Amateur Sports Outline Regulating Olympics and International Athletics U.S.

USOC - The sole organization in the United States that is recognized by the international governing board of the Olympics, the IOC - Contains more than 200 amateur groups, but under the IOC rules its voting control lies in the groups which are recognized by the international sports federation for those particular sports which are part of Olympic Competition - Has a constitution and bylaws which govern its administrative functions o Ex: Pursuant to the ASA of 1978, the Athletic Congress (TAC) was designated as the national governing body for track and field athletes in the US TAC established a trust program where athletes can receive athletic participation funds and sponsorship payments without losing their international and Olympic eligibility - Basis of Governing Body Authority and Legal Limits Thereon - DeFrantz v. USOC o IOC Rules provide that National Olympic Committees (NOC) may be established as the sole authorities responsible for the representation of the respective countries at the Olympic Games, so long as the NOCs rules and regulations are approved by the IOC o The principal substantive powers of the USOC are found in 375(a) of the Act. In determining whether the USOCs authority under the Act encompasses the right to decide not to participate in an Olympic contest o The language of the statute is broad enough to confer this authority, and we find that Congress must have intended that the USOC exercise that authority in this area, which it already enjoyed because of its long-standing relationship with the IOC Could do so for reasons unrelated to sports considerations o USOC is a private organization, must show vote is a governmental act - Legal Framework for Resolving Domestic Athletic Eligibility Disputes - The USOC grants the recognized NGB for each sport the authority to select U.S. athletes to participate in the Olympics and other international athletic competitions - In order to be recognized as an NGB, a sports organization must provide all athletes an equal opportunity to participate - The NGBs participation and eligibility criteria for U.S. athletes must be consistent with those of the IF for its sport - The ASA requires the USOC to establish procedure for investigating and resolving complaints by athletes alleging that an NGB has violated these requirements, which adversely affects her or her eligibility to compete o ASA mandates that the USOC establish a procedure for swift and equitable resolution of disputes relating to the opportunity of an amateur athleteto participatein protected competitions - USOC is required to hire an athlete ombudsman to provide independent advice to athletes regarding resolution of disputes regarding his or her eligibility to participate in these competitions - Section 9 of the USOCs Bylaws creates some important procedural and substantive rights for an amateur athlete, and pros eligible to participate in the Olympics o An athlete can seek to protect his or her opportunity to participate by filing a complaint with the USOC against an NGB that declares him or her ineligible to participate in a protected competition o The USOC is required by all means at its disposal to protect the right of an amateur athlete to participate if selected as an athlete representing the United States in any protected competition o The USOC must seek information from the parties ifan athlete files a complaint and attempt to resolve the matter

The ASA gives an athlete the right to submit an eligibility dispute with an NGB to final and binding arbitration in accordance with the Commercial Rukes of the AAA, if it is not resolved by the USOC to his or her satisfaction The ASA generally preempts state law claims by the US athletes arising out of eligibility disputes regarding protected competitions except for breach of contract action to require USOC or an NGB to follow their own rules and fairly apply them Slaney v. IAAF o Cts shouldnt be resolving the merits of disputes o Harding: Require the NGBs to follow their own rules (Breach of K) o Exhaust internal remedies, then go to AAA Arb, which is intended to be final and binding. o Courts have recognized and enforced an athletes contractual right to require a governing body to follow its own rules, provide appropriate due process, and take action consistent with its rules and adjudicatory findings Antitrust o Although NGB has implied exemption from antitrust liability for promulgation of athlete eligibility rules, exemption does not immunize state association or one district of state association from antitrust liability for its eligibility rules that reduce competition with another local amateur sports league Lindland v. U.S. Wrestling Assn o As long as the arbitration was final and binding, you cant run to another arbitrator after a decision to have them reverse the order. AAA commercial rules provide that an arbitrator is not empowered to redetermine the merits of any claim already decided Language of ASA provides for arbitration between the aggrieved athlete and the NGB, not between athletes Pre Lindland, interested parties/athletes were not allowed to join in action thought that interests were sufficiently represented After Lindland, USOC amdned bylaws to reuiqe that an athlete initiating arbitration and the USOC member which the arbitration is filed against, submit a list of all individuals that may be adversely affected o AAA responsible for notifying those on list o Affected parties may choose to participate; however, if they choose not to, they are still bound be decision o Although there is no private right of action under the Amateur Sports Act, Lindland illustrates that the Federal Arbitration Act enables an athlete to judicially confirm and enforce an arbitration award if an NGB or the USOC refuses to comply with it. o o Field of Play Decisions Decisions of referees during competition regarding a field of play decisions are not reviewable unless the decision was Outside the authority of the referee to make, or Was the product of fraud, corruption, partiality or other similar bar to confirmation o Referee = any individual w/discretion to make field of play decisions 21 Day Bar In any lawsuit relating to the resolution of a dispute involving the opportunity of an amateur athlete to participate in the games, a court shall not grant injunctive relief against the USOC w/in 21 days before the beinning of such games Designed to prevent a court from usurping the USOCs powers when time is too short for its own dispute resolution machinery to do its work State Law claims

