KIN 3800: Final Exam

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Clayton Act

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Clayton Act

  • only expected legal union activities are those done with economic means

  • used to deem boycotts/strikes as nonlegal activities

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Norris-LaGuardia Act of 1932

strengthened union protections of Clayton Act

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National Labor Relations Act of 1935 (NLRA)

  • established employee rights including right to negotiate w/ an employer about employment

  • intent to encourage workplace harmony between private employers and employees through collective bargaining

  • applies to private sector

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National Labor Relations Borad

  • established by NLRA

  • conduct secret ballot union elections for certification/decertification

  • prevent and remedy unfair labor practices committed by management or union

  • very pro labor

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Taft-Hartley Act of 1947

  • amended the NLRA to balance the employee-employer relationship

  • right to not join/assist union

  • right to engage in lockouts

  • prohibits discrimination by unions against non-union members

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When did unions start coming to fruition in sports?

late 1960s

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What sport led the way for unions in sports?


  • umpires sued in an attempt to unionize

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Section 7 of NLRA

  • right to join/assist unions

  • right to engage in collective bargaining through a representative of one’s own choosing

  • right to engage in concerned activity for one’s own mutual aid and protection

  • concerned activities = strike

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Section 8 of NLRA

bargaining in good faith

  • making a sincere attempt to reach an agreement

  • must not engage in deliberate strategy to avoid reaching an agreement

  • if agreement is reached in good faith, parties are obligated to sign

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Unfair labor practices

  • union failure to represent employees

  • employer retaliation for union activity

  • refusal to bargain in good faith

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Collective Bargaining Agreements

  • contract outlining the good faith negotiation between labor and management over mandatory subjects of bargaining

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federal jurisdiction

  • disputes between states

  • subject matter jurisdiction

  • belong to federal courts

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subject matter jurisdicition

federal topics (the federal question)

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diversity jurisdiction

disputes between residents of different states

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compilation of powers that founders were decided were better administered by a national government

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Bill of Rights

  • 1st Amendment

  • 5th Amendment - rights of the accused/due/process/takings clause

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5th Amendment

  • establishes the military court

  • cannot be charged twice for some crime

  • don’t have to be a witness to yourself

  • has to be fair process for judication

  • government can’t take your property unless for public use and fair offering

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Limits of Bill of Rights:

  • only restricts the federal government’s behavior and abilities

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14th Amendment

equal protection clause

  • all citizens are citizens of the United States and the state in which they reside

  • states can’t make a law that takes that right away; has to be constitutional

  • have to treat every person under jurisdiction of the US the same

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Limits on constitutional action:

  • Constitution only governs the things listed

    • only applies to federal and state power

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How to determine if rights have been violated?

  • Is there a state actor?

  • Is there a compelling state interest?

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state actors

  • federal (state) governments and their subunits (departments within state government)

  • any group that acts in a “governmental” way

    • public schools, city/county governments, police departments, etc.

  • receive federal moneys (Where is there $$$ coming from?)

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nonfundamental rights (violated)

  • mid scrutiny

  • rationally related to a legitimate state interest

    • economic issues or social welfare issues

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fundamental rights (violated)

  • strict scrutiny

  • necessary to accomplish a compelling state interest

  • autonomy and privacy

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What does the Constitution do?

gives Congress the authority to create laws

  • must be constitutional

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scrutiny levels

  • mild (rational basis review)

  • intermediate (substantial)

  • strict (compelling interest)

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mild scrutiny

  • most governmental regulation would be presumed constitutional

  • court asks only whether a governmental regulation might serve some “legitimate” governmental interest

  • lowest level of scrutiny

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intermediate scrutiny

  • typically reserved for 1st amendment issues

  • government must show a substantial (important) interest

  • rationally related to a legitimate state interest*

  • content based vs. content neutral speech

  • address most women’s right issues

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content based speech

  • strict scrutiny

  • fundamental rights

  • what and how

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content neutral speech

  • subject to intermediate scrutiny

  • non fundamental rights

  • where and when

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strict scrutiny

  • necessary to accomplish a compelling state interest*

  • government required to demonstrate that it’s using the most narrowly tailored or least restrictive means to achieve an interest that is compelling

  • regulation vital to the protection of public health and safety, national security and military necessity, and respect for fundamental rights

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due process

no person shall be deprived of life, liberty, or property

  • assurance that all levels of American government must operate within the law and provide fair procedures

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equal protection

  • extend the due process clause of the 5th amendment to state (14th amendment)

  • laws provide special protections for classes of individuals that have been discriminated historically

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suspect class

  • race

  • religion

  • national origin - where your family comes from

  • alienage - where you come form

  • constitutional violations are examined under strict scrutiny levels

    • must be necessary to accomplish compelling interests

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14th Amendment Equal Protection

  • does legislation involve a suspect class?

    • yes, strict scrutiny

    • gender intermediate scrutiny

    • no, look at language

  • does it restrict a fundamental right?

