Sports Law

SPORTS LAW

The laws, regulations, and judicial decisions that govern sports and athletes.

Sports law is an amalgam of laws that apply to athletes and the sports they play. It is not a single legal topic with generally applicable principles. Sports law touches on a variety of matters, including contract, tort, agency, antitrust, constitutional, labor, trademark, sex discrimination, criminal, and tax issues. Some laws depend on the status of the athlete, some laws differ according to the sport, and some laws vary for other reasons.

Come Back, Shane: The Movement of Professional Sports Teams

One of the most controversial issues in modern professional sports is the mobility of professional sports franchises. Teams in the four major sports leagues—the National Basketball Association (NBA), Major League Baseball (MLB), the National Hockey League (NHL), and the National Football League (NFL)—have long been capable of moving their franchises from one city to another, with the requisite approval of the other teams in the league. Nevertheless, the practice did not become common until the late twentieth century. The incidence of franchise movement became a plague in the 1990s, as owners of sports franchises sought to offset rising player salaries and maximize the values of their teams.

Many people perceive professional sports teams as beneficial for the local economy and essential to an area's civic identity. Professional sports teams have been credited with providing jobs and injecting millions of dollars into local economies. The presence of a professional sports franchise from one of the four major sports is often regarded as a prerequisite to becoming a "big league" city or state. As Wisconsin state representative Marlin Schneider joked in 1995, "Without the Milwaukee Brewers, Milwaukee Bucks, and Green Bay Packers, [Wisconsin] ain't nothing but another Nebraska." With so much money and status on the line, professional sports teams have become highly sought after, and their movements from city to city have led to public outrage, lawsuits, and legislative proposals.

The owners of professional sports teams have been able to obtain generous deals from city and state officials by threatening to move their franchises. If the owners do not receive the support they seek, they move their team to a more accommodating city. Typical benefits include the use of sports facilities at below-market rents and taxpayer funding for the construction and maintenance of new facilities. Most of the funding comes from the team's home state, but some funding comes from the federal government.

At times, owners have moved their teams even after receiving what they demanded. Harris County, Texas, incurred $67.5 million in bond indebtedness in 1987 to finance stadium improvements to keep the Houston Oilers football team from moving to Jacksonville, Florida. The Oilers began playing in Nashville, Tennessee in 1998 as the Tennessee Oilers, and in February 1999 the team changed its name to the Tennessee Titans. Fortunately for Harris County, Houston was awarded an expansion team in October 1999, which became known as the Houston Texans.

Owners have been able to achieve their powerful bargaining positions largely through the judicial construction of antitrust laws. Courts have given each major league the power to restrain trade by limiting the number of franchises within the league. At the same time, courts have limited the ability of the leagues to prevent team relocations by finding that such restrictions are unreasonable restraints of trade. For example, a federal court found that the NFL rule requiring the approval of three-fourths of the teams in the league before a team could move was an unreasonable restraint of trade (Los Angeles Memorial Coliseum Commission v. NFL, 726 F.2d 1381 [9th Cir. 1984]).

The judicial holdings have emboldened the owners of professional sports teams. The owners' willingness to move their teams has led to frenzied bidding wars between cities and the relocation of many franchises.

The idea of building a new stadium outside Los Angeles to bring a franchise back to the area after nearly a decade was discussed at a meeting of NFL officials in Philadelphia, Pennsylvania in May 2003. Los Angeles had two teams, the Rams and the Raiders, both of which left after the end of the 1994 season. (The Rams headed to St. Louis, Missouri, while the Raiders returned to their former home of Oakland, just outside San Francisco.) Although one option for giving Los Angeles a franchise would be to expand the NFL, another is to find a team that would be willing to relocate. Among the teams that expressed an interest in relocating to Los Angeles (the nation's number two television market) were the Indianapolis Colts and the Minnesota Vikings. Interestingly, Los Angeles almost got an expansion team in 1999, after well-known entertainment broker Michael Ovitz promised to head up a proposal to build a new stadium. The NFL determined that there were too many questions at the time about financing, which was why Houston got the expansion franchise instead.

The owners' laissez-faire attitude has been roundly criticized by fans, but owners have simply followed their best business instincts. Owning a professional sports team is a risky, speculative endeavor, and owners must act to protect their interests and maximize the values of their franchises. Owners are split on the issue of franchise relocation. Most owners understand that much of the value of their franchises depends on fan loyalty and that loyalty decreases as teams move. At the same time, the antitrust decisions have created a seller's market for owners, allowing them to seek the best deal possible. If another city is more willing to provide support for a team, there is little reason for the owner to stay put.

