Law Notes

statue to limitations: how long you have to sue someone: can be affected by circumstances
law can change as society changes
see the issue from both sides
who are potential parties
not all facts are relevant: what additional facts would I like to know
contract claims or tort claims, clams can be criminal and civil
make sure to put the liability and damage
what defenses might there be against your case
what is a sport: done for enjoyment or thrill, skill and involve a challenge for potential injury
inherent risk: the risk posed by an error or omission a factor, other than a failure in internal control financial statement due to
things that are outside the concept of the game you can be sued
inherent risks also cover spectators i.e. getting hit by a foul ball at a baseball game
Shannon v. rhodes established what must be done to be a sport

must be done for enjoyment or thrill
requires physical exertion and skill
requires a challenge with a potential for injury

Levinson v owned: lawyer got hurt riding a horse but didn't know the horse was a catl hearing horse
Levison v Owens (2009)- year of decision 176 Call app 4th (name of book) 1534 ( page number)
Do season ticket holders have any rights at a new stadium?
the law is a collection of rules and regulations that govern the affairs of a community and are enforced by legal authority
a constitution is a document that sets forth the basic principles of government; including limits on government power
there are three basic branches of government: legislative; which is responsible for enacting new laws and amending existing laws through federal and state legislature the executive branch; which enforces existing laws through elected officials or administrative agencies and the judicial branch which interpret constitutions or other existing laws through federal and state court systems
statutory laws or statues are written laws adopted by legislatures at all levels including federal, state city and county and municipal ( statue at the local level are usually called municipals)
regulations are "rules and administrative codes issued by governmental agencies at all levels; municipal, county, state and federal. Regulations have the force of law since they often include penalties for violations
the judicial branch is charged with interesting and applying the law by adjudicating legal claims.
when a court makes a decision in a legal case, and as case law: the collective body of case law is called common law. The collective body of common law gets precedent.
precedent exists when the prior reported opinion of an appeals court establishes the legal rule for future cases involving the same legal question
2 types of precedent: binding precedent exists within a specific court system and must be followed by all courts within the system involving the same legal question at the same or lower level. Persuasive precedent can come from any court system
A court system is a structured collection of individual courts, each court being an "organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it
3 court system

Federal Court System: Uses a hierarchical approach meaning that cases originate in the lower court system is the district court's lowest level in the federal court system is the district court level: courts of origin in the federal court system: 94 district courts in the U.S.

the middle tier in the federal is known as the circuit courts the appellate level is dividend into 11 geographic circuits and a separate circuit for the District of Columbia. The original district geographic location determines which of the 12 appellate circuit will hear the case on appeal
a party may choose to appeal his or her case to the highlight tier in the federal court system: United States supreme court (USSC)
for this, a writ of certiorari ( a petition) must be filed asking the United States Supreme Court to hear the case

2nd System: State Court System

Also use a hierarchical approach: 3 levels- trial courts ( limited or general jurisdiction, appellate courts, the supreme court
not all state court systems are the same: in Colorado, the trial court level is divided into separate courts like the hierarchical system

In Maryland, there are 2 classifications for trial courts district and circuit

district have no juries and cover civil claims up to $30,000 as well as other civil and criminal matters
circuit courts handle major civil cases alone with more serious criminal matters and allow for trial jury court of special appeals is appellate court and the court of appeals is the highest court almost exclusively heard with certiorari

Administrative Court System

used as a fact-finding body that applies regulations
when disputes arise regarding the implementation of the regulations, the evidence is presented to an administrative law judges who will make a decision
no jury trials
when federal regulations are in question a federal administration
law judge will render a decision: any appeal of the administrative law judges findings will go to the federal appellate level circuit courts. most are heard in district courts

Jurisdiction: a courts ability to near a case and provide a remedy
personal jurisdiction: power over the parties in the case
subject matter jurisdiction: the power to hear the type of case

to obtain federal subject matter jurisdiction one of the following criteria must be met:(1) the claim must arise from federal statutes or the U.S. constitution (federal question jurisdiction); ( Federal question injection) (2) the claim must be filed by or against the federal government or (3) the amount in controversy exceeds $75,000 and all opposing parties live in different states. ( diversity of citizenship jurisdiction: parties live in different states)

diversity of citizenship jurisdiction
concurrent jurisdiction must be addressed that is when one case qualifies for both federal and state jurisdiction: i.e. Vikings fan accidentally injures a Packers fan at the Packers Stadium

the legal process is called the civil procedure
the legal right to file a lawsuit is called standing
Typically the issue of standing is raised by the defendant
the plaintiff does not need to prove that standing exists unless it is challenged
The plaintiff(s) is the party filing the lawsuit: this is the individual or group that was allegedly suffered harm and seek legal remedy from the court
The defendant(s) is the party against whom the claim is filed
class action lawsuit: a large group of people is filing a lawsuit collectively against a defendant
A complaint is a formal pleading to the court that must state both the factual and legal basis for the claim
prior to filing a complaint, a plaintiff must be aware of the statue in the select jurisdiction regarding the claim
a statute of limitations is the maximum amount of time a potential plaintiff can wait before filing a legal claim
filing the answer: after a complaint is filed, and summons issued
a defendant has a specific period of time, typically 30 or 60 days in which to file an answer with the court
An answer is a pleading to the court, filled by a defendant, which responds to each allegation in the complaint. A defendant may deny the claims, admit the claims, admit the claims or do either in part
Comparative Negligence: allegations which contradict the complaint, or allegations which are intended to derail the claims in the complaint. After the defendant files an answer, both parties to the lawsuit enter the discoveries and motions phase
Discovery is the period of time during which both parties to the lawsuit gather facts and information to be used as evidence in the trial.
Motions are formal requests made to the court seeking specific action or decisions. Can be made both before and after the discovery
Types of motions -(1) a motion for judgment on the pleadings, which asserts that no cause of action exists even if everything in the complaint is true (2) a motion to dismiss, often based on the expiration of the statute of limitations or filing in the wrong jurisdiction; and (3) a motion for summary judgment, which is filed when one party believes that no questions of fact are present in the case, and the legal issue can be decided as a matter of law
A motion for summary judgment si filed when facts are not in dispute and do not need to be substantiated by a jury
a motion for summary judgment: eliminate the need for a jury to determine the facts based on evidence, since the facts are not in question
Therefore, when a motion of summary judgment is filed if the facts of the case are not in dispute, the judge will consider the facts, apply the law in question to those facts, and render a judgment
after the motion and discovery phase is complete the parties in the case will proceed towards a final resolution, which can be reached in a settlement, alternative dispute resolution, or trial
A settlement is carried out using formal contractual agreements that are filed with the court; oftentimes settlement agreements are not made public and only parties to the case know the final result
Alternate dispute resolution (ADR) arbitration or meditation: Thes formalized resolution process is intended to reach an outcome, yet avoid litigation
In a civil case, a trial will most often result in either a finding of liability on behalf of the defendant (victory for the plaintiff) or a finding of non-liability (victory for the defendant)
If the defendant is found liable, damages will be likely awarded to the plaintiff.
Damages are the monetary compensation awarded as a remedy for defendant liability
Damages can be compensatory (intended to compensate for harm) or
punitive ( intend to punish the wrongdoer and after similar future acts)
After a trial, a notice of appeal can be filed, requesting that the appropriate appellate court review the case
Nither party has the right to appeal simply because they disagree with the trial court outcome; the appeals process is intended to correct the legal error, not give the parties a second chance at their claim using the facts the appellate court will determine whether the decision was reached by the trial court in totally (affirmed)
correct in part (affirmed in part) incorrect totality (reversed) or incorrect in part (reversed in part). Often times, when the appellate court affirms or reverses a decision in part it will also remand the case back to the trial court for further proceedings consistent with the appellate decision
For primary sources of law: constitution, statues, administrative
Regulations/Rules, and court decisions
primary sources ( the actual law) secondary sources (explanations/definitions/summaries of the law, research tools ( digests, electronic databases, computerized legal research).
two techniques in conducting legs research

developing the research plan
summarizing cases

primary legal sources include constitutions, statutes, rules and regulations, and court decisions.
Ultimately only primary legal sources can be relied on in determining what the law is and what the law requires
Annotations categorize court decisions, law review articles, legal treaties, interpreting the statute in question. They are similar to an index and will assist the researcher in locating specific court decisions and understanding how the statue has been interpreted and applied by the courts
A court decision results from a jury verdict or court order that resolves a case or issue in a case
Typically, only decisions made by the supreme court are selected for publication in the state reports
regional reporter publishes the same state court decisions but grooved together by specific region. 7 regional reporters
Secondary resources include articles, journals papers, and other written sources that summarize, explain, interpret or analyze certain issues or topics of the law: legal dictionaries lawyer directories, annotated law reports, legal encyclopedia

Restatement of law, treatises ( textbooks, coursebooks, and hornbooks) Shepard's citations, legal indexes, law review articles, academic legal journals, business or academic journals, business magazines and newspapers

Developing a research plan: (1) Identify the problem or issue using secondary sources (2) Read and summarize cases (3) locate additional cases and shepardize (4) determine any constitutional or statutory connections (5) Organize your information: statement of facts, statement of the issue/problem, identification of relevant law, application of the law, conclusion
A sole proprietorship is an incorporated business owned by one individual, which has no legal existence apart from the owner. The courts will automatically view the business as a sole proprietorship unless the individual starting the business files articles of incorporation with the secretary of state in the state in which the business is located

Advantages: low cost and ease in formation, no business or corporate taxes
Disadvantages: the owner has unlimited personal liability for all financial and legal risks. The life of the business is limited to the life of the owner. The business ability to raise large amounts of capital is limited to the owner's assets or borrowing power

A partnership is created when two or more people, each contributing one or more of: money, property, labor or skill, enter into a business with the exception that each will share proportionally in the profits and losses equally: no formal written agreement is necessary.

Enjoy the same benefits as a sole proprietorship.
Disadvantage: legally bound to the actions of each other whether the consented or and notice of such acts

A Limited partnership enjoys limited legal and financial liability for the debts and legal obligations of the partnership

all central in the business is vested in the general partner, who is usually someone with an expertise in the business. The limited partner is usually only involved as an investor

The Limited liability partnership is the same as a general partnership. However, all partners receive limited liability with respect to the partnership's liabilities stemming from negligence, misconduct, or malpractice of another partner. Some states extend partnership liability protection to include contract debt as well as torts liability
The Limited Liability company structure provides greater flexibility in management of the business and has less-restrictive ownership requirements by combining the best aspects of both partnership and corporation forms. Pass-through taxation, limited liabilities from business debts, damages, unlimited number of members, membership is not limited to individuals but may include partnerships, corporations and other LLC's and foreign entities
Corporations must first file an article of incorporation

all corporations are treated as separate legal entities
the business can be sold or transferred through the sale of stock
life of corporation is unlimited, all corporations provide the owner or shareholders with limited liability for corporate obligations
Disadvantages: cost, formal legal requirements, state and federal rules, and double taxation ( income of business and dividends)
C corporations can have an unlimited number of shareholders
C corporation is subject to double taxation
S corporations must have fewer than 75 shareholders

may not have shareholders who are non-resident aliens and may only issue one class of stock
Benefit: allowing shareholders to elect to be taxed under a conduit or pass-through taxation approach

other types: publically traded corporations, non-profit corporations, public corporations

non-profit corporations: i.e. Green Bay Packers: shareholders are not paid dividends

two types Eleemesynary ( charitable) and mutual benefit: exempt from most federal and state taxes, special postage rates and exemption from certain labor law requirements

Negligence Law is that law which deals with unintentional torts that injures an individual in person, property or reputation

3 sections: Negligence theory: examines both the elements of negligence and which parties are liable
Negligence is an unintentional tort that causes injury to a person in the form of physical injury, property loss or reputation

Negligence can be caused by an act of omission, something one should have done but did not do or act of commission, something that one did but should not have done
4 elements must be present

Duty: the service provider must owe a duty created by a special relationship between the service provider and the participant to protect the service provider and the participant to protect the participant from unreasonable risk or harm
Breach of Duty: The service provider must breach its duty to protect the participant from unreasonable risk or harm
Damage or Injury: The participant must suffer physical damage to person or property or emotional damage
Proximity Cause: the breach of duty must have been the proximate cause (reason) the injury occurred

