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Note: First, make sure you have carefully read and understood the Syllabus, especially the very first section,  "Purpose, Orientation and Format of Course; Grades."

Then . . .

Before you begin driving across the country it's useful to look at your route on a map. Similarly, before you undertake learning a new area of the law it's useful to have at least some sense of where you'll be going and your path through the material. That's what the first weeks' reading assignments and class discussion questions are designed to accomplish.

For the first week or two we won't be focusing on the details of league "constitutions" or player contracts, acts of Congress or decisions of the Supreme Court. That will come later. What we want to start with is an overview of the entire course, in the form of the class discussion questions inspired by our authors' introductory remarks to the chapters, and sections of chapters, that we will be discussing later throughout the semester.

As you will see, the "First Weeks' Overview" discussion questions are somewhat different from those we'll be addressing when we get to the substantive legal material. (Among other things, they are focused on the book, the entire book, more or less as organized by the authors, rather than the material that will be assigned reading in the order we'll be covering it.)

During the Overview classes you will not be asked for the holdings of cases, or the applicable provisions of relevant statutes. There are no "answers" to the questions embedded somewhere in the assigned Overview readings that you can underline and read back to the instructor when called upon. The purpose of the questions is to have some informal fun thinking together; to loosen up our brains a bit; think outside the box; look for metaphors and analogies within your everyday experience that come out similarly or differently from the way they are handled in professional sports. Or, as President Kennedy's brother, Robert Kennedy, used to say on occasion, "Some people see things as they are and say 'why?' I dream things that never were and say 'why not?'"

Here's an example from the discussion questions regarding the introductory material in Chapter One:

10. Our authors say gambling is one of the "major moral challenges" in professional sports (p. 33). . . . (c) In what ways might the advertising on the Kinnick scoreboard by the local gambling casino known on its Web site as the "Riverside Casino & Golf Resort" -- and modified on the scoreboard to read "Riverside Hotel & Golf Resort" -- create, or not, a problem regarding this "major moral challenge"? How does, or does not, the change in name affect your answer?

3. Based on what you may now know (or guess) about antitrust law, (a) . . . what's the problem with a "reserve system"? (b) In what ways do all the Iowa City fast food restaurants offering jobs to students create an analogous potential antitrust violation?

13. "Emergence of Agent Regulation" (p. 405) and "Agents, College Athletes, and NCAA Rules" (p. 425). . . . (c) Why shouldn't college players be paid all the marketplace can deliver; maybe not as much as the college coaches are paid, but something significantly in excess of the value of room and board at the Hillcrest Dormitory? One can only guess how much smaller the Kinnick crowds would be on Saturday afternoons if only the coaches showed up without the players, but it's reasonable to assume the ticket revenue would be significantly smaller than it is with the players.

You get the idea. Discussing such questions is nothing to get nervous about. There's very little reading to do. You are not forbidden to do "research" or read more in each chapter; but you are certainly not required to do so.

However, you will be expected to have read the assigned material, taken notes and organized your thoughts, and be prepared to participate in the questions posed during our discussion. In short, this introductory overview of the material will not be presented in the form of one-and-a-half-hour lectures with Power Point slides.

Our secondary goal, your goal, is to end up with at least a general sense of the full range of subjects, topics and issues that together will comprise "Sports Law" for us.

It would be possible for you to simply leaf through the book and find the relevant material for this purpose. But to remove any possible ambiguity, what follows, below, is a detailed description. Often, as you'll see, all that's assigned is a single paragraph. Sometimes there are two or three, or even a couple of pages. But the assigned paragraphs usually cut off where the authors begin their discussion of specific cases or events. (Obviously, the pages immediately following the chapter headings are not assigned reading; they just indicate the total pages for that chapter; e.g., "Chapter One. . . . pp. 1-90." The references to paragraphs, e.g., "(one paragraph)" or "(two paragraphs)," always refers to the paragraphs immediately below the section title, e.g., "C. Challenges to the Best Interests of the Sport, p. 30 (one paragraph)" means the paragraph immediately below heading "C.")

Will this approach work? Will it end up making the course more understandable, coherent, rewarding and fun for you? That remains to be seen -- and in largest measure is up to you. But it's worth a try.

-- N.J., December 14, 27, 2011; January 9, 2012, January 15.

Illustrative Selection of High School Sports Law

pp. pp. 67, 759-60, 932-33, 983-91, 1144-45

Intercollegiate Sports Law

Chapter Nine. Intercollegiate Sports: Due Process and Academic Integrity, pp. 745-844

pp. 745-48 (plus 843, first full paragraph), 776-78, 814-15

Chapter Ten. Intercollegiate Sports: Commercialism and Amateurism, pp. 845-924

pp. 845-47, 850-52 (“Pay From College,” paragraphs 1 and 4), 852 (“Professional Contracts,” paragraph 1), 863 (“Judicial Reading”), 871-72 (“Antitrust Scrutiny,” two paragraphs), 893 (bottom partial paragraph)-895 (first full paragraph), 896-97 (five paragraphs), 904-05 (three paragraphs), 919 (bottom two paragraphs), 922-24

Chapter Eleven. Intercollegiate Sports:  Gender Equity, pp. 925-993

pp. 925-27, 931-32 (bottom paragraph), 971-73, 979

Chapter One. Moral Integrity of the Sport: The Role of the Commissioner and the Law, pp. 1-90

pp. 1-3 (seven paragraphs)

C. Challenges to the Best Interests of the Sport, p. 30 (one paragraph)

C. 1. Misconduct on the Field, Court, or Ice, pp. 30-31 (one paragraph)

C. 2. Gambling, pp. 33-34 (two paragraphs)

C. 3. Drug Use, pp. 40-41 (two paragraphs)

C. 4. Drug Testing, pp. 54-55 (three paragraphs)

C. 5. Sports and Social Ethics, pp. 74-75 (six paragraphs)

C. 5. b. Treatment of Women by Sports, pp. 81-82 (four paragraphs)

pp. 91-92 (four paragraphs)

B. Evolving Standards for Contract Enforcement, p. 95 (one paragraph)

C. Reserve System and Restraint of Trade, pp. 128-29 (three paragraphs)

A. Antitrust Background, p. 172 (one paragraph)

B. Antitrust and the Players Market (none)

B. 1. Economic Analysis of Restraints in the Players Market, pp 182-83 (two paragraphs)

B. 2. Rookie Draft, p. 189 (one paragraph)

B. 3. Veteran Free Agency, p. 204 (one paragraph)

C. Labor Exemption From Antitrust, pp. 222-23 (two paragraphs)

D. Labor Deals as an Alternative to Antitrust: Collusion in Baseball, 264-65 (three paragraphs)

pp. 273-74 (four paragraphs)

A. Free Agency Via Labor Arbitration, pp. 276-77 (three paragraphs)

B. Application of the NLRA to Sports, pp. 286-87 (two paragraphs)

C. Union Support and Employer Retaliation, pp. 290-91 (four paragraphs)

D. Certification of the Players' Bargaining Agent, p. 297 (two paragraphs)

E. Union's Exclusive Bargaining Authority, p. 302 (one paragraph)

F. Duty to Bargain in Good Faith, pp. 308-10

G. Economic Conflict in Sports Labor Relations, pp. 324-25 (three paragraphs)

H. Administration of the Labor Agreement, pp. 332-33 (three paragraphs)

I. Union and the Individual Player, p. 350 (two paragraphs)

J. Salary Caps and Taxes, pp. 356-57 (two paragraphs)

365-66 (three paragraphs)

A. Union and Agent Representation of Athletes, pp. 367-68 (two paragraphs)

A. 1. Standardized and Individualized Contract Terms, p. 369 (one paragraph)

A. 2. Dealing With the Salary Cap, p. 373 (one paragraph)

A. 3. Salary Arbitration, p. 375 (one paragraph)

B. Breakdowns in the Agent-Player Relationship, p. 386 (two paragraphs)

B. 1. Standards for Agent Performance, p. 387 (one paragraph)

B. 2. Agent Fee Formulas, p. 391 (one paragraph)

B. 3. Agent Conflicts of Interest, pp. 393-94 (one paragraph)

B. 4. Agent Recruiting of College Athletes, p. 399 (two paragraphs)

C. Emergence of Agent Regulation, p. 405 (two paragraphs)

D. Agents, College Athletes, and NCAA Rules, p. 425 (three paragraphs)

pp. 434-36 (seven paragraphs)

A. Right to Broadcast Games, pp. 436-37 (four paragraphs)

B. Copyright in the Game Broadcasts, p. 452 (three paragraphs)

C. Player Publicity Rights, p. 476 (two paragraphs)

D. Owner Trademark Rights, p. 504 (three paragraphs)

E. Group Marketing of Intellectual Property Rights, pp. 530-31 (two paragraphs)

pp. 539-40 (four paragraphs)

A. The Nature of a Sports League, pp. 540-41 (two paragraphs)

A Final Digression: Sports Leagues and Tax Policy, pp. 580-81 (three paragraphs)