The most important bargaining chip for many owners is the team's stadium or arena. Typically, owners lease a stadium or arena for a certain number of years. When the lease is up, or sometimes before it has expired, an owner may demand public funding for a new stadium or improvements to the old stadium. If the city or state does not ante up for a new stadium or improvements, the owner threatens to move the team. Sometimes the community reluctantly foots the bill. When this happens, persons who object to the public financing of an essentially private business may attempt to stop the funding through the judiciary, but they usually fail. Most courts hold that the use of public funds to build or improve sports stadiums is a legal expenditure for a legitimate public purpose. Sometimes a community refuses to bow to an owner's demands and the team leaves. Other times the city or state attempts to prevent the relocation of a team by taking legal action.

The city of Baltimore, Maryland, tried to keep its NFL team, the Colts, through the exercise of eminent domain. Eminent domain is the power of a government to take private property for public use, with compensation to the party deprived of the property. In early 1984 the Baltimore Colts were having difficulty obtaining a satisfactory lease for Baltimore's Memorial Stadium. Owner Robert Irsay began to receive solicitations from the city of Indianapolis, Indiana, for the Colts to play in the city's Hoosier Dome. In February 1984 the Maryland Senate entertained a bill that would give the city of Baltimore the authority to condemn and take over professional sports franchises, but it postponed a vote on the bill.

On February 28, 1984, the U.S. Court of Appeals for the Ninth Circuit announced its decision in the Los Angeles Memorial Coliseum case, which affirmed the right of Oakland Raiders' owner Al Davis to move the team to Los Angeles. The NFL told Irsay in a private meeting that, in light of the decision in the Raiders' case, it would not oppose any move by the Colts. Irsay continued to negotiate for a financial package that would keep the Colts in Baltimore until he learned that the Maryland Senate had passed the eminent domain legislation.

Irsay decided to move the Colts to Indianapolis immediately. That day, vice president and general manager Michael Chernoff arranged for a moving company to come to the Colts' training facility and load the team equipment into vans. The Colts left Baltimore, their home city for thirty years, during the night of March 28–29, 1984.

On March 30, 1984, the Maryland Senate passed an emergency bill that gave the city of Baltimore the power of eminent domain over the team. The city immediately passed an ordinance that authorized the condemnation and then filed a petition in court, seeking to acquire the Colts by eminent domain and to prevent the team from doing anything to further the movement of the franchise, but it was too late. A federal court eventually held in December 1985 that Baltimore did not have the power of eminent domain over the Colts because it had not attempted to compensate the franchise and because the franchise had relocated to another state (Indianapolis Colts v. Mayor of Baltimore, 741 F.2d 954 [7th Cir. 1984], cert. denied, 470 U.S. 1052, 105 S. Ct. 1753, 84 L. Ed. 2d 817 [1985]).

Sports fans in Baltimore grew even more beleaguered after the Colts' departure. Their last remaining major professional sports team, the Baltimore Orioles, threatened to move if it did not get a new stadium. In 1990 the state of Maryland was forced to spend millions in taxpayer funds to build a new stadium to keep the Orioles. In 1996 Baltimore regained an NFL franchise at the expense of Cleveland, which lost its beloved Browns after fifty years in part because Baltimore offered the Browns free rent at a new football stadium. The city of Baltimore enjoyed the new Baltimore Ravens' inaugural season in 1996 as dedicated Browns fans suffered through the same nightmare that Colts fans endured in 1984.

Lawmakers on the federal, state, and local levels have proposed legislation that would help communities hang on to their professional sports teams. In 1995 and 1996, several legislators in the U.S. Congress proposed laws that would allow leagues to make their own rules restricting the movement of franchises. For all the activity, no legislation changing the application of antitrust laws to professional sports teams has been passed.

The Minnesota Twins have been threatening to leave the state unless they get a new ballpark paid for by the state, and even had a contract signed by at least one prospective out of state buyer. When that deal fell through and Minnesota refused to build them a new stadium, Major League baseball almost contracted (eliminated) their franchise.

cross-references

Antitrust Law; Eminent Domain; Franchise; Restraint of Trade.

Amateur Athletes

A common misconception about amateurs and professionals is that professionals are paid to play sports whereas amateur athletes are not. Amateur athletes often receive some compensation for their efforts. In ancient Greece, for example, victorious athletes in the Olympics were handsomely rewarded for their efforts. As of the early 2000s many college athletes receive academic scholarships for playing on a college team. Remuneration for amateur athletes is even promoted with federal legislation. The Amateur Sports Act of 1978 (36 U.S.C.A. § 391) created the Athletic Congress, a national governing body for amateur athletes, which administers a trust fund that allows amateur athletes to receive funds and sponsorship payments without losing their amateur status.

