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SPORTS AND ENTERTAINMENT LAW EXAM 2

ENTERTAINMENT LAW

Chapter 8- Publishing
 Literary Authors
o Literary work: all forms of publication that are specifically created to be read in a
traditional book format
 Technical books: texts that are designed for a specific market or industry and
not meant for general circulation—ex: text book
 Trade books: all nontechnical works- all forms of books that are intended for
dissemination to the general public—can be derived from other sources
 Variety press: applied to works that do not fall into the above categories and
for which a commercial publisher cant be found- derogatory
o Publishing agreement begins with the author acquiring a literary agent
 Literary agent: a person who, for a commission, will negotiate the sale of the
author’s work to a publisher—need to be licensed
 Commission: percentage of the royalties or fees that the author receives for
the work—15% for domestic sales, 20% for foreign sales
 Typically the agent will receive commissions for all exploitations of the work
even if the author eventually employs the services of a new agent
o Services an agent provides:
 Assisting the writer in revising the manuscript to a publishable form
 Marketing the work to potential publishers to which the writer might not have
access
 Negotiating the publishing contract to provide the author with a greater
percentage of royalties than the author may be able to negotiate himself
 Continuing to market the work to secure agreements to exploit the work in
different media
 Encouraging and assisting the author in creating new works
o Types of publishing contracts:
 General contracts for new works for which the author receives a royalty
 Works for hire for which the author is hired to create a specific work for a set
fee with all the rights to the work belonging to the publisher
o In determining when the author should be paid and whether or not the contract was a
work for hire the court looks at:
 Who has control over the material
 Who owns the copyright
 Who initiated the idea
o Greater degree of control by publisher, more likely that it will be considered a work for
hire—rights of the author are limited to the those agreed upon and once the work is
published he loses all rights
o Typical clauses that appear in a publishing contract:
 Description of name and work
 Grant of rights
 Trade paperback: softbound version of a hardbound book that is
published faithfully to the original but in a less expensive form
 Mass market paperback: softbound book that may be substantially
edited from its hardbound version to attract a greater audience
 Advances
 A payment made to the author prior to publication—author retains it
even if the book doesn’t do well
 Royalties
 The set percentage of the sales price the author is entitled to receive
as compensation
 Percentage depends on whether the work is a trade or technical work
and the estimated potential market for the work
 Technical works- grater royalty percentage because sales are more
limited and the selling price is greater
 Subsidiary rights- rights to exploit the work in different media
 Pass through clause
 Allocates subsidiary rights so that the publisher and the author share
such income until a certain amount is realized
 Audit rights
 Permits the author to audit the financial sales records of the publisher
to substantiate that the publisher has paid the author the appropriate
royalty
 Delivery
 Date on which the final manuscript must be delivered to the publisher
 Specifies times for drafts to be delivered for review and revision
 Rare for authors to actually meet these deadlines
 When time is of the essence the author’s failure to deliver the work on
the due date may be treated as a contractual breach
 Warranties and permissions
 Author guarantees that the work produced is an original work
 If the author uses material from another source he needs to provide
releases from the holders of the copyrights for such uses
 Rejection
 Reserve the right for the publisher to reject a work deemed
unpublishable
 Editing
 Grammar, spelling, deletions, rearrangements, and additions to the
submitted work
 Usually final editorial decisions lie with the publisher unless the author
has a tremendous amount of clout
 Non-competition
 Author and publisher cant [produce works that are in direct
competition with the subject publication
 Music Publishing
o Music publishers obtain the copyrights to original music and then license some of these
rights to other entities who produce CDs for retail and performing rights societies
o Performing rights societies act as clearing houses to broadcasters and retailers who
obtain performing licenses directly from these performing rights societies
o Music publishers receive commission that greatly exceeds the commissions permitted to
literary agents
o Functions of a music publisher:
 Introduces the composer to producers
 Finds an artist to perform the work
 Manages the business of promoting the music
 Oversees the composer’s work
 Helps market the music
 Advances money to the composer
 Provides the composer with work
o Typically the composer transfers all of his copyrights to the publisher in a music
publishing contract—right to the work’s title, words, and music—songwriter basically
gives up worldwide control of his work to the publisher
 Public performance rights- enable the holder (the publisher) to license the right
to permit a performance of the work on radio, TV or any other medium
 License is effectuated by the performance society granting a license to
broadcast the music as it wishes—the performance society monitors
