SPORT LAW #4

get ur ass together

Contract functions

providing a framework for the enforcement of promises

contracts are…

voluntary

express contracts

Written form of contract

Implied contracts

Spoken; not in writing

Legal standards of contracts

valid, void, voidable

valid

court will enforce contract

void

neither party is obligated to perform

voidable

one party has the option of cancelling the agreement

agreement (mutual assent) elements

offer, offeror, offeree, and terms of the offer

offer

conditional promise from the offeror to the offeree

offeror

party who makes offer

offeree

party who offer was made to

terms of the offer

the parties, the subject matter, the time & place for subject matter to be performed, and the consideration (price to be paid)

acceptance

only the offeree can accept the offer

counteroffer

terminates the original offer and creates a new offer

consideration

exchange of something of value between the parties

capacity

courts do not enforce agreements in which one of the parties is shown to have lacked the capacity to represent their interests effectively

capacity means you cannot be…

lacking mental capacity due to age, intoxication or are under 18

legality

courts will not enforce a contract involving illegal action or a subject matter that violates public policy

elements of contracts

agreement, consideration, capacity and legality

contract law defenses

element is missing, mistake, fraud, authority to contract, force majeure

breach of contract

a valid contract, plaintiff performed as specified, defendant failed to perform as specified, plaintiff suffers an economic loss as result of defendants failure

authority to contract

one or more parties didn’t have authority to enter into the agreement

force majeure

any unforeseen circumstances that may prevent a party from performing its obligations

legal remedies

compensatory, consequential, nominal, punitive, liquidated

equitable remedies

specific performance, injunction, rescission and restitution

common contract elements

duties and responsibilities, term of employment, roll over provisions, reassignment clause, compensation clause, fringe benefits, bonuses and incentives, sovereign immunity, provision for outside or supplemental income, termination clause, buy out provision, arbitration agreement, and covenant not to compete

roll over provisions

allow organization to extend an employee’s contract for an extra year with mutual agreement from employee and organization

reassignment clause

removal from original position and reassigned to another position consistent with experience and education

compensation clause

base salary, terms of pay increases, moving/relocation expenses, bonuses, all other compensation

fringe benefits

type and amount, data benefit is available, and penalties for termination of contract

bonuses and incentives

signing bonuses, and incentives based on team success

termination clause

death, disability and/or moral/criminal conduct, due process rights for challenging termination, and termination without cause

buy out provision

allows the employee or institution to terminate the contract on the payment of specified amount of money

arbitration agreement

if any issues arise, both agree to mediation

game contracts should include

date and time, location, set of regulations, compensation, penalty or damages

event contracts include

lease or facility rental agreements, broadcasting and media rights

sponsorship contracts include

right(s) granted to both parties, length of contract and termination, form of payment and use of logos

athlete endorsement contracts

grants the sponsor the right to use the athlete’s name, image, or likeness in connection with advertising the sponsor’s products/services

constitution is designed to…

protect individuals freedoms and rights from the state/government

First question in cases limiting individuals constitutional rights…

did the complaint constitute a state actor

state action

the court must consider whether the conduct is fairly attributable to the state and thus subject to constitutional law

tests for state action

public function, nexus/entanglement, state compulsion

public function

consider whether a private actor is performing a function that has been traditionally reserved to the government or is governmental in nature

nexus/entanglement

examines whether the state’s involvement/relationship with the private actor is so entangled that it transforms the private conduct into state action and is therefore subject to constitutional review

state compulsion

proof that the state significantly encouraged or somehow coerced the private party to take a particular action

who are state actors?

recreational clubs (sometimes), high school athletic associations (usually are), college conferences (sometimes maybe)

Due process clause

no person shall be deprived of life, liberty, or property without due process of law

due process….

originates from the 4th amendment was added to the 14th amendment and applies to federal and municipal governments

procedural due process

requires that before any governmental entity deprives an individual of life, liberty, or property, that they be provided with the proper procedural due process (fairness)

substantive due process

ensures these rights cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. Provides individuals with a level of protection against state interference with certain fundamental rights and liberty interests

questions resolving despute under due process

is there state action? Does the state’s action deprive an individual of life, liberty, or property? how much due process was due?

