiff’s death. 9. Referee Liability: Duty to properly supervise athletes in a contest and duty to enforce safety rules. Referee Liability: duty to properly supervise the athletic contest. Included in this duty is an obligation to enforce safety rules. If duty is ignored or not properly performed, then both referee and school might be liable for negligence. Wrestling referee must have complete attention Carabba v. Anacortes School District: high school wrestler was severely injured when referee looked away while an illegal hold was applied to plaintiff. Negligence was found for failure to adequately supervise the match due to his attention being diverted. Failure to break the hold was proximate cause of the injury TORT DEFENSES Assumption of Risk: used when sport related accident occurs. It can be defined as a voluntary assumption, expressed or implied, of a known and appreciated risk of the game. Ashcroft v Calder Race Course, Inc: a jockey was injured, rendered a quadriplegic, when his horse veered across the race course toward an exit gap, riding on a track with a negligently placed exit gap is not an inherent risk in the sport of horse racing. Express assumption of risk waives only risks inherent in the sport itself. The owner or occupier of land has a duty to exercise reasonable care for the protection of invitees. A land owner who assumes the task of providing the physical facility upon which a sport is to be played has a duty to exercise reasonable are to prevent foreseeable injury to the participants that includes foreseeing that they may risk a known danger in order to participate. If injury occurs due to negligent maintenance of the facility, the landowner may be held liable. 10. Warnings and Releases: a warning in sport explains the inherent dangers that are involved in certain activities. Releases are contracts that contractually release a defendant fro, all participant’s injuries. If release is ambiguous in scope or purports to release willful, wanton conduct that it’s unenforceable. Williams v. Cox Enterprises: the court upheld a waiver in a 10,000 meter road race in which a participant suffered injuries as a result of heat prostration and exhaustion. The participant must pose the required amount of training, experience, and skill. The court allowed an overly broad waiver. 11. Recreational Use Statutes (under tort defenses): landowner’s who allow free recreational use of their property, owe not duty of care to keep their premises in safe condition or to warn. However, if a fee is paid then statute will not apply. WORKERS’ COMPENSATION Each state has a WC statute. Often used as a defense by the tortfeasor to circumvent personal injury suits since, if applicable statute exits, it is usually the sole remedy for recovery. Employment related injuries. Some states do not allow pro football players. College players employees if the continued receipt of a job free meals, or money is contingent upon continued sports participation, then a contract to play that sport is created and recovery is allowed. WC applies when employer brings the sporting activity within the course of employment. Trainers and coaches may be seen as independent contractors. CRIMINAL LIABILITY Pg 347 Some degree of violence is unavoidable in any contact sport. But civil and criminal prosecution is aimed to deter unnecessary violent contact State v Shelley: Discussed possible criminal charges that could stem from a recreational basketball game. Although consent can be a defense to an assault, it is unavailable if the conduct in question is not a reasonably foreseeable hazard. Shelly struck another player and broke his jaw in 3 places. They were playing a pick up game of basketball (intramural). The consent defense is not limited to conduct within the rules of the games, rather it is to the conduct and harm that are reasonably foreseeable hazards of joint participation in an athletic contest, Shelley’s conduct was not a reasonably foreseeable hazard. An ordinary person should understand that intentionally punching a person in an athletic competition may result in criminal prosecution. The court allows the use of the consent defense in athletic injuries, but not in this case because not reasonably foreseeable. Ho Tomjanovich: 1977 NBA game b/w Lakers and Houston Rockets, Tomjanovich was acting as peace maker when Kermit hit him causing a concussion, broken nose, broken jaw, skull fractures, facial lacerations, loss of blood, and leakage of brain cavity fluid. Won civil damages of 2mil from Lakers as Kermit’s employer (vicarious liability). No criminal or civil charges individually against Kermit were filed. Spectator Violence Hooliganism: spectator violence. European countries have enacted laws to try and curtail hooliganism. Canadian Approach In Canada, because of ice hockey, the prosecutors have more often used the criminal laws against hockey players who have initiated violent contact toward hockey players on the opposing team. The consent defense depends on: implied participation, consent that is implied by specific acts, and a public policy limitation on ones’ ability to consent. Canadians are hesitant to find a sporting participant guilty of a criminal charge. Athletic Eligibility pg 367 1. Amateur Sports: are those sports in which the athletes do not operate under a direct pay for play scheme. There is restricted and unrestricted competition. Restricted: includes high school and collegiate competition, is restricted to essentially the same groups at different levels. NCCA is one example. These organizations est. rules of competition within these groups; an important part of their duties is to promulgate, establish, and enforce the eligibility of the participants under their jurisdiction. Also, these orgs must determine if