Sports Law in the United States - Essay Example

USA SPORT LAW Question 1 Sports law in the country exists in order to protect sporting organization, players and the fans. In line with the principle of free and fair games, sport laws ensure that clubs, fans and individual players have obligations to meet in upholding this principle. For any negative thing that happens during sporting event, there should be someone who should be held liable (Conrad 2003, p. 145; Cornell University, 2009). In this particular case there are two parties who should assume liability. First, there is the Minnesota Vikings Professional Football Club, Inc. which is holding the sporting event and the fans, especially 17 year old Johnny Sherman. There is need to explore the liability of each party in order to finally determine how each party can decrease the liability to take. Minnesota Vikings Professional Football Club, Inc. which owns the Metrodome where the event took place has a large part of liability. The accident occurred as a result of a melee in the fourth quarter of the game when DiPrimio’s extra point kick went over the protective screen. Then fans started scrambling for the ball and this is the point at which Sherman fell on a step injuring his head. This is where the liability of Minnesota Vikings Professional Football Club, Inc comes in (Hartley 2009, p.143). If the club had build a higher protective screen the ball would not have gone to fans and therefore Sherman would not have been injured. Although the club has been building the protective screen higher and higher every time the ball goes above the protective screen, it has not built a higher wire mesh to protect the ball from sailing over the fans. There are a number of times when the ball has sailed over the safety screen. This means that the club has previously realized that the ball is still going over the protective screen to the fans but it has not built the wire mesh higher enough. If the club had realized that the ball could sail higher than the protective screen, it should have built a higher wire mesh for fans safety. Putting into consideration this fact, the club should therefore be held liable for the accident. On the other hand, Sherman as a fan can be held liable also. During the game, fans were drunk and were causing all kinds of security threats. Although Sherman had not been drunk, it is difficult to determine whether he was a part of the fans causing this security threat. It was difficult for Sherman to be hurt if he was not part of the melee. This means that he has responsibility to take for scrambling for the ball. Considering the two cases, both have a liability to assume. However, Minnesota Vikings Professional Football Club, Inc may assume more liability since the event was taking places in the club. One of the key defenses that can be used by the club to minimize its liability is using the exculpatory clause at the back of the ticket. This clause stipulates that that ticket holder assumes the responsibility for anything that happens inside the club or while traveling to and from the club. This clause means that the club cannot be held liable for what happens to fans. Once a player purchases the ticket, it means they have agreed to the terms and conditions given in the ticket and therefore even Sherman had agreed to these terms. The club can also minimize its liability by arguing that Sherman could have been among the group of fans who were causing security threat during the match. This can be reinforced by arguing that Sherman could have been hurt as a result of participating in the scramble for the ball. On the issue of building a higher protective screen, the club can argue that it is difficult to determine the maximum height that the ball can sail since it depends with the way the ball is kicked by the player. This means that even with a higher protective screen there is a high probability of the ball landing to the fans. Question 2 The case of Bill Rogers is quite complicated and need to be approached in different dimensions. It is evident that he has put in place efforts to be accepted to a degree programs but his efforts is being frustrated in many ways. He has gone to an extent of going for summer school and registering for independent-study project in the New University’s school. Although school admission committee has accepted his application and accepted him for admission, the school officials has twice vetoed his acceptance following charges from the dean that he has handed in work prepared by other students and withdrew from courses that he was failing. In this case, I would advice Bill to continue pressing for his case to be admitted to a degree program since this present his only chance of being drafted in the NBA. There are many approaches that he can use in this case but the most appropriate approach to take is a legal action to sue the school officials for vetoing his admission. While the university admission board has vetoed his admission based on charges from the dean, the admission board has not taken any step to inform Bill why his admission was declined. In taking a legal action, Bill would sue the admission board and require it to produce evidence that shows that the work he submitted had been prepared by other students. On the issue of dropping course that he failed most, it is the right of the student not to take course which they feel they