Professional Sports Law

Mitten - Spring 2018

Areas of Law
I. Contract
II. Labor
III. Antitrust
IV. ADA
V. Workers Compensation
League Governance
I. Law of Private Associations: if a league makes its own decision about something, court will give
deference with exceptions:
A. Rules, regulations, or judgments are in contravention of the laws of the land or in
disregard of the charter or bylaws of the association
B. Where the association has failed to follow basic rudiments of due process
II. League Commissioner
A. Selected by and answerable to the league owners and their governing body.
Traditionally accorded certain powers and enforcement rights that create a special role,
but not unfettered independence and authority
1. Powers are contractual in nature and derived from the league’s constitution,
bylaws, and operating rules.
B. Best Interest Authority: Commissioner has broad power to determine what is in the best
interest of the sport on issues related to:
1. Investigation
2. Action
a. Preventative
b. Remedial
c. Punitive – generally limited
C. Challenges to Authority
1. Finley – Trade of good players for money. No exchange of players.
Commissioner blocks – best interest of baseball saying that it would make the
sport less competitive by giving the richest teams the best players. Wants to
maintain competitive balance. Preventative action.
a. Court upholds – Commissioner has broad authority under MLB
agreement entered into by all teams to determine which actions are
best for baseball. Actions are in good faith after investigation,
consultation, and deliberation.
2. Atlanta Nat’l Baseball Club – Commissioner can only issue sanctions that are
available to him in the agreement.
3. Vincent – Commissioner cannot force a team to move
D. Fiduciary Duty
1. Commissioner has duty to the league, not individual teams
E. Check List for Authority
1. Is this an appropriate exercise of best interest power?
a. Is this sanction authorized? Is the sanction within the authorization?
b. Is it procedurally fair?
c. Is there a reasonable expectation?
2. Before punishment
a. Give notice

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 b. Give opportunity to be heard
III. Legal Relationship Amongst Clubs
A. Duties
1. Clubs have a reciprocal duty of good faith and fair dealing – they have to act
reasonable
a. At minimum, each club has to have a rational basis for their vote
i. Relocation: Oakland Raiders want to move to LA. Court held
that each league member must exercise its contractual right of
approval or disapproval or its discretionary power over the
interest of the other in good faith.
2. Fiduciary duty?
a. Yes, if league is a corporation with a board of directors
b. No, if unincorporated, not-for-profit association and clubs don’t care
profit/loss
ADA and Rehabilitation Act
I. Checklist
A. Person with a disability
1. Physical or mental impairment which substantially limits one or more major life
activity
2. Record of impairment
3. Regarded as having an impairment
B. Otherwise qualified
1. Physical capabilities/skills in spite of condition?
2. Participation poses a significant risk of harm to self or others?
C. Reasonable accommodation or fundamental alteration?
II. Fundamental alteration modifies an essential aspect of the game or provides a competitive
balance.
A. Martin – walking not an essential aspect. No individualized determination whether cart
was a competitive advantage
B. Pistorius – no proof of an advantage
III. Direct threat to the health and safety of others – significant risk that can’t be eliminated by
reasonable accommodation
Anti-Trust
I. Goal is to ensure competition and prevent price-fixing
II. Price Fixing
A. Vertical – producers in supply chain get together
1. Acceptable
B. Horizontal – producers of a particular product (example: steel) get together and form a
monopoly
1. Per se illegal because the probability of anti-competition is so high
C. Output limitation – agreement that parties will only produce so much
III. Section One: Anti-Trust
A. Analysis
1. Elements
a. Concerted action among economic competitors
i. Single entity defense?
b. That unreasonably restrains trade
i. Interbrand or intrabrand competition