The most basic difference between amateur athletic events and professional events lies in their rewards for participation. Amateur events, by definition, do not reward victors with a prize of great value. Professional events, by contrast, reward participants and victors with money and/or other prizes. An accomplished athlete may choose to compete as an amateur if her sport does not have a thriving professional organization. Some athletes can make a living in amateur sports because victories in high-profile amateur events can lead to advertising deals and other business opportunities.

Amateur sports can be divided into two categories: restricted and unrestricted competition. Restricted competition includes elementary school, high school, and college athletics. Sports on these levels are controlled by athletic conferences, associations, and leagues connected to schools and colleges. Athletes in restricted competition must be eligible to play. Eligibility is determined by conferences, associations, and leagues formed by the schools.

Unrestricted competition is open to all amateur athletes, with some qualifications. The Olympics is an example of unrestricted competition. Although only a select few amateur athletes are chosen to represent the United States, any person may seek entry into this elite group by entering recognized contests in the years before the Olympiad and qualifying for tryouts.

Whether an athlete is eligible to compete in amateur events depends on the rules of the governing conference, league, or association. Many events formerly reserved for amateurs, such as the Olympics, were opened to professionals in the 1980s and 1990s. Gymnasts, figure skaters, soccer players, track stars, and other athletes once concerned with maintaining amateur status now may enjoy the fruits of professional competitions without losing access to prestigious amateur events. Often difficult eligibility issues for amateur athletes do not concern professional status. Qualification requirements for particular events and rules prohibiting drug use are among the more challenging roadblocks.

1919 Black Sox Scandal

The 1919 Black Sox scandal is the most famous example of athletes conspiring with gamblers to fix the outcome of a sporting event. Eight members of the Chicago White Sox were charged with taking bribes to lose the 1919 World Series to the Cincinnati Reds. The most prominent player charged was "Shoeless" Joe Jackson, the star outfielder for the White Sox. It was alleged that the players received $70,000 to $100,000 for losing the World Series five games to three.

During the World Series, a number of sportswriters suspected that White Sox players were throwing the games. The writers published their charges after the series ended, but by the beginning of the 1920 baseball season, it appeared nothing would come of the allegations. However, a federal grand jury, presided by Judge kenesaw mountain landis, was impaneled in September 1920. Within days, four of the players, including Jackson, admitted that they had taken bribes to lose games in the 1919 series. The eight players were indicted.

The team suspended the players, and they went on trial in the summer of 1921. They were acquitted on insufficient evidence, under suspicious circumstances. Key pieces of evidence were missing from the grand jury files, including the players' confessions. No gamblers were ever brought to trial for bribery, though it was alleged that New York racketeer Arnold Rothstein was behind the plan to fix the World Series.

Major league baseball had named Landis commissioner of baseball in 1921, in an attempt to restore the integrity of the game. The day after the eight White Sox players were acquitted, Landis banned them from baseball for life.

further readings

Asinof, Eliot. 1987. Eight Men Out: The Black Sox and the 1919 World Series. New York: H. Holt.

Cook, William A. 2001. The 1919 World Series: What Really Happened? Jefferson, N.C.: McFarland.

Nathan, Daniel A. 2003. Saying It's So: A Cultural History of the Black Sox Scandal. Urbana: Univ. of Illinois Press.

cross-references

Landis, Kenesaw Mountain.

Eligibility requirements for amateur athletes are many and varied. Generally, amateur athletes do not have an absolute right to participate in sports events. In analyzing whether an athlete is eligible to participate, a court must first decide whether the individual has a right to play, as opposed to a mere privilege to play. Privileges can be revoked by the grantor of the privilege. If the individual has a right to participate, the court examines the individual's relationship with the institution denying access. If the institution is private, the dispute generally is decided according to contract or tort principles. If the institution is a public school or university, or any other publicly funded organization, courts change their analysis.

When public funds are involved, the institution is deemed a state actor, and the institution's action is subject to the due process and equal protection Clauses of the Fourteenth Amendment. Due process usually consists of notice to the person affected by the state action and an opportunity for the aggrieved person to argue against the action. Courts also strike down vague, overbroad, and overly restrictive regulations by state institutions on due process grounds.

The Fourteenth Amendment's Equal Protection Clause, as interpreted by courts, requires that similarly situated persons receive equal treatment under the law. If a classification touches on a fundamental right, such as freedom of religion or the right to marry, or if it is based on a suspect criterion, such as race or national origin, a court will strictly scrutinize the classification to see whether it promotes a compelling interest of the institution. Because participation of amateurs in sports is not a fundamental right, ordinarily the exclusion of amateurs from participation is not subjected to strict scrutiny.