Obligations are the means by which one fulfills the duty to protect them from unreasonable risk of injury

three sources or origins of duty as an element of negligence

a relationship inherent in the situation
the voluntary assumption of a duty
from duties mandated by statues

Inherent Relationship a relationship where a duty rises i.e. coach and athlete protection from exposure to unreasonable risks that may cause injury
Voluntary Assumption: When one has no duty but voluntarily assumes such a duty
Statues or Laws often specify duties of one party to another
Negligence per se: negligence attached to acts that are deemed negligent without having to prove negligence or investigate the reasonableness of the conduct.
Foreseeability involves the ability to predict what will occur as a result of his or her action (commission) or inaction ( omission) since no conduct can be considered to be unreasonable when there is no foreseeable risk the scope of liability is governed by whether the risk of injury is foreseeable or that a person of ordinary intelligence and circumspection reasonably should have been able to predict the consequences of an action or failure to act

another situation where no proactive action to protect is necessary is when there is an open and obvious environmental hazard.
an exception occurs with young children

Breach of duty: any violation or omission of legal or moral duty. more particularly the neglect or failure to fulfill in a just and proper manner the duties of an office in a just a proper manner the duties of an office or fiduciary employment

3 components: what is the type of risk? what is reasonable care? was the risk foreseeable
3 categories of risk: inherent risks, ordinary negligence, and aggravated negligence

the provider does have a duty to protect participants from unreasonable that include risks created by both negligent behavior and aggravated negligence

Inherent Risks are those that are integral to the activity risks that if removed would essentially alter the sport or activity

The provider of activity generally has no duty to protect one from inherent risks of the activity

one may inform the participant of the risks through oral instructions, detailed risk information in documents such as applications, assumption of risk agreements, or liability waivers, detailed printed risk information in brochures, handouts, and signs

Aggravated Negligence: more extreme departures from reasonable care than ordinary negligence. The second component of breach of duty can be evaluated after what constitutes reasonable care
The Standard care is determined by the reasonable and prudent person would act under the circumstances. Standard is higher when there is a professional in the field
Proximate cause: the injured party must show that the breach of duty was the cause-in-fact of the injury
Probable Consequences rule holds the defendant liable for injuries that are the natural and probable consequences of one's negligent act
Substantial factor test: the law doesn't require that a negligent act be the only causal factor, but may be a substantial factor among several factors that cause the injury
Intervening act or intervening case: when a negligent act is followed by a second unforeseeable and independent negligent act by another party. the second act can be deemed the proximate cause
4th element of negligence is damage: the injury, loss or deterioration caused by the negligence design or accidental one person to another in respect to the latter person or property commonly includes

economic losses
physical pain and suffering
emotional distress
physical impairment

2 types of damages

compensatory: denote a monetary award intended o compensate the injured party for injury or loss caused by the wrong
punitive or exemplary damages entail an award beyond the compensatory damages, generally where the action involves violence, oppression, malice, fraud or wanton conduct by the defendant

3 categories of parties involved: employee or service personnel, administrative or supervisory personnel, corporate entity

HR Law 3 major areas of concern

the employment process
the workplace environment
employee behaviors

Doctrine of respondent superior or vicarious liability: the negligence of an employee is imputed to the corporate entity if the employee was acting within the scope of the employee's responsibility and if the act was not grossly negligent, willful/wanton and didn't involve malfeasance acts that are beyond the scope of responsibility and authority are considered Ultra vires acts and such an act generally receives the corporate entity of liability.
Respondent superior in human resources law: when employment torts are concerned, the corporate entity is liable for international torts and criminal acts of its employees recently have expanded to include workplace tort (p.54)
Employment process negligence: when the employer in the employment process negligently allows the assignment of an unfit employee: can come from negligent hiring, negligent supervision, negligent training, negligent retention, and negligent referral of an employee that is unfit
board members are individually liable for

(1) collective acts of the board or individual acts outside the scope of authority:
(2) branches of statutory duty or violation of participant, employee constitutional rights
3) intentional torts depend on whether the action was

(1) within the scope of employment (required by or was incident to employment) or
(2) reasonably foreseeable by the employer

In general volunteers, trainees and interns are liable for their own negligence. Volunteers of public or non-profit organization are immune from liability for their own negligence if they qualify under the federal volunteer act of 1997 of state volunteer immunity statue
universities are not vicariously liable for athletes negligence acts
The joint and several liabilities doctrine: holds that one defendant can be held liable for total damages even though other defendants were also at fault

Uniform contribution among joint tortfeasors: division of tort payments to be equitable. When one tortfeasor has paid a disproportionate share of damages the tortfeasor can file suit against the other tortfeasor in a separate action

4 ways which contracts are used to protect the corporate entity

Facility leases: the use of sport and recreational facilities by another group or organization
An identification agreement is an agreement by which one party agrees to indemnify, reimburse or restore a loss of another upon the occurrence of anticipated loss of another upon the occurrence of anticipated loss
Independent contractors: an individual or a company that contracts to perform a particular task using their own methods and is subject to the employers control only as to end product or final result of his work

Waivers: the participant or service user contractually releases the business from liability for negligence by the corporate entity or its employees
Independent contractor

the corporate entity is responsible for

(1) for using reasonable care in selecting a competent independent contractor and for inspection after completion
(2) for keeping premises reasonably safe for invitees and employees
(3) for unhealthy dangerous activities

Financial sponsorship exists when the sponsoring organization provides financial support but exercises no control over the activity
whether the sponsoring organization is liable for injuries that occur due to negligence depends upon

(1) was the person in charge an agent of the organization
(2) did the organization have control over the activity?
(3) was a duty owed to the participant

Program Sponsorship: exists when an organization or entity organizes an even or maintaining control over an event
Joint programming: when more than one entity is involved in program sponsorship
Governing organizations lend their name to such events of sports or other activities
Joint venture: an agreement between two or more persons, ordinary but not necessarily limited to a single transaction for the purpose of making a profit
Apparent authority is a legal doctrine that describes a situation in which the principal treats a second party in such a way as to lead a third party to think that the second party is an agent of the principal or has authority to bind the principal
under tort law, when a person is injured due to negligence or carelessness of another person, the injured party may file a claim for compensation for the injury
The negligence standard is the standard of care that the actor protects the participant from unreasonable risk or harm. Held liable for actions reaching the level of ordinary negligence
The reckless standard maintains that the actor is not liable for injuries resulting fom his or her negligent actions, but is liable only if injury results from actions that go beyond the scope of ordinary negligence
Rationales that sports are held to the reckless standard

(1) first, the heat of competition and the desire to win. Results in play involving a very high level of intensity
(2) there is a belief that participant in bodily contact and competitive games willingly assume greater risks than do participants in non-physical contact sports- thus justifying a different standard of care depending on the nature of the activity
(3) finally, it was felt that provisions in the rules of the sport often provide penalties such as ejection from the game, yardage penalties-penalties that might be more appropriate than legal solutions

Recreational activities and some individual and non-contact sports rationale

(1) the negligence standard would have a chilling effect on participation
(2) the courts may not have the ability to discern what constitutes reasonable conduct in informal sports activity- but egregious conduct would be easily identified
(3) the negligence standard would spur a flood of litigation and
(4) while content may not be intended it does often occur

Inherent risk set by (knight v Jewett, 1992)
some states don't apply some standard to non-competitive a non-contract recreational activities as risks come by the nature of the activity. Negligence standard has been applied to roughhousing
Negligence defenses come from; common law: the body of principles and rules of action that derive their authority principles and rules of action that derive their authority solely from the prior judgments and decrees of the courts
contract law: the body of law that governs the rules regarding binding agreements between parties.
Statutory law: that body of law that us created by acts of legislative body
20 types of defenses (p.77)
Primary assumption of risk is a legal theory by which a plantiff may not recover for an injury received to a known and appreciated danger
Socrates was a stonemason
basic facts shows assumptions and backdrop to the content show when it will be paid
proportion of agreement: joint agreement
force majure: in the event of a disaster what happens
integration clause: full expression of the agreement
Common law: based on legal custom and precedent
Statutory law: based on legislation
Principles of common law: precedent, stare decisis: look to past
Writ of Certorari: petition for a supreme court hearing can only be heard in an appellate court
A company branches a contract by contest that allows someone to win a world series ticket but the back of the ticket says they can't
company's claim to terminate a pregnant athlete purpose, intent of contract
Begley v. mercer: Begley gets a sports scholarship follows
NCAA rules what if 2.9 GPA out of 8.00 is he eligible

the school can get out of the contract because its too low

Element of a contract

offer
acceptance
consideration
intent
if there is a pre existing contract then you can't be in a new contract for the same thing

essential terms of an offer:

parties
subject matter
term and place
consideration

statue of frauds: real estate needs to be in writing
parol evidence rule: can't use prior statements to change things after the fact of the written contract
Voidable contract: one party has the ability to enforce or reject real obligation
Remedies for breach of contract: recession, monetary damages, specific performance
No punitive damages ina breach of contract case: no more money than you are entitled to
Liquidated damages: specifies the damages will be in the event of a breach
3 elements must exist for a successful primary assumption

(1) the risk must be inherent to the sport or activity
(2) the participant must voluntarily consent to be exposed to the risk
(3) the participant might know, understand, and appropriate the inherent risk of the activity

the participant must voluntarily consent to exposed to the risk (3) the participant
A person who is playing recreational league softball, someone in a pickup basketball game or on a varsity football game is playing by choice: voluntarily consent
Secondary assumption of the risk:involves the voluntary choice or conduct of the participant to encounter a known or obvious risk by the negligent conduct of the service provider, or the fail to follow rules or heed warnings set down by the provider
Comparative negligence to comparative fault: appropriate damages on weighing the provider negligence against the participant negligence
Informed consent agreement: a formal contract used to protect the provider from liability for the informed treatment risks of a treatment or program to which the signer is subjected
agreement to participate: a document which helps to protect by informing participants in recreation, sport, or educational activities of (1) the nature of the activities (2) the risks to be encountered through participation (3) the behaviors expected of the participant
indemnified agreement: an agreement by which one party agrees to indemnify or reimburse another upon the occurrence of an anticipated loss
comparative fault is a method for appropriating damages awarded based on the fault or blame or the relative degree of responsibility for the injury
An independent contract for services involves an agreement between the corporate entity and an individual or a corporate entity
Comparative fault: a method for appropriating damages awarded based on the fault or blame or the relative degree of responsibility for the injury
Pure comparative fault: the award to the plaintiff is reduced by the percentage of fault assigned to the plaintiff
modified comparative fault: the theory that the plaintiff is not entitled to recovery if the plaintiff is substantially of fault
Contributory fault exists when the conduct of the plaintiff in any way helps to cause or aggravate the plaintiff's injury
Charitable immunity: a doctrine that relives or immunized charitable organizations from liability for tort
Recreational user immunity protects certain landowners who gratuitously allow others to use their property for recreational purposes
Notice of claim": statues relate usually to tort claim statues and provide that the plaintiff must provide the defendant public entity with a notice of intent to file suit
Congress passed the Federal tort claims act with the intent of waiving sovereign/governmental immunity, thereby allowing liability exposure for the federal government comparable to that of the private sector
State tort claims enable individuals harmed by torts including negligence, to file suit under certain conditions

(1) to rescind sovereign/ governmental immunity at the state level in those states and
(2) to enumerate these areas or acts for which immunity was retained

The governmental/proprietary doctrine classified the functions of public entities as either a fundamental governmental function for which immunity was granted or as a proprietary function (e.g.) selling game refreshments) for which no immunity was granted
The recreational user statue is a law designed to provide protection for the private-property owner against lawsuits by parties injured while on the landowner's property for recreational purposes
The Volunteer Protection Act was signed into law in 1997 and is intended to provide broad protection to volunteers nationwide under the following conditions.