the licensee to determine the amount of performance royalties it is
entitled to collect on behalf of the publisher and artist
 Creative rights- enable the publisher to make any changes to the work that it
deems warranted
 Mechanical and synchronization rights
 Mechanical rights: the legal ability to permit the work to be
reproduced in a mechanical format
 Synchronization rights: the legal ability to permit the work to be
reproduced on a soundtrack in synchronization to the visual action
 National Music Publishers Association: represents music publishers in
negotiating and collecting mechanical and synchronization rights
 Print publication rights- permit the publisher to authorize reproduction of the
music as sheet music, orchestrations, and in other printed formats
 Photographers and Visual Artists
o If the work involves the taking of photographs the photographer must be sure to obtain
appropriate releases from the subjects so photographed unless the object of the
photograph is in a public forum with no expectation of privacy
o Publisher can permit the artist to retain the copyright in the original photograph
o Contract should specify who bears the risk of loss of the original artwork if its lost or
damaged during the production process
o Artist usually has the right to have the work returned to him if the publisher hasn’t
published it after a period of time
o One of the most important considerations concerns the nature of the credit that will be
allocated among all of the artists who contribute to the finished work
o Labels: method of indicating the degree of contribution each artist has made to the
publication
 Co authors- each person contributed equally to the end product
 Based upon- the publisher indicates that the publication was not an original
idea but was derived from another source
 Adapted from- an original work created from a preexisting work
 Electronic Publishing
o Easy access to vanity presses
 Companies provide access for writer to have their works published online
 Provide editorial services, arrange an ISBN for the work, format the material
and sell it over the internet
o Greater profits for the author
o Copyright protection

Chapter 10- Entertainment Law and Cyberspace


 Cyberspace
o The term used to refer to computer technology and the Internet
o Cyberlaw: the legal implications and principles associated with cyberspace technology
o Important both as a method of disseminating the entertainment product and as a
method by which certain legal rights with respect to those products may be infringed
o Obscenity
 Material that is considered to be obscene (panders to prurient interests) may
be circumscribed by the government with respect to its production and its
dissemination
 Dissemination of porn is restricted to adults
 Communications Decency Act: enacted by Congress to limit access to porn over
the internet by minors
 Knowing transmission of porn to persons under the age of 18 over the
internet was deemed a crime
 Since its hard to know if a person is not lying about age over the intent
the provisions of the statute were challenged as being
unconstitutionally vague
 Child Online Protection Act
 Makes it a crime to make any communication for commercial
purposes that is accessible to any minor and that includes any material
that is harmful to minors
 Deemed unconstitutional for overbreadth- its wording was too
inclusive
 Therefore no law has been able to pass a constitutional challenge so as to limit
the access to porn by minors over the internet
 Filtering software: computer program that can screen out specifically
designated material
o Defamation
 Bulletin board site: a site that provides info on various topics for its subscribers
 Legal questions: the responsibility of the provider for the content of the
material that appears on these sites
 Courts wont hold the provider liable depending upon the degree of control the
provider exercises over the material that is posted on the board
o Encryption
 The use of a code or codes to secure material transmitted by means of the
internet
 Problems associated with encryption
 Whether the software that creates these codes is copyrightable as
intellectual property
 Whether the sale of such software could involve security risks for the
government
 Because encryption is an outgrowth of speech and the intellectual
process it can be copyrighted and licensed
 Encryption programs were specifically categorized for export in the
1990s- software could be freely exported w/ 2 exceptions
o Software cant be exported to countries deemed to present a
security risk to the US
o Anyone selling encryption software to a government must
first obtain a license from the US government
 Copyrights and Trademarks
 MP3
o A digital format that can be used to store vast amounts of
music in a limited space with almost no loss in the quality of
the recording
o The Recording Industry Association of America has attempted
to enjoin the production of MP3 programs and has sued for
copyright infringement
o Digital Millennium Copyright Act: passed to implement the
world Intellectual Property Organization Copyright Treaty and
the WIPO Performance and Phonograms Treaty
o DMCA- makes it illegal to use any technology that
circumvents copyright protections
 Deep-Linking
o A method that permits the use of one web site to link onto
another web site without first having to access the second
site’s homepage
o Framing- one web site appears in a window on another web
site
o Rights of the framed web site may be infringed
 Domain Names
o Domain name- a unique name that identifies a particular web
site in the same manner that a corporate name identifies a
specific corporation
o Usually trademarked