are not most likely to perform well. The best strategy to pursue this case is for Bill to higher a lawyer to represent him in the case seeking admission to the university program. The following is a legal memorandum for the case (Quirk and Fort 1997, p. 92): State of ….. Bill Rogers Plaintiff State University Defendant IN THE GENERAL COURT OF JUSTICE MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ CASE FOR ADMISSION TO STATE UNIVERSITY Introduction Plaintiff, Bill Rogers has brought this lawsuit against the defendant, State University in connection with unfair vetoing of his admission to state university program without giving reasons for declining the admission. Statement of the case (Facts) Te plaintiff, Bill Rogers has been an active basketball player and has shown competence in being drafted to NBA. However to be drafted, he was required to fulfill three things including maintaining a passing grade, accumulate credits and enroll to a degree program. The plaintiff successfully met the first two requirements earning an average of C in course at State’s open admission programs. However, he has not met the third requirement which is derailing his dream of being drafted into NBA. He failed to be admitted to University’s New School and also went to summer school but was rejected in a degree program. After renewed application for independent study, he learned that the school admission had vetoed to accept him but school officials vetoed the decision on charges brought by the Dean that Bill was presenting work done by other students and had withdrawn several courses he was failing. Question presented Whether the court should order the plaintiff to be admitted to the University program since the dean had not brought into surface evidence showing that bill presented work from other students. Summary of the argument Failure by the state university to grant the plaintiff a chance to pursue program at the university may cost him a chance to be drafted by NBA. If the school admission has vetoed to accept him for the program, school officials should not veto this decision without presenting the evidence to school admission. Summary For these reasons, plaintiff should be granted a chance to enroll in the state university Respectfully submitted on …… By…….. Question 3 A player contract is an important agreement that is made between the individual player and the club (Thorne et al., 2001, p. 63). A player contract outlines the obligations of both sides where the club has obligations to meet while the player must meet his obligations to the club. A player contract is therefore a bidding document that outlines terms of service for both parties. According to Conrad (2003, p. 28) there are six main clauses in a standard player contract. These include: 1. Salary This is an important clause as it outlines important details regarding the amount the player will receive from the club. The clause outlines the percentage that the player should pay the agent and for the period of time the player will make this payment. At the same time it may outline arrangement where the club is obliged to make payment to the agent. 2. Service This clause is important as it outlines the services the player is going to offer to the club. This clause outlines the duties of the player in meeting his or her obligations to the club. The clause details the specific services the player has to offer and the limitation of those services 3. Expenses Expenses clause details responsibility of expenses of the client. There are some clubs which meets the specific expenses of the player while there are some clubs which require the players to meet their own expenses. This clause also gives limitation of expense liability for the player 4. Conduct Conduct clause is very important in any standard contract of a player. Conduct clause define the standards of behavior and patterns of relationship that is expected of the player. Every club like other organizations in the world have set out rules and regulations that have to be closely followed by anyone associated with the club. Conduct clause outlines the expected behaviors and punishments that the player may expect for breaking the laid down rules. 5. Physical condition Physical condition and health clause is important as it defines the expected health standards for any player joining a club. This clause details the medical procedures that the player must undergo before joining the club. It also outlines the minimum health requirements that a club expect from a player. 6. Prohibited substances With the rising cases of drug abuse especially in sports, prohibited substance clause has become very important in player clauses. This clause outlines all the prohibited substances that the player must avoid. It also outlines the consequences if a player is found to have used the substances. Some contracts may outline the testing procedures. 7. Termination of service This is the last important clause in a standard player contract. This clause outlines procedures for ending the contract between the player and the club. This clause also outlines any conditions under which the club may terminate the contract with the player and if there will be any more payment on termination of contract These are the mandatory clauses that are contained in standard player contract. According to Hunter and Mayo (1999, p. 73) there are other optional clauses that may be included in the player contract including: 8. Unique skills This clause outlines the unique skills that the player has been hired for. The clause also outline whether the player will be compensated higher for the unique skills. 