Class 1

Reading Assignment:  Read and be prepared to discuss the Prologue and Sections A and B of Chapter One of the casebook (“Moral Integrity of the Sport; The Role of the Commissioner and the Law—Pete Rose v. Bart Giamatti and The Legal Scope of the Commissioner’s Authority”).  As you read the first chapter, think about the various constituencies within the professional sports industry, the extent to which they have different interests and the legal framework (contractual and public law) within which they seek to advance those interests vis-a-vis each other and others who interact with one or more aspects of the industry.

I. Introduction to and Nature of the Course

  • A legal survey and legal process course

  • Background and experience of instructor

  • Course objectives

  • Review of Syllabus; subjects covered

II.  The Office of the Commissioner

  • Relationship with various sports constituencies

  • Rose v. Giamatti

  • Legal scope of, and types of limitations on, the Commissioner's Authority

  • Applicable Rules of Contract Construction

  • Commissioner as arbiter

  • The law of private associations

  • Current status and future of league commissioners (CEO, owners' employee, representative of broader public interests?)

  

Class 2

Reading Assignment:  Read and be prepared to discuss Parts 1, 2 and 3 of Section C of Chapter One of the casebook ("Challenges to the Best Interests of the Sport–“Misconduct on the Field, Court or Ice” –“Drug Use” –“Drug Testing”) pp. 34-83 (not including “Gambling”); applicable parts of league constitutions; collective bargaining agreements; and player contracts; and the excerpts from the Sprewell and Artest arbitration decisions. Note: the parts of Section C are misnumbered in the casebook (there are two “Part 2's”–Gambling and Drug Use–“Gambling”; the first “Part 2” is not assigned reading); also, at this time you need not read the court opinion in NBA v. NBAPA (Artest) —it will be discussed later.

III.  Challenges to the Best Interests of the Sport

      A.  Professional Sports--drug use and other "bad" behavior

           1.  Steve Howe Grievance

           2.  Sprewell Grievance

           3.   Artest, Jackson, Johnson and O'Neal Grievances

           4.   Impact of Collective Bargaining Agreements on Contract Enforcement     

B.  Amateur Sports--Drug testing

Optional Reading: Jan Stiglitz, Player Discipline in Professional Team Sports, in 2 Uberstine, Chapter 11; Chris J. Carlsen, Violence in Professional Sports, in 3 Uberstine, Chapter 18; MLB's Joint Drug Prevention & Treatment Program,  NFL Policy on Anabolic Steroids & Related Substances, the NFL's Policy and Program for Substances of Abuse, Pilgrim's Article on the Tonya Harding Story and the Terrell Owens v. Philadelphia Eagles arbitration decision.

 

Class 3

 

Reading Assignment:  Sections A and B of Chapter Two of the casebook ("Constructing a Players Market:  From Contract to Antitrust Law; Celtics and Ainge and Evolving Standards for Contract Enforcement") pp. 101-137; and Major League Baseball Player Contract and NFL Player Contract as examples of player-contract language in all sports).

 

 

IV.  Enforcement of Restrictions on Player Mobility in Professional Sports Contracts

 

  A.  Forum--courthouse or arbitration?

 

     B.  Contractual restrictions on player mobility

 

     C.  Teams' remedies for breach

 

           1.  Injunctions (preliminary vs. permanent)

           2.  Damages (how to calculate?)

 

     D.   Players' defenses

 

     E.   Importance of collective bargaining agreements and labor law

 

     F.    Practical difficulties in enforcement and in defense of enforcement actions

 

Optional Reading: Gary A. Uberstine, The Enforceability of Sports Industry Employment Agreements, in 2 Uberstine, Chapter 10; NBA Player Contract and NHL Standard Player's Contract.

 

Class 4

Reading Assignment:  None

 

 GUEST SPEAKER (TO BE NAMED) 

 

Class 5

 

Reading Assignment:  Sections A and B of Chapter Three of the casebook ("From Antitrust to Labor Law--Antitrust Background and Antitrust and the Players Market") pp. 175-221 (except the “Note on Draft Eligibility pp. 200-02, which we will take up later, and the discussion of Fraser v. MLS pp. 216-21); the Complaint, Jury Instructions and Special Verdict Form in McNeil v. NFL and Judge Doty's Opinion granting TRO against NFL re: Plan B in Jackson v. NFL; Sherman Act Sec. 1; Sherman Act Sec. 2 ; Clayton Act Sec. 4.