(1) the volunteer was acting within the scope of the volunteer's responsibility
(2) If appropriate or required, the volunteer was properly licensed certified or authorized by the appropriate authorities for the activities or practice in the state
(3) The harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or conscious flagrant indifference to the rights or safety of the individual harmed by the volunteer
(4) The harm was not caused by the volunteer operating a motor vehicle... for which the state requires an operator's license: or ... insurance
Acts not encompassed by the statue

(1)crimes of violence or terrorism
(2)hate crimes
(3)sexual offense convictions
(4)violation of federal or state civil rights law, and
(5) those committed while under the influence of drugs or alcohol

Release is a settlement agreement signed after the injury
A disclaimer is a statement by which the provider preclaims that the provider is not liable for injury
An informed consent is a contract by which a provider informs the signer of the risks and benefits of treatment or training program and secures participants consent to participate and assume the informed risk: provides to participate and assume the informed risk: provides no protection from liability for negligence
A parental permission form provides no protection from liability for negligence
Injuries in sport and recreation come from one of three causes

(1) inherent risks of the activity ( common adjacent where no one is at fault)
(2) negligent acts ( careless acts by the service provider, its employees, the participant or others, and
(3) more extreme or aggravated acts ( by the service, its employees, the participant or others

Aggravated acts can include gross negligence, reckless conduct, willful/wanton acts, and intentional acts
willful/ wanton acts, and intentional acts
The primary function of the waiver is to protect the service provider from liability for injuries resulting from the ordinary negligence of employees
Public Policy: that principle of law under which freedom of contract or private dealings is restricted for the good of the community
Waivers are governed by contract law
waivers are against public policy and unforeseeable

(1) when an activity involves an essential service or public interest
(2) when the waiver conflicts with a statutory duty
(3) when the waiver is ambiguous and not understood by the signer
(4) when the contract is between parties with unequal bargaining power (e.g. employee and employer ); and
(5) when the waiver is too broad in scope (includes gross negligence, reckless conduct)

admiralty law is federal law that applies to activities on any navigable waterway: can be applied to swimming, body surfing, wakeboarding, snorkeling, fishing, powerboat rides, and activities on cruise ships
businessmen disfavor waivers because they must be free to bargain over which party is to bear the risk of damage
cruise lines are held to a standard of reasonable care
Diallo V. Riding safely inc.(1997) establishes service provider is bound by a contract while a minor is not
parental waiver: parent signs for child
parental indemnity agreement: require the parent to indemnify the provider
Parental arbitration agreement: parent agrees to repay the provider for any loss suffered due to the participation of the minor: California, Florida, Hawaii, Louisiana, New Jersey, and Ohio don't follow this
Format of a waiver:

(1) a stand-alone document: one which the only function of the document is to provide liability protection for the service provider
(2) Waiver within another document such as a membership agreement, an entity form, or agreement
(3) a group waiver: which generally includes at the top of a sheet on which several parties sign (4) a disclaimer of liability often found on the back of tickets and sometimes in the form of posted signage

participant agreement: a stand-alone document that combines the waiver of ordinary negligence with an assumption of inherent risks and indemnifies the combines the waiver with both an assumption of inherent risks and on indemnity agreement. Thereby providing protection against liability for both injury due to provider negligence and the inherent risks of the activity. In addition the document is designed to improve rapport and understanding between provider and participant (2) increases the participants understanding of the rewards and risks of participating in the activity; (3) serves as an exchange of information between the parties; (4) prepares the participant psychologically for any discomforts, making legal action less likely (5) allows the participant to make more informed decisions as to participation; (6) acquires certain agreements and permissions (including emergency actions) from the signer
The informed consent agreement is a document used to protect the provider from liability for the informed, treatment, risks of treatment, program or regimen to which a signer is subjected

Informed consent comes from these principles

a person's inherent right to control what happens to his or her body
the physician's fiduciary duty to the patient ( to warn the patient of risks and moral, and legal concept that is ingrained in American culture

the separate but related components of informed consent: disclosure and consent
Battery: the intentional, unpermitted, unprivileged, and offensive touching of the person of one individual by another
Obtained consent is a communication process by which the physicians are required to inform regarding the nature of the proposed treatment, foreseeable risk and discomforts, anticipated benefits, alternative procedures and instructions regarding food, drink or lifestyles
agreement to participate: a document intended to strengthen the defenses against liability for injuries resulting from inherent risks of the activity
the agreement to participate is a document by which the signer is

(1) made aware of and acknowledges the knowledge of the inherent risks of the activity and
(2) is informed of the rules of the activity and behavioral expectations and agrees to abide by them

In order to assume the inherent risks, like informed consent, the signer

(1) must have knowledge of the nature of the activity
(2) must understand the activity in terms of his or her own conditioning and skill, and
(3) must appreciate the type of injuries that may occur: can be used for adults and minors

A permission slip informs the entity that the parent grants permission for the youngster to participate
The concluding section should contain six items that are

(1) a statement by which the participant affirms knowledgable, understanding, and appreciation of the inherent risks of the activity
(2) affirmation that participation is voluntary if that is the case;
(3) an assumption of risk statement
(4) notice of the procedures to be followed in the event of an emergency actions
(5)insurance requirements
(6) a space for the signature of the participant of the bottom of the agreement

The Assumption of risk agreement is a pact by which the participant or client assumes the inherent risks of the activity
Premises liability is the body of law which makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises
An invitee is a person who has an express or implied invitation to enter or use another premise
Patrons of a sports and recreation business would typically be classified as business invites because they are expressly invited onto the land and their presence also provides the business with some economic benefit.
People who go to the park are public invitees since the visitor is invited to enter and remain on the property for a purpose for which the property is held open to the public
A licensee is one who has permission to enter or use another's premises, but only for ones own purposes and not for the occupier's benefit
In cases involving trespassing, it is only required to avoid willful and wanton misconduct and to refrain from making the premises more dangerous than the trespasser would normally expect
Attractive Nuisance is an exception to the general liability standard for trespassers defined as a dangerous condition that may attract children onto land, thereby causing a risk to their safety: can be applied to trespassers
A recreational user is someone who enters upon land for the purpose of engaging in a recreational activity covered under the statue and is recreating on land suitable for the activity and covered under the statue
Actual Notice refers to situations when the premise owner becomes aware of a problem or defect on the land
Constructive notice arises in situations where the facility manager should have discovered the danger during the course of prudent facility management, including routine facility inspection (Shill v.T's 2006)
established under the alternative theories

(1) the dangerous condition existed for a sufficient amount of time so that it would have been discovered by the exercise of ordinary care it would have been discovered by the exercise of ordinary care
(2) the dangerous condition was part of a pattern of conduct or a recurring incident
The distraction exception applies where the person would be distracted from noticing the "open and obvious" danger and because of the distraction, fail to take reasonable precautions to avoid the risk of danger

Limited duty rule: a sports facility operator limited duty of care has two components

(1) first, the operator must provide protected seating sufficient for these spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion
(2) the operator must provide protection for spectators in the most dangerous section of the stands (Athens v. Glens falls city such. Dist. 1981). can be satisfied with screened seats

The obligation of the facility owner/operator to anticipate foreseeable uses and activities by invitees from foreseeable dangers takes into consideration the normal uses of the facility and frequently occurring incidents or activities by patrons
In the context of premises liability "totality of the circumstances" test requires landowners to take reasonable precautions to prevent criminal actions against invitees
Real property is land and generally any structure that is affixed to, erected on the land
2 types of rights in real property

(1) fee simple absolute: a landowner who has complete control of the property "the right to exclude others, to sell or contract away one or more rights, and to make any use of property not restricted by law
(2) less than fee simple describes the use of property that is generally based on contract
purchase falls under the fee simple absolute category of rights

Gifts are another type of acquisition under the fee simple rights of real property. Those can be made outright by the donor as part of an annuity plan, or as a result of an individuals will
Dedication corresponds with the fee simple absolute rights
It generally decreases open space, it increases the demand on remaining open spaces or existing park and recreation facilities
Typically two elements are necessary for complete dedication

(1) the intention of the owned to dedicate, and
(2) acceptance by the public

Eminent domain or condemnation: the taking of private property for public use Connor occur without just and fair compensation to fire owner
Eminent Domain is the power of the government to take private property, whereas condemnation is the vehicle through which this power is generally exercised
adverse possession: the transfer of property ownership overtime in an actual, hostile, open, continuous and exclusive visible, and distinct possession usually over a specified period of time
An easement is defined as extending to certain individuals the right to use the land of another for a specific purpose
An affirmative easement allows the right of use over the property of another such as allowing access to an adjacent property owner for her commercial guests to use a zipline erected on her property (Wykidal v.Bain 2015)
A negative easement restricts use in a particular manner
Leases are used extensively in sport and recreation
situations and are considered a common method of acquiring the use of kind or buildings for a specified length of time
Corporative agreements are frequently used to allow two organizations to share the same facilities
The public trust doctrine provides that submerged and submersible lands are preserved for public use in navigation, fishing, and recreation
Zoning: dividing "a municipality into geographical districts or zones and then regulating the nature and use of land in the various zones
The control of activities and the use of property are to ensure the proper use and development of property for current and future public needs
Accessory uses are defined as a secondary use of real property that occurs occasionally and is related to the primary purpose of the property
In some states, the immunity protection provided by the statue is targeted toward private landowners, whereas in other states owners a public land are also afforded immunity
A second characteristic of the recreational user statute is that a landowner Connor charge a fee for individuals to use the premises
A third characteristic of recreational user statue is that land is being used for recreational purpose
A final general characteristic of the recreational user statue involves obligations of the landowner . The owner's only obligation under the statue is to provide a warning for any known concealed danger that would not be apparent to the recreational user. Open and obvious hazards aren't included
Nusiance is an area of property law dealing with activity or use of one's property that produces material annoyance, inconvenience, and discomfort for those around the property
2 classifications

public nuisance are acts that obstruct the enjoyment or use of common property or cause inconvenience or damage to the public criteria

(1) the condition complained of has a natural tendency to create danger or inflict injury on person or property
(2) the danger created is a continuing one
(3) the use of land is unreasonable or unlawful
(4) the condition interferes with a right common to the general public

Private Nuisance is defined as a non-trespassory invasion of another interest in the use or employment of one's own property courts are usually expecting plantiffs to present evidence showing an injury specific to the use and enjoyment of his or her land

Statue of repose prevents a cause of action from an unsafe condition of real property occurring more than 20 years after the date of improvement to the property
It precludes liability for latent defects in design, construction, or maintenance of real property after the specifies time period
Attractive nuisance is another dimension of nuisance law that is focused on children entering property because they are attracted by a unique, artificial condition such as a swimming pool
Emergency Care can be defined as the provision of medical assistance to an injured person in an urgent, immediate unexpected circumstance. Staff has a duty to provide competent medical assistance in a timely manner
elements of emergency care

(1) emergency planning
(2) appropriate personnel, injury assessment
(3) adequate equipment/certifications
(4) implementation of emergency procedures

Emergency Response plan is according to the needs of individual emergency situations. " a predetermined plan to deal with an emergency in an organized and efficient manner"
chain of command

(1) charge person, who assumes the overall responsibility and the specific training
(2) call person, who class and meets summoned emergency personnel
(3) control person who is responsible for keeping people away from the scene

recreation and sport managers must ensure staff members have both the necessary and medical equipment to respond in a medical emergency
Established sport. emergency care for student athletes must be an important consideration in any school setting must provide prompt an competent emergency care
Kleinknecht V. Gettysburg: establishes colleges duty to student-athletes recruited by the university
Supervision is a broad term denoting responsibility for an area and for the activities that take place in that area and for activities that take place in that area and includes coordinating, directing, overseeing, implementating, managing, superintendent, and regulating
supervision is a broad term denoting responsibility for an area and for the activities that take place in that area and for the activities that take place in that area and includes coordinating, directing, overseeing, implementing, managing, superintendent, and regulating
duty to supervise sources:

(a) a duty inherent in the situation
(b) a voluntary assumption of a duty
(c) a duty mandated by law

special relationships: school/student fitness club/ client etc.
when filing suit alleging improper supervision, plaintiffs must establish both that injury was reasonably foreseeable under the circumstances and the defendants negligent behavior was the proximate cause of the injury
When the plaintiff alleges that the supervisor's absence was the proximate cause of the injury, the plaintiff must prove that the supervisor's presence would have prevented injury
non-negligent supervision ethics supervisors taking action to prevent reasonably foreseeable injuries to participants
Types of supervision