inappropriate conduct by players or tams violates the pertinent rules and regulations. If it does, the groups impose sanctions, to either the individual athlete or to the particular school. Unrestricted: competition is open to all athletes. Olympic competition is an example. An amateur, by definition, cannot also be a professional. Can be an amateur under one set of standards and not under another set of standards. As a general rule, courts do not interfere with the internal affairs of voluntary associations unless there is mistake, fraud, collusion, or arbitrariness. Absent these, cts accept an athletic governing body’s decisions and riles as conclusive. Cts do not interpret or substitute interpretations to association standards. high school football Hall v. University of Minnesota: very important case: procedural due process was ignored when a basketball player, who had the required GPA to continue in school but not sufficient credits for particular program, was disallowed the opportunity to participate further in intercollegiate basketball. Ct held that he had sufficient property interests in continuation of basketball career to warrant constitutional protection since his lack of playing time would affect his ability to be drafted by NBA. Classic example of amateurism duality was the track star Carl Lewis, who although he earned millions per year, still maintains his amateur status. Scholarships: Ivy league schools don’t give athletic scholarships only academic. Ct has held scholarships as a contract and that in consideration of the award, athlete agreed to maintained eligibility, both physically and scholastically. - can negotiate scholarships to be best deal possible. Good deals would be more tutors. Before student signs scholarship, school must give student terms and conditions, including amount and duration of the student’s financial aid packet. 1. student can get worker’s compensation coverage for injury. However, if student is viewed as independent contractor or person of some other status then not covered by worker’s compensation. Taylor v. Wake Forest University: a case where an athlete’s scholarship was terminated when he decided not to play football, the court held that the scholarship was a contract and that in consideration of the award, the athlete agreed to maintain athletic eligibility, both physically and scholastically. Rensing v Indiana State University Board of Trustees: a varsity football player was rendered a quadriplegic as a result of an injury occurring during the team’s spring football practice. At the time Rensing was receiving financial aid through a football scholarship awarded by the Trustees. Rensing argued that an employer-employee relationship did exist and he was entitled to benefits under Worker’s Compensation Act. Ct agreed. Written or implied employment contract within the meaning of the Act which obligated Rensing to play football in return for the scholarship. The board retained the right to terminate which distinguished the award from a gift or grant. Bargained for exchange in the manner of employer and employee of Rensing’s football talent for certain scholarship benefits. Begley v Corporation of Mercer University: the school sought to terminate a scholarship agreement when it discovered that the entering student did not have the required GPA. Court held that since the student did not meet one of the conditions of the agreement, he could not expect the school to perform its part of the contract by allowing him to keep the scholarship. University of Denver v Nemeth: an injured scholarship athlete was allowed to recover workes’ compensation on the basis that his agreement called for him to work in and about the tennis courts on campus. Although he was injured during spring football practice, it was held that the injury arose out of and in course of his employment. Eligibility: cover all possible permutations that might control a potential athlete, including age, years of participation, academic standing, grade point average, length of hair, red-shirting rules (still on team and receive benefits but don’t play), number of semester enrolled and marital status. All of these elements have been used as way to restrict an athlete’s eligibility to participate. 1. Summer Camp Rule: limits eligibility by not allowing athletes from attending same-sport summer camps 2. Anti-marriage: unconstitutional b/c infringed on a fundamental right and violated equal protection rule. Bell v. Lake Oak Independent School District: a regulation that prohibited high school students from participating in extra curricular activities was found to violate the Equal Protection Clause. 3. Red Shirting: some schools hold students back academically so they can develop their bodies and playing abilities in hope of increasing their potential for athletic success 2. State Action: the importance of determining if a regulating entity is a state actor b/c the protections of the 14th amend due process and equal protection clauses do not extend to private conduct that abridges only individual rights. NCAA not state actor. However, all actions by state high school activities association will usually be construed as state action for constitutional purposes. NCAA v Taranian: The Supreme Court held that a university’s implementation of disciplinary sanctions against its basketball coach in compliance with NCAA rules and recommendations do not turn the NCAA’s otherwise private conduct into state action. Brentwood Academy v Tennessee Secondary School Athletic Assn.: a private high school sued a state interscholastic association under section 1983, seeking to prevent enforcement of a rule prohibiting use of undue influence in recruitment of student athletes. the Supreme Court held that a high school interscholastic athletic association’s rule that prohibited the use of undue influence in the recruitment of student athletes was state action for the purposes of 14th amendment. 