Contract

 Commissioner best interest authority

o Analysis
 Authorized sanction?
 Procedurally fair? Notice and hearing
 Reasonable expectation?
o Finley - MLB trade of good players for money. Upheld.
o Atlanta Nat’l Baseball Club – can only use sanctions available in agreement
o Vincent – cannot force a team to move
 Good faith & fair dealing
o Amongst clubs – vote reasonably, collective bargaining
 Remedies
o Injunction
 Likelihood of success on the merits (there has been a breach)
 Irreparable harm (player has unique skills that cannot be replaced)
 Court balances interests
o Damages
o Specific performance
o Enjoin from breaching contract
Tort
 Violation of fiduciary duty
o Commissioner – duty to league, not teams
o League (if a corporation with board of directors)
o Agent (duty of competence, obedience, & loyalty) – malpractice
 Duty of reasonable care. Implied promise of good faith efforts
 Violation of MRPC
o Union (reckless disregard)
Labor
 Unfair labor practice for violation of § 7 rights
o Refusal to bargain in good faith on mandatory subjects
o Dishonest claims – failure to provide documentation for verification (Silverman)
o Expired contract continues to govern - duty to maintain status quo
o Enter unilateral terms on mandatory subject of CB, without good faith bargaining, & before impasse
 Breach of duty of fair representation – must show reckless disregard for negligence
o Union may exclude for nearly any reason unless illegal discrimination or ULP
Antitrust
o §1
 Standard: Concerted action amongst economic competitors engaged in interstate commerce that creates an
unreasonable restraint on interbrand/intrabrand (same) trade
 Rule of Reason
 Π – agreement has substantially adverse effect on competition
o Indirect – Δ has market power within defined market
 Relevant product market (reasonable substitute), geographical area, Δ’s share.
o Direct – control over output or price
 Δ – evidence of a procompetitive benefit – on field competition is dependent on the teams’ cooperation
in other respects
o Financial viability of league/clubs
o Competitive balance amongst the clubs – teams must be competitive & economically viable
o Keep market widespread to capture greatest audience
o Revenue sharing necessary to maintain geographic & competitive balance & ensure each club
can be champion
o One-stop shopping, quality control
 Π – pretext or less restrictive means available
o Addresses of season ticket holders – fans will travel if not moving too far
 Quick Look Rule of Reason - no factual dispute. Π wins as a matter of law if:
 Clear anti-competitive effects – increased price, different than what you’d get in free market
 No plausible procompetitive balance or other less restrictive means available.
 Defenses
 Single-entity – complete unity of interest. League owns all clubs

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 o American Needle – not for league clubs. Collectively produce sport, but have unique trade
interest. Exclusive license is a violation.
o Salvino – OK to have exclusive licensing agent. No showing of reduced licensing output.
Non-exclusive license. Standard licensing fee & profit sharing not illegal price fixing.
 Failure to show actual injury
o Grizzlies – no injury for denied NFL application
o Levin – no injury for denying Celtics purchase & good reason to deny – conflict of interest
 Statutory Labor Exemption (Norris-LaGuardia Act)
o Unless labor unit working in combination with non-labor groups
 Non-statutory Labor Exemption (Brown)
o Standard: No anti-trust liability on matters concerning players and clubs only on matters of
mandatory barganing during the lawful operation of the bargaining process
o Applies even if there are unilateral actions after impasse
o Bargaining process isn’t over when first impasse reached
o Ends when:
 New CBA
 Sufficiently distant in time & circumstances from CB process (union decertification
or long impasse & multi-employer bargaining unit defunct)
o Not applicable if
 No unionization or CB process ends
 Suit by nonparties to CB process
 Athletes are independent contractors
 Union disclaimer (Powell)
o Lockout can become a concerted action & salary cap can become pricefixing
o §2
 Monopoly
 Standard: Δ has market power (share at least 70%) and willfully acquired that power
 Defense - Public prefers single product. No intent.
 Phil. World Hockey Club - Reserve clause restricts supply of eligible players
 USFL v NFL - Non-exclusive TV contracts okay – not attractive product
 Attempted Monopoly
 Analysis
o Δ engaged in predatory/anticompetitive conduct
 Fair competition or illegal exclusion?
o Intent to monopolize
 Intent or business purpose?
o Dangerous possibility of achieving monopoly power
 Market & share at least 50%
 Exclusion clause – okay if reasonable terms
 League expansion & game increases – show long intent, public wants more, can be supported
o Remedies
 Enjoin & damages (atty fees)
 Structural relief
ADA
 Analysis
o Person with a disability - substantially limited in 1+ major life activity, record of impairment, or regarded as having
an impairment
o Otherwise qualified (capable & no risk of harm to others)
o Reasonable accommodation or fundamental alteration that modifies an essential aspect of the game
 Cases
o Martin - no individualized determination whether cart was a competitive advantage
o Pistorius – no proof of advantage
Intellectual Property
 Lanham Act
o Trademark infringement: likelihood of confusion regarding origin/source, approval, affiliation, sponsorship, or
endorsement.
o Trademark Dilution: tarnishment or blurs distinctiveness. Don’t have to show confusion.
o Trademark Counterfeiting: intentional & unauthorized use of a mark known to be identical with or substantially
indistinguishable from federal registered mark & creates likelihood of confusion
o Remedies
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  Injunction
 Damages & atty fees
 Seizure & destruction of goods
o Defenses
 No confusion
 Degree of similarity between marks
 Strength of owner’s mark
 Price of the goods
 Length of time the Δ used the mark without confusion
 Intent of the Δ
 Overlap of geographical markets
 Expectation of the consumer
 Fair use (truthfully describe or report)
 Artistic/expressive work
 Parody
 Ted Stevens Olympic & Amateur Sports Act
o Standard: unauthorized commercial use or promotion of any theatrical exhibition, athletic performance, or
competition, even if no likelihood of confusion
o Defense: truthful reporting & political speech
 Copyright Act
o Standard: protection for original works of authorship fixed in a tangible medium of expression.
 Literary, musical, dramatic, pictorial, motion pictures, architectural, camera angles, motion pictures, sound
recordings
o Remedies: damages, injunction, profits, atty fees, crime
o Infringement
 Transmission at a public place or where substantial number of people outside family/friends gather
 Exception – public reception on a single receiving device
 Hot news exception (misappropriation) – quasi-property right to protect labor, skill, & money used to
follow & report time-sensitive news.
o Preemption of state claims when rights are protected by copyright law or work falls within the type of works
protected by copyright law.
o Motorola – can’t copyright facts
o Morris – property right to RTSS system data, but not the underlying facts
 State Law Claims
o Trademark & unfair competition statutes
o Deceptive trade practice acts
o Misappropriation: intentional, illegal use of another’s property for unauthorized purpose
o Breach of contract
o Defamation, right of privacy, right of publicity
Athlete’s Property Claims
 Lanham Act: unauthorized, misappropriate use of athelte’s name, likeness, or identity which causes confusion of whether the
athlete endorsed or sponsored products/services
 State Law
o Defamation
 Make a false statement of fact that harms reputation. Must show actual malice.
o Privacy
 Invasion of privacy (intrusion into public affairs, embarrassing private facts, placing in false light)
 Right of publicity (misappropriation)
 Unauthorized commercial use of athlete’s identity. Don’t have to show confusion
 Remedies
o FMV of sponsorship
o Injunctions
o Value of unjust enrichment
 Defenses
o First amendment
 Artistic works – must prove actual confusion
 Transformative use, not just replication (new meaning, added value)
o First-sale doctrine
o Parody

