1. The NCAA

1. Organization

1. Agreement signed by an athlete to play collegiate sports at a university in exchange for free room, board, and tuition.
2. Binds athlete, once signed, to attend to school for 1 yr. and play sports, and also from changing his/her mind and going to another school
3. Failure to attend the school after signing can result in a 2-yr. ban from playing anywhere, unless school releases him from the LOI.
4. Issue = What if athlete changes his/her mind? What if coach who signed him leaves? What if the offense/defense changes? A: Can’t get out once signed; HOWEVER, a Qualified Release Agreement can be used to get out of a letter of intent – Petition the National Letter of Intent Steering Committee
5. Fortay v. Univ. of Miami (1994) - P was a high school QB who signed w/UM, who claims that he was promised the starting QB job. He viewed his college opportunity as a stepping stone to NFL. He signed a LOI after meeting w/coaches. However, when Coach Johnson left, Fortay tried to get released from his LOI, but after meeting w/new coach, he decided to stay after he was told he would not be released from his LOI, and after being promised 2 yrs. as the starting QB. Ultimately the school and coaching staff reneged on their promise and pass Fortay over for the job. He then transferred to Rutgers, losing a year of eligibility. He eventually got into trouble w/financial aid, and sued the school on a 25 count complaint in search of actual, compensatory and punitive damages for the broken promises of stardom at UM and in the NFL, and the injury, humiliation and embarrassment for the Pell Grant scandal. Case was dismissed on choice of forum motion (he sued in NJ).
6. Taylor v. Wake Forest Univ. (1972) - P got a football scholarship to play, but his grades were bad. He eventually quit the team to improve his grades. Shortly thereafter, his scholarship was terminated. He sued for the remainder of his fees and tuition.

1. Ct. said that he lost his scholarship by his own acts ® the LOI has obligations on both parties, and if either party fails, then the K is breached.
2. Ways that a party can lose or have the scholarship reduced (NCAA Rules)

1. Jackson v. Drake Univ. (1991) - P was recruited to play basketball, but he says that he wasn’t treated well (practices conflicted with his tutor and study time, staff prepared papers for him which they expected him to turn in for credit, recommended that he take easy courses to maintain his eligibility, etc.). He sued them on 6 counts:

1. Breach of K – failing to provide indpt. and adequate counseling and tutors as promised, but implicitly allow him to play basketball. Ct. disagreed. There is no right to play w/in the text of the financial aid K.
2. Negligence – claims school undertook a duty to provide an atmosphere conducive to academic achievement. Ct. said there is no COA for educational malpractice.
3. Negligent Misrepresentation & Fraud - P failed to allege that D, in the scope of its business, profession, or employment, supplied false info. for the guidance of others in their business transaction, that the info. was relied upon by P, and that D failed to exercise reasonable care or competence in communication the info. Ct. disagreed, and says policy prevents suing for educational malpractice. Hard to prove fraud because fraud requires a showing of intent and proof by clear and convincing evidence
4. Negligent Hiring - P argues that school had a duty to P to hire a coach that would follow school and NCAA rules and regulations. Ct. found that coach had no reputation for underhandedness, impropriety, or player abuse.
5. 42 U.S.C. §1981 – violation of civil rights on part of coach, by preventing the enforcement of a K by reason of his race. Ct. said this doesn’t apply to conduct that occurs after the formation of a K and which doesn’t impair his ability to enforce the established K conditions.

1. Ross v. Creighton Univ. - P claims that he was promised tutors while playing basketball, which he never received. He graduated w/a very low reading comprehension. He sued on Negligence (educational malpractice and negligent admission). Ct. threw all the negligent claims out for lack of a COA. Educational malprax is generally not recognized as a c/a because it is so subjective on the side of both parties

1. Does Prop. 16 have a disparate impact? The application has indeed had a disproportionate impact on black athletes. Shown through the use of statistics that more blacks were casualties under Prop. 16 than other races).
2. Ct. found that P made out a prima facie case of disparate impact.
3. Is Prop. 16 justified by legitimate goals of NCAA? If so, this reason can be used to serve legitimate educational goals. Once this burden is proved, the burden shifts back to P).
4. Court felt that the grade requirement was a legitimate educational goal, but worried about the means of application.
5. Even if it was a valid goal and means of implication, P could still overcome this by offering equally effective alternative practices (e.g., diff. sliding scale).
6. Shouldn’t there be some grade requirements for getting into college?