    • if fundamental, strict scrutiny

    • if non fundamental, mild scrutiny

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Statutory Equal protection

  • aimed at providing fair and equal treatment

    • Title IX

    • Title VII

    • Equal Pay Act

    • Americans w/ Disabilities Act (ADA)

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Title IX

  • passed as part of the Education Amendments of 1972

  • addresses sex discrimination throughout entire spectrum of educational offerings

  • no state actor needs to be involved

  • didn’t specify intercollegiate athletes

  • governed by the Office of Civil Rights

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components of Title IX

  • “on the basis of sex”

  • “education program”

  • “federal financial assistance”

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intercollegiate athletics (defined by the NCAA)

educational opportunities/programs

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Javits Amendment of 1975

suggests Title IX as applicable to athletics but providing exclusions for specific contact sports

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mechanisms for Javits Amendment enforcement:

  • in house complaint

  • Office of Civil Rights

  • lawsuits

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Title IX compliance:

  • participation

  • equal treatment

  • financial assistance

  • must be compliant in all 3 areas

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participation (Title IX)

requires institutions to “effectively equal the interest/abilities” of male and female athletes

  • provided in numbers proportionate to their respective enrollments

  • show that they’re providing opportunities for the affected sex

  • members of affected sex has been fully accommodated by the present program

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equal treatment

institutional must demonstrate that they’re providing equality between the sexes

  • coaching, equipment, facilities, support, etc.

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financial assistance

scholarships must be granted to each sex in proportion to the number of student athletes

  • 50:50 male to female ratio requires a 50/50 scholarship dollar ratio

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benefits of Title IX:

  • 200,000+ competing women in sports

  • over 10,000 scholarships awarded to women each year

  • cut men’s specific swimming/diving, gymnastics, soccer, wrestling

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Contact Sport Exemption

  • excluded contact sports from Title IX participation requirement

    • Javits Agreement (legal name)

    • have separate mens and women’s team, if selection is based on skill, or if it’s a contact sport

    • if not a contact sport, you have to allow women to try out for men’s teams

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Civil Rights Act of 1964

attempted to prohibit discrimination in elections, housing, employment, etc

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Title VII

  • focuses on employment

  • prohibits discrimination (race, color, religion, sex, national origin)

  • unlawful to discriminate in hiring, firing, training, compensation, etc.

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Scope of Title VII:

  • only affects certain organizations:

    • 15+ employees

    • work 20+ calendar weeks/year

      • doesn’t apply to independent contractors

    • other excluded groups (BMFC) - Bonafide Membership Clubs

    • no state actor or federal funds requirement

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protected classes

  • race - includes ethnicity

  • color - unlawful treatment based on skin color

  • national origin - place of ancestry

  • sex - protects men; women; and all sex orientation

  • religion - both long and sincerely held unorthodox beliefs

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Title VII Theories of Liability*

  • individual disparate treatment

  • systematic disparate treatment

  • disparate impact

  • retaliation

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individual disparate treatment

intentional discrimination of 1 employee who is a member of a protected class

  • to prove: direct evidence (statements), inference.circumstantial evidence (compare treatment of different protected classes)

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systematic disparate treatment

policies or applications that result in treatment that disfavors one group over another

  • to prove: plaintiff must demonstrate a preponderance of evidence

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disparate impact

when a neutral employment policy has the end result of excluding a protected class (employment tests)

  • to prove: plaintiff must prove statistically that neutral practice impacts protected class, defendant must prove that practice is necessary, achieves objective, and no better method available

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employer disfavors an individual who exercised their rights under anti-discrimination legislation

  • to prove: plaintiff must demonstrate engagement in statutory protected activity, adverse action was taken by employer subsequent to and in close proximity to the protected activity, casual link between protected activity and adverse action; defendant must provide a legitimate, non-retaliatory reasons for conduct

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Title VII McDonnell Douglas Test

to prove disparate treatment, plaintiff must prove:

  • applicant is member of protected class

  • applicant applied when employer seeked applicants

  • applicant was not hired despite being qualified

  • employer continued to seek applicants w/ similar qualifications

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defenses to Title VII Allegations

  • must be actively argued and proven by defendant (affirmative defenses)

    • seniority systems

    • merit system

    • quantity and quality of production

    • pay differential (based on something other than membership in protected class)

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Rooney Rule (2003)

NFL teams must interview at least 1 minority for Head Coach opening

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Rooney Rule II (2020)

NFL teams must interview at least 1 minority for HC, coordinator positions, 2 external HC interviews, at least 1 minority interview for senior football operations positions

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Rooney Rule III (2022)

at least 1 minority on offensive coaching staff; expands “minority” to include women (regardless of race/ethnicity)

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NCAA Institutions have own hiring practices…

  • cannot adopt Rooney Rule

  • cannot dictate said hiring practices

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Equal Pay Act

  • enforced by EEOC

  • must pay equal salaries to jobs that require equal qualifications under similar working conditions (equal pay for equal work)