3. No pass no Play: student are not allowed to play in sports if they can’t maintain a C average. TX was the 1st to start a no pass program. This includes extra curricular activities. Spring Branch Independent School District v Stamos: Supreme Court of Texas held that Texas’ no pass, no play statute was constitutional on the basis that the rule was rationally related to a legitimate state interest and that participation in extra curricular activities is a privilege not a right. 4. Challenged Athlete: there are many ways w/c eligibility to participate can be restricted: one way is to be declared ineligible to participate based on disability, whether physical or emotional. ADA – American with Disabilities Act have established right for disabled students to participate in interscholastic sports. Grube v. Bethlehem School District: the court upheld an injunction allowing a high school student to play football even though he had only one kidney. Plaintiff showed a likelihood of success on the merits of his claim that he was discriminated against in violation of section 504 of the Rehabilitation Act. Martin v. PGA Tours: Supreme Court held that the PGA’s “no cart” rule violated the ADA as regards to rights of challenged golfer. The court said disabled golfer has right to use golf cart on the professional golf tour. The no cart rule precludes golfers to use a cart during the 3rd stage of the PGA qualifying tour and during PGA. By not providing a cart the PGA failed to make tour accessible to challenged individuals. Discipline 1. If there is a problem, the organization will investigate the institution and if necessary the individual player. Enforcement must adhere to procedural due process. 2. Due process comes into play when the act in question is a state action. Kelley v Metropolitan County Board of Education: the court held that due process was denied when a school board suspended the interscholastic sports program of an all-black high school for one year without a formal charge or hearing. Neal v Fulton County Board of Education: an individual student athlete claimed that his due process rights were violated when his coach allegedly used excessive corporal punishment against him. He coach instead of breaking up the fight between the students, looked for the metal weight the plaintiff used to hit the other student and hit plaintiff in the head with it. The blow knocked the eye out of the socket and caused permanent vision loss. Plaintiff adequately alleged a violation of his rights under the 14th amendment to be free from excessive corporal punishment. 3. in professional sports discipline rules are found in SPK and C.B.A.. Those who punish athletes are the club and league. Amateur Sports: the NCAA requires that all athletes annually sign a consent to a drug testing as part of their 3 part statement and consent form on eligibility, recruitment, financial aid, amateur status, and involvement in organized gambling. Those who fail to adhere to this 3 part statement and consent form are declared ineligible to participate. In high schools, students are often compelled to sign a consent form for urinalysis before they are eligible to participate. Drug testing is also an integral part of the disciplinary procedures of the US Olympic Committee. Drug Testing 1. Every professional sport has plan to evaluate and monitor drug testing. These programs are developed through collective bargaining agreement. 2. NCAA requires that all athletes annually sign consent to drug testing as part of their eligibility to play. Failure to adhere results in ineligibility to play. If found to be on substance banned then student will not play in post and regular season. 3. Right to Privacy and Reasonable Search: Univeristy of Colorado v Derdeyn: the SC of Colorado found that the university’s random, suspicionless urinalysis drug testing of student athletes was an unconstitutional search violating the 4th amendment. CU had not obtained voluntary consent from its athletes for such testing, and it declared such testing unconstitutional under both federal and state law. “locker room mentality” argument of lowered expectation of privacy not persuasive. Todd v Rush County Schools: students participating in extracurricular activities (not only athletics) were subjected to random urinalysis as a prerequisite to participating in extracurricular activities. No punishment was associated with the drug testing unless failed twice. The court held the testing scheme used by Rush County Schools was consistent with the 4th Amendment because deterring drug use by students was a compelling interest, and the program was designed to deter drug use not to catch and punish users. Extracurricular activities is a privilege at the high school. Hill v. NCAA: ct found NCAA’s program to be an invasion of privacy. The Supreme Court of cali reversed finding that NCAA’s drug testing program didn’t violate athlete’s right to privacy. NCAA use of monitoring urine testing to enforce drug testing is not unreasonable infringement on student’s expectation of privacy because the information gathering procedure is a method reasonably calculated to further its interests in enforcing a ban on the ingestion of specified substances in order to secure fair competition and the health and safety of athletes participating in its programs. Vernonia School District v. Acton: upheld Hill’s ruling by stating legit expectation of privacy is less with regard to student athletes. School sports are not for bashful. They require suiting up before each practice or event, and showering and changing afterward. