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Sports Law
University of Toledo School of Law
Rapp, Geoffrey C.

Commissioner/ Drug Testing/ League Organ.
·         Commissioner decisions
o       Reviewable
§         Bad faith
§         Public policy violation
§         Abuse of discretion
§         Clear violation of league constitution
o       Not reviewable
§         Especially when gambling is involved (Molinas)
o       Some limitations on punishments
§         Atlanta Baseball Club….look at itemized powers of commish
§         Sprewell…specific details of punishment second-guessed and viewed in light of the CBA
§         Baseball…nearly unlimited power under CBA “in best interest of baseball”
·         Drug Testing
o       College and high school…limited restrictions
§         Test for constitutional right to privacy
·    Legally protected privacy interest
·    Reasonable expectation of privacy
o       Advance notice
o       Athletes
§         Diminished expectation (naked ofent)
o       Band members
§         No diminished expectation
·    Serious invasion of privacy interest
o       How the test is administered
o       Threshold question
§         Why the need for teams and leagues to take additional action (from criminal law)?
§         Distinctions
·    Investigating vs. Disciplining
o       Investigating may not need to be negotiated with union
·    Performance enhancers vs. recreational drugs
o       Why ban performance enhancers?
§         “Leveling the playing field”
§         Fan preferences
§         Concern about player health / arms race
o       Why ban recreational drugs?
§         Health
§         Role models
§         Association with criminals
o       Pro Leagues
§         Drug testing….MANDATORY subjects of collective bargaining
§         Less litigation than college (due process concerns)
§         Contract issue (rarely in court)
§         Pro horse racing
·    Regulatory agency sets testing standards
§         NFL
·    Stiffest penalties
§         NBA
·    Fewest problems
§         To have teeth…need random, unscheduled, on and off-season testing
·         4 Models of a League
o       League creates and controls league (centralized)…MLS
o       True democracy (team vote on everything
o       Teams delegate authority to league office (most sports)
o       No league (separate entities work independently)
·         What is a Sport? (Brindisi v. Regano)
o       Athleticism
o       Competition
o       Scoring
o       Teamwork
§         Main contract principal of importance in sports: Lumley rule
o       Courts allow negative, but not affirmative injunctions in personal services contracts
§         Players can “hold-out”
§         Commissioner approval….NFL SPK
o       Section 18
§         The Commissioner can disapprove this contract on reasonable grounds, including
·    an attempt by the parties to abridge or impair the rights of any other club
·    uncertainty or incompleteness in expression of the parties’ respective rights and obligations
·    or conflict between the terms of this contract and any collective bargaining agreement then in existence.
§         Approval will be automatic unless . . . the Commissioner notifies the parties either of disapproval
§         Contracts
o       Handwritten provisions trump typed provisions (Packers)

f out as an expert
NOT AN ELEMENT – misleading statements
Career advice is not legal advice (Brown v. Woolf)
o       Fiduciary Duty View
§         Duty of loyalty (C of I)
·    Conflict of Interest
o       Lawyer/Agent: are ethical duties “directly adverse”
o       Non-L: financial conflict of interest
o       Agents cannot sue other agents for taking a player
·    Full disclosure is required
§         Duty of care
§         Federal Regulatory Framework
·    RICO and wire fraud prosecutions of agents who “tamper” with college athletes
·    Sports Agent Responsibility and Trust Act (SPARTA) (2004), 15 USC 104 (on web site)
§         State Regulatory Framework (Uniform Athlete Agent Act)
·    Licensure and certification
·    Requirement of K to be written
·    Contain clear statement of fees/expenses
·    Warning to student about loss of eligibility (font guidelines)
·    Education institutions have standing to sue agents
§         Player Association Regulations
·    NLRA gives player’s union right to be the exclusive bargaining agent for employees
·    Union delegates that authority to contract reps
·    In the unions’ view, this allows the union to regulate agents
·    Agent regulation has survived antitrust challenge
o       Non-statutory labor regulation (exception)