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 c. Alleged violator engages in interstate commerce
2. Full Rule of Reason Analysis
a. Plaintiff has the burden of showing than an agreement had a
substantially adverse effect on competition
i. Indirectly proven - defendant possessed the requisite market
power within a defined market
 Market analysis – relevant product market (what’s a
reasonable substitute?), geographical area, defendant’s
market share.
ii. Directly proven - showing actual anti-competitive effects, such
as control over output or price
 For buy/sell/move – need to show that not allowing
reduces intrabrand economic interest
 Example: being denied a bigger market that would
benefit them economically
b. Burden shifts to defendant to show evidence of the procompetitive
benefits of the restrain on trade - on field competition is dependent on
the teams’ cooperation in other respects
i. Need to keep the market widespread so that they can capture
the largest audience they can
ii. Financial viability of the league/clubs
iii. Competitive balance amongst the clubs
 for league to survive/thrive, each club must field
competitive team and be economically viable.
iv. Revenue sharing is the key to maintaining geographic and
competitive balance and ensure that each club has a
comparable opportunity to field a championship team
c. Plaintiff must prove that the challenged conduct is reasonably necessary
to achieve the legitimate objectives or that those objectives can be
achieved in a less restrictive manner
i. Example: address of season ticket holders show that the fans
will travel and they aren’t moving far anyway
3. Quick-Look Rule of Reason
a. Clear anti-competitive effects in output or input market (increased
price, higher than what you’d get in another market and
b. No plausible procompetitive benefit (competitive balance, product
availability, financial viability, production or market efficiencies) or
c. Even if benefits exist, substantially less restrictive means available.
i. Plaintiff wins as a matter of law. No factual disputes.
B. Defenses
1. Single –entity: entity is removed from Anti-Trust law if they can show a
complete unity of interest
a. League clubs are subject to Section 1 because they do not have a
complete unity of interest (American Needle). They collectively produce
a sport, but they have unique trade interest
b. A league that owns all member clubs would be able to avoid Section 1.
C. Disputes
1. Acquisition, Ownership, and Sale of a Franchise

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 a. Grizzlies – Grizzlies applied for entrance into NFL and application
denied. They sue NFL for antitrust violation because of concerted action
between NFL members, NFL, and Commissioner. Court says no violation.
To have a violation, you must have actual or potential injury to
competition. Grizzlies didn’t show actual or potential injury
b. Levin – Investors denied opportunity to buy the Celtics. Investors were
close friends with the owners of the SuperSonics. Other owners feared a
conflict of interest. Court said no violation of anti-trust because there
was no exclusion from competition and no injury. There’s still a Celtics
club – not taking the team away.
2. Apparel
a. American Needle – apparel maker has licensing contract with NFL
Properties which controls the NFL’s licensing contracts. Pre-NFL
Properties, teams would separately license their TM. NFLP formed to
create uniform standards and open up time for individual team lawyers
as teams assign rights to NFLP who enter into arrangements then the
teams split revenue equally. NFLP moves to exclusive license to the
highest bidder. Single-entity defense rejected by USSC because the
teams do not share the same economic interest.
b. Salvino – MLBP is exclusive licensing agent for MLB clubs. Doesn’t limit
the number of products it will license or licensees. Failure to show that
licensing limited output. Actually, output went up. Inequality in licensing
income would over-compensate the popular team for the joint effort of
all clubs.
3. Relocation
a. Raiders I – NFL owners vote to not allow Raiders to move. Raiders say
that their concerted action was the unanimous vote. Raiders allege that
the relevant market is NFL football in Southern California and the NFL
has 100% of this market. NFL says the market is all forms of
entertainment in the whole nation. NFL says that the most effective
form of entertainment requires that clubs be widespread so that they
can capture the largest audience, regional balance. Jury verdict for
raiders – less restrictive means available, such as objective relocation
factors.
b. Recent trend is to allow clubs to threaten relocation to obtain public
subsidies for a new playing facility and to allow a club to move if a
relocation fee is paid by new host city.
4. Intellectual Property Rights Licensing and Sales
a. Salvino – procompetitive benefit for licensing was one-stop shopping,
increased quality of licensed and retail merchandise. Standard licensing
fee and profit sharing does not equal illegal price fixing.
IV. Section Two: Monopoly
A. Monopolization
1. Elements
a. Defendant possess monopoly power in the relevant market
i. Product, geographical area, market share at least 70%
b. Defendant willfully acquired that power rather than having grown or
developed as a consequence of a superior product or historical accident