General supervision: overseeing individuals or groups involved in an activity that does not require consent, unremitting scrutiny of the activity or facility
Specific supervision is constant and continuous, the type of supervision that is more appropriate for individuals or small groups receiving instruction, involved in high-risk activities, or using areas that have the potential for serious injury

organizations should hire only supervisors who have exhibited competence in properly supervising the participants involved, activities conducted, and facilities utilized. When possible supervisors should be regular full time employees
a standard " as a model accepted as correct by custom consent or authority and a criterion for measuring acceptability, quality or accuracy
six primary duties of supervision

(1) effective planning
(2) proper instruction
(3) warning of risks
(4) providing the same environment
(5) evaluating the physical and mental condition of participants
(6) providing emergency care as a general rule organizations are under no legal duty to provide transportation

when an organization provides transportation it owes a duty of care with respect to such transportation
The transportation of participants to and from recreation or sport events and activities can be accomplished in one of three ways

(1) through an independent contractor
(2) by using an organization-owned vehicle, or
(3) privately owned vehicles( owned either by the employee or by a non-employee third person

Independent carriers can be one of 2 types

(1) common carrier: one that is in the business of transporting goods or person for hire
(2) private carrier: only hires out to deliver particular goods or persons

Independent contractor factors: who has the right to control the manner in which the work is conducted the method of payment, the right to hire and fire employees, the skill required, and who furnishes the tools, equipment, or materials needed to accomplish the work
Certificate of insurance verifies the company has sufficient liability insurance for the company and each vehicle and the company's U.S. Department of transportation number
In Foster V. BOard of trustees: the Kansas court defines course and scope of employment as the employee performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment
Ultra Vires act: an act that is outside the course and scope of employment
Sovereign Immunity: the legal theory that a person cannot sue a governmental body without its permission
Tort Claims Acts: waive sovereign immunity and create liability for governmental agencies under certain circumstances
when an employee, as a part of his/her employment, uses a personal vehicle for transporting students or patrons, a principal-agent relationship is established
An organization is vicariously liable for employee negligence committed within the course and scope of employment: even true if an employee is driving another emplyee's vehicle ( Murray v varger)
products liability causes typically represent an area of negligence resulting or sporting good categories of product defects

(1) design defects occur in products that cause harm as a result of issues related to the faculty design of a product
(2) manufacturing defects refer to production errors that result in flaws to an otherwise defect-free product, design, and manufacturing process
(3) marketing defects occur when the warnings or institutions accompanying a product are inadequate rendering the product not reasonably safe

Strict Liability : a defendant can be held that liable without fault to determine if something is unreasonably dangerous you can use the risk-utility balancing test
Privaty of contract: with the defendant to claim breach of warranty as a cause of action
implied warranty of merchantability: promising that a product is of fair average quality
implied warranty of fitness: promising that a product is fit for the ordinary purposes for which such goods are used
Express Warranty: may be provided as an oral or written statement of fact, premise, description, or model that a buyer relies upon when purchasing products
misrepresentation of warranty: occurs when claims are made primarily in the marketing or selling shade of a products life, which are untrue or misleading
Today, common law and statutory law identify hotels, motels and other establishments providing lodging as places of public accommodation and continue to obligate hotel operators to receive all guests
A bailment is defined as the delivery of goods or personal property by one to another with the expectation the property will be returned in the same conditioned it was received
The individual who gives his/her property to another is known as the bailor
The individual who accepts responsibility for the property is known as the bailee
a restricted hotel guest has the right to privacy and peaceful possession of his/her room without disruption from hotel personnel
Spere of control p.203
Jurisdiction: the authority of the court to decide a matter of controversy as well as maintain control over the subject matter and parties to the dispute
In order to establish purposeful availment, the service provider must

(1) first have direct, relevant contract with the state
(2) second, those contracts must be purposeful rather than random
(3) thirdly, the service provider must seek some benefit or profit by availing itself to the jurisdiction

A positive website contains information about the hotel or travel destination available to the general public, but not providing a way to take reservation is viewed as an insufficient basis for establishing jurisdiction
An interactive website is generally characterized by information, e-mail communication, detailed descriptions of goods and services, and online sales.
Related to issues of jurisdiction is forum non conveniences which refers to the discretionary power of the court to parties and justice would be better served if the case was brought forth in another forum
A common carrier is one who takes on the responsibility to transport from place to place any person who chooses to employ it for hire it owes its passengers the highest degree of care with the passanger-carrier relationship continuing until the passenger has had reasonable opportunity to reach place of safety
The contract between an airline and its passengers is known as a tarrif
Maritime law a system of law relating to navigatable waters
Athens convention: limits liability of cruise ships to passengers abroad cruises not touching a U.S. port
Agency Law: An area of law governed by a combination of contract law and tort law
Principal-agent relationship: created when both parties agree that the agent has authority to represent the principal and can enter into contracts on the principals behalf
Formation of the agency relationship can occur through an express agreement, an implied agreement, or an apparent agency
An apparent agent is one whom the principal allows others to believe is acting as its agent, regardless of whether or not the principal has actually conferred that authority
Assault and battery genera;;y involve either the threat of bodily harm or an unlawful touching of another person without justification or excuse
Damages: monetary awarded to the plaintiff
double jeopardy only applies to crimes not civil action
reasons for less frequent criminal prosecutions for assault and battery the civil lawsuits in sports

(1) the culture of sport is averse to the idea that someone should be held criminally responsible for causing har to another person in an organized sporting or recreational activity,where harsh and even violent physical contact are "part of the game"
(2) second the standard of proof ina criminal case is a much higher burden than a civil case, thus criminal prosecutions are more difficult to win and
(3) third there is a societal reluctance to prosecute-never mind convict- a class of people who pursue the ideal of an active and healthy lifestyle and who often venerated for their on-field achievments

Elements of Assault: an intentional act by the defendant, the causes reasonable apprehension on the part of the plaintiff, of imminent harm or offensive contact
Elements of Battery: intentional conduct by defendant, causing harmful or offensive contact to plaintiff, without consent
Consent, or rather the absence thereof, is an essential element in proving battery, and many cases will hinge whether the plaintiff could be constructed to have given his or her consent to participate in the activity that resulted in allegation of battery
Defense to assault and battery: expressed or implied consent, privilege immunity, insurance
An action that might otherwise resulting liabilities privileged if the defendant acted in furthermore of an interest of such social importance that is entitled to legal protection, even though the plaintiff suffered harm
Immunity prevents even the initiation of lawsuit or prosecution
Insurance: coverage by a provider
Compensatory/ actual damages : those which compensate the plaintiff for their injury sustained; the rationale being that such damages would restore the injured party to the position he or she would be in but for the injury
Punitive/ exemplary damages may be awarded in cases of particularly grievous circumstances where the perpetrator for horrific or heinous behavior and to make an example of him
Socrates wifes name was xanthippe: means a nagging wife
Tort: a violation of duty one has to another which causes harem
2 types: intentional and unintentional
Torts are non-contract based
Unintentinal torts ( negligence)
4 elements:

duty
breach of duty
causation
damages/injury

but for... would happen but for
standard of care: reasonable person: how does a person act
freak incident: no forseeability
Dalsgraf v. long island RR: fireworks going off and involving someone far away not foreseeable that the person was far away could be injured
Maddox v New York Yankees:
just because there is a statue doesn't mean you can't be held liable. standard of care never changes but the level of care might
Hackbart case: professional football injury a player hit who wasn't a part of the play but no penalty
defenses against liability: assumption of the risk: primary and secondary

secondary not following rules
waivers and releases, immunity

contract law-ordinary negligence pure and traditional comparative fault
invitee must inspect the premises for hazards, remove or repair damages
licensee: warn people of known hazards
intentional torts: deliberate wrong done to others that cause them harm
Elements: duty, breach of duty( intentional act) proximate cause( liable for everything that happens), damages/injury
intention can be one of two things: acted with the purpose of harming someone, nonaccidental act
types of assault ( threat) and Battery (actually doing

Defenses: one of the elements is missing, self-defense, defense of 3rd persons, sovereign/governmental immunity, charitable

Defamation: liable and slander: untrue claims against someone truth is a defense

elements needed: false statement, publication to third persons, fault or negligence of the publisher, damages

per se defamatory: Accuse of criminal conduct, loathsome disease
The court system is made up of the state, federal, and administrative courts.

True

A plaintiff is the party that is being sued.

False

In all civil cases, the parties have the right to appeal all the way to the US Supreme Court.

False

A severability clause:

states that if part of the contract is void, the rest is valid

A legally binding contract has four main elements: offer, acceptance, consideration, and intent to form a legal relation (i.e. meeting of the minds).

True

If you breach the contract to sell a unique item of sports memorabilia, _____________ may be available since monetary damages will not suffice.

Specific Performance

_______________ means that the parties have jointly agreed to the amount of damages to be paid by a breaching party

Liquidated damages

_______________ is defined as the legal ability to bind yourself to a contract.

Capacity

Consideration is the price of a bargain that one party must pay for what he/she obtains from the other party.

True

A counteroffer is the same as acceptance with flexibility to tweak the terms of the contract.

False

An express contract must be in writing to be legally valid.

False

In the following citation: 93 Cal.App.4th 276, what does the number 93 indicate?

Volume number of the case

A statute of limitations is the period of time in which a lawsuit must be filed.

True

Sole proprietorships have unlimited life.

False

Negligence and intentional torts are the same thing.

False

Only three of the four elements of negligence must be supported through the presentation of evidence for a valid negligence claim.

False

The scope of liability in negligence cases is governed by whether the risk of injury is foreseeable

True

The neglect or failure to fulfill in a just and proper manner the duties of a recreation or sport service provider is known as:

Breach of Duty

The standard by which the court determines whether or not there has been a breach of duty in a negligence claim is known as:

Reasonable Person Standard

The best example of an inherent risk is:

A softball player breaking an ankle when sliding into second base

Which of the elements of negligence is defined as an act from which an injury is the natural, direct, and uninterrupted consequence?

Proximate Cause

A formal pleading to the court that must articulate both the factual and legal basis for the claim is called a:

Complaint

Negligence falls under tort law.

True

The duty owed by a landowner or operator of a facility is:

Dependent upon the status of the person on the property

A person who is on property with the consent of the landowner and who brings an economic benefit to the landowner is known as a:

Business Invitee

A person attending a free concert in a city park would be considered a:

Public Invitee

A landowner does not have to warn of dangers that are ____________ to the person on the property.

Open and obvious

In order to successfully pursue a negligence claim of improper supervision, what must the plaintiff prove?

That the injury was foreseeable and that inadequate supervision was the proximate cause of the injury

Under traditional civil law, if there is battery, there is automatically assault.

False

A sports broadcaster who makes an on-air statement that a MLB player uses performance enhancing drugs without knowing whether or not the statement is true could be liable for:

Defamation

A person’s conduct constituting assault and battery is actionable in both criminal and civil law.

True

Self-defense is a claim that may be used to defend against assault or battery.

True

A civil assault can be made upon a sleeping victim.

False

The tort of assault can be committed without actually touching, striking, or doing bodily harm to the victim.

True

Punitive damages are also known as:

Exemplary Damages

Traditionally, libel has been considered to be much more damaging to the plaintiff than slander.

True

A reporter unexpectedly overhears a private conversation between two teammates and consequently publishes it which embarrasses both athletes. What legal violation has occurred?

None of these

Which of the following would be considered libelous?

A cartoon in a newspaper depicting the parks & recreation director embezzling funds from youth sport leagues

____________________ is an absolute defense to all claims of defamation.

Truth

What are the two components of every civil lawsuit that a plaintiff must establish in order to win?

Liability and Damages

Which of the following is not true with respect to damages available for a breach of contract action:

Punitive damages are generally only recoverable upon a showing of material breach.

Duty to mitigate is the duty of a party who has been wronged by a breach of contract to sit idly by and allow damages to accumulate

False

Contracts falling under the Statute of Frauds are unenforceable unless they are in writing.

True

The ________________ rule provides that once the parties have agreed to a final and complete agreement, no prior oral or written evidence may be introduced to vary the terms of the final contract.