o Assignment of domain names comes under the auspices of
the Internet Corporation for Assigned Names and Numbers
 Licenses organizations to assign unique domain
names
o Uniform Domain Name Dispute Resolution Policy (UDRP)
 Mandates the arbitration of domain name disputes
 To initiate proceedings the challenger to the domain
name must prove:
 The domain name is identical or confusingly
similar to the marked name
 The challenger has the mark to that name
 The domain name holder has no right to the
marked name
 The domain name was registered in bad
faith
 Bad faith- factors considered
 Circumstances indicating that the registrant
only registered the domain name primarily
to sell or transfer the name to the mark
holder or its competitor for value
 The domain name was registered to
prevent the mark holder from using the
mark as a domain name
 The name was registered primarily to
disrupt the mark holders business
 The registrant intended to acquire the
name to confuse the public so that they’d
believe they were dealing with the mark
holder
o Anticybersquatting Consumer Protection Act (ACPA)
 Federal law designed to prevent cyberpiracy
 Provides civil remedies to a mark holder if it can
prove that the domain name holder has a bad faith
intent to profit from the domain name and registers
a name that is protected as a registered trademark
o Cyberpiracy- the registration of a domain name containing a
known name with the intention of selling it to the owner of
the trademarked name or to a third party for financial gain
o Factors that automatically indicate bad faith:
 Using the domain name in connection with a porn
site
 Providing inaccurate or false info in the registration
of the domain name
 Using a deliberate misspelling of a famous
trademark (typo-piracy)
 The name was deliberately designed to confuse
users with respect to the identify of the seller of the
site’s products
 No web site is created after the domain name is
registered
 The offer to sell the domain name to the mark
holder
o UDRP doesn’t provide protection for personality rights or
privacy rights for personal name use
o Jurisdiction for proceedings under UDRP is based on the
agreement between the license registrar and the registrant
 International Protections
o WIPO: international organization created to protect copyrights and intellectual property
worldwide
o WIPO Copyright Treaty: designed to protect copyrights worldwide
o WIPO Performance and Phonograms Treaty: protects rights for performances and
phonograms
o Berne Convention: convention for the protection of literary and artistic works
o Convention on Cybercrime: the first international treaty on crimes committed via the
internet- focuses on the protection of copyrights and recognizes the need for
cooperation between states and private industry in the war against cybercrime
 Cyberlaw Jurisdiction
o Factors considered when determining which court has jurisdiction over internet issues:
 Where the web site is located
 The laws of the state where the internet provider is located
 The laws of the county where the internet provider is located
o Civil Cases
 Determination is subject to the due process clause of the fourteenth
amendment
 No person shall be deprived of the right to due process of the laws
 Court must have subject matter jurisdiction and person jurisdiction
over the parties or property in question
 Subject matter jurisdiction- filing the claim in a court that is authorized
to hear such cases
 In personam (personal) jurisdiction- having jurisdiction over the
persons against whom action is being brought
 Ways to establish personal jurisdiction
o Long Arm Statute- aggrieved person can show that the long
arm of the law should reach outside the states natural
boundaries
o Applies if the aggrieved person can show that the wrong doer
purposefully established minimum contacts with the forum
state
o Three prong test for establishing minimum contacts
 Whether there is purposeful availment on the part
of the aggressor
 Whether the claim arose out of the wrongdoers
activities
 If subjecting the wrongdoer to jurisdiction would
offend the traditional notions of fair play and
substantial justice
o Criminal Cases
 Child porn
o Cyberlaw jurisdiction for international cases
 Supreme Court ruled that there is a higher jurisdictional threshold for
international matters
 Convention on Cybercrime sets out guidelines- parties shall adopt legislative
and other measures to establish jurisdiction when the offence is committed
 In its territory
 On board a ship flying the flag of that territory
 On board an aircraft registered under the laws of that party
 By one of its nationals if the offense is punishable under criminal law
where it was committed

SPORTS LAW

Chapter 1- Sports Agents


 Who is a Sports Agent?
o Sports agent: advocates and represents the legal and business affairs of a professional
athlete, usually for a fee
o Someone who solicits the services of a student athlete with remaining collegiate
eligibility to represent that student athlete when the time comes to negotiate a pro
sports contract
o Agent charges the student athlete a fee for the negotiation of such a contract
o Agents have a fiduciary relationship with their clients—promoters, managers, contract
advisors, player reps
o Qualifications to Become a Sports Agent
 No specific qualifications
 Sports governed by a collective bargaining agreement- agents may need to
attain certain educational requirements
 NFL Players Association- requires a 4 year college degree from an accredited
institution to represent NFL players
o Professional Leagues
 NFL, MLB, NBA, and NHL play associations serve as unions and regulate fees
that the agent may charge the player