1. Are Student Athletes (SA) eligible to receive workers’ comp.? Every state has these statutes, which reflect a bargain struck between workers and employees ® injured employee gives up rights to pursue C/L tort claims in exchange for a certain, if limited, recovery.
2. Generally, makes employer S/L for all injuries occurring during the scope of the employment.
3. Threshold Inquiry = does employee fit w/in the state’s defn. of an employee?
4. Each state has its own test for this inquiry when the worker-employer relationship is not clear. 2 basic categories of these tests:

1. Rodgers v. Georgia Tech – coach was fired, but wanted the value of his fringe benefits and prerequisites under his employment K (prerequisites = incidental benefits to an office beyond the salary). Those items that were voluntarily contributed aren’t computable as gifts. If items were included in K as benefits, then their value is computable. SJ for D was dismissed.
2. Monson v. Oregon – Coach at Univ. of Oregon. K was renewed several times, but the team sucked for several years. He was offered to be coach of the golf team, but he thought this would be professional suicide. Offered another position as a compliance officer, but rejected this too. School then fired him as coach, and paid him damages. He says that it was wrong to lose his job b/c he wasn’t transferred for staff needs as school said ® there was already a golf coach. If there was a "need", then there may be a case. P got $290K at trial. Appellate ct. reversed, saying D should have gotten DV.

1. Wallace v. Texas Tech – HC signed P (black man) as asst. coach, even though had no experience. Dickey told him not to get too close w/players, but he did anyway. When his K ended, P was not retained. He sued saying he was victim of race bias and violation of his 1^st amend. right to speech by keeping him from speaking to players. Four parts to his claim:

• Refusal to renew K - D said his work unacceptable. Coach produced affidavit to that effect. No recorded ev. of race bias.
• Disparate pay – D said he had no experience.
• Disparate discipline – said coach treated him diff. No ev. of this.
• Hostile work environment – there was no ev. of HC making racial slurs.

D got SJ on all counts. P had no evidence, so his claim was dismissed. No evidence that the speech seeking protection was a matter of public concern. P also made a "freedom of association" argument, which was denied b/c only two types of association are protected (choice to enter into and maintain certain intimate human contacts, and associating for 1^st amend. purposes). There is no protected "social association" right.

• 3 Elements to Due Process Violation Case (P must show to get past 12(b)(6) motion)

• S.Ct. said if a P can show NCAA was calling the shots for a state org. as Tark claims, then it will be deemed a state actor. Court said it would be more appropriate to conclude that UNLV conducted its athletic program under the color of the policies adopted by the NCAA, rather than that those policies were developed and enforced under color of Nevada law.
• Ct. didn’t rule that NCAA can never be a state actor ® get enough evidence as Tark did, then it will be.

1. Indiana HS Assoc. v. Avant - P was a HS basketball player at a private school. He transferred to a public school w/o moving his home. IHSA had a policy that you had to sit out a yr. if you change schools w/o changing residence, unless the student qualifies under a listed exception (want to protect against HS recruitment). Hearing held: P’s hardship exception was denied. Issue = Did the trial ct. have authority to review the ruling of the IHSA? Yes.

