Law Exam 2

contract, agency, collegiate athletics

Agency:

A fiduciary relationship created by express or implied

contract, or by law, in which one person (the “agent”) is authorized to

act on behalf of another (the “principal”), binding the principal to

the action taken or the agreements made.

Fiduciary:

One who acts for the benefit of another, and who owes to

him/her the duties of good faith, fair dealing, trust, confidence and

candor.

Agent:

One who is authorized to represent another to transact business

or manage some affair for him/her.

Principal:

One who allows another to act for him/her, or on his/her

behalf.

What is Basis of Agency Relationship

In order to establish an agency relationship, there must be an agreement,

which constitutes the contract between the parties.

No agreement = No agency

fiduciary relationship –

one that requires loyalty, integrity, good faith and honest dealing

What does the agent owe to his principal?

The agent owes his principal the fiduciary obligations (called the “duty”)

of undivided loyalty, and to act in good faith at all times.

Express contract:

A specific agreement between the parties that

contains the agency agreement.

Implied contract:

The agreement is implied from the words or actions

of the parties.

The most widely used type of written, express agency agreement is the

Power of Attorney.

Power of Attorney:

An instrument authorizing one person to act for or

on behalf of another.

Attorney in Fact:

The person authorized to act for another in a Power

of Attorney.

Authority of Agent

The agent only has as much authority as the

Principal has conferred upon him/her.

The source of the power is always the

Principal, never the Agent.

If Agent exceeds his/her authority, the

Principal is not bound by the agent’s

actions.

Contract:

agreement/exchange of exchange of promise that is directly enforceable by law

Express:

terms of the agreement are fully and explicitly written

Implied

intention of parties is carried out by their conduct

executed

fully performed by all parties

executory

not fully performed and require some future act to be performed

what are the elements of a contract

agreement (offer and acceptance), consideration, consideration (exchange), legality, legal compacity (mental incapacity and minor)

valid contract

all necessary contractual elements are present

void

essential elements is lacking

voidable

valid contract that allows one or both parties the option of avoiding

unenforceable

valid which can’t be enforced bc of certain legal defenses

statute of limitations

prevents a party from filiing suit after a certain period of time has elapsedl

what are the 3 types of legal compactiy

full competence, limited competence, no competence

minority

under the age of 18, not married, not military- contracts with minor are not mutually enforceable

disaffirm

chooses to set aside or avoid contractual obligations

ratify

act of accepting and giving legal force to an obligation previously not enforceable

termination of the offer

revocation of the offer by offeror, rejection of the offer by the offeree, counteroffer by the offeree, lapse of time

consideration:

something of value given or promised by each party to the contract- something exchanged for something else

legality

no elements of the contract are illegal

parol evidence rule/ 4 four corners rule

when a contract is reduced to writing, all previous oral agreements merge into the written agreement

contract riders:

addendum to a standard contract, bonus are listed here, incentives

breach of contract:

failure to perform in accordance with terms of the contract

remedy

means to enforce a right/compensate for an injury

damages

compensation recovered by any person who has suffered loss/injury bc of another person’s unlawful acts

what are the two types of measurable damages

tort- put in the same position as if the injury never happened

contract- put in same position if contract would of been performed

liquidated damages

compensation that was written in the contract

specific performance

when damages will not adequately compensate party for loss, the breaching party will be required to do what they promised to do in the contract- must be unique and cannot be easily acquired

what is the most important thing when creating contracts

get everything in writting

apparent authoriry

In situations in which it is unclear whether the agent has

actual authority, the agent may have what is termed apparent

authority (estoppel)

standard player representation agreement

empowers agents to negotiate players’ salaries, bonus, ect

Contractual Limitations –

The Agent can only do what

he/she is authorized to do

under the agency agreement.

Delegation of Authority –

The Agent cannot delegate

authority unless the principal

authorized the Agent to do so.

Respondeat superior

is a legal doctrine that holds people and

organizations high in the chain of command (principals)

liable for the negligent acts of those lower in the chain

of command (agents).Sp

Sport Agent Responsibility and Trust Act (SPARTA)

is a Federal Act that requires sport agents to

disclose in writing that student-athlete may lose his

or her eligibility after signing an agency contract.

Uniform Athlete Agents Acts

sets standard rules for regulating sport agents, including requiring clear disclosure that signing with an agent may cause a student-athlete to lose college eligibility. It also allows athletes to cancel contracts within 14 days

Agent Registration

agents have to register in each state which they have established contact

Disclosure

Agency contract must contain a

warning:

⚬Amateur eligibility may be lost if

student-athlete enters into an agency

agreement for athletic based

performances.

• Student-athlete can cancel contract

within 14 days.

• Cancellation of the contract may

not restore eligibility

Termination of Agency Relationship

Duration- contract ends

Revocation by principal

Renunciation by Agent

Termination by Operation of Law (Death, mentally unwell)

Who was the president during the creation of the Intercollegiate Athletic Association of US?

Theodore Roosevelt

The Intercollegiate Athletic Association is now called

National Collegiate Athletics Association (NCAA)

What was the “Sanity Code” that the NCAA adopted after WWII?

it set guidelines for athletic recruiting and financial aid. The only penalty under the Sanity Code for rules violation was expulsion from the NCAA. Required 2/3 vote of member institutions to expel.

In 1952, the NCAA adopted new Bylaws providing for:

1. Regulation 2. Enforcement 3. Grants-in-aid (scholarships)

Sherman Antitrust Act:

• “Every contract, combination . . . or conspiracy in restraint

of trade or commerce among the several states (also called

“interstate commerce”)…is declared to be illegal.”