 Capable of dismissing the agent from the ability to represent players within
that sport for violation of its policies and procedures
o Formal Education to Become an Agent
 No typical formal education program
 Usually law degree—competitive advantage
 General Agency Law Principles
o Agency law- allow another to act on behalf of a principal (one who grants another the
right to act on his behalf)
o Scope of employment: responsibilities an employee carries out on behalf of an
employer
o Agent enters into an agreement with a principle to further the interests of the principal
o Fiduciary Duties
 Duty of loyalty
 Duty of care
 Duty of accounting
 General duty to act as a fiduciary for the client principal
 Best interests and in good faith
 Exclusive contract: agreement for sole rights to sponsor, promote and advertise
between an agent and an athlete
 Nonexclusive contracts are acceptable when outsourcing media and marketing
efforts to other firms for a flat fee
 History of Sports Agency
o Traced back to 1925 when Red Grange hired an agent to negotiate his pro football
contract
o Mark McCormack and Arnold Palmer- changed the manner in which sponsors deal with
pro athletes
o Athletes usually use smaller agencies once they have established their market value
 Agent Hierarchy
o Different levels of sports agents- major league level which have forms of minor leagues
o Agents in the NFL, MLB, NBA, and NHL- subject to strict rules imposed by players
associations and state regulations
o Diff world of profitable sports agency relationships- Olympic sports
o Agents predominately male
o Female agents- due to increase in pro female athletes, effects of Title IX, advent of
WNBA and pro women’s teams
o Winter sports, bodybuilding and fitness competitors enlist the help of a rep to assist
them in managing their daily affairs and to obtain sponsorships appearances and other
endorsements
 Agent Roles
o Main rule: managing daily affairs of the athlete
 Dealing with the media
 Negotiating contracts
 Marketing the athlete’s image to prospective future employers in the same
league
o Also can assist in selecting what events to compete in, what kind of insurance the
athlete should secure, and which sponsor or team best serves the athlete
 Agent Regulation
o No current federal regulation of sports agents
o State laws have created chaos in terms of regulation of agent activities
o Runners- agents’ recruiters
o Competition for recruiting student athletes is becoming more fierce
o State Regulation of Sports Agents
 Civil and criminal penalties
 34 states regulate agents
 Req’d to register with the Sec of State of the state in which they recruit a
student athlete
 The Sports Agent responsibility and Trust Act was introduced as a bill0 would
allow the FTC to regulate any deceptive or certain unfair conduct by sports
agents relating to the signing of contracts with student athletes
o Push Toward Uniform Laws
 National Conference of Commissioners on Uniform State Laws (NCCUSL)
adopted the final version of the UAAA in 2000
o Testing Sports Agents
 Agents are req’d to pay state fees to recruit student athletes in states with laws
governing sports agents but they don’t pay the fees so now agents are being
tested
o Importance of Focus of Agent Laws
 The UAA doesn’t apply to an individual who doesn’t solicit or recruit college
athletes who have remaining eligibility
 People can be sports agents in states that have adopted the UAA if they don’t
recruit student athletes with remaining collegiate eligibility
 UAAA doesn’t apply to athletes or agents who have already exhausted their
intercollegiate amateur eligibility in a specific sport
o Violators of State Agent Laws
 Enforcement of state laws is really difficult, expensive, and usually not pursued
except in the most obvious cases
 Florida is toughest
o Statutory Framework
 Most states have a statue that provides for penalties for violations of the
state’s sports agent act
o Sports Agent as Lawyer
 Licensed lawyers face stiff penalties if their sports agent activity falls under the
practice of law category as defined by the state
o Professional Codes of Ethics
 Licensed lawyers may be at a disadvantage to nonlawyer agents when it comes
to recruiting clients
 Model Code of Professional Responsibility: model act for ethical conduct by
attorneys adopted by the American Bar Association now replaced by Model
Rules of Professional Conduct
 Licensed lawyers are subject to provisions that nonlawyer sports agent aren’t in
regard to advertising, solicitation, and splitting fees
 Sports Agent Fees
o When an agent is required to register with a players union they are required to
complete applications and pay a fee
o Caps regulate fees in these sports that agents may charge for negotiation of salaries and
sometimes endorsements
o Many states haven’t attempted to regulate agent fees
o States Regulating Fees
 34 states regulate sports agents
 Fees between 10 and 20% of an endorsement contract are reasonable
 Regulation by Players Associations/Unions
o Regulating sports agents allows for the free exchange of important salary info and for
punishing unethical or unprofessional conduct by or on behalf of the agent
o PA’s are the exclusive collective bargaining agents for the players and are subject to the
rules and procedures set for in the National Labor Relations Act
o NFLPA
 Agent needs to register with the NFLPA before representing an NFL player
 Written take home test
 College degree
 Cant bribe players or prospective players
o MLBPA
 Agents need to be certified by the MLBPA
 No limit as to the fee an agent may charge as long as the player is still entitled