Breach of contract claim to enforce procedural rights Civil Rights Claims American w/Disabilities Act Title 9 Damages permitted, injunctive relief not Limits on use of national law to regulate Olympic and International Athletic Competition U.S. court has no personal jurisdiction over a nonresidential international athletics governing body, such as an IF or the IOC unless an athletes claims arise out of its activities within both the US and forum state o Ex. Reynolds v. IAAF 6th Cir. Ohio ct doesnt have jurisdiction to hear American runners state law claims against the IAAF(based in London) o Even if there is personal jurisdiction over an international athletics governing body, U.S. courts are reluctant to apply the constraints of U.S. law to IOC or IF rules, o A U.S. athletes dispute with the USOC or an NGB is resolved by domestic arbitration under the auspices of the American Arbitration Association. o By comparison, a U.S. athletes dispute with the IOC or an IF generally will be resolved before a foreign or international arbitration panel such as the Court of Arbitration for Sport. In accordance with an international treaty, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 9 U.S.C. 201, to which the U.S. is a party, U.S. courts will recognize and confirm foreign arbitration awards resolving the merits of international sports disputes affecting U.S. athletes. Slaney v. IAAF o Courts are pretty much applying an international standard here. o If governing body has clearly violated its own rules, and arb. Let them get away with it, then it might violate public policy. Public policy is NOT a good defense. o NY Convention shall be enforced in the US courts each contracting state shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen, whether contractual or not. Both are subjected to it. o Tribunal Burden is on the IAAF, to prove, then shift to her to disprove, there was clear and convincing evidence there. o She participated in IAAF arbitration . her present state law complaint seeks to relitigates issues dcided by the IAAF tribunal, the NY Convention mandates enforcement for those that enter it and there is NO defense. OLYMPIC AND AMATEUR SPORTS ACT o Established to coordinate amateur athletic activity; to recognize certain rights that belong to amateur athletes; and to provide for the resolution of disputes involving national governing bodies o Establishes that the USOC is authorized to recognize as a National Governing Body any amateur sports group, which files an application is eligible for recognition o Only one NGB per sport, holds a hearing (open to public) on the application, must publish notice regarding the hearing, The organization will only be recognized as a NGB if it is incorporated as a domestic, non-profit corporation with the purpose of advancing amateur athletic competition; submits an application; agrees to submit to binding arbitration; demonstrates that it is autonomous in its governance of the sport; demonstrates open membership; provides equal opportunity to amateur athletes and coaches without discrimination; is governed by a Board of Directors etc. o Act provides that any sports group which is eligible to belong to a NGB may seek to require the to comply with its responsibilities under the act, by filing a complaint with the USOC. o

o o INTERNATIONAL IOC - Registered under Swiss Law as a non-profit, private society with legal status under both national and international law - Has special status under tax and labor laws in Switzerland because of its international character - Consists of 109 elected officials, seve as representatives in their home countries o Serve eight year terms, elected by IOC nominations committee IFs - Nongovernmental organizations, recognized by the IOC as the worldwide governing body for a particular sport or group of sports - Encompasses the NGBs that serve as affiliates for the subject sport(s) in each country o MUST CONFORM TO OLYMPIC CHARTER Establish and Enforce rules for respective sports - establish eligibility criteria - select judges, refs, etc - Establish and provide an internal dispute resolution process - Responsible for the technical control and direction of their sports during the Olympic Games NOCs - Develop and protect Olympic movement in their respectivec ountries o Encourage performance in sport o Recognize NGBs for Olympic sports o Take action against discrimination and violence in sport o Fight against banned substances and doping procedures banned by the IOC or IFs o Designate cities to apply to host Olympics - Subject to the laws of their respective nations as well as the provisions of the Olympic Charter and the governing authority of the IOC o For example, the United States Olympic Committee (USOC) must comply with the Ted Stevens Olympic and Amateur Sports Act, 36 USC 220501 et seq., and other applicable federal and state laws. NGB - The national governing authority for a particular sport that is affiliated with the appropriate IF and is recognized by the countrys NOC - NGBs must comply with the Olympic Charter and IF rules as well as exercise a specific and real sports activity. Olympic Charter, Chap. 4, Rule 33 - Each NGB recognized by the USOC (e.g., USA Track & Field) serves as the United States member representative in the IF for its particular sport Olympic Charter - Forms the basis of international sports law - All athletes must respect the spirit of fair play and non -violence and behave accordingly on the sports field and fully comply with the World Anti-Doping Code. Drug Testing - Olympic Charter and Constitutions and bylaws of international sports federations o Use of drugs contravenes the spirit of fair play in sports - IOC requires testing facilities at competition sites and and each competitor must agree to submit to a possible medical examination at the risk of exclusion - Penalties vary according to whether use was deliberate or accidental or whether use constituted the first or second violation - WADA Code o Sets out uniform rules and sanctions for all sport and countries

But, only after exhausting all remedies within the appropriate NGB for correcting the problems (unless it can be proven that those remedies would have resulted in unnecessary delay). Disputes are arbitrated by the American Arbitration Association(AAA), or under rules of international sports federations, by the CAS or other special tribunals There are also provisions designed to protect the opportunity of athletes to compete