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 i. Fair competition or illegal exclusion of rival?
2. Cases
a. Philadelphia World Hockey Club – 3 year reserve clause following
expiration of a current contract is a violation as it restricts the supply of
players eligible to play in a new league
b. USFL v NFL – NFL has non-exclusive contracts with ABC, CBS, and NBC.
Doesn’t forbid television another league’s games when not broadcasting
NFL’s. USFL wants to have league in Spring. Doesn’t go so well. Blames
NFL broadcasting contracts. Holding – USFL is just not an attractive
entertainment product.
B. Attempted Monopolization
1. Elements
a. Defendant engaged in predatory or anticompetitive conduct with
i. Fair competition or illegal exclusion?
b. Intent to monopolize and
i. Specific intent to monopolize or business purpose?
c. Dangerous possibility of achieving monopoly power
i. Product, geographical area, market share at least 50%
2. Conduct
a. Exclusion clause – okay if reasonable terms. Want the best services from
the player (not tired, hurt)
b. League expansion – show how long they were thinking about moving,
can areas support a team, how avid is the base, etc.
c. Increasing amount of games – how long have you been thinking about
it, is your team growing so much that the public wants more?
C. Remedies
1. Enjoin and damages (atty fees)
2. Structural relief
D. The fact that there is a single major league for a particular sport doesn’t violate. Fans
may prefer a single champion
Labor Relations
I. National Labor Relations Act
A. Section 7 – employee rights to unionize, collectively bargain, strike, and picket
1. Multi-employer Collective Bargaining
a. Players union is the exclusive bargaining agent for all players.
b. League multi-employer unit bargains collectively for the clubs.
i. All players and clubs have to comply with the same rules for
everything so it makes sense to bargain collectively
2. Mutual obligation to bargain in good faith over mandatory subjects (wages,
hours, and other terms and conditions of employment)
a. On-field conduct – mandatory subject
b. Draft eligibility – mandatory
c. Height of pitcher’s mount – mandatory
d. Expansion/contraction of number of teams in a league or relocation?
Maybe
B. Section 8 – prohibits employer interference with Section 7 rights. Unfair labor practice if
employer does.
II. Hierarchy of Agreements

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 A. Collective Bargaining Agreement
1. Uniform Player Contract
a. League constitution and bylaws
i. Individual player contract terms
III. Statutory Labor Exemption (Norris-LaGuardia Act)
A. Anti-trust immunity for union conduct (collective bargaining, strikes) to further players’
economic interest
B. Immunizes multi-employer collective bargaining and other conduct (lockouts)
C. Permits NBPA to establish a certification procedure for player agents.
D. Labor units acting in their self-interest and not in a combination with non-labor groups
are statutorily exempt
IV. Non-statutory Labor Exemption (Brown)
A. Common law anti-trust immunity expanding SLE to apply to agreements between
employees/unions and employers related to mandatory subjects of collective bargaining
1. Basis of exemption – ongoing collective bargaining process
B. Elements
1. Concerns only players and clubs
2. On matters of mandatory subjects of bargaining
3. Lawful operation of bargaining process
C. If NSLE applies, anti-trust claims are barred, even to unilateral actions after impasse.
(Brown)
D. Terms of existing CBA aren’t subject to anti-trust by players or eligible players – leave
terms and conditions to the players and league.
E. Bargaining process isn’t over when the first impasse is reached
F. 6th circuit - any anti-competitive effect of a properly bargained collective bargaining
agreement is excluded from anti-trust scrutiny by the NSLE.
G. has not been applied to individual-performer sports
H. NSLE ends when
1. There is either a new CBA or
2. Sufficiently distant in time and circumstances from collective bargaining process
a. Union decertification or extremely long impasse and multi-employer
bargaining unit defunct
V. No anti-trust bar by SLE or NSLE if:
A. Team sport players don’t unionize or collective bargaining process ends
B. Suit by non-parties to collective bargaining process
C. Athletes are independent contractors in individual performer sports
VI. Dissolve a Union
A. Decertification
1. Formal and time consuming
2. Requires 50% of members to vote to decertify in an NLRB-supervised election
3. Can’t vote to re-unionize for 12 months
B. Disclaimer of Interest
1. Requires 50% to disclaim. Re-unionize with 50%.
VII. Expiration of CBA
A. Labor law requirements?
1. Expired terms remain in effect to promote stability
2. Mutual duty of good faith bargaining regarding mandatory subjects of collective
bargaining continues