If a regulation of amateur sports does not infringe on a fundamental right or burden a suspect class, courts determine whether the regulation bears a rational relationship to a legitimate state interest. This is a lower level of inquiry than strict scrutiny, but it does not give public institutions the unlimited freedom to act unreasonably in the absence of fundamental rights or suspect class concerns. In 1981 the Texas Supreme Court struck down the state high school athletic association's non-transfer rule, which declared all non-seniors ineligible for varsity football and basketball competition for one year following their transfer to a new school. The purpose of the act was to discourage the recruiting of student athletes. According to the court, the rule was over-inclusive because it presumed that a student athlete who had switched schools had been recruited and did not give the student the opportunity to rebut the presumption (Sullivan v. University Interscholastic League, 616 S.W.2d 170 [1981]).

The rights of student athletes can be infringed by reasonable measures that are implemented for sound public policy reasons. Eligibility criteria can vary from school to school, and even from sport to sport. No pass-no play rules, or rules that keep flunking students off school teams, are permissible in light of the government's overriding interest in educating children. Schools may artificially control the number of student athletes, allowing students to be cut from popular sports to keep athlete-to-coach ratios at manageable levels.

Schools may enact other limitations, such as rules limiting the number of sports a student can play at one time and rules authorizing students to be suspended or expelled from athletics for consuming alcohol or using other drugs. Discovery of student-athlete drug use was made easier under a 1995 U.S. Supreme Court decision. In Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995), the Court held that random drug testing of student athletes does not violate the constitutional right to be free from unreasonable searches and seizures.

The National Collegiate Athletic Association (NCAA) is the most important administrative body governing sports on the college level. Many colleges and universities are members of the NCAA, and they give the association the authority to exercise control over their student-athletes, coaches, and other athletic operatives. The NCAA, headquartered in Shawnee, Kansas, arranges for television and radio contracts and performs other functions to promote the wellbeing of college sports.

The NCAA exerts a tremendous amount of control over its members. Under NCAA rules, college athletes must meet and maintain a certain grade-point average before playing, may not hire an agent while playing for a college, and may not participate in an annual professional draft of college athletes without losing their eligibility. The NCAA may discipline coaches and scouts for violating restrictions on the recruiting of high school athletes. Athletes may be suspended or banned from a team for alcohol and other drug use. Each team has its own set of rules that complement the NCAA rules.

Most courts hold that participation in intercollegiate athletics is not a constitutionally protected interest. However, one federal district court has recognized a student athlete's limited property interest in college athletics. In Hall v. University of Minnesota, 530 F. Supp. 104 (1982), University of Minnesota basketball guard Mark Hall, who had a satisfactory grade-point average, was kept off the basketball team when he failed to earn enough credits for a particular academic program. Hall appealed the decision, arguing that his application to a different college within the university had been rejected in bad faith and without due process. U.S. District Court Judge Miles W. Lord held that Hall had a sufficient property interest in playing basketball because the competition would affect his ability to be drafted by a professional team, and Lord ordered the school to let Hall play.

College athletic scholarships are unusual agreements that can pose problems for schools, athletes, and courts. A typical athletic scholarship requires the athlete to maintain certain grade levels and to perform as an athlete for the school in exchange for tuition, books, and other educational expenses. Most courts treat scholarships as contracts, with obligations and rights assigned to both parties. One party may be liable to the other if a breach of the contract occurs. For instance, a college may revoke the scholarship of an athlete who fails to maintain good grades or violates any other condition of the scholarship. A school, for its part, may violate its obligations by failing to provide an education to a student athlete. At least one court has held that a school violates its duties under an athletic scholarship if it fails to provide a student athlete meaningful access to its academic curriculum (Ross v. Creighton University, 957 F.2d 410 [7th Cir. 1992]).

The revenues produced by some college sports have made college athletics a multimillion-dollar entertainment industry. Although student-athletes are an integral part of the entertainment, most contemporary courts do not view them as employees of their schools. Thus, a school is not liable under workers' compensation statutes to a student-athlete if the student-athlete is injured in an accident related to the student's sport. For tax purposes, most courts examine the scholarship agreements of most students to determine whether they bargained for the scholarship money. If the students bargained for the scholarship money in return for services, the money can be taxed. Under internal revenue service regulations and revenue rulings, scholarship funds for student-athletes are exempt from federal tax if the college does not require the student to participate in a particular sport, requires no particular activity in lieu of participation, and does not cancel the scholarship if the student cannot participate. Funds for such athletic scholarships may be taxed if they exceed the expenses for tuition, fees, room, board, and necessary supplies. As of 1996, the Internal Revenue Service had never challenged the tax-exempt status of student-athletes on scholarship.

Sex Discrimination

Women and girls have long been excluded from many sports. In the 1970s Congress passed Title IX of the 1972 Education Amendments (20 U.S.C.A. §§ 1681–1688 [1994]) to ban sex discrimination in publicly funded educational programs. After a round of litigation, followed by legislative amendments, a presidential veto, and a congressional override of the veto, Title IX was modified to give women and girls equal access to sports programs in schools that receive any measure of federal funding.