o CAS o

2 year ban for first offense and a lifetime ban for the second offense

Olympic Charter Any dispute arising on the occasion of, or in connection with, the Olympic Games must be submitted to CAS The applicable law to decide a dispute is that chosen by the parties or, in the absence of such choice, Swiss law In a dispute between an athlete and an IF, Swiss choice-of-law rules will refer to the statutes and regulations of the IF o Parties may authorize written and oral arguments o CAS does not resolve technical questions Those related to the technical rules of the game, wcheduling of competition, or prescribed dimensions of the playing field or ball court o CAS addresses issues with regard to amateur eligibility, suspension of athletes, the adequacy of protections for individual athletes during drug testing, breaches of contract between an athlete and a sports club, the validity of contracts for the sale of sports equipment, television rights, licensing, sponsorship, and the nationality of athletes for purposes of competition. Eligibility Commercial Disciplinary o Awards are final and binding o Enforced internationally by the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards - In both appeals arbitration and ad hoc Division proceedings, the CAS provides de novo review of a sports governing bodys interpretation or application of rules affecting an athletes eligibility to compete. As a result, even if the athlete was denied due process in the sport governing bodys internal proceeding, this violation is remedied by providing a full and fair opportunity to be heard during the CAS arbitration. - Always Swiss law, unless agreed upon otherwise by the parties o Provides a uniform procedural regime for all CAS arbitrations, not only in terms of applicable rules under the Code, but also with respect to the arbitration law governing the proceedings o Conducting the arbitration at the site of the Games is intended to make arbitration as convenient as possible for the parties and to resolve disputes as expeditiously as possible. It is not meant to have any legal significance. o The equal treatment so achieved is consistent with the equal standards that govern the activities giving rise to disputes, i.e., sports competition. A time on a stopwatch is the same wherever the race takes place. It is further consistentwhich may be of even greater significance herewith the choice of substantive law governing sports disputes. - In Canas v. ATP Tour, 4P.172/2006, (1st Civ. Law Ct., March 22, 2007), the Swiss Federal Tribunal refused to enforce a contractual waiver of an athletes right to appeal a CAS award, which was a condition of participating in any events organized or sponsored by the Association of Tennis Professionals Tour. Governing Body Disciplinary Action - DArcy v. Australian Olympic Committee o Assaulted man in bar fight; Australian NGB removed him from Olympic team for violating membership agreement which forbid conduct which would be likely to bring athlete in disrepute or censure De novo review found that he violated rule and was subject to suspension - Samoan NOC v. Ints Weightlifting Fed Suspended due to serious misconduct; sought and received injunction allowing him to compete NOC brought action against IF which refused to let weighlifter compete despite Samoan Supreme Courts order to let him compete o National court does not bind IF directly, but o IF decision requires valid NGB decision o If NGB decision vacated by national court, IF has no grounds to suspend athlete

To compel national court decision, would normally have to bring suit in country where IF resides Disputed Competition Results - Yang Tae Young v. FIG o Started him with a 9.9 instead of 10. The code allowed them to change but the appeal must be made and dealt with during the competition, not after o CAS arbitrators do not review the determination made on the playing field by judges, referees, umpires, or other officials who are charged with applying what is called rules of the game. o Courts may interfere only if an officials field at play decision is tainted by fraud or arbitration or corruption. Admitted error but must be dealt with during competition. o Players may not complain about the field of play decisions simply because he or she disagrees with that decision. Doping Sanctions are imposed to keep a competitive playing field and the image of the sport clean. Clear Notice, Strict liability, and Proportionate Sanctions typical suspension is 2 years. But can be reduced to no suspension or one year. Look at the athletes degree of fault o Material defect in the collection of the sample o Chain of custody o Testing that adversely affects the testing results. WADA o Revised in 2009, allows CAS more flexibility in reducing or decreasing the standard two-year suspension for a first doping offense, but still does not permit consideration of an individual athletes personal circumstances o An athletes immediate admission or cooperation with a doping violation may reduce his sanction conversely, it may be increased if there are aggravating circumstances o Canas v. ATP Tour o Each player has a personal duty to ensure that no prohibited substance enters his body and it is not necessary that intent, fault, negligence or knowing use on the players part be demonstrated in order to establish a doping offense under CI Only 3 WADA labs in the US Strict liability o Due process Standard of proof There is a reasonable standard it is greater than the balance of mere probability but less than proof beyond a reasonable doubt Results are proven by bringing them in from a lab and having someone explain it. Have to testify to the chain of custody o Everything is vacated Sanctioning o First offense 2 years o Second offense lifetime ban o All participants have the opportunity to establish the basis for eliminating or reducing the sanctions. If player bears no fault or negligence for the offense, the otherwise applicable period of ineligibility shall be eliminated. o Can reduce it entirely eliminate o What about this case? Not here he is trying to argue this. So ATP brings in: Could have looked at prescription there is some fault here. WADA allowing for proportionality, but they are relying on an objective standard. What would a reasonable prudent person do. Reasonably prudent person would have Clearly there is some fault here so go to next analysis

If the player establishes no significant fault or negligence, then the period of ineligibility may be reduced, but the reduced period of ineligibility may not be less than one half of the minimum period of ineligibility otherwise applicable. o Reducing sanction o Is there no significant fault? If so, then we have to determine what is an appropriate sanction. What is the best argument: Should be able to trust a doctors prescription. Objectively as possible Totality of the circumstances Did they act reasonably at all to make sure that they didnt take something that was banned o They have education o Past tests o factors No fault or negligence did not know or suspect and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used or been administered. No significant fault or negligence the player establishing his or her fault or negligence, when viewed in the totality of the circumstance, was not significant in relationship to the Dopig offense. o Appellant did nto read the label and did not ask questions, not did he compare the label, there was some fault and negligence here. However, No significant fault or negligence o Player was significantly negligent in not conducting further research before taking his meds. Guilt established by the balance of probability o First, the prohibited substance was clearly in his system o Second, whether he bears no fault or negligence or no significant.. Cleary it was in his system Second, have to find the level of fault o He was aware o Extreme care in the prescriptions o They should be able to trust a doctors prescriptions. o Question is then whether the player had a duty to investigate the actual medication that he had received to ascertain whether it was indeed the medication prescribed by the tourney doctor. Clearly negligent player has a duty of utmost caution no fault of negligence is NOT applicable to this case. o Look to no significant fault or negligence Reduced sanction No intent Case by case approach is consistent with Human rights. The definition of no significant fault or negligence requires the panel to look at the totality of the circumstances. Best treatment possible Only result of specimen Medical reasons, Mistaken delivery

supplement may be contaminated How do these cases fit in here: o Is this no fault? o WADA Code states at best falls into the category of no significant fault or negligence. These may be contaminated or mislabeled and you take them at your own risk. So at best you can prove this, but still on hook for one year suspension. USADA