unenumerated rights

protected under substantive due process; arbitrary and capricious actions

arbitrary

based on random whim rather than system or reason

capricous

not logical or reasonable its impossible to predict

14th amendment

no state shall deny to any person within its jurisdiction the equal protection of the laws; applies to both federal and state governments

equal protection tests (standard of review)

mere rationality, intermediate scrutiny, and strict scrutiny

mere rationality

non suspect classifications; must be rationally related to a legitimate governmental interest

intermediate scrutiny

quasi-suspect; based on gender

strict scrutiny

classifications on race, national origin and alienage

equal protection lawsuits must have…

state action, standing, purposeful discrimination

disparate impact

when one group is more greatly burdened by a classification than another

1st amendment establishes…

free speech, freedom of press, freedom of religion, right to assemble, right to petition

unprotected expression

subjected to mere rationality

examples of unprotected expression

defamation, obscenity, words that create a clear and present danger, fighting words

protected speech

subjected to strict scrutiny

when to restrict students speech

encourages illegal drug use, substantially interferes with the work of the school, impinges on other rights of the students, lewd and indecent language

establishment clause

prohibits congress or the states from making any law establishing or promoting any religion

free exercise clause

prohibits congress or the states from making any law interfering with the free exercise of religion

judicial review

courts are reluctant to overturn the bylaws, rules, regulations or decisions of voluntary associations

courts are not reluctant when…

violating constitutional law, violate public policy, and were enforced in an arbitrary or capricious manner

transfer rules

created to preclude student athletes from enrolling at different schools (jumping) for reasons related to athletics; upheld under mere rationality

age and academic restrictions

determines the limits for participation

years/semesters allowed to complete competition

must occur within 8 consecutive semesters

maximum age beyond which competition may not continue

no competition past 19th birthday if birthday occurs before starting senior year of high school

drug testing is governed by

both constitutional and labor law

arbitrary invasions

is the conduct a search? is the conduct a reasonable search?

balancing test

balance the intrusion of the test on an individuals fourth amendment interests against its promotion of legitimate governmental interests

elements of balancing test

legitimate privacy expectation, character of the intrusion, nature and immediacy, consent forms, due process, and labor law

legitimate privacy expectation

where/location, legal relationship, what is collected? (blood v. urine)

character of the intrusion

the way samples were collected an monitored, who receives test results, how the info is used

nature and immediacy

court must determine whether the state’s interest in conducting the drug test was important enough to justify intruding on an individuals expectation of privacy

title IX

no person on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal funding

sex discrimination includes

gender identity, failure to conform to stereotypical notions of masculinity or femininity, transgender people, and sexual orientation

Ttile IX triggers

sex discrimination, educational program or activity athletics, federal funding

federal funding

any kind of federal funding, not directly to the educational program, funding can be removed for violations, and NCAA does not receive federal funding

title IX enforcement and regulations

internally, office for civil rights and federal lawsuits

internally

each institution should have title IX officer and deal with any title IX complaints filed in house

office for civil rights

file an administrative complaint leading to an OCR investigation

Title IX applies to…

martial, pregnancy, or parental status, athletics scholarships and athletics equal opportunity, and contract sport exception

3 prong test

proportionality of participation, continuing practice of program expansion, and effectively meeting the interests and abilities of the underrepresented sex

athletic scholarships

must be proportionate within 1-2%

athletics equal opportunities

selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes

retaliation

occurs when an employee suffers an adverse employment action in response to an action that the employer perceives negatively

cannot be fired/retaliated against for complaining about…

unfair treatment to athletes, lack of comparable facilities, and other inequitable situations

EEOC

equal employment opportunities commission oversees sexual harassment

types of sexual harassment

quid pro quo, tangible employment actions, and hostile environment

quid pro quo

when employer conditions an employment benefit on some form of sexual behavior

tangible employment actions

submission to or rejection of sexual favors is used as the basis for employment decisions

hostile environment

harassment so severe that it creates an abusive working environment