Parol Evidence or Parol Evidence Rule

recreation and sport managers should be aware that supervisors and organizations can be held liable for the intentional torts committed by their employees under the employer-employee doctrine of respondent superior
A significant and practical, reason for naming parties in addition to the actual tortfeasor as defendants in a suit is that often times the perpetrator is judgment proof, meaning that he or she does not have the assets with which satisfy the plaintiff award for damages
Recreation and sport managers should be aware that supervisors and organizations can be held liable for intentional torts committed by their employees under the employer-employee doctrine of respondent superior
A significant and practical, reason for naming parties in addition to the actual tortfeasor as defendants in a suit is that oftentimes the perpetrator is judgment proof, meaning that he or she does not have the assets with which satisfy the plaintiff award for damages
Legitimate syllogism:

all men are mortal
Socrates is a man
Therefore Socrates is mortal

Illegitimate syllogism

nothing is better than god
a ham sandwich is better than nothing
a ham sandwich is better than god

no punitive damages in negligence and contract
defamation is a false statement of fact that tends to injure reputation
2 types of defamation: libel and slander
free speech v individual rights
promote balance between plaintiffs rights
more proof for public official: statements must be made with actual malice
public figure: must prove actual malice
private figure: don't have to prove actual malice
Defenses: truth, privilege: absolute, qualified, fair content, statue to limitations
Absolute privilege: for persons in these roles there can be no liability for statements regardless of the falsity or disregard
Qualified privilege: without knowledge of falsity, by a person with reason to communicate the statement
Fair comment: a form of qualified privilege applied to news media publications
special damages: reflect actual pecuniary losses, as a direct result of the defamatory comments i.e. lost wages
General Damages: Reflect non-qualifiable damages i.e. presumed damages to one's reputation
Right to Privacy
Invasion of Privacy: an interference with the right to be left alone
four ways to intrude on privacy: unreasonable intrusion on the seclusion of another appropriation of another's name or likeness
Unreasonable disclosure of private facts: 2 issues

whether disclosure information was truly private or public
whether

false light intrusion: put people in a light that associates with a wrongdoing
criminal law is based on society need to be free
defense in criminal law: consent and self-defense: consent is normally not a defense for criminal battery
"rules of the same test" a participant would not consent to acts that were illegal under the rules of the sport
under "in connection with" standard, a participant consensus to all harm which is in connection with a sport or game
Ticket scalping: reselling of tickets at a price higher than the established value. Varies among states
Hazing can cause to civil litigation
when hazing is foreseeable the school admin can be held liable through negligence
can't consent to hazing
constitutional law
Judicial Review: as a general rule the courts will decline to intervene in the internal affairs of private, voluntary
Organizations
standing, state action: constitutional claim requirements
due process: 5th amendment supports this and 14th amendment
an expected course of legal proceedings
participants in athletics is a privilege
substantive due process requires the rule or law to be fair and reasonable in application as well as content
does the rule have a paper purpose? does the rule clearly relate to the accomplishment of the purpose
violations
lesbians not being able to be openly gay: free speech, association
Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him
Elements of a defamation claim:

a false and defamatory statement of fact
publication to a third party
fault or negligence of the publisher
damage or actual injury

proving negligence or fault varies depending on if they are a public or private figure.
for public figures, you must show actual malice, it must show the speaker knew the statement was false or published with a total disregard for whether it was true or false
A private person would only have to prove that the statement was published negligently, which means the speaker failed to exercise reasonable care to determine whether the statement was true or false. Must prove actual injury (Gertz v. Robert Welch inc. (1974)) Actual injuries include impaired of reputation and standing in the community, personal, humiliation and mental anguish and suffering
Defamatory comments made verbally such as those heard on television, exemplify slander
libel is defamation of written comment
Inherently defamatory if

accuses the plaintiff of criminal conduct
accuses the plaintiff of having a loathsome disease
accuses the female plaintiff of being unchaste
accuses the plaintiff of misconduct in a public office
injuries to the plaintiff's profession, business or trade

New york times Co.V. Sullivan: the supreme court prohibited public officials from recovering damages for defamatory comments relating to official conduct unless the plaintiff could prove with convincing clarity that the statement was made with actual malice
public official " someone who works for a government and draws a salary from the public payroll
A plaintiff may not escape public figure status if he voluntarily does not depend on the desires of the individual
2 considerations to become a public figure

the plaintiffs access to the media, and
the extent to which the plaintiff, by virtue of his position in the community or involvement in particular matter of public concern, can be said to invite public comment and attention
Curtis publishing co. v.Butts: a public figure is an individual who has because of his or her activities " command sufficient continuing public interest"

Gert v. Robert Welch inc. introduced limited purpose public person " an individual ( who) voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues
to determine this Daubnmire v. Sommers, 2004

there is a public controversy
the plaintiff played a sufficiently central role in that controversy
the alleged defamation was germane to the plaintiff's involvement in the controversy

The private figure classification refers to individual citizens who are not involved in public issues or employed as a public official
Rosenbloom v Mettromedia inc. (1971), all publication regarding matters of general interest or public concern should be protected by requiring plaintiffs to prove actual malice
Defense to Defamation claimed

Truth is an absolute defense to all claims of defamation and substantively correct or truthful
privilege, a particular and peculiar benefit or advantage enjoyed by a person, company or class, beyond the advantages of other citizens
neutral reportage; fair reporting available
fair comment

to media defendants in certain circuits: media defendants can publish statement made by responsible or prominent organizations even though the publisher doubts the variety of the statements
Types of Privilege :

absolute privilege is enjoyed by those in

a legislative forum the judicial forum
administrative and executive branches of government i.e. there can be no liability for statements regardless of their falsity or disregard for the truth

Qualified Privilege applies to statements made

without knowledge of falsity
by a person with reason to communicate the statement, and
communicated only to a person with a " justifiable interest in knowing"

Fair Comment is a form of qualified privilege applied to news media publications relating to the discussion of matters which are of legitimate concern to the community as a whole because they materially affect the interests of all the community
Privacy is the right to be left alone; to live as one chooses free form assault, intrusion, or invasion except as they can be justified by the clear needs of the community under a government of law
4 types of invasion

unreasonable intrusion on the seclusion of another
appropriation of another name or likeness
unreasonable disclosure of private facts
publicity that unreasonably places the other in a false light before the public

one of the torts not all 4 must be proven for a successful claim of invasion of privacy

Unreasonable intrusion on seclusion: the intrusion of ones home or illegally searching someone's personal belongings or documents

This is true even if information obtained is truthful and it serves the public's right to know: Bilneey V. Evening Star Newspaper co.(1979) Anonymous sources are protected

Appropriation: the unauthorized use of a person's or likeness for commercial purposes such as advertising or trade

This allows sports figures some control over the extent to which their name and likeness can be commercially exploited

Right of Publicity: established by (Breux and Breux P., 2010) is redress in a right of privacy dispute is based on mental duress resulting from " not being left alone" whereas the focus of redress in a right of publicity case is the financial less cause by appropriation of an individuals identity for commercial exploitation ( Doe v. TCI Cablevision,2003)
2 major issues courts will address when it comes to public figures

whether the disclosed information was truly private or was it public, and
if the disclosed information was highly offensive to an ordinary person

For a plaintiff to succeed in a public disclosure suit, it must be shown that the disclosed publicity was a situation in which there was a legitimate expectancy of privacy
A public figure is someone who "his (or her) accomplishments, fame or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character has become a public personage
Justifications for loss of privacy protection is the result of three considerations:

public figures have, to a certain extent, sought publicity and have consented to it.
their personalities and affairs have become public and one no longer private business
the press has a right to inform the public of those who have become matters of public interest

not punishable if they can be viewed as highly offensive to an average person

False light intrusion: under this theory, an invasion of privacy occurs when publicity places the plaintiff in a false light in the public eye
Fiduciary duty: a person having duty, created by her or his understanding to act primarily for another benefit in matters connected with the understanding

A fiduciary duty requires that a sport agent act with complete honesty in all dealings and avoid any personal conflicts of interest, the interests of the athlete must come before those of the agent

Tampering is an alternative term sometimes used to describe when one team attempts to lure a player who is clearly under contract to another team
International infliction of emotional or mental distress: a tort claim for intentional conduct that results in extreme emotional distress and is meant to protect a persons emotional tranquility

Elements

the defendant acted intentionally or with reckless disregard of the probability of causing emotional distress
the defendant's actions must have been extreme and outrageous
the action must have caused severe emotional distress

Requirements for negligent infliction of emotional distress

the defendant owed a duty to the plaintiff not to create foreseeable risk of inflicting emotional distress; it may be general duty or one created by statute; an unreasonable risk of causing emotional distress; it may be general duty or one created by statue; the defendant breached that duty by engaging in behavior that the defendant should have realized involved an unreasonable risk of causing emotional distress that might result in illness or bodily harm
the plaintiff suffered injury in the form of extreme emotional distress
the breach of the duty was proximate cause of the injury

criminal statutes define criminal conduct and dictate possible punishment
criminal law, the plaintiff files a lawsuit against the defendant on his or her own behalf seeking monetary damages, or specific performance, to remedy or compensate for incurred losses. The plaintiff is a government representative prosecuting an offense against the state; the victim does not prosecute his or her own case
In a civil case, the plaintiff only needs to prove a preponderance of the evidence to support his or her claim
In a criminal case, the plaintiff must prove beyond a reasonable doubt because criminal punishments are more severe and government is " far more willing to tolerate erroneous convictions
mens rea requires proof that the defendant had the intent to commit the act
Intent is committing the act " purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense
crimes in recreation and sport should be classified

crimes against persons
crimes against public welfare
crimes against government ( Epstein, 2009)

Crimes against persons:

Assault and battery
criminal negligence
recklesssness
or homicide

Assault is the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact
Battery is the use of force against another, resulting in harmful or offensive contact
Criminal negligence or recklessness refer to criminal activity in which the defendant did not intend to commit the crime, but was not careful enough with his or her actions to avoid a crime occurring
Hazing: activities that require a subordinate person to endure some type of mental or physical threat
Defenses: Reasonably foreseeable, rules of the game, in-connection standard
3 approaches taken by courts regarding the consent defense

athletes only consent to those acts within a game that are reasonably foreseeable
athletes can only consent to those acts which are within the rules of the game
athletes consent to any act in-connection to the athletic event

Reasonably foreseeable established by State v. Guidugli (2004) the court noticed that the reasonably foreseeable test was most appropriate in determining whether a victim had consented to a harm incurred in an athletic event
Rules of the game: when limited in application the test was also discussed in State of Washington v.Shelly (1997). The trial court reasoned that the consent defense was unavailable to the defendant's conduct exceeded what is permissible within the rules of the game. However, the appellate court rejects this theory, arguing that fouls outside the rules of any game is far too narrow an application
In connection standard: people v. shackar (1998): the count reasoned the victim had consented to all harms "in connection" with the same thus the defendants assault was excused
Crimes Against Public Health Safety and Welfare

Point Shaving is defined as deliberately limiting the number of points scored by ones team in an athletic contest, in return for a payment from gamblers to commit criminal sports wagering by manipulating the score of sporting events
sport agent crimes: Athlete Agents may be found criminally liable under both state and federal law for inappropriate conduct with respect to student athletes