If athlete wants to adjudicate, will go to Arbitration. They have a right under Stevens act to go to AAA arbitration, but the Ifs and IOCs have stated that they will not be bound. o So it goes to panel of Dual certified American CAS and AAA Arbitrators o If athlete does not like result, it can be appealed to a different CAS panel. o WADA or involved IF, they can appeal. They want consistent sanctions and can but in. o CAS DE NOVO REVIEW Athlete picks one, USADA Picks one, and one more. o Non-analytical Prove use, attempted use, through emails, admissions and other circumstantial evidence, Example USADA V. OB Mitten sent it. No fault or negligence: Hockey kid resumes playing career when he is treated for life threatening. It was medically necessary o Out cold, no consent, this is appropriate HAVE TO PROVE HOW THE BANNED SUBSTNCE GOT INTO YOUR SYSTEM o Have to show more probably than not that it was no fault or negligence. Tennis dude tests positive for cocaine o Would need medical experts to show that based on amount in system, is this the source of the cocaine. o Would have to show that he didnt know at the time she was using cocaine. o This was found to be no fault. Go from CAS to Swiss tribunal Fraud, corruption or bias Wont resolve on the merits If the decision violates public policy of the state its in (Switzerland) which is a difficult standard to meet on the merits. They will rarely vacate the award Justin Gatlin First one should not be treated as violation because with disability, he was treating something under the ADA. o CAS did not accept this argument o America said that increased sanctions NYCONVENTION Like Slaney case, we are sympathetic to the claim, the US is a party to the NY convention, which requires to give full force and effect to foreign arbitration award. o its always considered a swiss arbitration award, even if hearing is in the US. SLANEY Courts will not allow parties to relitigate o Once you are done with CAS, you can go to Swiss Fed Trib, or NYConv. (but this is not a real option anymore really) ECJ filed claim o Claiming that their suspensions violated the treaty of Rome, their anti-trust and competition laws. o These Euro states are not parties to the NY convention. o Potential post CAS review of the merits not a good thing. There should be something to unify these. o o USADA v. Kirk OBee Although not squarely on point factually, several Court of Arbitration for Sport and American Arbitration Association/North American Court of Arbitration for Sport Panels have found that non-analytical positive evidence such as an athletes uncontroverted admission of a doping violation or a corroborated admission establishes his use or attempted use of a prohibited substance

In accordance with Article 10.7 of the 2003 WADA Code, which is substantially the same as Article 10.8 of the 2009 WADA Code and provides that competitive results obtained from the date . . . doping violation occurred . . . shall, unless fairness requires otherwise, be Disqualified, The athlete, the IF, or WADA may appeal the AAA arbitration award to the CAS, whose decision is final and binding. (This is a unique procedure that applies only to AAA doping awards because an arbitration award generally cannot be appealed to and reconsidered by another panel of different arbitrators.)

High School

Judicial Regulation of Interscholastic Athletics Courts initially consider jurisdictional issues before examining the merits of the case, which requires consideration of relevant state athletic association and/or school district rules and internal administrative decisions as well as applicable legal precedent. As a general rule, courts will provide relief to an aggrieved party only if the subject rule, application, or enforcement is found to be arbitrary and capricious or violates an applicable federal or state statute or constitutional law provision It is important to recognize that, in some instances, a state constitution may provide a stronger right or require that a higher standard be met to justify infringing such a right than the corresponding federal constitutional provision o For example, if a student athlete asserts that she has a right to participate in interscholastic athletics, this assertion generally is rejected on federal constitutional grounds, but it may be recognized in some jurisdictions on state constitutional grounds. State Action Prerequisite to bringing a claim alleging infringement of a federal constitutional right If institution or association is not a state actor, not required to respect rights secured by constitution Brentwood I o The associations regulatory activity in this case may and should be treated like a state actor. Private parties are not subject to federal constitutional claims except for 13th Am. o A private entity can be considered a state actor when it serves a public function o State action may be found only if, there is a close nexus between the state and the challenged action that seemingly private behavior may fairly be treated as that of the state itself. Legal standard Pervasive entwinement between the associations and the state entities. This is always a fact bound inquiry. no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government. Composition of voluntary association 84 % public schools (substantial control of association) Public school officials represent these schools Top down entwinement Benefits for state employees Entwinement test public actor is so entwined with the athletic association that it should be considered public. Sufficient entwinement among public schools symbiotic relationship. o Receipt of federal funds ALONE does NOT make you a state actor

