The sports agent performs a critical function as an intermediary between management and athletes by handling contract negotiations, endorsements, financial planning, and other associated activities. This chapter provides a history of athlete representation beginning in the 1920s with the efforts of Christy Walsh and Charles C. Pyle through the increased role of players associations during the final third of last century. In the 1980s, professional associations and state legislatures launched efforts to regulate agent behavior as a reaction to evidence of abuse. In the 2000s, these problems prompted the National Conference of Commissioners on Uniform State Laws to introduce the Uniform Athlete Agents Act, a legislative initiative ultimately adopted by over 80% of states, and the U.S. Congress passed the Sports Agent Responsibility Trust Act. Both initiatives addressed the tension between the NCAA’s amateurism standards and efforts by agents to attract clients before the completion of their eligibility.
This chapter examines how civil liability assessments and criminal convictions have affected the legality of blood sports. Blood sports can be divided into three categories: human versus human contests, human versus animal sports, and animal versus animal fighting. For over a century, blood sports have been under both social and legal attack, resulting in significant changes in most of the historic forms of combat worldwide. The chapter begins with an overview of the most popular violent sports today, including contact sports such as American football and ice hockey. It then considers criminal prosecutions and civil lawsuits that arise from contact sports, including the “concussion suits” filed on behalf of athletes who suffered head injuries. It also discusses the doctrine of assumption of risk in sports and concludes with an analysis of how legislative intervention can obviate private tort liability for latent, chronic injuries to the brain of players.
Nicholas M. Ohanesian
This chapter addresses collective bargaining and workforce protections available in professional sports. Broadly speaking, collective bargaining in the United States is a workplace arrangement where employees opt to negotiate as a group with their employer through a labor union. The two parties typically negotiate an agreement, commonly called a collective bargaining agreement, that codifies for the length of the contract the rights and responsibilities of each side. Conversely, the term “workforce protections” injects the government into the employer-employee relationship. Federal and state authorities pass laws that regulate the relationship between employers and employees in the workplace. As this chapter explains, these dynamics play out in both traditional and unique ways in U.S. professional sports.
Collective Bargaining in Professional Sports: The Duel Between Players and Owners and Labor Law and Antitrust Law
This chapter examines the complex collective bargaining process in professional sports leagues. The labor negotiations between players and owners present unique conflicts between labor and antitrust law. The resolution of these conflicts will have a significant impact on the future of collective bargaining between players and owners. This chapter provides a brief overview of the relevant principles of labor law, briefly traces the history of collective bargaining in professional sports, identifies and analyzes the conflict between labor and antitrust law, examines the recent conflicts in the NBA and NFL labor negotiations, and looks forward to future negotiations between players and owners.
Richard T. Karcher
This article examines the power of professional sports league commissioners to discipline and suspend players for misconduct both on and off the field. It first provides a historical background on disciplinary measures for players in different professional sports leagues, including the National Football League, over the past century. It then considers the source of the commissioner’s power and authority to discipline professional athletes for misconduct as well as the rationale behind it, focusing on the adoption of personal conduct policies at the league level. It also discusses the commissioner’s authority and power to act in the “best interests” of the sport. Finally, it analyzes the limitations on the commissioner’s power and authority, including the collective bargaining agreements and some arbitration and court rulings that involved suspensions of players by league commissioners.
Matthew W. Finkin
This article proceeds in four stages. First, it takes up the emergence of labour law and its comparative offspring as a discipline. Second, it provides a crude taxonomy of comparative labour law scholarship. Third, it treats the role comparativism has played in the development of national labour policy from the nineteenth century to the present. Fourth, and to come full circle, it situates the comparative study with respect to the contemporary quandary of labour law as a discipline. Comparative labour law was born fast upon the construction of labour law as a subject of instruction and academic study. Even from the beginning, however, it was far from clear what labour law was. Today, that question has recrudesced: labour law is a discipline in search of an identity and, to some, a future. Consequently, attention rightly turns first to the root of which comparative study is a branch.
This chapter examines restrictions that professional sports leagues and governing bodies place on the freedom of movement of professional players—both negotiated and imposed—and how these restrictions fit within the antitrust/competition and labor law regimes. This chapter engages in a comparison of the North American and European “models” of restrictions and finds that the North American “model” is more likely to withstand antitrust/competition law scrutiny. The North American model falls under the protections offered to collectively bargained agreements, while the European model currently faces scrutiny for potential violations of European competition law. Nevertheless, this chapter suggests that these two models are likely to converge as the internationalization of sport continues. European governing bodies may be pushed to negotiate with players more in the future, while North American leagues are already adopting “European” practices in regard to facilitating player movement among other professional leagues.