to the minimum salary for that players particular position in the league
 Cant induce clients with money
o NHLPA
 Doesn’t cap agent fees as long as the player earns minimum salary after the
agent is paid
o NBPA
 Certifies agents
 Players must use certified agents to rep them during contract negotiation or
they can negotiate themselves
 NCAA Student-Athletes Turning Professional
o Its not against NCAA regulations for an agent to contact a student athlete but some
state laws prohibit such conduct
o If a student athlete merely agrees to be represented by an agent orally or in writing that
student athlete may have to forfeit his remaining collegiate eligibility
o Norby Walters and Lloyd Bloom- sports agents charged with racketeering, conspiracy,
and fraud in recruiting student athletes
o Professional Sports Counseling Panels
 Groups formed by colleges and universities to advise student athletes on
potential careers in professional sports
 Designed to assist student athletes

Chapter 2- Sports Contracts


 Sports Agents and Contracts
o Hiring a lawyer isn’t req’d for securing deals for an athlete
o Its generally accepted that when athletes wish to represent themselves, there may be
too close of a relationship between the players and team or sponsor to maintain an
objective approach to negotiation
 Personal Services Nature of Sports Contracts
o Special, nonassignable contract providing unique talents, abilities, and skills
o Public Nature of Sports Contracts
 Even though general contract principles may apply in sports contracts, they are
so important to the particular league and it becomes a public matter of debate
 Going rate often becomes a public discussion
o The Occupation of the “Athlete”
 Sports contract has an impact on many many individual lives
 One athlete contract can affect the well-being of an entire organization in the
sports industry in both team and individual sports
 Try to urge student athletes to abandon amateur status to be compensated for
their services as a pro
 General Contract Law Principles
o Contract: legally finding agreement- represents meeting of the minds
o Offer and acceptance
o Consideration
o Valid- legally binding
o Void- not enforceable
o Voidable0 can be voided b one of the parties
o Minors can void a contract while still a minor but must put the other party back in the
position it was in prior to forming the contract
o Sports contracts- almost always in writing
o Good faith- UCC doesn’t apply to services per se but there still needs to be good faith,
reasonableness, and trust
 Offeror- the master of the offer- has the duty to avoid creating ambiguities in
an offer
 Categories of Contracts
o Professional services contracts
o Endorsement contracts
o Appearance contracts
o Athlete is a member of a team his contract may be affected by others member of that
team due to a league salary cap
o No limit as to the amount that an athlete may request for his own services when it
comes to endorsement and appearance contracts
o Team Contracts versus Individual Contracts
 Usually receive a standard player contract if part of a team—only diff between
team members contracts is salary, bonuses, and the option to renegotiate
o Professional Services (Standard Player) Contract
 SPK- boilerplate contract between a league and a professional athlete
 Boilerplate- fixed or standard contract terms that generally are not negotiable
 Collective bargaining agreement- contract between a league and a player’s
association
 Sports that don’t have league status- SPK contracts are replaced by an
endorsement contract by a sponsor of a special team or individual
 Salary cap in the NFL- maintain a competitive balance and control escalating
player salaries
o Endorsement Contracts
 Contract in which a sponsor agrees to pay a fee or provide product to an
athlete in exchange for using the athlete’s name or image in its promotions
 Not conducted as an employer-employee relationship—contractor-
independent contractor
 Tax withholding, insurance, and workers compensation are usually not afforded
in this arrangement
 Terms are left up to the financial resources of the endorser or sponsor and the
creativity of the parties
 No set rules
o Appearance contracts
 Agreement that the athlete will appear in person on behalf of a sponsor’s
promotion
 Drafting the Sports Contract
o Group licensing arrangements- players are compensated by licensing their names and
likeness in group package deals to video games, card companies, etc
o Think of what can go wrong when drafting a contract
o Clauses
 Title- name the agreement
 Describe the parties
 Term
 Purpose
 Duties and obligations
 Compensation
 Exclusivity
 Confidentiality
 Termination
 Nonassignment
 Alternative dispute resolution
 Modification
 Governing law
 Merger
 Signature line
 Waivers
 Covenants not to compete
 Exhibits and other addenda
o Courts usually don’t favor private parties agreeing to give up certain rights when it
comes to contractual relationships but a waiver can allow the parties avoid liability in
the event of a certain condition occurring
o Implied contracts
 Contract created by the courts as an obligation in the absence of an agreement
to prevent unjust enrichment by one of the parties
 Quantum meruit- term used to describe amount of compensation that must be
paid under an implied contract to prevent unjust enrichment by one of the
parties
 Implied contracts are almost nonexistent in sports but courts can still exercise
quantum meruit in the vent a contract is breached or begun under uncertain
terms
 Damages and Remedies for Breach
o Remedies
 Specific performance: remedy as ordered by a court to enforce a contract in its
exact form where money damages would be an inadequate form of