Under Title IX schools must provide athletic opportunities to females that are proportionate to those provided to males. Courts do not require that complete equality occur overnight. Most courts engage in a three-pronged analysis to determine whether a school is fulfilling its obligations. First, the court examines whether athletic participation opportunities are provided to each sex in numbers substantially proportionate to their enrollment. If a school does not provide substantially proportionate participation opportunities, the court then determines whether the school can demonstrate a history of expanding the athletic programs for the underrepresented sex. If the school cannot so demonstrate, the court then asks whether the interests and abilities of the underrepresented sex have been accommodated by the school. If the court finds that the school has not accommodated student-athletes of the underrepresented sex, it may rule that the school is in violation of Title IX and order the school to take affirmative steps toward more equal treatment between the sexes.

Traditionally, courts have differentiated between contact and noncontact sports in determining a female's right to participation. A school may refrain from offering a contact sport for females if the reasoning is not based on an archaic, paternalistic, overbroad view of women. Courts are hesitant to mandate the creation of new teams, but most have no problem ordering that qualified females be allowed to play on exclusively male teams.

Title IX was passed in 1972. Since that time, the number of female athletes in intercollegiate sports has increased from 30,000 to about 150,000 in 2003. However, the law has not been universally applauded. Several schools have cut minor men's programs, such as wrestling, swimming, and track, in order to comport with the ratios required under Title IX. Although advocates of Title IX dispute that the law is the sole reason for these programs being cut, coaches and other supporters of the minor men's programs have protested that Title IX is unfair to the male athletes involved in these sports.

In 2003, the Commission on Opportunity in Athletics, which was assembled by Secretary of Education Rod Paige, submitted a report to Paige suggesting that Title IX needed reform. The report suggested that the reform was necessary to save some men's sports in order to preserve men's opportunities to participate in athletics. The report was met with vocal opposition. Two women on the commission filed a minority report with Paige, and the president of the NCAA voiced his disapproval of the suggestions in the commission's report.

In addition to claims based on Title IX, sexbased classifications by publicly funded entities are also subject to equal protection claims. Courts review such claims under an intermediate standard of review. Specifically, a sex-based classification must serve an important government interest and must be substantially related to the achievement of that interest. High school girls in Arkansas used the Equal Protection Clause of the fourteenth amendment to abolish a school rule that limited the girls' basketball games to half-court play. In Dodson v. Arkansas Activities Association, 468 F. Supp. 394 (1979), a federal district court in Arkansas ruled that the half-court rule deprived the girls of their equal protection rights because it was based solely on tradition and not on any supportable sex-based reason.

Professional Athletes

Professional athletes are paid for their services. Professional sports organizations use many relationships and a similarly high number of agreements and contracts to support their industries. The parties involved include team owners, promoters, athletes, agents, lawyers, accountants, advertisers, builders, carriers, journalists, media outlets, politicians, courts, and the governing body of the particular sport.

For the professional athlete, the most immediate concern is the employment contract. The contract between the athlete and the employer determines the rights and duties of both parties. These contracts are bargained agreements, and the bargaining power of the respective parties is reflected in the terms. Unproven or average athletes generally obtain contracts for a salary and benefits that are less than those received by athletes of proven skill. Most professional leagues that have a players' union negotiate with management or promoters to draft a standard player's contract. A standard player's contract is a document that establishes basic rights and privileges for the athletes. Owners, managers, and promoters may violate agreements with unions if they tender contracts that offer fewer rights and privileges than are contained in the standard player's contract.

Because their sport enjoyed widespread popularity before any other sport, baseball players led other professional athletes in the reform of laws on professional sports contracts. The earliest and most infamous of the contract issues addressed by baseball players was the reserve clause. This clause, placed into contracts by the owners of professional baseball teams, prevented a player from playing for another team for at least one year following the expiration of his contract. Owners of teams could trade or sell players to other teams, but players had no say in the decision about what team they would play on. The intent of the clause was to keep players on the same team to build the team's identity and increase fan loyalty. Players objected to the clause because it restricted their right to freely market their skills and their right to choose where they would live and play baseball.

The reserve clause was used in the first professional baseball league, the National League, in the late nineteenth century, and it survived until 1975. For years, the Supreme Court and other federal courts held that professional baseball was not subject to antitrust laws because the game held a special place in American society. Antitrust laws prevent businesses from engaging

in acts that restrain free trade if the commercial activity affects interstate commerce. Applying antitrust laws to professional baseball would have made it illegal for owners of professional baseball teams to restrain trade with the reserve clause. Players challenged the clause but lost in court.