Conceptualizing Artists’ Rights: Circulations of the Siegelaub-Projansky Agreement through Art and Law
Lauren van Haaften-Schick
The Artist’s Reserved Rights Transfer and Sale Agreement (Siegelaub-Projansky Agreement) of 1971 and the certificates of early Conceptual art have been considered contradictory for enabling so-called “dematerialized” artworks to be exchanged as any other commodifiable work, thus negating Conceptual artists’ claims of challenging market and institutional conventions. However, an expanded lens on the life of the Siegelaub-Projansky Agreement in law yields another legacy for these endeavors, where the Agreement is instead evidenced as influencing artists’ rights laws in the United States, and where its rhetoric of collectivity can be viewed as a radical appropriation of private law in an effort to establish more equitable art industry norms. This reclaimed narrative of political influence emerges only when we recognize the capacity of these artistic documents as legal instruments, and consider how they have circulated through and challenged the limits of both fields they are cross-classified between: art and law.
Zoe Adams and Simon Deakin
Rent-sharing between employees and shareholders is a necessity if the societal value of the firm is to be maximized. This is reflected in laws across the world which, in different ways, underpin job security and worker voice. Where employees have no role in firm-level governance and are weakly protected by regulation, contractual arrangements intended to align investor and worker interests often fail. A growing body of empirical evidence, drawing in part on leximetric data, points to the beneficial economic effects of employment protection and codetermination laws for innovation and productivity. These laws also promote equality, in contrast to laws mandating additional protections for shareholders to those provided by basic corporate law, which are distributionally regressive as well as being of questionable value for efficiency.
Daily Fantasy Sports and PASPA: How to Assess Whether the State Regulation of Daily Fantasy Sports Contests Violates Federal Law
Daniel L. Wallach
Recent state legislation regulating fantasy sports contests may present a different type of threat to the nascent fantasy sports industry—the possibility that the U.S. Attorney General (or others) could invoke PASPA to enjoin the state law. This is the same law that prohibits states from legalizing traditional, single-game sports betting. Although PASPA has not yet surfaced as an obstacle to state legalization of DFS, it may emerge as an important issue as additional state legislative measures are introduced, particularly with a new U.S. Attorney General potentially taking a harder look at Internet gambling generally. Further, as more and more states begin passing laws legalizing daily fantasy sports contests, many have begun to question why some forms of sports gambling are allowed but not others. This chapter examines how PASPA could apply to state-sanctioned fantasy sports and provides an analytical framework for assessing the viability of such legislation under PASPA.
This chapter discusses the effects of recreational drugs, specifically marijuana, and performance-enhancing drugs in professional sports. To that end, this chapter highlights how these types of drugs have impacted society, athletes, team owners, and sport leagues. In addition, it provides a robust discussion about the historical, political, and legal impact of drug usage in sports and how these issues influence player rights, obligations, and duties. Finally, this chapter provides insight into the possible future authorization of marijuana based on its medicinal benefits and how the legalization of marijuana would be poised to reshape the legal relationship between players, teams and leagues.
Glenn M. Wong and Christopher R. Deubert
This chapter examines the rules governing when individuals are eligible to play in professional sports leagues and organizations. The different nature of the sports leads to important differences in the eligibility rules, including their legal status. Additionally, as the governing body of collegiate sports, the NCAA plays an important role in the practical consequences of the leagues’ eligibility rules. The leagues have a variety of justifications for their eligibility rules. While these justifications are often valid, they seem to rely on minimal, if any, data. As a result, there are constant concerns about whether the eligibility rules are sufficiently reasonable and fair considering the limited window in which many athletes have a chance to play professionally.
This article examines the complexities of employer-sponsored health insurance in the United States, along with its history and future prospects. It begins with an overview of the economic and legal factors that account for employers’ dominant position in the private health insurance market. It then considers a number of public policy problems that arise when insurance premiums are sheltered from income tax, such as the bias toward “first-dollar” coverage, which in turn causes higher medical spending. Finally, the article discusses future prospects for employment-based coverage, with emphasis on the provisions of the Patient Protection and Affordable Care Act (ACA) and its mandated benefits, but also considering insurance exchanges and defined contributions, health reimbursement and savings accounts, preemption and self-insurance under the Employee Retirement Income Security Act (ERISA), and managed care liability.