compensation for a breach
 Most sports contracts aren’t subject to specific performance
 Compensatory damages- the amount of money necessary to make up for the
economic loss caused by breach of contract
 Consequential damages- economic loss caused indirectly by a breach of
contract
 Liquidated damages- damages specified in the contract itself- agreed upon
damages
 Punitive damages- punish the wrongdoer in a breach of contract action- used
to prevent future damage- not based only on economic loss- not recoverable
 Mitigation of damages- victim of a breach of contract cant let economic losses
pile up and alter sue the other party
 NCAA Contracts and Amateurism
o Largest amateur organization in the US related to the regulation of student athletes
o Student athletes may compete for a max of 4 years while attending a college or
university
o Membership is entirely voluntarily
o Evolution of Amateurism
 Student athletes cant be paid in cash
 Pro athletes can participate in the Olympics now
o Other NCAA Contract Issues
 Drug tests
 Transferring schools
 Credit hours for school
o Letter of Intent
 Student athletes are the beneficiaries of athletic scholarships
 Letter of intent- form prospective student athletes sign committing to attend a
college or university
 In exchange for playing for the school the student gets tuition, room and board,
and books
 Health Club Contracts
o Agreements typically regulated by state consumer protection acts to protect health club
members from potential abuses

Chapter 3- Sports Torts


 General Tort Theories
o Tort theories are not mutually exclusive—a plaintiff can sue under one or more of the
legal theories
o Negligence- cornerstone of tort law
o Intentional tort: tort closely related with crimes in which the tortfeasor intended to
commit an injury to another
 Usually the civil version of most criminal cases
 Negligence doesn’t require intent—reasonable person standard—test used to
determine whether, in hindsight, a person acted reasonably
 Products liability- tort law focusing on a defect in design, manufacture, or
warning
 One of the areas of tort law most likely to result in a lawsuit
 Strict liability- liability for an activity that involves an ultra-hazardous activity
 Not usually used in sports torts
o Negligence
 Important- whether or not the defendant acted as a reasonable person would
have acted in the same situation
 Ordinary negligence- plaintiff demonstrates the defendant failed to use the
ordinary care of a reasonable person
 If the defendant didn’t act as a reasonable person then he is either completely
or partially liable for damages—determine this first then try to establish
negligence
 Analysis of negligence- plaintiff must demonstrate:
 The defendant owed a duty of care to the plaintiff
 The defendant breached that duty in the form of unreasonable
conduct
 The defendant was the proximate cause of the breach of duty
 There is evidence of damages
o Contributory Negligence vs. Comparative Negligence (Fault)
 Contributory negligence: failure of plaintiffs to take reasonable precautions for
their own safety
 If the plaintiff is found to have contributed to his own injuries in any way his
claim will fail
 Strongest defenses in sports—the plaintiff assumed the risk of being a
participant
 Assumption of risk would limit the liability of the defendant to no liability at all
in a contributory negligence state
 Most states recognize comparative negligence: standard in which damages are
rewarded based on the degree of fault among plaintiff and defendant; typically,
plaintiff’s degree of fault must be 49 percent or less to recover damages
 The trier of fact (judge or jury) allocates a numerical percentage of
fault to the litigants in the case
 Sports- most states only allow recovery for sports injuries when the
level of conduct on the part of the defendant far exceeds that of the
ordinary rules of the game
o Gross Negligence and Recklessness
 Gross negligence: failure to use a small amount of care to avoid harm to a
plaintiff
 Recklessness: such a high degree of carelessness that most courts view the
harm to the plaintiff as intentional, making punitive damage awards likely
 Difficult to prove
 If plaintiff is successful he can recover- punitive damages and general
damages for pain and suffering
 Spectator Injuries
o Courts refuse to allow recovery for injuries to spectators caused by the open and
obvious rules of the fame, particularly when it comes to foul balls—universal rule
o For other sports (not baseball and softball) signs should be posted but if the sign is at
issue courts focus on analyzing the adequacy of the posting of the sign
 No Fly Zones
o Large crowds- greater likelihood of injuries to spectators
o Federal Aviation Association (FAA) proposed a rule that would add a provision to the
existing regulations that would allow more flexibility in designating temporary flight
restriction zones in the vicinity of aerial demonstrations
 Temporary no fly zone- areas established by the FAA in which airplanes and
helicopters may not travel without prior consent
 Now many colleges and universities have a TFR during regular season games
because of the NCAA’s petition for TFRs during these games
 Wrongful Death
o Death caused by tort- someone dies as the result of personal injury
o Civil equivalent of one of the varied forms of homicide, including murder
o Need to provide protective screening and appropriate warnings for participants and
spectators
 Malpractice in Sports
o What if a trainer suggests an injured player play in a game for the teams best interest
but its not for the players best interest? Who does the trainer owe a duty to?