The Sport Agent Responsibility and Trust Act is a federal law that governs athlete-agent relationship
The Uniform Athlete Agent Responsibility and Trust Act is a model law that has been adopted in 40 states
Crimes against the government include crimes that are in violation of government statues such as ticket scalping and gambling
Ticket scalping or ticket resale is a criminal activity in many jurisdictions; however, in-person resale and private party transactions occur for almost every sporting event
the growing ticket resale market must be analyzed in two ways

statutory regulation
relevant case law

there is little consistency among state laws that regulate ticket resale

Relevant case law: Cavato V. Chicago National Baseball Club (1993): a class action group of cubs fans sued the Chicago Cubs after the team created Wrigley field premium ticket services (premium). The class-action fans alleged that the cubs sold choice seat locations at face value to premium, who then sold them at above face value to fans allowing the cubs to capitalize on revenues generated by the secondary market. The trial court ruled that the statute did not prohibit the cubs: parent company from establishing a ticket brokerage entity: thus the cubs did not violate the Illinois anti-scalping statue
Hazing means doing an act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates substantial risk of causing mental or physical harm to any person
civil litigation is dependent on special relationships, comparative negligence, immunity, supervision, duty of care
In the absence of a special relationship, there is no duty of care. Second, in determining whether both parties ( perpetrator and victim) may bear responsibility, the mere fact that an athlete agreed to participate on a team itself, does not provide a supportable rationale to establish comparative negligence.Third, coaches and school administrators may be immune from civil liability if their actions fall within the realm of professional direction. Fourth, parents may be held negligent for not exercising appropriate supervision of their children
Under the landowner-invitee theory landlords owe a duty of reasonable care to those who are invited onto their property
Immunity is a common defense in hazing cases. Immunity can free educational institutions and their employees from liability
In Caldwell V. Griffin Spalding County Board of Education, et al. (1998), a first-year football player was attacked, beaten, and knocked unconscious in his dorm room during preseason. In a civil suit brought by the player against school officials, the Georgia court of appeals upheld a lower court ruling granting summary dismissal on the grounds that the principal, coach, and school board members where immune from civil liability
Anti-Hazing Statues. The number of states that have adopted anti-hazing statues has increased dramatically from 25 in 1990 to 44 in 2016
Plato was socrates most famous student and he wrote several dialogues about socrates
Equal protection

14th ammendment: no state shall...deny any person within its jurisdiction the equal protection of laws

Standards of Review : strict scrutiny, intermediate scrutiny, rational basis review
search and seizure and right to privacy

4th ammendment: the right to privacy

is there state action,
is conduct a search,
is search reasonable

Right to religious belifs held in first ammendment
private clubs can deny membership or restrictive belifs which is establish by the freedom of association
Civil rights act of 1964: prohibit discrimination in public places, employment practices
private club exemtion: genuine selectivity
Authority to regulate: typicall, most state legislature
Copyright and patent law

3 element of patents

must be useful
must be novel,
non-obvious factor

football play can be copyrighted -- like dance steps/ choreography
in europe perfumes are copyrightable
scope of review: as a general rule, the courts have declined to intervene in internal affairs of private voulantary organizations that govern professional and amatuer sports
Conditions for review

the rule or regulation challenged by the plantiff exceeds the scope of the athletic associations authority
the rule or regulation challenged by the plantiff violates an individuals constitutional rights
the rule or regulation challenged by the plantiff violates an existing law, such as the Sherman Antitrust Act or Americans Disability Act
The rule or regulation challenged by plantiff is applied in an arbitrary and/or capricious manner
the rule or regulation challenged by the plantiff violates public policy because it is considered fradulent or unreasoonable
the athletic association breaks one of its own rules

Standing is a plantiffs right to bring a complaint in a court

to establish standing

the plantiff bringing the action must have sustained an injury in fact
the interest that the plantiff seeks to be protected is one for which the court posses the power to grant a remedy
the plantiff must have an interest in the outcome of the case

the issue of standing was a determative factor for the federal court when thet ruled on a motion to intervene in the case of ProBatter Sports LLC V. Joyner Technologies

A motion to intervene can be brought by anyonr who is not involved in a court case if they have an interest in the case and it would be difficult for that person, or company, to protect their interest unless they were a party in the case
Types of injunctive relief

temporary restraining order
preliminary injunction

Temporary restraining order is generally issued to a plantiff in an emergancy situation, without notice to the defendant and is usually effective for a maximum of ten days
Primary Injunction is granted to a plantiff prior to throught the trial on the meits of legal action and lasts throught the trial process of the case
To be awarded preliminary injunction the plantiff must prove

the plantiff will face substantial threat of irreprable harm without the preliminary injunction ( often where money damages provide the only remedy )
the balance of the hardships favors the plantiff
the plantiff posses a likelihood of success on the merits of the pening case
granting the injunction will serve the public interest

A permanent injunction requires the plantiff to prove the same four elements but is awarded as a remedy following a full hearing on the merits of the case.
Specific performance is a court order that may be available to the victim of a branch of contract. Spcific Performance requires that a dfendant comply with ( honor) the contract
In Oliverv. National Collegiate Athletic Association, an Ohiio state trial court applied both judicial review and injunction in reversing a ruling of the NCAA. The court ruled that the NCAA's decision was arbitrary and capricious because it allows an athlete to retain an attorney but impermissibily limits what the attorney can do prohibiting from attending meetings with the professional organization
to assist courts in determining whether the alleged wrongdoer has suffcient connection to the states to subject their actions to the constitutional limitations, the United States Supreme Court has developed three basic tests

the public function test
the nexus or entanglement test
the state compulsion test

When using the public function theory, courts consider whether a private actor is performing functions that have been traditionally reserved to government or that is gorvernmental in nature
The nexus/entanglement rhory examines wheter the state's involvement or relationship with the private actor is so entangled that if transforms the private conduct into state action and therfore subject to constitutional review
Procedural process requires that before a governmental entity derives an individual of his or her "life, liberty or property" interests, that he or she provided with the proper procedural due process that the state is required to provide.
Substansive due process provides individuals with a local of protection against state interference with certain fundemental rights and liberty interests not specifically protected under the constitution, and ensures that these rights cannot be take without appropriate governmental justification, regardless of the procedures used to do the taking ( routunda and novak, 1999)
Due process has been defined as a course of legal proceeding which have been established in our system of jurisdiction for the protection and enforcement of private rights
In order to determine if there was a violation of the due process clause a court must ask three questions

is there governmental or state actions
does the government's action deprive an individual of " life, liberty or property
how much due process was due ( pierce, 2002)

In general; public schools, and universities, as well as high school athletic associations, are all considered state actors
The supreme court has defined liberty interest to include the right of the individual to contract, to engage in any of the common occupations of life to acquire useful knowledge, to merry, establish a home and bring up children, enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men
In Stanley v. Big Eight Conference (1978). When Jim Stanley was relieved of his duties as head football coach and reassigned to other duties in accordance with his contract at Oklahoma State University, based on the Big Eight Conference's investigation of NCAA rules violations, Stanley sued the Big Eight conference. In particular, Stanley claimed that he had a liberty interest under the fourteenth amendment due process clause " in his good name and reputation for integrity as they bear directly upon his ability to obtain employment as a collegiate football coach in the future
Courts use three different standards of review

the easiest test to survive is mere rationality and most classifications are tested under this standard
a more difficult middle tier, sometimes called intermediate scrutiny, applies to gender classifications
to pass test of strict scrutiny applies to deprivations of fundemental rights and to classifications which are suspect-race

alienage ( status or foriegner legally within the country) and national origin
Before a court can conclude that one's equal protection rights have been violated, the court must find that the defendant is a state actor
In order for a plaintiff to file a constitutional claim, the plaintiff must have a direct stake in the outcome of the case in order to have standing
Courts have determined that the equal protection clause only protects individuals from intentional or purposeful discrimination
Unintentional discrimination or disparate impact: when one group is more greatly burdened by a classification than another
The rational basis review or mere rationality test is the easiest standard of review and many classifications have survived legal challenges because the state actor has been able to establish the classification is rationally related to a legitimate governmental interest
Baldwin v. Fish and Game Commission of Montana (1978), the supreme court concluded that the different classification of residents and non-residents of a state, and charging them different fees for hunting licenses, was rationally related to the legitimate state purpose of preserving a finite resource
Intermediate Scrutiny

Quasi-suspect classifications are subject to intermediate scrutiny. Thus far the Supreme Court has consistently found gender and illegitimacy to be quasi-suspect categories, but gender is the most relevant quasi-suspect classification for the sport and recreation manager

Strict Scrutiny is triggered when a state deprives a person of his or her fundamental rights

Suspect classifications can also trigger strict scrutiny. The supreme court has concluded that race, national origin, and alienage are suspect classifications

The fourth Amendment to the United States Constitution states:

the right of the people to be secure in their persons, houses, papers, and effects against reasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

protects against "arbitrary invasions by government officials" (O'Conor v. Ortega, 1987)

Once a search and seizure is characterized as "unreasonable" it is unconstitutional and therefore is prohibited
The fourth Amendment protects individuals from invasions of privacy by the government. It does not protect against conduct of private individuals or organizations.
The NCAA is not subject to the Fourth Amendment scrutiny because the regulatory functions of the NCAA are considered to represent private and not state action (Arleosoroff v NCAA, 1984).
The test of reasonableness under the fourth amendment is not capable of precise definition or mechanical application. The Supreme Court consistently asserts what is "reasonable" depends on the context within which a search takes place ( National Treasury Employees Union v. Von Raab, 1989; O'Conor v. Ortrega 1987; Skinner Railway Labor Executives' Assn.,1989)
Reasonable Suspicion has been defined as the existence of reasonable circumstances, reports, information, or reasonable direct observation" leading to the belief that illegal drugs have been used ( Horsemen's Benevolent and Protective Assn v. State Racing Commision, 1989)
Balancing Test: In addition to considering the existence of reasonable suspicion, the courts typically balance the degree of the intrusion on an individual's privacy interests against the government's interests in testing
Privacy Interests of athletes have included the following arguments (Hill v NCAA, 1994)

There are a few activities in our society more personal or private than the passing of urine. Therefore, the visual or aural monitoring of urination implicates privacy interests
Monitored urine collection is embarrassing and degrading thereby violating privacy and dignitary interests protected by Fourth Amendment
Chemical analysis interferes with the privacy rights associated with the right to control ones' own medical facts, e.g. epilepsy, pregnancy, diabetes
Urinalysis testing interferes with privacy rights associated with the right to control ones own medical treatment, including the right to choose among legal medications
Urinalysis testing attempts to regulate " off-the-field" personal conduct thereby violating the right to engage in constitutional protections for enormously diverse personal action and belief

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
United States v. Schwimmer,(1937) : the First Amendment is not designed to protect the "free thought for those who agree with us, bur freedom for the thoughts that we hate"
Not all speech is entitled to First Amendment (Schenk v. United States, 1919) a case in which the Supreme Court upheld the conviction of anti-war protesters who urged draft eligible men to resist the draft, the court held that words that create a " clear and present danger" would not be protected

as a general rule, the supreme court has deemed the following categories of speech: defamation, obscenity, fighting words, and words that create a clear and present danger as unprotected expression

Standard of Review

In reviewing freedom of speech cases involving students, the leading case is Tinker v. Des Monies Independent Community School District

Three students were suspended from public school for wearing black armbands to protest the war in Vietnam. In finding that " students and teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" the United States Supreme Court held that the wearing of armbands was entirely divorced from actually or potentially disruptive conduct and as such was closely akin to " pure speech" which is entitled to comprehensive protection under the First Amendment

In examining the question of Freedom of the Press the courts have generally interpreted the clause as having no significance independent of the speech clause.
Freedom of Religion

As the Supreme Court stated in Walz v. Tax Commission, (1970) " we will not tolerate either governmentally established religion or governmental interference with religion
Establishment Clause , which prohibits congress or the states from making any law establishing or promoting a religion

3 tests

Lemon Test, first developed in Lemon v. Kurtzman, the court uses a three prong analysis

the statue must have a secular legislative purpose
its principal or primary effect must be one that neither advances nor inhibits religion
the statue must not foster an excessive government entanglement with religion

Coercion Test

analyzes whether school-sponsored religious activity has coercive effect on student

Endorsement Test

asks whether government policies or practices are religiously neutral ( constitutional acceptable) or convey or communicate a message of endorsement or disapproval of religion (constitutionally unacceptable) (Brown-Foster, 2010)

Free Exercise Clause, which prohibits Congress or the states from making any law interfering with free exercise of religion (brown-Foster, 2010)
The Free Exercise Clause embraces two concepts

freedom to believe
freedom to act

The first is absolute but, in the nature of things, the second cannot be

The state cannot enact any laws that interfere with, by making it illegal or otherwise burdens, an individual's right to exercise his or her religious belief unless the general application of the law has a non-religious purpose