B. Franchise Ownership Rules, pp. 586-87 (one paragraph)

C. Admission and Relocation of Sports Franchises, pp. 604-05 (two paragraphs)

D. League-Wide Television Contracts, pp. 652-53 (two paragraphs)

D. 1. Collective Selling of Pooled Rights and the Sports Broadcasting Act of 1961, pp. 658-59 (two paragraphs)

D. 2. League Restriction on the Sale of Television Rights by Individual Clubs, p. 663 (two paragraphs)

Note on Merchandising Rights, p. 680 (one paragraph)

Note on Internet Rights, p. 682-83 (two paragraphs)

Note on Revenue Sharing, p. 684 (one paragraph)

p. 689 (two paragraphs)

A. Monopoly Power and the Relevant Market, pp. 692-93 (two paragraphs)

B. Monopoly Resources and Monopolizing Conduct, pp. 705-06 (two paragraphs)

B. 1. Players, p. 706 (one paragraph)

B. 2. Stadiums, pp. 718-19 (one paragraph)

B. 3. Television Contracts, p. 728 (one paragraph)

C. Break Up the Big Leagues?, p. 742 (one paragraph)

pp. 994-96 (three paragraphs)

A. Umpiring the Game, p. 996 (two paragraphs)

B. Eligibility to Play, pp. 1000-01 (one paragraph)

C. Disciplinary Authority of the Tour, pp. 1023-24 (one paragraph)

D. Organizing a Sports Tour, pp. 1027-28 (two paragraphs)

E. Regulating Playing Equipment, p. 1040 (one paragraph)

F. Olympic Sports, p. 1050 (one paragraph)

pp. 1086-87 (three paragraphs)

A. Torts and Sports, p. 1087 (one paragraph)

B. Criminal Law and Sports Violence, pp. 1098-99 (one paragraph)

C. Workers' Compensation for Athletes, pp. 1104-05 (one paragraph)

C. 1. College Athletes, p. 1105 (one paragraph)

C. 2. Professional Athletes, pp. 1113-14 (one paragraph)

D. Back To Torts, p. 1120

D. 1. Medical Malpractice, p. 1120 (one paragraph)

D. 2. Defective Products and Hazardous Facilities, p. 1125 (one paragraph)

E. Disability and the Right To Play, p. 1133 (two paragraphs)

Regulation of Human Behavior	Chapter 3
High School Sports Law	Chapter 4
Intercollegiate Sports Law	Chapter 5
Chapter 9	Chapter 6
Chapter 10	Chapter 7
Chapter 11	Chapter 8
Chapter 1	Chapter 12
Chapter 2	Chapter 13

There are a couple of themes, and issues, it is useful for you to know about, and be looking for, from the outset of Sports Law.

(a) Law and policy.

You are driving home at 3:00 a.m. You are totally sober. You come to a four-way stop regulated by a stop light, which is red. You look ahead, in your rear-view mirror, to the left, and to the right. There are no cars in sight.

[1] Do you wait for the light to cycle through to green? The law is that you must do so. Because lawyers are held to a higher standard for obedience to law than other citizens, you may very well wait.

[2] You are an assistant to the state's Secretary of Transportation. The governor, and the relevant legislative committee chairs, have been overwhelmed with citizen complaints regarding the needless waits at intersections when there is no traffic. Your boss asks you to come up with some possible options for reducing these complaints. What might you propose? Whatever your solutions, at this stage they are not law, they are "policy."

What is the law seemingly designed to achieve? Is that a sensible purpose, or goal? If so, are the current standards and procedures the best way to achieve those goals? What options are available, and possibly preferable? What actual or potential problems have not been addressed? What might we do about them?

But there are additional questions. Once our ideal standards have come into focus, we are left with two additional questions

Which individuals or institutions are best situated to evolve and announce these standards, and which are most appropriate for their enforcement?

(b) Alternative systems of behavior control.

"Give a small boy a hammer and the whole world becomes a nail." Similarly, "give a college graduate access to a legal education and all conflicts become law suits."

In law school we focus, almost exclusively, and understandably, on "the law" -- the Constitution, federal and state statutes, federal and state court decisions, administrative agencies' regulations and decisions, treaties, and other "legal" documents.

We might better, at some point in your studies, pause long enough to put "the law" in a context of alternative systems of behavior control.

Traditions and social mores control so much of our behavior, and are so deeply embedded, that we are often unconscious of why we behave as we do, or why we are uncomfortable or disapproving of some behavior of others -- whom, whether and how you greet someone on first meeting each day, how close you stand to another when speaking, whether a family gathers for dinner at the same time each evening, whether it begins each meal with "grace," what you wear on the beach, in class, or at a funeral.

The need for such traditions is illustrated by the fact that, before the very first class had even entered the Air Force Academy, the students were presented with a document explaining the traditions and customs of this formerly-nonexistent institution.

Sports have "the rules of the game," along with umpires and referees to play the executive and judicial roles of their interpretation and enforcement. Sports also have standards of "sportsmanship."

Architecture can affect behavior, such as how much interaction there is between neighborhoods, among neighbors, or those living in apartments or dormitories. In cyber law we use Professor Lessig’s distinction between “east coast code and west coast code” – the former being acts of Congress, our “law,” and the latter being the computer code that determines what we can and cannot do on the Internet.

Churches, civic organizations, unions, fraternities and sororities, and the "clubs" we formed as elementary school students, all have their rules regarding proper behavior and decision-making process. We have a “Student Handbook” here at the law school that governs, for example, our law school-specific definitions of, and punishments for, plagiarism.

One significant alternative to law schools’ view of “law” that plays a major role in Sports Law is "private association" law -- the "law" of a state's high school athletic association, the massive regulations of the NCAA, the constitution and rules of Major League Baseball, standard contracts between leagues and players.

This raises, in turn, questions about the appropriate inter-relationship between our law school "law" and private associations' standards.

Q: SHOULD THERE BE ANY LIMITS TO THE ABILITY OF INDIVIDUALS TO JOIN ASSOCIATIONS, AGREE TO, AND BE BOUND BY, THAT ASSOCIATION’S STANDARDS AND PROCEDURES?

Q: SHOULD, CAN, ASSOCIATION MEMBERS BE PRECUDED FROM GOING TO COURT?

Q: SHOULD COURTS HONOR THESE PRIVATE ASSOCIATION AGREEMENTS BY EXERCISING THE SELF-RESTRAINT TO STAY OUT OF SUCH CONFLICTS?  IF “SOMETIMES” IS YOUR ANSWER, WHAT ARE THE CRITERIA FOR DECIDING WHAT THOSE TIMES ARE?

(c) How to get your time (and money's) worth from law school.

Fifty years of interviewing practicing lawyers has only confirmed what I've written in "So You Want to Be a Lawyer: A Play in Four Acts" (which you should definitely read if it hasn't formerly been assigned to you), and the consensus among my faculty colleagues.

What those practicing lawyers have told me is that the most important and valuable take-away from their legal education has been the basic skills you begin to learn in the first semester and refine thereafter: how to pull a holding from a case; how to find, analyze and apply (or distinguish) the relevant statutes, administrative regulations, and judicial opinions to the facts before you; how to best present the facts of your case, and organize and present your arguments. In short, what we call "how to think like a lawyer."

"We can teach law school graduates how to find the courthouse, the right forms to use, and where to file them," they say. "What we can't, and won't teach them are those basic, analytical lawyering skills."

Those abilities enable you to leave here with four skills: how to listen and read carefully, and how to speak and write clearly.

Nobody can "teach" you those skills; all we can do is to give you a few basics and occasional guidance on how you can teach yourself.

And next? Well, since this is a Sports Law class, some sports analogies may be appropriate.

It's like the fellow visiting Manhattan who asked for directions to Carnegie Hall. "How do you get to Carnegie Hall?" The answer he got? "Practice, practice, practice."

How many hours has a championship swimmer spent in the pool? How many golf balls has a championship golfer hit?

It's the same with legal skills. How many hours have you spent honing your basic lawyer skills? If anything, their mastery takes even longer than learning how to consistently kick 45-yard field goals, or pitch strikes. Are you putting in that time?

There's nobody watching over you. It's up to you now. You don't have to put in the hours. And I don't have to do the strengthening and stretching exercises that the doctor and physical therapist recommend to get full use of my knee replacement. But if I don't do them, and you don't do your law school mind stretching and strengthening exercises, neither one of us will get much return on our investment.

One of my efforts to help reorient your thinking is the elimination of the final examination. Grades should have stopped being the goal once you gained admission to this law school. Because from your first day until now, law school should be about what you know, what you can do, the knowledge and skills you'll need to draw upon over the next 50 years -- not what "grade" you were able to get. That's why I've substituted papers for exams. They offer you an opportunity to use what you're learning, instead of memorizing it. They offer you the stark choice: learn the material or not; it's up to you. Waiting to cram for an exam, in order to get a grade, is no longer the goal; it's not even an option..

Sports critics bemoan the growing commercialization of sports, from the professional teams, their impact on the increasingly commercial nature of college sports, and the extent to which college recruiters are now focused on identifying high school and junior high athletes. There is no chapter in our book devoted to "high school sports law." And of course many of sports law's issues are similar in high school, college, and professional sports. But since we're experimenting with reorganizing the book's material chronologically (that is, putting intercollegiate sports before professional), it might be interesting to go back a little further and start off by providing these examples from high school.