This chapter explores the relationship between the EU and national systems of labour law. It explains the compromise reached in the Treaty of Rome and how it has begun to unravel. Both EU internal market law and the process of first creating and now governing the Eurozone in a time of crisis have had significant negative effects on the ability of the Member States to preserve and develop national systems of labour law. What has been lost at the national level has not been replaced at the European level, despite the gradual increase in the EU’s competence in the social field. While the new constitutional structure agreed at the Treaty of Lisbon offers some comfort, particularly as regards the relationship between economic freedoms and fundamental rights, it is important that all actors involved in the making of EU law find a better way to reconcile ‘the economic’ and ‘the social’.
Jimmy Golen and Warren K. Zola
The role of the professional sports commissioner evolved from the early functionaries who were empowered to settle disputes between teams into nearly omnipotent sports czars. In the wake of the 1919 Black Sox scandal, baseball team owners gave their first commissioner, Kenesaw Mountain Landis, virtually unlimited authority to act in the “best interests.” Owners in different sports have tinkered around the edges of this broad portfolio over the years, but it is only since players unions were able to negotiate protections for their members that commissioners have been forced to accept a substantial check on their powers. Recent cases of commissioner overreach could set the stage for confrontations in future collective bargaining negotiations.
Employees are agents of their employers, and in some cases, are in a position to undermine the interests of their employers in ways that the employers cannot fully anticipate or contractually protect themselves against. While most jurisdictions historically treated all employees as fiduciaries of their employers, by now only a minority of jurisdictions regards all employees as fiduciaries. Most states treat only high-level employees of “trust and confidence” as fiduciaries, while other employees owe a lesser duty of loyalty. Some scholars have made arguments in support of recognizing employers as fiduciaries to employees, but as yet, employers owe neither fiduciary duties nor any lesser duty of loyalty to employees. Only employer-related entities such as pension funds and employee stock option programs owe fiduciary duties to employees under the Employee Retirement Income Security Act (ERISA). The doctrinal status and conceptual basis for the fiduciary duties of employees are discussed in Section I. Section II addresses fiduciary duties under ERISA. Section III touches on potential fiduciary duties of employers.
This contribution provides a critical analysis of the free movement of workers in the European Union. It starts by recalling the legal framework, describing the main rights guaranteed to migrant EU workers by the Treaty and secondary legislation, as interpreted by the European Court of Justice. It then focuses on some problematic areas of the law: the notion of ‘genuine activity’, which is both nebulous and random in its application; and the notion of ‘remuneration’ which, at present, risks excluding atypical employment contracts from the protection of the Treaty (such as zero hours contracts and unpaid internships) as well as work provided in the domestic context, even though those activities have an economic value for the recipient. The chapter then turns to a brief analysis of the derogations imposed on workers from acceding countries, to conclude that the free movement of workers risks being undermined by protectionist rhetoric.
Social media has ushered in seismic shifts to communication structures in society and these effects extend to the world of sport, where athletes and sports figures routinely divulge content on social media platforms. This chapter discusses athletes’ and other sports figures’ social media use to express their identity, which includes showcasing more of their personality, expressing dissent, and providing commentary on political and social issues. The chapter discusses legal implications for sport organization administrators as they seek to balance organizational reputation with First Amendment rights. The chapter also addresses related issues that can manifest in the online sphere, such as private commentary becoming public, threats made to athletes, and social media use by organization employees that can negatively impact athletes and harm the organization.
This chapter discusses the leading issues involving individuals with disabilities who participate, or seek to participate, in U.S. sports. This analysis highlights the most important issues in the interscholastic, intercollegiate, professional, and Olympic sports contexts. This chapter asserts that while current legal doctrine focuses on prohibiting discrimination and accommodating “qualified” persons with disabilities within existing sports programs, more should be done to expand adaptive sports programming. In this way, law can be used to help expand our current understandings of who is an “athlete” and what is a “sport,” so that in the future, more individuals with disabilities can enjoy the benefits of athletic competition.
Michael A. McCann
It has often been said that there is no such thing as sports law. The time has come to rethink that position. In recent years, an impressive canon of sports law scholarship and accompanying principles has come to light. The Oxford Handbook of American Sports Law navigates this canon and the sports controversies that enliven it. Perhaps the most instructive of these controversies is Deflategate, which centers on eleven slightly underinflated footballs and their unexpectedly riveting fallout. As a legal controversy, Deflategate is sports law in action. This chapter explores Deflategate and the key principles of sports law that it orbits.