Voluntary Association is a " group of individuals joined together on the basis of mutual interest or common objectives, especially a business group that is not organized or constituted as a legal entity (Random House Inc., 2016)

supported by first and fourteenth amendments

In reviewing the rules voluntary associations establish for eligibility or the right to participate in the organization, the courts have historically been reluctant to overturn the bylaws, rules, regulations, or decisions of these associations unless they violate constitutional law, public policy or were enforced in an arbitrary or capricious manner ( Indiana High School Athletic Association, Inc. v. Watson 2010 on supplemental CD)
Judicial Review, In the absence of mistake, fraud collusion or arbitrariness, the decisions of such associations will be accepted by the courts as conclusive (Rottmann v. Penn Interscholastic Athletic Association (2004) )
In Indiana High School Athletic Association v. Carlberg (1997), the supreme court of Indiana found that the transfer rule advanced a legitimate goal of the IHSAA, and as enforced against Carlberg was not arbitrary and capricious and therefore did not violate the student federal right of equal protection
Two important notes about the case

the arbitrary and capricious standard of review is narrow and the court cannot substitute its judgment for this judgment of the IHSAA
the court stated: the rule or decision will be found to be arbitrary and capricious only where it is willful and unreasonable, without consideration and in disregard of the facts or circumstances in the case, or without some basis which would lead a reasonable and honest person to the same conclusion

The Equal Protection Clause of the Fourteenth Amendment provides a constitutional method for checking the fairness of the application of the law
High School Privilege: High school eligibility rules are essentially the products of state high school activities/ athletics associations

Thes associations are created to deal with the management of extracurricular activities, which by definition are all those activities for students that are sponsored or sanctioned by an educational institution that supplement or complement, but are not a part of, the institutions required academic program or regular curriculum
It is well established that students do not have a general constitutional right to participate in athletics

Participation is voluntary and, more important, a privilege

High school athletic associations create transfer rules to preclude student-athletes from "jumping" (enrolling at a different school) for reasons pertaining to athletics

The practice of postponing an athlete's competition in order to extend the athlete's career is known as "Redshirting"
Intercollegiate Academic regulation

graduation from high school
successful completion of a required core curriculum of 16 approved academic courses is specified subjects
specified minimum GPA in the core curriculum, and
specified minimum SAT or ACT score
Effective August 2016, the minimum GPA for initial eligibility will increase from 2.0 to 2.3 and the specified minimum SAT/ACT score will be determined according to a sliding scale. Also effective in August 2016 is a new designation of an academic redshirt. This term applies to student-athletes who have a GPA lower than 2.3, but higher than 2.0. They may receive athletically related funding, but cannot compete during the first year of residence
To satisfy continuing eligibility requirements, the student-athlete must demonstrate a consistent record of progress toward a degree

The NCAA's basic purpose highlights a focus on the amateur status of student athletes and the NCAA Manual consistently refers to a " clear line of demarcation between college athletics and professional sports.

Bylaws applied to amateurism contain restrictions on activities that occur prior to and after enrollment

The restitution rule

the current bylaw approved in 2010 applies to a "student -athlete who is ineligible under the terms of the constitution, bylaws or other legislation of the association" and "is permitted to participate in intercollegiate competition contrary to such NCAA legislation but in accordance with the terms of a court restraining order or injunction operative against the institution attended by such student-athlete or gains the Association, or both
If the "injunctions is contrarily vacated, stayed or reversed or it is finally determined by the courts that injunctive relief is nor or was not justified", the institution must pay restitution to the NCAA

Conduct Issues: An important item for athletic administrators to understand is that the individual pieces of this growing body of conduct-related regulation are not always viewed the same in the eyes of the law
Constitutionally Implicated Conduct

Freedom of Expression

the United States Supreme Court has issued four key rulings which address student-related freedom of expression issues in school settings.

The Tinker Cases

In Tinker v. Des Moines Independent Community School District (1969), two public high school students were planning to show their objection to the Vietnam War by wearing black armband to school along with engaging in several other activities
The supreme court offered arguably one of its more famous lines and a key principle that administrators need to keep in mind when considering constitutionally-implicated conduct issues
The court went on to state, however, that student conduct that had the potential to materially and substantially interfere with the operations of the school or the rights of others was not constitutionally protected
In reviewing the four major student freedom of expression cases, a few guidelines for sports administrators dealing with such issues in conduct-related cases become evident. Tinker offers substantial protection for student freedom of expression absent any constitutionally-valid reasons for restricting or prohibiting student expression

Drug Testing

The Fourth Amendment

The first factor the courts consider is whether the individual has a legitimate privacy expectation on which the search intrudes
The second factor to consider is the character of the intrusion. In determining the character of the intrusion, the court examines the manner in which the samples are collected and monitored
The final factor to be considered is the nature and immediacy of the governmental concern and the efficacy of the drug test in meeting those concerns. In other words, the court must determine whether the state's interest in conducting the drug test is important enough to justify intruding on an individual's expectation of privacy
The fourth Amendment also requires that before any search can be conducted there must be probable cause,

Consent form: An individual can voluntarily waive his or her Fourth Amendment rights and submit to a drug-testing program

However, even when there is consent to a drug test, the court has rule that not all consent is voluntary ( University of Colorado v. Derdeyn (1993) ) \

Participant with Disabilities

The Rehabilitation Act of 1973

for an individual to successfully pursue a claim under section 504 he or she must establish four elements

that he or she is an individual with a disability ( a person with a disability is one who has a record of having, or one who has been regarded as having physical or mental impairment that substantially limits a major life activity)
that he or she is otherwise qualified for the athletic activity (the individual with a disability must show that, with reasonable accommodation, he or she can participate)
that he or she is being excluded from athletic participation solely by reason of their disabilities ( the person with a disability must demonstrate that he or she is being discriminated against due to his or her disability); and
that the school,or institution is receiving federal financial assistance (all public schools in the United States would fall in this category)

In Alexander v. Choate (1985), the Supreme Court addressed what types of modifications would be required under section 504 when it held that although an organization need not be required to make fundamental or substantial modification to accommodate an individuals disability, it may be required to make reasonable ones.

making facilities used by employees readily accessible to and usable by individuals with disabilities
job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and similar actions

The requirement that an individual be excluded solely by reason of the disability is met if an individual is being excluded due to their disability
Individuals with Disabilities Education Act applies to student with diagnosed disabilities from birth to graduation, or maximum age of 21

In 2004 the Individuals with Disabilities Education Improvement Act major changes emphasize key requirements in the special education process, increased monitoring of student progress and the use of accommodations outlined in the Individual Education Plan (IEP)

Ted Stevens Olympic and Amateur Sports Act

Originally passed in 1978 and called the Amateur Sports Act, the law grants the United States Olympic Committee exclusive jurisdiction over amateur athletics in the law grants the United States Olympic Committee ( USOC) exclusive jurisdiction over amateur athletics in the United States, including all matters pertaining to United States, including all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games

The American with Disabilities Act (ADA) was signed into law July 26, 1990, extending many of the provisions of section 504 of Rehabilitation Act to the private sector

Purpose" to provide clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities
Title 1- Employment provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability such individual in regard to job application procedures, the hiring, advancements, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment
Title 2 - Public Services provides that " no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity

to establish violation an individual must demonstrate

that her or she is "qualified individual with a disability"
that he or she is "otherwise qualified for the activity";
that he or she is being excluded from athletic participation "solely by reason of" their disabilities; and
that he or she is being discriminated against by a public entity

Title 3 - Public Accommodations and Services Operated by Private Entities provides that " no individual shall be discriminated against on the basis of disability in the dull and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation"

For example, if a commercial sport facility uses a turnstile for spectators to gain entry, they must be an accessible option to the turnstile for a wheelchair user

Even if an individual is able to meet all the requirements under Title 2 or Title 3 of the ADA, the law does not require an organization to accommodate a person "when that individual poses a direct threat to the health or safety of others"

Private Clubs in Sport and Recreation

Freedom of Association

Clubs discrimination is legal, since citizens of the United States enjoy the freedom to associate with persons of their choice, without government intervention or interference (Roberts v. United States Jaycees, 1984)
Expressive Association

the first amendment states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances

Intimate Association

Citizens of the United States also have the freedom of intimate association; the constitutional right to enter into a maintain certain intimate human relationships ( Roberts v United States Jaycees, 1984)
Intimate association originates from the right to privacy implied in the Due Process Clause of the Fourteenth Amendment and is characterized by its relative smallness, high degree of selectivity and seclusion of others.

Balancing freedom of association with anti-discrimination

The government may interfere with expressive association when there is a compelling state interest.
For example, the government has a compelling interest in eradicating discrimination, so preventing discrimination is usually enough of a compelling social objective that may warrant governmental interference in private affairs

Civil Right Act of 1964: Congress enacted the Civil Rights Act of 1964 to protect citizens' constitutional rights and prohibit various forms of discrimination in the areas of public accommodations and in employment
Title 2

While the law makes it clear that a place of public accommodation includes a " sports arena, stadium or other place of exhibition or entertainment", due to the freedom of association guarantees found in United States Constitution, Title 2 creates an exemption for private clubs
Courts examine the following relevant factors

the genuine selectivity of the group in the admission of its members
the membership's control over the operations of the establishment
the history of the organization
the use of the facilities by nonmembers
the purpose of the club's existence
whether the club advertisers for members
whether the club is profit or non profit
the formalities observed by the club such as bylaws, meetings etc. ( U.S. v Lansdown Swim Club, 1989) \

Courts have given particular attention to two factors

the clubs's selectivity with respect to membership,
the use of the club's facilities by non members

Title 7

Title 7 of the Civil Rights Act of 1964 deals with discrimination in an employment setting for governmental agencies, labor unions and employees with 15 or more employees
"bona fide private membership clubs"

Is a club in the ordinary sens of the word
is private
has meaningful conditions of limited membership

A Club is an association of persons for social and recreational purposes or for the promotion of some common purpose who meet periodically. These clubs usually vote in new members who then earn the privilege of using the club property

In addition to federal law, a number state have passed anti-discrimination laws that prohibit discrimination based on gender, sexual orientation, race, color, religion and national origin

Copyright Law: Congress enacted the United States Copyright Act of 1909 to protect the work of authors and other creative persons from the unauthorized use of their copyrighted materials and to provide a financial incentive for artists to produce, thereby increasing the number of creative works available in society
Copy right protection two fundamental criteria

the work must be original, and
it mus be in some tangible form that can be reproduced

eight board categories of copyright protection

literary works
musical works
dramatic works
pantomime and choreographic works
pictorial, graphic, and sculptural works
motion pictures, and other audiovisual works
sound recordings
architectural works ( 17 U.S.C Section 102)

Rights of the Copyright Owner

the right to reproduction
the right to preparation of derivative works including translation from language and from one form to another (i.e. from book to movie, from movie to play)
the right to public distribution
the public performing rights, which include live renditions that are face to face, on recordings, broadcasts, and re transmissions by cable
the right to public display, specifically written or art work; and
to perform the copyrighted work publicly by means of a digital audio transmission

Copyright ownership vets initially in the author or creator of the work. However, in the case of a " work made for hire" the owner of the copyright is the employer or person for whom the work was prepared
Fair Use: This section was passed to strike a balance between the copyright monopoly and the greater interest of society including criticism, comment news reporting, teaching, scholarship, or research
four factors of ascertain fair use

the purpose and the character of use, whether it is for commercial or for nonprofit educational purposes
the nature of the copyrighted work
the amount and sustainability of the material used in comparison with the whole
the effect of the use on the potential market or value of the work

The Copyright Act protects any original works of authorship fixed in any tangible medium, including motion pictures and other audiovisual works. The broadcast, by radio or television, of a live sporting event is eligible for protection

Principles of Trademark Law

A trademark is any word, name,symbol, or device, or combination thereof, adopted or used by some entity to identify their goods and distinguish them from those manufactured or sold by others
A trade mark:

identifies seller's goods and distinguishes them from those sold by others
signifies that goods come from one particular source
indicates that products are of certain quality
advertises, promotes and assists in selling the particular goods (McCarthy, Schechter and Franklin, 2004)