Not all associations are state actors, WIAA receives federal funds but there is no entwinement under Brentwood so its not a state actor. 42 U.S.C. 1983 Benefit of this discrimination statute is that if you win, it is a fee shifting statute so the prevailing party gets their attorneys fees paid for. Brentwood II Ct.: Brentwood chose to join TSSAA, an athletic league [association] and a state actor invested with a three-fold obligation to prevent the exploitation of children, to ensure that high school athletics remain secondary to academics, and to promote fair competition among its members TSSAA can similarly impose only those conditions on such speech that are necessary to managing an efficient and effective state-sponsored high school athletic league. Private Conduct the law governing private schools or their governing bodies Anti-trust claims State constitutional law claims Contract law The law of private associations o Deferential standard of require courts wont interject in associations internal affairs if the rules are reasonable, lawful, in keeping with public policy and are interpreted fairly and reasonably enforced. Very deferential Eligibility Issues Procedural due process typically requires consideration of whether fair notice and an opportunity to be heard have been provided by a state athletic association or high school before a student-athlete is denied eligibility to participate in interscholastic athletics On occasion, substantive due process claims alleging that an eligibility rule, its application to a student-athletes particular circumstances, or disciplinary action resulting in a loss of athletic eligibility is arbitrary or capricious or violates a protected liberty interest regardless of the level of procedural process provided have been raised in cases o Federal equal protection requires that similarly situated parties be treated alike, with the level of judicial scrutiny varying based on whether or not there is any discrimination based on innate characteristics such as race, ethnicity, national origin, or gender. Procedural DP Requires consideration of whether fair notice and opportunity to be heard have been provided by a state athletic association or school before a student athlete is denied eligibility to participate. Substantive DP Claims alleging that an eligibility rule, its application to a student athletes particular eligibility is arbitrary and capricious or violates protected liberty interests (privacy right) regardless of the level of procedural due process provided. Federal EP Requires that similarly situated parties be treated alike, with a level of judicial scrutiny varying based on whether the discrimination is based on a suspect classification. Transfer rules o Deter recruitment of student athletes (protects from pressures in sports) and keeps the focus on interscholastic athletics on academics. IHSAA V. Carlberg o Kid lost a year of eligibility after he transferred for non-athletic reasons when he didnt change his address. There was a 13 exemption criteria but he didnt fit it. o Due Process there is no constitutional right to participate in interscholastic athletics. Fair notice and hearing were granted as well so this was not an unfair opportunity. o Equal protection athletes are NOT a suspect classification for purposes of EPC. Participate in athletics is also not considered a fundamental right o arbitrary and capricious standard very narrow standard of review and the reviewing court may not substitute its judgment for the judgment of the IHSAA. The rule or decision will be found to be arbitrary and capacious only where it is willful and unreasonable, without consideration and in disregard of the facts or circumstances in the case, or without some basis which would lead a reasonable and honest person to the same conclusions.

Other standard is de novo in which the court CAN substitute its judgment for the association. Usually the institutions are in the best place to make and educated decision, however. o Willful and unreasonable? Look to validity of rule itself, fair notice, treating situations alike, opportunity for hearing, objective standards, make sure the rules dont sweep to broadly Rule of Restitution o Pending final resolution of all appeals, a high school may be reluctant, notwithstanding a successful legal challenge at the trial court level, to allow a student-athlete to participate who was deemed ineligible by a state athletic association. If an appellate court upholds the associations finding of ineligibility, a high school risks sanctions imposed pursuant to an associations rule of restitut ion Mootness o capable of repetition, yet evading review exception, which provides that 1) the challenged action was too short in duration to be fully litigated (i.e., the time to litigate exceeded the year of ineligibility under the transfer rule); and 2) there was a reasonable expectation that the same rule would be applied to the same party or another similarly aggrieved party Outside Competition Rules o Letendre v. Missouri SHSAA (Does a student have a legally protected interest) Girl wanted to participate in HS sports and practice with her club swim team. The power of the court to review the quasi-judicial actions of voluntary associations is limited to determining Whether there are inconsistencies between the associations character and bylaws and any action taken in respect to them. Whether the member has been treated unfairly, denied notice, hearing or opportunity to be heard. Whether the associations undertakings were prompted by Malice, fraud, or collusion Whether the character of the bylaws contravene public policy A rule of a quasi-judicial voluntary association will not be set aside if any state of facts reasonably may be conceived to justify it. (reasonable persons could differ deferential) This rule was legit because a reasonable person could believe that legitimate goals of the association were furthered by the rule. Rational Relationship standard does it serve rational standards o Academics come first, dont want to promote interference with out of school programs, protecting competitive equity, coaching philosophy and scheduling conflicts. o By generally upholding outside competition rules, the prevailing judicial view is that all students are free to compete, or otherwise participate in any or all non school events. Rather than impinging upon their right of free association, the rule merely delineates under what terms and conditions they may participate in interscholastic athletics. Good Conduct Rules o Brands v. Sheldon Community School Outside of school had sex with girl, principal informed him after small investigation that his conduct was detrimental to the school and he would be suspended for remainder of wrestling season. Court held that he would most likely not succeed on the merit constitutional rights were not violated to a great enough extent.

Age Rules o Most impose rules where over 19 year olds cant play Reduces the competitive advantage of teams with older athletes, protects younger students from injury, discouraging students from delaying their education to enhance athletic performance, and preventing coaches from redshirting athletes. o Tiffany v. AZ Interscholastic AA Girl held back due to learning disability based on AIA rules, they could grant her waiver. Here the AIA did not act unlawfully w/r/t the 14th amendment, however, it acted unlawfully for failing to follow its own rules. Going to school is not considered a protected property interest. Some courts have held that it is such boyd v. Board of directors suspension for year was a violation of procedural due process. His continued status on the team was very important to his educational and economic development. Pegram v. Nelson opportunity to participate in extracurricular activities is not, by and in itself, a property interest. This does not rise to the level of constitutional magnitude necessary to invoke the protection of DPC. They just didnt follow their own rules. No-Pass, No-Play Rules o Students deemed ineligible to participate in interscholastic sports have challenged the legality of no-pass, no-play rules on equal protection and due process grounds o Cts. Apply rational basis test in addressing EP challenges o Exclusion of Homeschooled Students from Athletic Participation Rules that allow only full-time students to participate in HS sports Claims Breach of statutory duty Violation of equal protection rights Breach of duty to promulgate reasonable rules and regs by implementing total ban Courts have consistently upheld no fundamental right to participate Purpose undue financial burden on school given that funding is provided on per student basis undue burden to determine whether homeschooled student meets academic elibility requirements o could allow parent of underachieving child to pull student out of school and educate at home to maintain eligibility Counter Student could cover costs Student could take aptitude test Constitutional Issues Vernonia School District o Random suspicionless drug testing was held constitutional by the court. o Athletes have a diminished expectation of privacy in the school, there is a custodial relationship between the parties involved o When special needs beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. o The students are voluntarily subjecting themselves to a degree of relation than that imposed on regular students. -

Athletes have no legitimate entitled to participation in athletics and potential scholarships amount to nothing more than mere speculation. Pending scholarships do not increase property interest. Court held that this restriction was not arbitrary and capricious enough.