9. Promotional activities This clause outlines how the promotional activities for the player will be carried out. It outlines who will take the responsibility of the carrying out these promotional activities and who will take up the fees from these activities 10. Racism clause This clause has become important due to the increasing cases of racism in sports. This clause outlines the specific steps that may be taken against a player in case one engages in activities promoting racism Question 4 This lawsuit is almost similar and follows the same trend that has been observed in fantasy football in the recent past. There have been a number of lawsuits in fantasy football mainly concerned with the right to use player statistics generated by NLPA. If this case will follow the ruling that has been observed in the previous cases, there is a high likelihood that CBS will prevail on its lawsuit against NFLPA and Players Inc. In the previous ruling, the court has shown that the information generated by NFLPA and other major league players is already in the public domain and therefore restricting the company from using that information is contrary to the First Amendment. It is one the bases of the previous rulings that the CBS is most likely to prevail against NFLPA and Players Inc. CBC does not need a license to use the information. Like the ruling made by the Minnesota court, it is clearly demonstrated that use of statistics generated by NFLPA does not violate rights of publicity which are held by NFLPA. This means that there are no legal aspects that NFLPA can use to hold CBC liable of violations. In this case, the court further ruled that if there was any right of public that had been violated by the fantasy player companies, these companies still enjoyed a First Amendment right which grants them freedom to use information on players name and their playing records which in any case prevails over the right of publicity. In aspect of this case, it can be found out that the only agreement is between NFLPA and Players Inc where Players Inc. has been granted the “the exclusive worldwide right, license, and privileges of utilizing the …Group Licensing Rights.” This means that the only legally biding Agreement is between Players Inc. and NFLPA and not between fantasy football companies and NFLPA (Zavin and Loeb, 2009). Although the case involving CBC Distribution v. Advanced Media and CBS vs. NFPLA and Players Inc. has some similarities, they are different in other aspects. In the current case of CBS against NFPLA and Players Inc. CBS has been accused of continuing to use statistics which have been previously generated by NFPLA for fantasy football. Consequently, CBS has refused to renew the contract and continue paying for license fees to NFLPA on ground that they are using statistics which are already on public domain and therefore the first amendment preempted the publicity rights since the information is already on public domain. In contrast, the case involving CBC Distribution v. Advanced Media is different in the sense that it is Advanced Media that refused to renew the license for CBC distribution. Since 1995 to 2004, CBS Distribution had been licensed by Major League Baseball Players Association with the rights to use names and statistics of the players in provision fantasy baseball League. However, this changed in 2005 when CBC license expired and MLBPA licensed Advanced Media with the rights to use player’s names and statistics. Advanced Media therefore started offering fantasy baseball and refused to renew CBC license. CBC continued to offer fantasy baseball using the names and statistics that had been generated in the previous years and already in public domain. This shows that the difference between the two cases is that while CBS has refused to renew its license with NFLPA, CBC had not been granted a new license by MLBPA. However, the two cases follow similar principles. Both CBS and CBS are using information that had been generated by the NFLPA and MLBPA in the previous years which means this information is already in public domain. The rulings of the two cases are likely to be similar based on preemption of the first amendments over the publicity rights. Question 5 In the case Moore v. Bertuzzi, Steve Moore who was the former Harvard Captain and his parents have sued Todd Bertuze who was the NHL tough man, Vancouver Canucks and partners for an ice accident which took place on March 8 2004 between Moore and Bertuzzi. This case has drugged for more than four years such that most fans have actually forgot the hit that Bertuzzi rendered on Moore (Dupuis, 2008). Their dispute spills over toe February 16 2004 when Moore checked Canucks Captain Markus Naslund and Naslund received soreness on the wrist that was declared by NHL as a hit although there was not penalty awarded. Reiteration on Moore hit was expected even NHL officials when the two teams met but it only took place on March 8 when Bertuzzi confronted Moore inciting him to fight. However More just skated away and Bertuzzi followed him and struck him from behind drooping him face first into the ice. Moore suffered injuries including vertebrae