Drug Testing. p. 67 (bottom two paragraphs)

Q: 'In your opinion, what must a high school do to control students' drug abuse, what may it do, what must it not do? What are the variables, or choices, available?

Q: What rationale might be offered for each of those choices, such as treating high school athletes differently from other students?

Q: Would the drugs for which all students, and athletes, are tested influence your answer?

High School Athletic Associations as "State Actors." pp. 759-60 (two paragraphs, starting with bottom of p. 759)

Constitutional rights, as in the Bill of Rights, are generally limited to protections against governments. They do not restrain private institutions. Thus, the First Amendment would forbid the Iowa Legislature passing a law making it a crime to speak disrespectfully of the Governor. However, it would not forbid a local restaurant from imposing the very same restraint on its wait persons' conversations with customers. A murky middle ground exists when private individuals' or associations' actions are significantly "state-like," or intertwined with government actions. They may then be treated as "state actors," subject to constitutional restraints.

Question: Should a local school, or coach, be able to "make a federal case" out of a squable with a private association called, in this instance, the Tennessee Secondary Schools Athletic Association (TSSAA)?

Q: If reasonable and necessary purposes are served by such private associations, and member schools knowingly agree to be bound by their rules, procedures and punishments, aren't those purposes significantly frustrated and undercut by permitting disputes to go to, and be resolved by, courts?

Q: On the other hand, might there be some association decisions that are so outrageous that a judicial check is in order? How do you strike this balance? How might your answer be affected by the existence of a second, alternative state athletic association?

Q: Our authors note that 84% of the TSSAA's member schools were "public"; do you find that a relevant decisional factor under your own analysis of the issues?

Gender Equity in High School Sports; Title IX. p. 932 (bottom paragraph), 983 (first two paragraphs)

The applicability of Title IX (a federal requirement of gender equity) to college sports is the subject of Chapter 11. But the first referenced paragraph speaks of "the meaning of equal educational opportunity [in] high school sports programs." And pp. 983-91 (additional material which is not now assigned, but which you may read) deal with a challenging sub-set of questions hinted at in the first two paragraphs on p. 983.

Question: Does/should "gender equity" require, permit, or forbid the provision of uni-sex athletic teams (e.g., girls permitted to try out for, and play, football; boys permitted to try out for, and play, "girls' volleyball")? Which policy best serves the goals of "equal opportunity"? What was the practice in your high school?

Personal Injury Release Requirements. pp. 1144-45 (paragraph at bottom p. 1144, and first, bracketed, paragraph of opinion)

Participation in sports can be fun. It can also be the source of debilitating injuries, including paralysis, the consequences of repeated concussions, and even death. However sometimes awkward and imprecise, the law does have ways of putting a dollar value on such losses (e.g., Workers Compensation schedules of payments, or juries' damage awards in tort cases). The question then arises, how, and under what circumstances, should the dollar value of these losses be allocated (among, e.g., the victim, other participants, government (i.e., taxpayers), insurance)?

It would not be unreasonable for a school district to say, "We would like to provide an opportunity, for those students who want it and can make the team, to participate in sometimes dangerous sports. Given our budgetary restraints, however, we simply cannot assume the risk of, or pay the insurance premiums to cover, all the associated losses a given family may incur as a result of a student's participation in sports. Therefore, we require all high school athletes to sign a personal injury release form as a condition of participation."

On the other hand, what if rather obvious negligence on the part of a coach or principal plays a major role in the injury?

Question: What do you believe is the most equitable process for ascertaining the responsibility for such losses, and allocating them among the parties?

Because we are approaching Sports Law from high school, to college, to professional sports, we're following the same progression with our overview. Next, then, are chapters nine, ten and eleven.

Chapter Nine. Intercollegiate Sports: Due Process and Academic Integrity, pp. 745-844

1. Academics; students; amateurs.

(a) Conflicts of interest.

Q: What inherent conflicts or other problems do you see with trying to run a major, multi-billion-dollar, quasi-commercial athletic industry (e.g., Texas Longhorns brought in $120 million in 2008; p. 746) with multi-million-dollar coaches, inside an academic institution?

Q: What are the range of conflicts of interest that are created, for whom, and with what consequences?

(See, e.g., p. 777, first full paragraph.) Note that the NCAA’s Constitution provides in the very first article: “The . . . athletic programs . . . are designed to be a vital part of the education system. . . . A basic purpose . . . is to maintain . . . the athlete as an integral part of the student body . . ..” Article 2.6 declares that college athletes are “amateurs . . . motivated primarily by education . . . [and] protected from exploitation . . ..” (p. 746)

(b) False and misleading advertising.

If a gambling casino customer arrives with $100 in his left hand pants pocket to play slot machines, plays it all, but puts all winnings throughout the evening in his right hand pants pocket, he will, on average, go home with $85 to $95 (depending on how the slots are set) – a return, or chance, of at least 85% on one evening’s effort.

The NCAA’s own stats reveal that of college basketball players, only one in 70 will ever play a game for an NBA team (p. 843) – a return, or chance, of  1.4% on four years’ effort.

Q: Should colleges have an obligation to explain these statistics to athletes who hope to make a career of professional sports – a sort of protection against “false and misleading advertising”?

2. "Community teams alternative."

In Iowa City, some sports (e.g., softball, soccer, and gymnastics) exist as “community” sports, outside of the high schools’ sports programs. In many  countries, in-school athletics is limited to “physical education” and “intramural” competition, with a focus on the physical health and fitness of all students, rather than elite semi-professional athletes. Most of those countries’ soccer teams (the only sport that can claim a true “world series”) are community teams, not high school or college teams.

Robert Hutchins, appointed president of the University of Chicago at the age of 29, abolished the University’s football program in 1939.

Q: In your opinion, did Hutchins' decision help or harm the academic reputation of the University of Chicago?

Here, for our discussion is a question based on a hypothetical that will never happen:

Q: If all the Big Ten schools could agree (and it would require that to make it work), what do you see as the advantages and disadvantages of splitting off the universities’ football programs, making them independent, for-profit corporations that are part of a semi-pro league?

This would be a way of acknowledging the farm club role college football teams play, in fact, for the pro football teams (as farm clubs do for professional baseball). It would enable the teams to share the profits more equitably with the players who make it possible (by paying them outright; see p. 772, first full paragraph). Teams could lease from the schools the stadiums they use now. Perhaps players could have a cut-rate, or free, right to attend the universities as students if they wanted to, but they would not be required to be “student-athletes.” The corporations’ boards could pay the coaches whatever they wanted to, with no basis for public sniping about their being the “highest paid state employees.”

Q: Why would the President of the United States (Teddy Roosevelt) need to intervene in college football because it was so unsafe as to kill 15-20 players annually and disable another 150? Why is there, today, from within pro, intercollegiate, and high school football, seemingly less concern expressed about players’ repeated concussions than the concerns expressed by many in the medical profession? (p. 747, 1120, first full paragraph: “tort of fraudulent concealment”))

4. Private association law.

“[A]fter World War II,” our authors tell us, “the NCAA members agree to empower the Association . . . Executive Director . . . with authority over the enterprise . . . of college sports.” (p. 747) This is an example of “private association law” (as a substitute for “the law”).

Q: What are the potential advantages and disadvantages you find in this alternative legal system? Do you see any reason for “the law” to intervene, review, and check the potential abuses from private association law?

Q: Should participants at state schools (e.g., coaches and players) who complain about NCAA decisions have greater rights than those at private schools? Why or why not?

5. State action.

The U.S. Constitution, as amended, provides protections to individual not only from federal overreaching, but from states as well – and even from private institutions and parties, if what they are doing involves “state action.” Cases involving the NCAA, and state high school athletic associations, sometimes raise questions as to whether the constitutional rights of a complaining party, such as procedural due process, have been violated by the association. One of the express purposes of such associations’ substantive rules and designated procedures is to keep disputes out of the courts.

Q: Once a school, coach, or player is bound by the association’s rules, should it/they nonetheless possess the legal right to do an end run around those rules, and go to court for review whenever it does not like the association’s decision?

6. Academic eligibility.

NCAA rules forbid schools paying cash, or providing things of value (e.g., automobiles) to recruits. They also require certain minimum academic standards for admission to the school, and retention on the team. Eliminating payment from the recruitment process helps keep all teams on a “level playing field” (so to speak) – although it is nothing like, say, the NFL’s draft, in either purpose or effect. (And the present and future advantages for an athlete of one school over another is bound to skew the allocation of talent as much or more than payment anyway.)

Questions:

(a) Q: Once a recruited athlete is well positioned within a school’s football program, with no intention of transferring, what legitimate basis is there for NCAA prohibitions on payment? Would any problems this might create be resolved by an NCAA cap on such payments (with an option for the schools to pay or not)?

(b) Q: If you, while a law student, can negotiate with various firms or other potential employers for jobs after graduation, why should college athletes be forbidden to explore, and negotiate for, careers in professional sports after they graduate? See pp. 862-63 (one paragraph), and p. 847, first paragraph.

Q: Why should contract for future play in pros affect “amateur status” of college player while still in college?

Q: Why should courts continue to defer to NCAA efforts to maintain amateur status of players once the multi-billion-dollar commercial nature of enterprise becomes obvious?

(c) Q: Why should grades matter? See question 2, above (turning college football into commercial corporations).