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 3. Club must maintain status quo until impasse
4. Both sides have continuing duty of good faith bargaining for mandatory subjects
if new proposals or changed circumstances. League/clubs may unilaterally
impose new terms if it is within the pre-impasse proposal (last offer) and no
unfair labor practice
B. Options
1. Players may strike. League may hire replacement players or lockout
2. Either side may file ULP chargers with NLRB for No GFB
3. Effective negotiation and economic pressure = new CBA
C. Anti-Trust remedies?
1. Union disclaimer ends collective bargaining process and NSLE. No NLRB
decertification required. (Powell)
VIII. Challenging a CBA
A. Clarett – challenge to 3-college season draft eligibility rule. NSLE applies even to
exclusion of prospective players. No breach of duty of fair representation because you
must show reckless disregard for negligence against a union.
1. Union may exclude for nearly any reason unless illegal discrimination/ULP.
IX. Checklist
A. Anti-trust?
1. NSLE or SLE?
2. MLB exemption for major league players
B. Labor Law?
1. Breach of duty of fair representation?
X. Unfair Labor Practice
A. Adjudication
1. Union/league files ULP charges with NLRB. If violation found, NLRB issues
complaint by administrative law judge in DC. May seek 10(j) injunction to avoid
irreparable harm to bargaining process (Silverman I)
2. ALJ decision may be appealed to NLRB – NFL Mgt. Council
3. NLRB decision may be appealed to federal appellate court; discretionary review
by USSC (Truitt)
B. Duties
1. No duty to make concession or reach agreement
2. Strike/lockout not an ULP
3. Refusal to bargain in good faith on mandatory subjects of collective bargaining is
ULP.
4. Requires honest claims.
a. Failure to provide requested verification claims is a breach of duty of
good faith bargaining (Silverman I– duty to provide documents
requested to verify claims)
5. After CBA expires, expired contract governs until new contract or vote-impasse
a. Duty to maintain status quo (Silverman II)
6. ULP if unilateral terms are on:
a. Mandatory subject of collective bargaining (wages, hours, conditions of
employment)
b. Without good faith bargaining
c. Before impasse
i. Must propose to union, union says no and no counter offer.