fractures and has not played since then. Bertuzzi was suspended and Canucks fined $250,000. A 17 month suspension cost Bertuzzie $500,000 salary and $350,000 in endorsements (Dupuis, 2008). On December 22 2004, Bertuzzi was charged with assault causing bodily harm and he pleaded guilty. He was conditionally discharged with 8 hours of community labor and not to play in a game that Moore is playing. Moore filed a lawsuit in Colorado but was dismissed for lack of jurisdiction. He then filed a second lawsuit in Ontario Supreme Court in February 2006. In reiteration, Bertuzzi filed a cross-claim against Canucks and in return Canucks filed a cross claim against Bertuzzie which assumed shared liability between the two for Moore’s injury. Moore filed another lawsuit which claimed that Bertuzzi made himself creditor proof by transferring his house worth $1.2 million to his wife Jacki Bertuzi for $2 million (Dupuis, 2008). There are different legal aspects in this case that may determine the final outcome. If Moore will have to win the case, he must take a participant v. participant liability approach. One of the legal issues in the case is whether Moore actually consented to the assault. According to Bertuzzi testimony, Moore refused to fight him which means Moore could not have assumed the risk of injures he sustained. By merely refusing to fight Bertuzzi, Moore should not be held responsible for the injuries and therefore Bertuzzi assumes the liability. According to Canadian Encyclopedic Digest which cited Wright V. McLean (1956) an assault can be committed when one of the participants in a hockey game deliberately and unnecessarily hands violent blows to an opponent. This was the case with Bertuzzi because he followed Moore even after refusing to fight him and hit him on the back landing him face first on ice. Therefore Moore will have to prove that Bertuzzi hit him intentionally and it was not a part of body check in the game. On the other hand, Bertuzze can use a number of defenses. First he can argue that it was a part of rough body check which is common in a game. Although this defense may be weak, there are previous cases like McKichan v. St. Louis Hockey Club where a player sustained body injuries from an opposing player but was not compensated since it was counted as a part of body check in Hockey Game. Bertuzzi can also use the case of incitement by the management. In his evidence he has said that the club coach, Mark Crawford had reiterated that Moore must pay for his earlier attack. In 2004, a Virginia Court of Appeal compensated a hockey player of injuries after the court found out that the player had been instructed by the coach to fight. Bertuzzi can therefore use incitement by Coach Crawford as a part of his defense (Dupuis, 2008). Question 6 Craig hopes of getting a wrestling scholarship to pursue a major in nursing and physical therapy seems to have been diminished by the school discipline decision to suspend him from participating in wrestling for one month since this has denied him a chance to defend his state championship. The school expect sports students to adhere to strict rules and regulations otherwise they face been suspended from participating in sporting events. In this case, Craig has been suspended on allegation that police officer information that he had performed him an alcohol sobriety test which he had tested positive. Craig legal claim for unfair punishment by the school are valid and are likely to succeed since the school had committed some mistakes contrary to what is stated in the student conduct handbook. There is contradiction of what school has stated in the conduct handbook especially on issues of investigation and the way it has handled his case. While Craig and other students are reportedly to have reported their case after 48 hours, Craig punishment was doubled unlike in other students. This shows that there are potential legal issues that can be exploited in Craig lawsuit. There are a number of defense that Craig parents can pursue in their lawsuit against the school decision to suspend Craig from participating in wrestling to defend his state championship. First, it is very well written in the handbook that the school will make its decision to punish the student base on thorough investigation. This means that the strongest defense Craig parents can use in this case was that the school did not perform a thorough investigation on the allegations and just depended on information that had been provided to the school by a police officer. Although the school had not stipulated what will encompass a “thorough investigation” it is evident that there was no investigation that was carried out and the school just arrived on its decision based on the information from the police officer. The school had not taken further initiatives to carry out its own independent investigation to prove whether the allegation made by the police officers were real of just false claims (Thorne et al., 2001, p. 83). If the school decision is to be pegged on thorough investigation, then the court should order the school to reverse its decision and carry out further investigation before arriving on this decision. There were many avenues present that school could have used to verify the claims by the police officers including carrying out further laboratory tests that could have ascertained the results or getting more