(d) Q: Would you favor a system in which college football players could opt to take courses only during the spring and summer sessions, leaving them free to devote full time to football each fall?

7. Judicial scrutiny, pp. 814-15.

This material is a classic example of Sports Law offering you an opportunity to review what you have already learned in law school – or preparing you for what’s to come. Before addressing how a court will, or should, resolve a controversy evolving out of a set of facts, we need to address whether the matter is one that courts can, or should, get involved in at all. Our authors offer up four possible approaches.

Questions: (a) How would you explain the rationale and approach of each?

(b) Q: Can you reconcile the seemingly different approaches in the two little note cases here, Albach and Hall?

(c) Q: Using only those two cases, consider this hypo:

Given his parents’ lack of money, whether high school quarterback Able can go to college will turn on how much game time he gets during his senior year. His stats place him among the top 10% of quarterbacks in his, and surrounding, high school conferences, and the rough equivalent of those of Baker, the favorite of Able’s coach, Charlie. Four games into the eight-game season, Able has had no more than 17 minutes of game time. Able believes this is because he is Muslim.

Chapter Ten. Intercollegiate Sports: Commercialism and Amateurism, pp. 845-924

1. Exploitation.

The NCAA rules provide that student athletes must be “protected from exploitation by professional and commercial enterprises.” Art. 2.6.

Q: What about “exploitation by commercial enterprises of academic institutions”?

Maintaining student athletes’ eligibility as amateurs has the side benefit for their institution of being able to pocket the money that would otherwise have to be paid to the players who bring in the tens of millions of dollars to the athletic program, and help to fund the millions paid out to the coaching staff.

Question: Why does, or does not, current practice constitute a form of “exploitation” that should be seen to violate at least the spirit, if not the letter, of Article 2.6? (pp. 846, and 922-24)

2. Athletes’ employment income.

Q: What are the arguments pro and con for restricting, or not, the income athletes can earn from part time jobs, and how do you come out on that question? (p. 852, first full paragraph)

3. Professional contracts.

Q: What harm do you see in college athletes signing contracts regarding their future play for professional teams after they’ve graduated? (p. 852)

4. Judicial reading. See Questions for Discussion, p. 865, Question 2:

Q: When is it “ethically and legally appropriate for a school not to renew [an athletic] scholarship for a student who has neither exhausted eligibility nor graduated?”

5. Antitrust scrutiny.

Q: Insofar as there is only one NCAA, and schools need to be in good standing in order to optimize their income from football and basketball, do you believe that should impose some limitations on the NCAA’s ability to impose the “death penalty” on a school? (pp. 871-72)

6. Federal tax; charitable contributions. Iowa’s Senator Grassley has questioned the propriety, under the Internal Revenue Code, of permitting college big money athletic programs granting “donors” charitable tax deduction status for what amount to payment for skyboxes, or tickets. What do you think? (pp. 893-95)

Q: What are the options regarding TV revenue?

Q: Is it rational to have a distinction between pro and college TV revenue for tax purposes? What is the best way to allocate these expenses/income?

7. Coaching “Market.”

There is always some public questioning of college football coaches’ pay – including the fact that our own coach is the highest paid state employee. Universities consider this a “catastrophic cost spiral.” Coaches’ agents call it “the marketplace.”

Q Are you at all troubled with the NCAA’s apparent power to restrict coaches’ pay with something called the “Restricted Earnings Coach Rule”? How is this related to the NCAA’s mission of maintaining the “student” aspect of “student-athletes,’” or their amateur status? Does it represent overreaching (in the sense of an antitrust violation) by the monopoly NCAA, or is it a realistic response to market failure? (pp. 896-97)

8. Athletes “Market.”

Q: If there are at least some limits to the NCAA’s regulation of coaches’ pay, by what rationale can the NCAA limit compensation to college athletes? (pp. 904-05)

9. Athletes’ compensation.

Q: What is the distinction between cost of attendance (COA) and “tuition, books, room and board,” and why did the former win out?

Q: How might you distinguish (a) prohibiting the compensation of student athletes, while they are playing, beyond COA, and (b) requiring athletes to assign to their schools, in perpetuity, all rights to their images (e.g., in video games)?
 

Chapter Eleven. Intercollegiate Sports:  Gender Equity, pp. 925-993

1. Gender Equity. It is one thing to use, and obtain acceptance of, a generalization like “gender equity.” It is quite another to design the formulae to bring it about.

Q: What criteria can you think of that might be metrics for measuring gender equity? Of these possibilities, which do you find most appropriate, and why?

2. (a) On the assumption you are going to design a college’s approach to compliance with Title IX that is both equitable for women athletes and administratively viable with retention of men’s sports, what would you propose? (b) Title IX provides that “No person . . . shall, on the basis of sex, be excluded from participation in . . . any education program . . . receiving federal assistance.”

Q: What is your take on [1] Senator Tower’s amendment, [2] the Supreme Court’s decision in Grove City College, [3] the Civil Rights Restoration Act of 1987, [4] Gwinnett County Public Schools, and [5] some schools’ decision to eliminate sports such as men’s gymnastics and wrestling in order to meet the legal quotas? (pp. 925-27)

3. Coach equity.

Q: Should gender equity (primarily regarding men and women athletes and their teams) also require some form of equity among men and women athletic directors and coaches, with regard to salaries as well as numbers? What variables or other factors should be relevant in establishing these standards? (pp. 971-73)

Q: Is the fact that both Stanley and Raveling were basketball coaches despositive with regard to an equal pay claim?

4. Gender segregation and access.

Q: Assuming we seek “equity,” what are we to do about separate men’s and women’s teams (e.g., basketball, baseball), and single-sex teams (e.g., football)? Does this represent a form of segregation, and a denial of equity? Or does it provide greater equity, in that, for example, more women are likely to be able to compete in basketball on “women’s basketball teams” than would be selected for, and participating on, uni-sex basketball teams?

Q: What is the proper, gender equity, disposition of a woman’s request to participate  on the men’s football team – as, say, a placekicker? (p. 979)
 

Chapter One. Moral Integrity of the Sport: The Role of the Commissioner and the Law, pp. 1-90

1. Q: Besides private association law, what other (two or three) examples of other-than-law-school-legal systems of regulation or influence upon human behavior can you think of?

2. Q: Based on your familiarity with our book's table of contents and your own general knowledge from life, name five other law school courses (other than antitrust and labor law) that might have applicability to professional sports.

3. Although existing outside of, and in some ways designed to avoid and evade, traditional "law school law," there are some basic institutions and functions of that traditional legal system that private association law finds it necessary to replicate in one form or another.

Q: What are some examples?

Q: Whom would you identify as the stakeholders you can think of in professional sports?

(a) Q: For what reasons would you agree or disagree with that assertion; that is, what relationship do you see, today, between sports and war?

(b) Q: How might (or does) sports play a role in reducing potential wars?

(c) Q: What other institutions are there in our society that – whether or not designed as such – have the result of preparing teenagers for military service?

(a) Q: What does that phrase mean to you?

(b) Q: Why, for what reasons, does “moral integrity” take on a greater, or lesser, significance in professional sports than in other jobs?

(a) Q: What is the political science name given to a system of national rule that intertwines corporate/economic power with government, and puts an enormous range of power in the hands of that government's single head?

(b) Q: How is professional sports' private association law similar and distinguishable from that national governmental system?

(c) Q: The standard used for many sports commissioners’ decisions is “best interests of the sport.” If Congress, or the Iowa Legislature were to use comparable language (e.g., “the best interests of the State of Iowa,” or “the best interests of American manufacturers”) as a standard for an agency head to apply in arriving at decisions, what argument might you make in an effort to persuade a court to find it unconstitutional?

(d) Q: How is, or is not, the rationale of that court decision equally applicable to the sports commissioners’ standard?

(a) Q: Why should players' off-the-field behavior be of any proper concern whatsoever under professional sports' private association law, subjecting players' behavior to regulation and punishment?

(b) Q: Should your out-of-office behavior as a law firm’s young associate affect your bonus (or continued employment)?

10. Our authors say gambling is one of the "major moral challenges" in professional sports (p. 33).

(a) Q: On a scale with "fixing" a game as the worst (i.e., betting on your own team to win or lose, and then personally contributing to that outcome), and casual encounters as the least (e.g., walking through a casino without betting in order to attend a music or stand-up comic’s performance in its theater, or once having been introduced at a party to someone who turns out to be a professional gambler), what would you identify, and how would you rank, the various ways in which sports figures (e.g., players, coaches) might be said to be “involved with gambling”?

(b) Q: If professional sports' concern regarding gambling involves gambling as a "major moral challenge" why should, or should not, it make a difference whether the specific form of gambling is "legal" (e.g., state lottery) or "illegal" (e.g., Mafia-run numbers racket)?

(c) Q: In what ways might the advertising on the Kinnick scoreboard by the local gambling casino known on its Web site as the "Riverside Casino & Golf Resort" -- and modified on the scoreboard to read "Riverside Hotel & Golf Resort" -- create, or not, a problem regarding this "major moral challenge"? How does, or does not, the change in name affect your answer? Is it relevant that in addition to the advertising revenue, the athletic program also gains financially from the Casino’s acquisition of a skybox for entertaining its high rollers, or advertises packages that include attendance at games along with hotel rooms, and transportation from the Casino to and from Kinnick?