• IHSA must have substantial evidence to support the reason for the rule.
• P was having problems w/his coach, rather than an alleged financial or hardship reason as claimed (there wasn’t one).
• Was this a state action on part of IHSA? Yes; if IHSA’s members are all state org.’s, then their decision is a state action. State actions are rarely challenged successfully.
• State action can almost always be shown in HS cases, but NCAA cases are more difficult (cts. think of it as a private org.).
• To show a state action, there must be a nexus between the wrongdoer and the state. Private Org.’s (such as NCAA) can’t be held to violate whatever civil right action is brought.

• Ct. said that K/scholarship agreement only gave them the right to scholarship $, w/no right to play. Liberty interest was same.
• Free speech violation claim survived SJ motion by D.

1. Tiffany v. Ariz. Interscholastic Assoc., Inc. – player was a 19 yr. old HS senior (he was held back a year b/c of a learning disability in 1^st grade). AIA is a voluntary org. of all public and most private HS’s in Ariz. Under AIA bylaws, if a student turns 19 before 9/1 of the school yr., he is not able to participate in interscholastic athletics. There was a special hardship appeals process, and he requested a hearing. Board denied his hardship appeal, so he sued on §1983, saying AIA deprived a person of color rights and privileges. Tr. Ct. said that D unreasonably treated P, and they gave him permission to participate. On appeal, ct. said that there is no prop. interest protection in the U.S. Constitution, but that the AIA did act capriciously ® they had never heard cases before, and failed to exercise discretion in considering his request for a waiver.
2. Manico v. South Colonie Central Sch. Dist.(1992)- Wrestler-student stole muffins form school cafeteria and was initially suspended from all school activities for two days. Athlete Director further suspends him from any wrestling. Ct. said 2 day suspension OK but further athletic suspension was not b/c school was w/o jurisdiction respecting the mode of the penalty and so the additional suspension was arbitrary and capricious and must be annulled. Thus, it violated his DUE PROCESS!
3. Marshall v. Alabama HS Athl. Assoc.(1998)- Dad of student punches referee. School pays fines and Dad can’t go to anymore games. Ct. said it was NOT "arbitrary and capricious" and, thus, did not violate due process. Assoc. had imposed similar penalties in similar situations and these decisions were published. NOT arbitrary where there is a reasonable justification OR adequate principles or fixed standards.

NOTE: Did not help that Dad said it was ok and he would do it again.

4. Bunger v. Iowa HS Athl. Assoc.(1972)- High school football player riding in a car with knowledge that there was beer in the car. Student was found to be in violation of the good conduct rule adopted by the association. School officials declared him ineligible for 6 weeks @ the beginning of f-ball season. Student brought suit to enjoin the enforcement of the rule. Rule was held to be invalid for 2 reasons: (1) school does not have the authority (2) the rule is too broad.
5. Bradstreet v. Sobol(1995) – homeschooling case. Equal protection arguments. Homeschoolers wanted to play b/c they paid property taxes. School’s argument was that student athletes are role models – if not enrolled in the school, then no effect as a role model. A student’s expectation to participate in interscholastic sports is NOT a property right. Court also held that a violation of due process occurs only if deprived of a liberty.
6. McNatt v. Frazier Sch. Dist.(1995)- Male student who was being homeschooled wanted to play on junior high basketball team. His sister attended public school in the district. School board denied male student the permission to play on the pubic school team. School belonged to a voluntary association that allowed each school board discretion on whether or not homechoolers could participate in public school athletics events. U.S. Dist. Court ruled there is no due process violation if there is a rational basis for the school board’s rule
7. Stocks – student suspended from basketball team for his non-visible tattoo. Student claimed rights under the 1^st amendment and 14^th amendment due process rights). Appearance guidelines are at issue here. States vary in following the guidelines - conservative states tend to uphold these guidelines. This rule can be enforced in an amateur sports association.
8. Bell – Student got married à there was a marriage rule implemented to discourage high school students from getting married. Student gave an Equal Protection argument – can’t discriminate upon marital status
9. Hall v.Univ. of Minnesota – student claimed to have a property right. It is possible for you to have a property interest, but you must prove it. A property right in playing basketball can be found – player could have been a draft pick. He had a property right, although remote, in playing basketball. Court found that he was denied due process.