information from students who had acknowledged participating the party who could say whether Craig was in the party or not. Second, Craig counsel can use the defense of foul play by the police officer to influence the outcome of the state wresting match. Considering the dynamics of the case presented the wresting match that was to be held at the event would determine who would be given a wrestling scholarship. Since Craig was a state champion, there was likelihood that the police officer could have alleged that Craig had tested positive on alcohol sobriety test in order to prevent him from participating in the wresting event and therefore influence the outcome in favor of another wrestler. In a court case, nothing should be taken for granted and any possible suspicion can become a defense for the plaintiff. There could be possibility of foul play in this case and therefore Craig counsel should use the defense of foul play. Third, Craig did not plead guilty to the allegations. Like in the criminal justice system, there must be a legal process in which individual is proved guilty or innocent beyond reasonable shadow of doubts (Hartley 2009, p. 93). This means that Craig should have been given a chance to defend his position before the school board before being punished. Craig should be given a fair chance to present his case since he had not admitted liability and the school should bring in the possible evident to prove that Craig was in deed in the party. Question 7 The commercial aspects of sports are greatly embodied on names of sport personality. Research has shown that more than their image, sport personality names are of greater commercial use since there are many people who knows sports personality by their names while they may not recognize their image (Epstein 2002, p. 140). This means that the dynamics of this case revolve around the strength of sport personality name and its power factor in marketing. Although Lew Alcindor changed his name to Abdul-Jabbar, most people do know him by his earlier name which means GMC could have used that name intentionally knowing its influence. On the other hand, Abdul-Jabbar may not have the legal rights to claim that name since he has already changed his name and has been playing basketball and getting endorsement under his new name (9th Circuit Court of Appeal, 1996). This means that his old name may not be claimed by any person since there is not one who is registered under that name in state statute. Jabbar had sued GMC under the Lanham Act 15 U.S.C. § 1125(a) for the infringement of publicity although he had not used that name for commercial purposes for a period of ten years. GMC who were the defendant in this case had contested Jabbar claim arguing that he had abandoned the former name and therefore not legally liable to use it. The legal issue in this case was therefore the legal liability of Jabbar to claim the name after abandoning it and not using it for more than ten years and the legal liability of GM to use the name in advertisement without Jabbar consent (Abdul Jabbar v. General Motors, 1996). Under the Lanham Act, Jabbar has the right to protect his name. Birth name is an integral part of the personality that does not go with a change in name. Lanham Act protects commercial parties from unfair competition. GMC has placed false endorsement claims which are cognizable under section 43(a) 15 U.S.C. § 1125(a) in the Lanham Act. This section prohibits use of name or symbol that deceives consumers of association sponsorship or approval of goods or services by another person. Jabbar contended that GMC use of his birth name may confuse consumers on his endorsement of Olds 88 which consequently violate Lanham Act. According to FN3 section 43(a) false endorsement claim holds the party liable for prosecution in a civil action by a person who has been damaged by false endorsement (Abdul Jabbar v. General Motors, 1996). While Jabbar has the legal backing of the Laham Act, there are a number of legal defenses in the case. Jabbar had abandoned his name and even changed it in the constitution. This means that he had no legal right to claim that name or use it in commercials. This means that the plaintiff had for more than ten years not used the name Lew Alcindor in endorsement and therefore he had failed to protect the name and the rights to use it. A legal status further underpin that he had changed his name and he had not legal base to claim any right for the name. This defense is strengthened by Lanham Act. Title 15 U.S.C. § 1127 (1992) that declares that a mark is lost when: (1) its use is discontinued with no intention of resuming it, (2) owners conduct through commission or omissions make the mark generic (Abdul Jabbar v. General Motors, 1996). Another GMC defense is that their use of Lew Alcindor name was like a nominative fair use of name which is a subject of Lanham Act. The outcome of this case was that the court did not accept the GM defenses since abandoning the legal name do not warrant violation of Lanham Act. The legal birth name cannot be abandoned in life even when the name is not used for a long period of time. The court also reject GMs defense that use of Lew Alcindor name as a nominative fair not in the Lanham Act since this use amounted to endorsement by Abdul Jabbar of the product. Under the California state law, the right of publicity protects celebrities from