(a) Q: Why would the existence of players' unions make a difference in professional sports' drug policies and procedures?

(b) Q: What do you think are, or rationally ought to be, the bases for a reasonable concern of professional sports regarding players' use of "drugs"?

(c) Q: Given the bases you've identified, what is the relevance of the legality of the drugs involved (e.g., alcohol vs. cocaine)?

(d) Q: Given that alcohol is the nation's number one hard drug by every measure (e.g., economic impact, lost work days; involvement in roughly 50% of all crime, violence and unwanted pregnancy; permanence of averse health impact) what is the significance of professional sports profiting off of the TV advertising revenue for beer and other alcohol products?

(e) Q: Caffeine enhances performance in some sports. Why and how should its use be regulated, and if not why not?

(f) Tobacco (nicotine) is said to be more addictive than heroin and causes roughly 450,000 deaths a year. (That’s why the industry has to entice pre-teens to take up the addiction (since few people over 21 start smoking), providing what the industry calls its “replacement smokers” – replacing, that is, that portion of its customer base that the industry kills off each year. Chewing tobacco can cause cancer of the mouth and throat.)

Q: But personal health and athletic performance effects aside, does the drug use involved in cigarette smoking or chewing (at home, or otherwise out of the sight of fans and media) have an adverse impact on “the best interests of the sport” sufficient to warrant fines or other punishment?

Q: If the Fourth Amendment to the Constitution were relevant (it does not, of course, directly apply to private "searches") which of the two would come closest to meeting the standards of the Constitution and why?

(a) Q: Actual practice aside, how far do you think professional sports needs to go in protecting the health of players (e.g., actual risk of exposure to AIDS, flu shots for all, bronchitis, coughs and colds; requiring them to stop smoking tobacco “because it’s bad for them”)?

(b) Q: Elected officials often take into account popular opinion, regardless of how uninformed, prejudiced or mean-spirited it may be (e.g., gay marriage, immigration). What should be the standard or requirement (legal or otherwise) regarding professional sports’ ability to recognize and respond to popular opinion regarding, e.g., athletes with AIDS, African-American (during the early 20th Century) and women athletes and sports reporters?

(a) Q: What might be a rational, reasonable, reason for such a rule?

(b) Q: If you believe there is such a basis for the rule, why should it nonetheless be modified by a requirement of gender equality?

Chapter Two. Constructing a Players Market From Contract to Antitrust Law, pp. 91-171

1. A “market” for labor is not limited to professional sports. To assist both your understanding of, and interest in, the “players market” consider, compare and contrast the various markets of which you are a part. What are the similarities and differences of the players market and

(a) Q: a prospective law student selecting, or being selected by, a major AALS/ABA-accredited law school, or

(b) Q: a law school graduate selecting, or being hired by, a law firm?

(c) Q: For the new associate in a large (multi-hundred-lawyer) law firm, how is the firm like a “league” with a “reserve system”? (pp. 91-92)

3. Based on what you may now know (or guess) about antitrust law,

(a) Q: from an antitrust perspective what’s the problem with a “reserve system” and its accompanying “anti-tampering agreement"?

(b) Q:  How does a reserve system differ from slavery?

(c) Q: In what ways do all the fast food restaurants offering jobs to students create an analogous potential antitrust violation? (p. 92)

5. Assume for purposes of this question that there is no legal problem with the reserve system.

Q: The question is, what remedy, if any, do you believe would be most appropriate (fair; just; equitable) for owners dealing with players “jumping” their contracts: injunctions or damages? And why? (p. 95)

Chapter Three. From Antitrust to Labor Law, pp. 172-272

1. The opening paragraph illustrates the extent to which Sports Law is an amalgam of elements of private association law, contract law, federal and state legislation and court decisions. (p. 172)

Q: In the instance provided, specify those elements and describe their relationship and chronology.

Q: Which of these seem to be designed to (or at least have the consequence of) holding down players’ salaries?

Q: Which seem to serve some other purpose? And what might that purpose be?

Q: Is that result an inevitable consequence of a draft system? What alternative can you think of (if the owners were willing to do it)?

Q: Do you agree; why or why not?

Q: Why shouldn’t players be able to both (a) form a union for purposes of collective bargaining and also (b) bring antitrust suits against owners for any provisions or practices that are “in restraint of trade”?

Q: What is the significance of collusion under (a) antitrust law, (b) labor law?

Chapter Four. Labor Law and Collective Bargaining in Professional Sports, pp. 273-364

1. As the authors acknowledge, “For the last four decades, the world of professional sports has experienced the most tumultuous labor-management relations of any industry in America” (p. 273). As a result, much harm has been self-inflicted on owners, players and fans. (The harm has included, or flowed from, among other things the cancellation of a World Series and Stanley Cup, and the threatened 2011 NFL lockout.) Our authors describe what has happened. The question is:

Q: With so much at risk for all, and so much to gain from an adult, win-win solution, why do you think this strife occurs? What might you contribute as a lawyer in the process?

Q: What would be the relative advantages and disadvantages of using the sport’s commissioner as its arbitrator?

In Federal Baseball Club of Baltimore, 259 U.S. 200 (1922), Justice Holmes addressed the applicability of the antitrust laws to baseball. The threshold question is whether baseball is “commerce among the several states.” If it is, it is possible, though not inevitable, that it is subject to the Sherman Act; however, if baseball is neither "interstate" nor "commerce" that is the end of the inquiry, because unless it is both Congress simply has no constitutional authority to regulate it, regardless of what the Sherman Act says and whatever Congress may have intended. Although not in your book, Holmes brief, five-paragraph landmark opinion, which you need not read for this question, is nonetheless easily accessible if you want to read it, e.g., Findlaw, http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=259&page=200.

He writes, inter alia,

“The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order [259 U.S. 200, 209]   to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. . . . [T]he transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words. As it is put by defendant, personal effort, not related to production, is not a subject of commerce.”

Q: Do you agree with his analysis as a matter of (a) current interpretations of the "interstate commerce clause" (a matter still debated, as courts address the new healthcare law requirement that everyone buy health insurance), or (b) sound public policy regarding professional sports?

(a) In what ways is this standard (as expressed in its first two sentences) similar to what  employers in most industries would apply to new hires – including the law firms for which you and Iowa’s other graduates end up working?

(b) In what ways, if any, do you find it especially onerous, unfair and unreasonable as applied to professional football players?

(c) Could the clause referring to “personal conduct reasonably judged by Club to adversely affect or reflect on Club” be used to intimidate, punish, or terminate players involved in union organizing activity?

(d) What about players’ public expression of controversial or unpopular opinions? What about whistleblowers?

Background: the American Federation of Labor (AFL) was an association of unions representing crafts, or guilds (e.g., plumbers, electricians; actors belong to the “Screen Actors Guild” (“SAG”)). The Congress of Industrial Organizations (CIO) was an association of unions representing industries within which there were many crafts (e.g., the United Auto Workers (UAW), and United Steelworkers (USW)). (The two were ultimately combined into today’s “AFL-CIO.”)

In the “entertainment industry” (or as they sometimes call it in LA, “the creative community”), in addition to SAG there are  also, among others, the American Federation of Television and Radio Artists (AFTRA), Actors Equity (stage actors), and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts (IATSE).

You have, by now, probably guessed where I’m going with this.

(a) Q: Among professional athletes who want to be represented by a union, what is the “unit appropriate for purposes of collective bargaining”? NLRA § 9(b) [29 U.S.C. § 159(b)].

(b) Q: Given the quantity, and proportion of total revenues received from television, are the NFL’s “players” actually “performers,” a part of the “entertainment industry” and most appropriately represented by, say, AFTRA?

(c) Q: From the CIO perspective, how broad or narrow should we focus: the entertainment industry, the televised sports industry, professional football, the NFL, the Dallas Cowboys?

(d) Q: From an AFL perspective, do quarterbacks have a “community of interest” that needs to be represented separate and apart from that of “special teams” and linemen?

(a) Q: Why would Congress have had such a purpose?

(b) Q: What was it hoping to accomplish, or remedy?

(c) Q: Which players are most, and least, benefitted by a collective agreement with the effect the Supreme Court gives it in this opinion?

Q: “How should the arbitrator have ruled?” and “Why was this an issue for the arbitrator instead of the NLRB?”

(a) Q: Why is the lockout more than merely reciprocal?

(b) Q: What advantages does it provide to employers; advantages that are not reciprocated for employees?

Q: What limits are there, and in your judgment ought there to be, to judicial intervention into disputes arising under a collective bargaining agreement, or players’ standard contract, when those documents expressly provide that all disputes are to be submitted to “final and binding arbitration” (alternative dispute resolution, or ADR)?

(b) Q: Do you believe the standard in Vaca (“arbitrary, discriminatory, or in bad faith”) (p. 350) is an adequate solution to this risk of conflict?

(a) Q: Why do you think revenue sharing should, or should not, have the consequence of making the NFL, rather than the individual teams, the relevant corporate entity for purposes of antitrust and labor law analysis?

(b) Q: In what ways does revenue sharing make those on the field, presumably engaged in fierce competitive battle, more akin to TV performers and less to Olympic athletes?