In 1966 the Major League Baseball Players Association (MLBPA) hired Marvin Miller as its first executive director. Miller was instrumental in winning concessions from the owners of the major league teams. In 1970, after threats of strikes and hours of collective bargaining, the Major League Baseball Players Relations Committee, representing the major league teams, agreed with the MLBPA to the neutral arbitration of their disputes. Arbitration is a process whereby two disputing parties agree to have their dispute settled by a third party.

The players' movement for market freedom suffered a temporary setback when St. Louis Cardinals star center fielder Curt challenged baseball's antitrust exemption and lost. Flood was traded in 1969 to the Philadelphia Phillies when he was at the peak of his career. Flood refused to play for the Phillies, and he sat out the entire 1970 season. That year, Flood filed suit in federal court against Bowie Kuhn, then the commissioner of Major League Baseball. Flood argued that the actions of major league baseball club owners violated the federal antitrust laws, civil rights laws, laws prohibiting peonage, and laws on slavery, including the thirteenth amendment to the Constitution. The Supreme Court disagreed, holding that major league baseball maintained a special exemption from antitrust laws under Supreme Court precedent and that any changes in the law should come from Congress. Major league baseball remains the only professional sport to which courts have not applied antitrust laws.

In 1974 pitchers Andy Messersmith of the Los Angeles Dodgers and Dave McNally of the Baltimore Orioles played the entire season without new contracts. Both pitchers were paid their previous year's salary (Messersmith received a slight raise), but both had refused to sign their contracts. At the end of the season they declared that they were free agents because the reserve clause in the last contract they had signed lasted for only one year. The club owners argued that the clause could be renewed unilaterally (by one party, here, the owners), year after year. Messer-smith and McNally brought their cases to a panel of arbitrators, and the panel held that the reserve clause was actually an option clause: it gave the teams an additional option year to sign a player to a new contract. Without a new contract, the player was a free agent and could market his service to other professional teams.

After almost a century of attempts to shake the reserve clause through the court system, major league baseball players finally gained their freedom through collective bargaining and arbitration. The decision was upheld on appeal, and baseball players instantly gained bargaining power. In 1976 the players relations committee agreed to remove the reserve clause from standard contracts and install a system of free agency that gave free-agent status after six years of service to players who did not otherwise qualify through the option clause. By 2003 the average salary for major league baseball players was $2.3 million, compared to an average salary of $19,000 in 1967.

As of 2003, baseball players are free to negotiate contracts with any number of clauses. A player may sign a contract that guarantees a salary for a certain number of years, negotiate clauses that limit the club's right to trade the player, and enjoy the benefits of incentive clauses, or clauses in the contract that grant extra compensation in the event the player achieves certain goals. A last vestige of the reserve clause remains in some contracts as the option clause. This clause states that in the event the player and the team cannot come to terms on a new contract upon the expiration of a contract, the club may retain the player for another year at a percentage of his previous year's salary, usually 90 percent. Players with bargaining power do not sign contracts with such option clauses.

Another product of Miller's collective bargaining for the MLBPA was arbitration of salary disputes. The MLBPA was concerned about a perceived tendency of club owners to collude against demanding players. Specifically, players who played out their options were finding that no teams were interested in hiring them for their fair market value. In 1976, the year after the Messersmith-McNally case, the MLBPA and the club owners agreed that any player with at least two years of experience who was ineligible for free agency could renegotiate his salary through a neutral arbitrator.

The spirit of cooperation over salaries was short lived. In 1986 the MLBPA alleged that the club owners had colluded against free agents by agreeing amongst themselves to offer relatively low salaries to free agents. The MLBPA filed a grievance in 1986, and in 1988 an arbitration panel ordered the teams to pay more than $10 million to 139 players who had been harmed by the collusion. In 1988 another arbitration panel found that the club owners had continued to collude over the 1987 and 1988 seasons to keep player salaries low or keep players out of the game, and in 1990 the owners were forced to pay players more than $100 million in lost salaries. The arbitration process is applied to a number of disputes between players and management, including disputes about fines, suspensions, and other punitive measures taken by a club or by the league.

Labor issues are another chief concern of professional athletes. In major sporting leagues, players' unions and management enter into collective bargaining agreements that establish standards and cover the basic rights and duties of all major league players and club owners. Collective bargaining agreements address such issues as club discipline, injury grievances, noninjury grievances, discipline by the commissioner of Major League Baseball, standard player's contract, college drafts, option clauses, terminations of contracts, base salaries, access to personnel files, medical rights, retirement and insurance benefits, and the duration of the existing collective bargaining agreement.