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 XI. Judicial Review
A. Determine whether the arbitration proceedings and award met the minimum legal
standards established by the Labor Management Relations Act
B. Cannot disturb award if arbitrator acted within bound of bargained-for authority
C. Vacate only if:
1. Award doesn’t draw essence from CBA
2. Arbitrator exceeds scope of issues submitted
3. Award runs counter to public policy
4. When award procured by fraud
XII. Conflict of laws
A. Federal law governs suits for CBA breach and preempts state law
B. Federal law preempts tort claims flowing from CBA breach
C. If claims are sufficiently independent of CBA, no preemption
XIII. Remedies
A. Unfair Labor Practice Charges
1. Unilateral changes before impasse or not discussed prior to impasse
B. Breach of duty to bargain in good faith
1. Unilaterally implement terms not discussed in pre-impasse negotiations
XIV. Anti-Trust Claims
A. To bring an anti-trust claim, union has to be dissolved through decertification or
disclaimer of interest
B. Lockout – concerted action
C. Hard salary cap – price fixing
XV. Injunction
A. Elements
1. Likelihood of success on the merits (there has been a breach)
a. Defense – void and unenforceable
2. Irreparable harm (player has unique skills that cannot easily be replaced)
3. Court will balance the interests
XVI. Breach of Contract
A. Remedies – damages (what’s it going to cost to get somebody just as good or just as
popular), specific performance (finish out contract), enjoin from breaching their
contract).
Agent Regulation
I. Duties
A. Ultimate decision making with the principal
B. Fiduciary relationship
1. Duty of competence, obedience, and loyalty, account for athlete’s money
2. Implied promise of good faith efforts
3. Agent liable for negligent conduct or breach of fiduciary duty
4. Agent liability for fraud
5. Conflicts = breach of fiduciary duty
C. Agent must possess a degree of skill commensurate with the job
D. Duty to act as a reasonable person under the same circumstances
1. Don’t make promises
E. Subject to agent malpractice and conflict of interest
F. Lawyer – violation of ethical duties
1. MRPC 1.7 – direct adversity, conflict waiver, informed consent

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 II. State Law
A. Contract, tort law (fraud, breach of fiduciary duty), Uniform Action Agent Act, attorney
malpractice
III. Federal Law
A. SPARTA, players unions
IV. Standard of care
A. Duty of reasonable care – duty of competence, obedience, loyalty, and account for
athlete’s money
B. Implied promise of good faith efforts (subjective standard). Not liable merely for
unsatisfactory result
C. Can be liable for negligent conduct or breach of fiduciary duty
1. Unions must be reckless
V. Uniform Agent Act
VI. SPRATA – Federal counterpart to UAAA
Intellectual Property
I. Trademark
A. Acquire by usage, federal registration, or acquire under state law
1. Benefits to registration – use symbol to put on notice, get into federal court,
presumption that you own it, cause of action for infringement, can see if the
mark is already being used
2. Can’t have exclusive right to any work, just the right to prevent commercial use
to prevent confusion
B. Duration of trademark can be a lifetime, so long as you are using it
1. Lose rights by discontinuing use of mark
2. Rebuttable presumption that if you haven’t used the mark for 2 years, you’ve
abandoned
C. Infringement
1. Likelihood of confusion regarding origin/source, approval, affiliation,
sponsorship, or endorsement.
a. Consumer perceptions created by individual team or league official
licensed, goodwill, quality products with quality controls
D. Remedies
1. Injunction and damages
E. Causes of Action
1. Federal Law
a. Lanham Act
i. Trademark infringement
 Purpose is to use symbol to identify one’s products or
services, distinguish them from those of others, and to
denote a consistent level of quality of the product
 Inherent distinctive mark – coined or arbitrary in
relation to the goods/services it identifies
 Secondary meaning – public’s understanding of the
mark refers to the particular business that mark was
meant to identify
 Test: likelihood of confusion as to source, origin of
goods, sponsorship, approval, etc.
1. Very broad