 

V.  Federal Antitrust Law (Sherman § 1) as Applied to the Market for Players

 

      A.   Basic federal antitrust law (Sherman § 1)

 

             1.   Objectives of antitrust laws

             2.    Rule of reason vs. per se analysis

             3.    Balancing under rule of reason

 

     B.   Antitrust challenges to player drafts and salary and mobility restraints

 

   C.   McNeil v. NFL and Jackson v. NFL

 

Optional Reading:  Gary R. Roberts, Antitrust Issues in Professional Sports in 3 Uberstine §§ 21:1, 21:2 & 21:6 - 21:21 ("Introduction," "The Bases and Policy Goals of Antitrust Law" and "Intraleague Player Restraints Under Section 1"); the McNeil plaintiffs' lawyer's view of the case, Jeffrey L. Kessler, "A Look at the McNeil Litigation and Its Results," and the NFL's lawyer's view of the case in Jeffrey Pash, "Free Agency Litigation in the National Football League"; the European Court of Justice's decision in Bosman v. Fina and a basic Power Point Presentation on Sherman Act Sec. 1. 

 

 

Class 6

 

Reading Assignment:  Section C ("Labor Exemption From Antitrust") and Section D (“Collusion in Baseball”) of Chapter Three of the casebook pp. 221-274; the excerpt from the Second Circuit’s opinion in Clarett v. NFL; Clayton Act Sec. 6; Clayton Act Sec. 20; Norris-La Guardia Act--29 U.S.C. Secs. 101, 102, 104, 105 & 113; the National Labor Relations Act--29 U.S.C. Secs. 151, 152, 157, 158 & 159; anti-collusion provisions of collective bargaining agreements--Art. XX(e) in MLB Basic Agreement, NFL CBA Art. XXVIII and NBA CBA Art. XV.

 

VI.  The Statutory and Nonstatutory Labor Exemptions

 

        A.   Statutory and case-law bases for the exemptions

 

        B.   Should the nonstatutory exemption exist at all?

 

        C.    If so, when should it terminate?

 

        D.    What conduct does it cover?

 

        E.    What issues remain after Brown v. Pro Football, Inc.?

 

     F.    Clarett v. NFL

                       

Optional Reading:  Gary R. Roberts, Antitrust Issues in Professional Sports, in 3 Uberstine § 21:25 - 21:29 ("The Labor Exemption"); the District Court's opinion in Clarett and the Second Circuit's Order granting the NFL's request to stay the district's court's injunction pending appeal.

 

 VII.    Assuring a Competitive Market for Free Agents via Contract and Labor Law

 

           A.   Baseball’s collusion grievances

 

           B.    Effect on salary arbitration

 

Optional Reading:  Bucky Woy v. Bob Horner arbitration award (re: whether Woy, the agent, was entitled to a percentage fee based on Horner's share of the collusion settlement). 

 

 

Class 7

 

Reading Assignment:  Sections A through D and Section H of Chapter Four of the casebook ("Labor Law and Collective Bargaining in Professional Sports"--"Free Agency Via Labor Arbitration" through “Certification of the Players’ Bargaining Agent” and “Administration of the Labor Agreement") pp. 275-304 and pp. 336-42; Judge Daniels' Memorandum Opinion and Order in NBA v. NBPA (Artest, et al.).  Note how the NBA and NBPA changed the grievance and arbitration procedure in the new collective bargaining agreement (Art. XXXI, Secs. 1(b) & 8) negotiated after Judge Daniels' decision--and defined "conduct on the playing court."

 

VIII.    Labor Law and Collective Bargaining in Professional Sports

 

          A.    Rights and Duties of teams and players under NLRA

 

          B.    Arbitrability Issues in Messersmith and NBA v. NBPA (Artest, et al.)

 

          C.    Steelworkers' trilogy

 

          D.    The bargaining unit

 

          E.     Union support and employer retaliation

 

          F.     Players' exclusive bargaining agent

 

Optional Reading:  Robert C. Berry, Collective Bargaining in Professional Sports, in 1 Uberstine, Chapter 4; Roger G. Noll, The Economics of Sports Leagues, in 3 Uberstine, Chapter 19; and for more in-depth discussion of "substantive" and "procedural" arbitrability (as dealt with by Judge Daniels in NBA v. NBPA (Artest, et al.) and the bases for vacating arbitration awards under federal labor law and the Federal Arbitration Act, see Selected Arbitration Materials.