Chapter Five. Agent Representation of the Athlete, pp. 365-433

1. Our authors list a couple of reasons why players’ benefit from representation by agents (pp. 365-66).

Q: What reasons or examples can you think of as to why players’ interests are not always well served by “agents”?

Q: Do you think there should be? Why or why not?

Q: Do you believe that non-lawyer agents are engaged in the “unauthorized practice of law”? Why or why not? (pp. 367-68)

Q: Why might all professional athletes benefit from more “staff” than just relying on an agent for many of these functions? Why not?

6. Q: If you’re representing a new draft pick, what might influence whether you would you favor strict enforcement of player association-negotiated provisions for salary caps and taxes, or the availability of possible loopholes for escaping from those restrictions? (p. 373)

7. Q: What do the authors mean by a “fundamental jurisprudential difference . . . is that . . . grievance arbitration interprets and enforces contract rights . . . [whereas] salary arbitration . . . establishes this key term in the individual player’s contract . . .?” (p. 375).

8. Look at p. 386, footnote j.

Q: What do you conclude from this data with regard to the effectiveness of “the marketplace” in setting players’ salaries?

(a) Q: What procedure could be (or is) required of lawyers that is at least aimed at eliminating this problem?

(b) Q: Agents may not have “training or certification” but they are subject to standards regarding their “competence and quality of representation” of clients (p. 387). Do you think a similar standard should be required of lawyers? Is it already; if so what is it?

Q:  which of those methods for compensating lawyers might be on the table, and of them which do you believe would be the most reasonable for the agent and player to adopt and why? (p. 391)

(a) Q: As you see it, what was the potential problem with the SFX acquisition and subsequent Clear Channel merger?

(b) Q: Why would you say it was or was not a truly serious potential problem?

(c) Q: Was the solution enough, too much, or merely a solution in search of a problem?

(d) Q: What potential conflicts of interest do you see with even a single agency (let alone a merger of 21 agencies) representing multiple clients?

(e) Q: What are the requirements that are, or should be, imposed on lawyers in this regard? (f) What analogies might be drawn from lawyers’ standards of professional responsibility that could be usefully applied to agent-player relations?

Q: What occur to you as some of those legal policy issues?

(a) Q: “Why do we care?” That is, what potential policy or other issues do you see with two adults negotiating with each other regarding representation (i.e., agent and player)?

Doesn’t college football operate as a de facto farm club system for professional football? The minor league baseball teams are affiliated with the majors.

(b) Q: What problems do you see, if any, if college and high school football teams could have an affiliation with NFL teams – as the college teams do now have affiliations with sports manufacturers?

(c) Q: Why shouldn’t college players be paid all the marketplace can deliver; maybe not as much as the colleges coaches are paid, but something significantly in excess of the value of room and board at the Hillcrest Dormitory? One can only guess how much smaller the Kinnick crowds would be on Saturday afternoon if only the coaches showed up with no players, but it’s reasonable to assume the ticket revenue would be significantly smaller than it is with the players.

(d) Q: The authors twice mention concern for the impact on colleges: “Statutory agent regulation has focused on protecting universities” (p. 405) and “These kinds of deals . . . subject the college to a considerable risk of tangible loss” (p. 425). Of course one answer would be to do away with the restrictive NCAA regulations, in which case (like legalizing marijuana) there would no longer be “these kinds of deals.” But why is legislation necessary; universities have closer supervision of athletes than other students; don’t they have all the resources they need to enforce NCAA standards? If “these kinds of deals” never come to light the university loses nothing; if they do come to light, they do so with full disclosure of the player, agent, and possibly other team, involved. Would an adequate remedy be to impose damage liability on those parties for whatever loses are imposed on the university by the NCAA (e.g., eligibility; lost revenue from a cancelled bowl game)?

(e) Q: Compare and contrast law students with college football players who want to go pro. Law firms may interview students before they are “eligible” (i.e., before admission to the bar or even graduation from law school); firms may even hire them for summer jobs, paying handsomely, with the possibility-to-probability of a permanent job offer on graduation. What standards should the American Association of Law Schools-American Bar Association develop to regulate these nefarious practices (as the NCAA regulates their analog in college sports)? Or, if you think law students’ situation is distinguishable, explain why and how that is the case.

Chapter Six. Sports Broadcasting, Merchandising, and Intellectual Property Law, pp. 434-538

1. (a) Q: If, during the 50 years from 1960 to 2010 professional sports has become “just another TV program” (e.g.,  “ABC’s Monday Night Football is one of the highest-priced [for advertising] regular programs on prime-time television;” NFL’s annual TV revenue increased during that time from $4.65 million to $20 billion; two-thirds of its total revenue) why not have the FCC regulate it as such?

(b) Q: In what sense is pro football a “sport,” an athletic contest similar to the Olympics, and in what sense is it more realistically described as a multi-billion-dollar business in which out-of-town millionaires become a “home team” (until another city gives them a better deal elsewhere), playing for billionaires, in multi-hundred-million-dollar stadiums paid for by taxpayers who can’t afford to attend the games, supported by television advertisers?

(c) Q: Clearly football needs on-the-field rules in order to have the entertaining game; but, then, so does “Wheel of Fortune” or “Dancing with the Stars.” Why should legislatures and lawyers, or anyone else for that matter, care about the off-the-field rules? (p. 434-36)

In 2009 soccer star David Beckham earned $33 million in endorsements, $7 million in salary. “Pelé, from Brazil, the greatest soccer player of all time, . . . became an instant star . . .. By 1960, his team, Santos, reportedly paid him $150,000 a year . . .. [T]he inflated rewards of performers at the very top have to do with specific changes in the underlying economics of entertainment. . . . Pelé was not held back by the quality of his game, but by his relatively small revenue base. He might be the greatest of all time, but few people could pay to experience his greatness. In 1958, there were about 350,000 television sets in Brazil.” [You need not read the whole story, but if you care to, it is “How Superstars’ Pay Stifles Everyone Else,” New York Times, December 26, 2010, p. BU1,  http://www.nytimes.com/2010/12/26/business/26excerpt.html]

Your questions: Where does the difference between Pelé’s $150,000 and Beckham’s $33 million and Jordan’s $45 million, come from? What does it represent? What is the most appropriate allocation of the “property” called “celebrity” and what it can earn in merchandising and endorsements, among, say, the player, other players, the Club (owner), the media, the agent, the college (and pro) coaches? Or do you think it all rightfully belongs to the player?

4. Insofar as a pro sports event is “news,”

(a) Q: How should the balance be struck between media access and the public’s right to know, on the one hand, and the owner/players’ “intellectual property” in the entertainment/performance on the other? (pp. 436-37)

(b) Qs: For these purposes, what distinctions would you draw between (1) continuous television coverage of the entire game, (2) brief video bits used by a local TV station, or put up on YouTube from a PDA, (3) ditto for radio, (4) still photos, (5) audio, PDA or online reports of changes in the score of a football game, texting or tweets from inside the stadium, or online graphics of where the ball is on the field. (6) What about a newspaper’s sports reporter who buys a ticket, sits in the stands, makes notes on a pad, or dictates into an audio recorder, and writes up his story on a laptop afterwards? (7) Can a team bar any of these persons from entry? Get an injunction against any publication or broadcast? Damages? (8) What if the sports reporter gets his/her information from watching a telecast of the game? Is that OK? What if they watch from a high rise building with a view overlooking the stadium? (9) What if a former player or coach or sports reporter buys a ticket, attends the game as a fan, and is subsequently paid for a TV interview, magazine article, or motivational speech that draws heavily on the facts of the game? (10) Are all of these activities violations of the owner’s/players’ “intellectual property”? If not, what are the distinctions of decisional significance? (11) Can all of this be controlled/resolved with a simple notice on the ticket? (Teleflash, p. 437)

Q: Which is which?

Q: Can a league, or team owner, get a copyright on “the game”?

When the team permits a newspaper’s sports reporter to enter the stadium and sit in the press box, s/he presumably has thereby been granted either express or implied consent to “use the events of this game” in the stories she writes. But, back to question 4 (b) (8) and (9) for a moment, and drawing on what you’ve just learned about copyright law from this question 6, your question is:

Q: Does the copyright law entitle the owner/network to prohibit (or condition/restrict) the “use of the events of this game” involved when a newspaper reporter writes about those “events”?

(a) Q: Why would, or would not, you advise  a newspaper’s sports reporter to get a blanket license from each team s/he writes about, permitting the use of the teams’ trademarked names? Isn’t that a “use”?

(b) Q: If it’s OK to put “Green Bay Packers” in a newspaper story – designed, at least in some small part, to increase sales of the paper and profits to the owner/s – why is it not OK to put it on a coffee cup, also sold to make a profit?

(c) Q: Would it be OK, without a license from the University of Iowa, to create and sell t-shirts that have on them [1] “University of Iowa Football,” or [2] “Hawkeye Football,” or [3] the Herky logo, or [4] the words “Herky the Hawk” (with no logo)?

(a) Q: What possible harm might they have in mind?

(b) Q: Those concerns aside, and based on what you now know or surmise about antitrust law, what problems do you see potentially created by this practice?