1. Hackbart v. Cincinnati Bengals (Hackbart I) – Pro football player was injured in game when opposing player struck him in the head w/his forearm in violation of the rules. No penalty was called. P made no report to his team during the game, but he experienced continuing pain. Eventually he was forced to retire b/c he could no longer perform. Eventually he sought medical assistance, when it was discovered that his neck was seriously injured. He eventually sued both the team and the player.

• Ct. said that D’s action was part of the consequences and risks of the game, and that he can’t recover b/c such rules are often broken (reason there are penalties in the game).
• Hackbart II - P was able to go before jury to determine reckless act by other player. Requires a showing of gross misconduct (recklessness) to get to trial.

1. Bourque v. Duplechin – Bourque (P) sued on negligence theory after he was injured in an amateur softball game. While turning a double play, D ran full-speed into P several feet outside the basepath towards home plate. Expert testimony at trial stated that softball was a noncontact sport, and that such behavior was not part of the game.

• Ct. said that P didn’t assume the risk of such an injury by participating in a softball match. Different than professional sports.

• In this case the D liable because he was reckless NOT because he was negligent.

1. Nabozny v. Barnhill – Nabozny (P) was injured in a HS soccer match. While P was goalie, he grabbed the ball in his arms, clutching the ball to his chest in the penalty box, where contact w/the goalie is against the rules. D kicked him in the head, in violation of the rules, and witnesses all said D had time to avoid the contact. As a result, P suffered permanent damage to his skull and brain. Tr. ct. gave DV for D - said that D had no duty to protect P from harm.

• App. Ct. reversed – a reckless disregard for the safety of other players cannot be excused.
• To engage in such conduct is to create an intolerable and unreasonable risk of serious injury to other participants ® D clearly had a duty towards P - P was clearly entitled to legal protection at the hands of D.
• A player is liable for injury in a tort action if his conduct is such that it is either deliberate, willful or w/a reckless disregard for the safety of other players so as to cause injury to that player, the same being a question of fact for a jury.
• Courts don’t want to curb athletic activities among people, but also want to have those who suffer injuries to have a forum for redressing such harm.

1. Gauvin v. Clark – Gauvin (P) was a college hockey player and so was D. After a "face off", D rammed the butt end of his stick into P’s abdomen. P was hospitalized, spleen was removed, etc. Jury rendered a special verdict: D had butt-ended P, violating a safety rule, thus causing P’s injuries. By playing hockey, P didn’t consent to the act that caused his injury. Jury concluded, however, that D had not acted wantonly, willfully, or recklessly in causing P’s injury. P was awarded $30,000, but based on the jury’s decision, judge entered judgement for D.

• P appealed – since jury found D violated a safety rule, and D’s act caused P’s injury, judgment should have been for him, despite the fact that jury found that he didn’t act recklessly.
• Ct. disagreed – The problem of imposing a duty of care upon participants in sports setting is that players agree in most sports to undergo some contact which could arise to the level of assault w/o the player’s consent.
• Cts. are wary about imposing wide tort liability on sports participants, lest they chill the vigor of athletic competition.
• Maj. Rule – PI cases arising out of an athletic activity must be predicated on reckless disregard of safety.