Trademarks can also be categorized by strength

The strongest marks are arbitrary or fanciful marks that bear no direct relationship to the product itself much as "Addidas" for sports apparel and "Ping" for golf clubs.
Next are suggestive marks that hint at characteristics of the goods or services, but require some consumer imagination to be understood as descriptive
Descriptive marks identify a characteristic or quality of a good or service
A service mark is a mark used in the sale of advertising or services to identify and distinguish the services of one entity from the services of others
A collective mark is a trademark or service mark used by the members of a cooperative, association, or other collective organization to indicate membership in the organization

To create ownership rights a trademark, the trademark owner must be the first to use the mark in the trade and make continuous, uninterrupted use from then on.
When analyzing potential consumer confusion the courts focus on the following factors \

strength of the mark
similarity between the marks
similarity between the products and marketing channels used to sell them
likelihood that the trademark owner will expand their use of the mark on future products
evidence of actual confusion
defendants "good faith" intent in adopting the mark
quality of the defendants product
sophistication of the consumers

The Lanham Act defines a counterfeit mark as"a spurious mark that is identical with, or substantially indistinguishable from, a registered mark
The Federal Trademark Dilution Act of 1995 defines dilution as the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of either the presence or absence of competition between the parties, or likelihood of confusion,mistake, or deception
The Trademark Dilution Revision Act of 2006 helped further define the standard for dilution claims emphasizing that in a claim for dilution a trademark owner only needs to show a likelihood of dilution rather than actual dilution
Defenses

Abandonment

Although trademark rights can be renewed continuously through registration, a trademark owner must still actively use the mark for it to remain valid. Section 1127 of the Lanham Act defines abandonment as discontinued use of a trademark with the intent not to resume such use, or when any act or omission of the owner of a mark cause it to become the generic name for the goods in connection with which it is used

Laches

In certain circumstances if trademark owners have neglected to assert their trademark rights in a timely manner , the doctrine of laches may limit them from recovery , if such recovery would be prejudicial to the potential infringer

Fair use or Parody

The Lanham Act provides that where a trademark is used fairly or in good faith only to describe the goods or services involved, there is no trademark infringement

Disparaging Marks

Trademark protection can also be denied if a mark is shown to be immoral, deceptive, scandalous, or disparaging under the Lanham Act

Disclaimers

A potential trademark infringer may also argue that a conspicuously placed disclaimer altering consumers that the product or service does not contain attributes or features and that it is not from a certain source organization, absolves it from liability for infringement

Licensing

A License is a written document in which the trademark owner grants another entity the right to associate their business and/or product with the name, goodwill, logos, symbols, emblems, and designs of the trademark owner

Ambush Marketing refers to the efforts of companies to weaken or attack a competitor's official association with a sports organization or event by using advertising and promotional campaigns designed to confuse consumers and to misrepresent the official sponsorship of the event

Image Rights

Right of Privacy

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the roof-tops. For years there has been a feeling that the law must afford some remedy for unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by newspapers

Federal Endorsement Claims factors

the strength of plaintiff's marks and name
relatedness of the goods
similarity of plaintiff's and defendant's marks
evidence of actual confusion
marketing channels used
likely degree of purchaser care ( sophistication of the defendant's audience): and
defendant's intent in selecting the mark ( Abdul-Jabbar v. General Motors, 1996)

(Abdual Jabbar v General Motors Corp, 1996) commercial user is entitled to the nominative fair use defense if it meets three requirements

that the product or service in question must be one not readily identifiable without use of the trademark
the only so much of the mark may be used as is reasonably necessary to identify the product or service
the user must do nothing that would, in conjunction with the mark, suggest sponsorship use of the trademark; by the trademark holder ( New Kids on the Block v. New America Pub., Inc., 1992)

Federal Copyright Act

In addition to the Lanham Act, another piece of federal legislation that can be used to protect an individual's image rights in the 1976 Federal Copyright Act

enacted to protect the creators of all "original works of authorship fixed in any tangible medium expression"

Game Data and Statistics

Another issue of concern for the leagues is who owns the player statistics and game data. Under the copyright law, facts and statistics are not copyrightable.

First Amendment Defenses

The Newsworthiness Doctrine permits the media to use the unauthorized likeness of celebrities or anyone of interest in connection with a news item about the person.
The incidental Use exception

The courts have recognized an incidental use exception in cases where a newspaper or magazine has used, for advertising purposes, the image or photo of an athlete or other celebrity previously printed in a story

Parody Defense

The first Amendment also allows for the use of parodies under certain circumstances. Parodies used in a commercial context, however, will generally not receive First Amendment protection

Transformative use defense

If the challenged work contains significant transformative elements or if the value of the work does not derive primarily from the celebrity's fame, the courts will allow the use under the transformative use defense

Antitrust Law: Professional Sport Applications

Antitrust Law

In 1890, Congress passed the Sherman Antitrust Act to break up business trusts and monopolies
The Supreme Court has adopted three approaches to determine violations of section 1 of the act

The first is a rule of reason defense that recognizes some restraints are necessary business practices. To evaluate the rule of reason defense, the Court wighs pro-competative effects of the rule or practice against the anti-competitive effects.
The second approach is adopted when anticompetitive conduct is deemed illegal per see . Illegal per see activities are presumed to have no benefit to competition. Use of the illegal per see approach is limited and applied in two situations

when the court is examining agreements between traditional business competitors and
when the cour is seeking to avoid a lengthy inquiry into an industry's business operations

A third approach occurs when the court focuses on the effect a challenged practice has on consumer welfare (Roberts, 1990). This approach has yet to be applied in professional sport cases. Roberts ( 1990) has argued the consumer welfare standard may be very important for sport-related antitrust cases, and if applied, would likely limit a plantiff's success as the plaintiff would be forced to demonstrate the league conduct injuries consumer welfare.

Baseball possesses a unique status in professional sport, as well as in American business, by virtue of its anti-trust exemption

In Federal Baseball Club of Baltimore Inc. v. National League of Professional Baseball Clubs. et al. (1922), the Supreme Cour concluded that baseball was neither interstate nor commerce - two elements necessary for federal antitrust laws to apply

Single Entity Status

In an attempt to gain Section 1 immunity, a number of leagues structured themselves as single entities with owners investing in the league rather than in teams. The leagues adopt centralized operations for business and personnel decisions. Centeral administered leagues operated by owne-investors argue they are a single entities.

Antitrust Challenges by Competitor Leagues

A few section 2 cases challenge competitor leagues over the practices of established leagues as monopolistic.

Philadelphia World Hockey v. Philadelphia Hockey Club, Inc. (1972): The world Hockey Association successfully argued that the NHL monopolized the labor pool of talented players through the use of the reserve system. The NHL's reserve system perpetually bound players to a team. The world Hockey Association successfully argued tat the system restrained their ability to acquire marquee NHL players

Convergence of labor and Antitrus Laws

In the early 1900's employers used the Sherman Act labor movements, claiming workers organizing boycotts or work stoppages were committing conspiracies in restraint of trade.

In 1914, Congress enacted the Clayton Act to exempt organized labor acting in its own self-interest from antitrust liability. However, the federal courts continued to grant injunctions against labor activity. In response, Congress passed the Norris-La Guardia Act in 1932, because it restricted the federal judiciary power to grant injunctions against labor unions in labor disuptes
Federal courts can not issue injunctions in disputes between employers and employees ( Brady v, NFL (2011))

During the term of the Collevctive Bargaining Agreement

Congressm the court held, did not intend for antitrust laws to subvert the goal of achieving labor peace through labor-managment relations. The objective of the labor exemption is to protect those mandatory subjects agreed to through good faith bargaining from anti-trust scrutiny by a party to the collective agreement. It would not be fair to agree to restrictive practice, receive concessions in exchange for the agreement, and then turn around and sue a counterpart under anti-trust law over the practice ( Brown v Pro-Football, 1996)
Defendant must meet this test

The injured party is a party to the collective bargaining agreement
The subjected contested on antitrust grounds is a mandatory subject for bargaining ( hours, wages, and other terms and condition of employment)
The collective bargaining agreement was reached through bona fide arms' length bargaining

Antitrust Law: Amateur Sport Applications

It is important to note, that not every restraint of trade violates antitrus law. Because nearly every contract that binds the parties to an agreed course of conduct " is a restraint of trade" of some sort. The supreme court only bars "Unreasonable restraints of trade"

The plaintiff must show that the defendant

participated in an agreement that reinstated interstate trade or commerce
that the agreement unreasonably restrained trade in the relevant market

Establishing a Section 1 violation

In determining whether a defendants conduct is unreasonable restraint of trade, the courts have developed three categories of antitrust analysis

the per see rule
the rule of reason analysis
an abbreviated or "quick look" rule of reason analysis

Establishing a Section 2 violation

Section 2 of the Sherman Act can be triggered by a single party acting alone unlike section 1
In order to establish a violation under section 2 the Supreme Court has 2 Elments

The possesion of monopoly power in the relevant marketplace
the willful acquisition or maintanence of the power as distinguished from growth or development as a consequence of a superior product, business acumen or historical accident ( United States v. Grinnell Corp, 1966)

Sport Agent Legislation

The most recent attempt by states to regulate the sport agent profession began in 1997, when the National Conference of Commisioners on Uniform State Laws ( NCCUSL), at the request of several major universities and the NCAA, appointed a drafting committee to develop a uniform statue for regulating sport agents.

Developed the Uniform Athlete Agent Act (UAAA) which is the protection of student-athletes from unscrupulous afents (Viltz, et.al.2014)

UAAA requires an agent to pvide important information, both professional and criminal in nature. This information enables student-athletes, their parents and family and university personnel to better evaluate prospective agent
The UAAA also requires that written notice be provided to institutions when a student-athlete signs an agency contract before their eligibility expires
In affition, the UAAA gives authority to the secretary of state to issue subpoenas that would enable the state to obtain relevant material that ensures compliance with the act
Finally, the UAAA provides for criminal, civil, and administrative penalties with enforcement at the state level ( Viltz, et.al.2014)

Sports Agent Responsibilty and Trust Act (SPARTA)

it is unlawful for an athlete agent to

directly on inderectly recruit or solicit a student athlete to enter into an agency contract, by

giving false or misleading information or making false promises or representation
providing anything of value to a student athlete or anyone associated with the student athlete before the student athlere enters int an agency contract, including any consideration in the form of a loan or acting in the capacity of a guarantee or co-hurantee for any debt

enter into an agency contract with a student athlete without providing the student athlete with a disclosure document described in section (b)
predate or postdate an agency contract (15 U.S.C. Section 7802a)

Socrates Quotes

The unaxamine life is not worht living
to fin yourself, think for yourself
be as you wish to seem
I cannot teach anyone anything, I can only make them think

Due Process

State Action and Standing

Substansive Due process

must have deprivation to life, liberty and property

Types of due process claim

procedural
substansive

for due process they need notice and fair hearing

notice can be oral or written
notice can be after the decision

principles of trademark law

prevents others from using the mark in a way that will cause consumer confusion
commercial protection for word, symbol, device or combination of these that defines or distinguishes something

Trademark law bans trademarks which disparage or contempt or dispu

protect commercial brands

Trademarks are a privilege therefore can infringe on first amendment not protected by first amendment
Lanham Act

Trademark owner must show that there is a protected property right the trademarks must show the other property's use of mark causes confusion

Tying contracts making people buy something they don't want by giving them something they do

i.e coffee cup and computer: things that are completely unrelated to the function of the other

Tying requires unrelated products
group boycotts: joint refusal to deal
horizontal division of markets: competitors join together and divide a geographic market
If per see violation then, no balancing: violation even if the initial effect is to promote competition
Sherman 1: conspiracies and collusion
Sherman 2: bad actors

can have a monopoly as long as you don't qct in an anticompetitive way
Sherman 2: intentionally price below costs to maintain market share
Sports leagues fall under sherman 2

Clayton Antitrust Act 1914: deals with goods only
Sports Broadcasting Act: Allows sports leagues to pool their television rights together so that they could negotiate leaguewide television packages without antitrust violations
Moshie Menora v, Illinois High School

“As a matter of law Astroth's affidavit does not state facts that demonstrate "personal bias or prejudice" against defendants, nor is it sufficient to create a reasonable question of this Court's impartiality. Accordingly defendants' motion to recuse is denied under each of Section 144 and 455(a).” Menora v. Illinois High School Association, No. 81 C 960, (N.D. Ill. 1981)

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