No EPC because the scrutiny level would have been rational basis, which is too easily shown. o What if this came under private school? Law of private associations Sometimes this law has been applied to public schools Does this rule further athletic the goals of athletic participation. Make sure you follow you own rules, consistently, procedural safeguards are used. Make sure you have reason for targeting specific sports, because this could be seen as arbitrary and capricious Make sure notice is provided. Explain why being down and consequences for non-compliance. o Could still be subject to constitutional claims. Sometimes those protections can provide a higher threshold. Freedom of Speech and Association Wildman v. Marshalltown School District o Made girl apologize for her insubordination to the basketball team. o Tinker the constitutional right of free speech does not stop at the schoolhouse gate. However, express opinions are not absolute. There was relatively small infringement of her speech rights and its legit to allow the coach to be respected and to enforce a insubordination policy o Balancing Test First amendment v. legit state interests Factors to look at are Use of profanity Where the speech violation occurred and how to handle the situation. Freedom of Religion The free exercise clause protects the rights of students, coaches, and other individuals to act upon their religious beliefs. Establishment clause issues focus on limiting the power of a state actor to engage in activities that could be considered state endorsement or approval of particular religious activities, such as prayer before athletic events. two sides of the argument o free exercise clause protection against government interference or state actor regarding matters of conscience no Catholics can participate in sports clear violation Gets complicated 1990s difficult to prove a violation of ones FRE rights Smith if there are neutral laws with general applicability that is ok o Establishment clause Government cant sponsor or support religion Religious (activity) endorsement becomes complicated.

Regulating Intercollegiate Athletics Defining the Student-Athlete and University Relationship Contractual and Related Aspects o Statement of Financial Assistance Pursuant to a Statement of Financial Assistance, a college agrees to extend financial aid to student-athletes to the extent of tuition, fees, room, board, and books Student-athlete promises to attend a particular college and to participate in athletics

Student-athletes right to continue to receive financial assistance is contingent upon the athlete remaining academically eligible to participate in the institutions athletic program and participating in his or her sport SA must comply with rules and regulations of team, institution, conference, NCAA Contingent upon institutions annual renewal where commitment is less than four years

National Letter of Intent A prospective student-athlete agrees for a period of one year to attend the institution The named institution may freely contact the student-athlete Assuming the student-athlete complies with NCAA financial aid eligibility requirements and is admitted to the named institution, the athlete is entitled to a scholarship for a minimum of one full academic year from the named institution If student fails to attend, has to serve one year residence and loses a year of eligibility o Judiciary has been reluctant to impose obligations on institutions different from or in addition to those expressly delineated in the contract documents o Taylor v. Wake Forest Taylor refused to participate in football and the university terminated his football scholarship. He was academically eligible and still refused to play. He sought to recover his expenses for his junior and senior year. Athlete breached the contract and the University was not made to pay scholarships are only offered on a year by year basis and he had agreed to maintain his eligibility, and when he refused to so in the absence of any injury or excuse other than to devote more time to his studies, he was not complying with his contractual obligations. NCAA Bylaw Article 15 Financial Aid o scholarships are only awarded for a one year time period. Renewal is not automatic, the athletics department has the authority to suggest that the financial aid be renewed each year for the 4 year period, essentially creates a 4 year scholarship o Financial aid based on athletic ability may be reduced or cancelled during the period of the award if the recipient: Renders himself or herself eligible for intercollegiate competition Fraudulently misrepresents any information on an application Engages in serious misconduct warranting substantial disciplinary penalty Voluntarily withdraws from a sport at any time for personal reasons. o Reduction or cancellation not permitted May not be reduced or cancelled during period of its award On the basis of a student athletes athletic ability, performance or contribution to a teams success Because of an injury, illness, or physical or mental medical condition. For any other athletic reasons. o Scholarship has to be renewed before July 1 of the upcoming year. Notification has to be in writing Needs to come from the financial aid authority and not just a random part of the institution. Ross v. Creighton o Claim against Creighton alleging failure to educate him Told him they would get tutoring, receive a meaningful education, D average and short credits. He needed a year of remedial education and he had a major depressive episode. No academic negligence here, but there were contractual issues that need to be resolved by a jury.