Collective bargaining agreements last only for specified periods of time, so occasionally

they need to be renewed. If the players are collectively unable to come to an agreement with the club owners, players may go on strike to gain what they feel they deserve or prevent the owners from enforcing detrimental regulations, such as a salary cap on the amount a club can spend on its payroll. The 1994–95 professional hockey season was shortened by a players' strike. The MLBPA also conducted a strike that began on August 12, 1994, lasted through the end of the 1994 season, and ended in March 1995. The players conducted the strike to thwart a proposed salary cap, and it ended without a new collective bargaining agreement or a final resolution of the salary cap issue.

The four most popular team sports in the United States—baseball, football, basketball, and hockey—have created leagues that exercise monopolistic powers. Owners of the professional teams in Major League Baseball, the National Football League (NFL), the National Basketball Association, and the National Hockey League have been able to keep the number of franchises lower than they would be in a free market. This artificially created scarcity gives owners of these teams leverage to force fans and taxpayers in cities across the country to provide billions of dollars in subsidies or risk losing professional sports entertainment. The scarcity also ensures a high level of talent in the league, making the creation of new leagues difficult.

Courts and legislators have been successful in removing some elements of antitrust activity, such as limits on the freedom of movement of players. One court has held that the National Football League violated antitrust laws by unreasonably restricting the right of owners to move their franchises (Los Angeles Memorial Coliseum Commission v. National Football League, 726 F.2d 1381 [9th Cir. 1984]). However, by and large, courts and legislators have been unable or unwilling to strike down or repeal other monopolistic activities. Legislators have even taken steps to give certain leagues special privileges. Under federal law the NFL may enter into agreements with television networks to pool and sell a unitary video package (15 U.S.C.A. § 1291 [1966]). Another federal law allows blackouts of nonlocal NFL games televised into home territories when the home team is playing and blackouts of home games in the home team's territory (15 U.S.C.A. § 1292 [1966]).

A professional sport is a complex business for the average athlete, and many athletes require the services of an agent. Agents negotiate personal service contracts with teams or individual promoters, and they manage the personal affairs of their clients. Agents may handle such concerns as taxes, financial planning, money management, investments, income tax preparation, incorporation, estate planning, endorsements, medical treatment, counseling, development of a career after sports, insurance, and legal matters. The agent is a fiduciary of the client-athlete, which means that the agent has a responsibility to act with the utmost care and good faith and to act in the athlete's best interests. Agents must avoid activities that conflict with the interests of the client-athlete, and they must inform the athlete of any circumstances that might affect the athlete's rights or interests. Many states require that agents obtain a license and post a security bond before they may work in the state.

Torts in Sports

Many sports pose serious dangers to participants. Generally, a person who suffers a sportsrelated injury may recover for medical expenses and other losses if the injury was caused by the negligence of another party. Injuries and damages resulting from intentional torts, such as battery or assault, likewise are recoverable.

Courts generally decide suits involving injuries to athletes, spectators, and other parties involved in sports according to basic tort laws. If a party owes a duty of care toward another party and that duty is breached, the party owing the duty is liable for any injuries suffered by the party to whom the duty is owed that result from the breach. The level of care that must be exercised depends on the situation: dangerous situations require a high degree of care, whereas less dangerous situations require less care. Expectations may also play a part. For example, a spectator who is hit by a foul ball while sitting in the stands at a baseball game cannot recover for injuries because most fans know that stray balls in the stands are an inescapable by-product of baseball. However, a patron who is standing in the interior walkway of a stadium concourse may recover for injuries resulting from a foul ball. A spectator in the unfamiliar environs of a stadium is not aware of the dangers and thus is owed a greater duty of care by the baseball organization.

Athletes may recover for injuries resulting from another party's negligence or intentional acts. In both professional and amateur contact sports, athletes consent to some physical contact, but courts do not find that participants consent to contact that goes outside the bounds of the game.

In some cases schools may be held liable for injuries to athletes. If an employee of the school, such as a coach, teacher, or referee, fails to properly supervise a student and the student suffers an injury as a result of the failure to supervise, the school may be held liable for its employee's negligence. Generally, coaches, teachers, and referees must exercise reasonable care to prevent foreseeable injuries.

Defendants in sports-related personal injury suits may possess any number of defenses. One of the most successful of these defenses is that the party assumed the risk of being injured by playing in or watching the sporting event. Defendants also may argue that the plaintiff was negligent and therefore should recover only a portion of his damages or nothing at all. For example, a plaintiff may have ignored warnings or signed a document that waived the defendant's liability for any injury suffered by the plaintiff. Finally, public institutions may argue that they are immune from suit under the doctrine of sovereign immunity, a judicial doctrine that prohibits suits against government entities unless such suits have been explicitly authorized by the government. Legislators have made many public institutions open to lawsuits, and in cases in which a public institution still enjoys immunity, courts often find ways to circumvent immunity and attach liability.