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. Brennen v Board of Trustees for University of Louisiana Systems: The court held that the student athlete’s expectation of privacy was diminished bc of the locker room environment. Brennen claims that his right to privacy and due process were violated after he failed two drug tests and lost two appeals. Brennen, like the student athletes in Hill, has a diminished expectation of privacy. While a urine test may be an invasion of privacy in the context of intercollegiate sports and there being a significant interest by USL and the NCAA that outweighs the relatively small compromise under the circumstances. Trinidad School District No.1 v Lopez: unlike in Todd, Acton, Brennen, the Colorado Supreme Court found that the suspicionless urinalysis was unconstitutional when applied to band members because there is no diminished expectation privacy like student athletes. There is no locker room mentality in this situation. Although band members wear uniforms, they do not undergo the type o public undressing and communal showers required of student athletes. DUE PROCCESS AND EQUAL PROTECTION Pg 487 14th amendment due process and equal protection rights do not extend to private contracts that abridge only individual rights Only state actions can be challenges under the 14th amendment Shaill v Tippecanoe County School Corp: random urinalysis of high school athletes is reasonable under the 4th amendment and the school board’s procedures for challenging positive test results satisfied due process. Under the program, all students desiring to participate in interscholastic athletics and their parents or guardian were required to sign a consent form agreeing to submit to urinalysis if chosen on a random basis. Urinating and collection is a search but the program passed the reasonable test because of the diminished expectation of privacy (communal undressing) of student athletes, who already provide urine as part of a medical exam. NCAA The NCAA rules delineate the eligibility of athletes in member schools based on rules and regulations such as the no agent rule, first year eligibility, failed drug testing and GPA NCAA’s 1st year eligibility requirements: Proposition 16 – requires a GPA in 13 core courses with a corresponding minimum score on one of the standardized test. No Agent rule: an individual shall be ineligible for participation in an intercollegiate sport if she has ever agreed to be represented by an agent before the end of the athlete’s eligibility. A key element of the NCAA’s philosophy is to protect amateur collegiate athletes from the temptations ad negative side effects of pro sports. o Gaines v National Collegiate Athletic Association: NCAA’s rules are not subject to antitrust scrutiny. The no agent rules applies even if the player receives no money or financial benefit of any kind from the agent, even if the agent is a family member, or a close family friend, and even if the agent has not charged and agrees not to charge the player a fee. The NCAA’s rules are not unreasonably anticompetitive or exclusionary. o Hall v National Collegiate Athletic Association: court refused to grant a preliminary injunction so as to allow a student to receive an athletic scholarship for his freshman year although he did not meet the NCCA eligibility academic standards. (first year eligibility requirements) Cureton v. NCAA: The plaintiff’s challenge the SAT score requirement for freshman year varsity athlete participants because they allege the minimum standardized test schore component of Prop 16 had an unjustified disparate impact on African American student-athletes. The court held the NCAA SAT requirement was invalid b/c violated Title VI but the NCAA could use the minimum GPA requirement. 2. The NCAA’s ability to sanction and penalize institutions and individuals for violations of its constitution and bylaws is the key to its effective administration of intercollegiate athletics. Death Penalty: most serious sanction that NCAA can enforce against s school. Death Penalty will not allow a school to participate in particular sport for up to 2 years. Its only for repeated violations with in 5 year period. Coaching staff and team are not allowed to participate in sport NCAA v Jones: the SC of Texas reinforced the NCAA’s ability to issue retro active penalties under its “restitution rule” NCAA v Lasege: the SC of Kentucky held the trial court was unable to enjoin the NCAA from imposing restitutionary sanctions against a university and student athlete on the basis that the university voluntarily agreed to abide by the riles and regulations of the NCAA Smith v NCAA: is it realistic for universities to “punish themselves” in an attempt to deflect possible NCAA sanctions? Women and Sports 1. Discrimination and Harassment: vividly illustrated by the manner in which opportunities have been limited. There were many rules that were demeaning for females Israel v. West Virginia Secondary School: ct held that skilled female baseball player had the right to at least try out for the high school team, even though that school did have softball as an option. Plaintiff must prove that alleged discriminatory action or inaction is motivated or tainted by gender bias. Croteau v Fair: a female high school student who was cut from the varsity baseball team was unable to disprove that this decision was made in good faith and for reasons unrelated to gender. The court was convinced that she received a fair tryout. Wynn v Columbus Municipal Separate School District: a female physical education teacher sued the school district that denied her application to the position of athletic director. The court held that the defendants discriminated against the teacher on the basis of gender by refusing to appoint her. The plaintiff always retains