Negligence claim New tort of negligent Admission should not have admitted him and they were negligent in doing so knowing that he could not complete his educational responsibilities. o Educational malpractice (negligent in educating him) There is no standard of care here to evaluate educator Second, inherent uncertainties exist in this type of case and the nature of damages. Third, potential it present for flood of litigation Threatens to embroil the courts into overseeing the day to day operation of schools. o Negligence admission Creighton owed him a duty to recruit and enroll only those students reasonably quealified and able to academically perform at Creighton. Creighton breached this duty by admitting him, not informing home of how unprepared he was for students and not providing tutoring services Hard to get workable duties Such might unduly interfere with the universities admission decisions. Hard to promote diversity if they dont take risks. o Notes: Some argue that because of the imbalance in the relationship, there needs to be easier paths to remedy the injustices Stipends- Up for debate, BoD of NCAA asked for recommendation taking into account Title IX, etc. Disclosure: CA- Coaches must disclose policies re: medical expenses, scholarship renewals, and transfers o Jackson v. Drake University Coach made promises of tutor and he would be the star. Whenever tutor was going to help they would schedule practices and that his scholarship would be taken away if he did not comply. Coach made him run extra and did not physically injure him and called him derogatory and foul names. Breach of K for failing to provide independent and adequate academic counseling and tutoring; failing to provide adequate study time, ect. There was no implicit right to play basketball. Negligence educational malpractice drake argues that this claim is not recognized and that the common law principles do not apply. Granted summary judgment. Negligent and Misrepresentation of fraud o Alleges that Drake supplied false information for the guidance of others. Jackson must show material misrepresentation, made knowingly with the intent do induce Jackson to act there was no issue here. Cant imply contractual obligations otherwise K would be virtually meaningless. o Courts have been reluctant to imply terms into the student athlete university relationship, an express promise (written or oral may be actionable) o Can also be brought under fiduciary duties. No respondeat Superior o Fortay Dist Ct. ruled that he alleged facts sufficient to support a breach of oral K o Noting that historically the imposition of fiduciary duties have been reserved for legal or business settings in which one entrusts money to another, the court refused to recognize the relationship between a student and an advisor as fiduciary in nature So. Car. SC NCAA Academic Reform Legislation Imposes contemporaneous penalties on D1 sports teams whose athletes academic performance falls below a certain level

 o New:

Measured over 5 year period If score falls below 925 (roughly 50% grad rate) the offending team will lose 10% of its available scholarships

Coach APR profile Clauses in k Constitutionally Protected Liberty Interests Under the United States Constitution, before a person is deprived of life, liberty, or property by state action, procedural due process adequate notice and a fair hearing must be given. Substantive due process also provides a party with a means of determining whether a constitutionally protected substantive right such as ones privacy rights have in fact been infringed. In such cases, the plaintiff must establish (a) the requisite state action; (b) the party must be a person; and (c) an interest in life, liberty, or property must be threatened or infringed. Then, the court must determine whether these property interests were violated without either procedural or substantive due process. The state action requirement (which is satisfied by a public universitys conduct) is addressed at length supra in Part E of this chapter. In the case of studentathletes, coaches, or other personnel, the requirement that the party be a person is easily met. The major issue remaining generally is whether a property or liberty interest has been implicated. Whether S-A has a liberty interest: Hysaw v. Washburn Univ. o Several black players claimed they were racially discriminated by the coaching staff. Players boycotted practice when they were not satisfied with results. This was not an excused absence. They had to issue an apology, do early morning stuff o Property rights - Held a property interest in contractual rights to play football for Washburn, by breaching their scholarship contracts the defendants deprived them of a property rights without due process. o Step 1: must determine whether plaintiffs possessed a property right protected under the constitution. There was only a deprivation of the right to play football and their scholarships were not taken away, so there is no issue here. No constitutionally recognized right to participate in football they try to equate employment with football and the court was not willing to move this far. o Future interest in playing professionally is considered a speculative and not constitutional dimensions 4 theories to possess a constitutionally protected property interest in sports eligibility o Economic Rationale: Training ground to go pro Mosts courts have rejected o Educational Rationale: Participation is integral facet in SAs educational experience o Scholarship per se rationale: o Contractual Rationale: Created by contractual obligations of athletic scholarship Scholars support, courts dont Student-Athletes as Employees: Eligibility for Workers Compensation Benefits services for compensation consider an employee if two elements are present o An express or implied contract to hire, and o Employee status Contract binds to pay employee who performs services, sets forth the place to perform the services and work to be performed, and sets compensation for the work. Courts often adopt one of the following standards to determine an employment relationship: o The right to control the details of the work test Employer possessed the right to control the manner; means, and details of the workers performance. Factors

 Terms of employment controlled Actual exercise of control Method of payment Furnishing of equipment Right to terminate the worker o The relative nature of the work test Employers are those who as a matter of economic reality are dependent upon the business to which they render services. This test is likely to be satisfied where a worker performs tasks integral to the employers regular business and does not provide an independent business or professional service vis a vis the employer relationship between the services provided and the regular business of the alleged employer. Modern trend is not to afford employer status to student athletes. Waldrep v. Texas Employers Ins. Assn Universities are NOT vicariously liable for torts of student athletes. School can only give K for one year with financial aid and scholarship Cant allow student to finish on scholarship money toward medical something, but you cant make that promise to a recruit Cant make any promises could make a note of NCAA protection program with insurance things Kid was awarded workers comp by commission for an injury while he sustained while playing for TCU. Court held he was not an employee of the university Reasonable person test for whether he was an employee reasonable person found find that he was not an employee. Court used right to control test they only control football o He said that NLI was an express contract to work and that the University exercised control over him. o Clearly he was expected only to perform as a student athlete. Right to control test: First look at the terms of the K no express terms here. TCU only have limited terms of his stuff. NCAA Regulatory Authority and Legal Limits Thereon Federal Constitutional Law U.S. Constitution imposes constraints on regulatory authority of the NCAAs member public institutions, whose conduct constitutes state action NCAA is a private association and there is judicial reluctance to impose fedral constitutional limits on regulation of intercollegiate athletics NCAA v. Tarkanian o 38 violations 10 with Tark, the university severed all ties with him. Claim against the NCAA may only stick if it is under the color of state law. He did not participate and cooperate with the NCAA investigation. o Three options are presented, one, reject the sanction and take risk; two, recognized the universitys delegation to the NCAA and dismiss Tarkanaian, even through it would be without adequate notice and he was not tenured; or leave the NCAA. OPTION 2! o Tark wins the original suit and UNLV appeals the 14th amendment due process. o Issue was whether the NCAA was considered a state actor because they controlled the actions of UNLV, Who is a state actor because its a public institution . NCAA is a private entitled. Decided before brentwood. It gets its authority from the voluntary members. Does not get any rules from state law, its private and not subject to the constraints of the constitution. Look at relationship between NCAA and UNLV (or actor) NCAA does not stem from any specific state