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 Agent Regulation
Model Rules of Professional Conduct 1.7
 Lawyer shall not represent a client if concurrent conflict exists.
o Representation of one client will be directly adverse to another
o Significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to
another client or by a personal interest of the lawyer
 Lawyer can still represent if concurrent conflict if
o Reasonable belief that lawyer can provide competent and diligent representation, representation isn’t prohibited, and
each client gives informed consent in writing.
MRPC 7.3 – lawyer shall not solicit professional employment unless the person contacted is a lawyer who has a family or prior
relationship with the lawyer.

Ethical obligations: conflict of interest, solicitation, and commingling of funds prohibited, competency requirements, can’t allow
professional judgement to be directed by non-attorney

Uniform Athlete Agent Act

 Designed to protect student-athletes and colleges
Labor Law
 Union has inherent authority to regulate/discipline agents – SLE antitrust immunity
 Agent certification (character and/or competency requirements) with annual fees, code of conduct, and fee caps
 Arbitration to resolve agent disputes with player, other agent, union
Uniform Athlete Agent Act
Are you covered by the Act if you merely negotiate a Nike shoe contract for a high school student-athlete who plans to enter the MLB
draft this spring?
Yes – 2(a)(ii) – agent is somebody who recruits/solicits student to enter into agency contract, serves in advisory capacity related to
finances, business, pursuit, career decisions unless school employee, gives consideration to athlete related to participation. Doesn’t
include individual acting on behalf of team, licensed professional offering services to student provided by members of profession
Are you covered by the Act if you ask Barry Alvarez, the University of Wisconsin’s athletics director who’s a family friend, to
recommend you as an agent to a UW senior football player?
Maybe. Meant to protect those who have eligibility. He may be a senior, but may have 1 more year of eligibility left.
Is an attorney who is certified to represent NFL players required to register?
You can offer legal advice, but once you represent the player you must register.
What are the necessary qualifications to be eligible to register as an athlete-agent?
No competency requirements. Only character requirements.
If you fail to register as an athlete-agent despite being required to do so, what are the potential consequences?
This is a crime for which you can be prosecuted as a misdemeanor or felony, void the contract, damages under the contract.
What are the potential consequences if the required agency contract form is not used?
Contract may be voided by parent or athlete. If the contract is voided, any consideration received from the agent to induce entering is
not required to be returned.
What conduct is an athlete-agent prohibited from engaging in, and what are the potential consequences for non-compliance?
Can’t lie, no financial inducements, can’t pre-date or post-date a contract. Doing so can make the player ineligible. Agent must notify
athletic director of school. Violation results in subject to criminal liability, civil penalty on the agent
What is an athlete-agent required to do within 72 hours after entering into an agency contract?
Or before next athletic event takes place, agent must give notice of the contract to athletic director
If an athlete-agent fails to do so, what are the potential consequences?
Notify secretary of state/commission – civil penalty