Results of House v NCAA Settlement

The NCAA and the Power Five conference schools will pay

$2.78 billion in damages to multiple categories of student-

athletes as “back pay” as a result of the NCAA depriving these

athletes of NIL opportunities and revenue sharing.

labor law

refers to issues involving a

union or for an employer refusing to

allow employees to unionize

employment law

refers to legal issues

between an employee and employer

antitrust law

helps ensure a balance

of power between workers and

employers

Interstate Commerce

Any type of commercial activity between

people or businesses across state lines (in

different states).

• Promote competition and efficiency in

the marketplace.

• Protect consumers from the growing

monopoly power of big business

(referred to as “business trusts”).

Monopoly

Exclusive possession, control or ownership

of a market or activity controlled by one

party with no effective competition.

• Maintain a high level of competition

among producers so that consumers

can obtain quality products at

reasonable prices.

Sherman Antitrust Act,

Act 1

To prove a violation, one must show the

following:

• Existence of agreement between

two separate parties.

• Action taken under the agreement is

anticompetitive because it

unreasonably restrains trade.

• Action taken under the agreement

involves interstate commerce (i.e.,

commerce affecting more than one

state).

PER SE VIOLATION =

requires no further inquiry into

the practice’s actual effect on the

market or intentions of the

individuals who engaged in the

practice – inherently

anticompetitive, and illegal.

RULE OF REASON ANALYSIS =

applied when an anticompetitive

agreement may be justified by

legitimate benefits. Intent and

effect on market matter here!

Single-Entity

Structure:

A party using this defense must demonstrate

 It is not made up of separate business

entities.

 It is one business entity.

Free Agency

• The period of time when a professional athlete is

not under contract to any particular team and so

is able to freely negotiate with any team.

goal of labor law

The US Supreme Court determined the

goal of Labor Law was to bring labor and

management together to negotiate a

contract that best suits their collective

needs.

Clayton Act

provides that when a

plaintiff proves that there has been a

breach of the Sherman Act, the damages

that the plaintiff can recover are tripled.

Non-Statutory Labor

Exemption

• Under antitrust law,

agreements between

management and unions that

restrict employees’ freedoms

would violate antitrust law but

are allowed in labor law.

Antitrust law prohibits

coordination among

competitors, labor law

encourages collective

bargaining.

The NLRA established 3 significant

employee rights:

• The right to join or assist a union;

• The right to engage in collective

bargaining through a representative

of the group’s own choosing; and

• The right to engage in concerted

activity for one’s own mutual aid and

protection (including things such as

going on strike).

Mandatory Subjects for Bargaining

Management is required to engage in

collective bargaining over hours, wages, and

terms and conditions of employment; and the union has a duty of fair representation

which requires the bargaining representative

to represent all employees fairly, even those

who are not members of the union.

Collective Bargaining Agreement:

A contract between

management and the union that expresses the agreed

terms of employment and work conditions.

Impasse:

The point in negotiations at which an agreement cannot be

reached through good-faith bargaining.

Strike:

A work stoppage by union members as a means to force the

employer (management) to grant certain demands or concessions such

as increased wages or improved working conditions.

Intellectual Property

The body of law known as “intellectual

property” (IP) involves the legal rights of owners

of intangible property (property with no physical

substance).

Copyright Act of 1976

section 102 a describes what is protected by copyright- “copy right protection subsists in orginal works of authorship fixed in any tangible medium of expression”

Criteria for copyright protection

1. work must be original

   1. must be in a tangible form that can be reproduced

fair use

1. purpose and character of the use (commercial/educational)

2. nature of the work (creativity)

3. amount of the portion used

   1. effect on the market

rights of copy right owner

• right to reproduction

• right to distribution

• performance rights, including broadcasts

• right to public display

“Lanham Act” in trade mark law

controls the use of commercial marks, federal law that creates a system for registration of trademarks to protect the owner against the use of similar marks if such use is likely to result in consumer confusion

what is the primary purpose of trade mark law

-protect consumers from confusion as to the source of goods and services

-protects businesses by ensuring exclusivity to their brands

functions of a trademark

• designates the source or origin of a product

• denotes a particular standard of quality

• identifies/advertises a product

• creates an image of the product in the minds of consumers

  • protects from consumer confusion

trademark infringment

the unauthorized use of a trademark, or of a

confusingly similar name, word, or symbol, in connection with the same or

related goods or services and in a manner that is likely to cause confusion,

deception, or mistake about the source of the goods or services.

criteria for trade mark infringement is

1. Does the Owner have a protectable property interest in the name/logo?

2. Is the similar mark likely to cause confusion, mistake or deception to

consumers in the market?

Trademark Dilution:

Purpose: To protect the mark’s selling power.

Two manners of dilution:

1. Blurring: A mark that impairs the distinctiveness of the mark. The court

may consider the degree of similarity or distinctiveness or recognition of

the mark, whether the non-registered user intended to create an association

with the mark, and any actual association between the marks.

2. Tarnishment: Association between the similar marks that harms the

reputation of the famous mark.

what are the two types of trademark dilution

blurring and tarnishment

Defenses to Infringement:

1.Laches – Delay in acting to protect the

owner’s mark.

2.Abandonment - Failure to protect the

trademark can lead to the loss of the

protection afforded by the Lanham Act.

They become “generic marks.”

3.Disclaimers – Using disclaimers alerting

consumers that the product or services are

not for a certain source. Questionable

defense, at best.

4.Fair Use – We have already seen that fair

use is a defense

5. Parody: A use of a well-known mark

for purposes of satirizing, ridiculing,

critiquing, or commenting on the original

mark.