Select Page

Sports Law
Thomas Jefferson School of Law
Grossman, Randy M.

SPORTS LAW GROSSMAN FALL 2013

I. INTRODUCTION

a. Overview

i. Sports law encompasses many areas of law.

ii. There are statutes relating specifically to sports but they are rare.

· State laws that reg boxing.

iii. Sports “and” the law that impacts that industry.

b. Definitions

i. Davis v. Commonwealth (Ky.Ct.App.1978) – A beauty pageant may not be found within the scope of the definition of “sports contest” because it falls outside the normal usage of the term.

· Ky statute defines “sports contest” as: any prof or amateur sport, athletic game or contest, or race or contest involving machines, persons or animals that is viewed by the public.

· Ds could not be G for tampering w/ the outcome of a sports contest if a beauty pageant fell outside of the definition.

ii. Newman Importing Co. v. US (Cust.Ct.1976) – A sport may be defined as an activity involving the enjoyment or recreation arising from the development or practice of individual skills, diff from those involved in routine daily activities and does not have to possess a competitive element.

· Ct regarded backpacking as a sport and, as such, held that tents that were specially designed for such an activity were nec for that sport and the tents were therefore defined as, “sporting equipment.” (Tax purposes)

iii. These two cases cannot be reconciled and exemplify the fact that the term “sports” is a very ambiguous term subject to many definitions.

· Competition

· Performance

· Final outcome

· Physicality

· Rules

· Winners/losers

· Skills

· Opposition

· equipment

c. Professional Responsibility

i. AFLI v. Roemer (N.D.Ill.1998) – An atty is responsible for providing sound legal advice and should act in the best interest of his client who may sue for malpractice regardless of the client’s sophistication.

· Atty used unethical tactics to preserve a favorable health ins premium for AFLI and then tried to shift blame onto client AFLI b/c they acted fraudulently.

· Even though AFLI is a sophisticated client who presumably acted shady to get the cheap ins premium, they did it by relying on atty Roemer’s legal advice and Roemer is therefore culpable.

· Even though Roemer was not the counsel on record, he was viewed as a persuasive, powerful figure who the AFLI bd looked to for legal guidance, and he did assist in that guidance.

· If a lawyer provides any legal advice, he is responsible.

ii. Passante v. McWilliam (Ct.App.1997) – California Rules of Professional conduct forbid lawyers from entering a business transaction with a client without first advising the client in writing that the client may seek the advice of an independent lawyer of the client’s choice.

· A Floundering Upper Deck was saved by their atty who cared about the co and the co’s success. He arranged for a loan via his own separate sources to keep the co alive.

· Upper Deck certainly breached a moral duty, but all legal claims against them by atty must fall b/c he should have provided proper legal advice, i.e., that his client, Upper Deck, should seek other counsel when entering into a bus transaction w/ current counsel.

iii. In Re Felberg (7th Cir.1988) – A communication is privileged under ALI if made for the purpose of obtaining or providing legal assistance for the client (person must be consulted while functioning in the professional capacity as a lawyer). No attorney client privilege exists if you are not providing legal advice. Corporate counsel will try to protect certain documents or conversations, but if they are not acting in capacity as an attorney, no privilege exists.

· Issue in the case was how atty came into possession of amateur athlete Ks. Atty invoked atty/client priv but ct said that he was merely performing the mechanical task of records searches so no priv existed as he was not acting w/in his legal capacity.

· 15 min conversation may have been privileged however, b/c it was w/ client and may have involved legal advice.

iv. When advertising, cannot make promises/predictions that potential client will win. May however, bring in stars to say, “I had Joe Shmoe as an atty, and I won big $.

v. The rules of professional responsibility apply w just as much force whether an atty is dealing w a sophisticated client, a superstar, or a client that he has a friendship with. Legal responsibility has to come first.

II. FANS

a. Overview

b. Tickets

i. Nature – A ticket is a license that grants the holder permission to use a designated seat during a particular game. Whether it also creates other rights is a hotly-contested question.

· In Re Liebman (Bankr.N.D.Ill.1997) – A ct will generally look to the sports franchises specific policy re: season ticket renewal and as a guide to the rights created in the ticket holders.

o Generally, season tickets do NOT create a prop interest but merely an “expectation interest” as to renewal.

o Illinois defines season tickets as a series of revocable licenses, which may be revoked at the will of the licensor, and the purchase of those licenses does not create an enforceable option to buy in later yrs.

o Bulls were clear about there policy re: 1yr basis, revocable lic, reservation of right to renewal (expectation), and non-transference of tickets to other buyers.

· Dobbs v. Dobbs (N.Y.Sup.Ct.1998) – The rights conferred by a ticket depend on the identities of the parties and the nature of the action.

o Ct found that season tickets acquired during marriage were marital prop by applying the Equitable Dist Law: “term ‘marital prop’ shall mean all prop acquired

restrain free competition in the market for the tied product and a “not insubstantial” amnt of interstate commerce is affected.

1) Two separate and distinct products, a tying product and a tied product;

2) Suff economic pwr in the tying market to coerce purchase of the tied product;

3) Anti-competitive effects in the tied mkt;

4) Involvement of a “not insubstantial” amnt of interstate commerce in the tied mkt.

o Tkt holder’s claim satisfied all except element 3, b/c he could not identify the relevant product mkt w any specificity and that consequently, he cannot prove anti-competitive acts w/o a market to view such acts in.

o “The outer boundaries of a product mkt are determined by the reasonable interchangeability of use or the cross-elasticity of demand b/w the product itself and substitutes for it.”

o Under § 1 of the Sherman Act, “before there can be a conclusion as to whether there has been a K in restraint of trade, a determination must be made as to what are the relevant product mkts w/in which to gauge a firm’s pwr or the effect of its activities.”

o Under § 2 of the Sherman Act, “the use of monopoly pwr, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful.”

iv. Refunds – Tix normally are sold on a no-refund basis.

· Castillo v. Tyson (N.Y.Sup.Ct.1998) – Tkt holders to a boxing match lack privity of K w/ the fighters or the boxing assn and therefore have no legal standing to sue as 3d pty beneficiaries.

o Tyson disqualified for biting Holyfield’s ear is pt of boxing. It’s pt of the thrill of the sport, people pd to see Tyson’s vicious, usu quick ending fights. (KO)

o Tkt holders are merely licensees who purchased the right to witness the bout regardless of the eventual outcome.

o There’s an inherent risk that as a tkt holder/fan, you might get “gypped.” Part of the spontaneity of athletic events.

o Part of the thrill is the unpredictable nature of sports.

o Policy. If such claims re: unsatisfied fans were held to be legally cognizable, then athletes, promoters, and distributors of sporting events would be exposed to countless unforeseeable lawsuits by unsatisfied spectators, and, the notion of privity of K would be impaired.