Chapter Seven. Franchise, League, and Community,pp. 539-688

1. It’s one thing for taxpayers to pay for public facilities such as K-12 public schools, public libraries and parks, available to all citizens for free, or at radically-reduced below-cost rates, or at least run by non-profit concessionaires. It’s another thing for taxpayers to end up transferring multiple-100-million dollar amounts to a for-profit, private, multi-billion-dollar industry to build stadiums that many taxpayers cannot afford to enter (p. 540).

Q: Why do you think this is, or is not, wise public policy and public finance?

Q: Which approach do you prefer, and why? Do you think it would be a good idea to simply avoid the risks of, and actual, anticompetitive practices inherent in, sports leagues by simply abolishing/forbidding their existence?

(a) Q: Given this economic track record for public investment in private, for-profit institutions, and given the evaluations and advice from some of the nation’s best economists, why do you think communities continue to make such expenditures?

(b) Q: On the other hand, if you believe the economists are wrong, or they are right but you don’t care, what analysis can you offer for your position that these taxpayer expenditures should be undertaken anyway? (p. 581)

Q: What do you see as the advantages and disadvantages of each of these two positions, both with regard to (a) how many total teams an individual owner can have, and (b) whether “cross-ownership” (i.e., one individual owning teams in two or more sports) should be permitted?

(b) Q: Can you imagine some kind of hold-harmless clause that might protect the losing cities? What would it be?

(c) Q: Because major cities, in competition with each other for teams, are not able to restrain or resist professional teams’ overreaching (i.e., in terms of the share of stadium-building costs assumed by taxpayers), do you think the National League of Cities, say, should lobby Congress for a law setting a maximum percentage of stadiums’ costs that can be provided by local taxpayers?

(d) When a municipality issues bonds to fund projects, they are “tax free municipal bonds.” That is, those who buy the bonds, either from a “municipal bond mutual fund” or as individual bonds, do not have to pay federal income tax on the earnings. Thus, not only are local taxpayers, but national taxpayers as well, paying for billions of dollars worth of stadiums essentially given to  the private owners of teams. (That is, all federal taxpayers have to pick up the slack on the taxes not paid by municipal bond owners, taxes that would have been paid had the bonds been issued by a private corporation.)

Q: Why do you believe, or not, that the tax law should be amended to require municipal bond holders to pay federal income taxes on their earned interest when the money from the sale of the bonds has been used, in effect, to further enrich a private, for profit enterprise?

(a) Q: Do you believe that this legal responsibility of broadcasters dictates a right in baseball fans to watch the World Series “for free” (i.e., with advertising) on a basic cable channel, or from an over-the-air station?

Q: Why do you believe, if you do, that it precludes MLB from selling the World Series to HBO, or other pay-per-view distributor, and then sharing the added revenue with the member teams? Lest you laugh, the U.S. Senate Commerce Committee took essentially this position, creating a near-Constitutional right to watch the World Series, at a time when the cable television industry was criticized by the National Association of Broadcasters for posing precisely that risk to Americans.

(b) Q: Whether it’s a violation of the antitrust laws or not, what other factors do you believe should be considered in evaluating the propriety of “league-wide television contracts” and the restrictions imposed on where games can be broadcast because of “territorial exclusivity”?

(a) Q: When Commissioner Pete Rozelle [now Roger Goodell] decides that the NFL needs a “league-wide television package” isn’t he acting as if he is the CEO of a single corporation with a number of “divisions” or “subsidiary corporations”? (p. 658)

(b) Q: On the other hand, if the member clubs are conceptualized as wholly independent organizations that make up 100% of the “industry” called the NFL, when they eliminate any possibility of competition among alternative broadcasting organizations to televise their games why is that not a slam-dunk (to mix my sports metaphors) antitrust violation?

(c) Q: What possible justification could there be for the “Sports Broadcasting Act” exemption (“The antitrust laws . . . shall not apply to any joint agreement [regarding] sponsored telecasting of the games . . .”)? (p. 659)

(a) Q: Why would any of the current policies (some of which they go on to describe) not be “protected by the SBA”?

(b) Q: Who gains and who loses from those policies?

10. Q: What do you see as the advantages and disadvantages (from whatever variety of perspectives seem to you most relevant) of denying individual clubs the opportunity to develop their own Web sites? (pp. 682-83)

11. Q: If, rather than “limiting the number or times of superstation game telecasts by individual teams” a league could simply “tax” individual teams’ extra revenues, why would (or wouldn’t) a similar system work with revenue sharing generally for TV, radio, merchandising and the Internet? (p. 684)
 

Chapter Eight. Monopoly in Professional Sports, pp. 689-744

Chapter Eight brings together a number of the antitrust issues we touched on in our overviews of chapters one through seven: the potential and actual impact of anticompetitive, monopolistic structure and practices within professional sports on owners’ control and profits, players’ salaries and bonuses, broadcasters and merchandisers, and local taxpayers and stadium authorities. Antitrust law also impacts relationships: owners and owners, owners and leagues, owners and players, players and players’ associations, and fans relationships with all of the above.

1. “Monopoly Power and the Relevant Market,” p. 692, introduces us to a couple of the fundamental questions of monopoly and antitrust: If this is a monopoly: what is the product that has been monopolized, and where is the market in which it has been monopolized? How do you answer those questions for, say, the Dallas Cowboys?

(a) Q: Is “the product” market in which the Cowboys compete [1] the range of leisure time activities in a “leisure market” (e.g., including going to movies, reading for pleasure, playing golf or video games, watching TV), [2] spectator entertainment (e.g., including attendance at a comedy club, or live theater), [3] spectator sports (e.g., including Little League Baseball, high school basketball, college football, a professional golf match), [4] professional sports of all kinds, [5] professional football, NFL games? Obviously, the more broadly the product is defined, the less likely any one business will have enough market share to be considered a monopoly.

(b) Q: Where is the relevant market: [1] Dallas-Ft. Worth, [2] any place within an area with a radius of 250 miles from there (Texans don’t seem to mind a little three-hour drive like that), [3] the whole of the nation’s largest non-glacial state, [4] all cities with NFL teams, [5] everywhere the games can be followed on TV, cable, the Internet (i.e., the entire U.S. and much of the world)?

2.  Q: If, as the authors say, “The true evil aimed at by antitrust law . . . is action by the monopolist that excludes others from entering or remaining in the market . . .,” what can you recall from chapters one through seven that might be examples of action by any of the professional sports stakeholders that would meet that standard of “evil”? (p. 706)

3. In terms of “Players,” p. 706, the authors say, “the principal focus of Chapter 3 was on the market for the hiring of players, while the focus of this chapter is on the use of the labor market to affect competition in the broader ‘product market’ for professional sports entertainment . . ..”

 Q: What does the clause following the comma in that question mean to you? What are they talking about?

(b) Q: How might you argue that a stadium that local taxpayers have funded in whole or in part is the athletic equivalent of what we call a “public forum” in constitutional First Amendment law, and what might the consequences be if a court were to buy your argument?

(c) Q: And why do you, or do you not, think this would be a desirable result from the perspective of public policy?

6. Back under “Stadiums,” p. 718, the authors assert, “Ideally, there should be two or more major league teams in each sport playing in the same city . . ..”

(a) Q: Why is that so, in terms of our chapter’s title, “Monopoly in Professional Sports” – so long as there is the competition that exists among the teams in the league?

(b) For a variety of reasons, that ideal is not often attained. That being the case, consider “Break Up the Big Leagues?” (p. 742).

Q: Why, in your opinion, should, or should not, there be “within each sport . . . three or four separate leagues that would compete against each other . . .”?

Chapter Twelve. Individual Sports, pp. 994-1085

Introduction; pp. 994-96, with its seven “distinctive characteristics.”

1. Our authors characterize as “a different part of the sports world” sports played by individuals rather than teams, and in which the competition occurs in tournaments rather than leagues.

(a) Q: How might such sports (e.g., golf and tennis) be organized into teams and leagues?

(b) Q: What would be the advantages and disadvantages of doing so, in terms of such variables as you might imagine, as well as in terms of marketing and gross revenue?

3. Distinction 2. Q: In what ways are “players associations” in individual sports more potentially anticompetitive than leagues of owners in team sports?

4. Distinction 3.

(a) Q: Why, and in what ways, does the “Super Bowl” end up being anything more than “just another football game”?

(b) Q: How, and with what characteristics/elements, do you create a “Grand Slam” event?

6. Distinction 5. Our authors detect “delicate questions” when “prominent and successful sports agents” are “managing and promoting the same tournaments their clients played in.” Q: What do you imagine some of those “delicate questions” might be?

7. Distinction 6; and p. 1040.

(a) Q: What potential problems do you see with sports equipment manufacturers’ role as stakeholders in the rules of the game with regard to, e.g., golf clubs and tennis rackets?

(b) Q: Can you imagine conflicts in which it would be appropriate for “the law” (i.e., legislatures and courts) to intervene and make the rules?

(c) Q: Baseball bats that used to be made of wood can be made of aluminum. The poles used in pole vaulting used to be bamboo and are now a flexible metal. How do you believe sports should respond to potential technological changes in equipment? The authors ask, “if a new alloy is made for a lighter, sturdier bike resulting in faster finishing times, why not let the bike in races?” (p. 1040) How do you respond to their question?