Criminal Liability for On-the-Field Conduct

On rare occasions, some athletes have been subjected to criminal actions against them for their conduct during an athletic contest. Regarding hockey, many teams of which are located in Canada, a few players have been convicted of such crimes as assault in Canadian tribunals. Such was the case with Martin James McSorley, commonly known as Marty, who was convicted of assault with a weapon by a Provincial Court in British Columbia, Canada, in 2000. McSorley, a member of the Boston Bruins, engaged in a series of altercations on the ice with Donald Brashear, a member of the Vancouver Canucks. In the waning seconds of the game, McSorley swung his stick at Brashear, hitting him on the right temple. When Brasher fell, he hit his head on the ice and began having a seizure. Brasher missed more than a month of the season. McSorley, who was eventually suspended for one year by the National Hockey League, received an 18-month conditional discharge by the Canadian court in lieu of a prison sentence. However, he was ordered not to play in any game in which Brashear was also a participant.

McSorley's case is a rather rare example of an athlete being convicted of a crime for on-the-field activities. Even some of the more infamous instances of violence during sporting events—such as one involving heavyweight boxer Mike Tyson who bit the ear of opponent Evander Holyfield in 1997—have resulted in fines and suspensions by the sport's governing bodies, rather than criminal actions.

Exposure of Athletes' Off-the-Field Legal Problems

When athletes run afoul of the law outside of sporting events, the stories often garner national attention. During the 1990s and early 2000s, a number of athletes were involved in high-profile criminal trials, some of whom were convicted for their crimes. Two of the more well-known examples were Mike Tyson's conviction for rape in 1992, leading to a six-year sentence, and Hall-of-Fame football player O. J. Simpson's trial for the double murder of Nicole Brown Simpson and Ronald Goldman in 1995, in which Simpson was acquitted.

Sociologists disagree as to the primary cause of some athletes' legal problems. Some say the reason is athletes are pampered throughout their childhood and early adulthood because of their athletic prowess. Given that these athletes have been shielded from rules that apply to everyone else, they have difficulty adjusting when they turn professional and earn a great deal of money, sometimes in the tens of millions of dollars. Other sociologists note that many athletes involved in these off-the-field incidents endured a rough childhood. Moreover, statistics show that the crime rate of professional athletes is no higher than the general population. Some argue that the public perceives athletes' legal problems in a different light because of the intense media scrutiny that accompanies these problems.

further readings

Brady, Erik. "Title IX Report Backs Reforms to Balance Law for Male Athletes." USA Today. Available online at <www.usatoday.com/sports/college/2003-02-20-titleix-report_x.htm> (accessed August 27, 2003).

Brake, Deborah, and Elizabeth Catlin. 1996. "The Path of Most Resistance: The Long Road Toward Gender Equity in Intercollegiate Athletics." Duke Journal of Gender Law and Policy 3.

Cameron, Christopher D., and J. Michael Echevarria. 1995. "The Ploys of Summer: Antitrust, Industrial Distrust, and the Case Against a Salary Cap for Major League Baseball." Florida State University Law Review 22.

Chalpin, Marc. 1996. " It Ain't Over 'til It's Over: The Century Long Conflict Between the Owners and the Players in Major League Baseball." Albany Law Review 60.

Irwin, Richard L. 1991. "A Historical Review of Litigation in Baseball." Marquette Sports Law Journal 1.

Keller-Smith, Sara Lee, and Sherri A. Affrunti. 1996. "Going for the Gold: The Representation of Olympic Athletes." Villanova Sports and Entertainment Law Journal 3.

Mason, Daniel S., and Trevor Slack. 1997. "Appropriate Opportunism or Bad Business Practice? Stakeholder Theory, Ethics, and the Franchise Relocation Issue." Marquette Sports Law Journal 7.

Mitten, Matthew J., and Bruce W. Burton. 1987. "Professional Sports Franchise Relocations from Private Law and Public Law Perspectives: Balancing Marketplace Competition, League Autonomy, and the Need for a Level Playing Field." Maryland Law Review 56.

Piraino, Thomas A., Jr. 1996. "The Antitrust Rationale for the Expansion of Professional Sports Leagues." Ohio State Law Journal 57.

Salant, Jonathan D. "NCAA President Opposes Suggested Changes to Title IX." USA Today. Available online at <www.usatoday.com/sports/college/2003-03-04-brand-titleix_x.htm> (accessed August 26, 2003).

Willis, Stephen L. 1991. "A Critical Perspective of Baseball's Collusion Decisions." Seton Hall Journal of Sport Law 1.

Yankwitt, Russell M. 1996. "Buy Me Some Peanuts and Ownership: Major League Baseball and the Need for Employee Ownership." Cornell Journal of Law and Public Policy 5.

cross-references

Drugs and Narcotics; Employment Law; Entertainment Law; Monopoly; Rational Basis Test.

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