o Malpractice: negligence by a professional person, such as a layer or physician- anything
from improper diagnosis to the prescription of the inappropriate medication
o Courts use the “locality rule” and compare the alleged negligence of the physician to
other physicians in the same geographic area or practice specialty
 Sports Officials
o Officials are monitored by replay- ensure subjective regulation
o Officials are subject to harassment, intimidation, and sometimes violent displays of
abuse from fans, players, and coaches
o Officials have immunity from lawsuits for alleged intentional improprieties
o Immunity only applies to unintentional, negligent acts by the officials
o Protection isn’t absolute- intentional or grossly negligent acts aren’t protected by the
law
 Worker’s Compensation
o Sports that involve a PA or union- compensation for injuries to an athlete is a prime
subject for any collective bargaining agreement
o Workers compensation- form of insurance required by the state to provide benefits to
employees who are injured on the job
o Independent contractors- not covered under workers comp statutes
o Being an employee is required to file a workers comp claim- need to be a pro athlete
paid for services
o Student athletes cant file for workers comp by the NCAA has established a Catastrophic
Insurance Plan that covers every student who participates in college sports
 Insurance
o Events and participants should purchase insurance to protect against a claim of
negligence arising from that activity
o Insurance doesn’t relieve someone from negligent behavior
o Having insurance does ensure that if a judge or jury believes that damages should be
awarded fro an injury arising from the activity the insurance company stands in the
shoes of the defendant and must therefore pay in accordance with terms of the
insurance policy—indemnification or subrogation
o Wise to get an underwriter to provide coverage for ones own participation in the
activity
 Career ending injury insurance
 Usually requires large premiums to maintain because of the potential for great
financial loss
 Torts and Waivers
o Courts don’t favor a form of contract called a waiver (release, disclaimer, exculpatory
clause)
o Purpose of waiver: relieve a party from liability and/or relinquishing the right of an
inured party to pursue legal action in the vent of an injury
o Courts will uphold waivers as long as they waive ordinary negligence as opposed to
gross negligence or recklessness
o Waivers that are found to have been an attempt to contract out of liability for gross
negligence are likely to be unenforceable
o Waivers signed by minors- void or voidable
o Ticket Stubs and Waivers
 Waivers found on the back of ticket stubs are generally unenforceable because
there was no intent on the part of the fan to agree to such terms
 Lack of informed consent is another issue
 Matter of public policy
o Minors and Waivers
 Waivers often signed by parents of a minor to avoid liability or give up the right
to sue in the event of an accident that causes injuries
 Law is unclear about whether parents who sign waivers on behalf of their
children will release a potential defendant from liability to the minor
 Analyze on case by case basis when deciding whether to enforce a parent
signed waiver
 Statute of Limitation
o Amount of time a plaintiff has to file a lawsuit
o If plaintiff fails to bring claim within a particular time frame then the claim will be time-
barred and forever lost
o Usually one year from time of injury or when injury was discovered (whatever is later)
 Intentional Torts
o When an individual intends to bring about injury to another
o Assault, battery and defamation
o Intentional torts differ from negligence in that a person’s motivation may be considered
(similar to mens rea in criminal law)
o Defamation of Character
 Intentional tort whereby a false statement is published (libel) or spoken
(slander) about the plaintiff
 Opinion- protected
 Plaintiff needs to prove the statement was knowingly false or it was made with
reckless disregard to the truth—actual malice standard
o Intentional Infliction of Emotional Distress
 Intentional tort in which the defendant causes emotional distress by extreme
or outrageous conduct
 Can recover for purely mental and emotional injury without physical illness
o Intentional Interference with Contractual Relations
 Intentional tort of interfering with a known contractual relationship with the
intent to induce one of the parties to breach
 Elements:
 Existence of contract
 Intentional interference with that contract by a nonparty
 Causation
 Damages to a club or organization as a result of the interference
o Commercial Misappropriation
 Tort of intentionally using a person’s name, image, or likeness without
permission for personal gain and profit
 Athletes need to be cognizant to protect from unauthorized misuse of their
image
 Establishing a trademark for ones name might be necessary for pro athletes
 Products Liability
o When plaintiffs sue a manufacturer of sporting goods, the claimants allege that they
suffered an injury due to the use of a product that was defective
o Manufacturing defect or design defect
o Also be sued for failing to warn the user of potential dangers involved with using the
product
o UCC is often called into play
o Breach of warranty of merchantability- implied promise that a product will be
merchantable and fit for its ordinary use
o Breach of implied warranty of fitness for a particular purpose- implied warrant that
arises when a seller of goods knows the particular purpose for which the purchaser
needs the goods
 Strict Liability in Torts
o Rarely arises in sports
o Seller of sporting goods is liable for any harm that is caused to a plaintiff due to a
defective condition unreasonably dangerous to the user or consumer

Chapter 4- Sports Crimes


 Crimes against the person: assault, battery, robbery, hazing, murder, rape, and kidnapping
 Crimes injurious to property: arson, trespass, vandalism, and theft
 Crimes affecting the public health and welfare: blackmail. Illegal gambling, and prostitution
 Crimes against the government: tax evasion, treason, RICO violations, and terrorism
 Variety of Crimes
o Sports gambling: illegal in most states and of particular interest to professional and
amateur sports leagues
o Ticket scalping: buying tickets to sports events and then reselling them for a profit,