misaprpprotation of their identities which extend to their former name if a celebrity had changed their names. However, Jabbar had suffered a lot of losses in the course of this case. The right to publicity infringement is not limited to economic injury alone but it extends to humiliation, embarrassment, and in most cases mental distress that Jabbar had suffered. Question 8 There have been arguments that lack of loyalty, leakage of private club information, and players’ lack of respect to club managers are some of the factors that are underpinning the need to have loyalty clause in individual players’ contracts (Gardiner et al., 2005, p. 53). This has proposition has been met with a lot of criticism from NFL and the player union claiming that this undermines the freedom of players and empowers the club to take back some of the player’s bonuses (Wise and Meyer 2005, p. 37). Not many clubs have take up this bold initiative but Cincinnati Bengals is one of the clubs that have long considered putting in place this clause in player contracts. Bengals have decided put the loyalty clause in their roockie’s contract to avoid repeat of incidence in 199 when Carl Pickens critics their coach Bruce Coslet cubically (Kaduk, 2000). This was considered as lack of respect to the club and breach of loyalty. Under the new Bengals loyalty clause, players who accept to sign their contract with the clause would have to pay back some of their signing bonuses if they breach loyalty by publicly criticizing teammates, management or the club coach (Brown, 2000). This means that the loyalty clause is merely meant to curb the rising amount of verbal abuses that the club mangers have taken from the players. It is in no way in the interest of the players but rather on club managers. This clause is likely to be a wall between the team managers and the club players. In light of the above analysis of the loyalty clause in the contract, John Jones should not sign the contract with the loyalty clause. This clause as drafted in Cincinnati Bengals is not in the interest of the players but is geared towards protecting the team managers from possible correction by team mates. As a matter of facts, this clause is bringing down the efforts made in any club to reconcile team managers and individual players for optimum performance of the team. It acts as a wall between the managers and players such that the players are left receiving instructions from the team manager without questioning these instructions. In any collaborative teams, there must be conversation between team managers and players but this clause can be misused by the club to vilify the player even when his conversation with the team managers was not meant to criticize the club or management. There will be a lot of legal ramifications if the player signs a contract with this clause. First this clause empowers the club over the player such that if the club thinks that the player has breached the legal agreement, the player is likely to give back some of the bonuses received while signing the contract (Kaduk, 2000). This means that the player is not fully entitled to the bonuses specified in the contract since the club can vilify the player at any time and take back some of bonuses. In other words, the player is not in control of the provisions of the contract and there is a room for manipulation by the club. Second, it means that the player is not supposed to give any suggestion to the club management since this can be taken as criticism of management. There are no detailed specifications in this agreement which outlines the extent of the criticism and therefore players may be punished for issues which do not amount to criticism. This means that this clause is likely to have a lot of legal ramification on the player and may tragically end his career not only with the club but with other clubs as well. To go on with negotiations, there would be not other alternative except for the club to remove the clause from the contract. There have been many players who have negotiated a contract with the club but their agents hurriedly leaves the negotiation table when the clause is mentioned since they clearly understands the effects this clause may have on their clients. If this club was to get important players, it must remove the loyalty clause or look into the provisions of the clause to ensure it not offending to players. Bibliography: Abdul Jabar v. General Motors 1996, Abdul Jamar v. General Motors Daily Journal D.A.R. 1445 Brown, M 2000, Loyalty clauses is needed, Retrieved 14th July 2009 from http://bengals.enquirer.com/2000/07/18/ben_loyalty_clause_is.html Conrad, M 2003, The business of sports, Routledge Cornell University, 2009, Sports Law: An overview. Cornell University Law School Publication Dupuis, J 2008, Steve Moore vs. Todd Bertuzzi, Retrieved 14th July 2009 from http://www.everyjoe.com/hockeybeat/steve-moore-vs-todd-bertuzzi-will-there-finally-be-a-settlement/ Epstein, A 2002, Sports Law, Delmar Cengage Learning Publishers Gardiner, S., James, M., O’leary, J. & Welch, R 2005, Sports Law, Routledge-Cavendish Publishers Hartley, Z 2009, Sport, physical recreation and the law, Routledge Hunter, R. & Mayo, A 1999, The business of Sports, The Mid-Atlantic Journal of Business, Vol. 35, 70-76 Kaduk, K 2000, Bengals Loyalty Clause negates off-season improvements. 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