 

Class 8

 

Reading Assignment:  Sections F, G, I and J of Chapter Four of the casebook ("Union and Individual Player" through “Union Security in Sports”) pp. 310-36 and pp. 343-53; re-review the National Labor Relations Act--29 U.S.C. Secs. 151, 152, 157, 158 (especially Sec.158) & 159 and also Sec.160 (expecially subsection (j)); and  Duty of Fair Representation.

 

            G.    Duty to bargain in good faith

 

            H.    Of strikes and lockouts        

 

             I.     Union's duty of fair representation

 

            J.     Union security

 

  

Class 9

 

Reading Assignment: Sections A and B of Chapter Nine of the casebook ("Intercollegiate Sports:  Due Process and Academic Integrity"--"The Tarkanian Saga" and "Procedural Due Process") pp. 739-70, and the Fifth and Fourteenth Amendments and 42 U.S.C. Sec. 1983; Section C of Chapter Ten of the casebook ("Intercollegiate Sports:  Commercialism and Amateurism"--"Antitrust Scrutiny of NCAA Rules"--"Product Market" & “Coaching Market”) pp. 852-84.

 

X.    Due Process in Amateur Sports

 

        A.      NCAA v. Tarkanian

 

    B.    NCAA v. Miller

 

        C.    Brentwood Academy v. Tennessee Secondary Schools Athletic Association

 

Optional Reading: Eligibility and Disciplinary Rules in Amateur Athletics, in 2 Uberstine, Chapter 12; The NCAA Enforcement Process, in 2 Uberstine, Chapter 13; the Nevada Supreme Court's opinion in Tarkanian, 741 P.2d 1345 (Nev. 1987); the opinion of the Supreme Court of Texas in NCAA v. Yeo student's interest in athletics not a protectable interest under Due Course of Law provision of the Texas Constitution and instructing lower courts to stay out of "student athletic disputes"); Tex. Const. art. I, ' 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”); and the NCAA Manual (2007-08) (especially Art. 32 -- Enforcement Policies & Procedures).

 

XI.   Antitrust Scrutiny of NCAA Rules

  

       A.    Product Market (NCAA v. Board of Regents)

  

       B.    Coaching Market (Law v. NCAA)

 

  

Class 10

 

Reading Assignment:  Chapter Eleven of the casebook ("Intercollegiate Sports: Gender Equity") pp. 904-77; Smith v. NCAA, 266 F.3d 152 (3d Cir. 2001) (on remand from the United States Supreme Court); applicable parts of documentary supplement (Title IX; Civil Rights Act of 1964); Dear Colleague Letters purporting to clarify the three-part test (in Fall 2007 Sports Law Materials.

 

XII.   Equal Protection, Title IX and Gender Equity

 

        A.    Constitutional, statutory and regulatory background

 

        B.    Case law

 

        C.    “Recipient of federal financial assistance”

 

        D.     The three-part test for compliance

 

        E.     Use of surveys of student interest

 

SCHEDULED GUEST SPEAKER: C. Paul Rogers III, author, law professor and SMU's faculty athletic representative representing SMU before the NCAA and Conference USA. Professor Rogers will tell us about SMU’s Title IX compliance program.

 

Optional Reading:   NCAA Gender Equity Manual; Karen L. Tokarz, Sex Discrimination in Amateur & Professional Sports, in 3 Uberstine, Chapter 14; Jody Feder, Title IX, Sex Discrimination, and Intercollegiate Athletics:  A Legal Overview (Congressional Research Service April 28, 2005) and Gary Roberts' Sports Law Developments (Title IX - Gender Equity pp.54 - 56) in Fall 2007 Sports Law Materials;

 

 

Class 11

 

Reading Assignment: Sections B, C and D of Chapter Five of the casebook ("Agent Representation of the Athlete–Breakdowns in the Agent-Player Relationship” through “Agents, College Athletes and NCAA Rules”) pp. 383-430; NFLPA Agent Regulations and NFLPA Player-Agent Standard Representation Agreement; and the Texas Athlete Agent Act, Tex. Occupation Code § 2051.001 et seq., and Sports Agent Responsibility Trust Act.

 

XIII.  Agents

 

        A.    Duties to athlete clients

 

        B.    Services performed for athlete clients

 

        C.    Regulation of agents

 

               1.   By players' unions

 

               2.   By state governments

 

               3.   By bar associations

 

               4.   By the federal government

 

Optional Reading:   Ted Curtis, The Regulation of Player Agents and Lawyers, in 1 Uberstine, Chapter 1; Gregory W. McAleenan, Agent-Player Representation Agreements, in 1 Uberstine, Chapter 2; James W. Grossman, Financial Planning for the Professional Athlete, in 1 Uberstine, Chapter 3; Marketing the Athlete; Endorsement Contracts, in 3 Uberstine, Chapter 27; Gary Roberts' Sports Law Developments (Agents & Agent Regulation pp. 1 - 5), Bob Berry's "Ethics for Sports Lawyers," John Dzienkowski's "Ethics in Sports" and the Kentucky Ethics Opinion Re: Lawyers' Sports Agency in Fall 2007 Sports Law Materials.