the ultimate burden of persuading the court that she has been a victim of intentional discrimination. The defendants failed to rebut plaintiff prima facie case. Sex Discrimination Title 9 of Education Amendments: It is constitutional to limit participation in a sport if there is a potential physical harm to female. Title 9 prohibits any federally funded educational programs from discrimination and is intended to curtail discrimination in any program, organization, or agency that receives federal funds. Its goal is to abolish paternalism by giving women an equal opportunity to develop and apply skills. Grove City and Civil Rights Restoration Act of 1987: act extended definition of “program” or “activity” to include the entire program Equal Protection: State action must be found for a case to be based on the Equal Protection Clause of the 14th Amendment. The next step is to determine if the athlete program’s provisions or the enforcement of its prohibitions violate the clause. The original standard applied to sexually discriminatory sports rules was one of a “rational relationship” However, the current standard of review for sex-based classifications is whether a gender based classification serves an important governmental objective and is substantially related to achieving that objective. o Dodson v Arkansas Activities Association: the court held that half court basketball for girls violated equal protection. The real reason for the difference, and in fact the only operative reason, is simply that girls’ rules have always been this way in Arkansas. Heritage, tradition and folklore alone, without some supporting substantive gender based reason is insufficient to justify the rule changes in light o the fact that those rules placed the girls at a substantial disadvantage in comparison to their male counterparts. Grove City College v. Bell: rule that only those programs within an institution that receive direct financial aid from the fed government would be subjected to Title 9 protections. This case limited effect of Title 9 has in general and specifically on female athletic participation. Just because received grants by particular students did not subject entire school to coverage under Title 9. For entire college to be subjected must show college used fed funds in areas other than financial aid. Only individual programs that received fed funding is when Title 9 applies. Haffer v Temple University: the court agreed to a settlement that outlined changes in teple’s athletic program. Although it applied to only one school, it has been viewed as the paradigm for collegiate compliance with Title IX. IOC: INTERNATIONAL OLYMPIC COMMITTEE The IOC is registered under Swiss laws as a nonprofit, private society with legal status under tax and labor laws because of its international character. Under the IPC charter, it has legal status under international law ans perpetual succession. The Olympic Charter forms the basis of international sports law. Defrantz v United States Olympic Committee: The court held that the USOC had the authority to boycott the 1980 Olympics. Defrantz was an athlete’s attempt to enjoin the USOC from boycotting the 1980 Moscow Olympics. The court held that under the IOC rules and the Amateur Sports Act of 1978, if so desired, not only could the USOC refrain from sending a US team to the Olympics, but it could do so for reasons not directly related to sports considerations. Court held that the USOC’s decision was not state action and failed to create an actionable due process infringement claim. NOC: National Olympic Committees: the Olympic Charter describes the Olympic Games as “competitions between athletes in individual or team events and not between countries. They bring together the athletes designated for such purpose by their respective NOCs, whose entries have been accepted by the IOC. The practice of blood packing (blood doping), although not related to drug testing per se, is strikingly similar in the response it generates. In this process, an athlete’s blood is drawn from her body during training and then returned to her body (packing) just before competition (doping uses someone else’s blood). It is a technique that is increasingly used in sports that require endurance, such as cycling or cross country skiing. Blood doping transfusions are banned by international rules. The IOC established a Court of Arbitration for Sports (CAS) in 1983. The CAS is the court of general jurisdiction for international sport disputes. Patents: 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 on the patent by using or selling the invention without proper authority to do so. Patent law covers a variety of sports products, including golf balls, football helmets, skates, rackets, trampolines, and lawn darts. Indianapolis Colts v. Metropolitan Baltimore Football Club Limited Patnership: the Colts and the NFL brought suit for trademark infringement against the Canadian Football Legue’s Baltimore franchise in their attempt to call itself “Baltimore CFL Colts.” The court granted a preliminary injunction against Baltimore football’s team use of the name “Colts” or “CFL Colts” on the basis that the name was likely to confuse a substantial number of consumers, this warranting issuance of a prelim injunction. TRADE DRESS Trade dress protection is available for nonfunctional features if they distinguish the good’s origin. The Lanham Act provides protection against the creation of confusion by the simulation of a product’s or service’s trade tress. Trade dress was once confined to a product’s packaging, but now it includes the product’s configuration and ornamentation. Callaway Golf Co. v Golf Clean Inc: a golf club manufacturer successfully used trade dress protection to enjoin a knock-off of its Big Bertha irons.