(d) Q: Why should, or should not, there be some stage of development in equipment – presumably sometime after Greek sports, but before the latest technological advance – that is the “real,” or “proper,” or “most authentic” equipment, that we should insist upon (i.e., what might be the consequences of doing so, or not)?

(a) Q: Do you think that shouting “We’re Number One!” is enough for America, or do you believe we need to rethink our “World Series” (once decided by two teams from Missouri; 1985, Cardinals and Royals) and a not all that a super of a “Super Bowl”? (Or is this just the American sports equivalent of the American fast food company willing to subject itself to the ridicule of Europeans by claiming to be “the home of the Whopper”?)

(b) Q: To the extent that sports is already international, or you believe it should be even more so, whose courts should have jurisdiction and whose law should govern such disputes that get into the legal system (e.g., the country where the sporting event takes place, the county of one or more of the participating teams or individuals, the country where the league has its headquarters)?

(a) Q: What defines or controls what can be considered a legitimate “sport”? A hotdog-eating contest? “Dancing with the Stars”? How did NASCAR make it into our casebook?

(b) Q: What potential problems, and benefits, do you see with a single individual or family (Bill France and NASCAR; Lamar Hunt and World Championship Tennis) owning and controlling an entire sport, or having a disproportionate influence in how it evolves?

(a) Q: What potential problems, if any, do you see with an organization in charge of a sport being made up of players exercising the decisions with regard player discipline, and who is, and is not, eligible to play (e.g., Jane Blaylock, p. 1024)?

(b) Q: Why, or why not, do you believe that those who promote boxing should be treated like those who promote dogfights?

(c) Q: Do you think the solution of state “boxing commissions” was a good one? Would something like that be useful for other sports as well?

Chapter Thirteen. Personal Injury From Sports,pp. 1086-1150

1. [Introduction, and A. Torts and Sports, pp. 1086-87]. Players, and occasionally fans, sustain injuries in the course of professional sporting events. When they do, they clearly have suffered a loss, whether momentary pain, permanent paralysis, or death – a loss similar to that for which the law has procedures for monetizing.

(a) Q: The question is: How should that loss be shared, if at all, and by whom, and in what proportions, e.g., let it all fall on the injured player, the owner, a surtax on ticket prices, insurance purchased by a players association?

(b) Q: Our authors acknowledge that importing the tools of tort law into the arena of injured and killed sports participants and fans “requires the law to undertake a delicate balancing act.” (p. 1087). So why do it at all?

(c) Q: Are the concepts of “negligence” or “fault” even relevant, or useful, when dealing with, e.g., a head injury sustained by a basketball player when two players go after a rebound and one falls on the court, or a sack of a quarterback produces a twisted knee injury?

(d) Q: Under what circumstances should the other player or players involved in the event from which the injury occurred bear responsibility for the injury, or liability for damages?

(e) Q: What if minor to significant injuries often occur whenever a particular, especially fast, 300-pound-plus football player tackles someone one-half to two-thirds his weight? Should he have a legal obligation to hold back when executing tackles? A moral/ethical obligation?

(f) Q: Or would you limit responsibility, and liability, to those instances in which the other player was clearly trying to do injury for the sake of doing injury, e.g., a fist to the jaw long after the whistle blew, a hockey stick clearly swung at an opposing player’s head?

3. Q: In a bar or on the street, the deliberate hitting of another, especially if with the intention to do harm, can be both basis for tort liability and criminal prosecution. Under what circumstances do you believe the criminal law should be brought to bear in instances of sports injuries?

4. Workers’ Compensation, pp. 1104-05. Workers’ Comp provides some recovery for those injured on the job, without the need for (or employment for!) trial lawyers, and without regard to whose “fault” (if anyone’s) it was: “recovery without fault.” The advantage for the worker is that it’s relatively easy and automatic. The disadvantage is that even if the employer is grossly negligent, the employee will be denied any recovery beyond the schedule minimum. The advantage for the owner is the reverse; the savings that come from depressed recovery amounts (and that even those amounts come from a general, administered fund – albeit, one into which the employer makes some, small contribution). The irony is that a passenger on a bus or train – or a fan in the stands -- can get a full, conventional tort recovery for injury or death occasioned by the owner’s negligence, whereas the bus or train operators – or athletes – cannot.

(a) Q: Few workers covered by Workers’ Comp are paid an hourly wage or salary that is even a small fraction of what some professional athletes can earn. What arguments can you think of for declaring the system inapplicable to professional sports?

(b) Q: Why might you favor for players a system modeled on Workers’ Comp, but with much higher awards (or formulae for determining awards)?

(c) Q: Would you favor player choice -- conventional tort recovery or “Players Workers Comp” -- in each individual case, or a standard applicable to all?

(d) Workers’ Comp is designed, by definition, for “workers,” or “employees.” One of the purposes, or at least consequences, of the NCAA's insistance that college athletes are only students engaged in an extracurricular activity (rather than "employees' of a commercial venture) is to avoid Workers' Comp (and other employer-employee) obligations. If the individual tradesperson on a construction site follows standard safety precautions, and OSHA (Occupational Safety and Health Administration) standards are followed, and the contractor makes safety a priority, a worker can reasonably assume that they can make it through the workday, and entire project, free of injury. That is not a valid assumption for an NFL player. Indeed, quite the opposite is true (injuries are to be expected; you just can’t predict which or when).

Q: How does that distinction affect your analysis regarding the applicability of Workers’ Comp to professional sports? In what sense are, and are not, professional team athletes employees of the team owner?

(e) Q: If Workers’ Comp can operate to exclude the owner from any obligation to avoid “negligence” in his or her responsibility to players, how would you define what standard of care, if any, is owed by the owner to the players?

(f) Of course, Workers’ Comp requires that the injury in question have been sustained “in the course of employment.”

Q: In your view, should that phrase limit recovery to on-the-field injuries, or should it extend to, e.g., the referenced Doug Williams’ case of a treadmill injury at home (p. 1113), being hit by a car while engaged in “road work” (i.e., running long distance along a country road), injuries sustained in an auto accident while being transported by leased limousine to a TV station for a game-promotional interview, a player being hit by a golf ball during a private game arranged by the team owner between the player and a major potential advertiser?

(a) Q: Why should it be the responsibility of the owner (and his or her staff, including doctors) to tell players that continuing to play after repeated concussions, or injuries to and operations on a knee, might have serious medical consequences, e.g., Krueger, p. 1120? Isn’t that something that “everybody knows,” something that ought to be obvious?

(b) Q: If you were the agent for a multi-million-dollar-a-year NFL player who had suffered multiple injuries over the years, why might you think it reasonable that he undertake the responsibility to have a personal physician – in addition to, or instead of, the team doctor?

(c) Assume a player whose contract provides that his or her exclusive remedy for any injuries is Workers’ Compensation. The team owner also owns a football helmet manufacturing firm from which he insists the team buy its helmets. It turns out that the helmets are not as protective as those of other firms. The player suffers a severe brain injury.

Q: How would you argue that the player should not be limited to a Workers’ Compensation remedy?

You may recall the tragic death of a participant in the Olympics luge in February 2010, during a 90 mph downhill run. The Christian Science Monitor led its story with, “The luge death of Georgian Nodar Kumaritashvili in a crash during training Friday [Feb. 12, 2010] opens the Vancouver Organizing Committee to criticism that it has built a sliding track that is recklessly unsafe.” (If you want more, see link to story under http://www.uiowa.edu/~cyberlaw/sla12/sla12resources-news.html#Safety) Players had complained about the speed and design of the track.

(a) Q: In establishing liability, how relevant should it be that owners, and broadcasters, have an economic incentive to encourage or permit fights with hockey sticks, an 18 rather than a 16 game schedule for NFL teams, or ever-increasing luge speeds?

(b) “Product liability” provides a kind of res ipsa loquitur liability for manufacturers of products. One may assume that a product is “fit for the purpose for which intended.” [Tthus, if one is well within the weight limits for a ladder, and positions it against a house properly, a rung breaks, and an injury results, the manufacturer is liable (breach of an “implied warranty of fitness”). On the other hand, if it is used as a bridge between the roofs of two buildings, and gives way to someone walking over it, the manufacturer would not be liable, as that was not the purpose for which it was manufactured or sold.] A wooden baseball bat is more likely to split if it is not held with the grain of the wood property positioned.

Q: Question: A baseball player hits a ball, the bat splits, the heavy end is propelled like a missile into the stands, where it severely injures a fan. The fan sues the player, the bat manufacturer, and the stadium manager. What result?

(a) Q:  So long as the owner, team or school is not pressuring players with preexisting dangerous conditions to play, and encourages them not to do so, and the players have access to independent medical advice, and are over the age of, let us say, 18, why should there ever be a responsibility on anyone other than the player himself or herself regarding any subsequent injury?

(b)  Q: Should the law provide a remedy for a player in such a situation who wishes to play, but has been forbidden to do so by his or her team or college?

(c)  Q: Should injuries that create a condition that qualifies as a “disability” for purposes of the Americans With Disabilities Act, or the Rehabilitation Act, preclude a coach from refusing to recruit and use a potential player who, in the coach’s best and most honest judgment, will not be able to play up to his or her standards, e.g., a one-armed basketball player?