 

 

Class 12

 

Reading Assignment:   Section E of Chapter 13 of the casebook (“Disability and the Right to Play”) pp. 1143-61; PGA Tour, Inc. v. Martin at pp. 994-1007 (you may also choose to read the full majority and dissenting opinions of the Supreme Court at 532 U.S. 661, 121 S. Ct. 1879 (2001), http://laws.findlaw.com/us/000/00-24.html ); Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681 (2002), http://laws.findlaw.com/us/000/00-1089.html); and applicable parts of the documentary supplement.

  

XIV.  Disability and the Right to Play

 

        A.  The Americans with Disabilities Act and the Rehabilitation Act

 

        B.     What is a disability?

 

        C.     What is “reasonable accommodation”?

 

        D.     An invitation to too much judicial intrusion?  

        

        E.    Types of sports-related cases filed and decided under these statutes.

  

Class 13

 

Reading Assignment:  Materials on the United States Anti-Doping Agency and Courts of Arbitration for Sport in Fall 2007 Sports Law Materials, including USADA v. Kicker Vencil (CAS),  USADA v. Price (NACAS), USADA v. Collins (NACAS), USADA v. Landis (NACAS) and USADA v. Landis (NACAS( (Dissent).

 

IX.   Scheduled Guest Speaker:  Travis Tygart, Senior Managing Director and General Counsel of the United States Anti-Doping Agency in Colorado Springs

 

Optional Reading:  Gary Roberts' Sports Law Developments (Doping & Drug Testing Matters pp. 67 - 71); Lance Armstrong's letter to the IOC complaining about Dick Pound; Floyd Landis' laywer's submission to the USADA Independent Anti-Doping Review Board; and Landis' doctor's PowerPoint presentation setting out Landis' defenses in Fall 2007 Sports Law Materials.

 

Class 14

 

Reading Assignment:   Section K of Chapter Four of the casebook (“Salary Caps and Taxes”) pp. 353-61; Section A of Chapter Five of the casebook (“Union and Agent Representation of Athletes”) pp. 362-83; and applicable parts of the documentary supplement (collective bargaining agreements).

 

XV.    Salary Caps, Taxes and the Economics of Professional Sports

 

          A.   Negotiating individual player contracts

 

          B.    Salary Cap “loopholes”

 

          C.    Baseball - player contracts and salary arbitration

 

INVITED GUEST SPEAKER: Thad Levine, Assistant General Manager, Texas Rangers Baseball Club, will speak on baseball's salary arbitration. The following is from the MLBPA's website:

 

 Q: When does a player become eligible for salary arbitration? 

A: A player with three or more years of service, but less than six years, may file for salary arbitration. In addition, a player can be classified as a "Super Two" and be eligible for arbitration with less than three years of service. A player with at least two but less than three years of Major League service shall be eligible for salary arbitration if he has accumulated at least 86 days of service during the immediately preceding season and he ranks in the top 17 percent in total service in the class of Players who have at least two but less than three years of Major League service, however accumulated, but with at least 86 days of service accumulated during the immediately preceding season.  
 

Q: What is the record between players and owners in salary arbitration cases? 

A: Since 1974, and including 2006, arbitrators have ruled on behalf of the players 199 times and clubs 269 times. Although the number of players filing for salary arbitration varies per year, the majority of cases are settled before the arbitration hearing date. For example, since 1990, 1,658 cases were filed and 191 were heard, which means approximately 88 percent of the players filing for arbitration reach new agreements before a hearing.
 
See also this link to Eugene Freedman's ("baseball scholar") website: Baseball Think Factory.
 

Optional Reading: Leigh Steinberg, Representing the Professional Football Player, in 1 Uberstine, Chapter 6; Jeffrey S. Moorad, Negotiating for the Professional Baseball Player, in 1 Uberstine, Chapter 5; Ted Steinberg, Negotiating National Basketball Association Contracts, in 2 Uberstine, Chapter 7; Jeff Pressman, Women’s National Basketball Association, in 2 Uberstine, Chapter 8; Gordon I. Kirke, National Hockey League Contract Negotiations, in 2 Uberstine, Chapter 9.