1. Tomjanovich v. California Sports, Inc. – Rudy was busted in the face by Kermit Washington during the course of a pro ball game. Rudy approached an altercation between his teammate and Washington, when Kermit mashed his face in, causing a fractured skull, nose and jaw, spinal fluid leakage, a concussion, facial lacerations, etc. Rudy brought several COA’s against the Lakers: (1) Kermit’s attack was tortious and that the Lakers were vicariously liable for his; (2) Kermit was negligent, reckless, and guilty of intentional wrongdoing – no matter how his acts were characterized, Lakers were vicariously liable under Respondeat Superior; (3) Lakers were negligent in their supervision of Kermit – they failed to control, train, and discipline him. D’s asserted a general denial, and also claimed that as far as the negligence COA, that Rudy assumed the risk and was contributorily negligent. The further alleged that the recklessness COA was barred b/c of P’s reckless indifference for his own welfare, and that the intentional COA was defeated by privileges of consent and self-defense. Ct. awarded Rudy $3,200,000, of which $1.5M was punitive. Case was settled for $2.13M before the appeal went to court.
2. Arnold v. Schmesier(1970)- Fireman’s Chair case - P was a 9-yr-old. D’s in the case were older kids who made a "fireman’s chair" (linking your arms together to throw people into the air and then catch them). P said that the older kids made him get onto their arms. When they threw him up, they made no attempt to catch him, and he fell to the ground, injuring himself.

• Did P assume the risk by participating? Ct. said no. P assumed the risk of them dropping him, but not the risk of them not attempting to catch him.
• Shows the limit of A/R to not include intentional acts.

1. Gill v. Chicago Park Dist.(1980)-spectator attacked at game and pushed over railing so he sues. Ct. says club has no duty b/c there was nothing to put them on notice. Stadium has a duty to make sure that fans don’t get too unruly. NOTE: if you get assaulted on the premises or in the larking lot of Reliant Stadium, you probably won’t win – it all deals with foreseeability
2. Yates v. Chicago Nat’l League Ballclub(1992)- Exception to the rule. Boy sues after getting hit by foul ball and wins. Ct. of Appeals affirms. RULE: A club must provide screen for most dangerous part of ballpark AND for those individuals who request it, stadium must provide a screen for protection. Ct affirmed the verdict in favor of the plaintiff. Plaintiffs usually lose these cases b/c of assumption of risk on the back of tickets.
3. Lemoine v. Sprinfield Hockey Assoc.(1940)- Plaintiff, who frequented hockey games, struck by puck while going to restroom, sues and wins at trial. RULE: Must exercise reasonable care or give warning to invitees, BUT, no warning required when it is obvious. Won b/c case was in the 1940’s – now it comes down to assumption of risk and adequate screening.
4. Westborough C.C. v. Palmer - P was a passenger in a car. She sued the golf course for injuries she sustained while on the way to the club’s swimming pool, on ground that the club was negligent in maintaining road access across a fairway at a point about 60 yards from the teebox, so that golfers were required to drive their shots across the road. There was also a large tree next to the road, which required the golfers to aim their shots low, which put golfers in greater danger. She sued both the country club and the individual golfer and won.

• Did P assume the risk by walking there? She was an invitee in the club’s eyes. She was not on a public road (those people can’t recover when struck by a golf ball). She was on their road, with their screwed up course design.
• Ct. did find that the golfer did yell "fore" when the shot came at the passenger. If you don’t yell, then you may be held liable for breach of the duty to warn.

• Ct. inferred negligence from the acts of the course operators in not having a warning.
• Usual rule – if you can’t prove the cause of an action w/a reasonable degree of certainty, then you can’t recover. Ct. said this isn’t the case here ® we can reasonably infer direct cause of negligence from the facts given.

1. Barnhart v. Jackson(1995)- Ice fishing case. Plaintiff sues fishing buddies when he is hurt. Tr ct granted sum j for both Δs. COA affirmed.
2. Mathews v. Ingham(1977)-steer roping case. Man hurt when 2 horses collided during steer roping. Ct. said this was not an uncommon occurrence and plaintiff assumed the risk. Ruled for defendant.
3. Gil-De-Rebello v. Miami Heat(1992)-Fan injured as a result of being pulled on the floor by the mascot to entertain; sued mascot and team. Plaintiff won against mascot but lost against team b/c no respondeat superior. Mascot shouldn’t randomly pull people out of stands b/c never know what you will get.
4. Biskup v. Hoffman(1926)-Boy sues after getting hit in eye with ball b/c golfer didn’t yell "fore" in time. