KIN 3800: Final Exam

Clayton Act

Clayton Act

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

• used to deem boycotts/strikes as nonlegal activities

Norris-LaGuardia Act of 1932

strengthened union protections of Clayton Act

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

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

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

When did unions start coming to fruition in sports?

late 1960s

What sport led the way for unions in sports?

Baseball

• umpires sued in an attempt to unionize

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

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

Unfair labor practices

• union failure to represent employees

• employer retaliation for union activity

• refusal to bargain in good faith

Collective Bargaining Agreements

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

federal jurisdiction

• disputes between states

• subject matter jurisdiction

• belong to federal courts

subject matter jurisdicition

federal topics (the federal question)

diversity jurisdiction

disputes between residents of different states

Constitution

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

Bill of Rights

• 1st Amendment

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

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

Limits of Bill of Rights:

• only restricts the federal government’s behavior and abilities

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

Limits on constitutional action:

• Constitution only governs the things listed

  • only applies to federal and state power

How to determine if rights have been violated?

• Is there a state actor?

• Is there a compelling state interest?

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?)

nonfundamental rights (violated)

• mid scrutiny

• rationally related to a legitimate state interest

  • economic issues or social welfare issues

fundamental rights (violated)

• strict scrutiny

• necessary to accomplish a compelling state interest

• autonomy and privacy

What does the Constitution do?

gives Congress the authority to create laws

• must be constitutional

scrutiny levels

• mild (rational basis review)

• intermediate (substantial)

• strict (compelling interest)

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

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

content based speech

• strict scrutiny

• fundamental rights

• what and how

content neutral speech

• subject to intermediate scrutiny

• non fundamental rights

• where and when

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

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

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

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

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

Statutory Equal protection

• aimed at providing fair and equal treatment

  • Title IX

  • Title VII

  • Equal Pay Act

  • Americans w/ Disabilities Act (ADA)

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

components of Title IX

• “on the basis of sex”

• “education program”

• “federal financial assistance”

intercollegiate athletics (defined by the NCAA)

educational opportunities/programs

Javits Amendment of 1975

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

mechanisms for Javits Amendment enforcement:

• in house complaint

• Office of Civil Rights

• lawsuits

Title IX compliance:

• participation

• equal treatment

• financial assistance

• must be compliant in all 3 areas

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

equal treatment

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

• coaching, equipment, facilities, support, etc.

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

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

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

Civil Rights Act of 1964

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

Title VII

• focuses on employment

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

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

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

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

Title VII Theories of Liability*

• individual disparate treatment

• systematic disparate treatment

• disparate impact

• retaliation

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)

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

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

retaliation

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

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

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)

Rooney Rule (2003)

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

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

Rooney Rule III (2022)

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

NCAA Institutions have own hiring practices…

• cannot adopt Rooney Rule

• cannot dictate said hiring practices

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

Section 504 of Rehabilitation Act of 1973

applies to recipients of federal funds

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

both public and private sectors (15+ employees)

quid pro quo

• Title VII and IX

• exchange of action between parties (this or that)

• often overt extortion

hostile environment

• Tittle VII; IX through case law

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

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

normative ethics

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

descriptive ethics

applied ethics, actual action taken

• how normative ethics are used in real live

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

gamesmanship

using rules to their limit to gain advantage over competitor

ethical foundations (normative ethics):

• consequentialism/utilitarianism

• deontology

• virtue ethics

utilitarianism

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

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

deontology

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

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

mental state

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

• catholic doctrine or double effect

agent centered deontology actions:

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

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

deontology

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

• other theories:

  • contractarian: contract/promise based

  • divine command: command of God

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”

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

Deontology strengths:

• value for humans

• some acts are always wrong

• faster decision making

• universally applied moral laws

• clarify

• rationality

• basis for human rights

Deontology weaknesses:

• absolutist, inflexible

• reduction of happiness in the world

• does not deal well where duties are in conflict

• anthropocentric

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

intellectual virtues

• wisdom, understanding, prudence

• learned through instruction

moral virtues

• acquired through practice

• prudence, justice, fortitude, temperance

advantages of virtue ethics:

• moral motivation

• doubts about the ideal of impartiality

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

The Virtuois

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

property law

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

• 5th Amendment of the U.S. Constitution

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

landlord/tenant relationship

• lease agreements (contract)

  • facility owner (lessor)

  • tenant (lessee)

• lease will define rights and responsibilities of parties

personal property

chattel (tangible); intellectual property (intangible)

chattel

physical things that can be moved from place to place

• equipment, uniforms, etc.

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

What do patents and copyrights protect?

Creative works

What do trademarks protect?

Consumers from confusing and misleading ads/practices

trademarks

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