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 ii. Unfair competition
iii. Dilution
 Test: tarnishment or blurs distinctiveness
1. Broader than infringement because you don’t
have to prove likelihood of confusion
iv. Trademark counterfeiting
 Intentional and unauthorized use of a mark known to be
identical with or substantially indistinguishable from
federal registered mark and creates likelihood of
confusion
 Remedy – injunction, damages, seizure and destruction
of goods, attorney fees
b. Ted Stevens Olympic and Amateur Sports Act
i. Prohibits unauthorized commercial use or promotion of any
theatrical exhibition, athletic performance, or competition, even
if no likelihood of confusion
ii. May use marks in truthful reporting and as political speech
2. State Law
a. Trademark and unfair competition statutes
b. Deceptive trade practice acts
c. Misappropriation
i. Intentional, illegal use of the property of another for one’s own
use or unauthorized purpose
d. Breach of contract
e. Defamation, right of privacy, right of publicity
F. Defenses – no confusion
1. Distinct consumer expectations
2. Different product, different market
3. Artistic/expressive work
4. Fair use (truthfully describe or report)
5. Parody
G. Relevant factors to likelihood of confusion – fact specific
1. Degree of similarity between marks
2. Strength of owner’s mark
3. Price of the goods and other factors indicative of the care and attention
expected of consumers when making a purchase
4. Length of time the defendant used the mark without evidence of actual
confusion
5. Intent of the defendant in adopting the mark
6. Evidence of actual confusion
7. Overlap of geographical markets
8. Compete for patronage
9. Disparity between ticket prices
10. Expectation of the consumer
II. Copyright Act
A. Protections original works of authorship fixed in tangible medium of expression. Doesn’t
protect ideas
B. Elements

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 1. Original creative expression
2. Fits within works of authorship
3. Fixed in a tangible means of expression
C. Remedies
1. Actual or statutory damage
2. Injunction
3. Infringer’s profits
4. Attorney fees
5. Crime
D. Infringement
1. Transmission at a place open to the public or where a substantial number of
persons outside of a normal circle of family and its social acquaintance is
gathered.
a. Exception – public reception of transmission on a single receiving
apparatus of a kind commonly used in private homes
2. Hot news exception (misappropriation) – quasi-property right to protect a
party’s labor, skill, and money used to follow and report time-sensitive news.
Prevents competitors from reaping the fruits of the efforts and expenditures of
another.
E. Defenses
1. Preemption
a. State law claim seeks to vindicate legal or equitable rights that are
equivalent to one of the bundle of rights protected by copyright law
b. Work falls within the type of works protected by the copyright act
F. Generally 20-year duration of patent from application filing date
G. Examples
1. Motorola – information is not copyrightable, even if information is obtained
from a broadcast. Can’t copyright facts. Copyright is limited to aspect of the
work that display originality
2. Morris Communications – PGA has property right to RTSS system data but the
property right disappears when the underlying information is in the public
domain
Athlete’s Claims
I. Lanham Act
A. Unauthorized misappropriate use of an athlete’s name, likeness, or other aspects of
identify violations section 43(a) if it causes confusion regarding whether athlete
endorsed or sponsored products/services
B. Elements
1. Unauthorized use
2. Likelihood of confusion
II. State law claims
A. Defamation
1. Elements
a. Make a false statement of fact and it harms the other’s reputation
b. Must prove actual malice
2. Opinion isn’t legally actionable
3. False factual statements about personal life (criminal conduct) are defamatory
4. Must consider first amendment

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 5. Statement of fact that harms professional reputation may be actionable
B. Right of privacy
1. Types
a. Invasion of privacy
i. Intrusion into one’s private affairs
ii. Embarrassing private facts
iii. Placing in false light
b. Right of publicity (misappropriation)
i. Unauthorized commercial use of an athelte’s identity
 No requirement for likelihood of confusion
ii. Property right
III. Remedies
A. Fair market value of individual’s sponsorship/endorsement
B. Value of unauthorized user’s unjust enrichment
C. Injunction
IV. Defenses
A. First-Sale Doctrine – purchaser of goods can resell
B. First amendment
1. Artistic works
a. Must prove explicit misleading (actual confusion) for a claim about a
painting
2. Players names, likeness, information on MLB website – protected
3. Player names and statistics in fantasy game – public domain. Protected
4. BUT Media’s right to report newsworthy events doesn’t permit the
unauthorized broadcast of a performer’s entire act, which threatens economic
value (Zacchini).
5. Must have enough transformative use to be afforded protection. Can’t be just a
replication.
a. Has the material you have taken from the original work been
transformed by adding new expression or meaning?
b. Was value added to the original by creating new information, new
aesthetics, new insights, and understandings?
C. Parody
1. Bobblehead.

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