UNLV adopting the NCAAs standards is sufficient to hold it is acting under the color of state law The argument for showing that the NCAA was a state actor in this case was that it was directed UNLV to act and also they were jointly cooperative w/r/t actions taken against tarkanaian. NCAA aspires to create uniformity reading enforcement procedures Commerce clause o Grants authority to congress to regulate o DCC limits states/prohibits states from regulating interstate commerce. o Constitute does not apply to NCAA o Dormant Commerce Clause Limit on State Regulatory Authority The Statute could control the regulation of the integrity of a product in interstate commerce that occurs wholly outside Nevadas border s. That sort of extraterritorial effect is forbidden by the Commerce Clause. Potential interaction with similar statutes in other states NCAA Rules Enforcement Process o Committee on Infractions NCAA enforcement staff v. Member school Findings of fact Determination of rule violations and the proper response. o Infractions Appeals Committee Appeals court changes decision sometimes usually enforces the rules of committee o Bylaw 19.01.2, in turn, provides that all representatives of member institutions shall cooperate fully with the NCAA enforcement staff, COI, IAC, and Management Council to further the objectives of the NCAA and its enforcement program. o Process Historically, the COI and IAC impose penalties directly on institutional personnel and student-athletes o Lack of Institutional Control 2.1 University of Alabama , Public Infractions Appeals Committee Report o Improper benefits were given to a student athlete, including cash payments, car to athletes. o Corrective action can be a variety of things: Disassociation from athletic representatives, reduction in scholarships, official visits are limited, modified self-recruitment process, modified compliance, presentations of NCAA rules. Ban on Bowl game This is appropriate under these facts this was the institution at fault here. The donator had insider status created greater university responsibility to report an misconduct. Penn State o Authority It has been argued that the NCAA did not have any authority to intervene in a case involving sexual abuse of young men by a former coach. Proponents of this position argue that it should have been left to the legal system, which found the coach guilty of multiple counts. Should the NCAA have intervened? Opponents of the action also argue that the NCAA acted improvidently when it did not follow its own hearing and investigative processes, choosing rather to simply rely on the Freeh report, which had been commissioned by Penn State. Was it wise for the NCAA to act promptly? Why do you think it did so? Federal and State Civil Rights Laws - Federal and State Civil Rights laws TITLE IX Any public or private universities receiving federal funds, must comply with federal civil rights statutes. This does not, however, mean that the NCAA is subject to these federal laws

NCAA V. Smith o Volleyball at graduate school claimed that this is sexual discrimination by denying her. o Court held that the NCAA was not subject to title IX . Just because they receive dues, does o She claims that if any part of the NCAA received federal assistance Funds, all NCAA operations would be subjected to Title IX. Difference here is that you are not a state actor if you only receive federal funds. This alone does not make you a state actor. Distinction IF ANY part of the university receives all aspects are subject to civil rights. Basically every education institution is subject to civil rights law. o Try to shift burden to NCAA because they indirectly receive benefits, however, decision ultimately rests in the hands of the school o Not subject to federal statutes so its easy to see why the NCAA is so powerful. Brennan v. Board of Trustees for University of Louisiana System significant deference to the NCAA in its efforts to prevent student athletes from using banned substance and its imposition of disciplinary sanction for doing. o Tested positive, he claimed that they violated his right to privacy and deprived him of a liberty/property interest o Constitutional claims No cause of action against private parties. Have to balance out interests interfered with and the legit government interest. Advanced notice, lower expectation of privacy v. interest in fair competition, protecting health and safety standards. Participation is not a property interest but a privilege. Now its a Strict Liability offense for intercollegiate testing. Framework State Actor? Privacy? NCAA justifications vs. SAs privacy interest Property or Liberty interest? Contract and Private Associations Law Courts generally are quite deferential to the NCAA regarding its interpretations and enforcement of tis own rules and regulations Bloom v. NCAA professional in one sport yet maintain eligibility in other sports. But he cant have commercials, or endorse products. They take a hard line stance on that. o School has to bring the suit on his behalf to the NCAA, because he has to be able to keep his endorsements because that is how you make money in Professional skiing. o He felt the restrictions imposed by the NCAA were arbitrary and Capricious. Law of Private associations and Contract Law Arb. And cap. For the NCAA not to grant him a waiver. Court said there is an implied duty in good faith and fair dealing when dealing in the law of private associations. Its difficult for the plaintiff to win reasonable persons may differ here. EASIEST WAY to show is that the NCAA violated its own rules this is arbitrary if they do not apply them consistently. o Not entitled to preliminary injunctive relief under the six part test of Rathke: There is a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief No plain, speedy and adequate remedy is available at law The injunction would preserve the status quo pending trial on the merits o however, they did not MEET there is a reasonable probability of success on the merits granting a preliminary injunction would not disserve the public interest and the balance of equities favors the injunction. o They claim that he lacks standing and is not privy to NCAA and University

Rejects this. He does have standing and relief should be allow to be granted Bloom has 3rd party beneficiary standing to pursue what in essence are two claims for violation of his contractual rights He benefits from the K between university if both parties went into K with intentions that he was going to be a 3rd party beneficiary. Student athletes are allowed to bring claims. NCAA Bylaws NCAA bylaws prohibit every student athlete from receiving money for endorsements.