usually well in excess of face value
o Sports bribery: illegal influence over an athlete, coach, referee, or other participant to
affect the outcome of a sports event
o Sports agents who fail to register with the appropriate state agency or those who offer
financial inducements to a student athlete may be subject to criminal and civil penalties
o Relationships to Torts
 Criminal law is designed to deter deviant and unlawful behavior and punish the
wrongdoer for transgressing society’s statutory rules and morals
 Unlike torts- someone guilty of a crime is subject to jail time and fines rather
than just monetary damages
 General Criminal Law Principles
o Burden of proof- need to prove criminal case beyond a reasonable doubt
 More difficult than the preponderance of evidence test in tort law
 Immoral behavior bears no direct connection to criminal law—crime is only
committed by violating a criminal statute
o Defenses to crimes- category in which the criminal defendant alleges lack of intent to
commit a crime, self-defense, or another reason to plead not guilty to a criminal charge
 Player reasonably fears imminent harm by an opposing player the self-defense
defense can overcome the prosecutions attempt to show intent to injure by the
same individual
o Criminal intent
 Essence of criminal law is that the perpetrator has formed the intent to commit
a crime and then carried out that intent
 Mens rea- intent
 Actus reus- the act itself
 Attempted crime can be punishable even if not successful
 Since violent acts in sports aren’t normally considered unlawful, charges are
rarely filed against athletes or between athletes
o Felony vs. Misdemeanor
 Felonies: crime punishable by more than 1 year in prison
 Misdemeanor: crime punishable by up to 1 year in country jail
o Assault and Battery
 Assault: a willful attempt or willful threat to inflict injury upon another person-
intentionally placing someone in fear of imminent bodily harm
 Battery: the actual intentional physical contact- a successful assault
 Aggravated crime: crime involving the use of a weapon and/or causing serious
bodily injury
 Sports Violence
o Governmental legislation
 Prosecutors rarely charge athletes for acts committed during a game
 There have been attempts at the federal level to regulate sports violence
o Internal League Controls
 Sports leagues and other governing bodies police violence in sports by
providing punishment (eg: penalties) for such misdeeds
 Objections to leagues controlling violent behavior—their actions haven’t gone
far enough- penalties don’t stop players from doing it again
 Crimes Against the Person
o Illegitimate Sports Violence
 Figuring out the line between acceptable (within the rules) and unacceptable
(outside the rules)
o Regina v. Green and Regina v. Maki
 Maki was dismissed under the theory of self defense but the court refused to
differentiate between sports contests and real world violence
 Green was found not guilty because it was held that his actions were an
involuntary reflex to be part of the roughness of the game
 No conviction resulted from either case
 Court noted that sports weren’t immune from criminal prosecution
o State v. Forbes
 Forbes beat up Boucha and pounded him into the ice and Boucha suffered a
fractured eye socket
 Forbes was charged with aggravated assault by use of a dangerous weapon (his
hockey stick)
 Judge declared a mistrial and prosecution decided to not go through with the
case
 First serious attempt to prosecute a pro athlete for a crime
o Hackbart v. Cincinnati Bengals, Inc
 Not criminal case
 Court demonstrated the involuntary reflex defense to aggressive contact during
a sports contest
 Even a football player may be held responsible for injuring an opponent if he
acts with the reckless disregard for the opponents safety
o Dino Ciccarelli
 Ciccarelli pounded a guy in the mouth repeatedly
 He was found guilty of criminal assault and served one day in jail and had to
pay a $1000 fine
 First ever jail sentence for a pro athlete for violence that occurred during a
sports event
o Fans and Spectators
 Philadelphia- fans are so bad that a municipal court is under the field and it
hears cases involving disorderly conduct, public intoxication, etc
o Sports Officials and Crimes
 Prosecutors are generally hesitant to pursue a criminal charge since its
generally held that crimes against the person involving a sports contest may be
immune from suit
 Crimes Affecting the Public Health and Welfare
o Ticket Scalping
 The process of legitimately purchasing a ticket from a primary seller and
reselling it on the street for more money
 Few states regulate or outlaw scalping
 Purpose of prohibiting scalping is to prevent the general public from being
squeezed out by scalpers
 Other hand- scalpers run the risk of poor demand for certain events and then
are forced to either take a loss on a no sale of a ticket which benefits the
general public
 States that do have laws governing scalpers usually limit scalpers’ activities by
one or more of the following:
 Requiring a license, fee, or other tax to work as a scalper
 Limiting the amount that a scalper may resell the ticket in terms of
actual dollar increase, max, or percentage of stated ticket price
 Establishing a ceiling on the number of tickets an individual scalper
may sell for a profit
 Limiting the resale to no higher than the actual price stated on the
ticket
 Restricting the geographic location of a sale of a scalped ticket in
terms of distance away from an event
 Most ticket scalping laws are misdemeanors and difficult to enforce
o Sports Gambling
 Gambling of some form is legal in 48 states and DC
 The Professional and Amateur Sports Protection Act- prevents states from
sponsoring sports based betting other than in Nevada, Oregon, Delaware, and
Montana
 Since gambling affects interstate commerce the federal government can
regulate it
o Sports Birbery and Game Fixing
 Addressed by fed legislation and state laws
 Fixing a game is usually associated with basketball
 Legislation guards against bribery I n sports contests by providing for fines
and/or imprisonment for such influential conspiracy and clear conflict of
interest in the game
 Crimes Against the Government
o RICO- prevent illegitimate organizations from engaging in a mock business enterprise to
profit through the use of bribery and extortion
o Illegal drugs