  • pay differentials permitted Shen based on seniority, merit, or any reason other than gender

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Section 504 of Rehabilitation Act of 1973

applies to recipients of federal funds

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Americans w/ Disabilities Act of 1990 (ADA) applies to who..

both public and private sectors (15+ employees)

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quid pro quo

  • Title VII and IX

  • exchange of action between parties (this or that)

  • often overt extortion

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hostile environment

  • Tittle VII; IX through case law

  • actions by one party that are severe and/or pervasive to create a sexually objectionable environment

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2 prong test

  • plaintiff must show that the conduct is severe or pervasive enough to create an objectively hostile environment

  • o=plaintiff subjectively perceived the environment to be hostile and abusive, altering the work climate

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normative ethics

ethical theories that debate the innate or natural value of an action, thought, or feeling

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descriptive ethics

applied ethics, actual action taken

  • how normative ethics are used in real live

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ethics in sports":

  • sportsmanship and fair play

  • performance enhancing drugs

  • gender equity and diversity issues

  • student-athlete pay

  • athletics vs. education

  • commercialization of intercollegiate sports

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using rules to their limit to gain advantage over competitor

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ethical foundations (normative ethics):

  • consequentialism/utilitarianism

  • deontology

  • virtue ethics

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generally held to be the view that the morally right action is the action that provides the most good

  • outcome based on consideration

  • understood entirely in terms of consequences produced

  • distinguished by impartiality and agent-neutrality

  • consequence based decision making

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utilitarianism downsides:

  • decision makers are forced to guess outcome of their choice

  • harming a minority and benefitting a majority doesn’t build beneficial relationships

  • not always possible to predict outcome

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actions that are morally right are those in accordance with certain rules, duties, rights, or maxims

  • rule based morality

  • consequences do not matter

  • intentions are relevant

  • the “Golden Rule”

  • natural law and right theories

  • categorical imperative (Kantian ethics)

  • two types: agent oriented and patients oriented

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agent centered deontology

  • theories focused in the duties of the moral agent

  • objective reasoning

    • agent has an obligation to take or refrain from taking actions

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mental state

action is wrong or right b/c of the intentions that motivated it

  • catholic doctrine or double effect

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agent centered deontology actions:

forbidden to cause evils directly, but are permitted to allow, enable, or accelerate them under some circumstances

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patient centered deontology

  • rights based

  • common ethical philosophy of Founding Fathers

  • a action is wrong if it violates a person’s rights

    • also wrong if it uses body, labor, or talent w/o latter’s consent

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  • allows us to prioritize our own lives, family, and friends

  • other theories:

    • contractarian: contract/promise based

    • divine command: command of God

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Kant’s Categorical Imperative

  • sought to answer: what is good?

  • only good is “good will”

  • action could only count as the action of a good will if it satisfied the test of “categorical imperative”

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Kant’s step-by-step procedure

  1. take action

  2. determine principle behind action

  3. ask what would happen if that action was a universal rule

    1. if the application is responsible, it’s a moral action

    2. if unreasonable, action is immoral

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Deontology strengths:

  • value for humans

  • some acts are always wrong

  • faster decision making

  • universally applied moral laws

  • clarify

  • rationality

  • basis for human rights

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Deontology weaknesses:

  • absolutist, inflexible

  • reduction of happiness in the world

  • does not deal well where duties are in conflict

  • anthropocentric

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virtue ethics

  • based on habit of character (caution)

  • trait of character, manifested in habitual action, which is good for a person to have

  • not innate, they’re learned

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intellectual virtues

  • wisdom, understanding, prudence

  • learned through instruction

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moral virtues

  • acquired through practice

  • prudence, justice, fortitude, temperance

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advantages of virtue ethics:

  • moral motivation

  • doubts about the ideal of impartiality

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Virtue ethics problems:

  • influenced by cultural realities

  • friendship vs. justice

  • its there a virtue to cover every situation?

  • can be turned into a really poor duty-based ethics

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The Virtuois

take pleasure or pain that we derive from moral actions as a test of our character

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property law

  • right to keep and own property is fundamental to being American

  • 5th Amendment of the U.S. Constitution

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real property

land, things attached to land permanently

  • stadiums/venues and land they sit on

  • purchase/sale governed by contract law

  • duties/obligations is governed by negligence law

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landlord/tenant relationship

  • lease agreements (contract)

    • facility owner (lessor)

    • tenant (lessee)

  • lease will define rights and responsibilities of parties

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personal property

chattel (tangible); intellectual property (intangible)

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physical things that can be moved from place to place

  • equipment, uniforms, etc.

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intellectual property

property tights (copyrights, trademarks, trade dress, patents)

  • creators of original materials need to be rewarded and permitted to profit from their creativity

  • IP law provides compromise to balance interests

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What do patents and copyrights protect?

Creative works

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What do trademarks protect?

Consumers from confusing and misleading ads/practices

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word, name, symbol, or device used by a manufacturer/merchant to identify and distinguish their goods from others

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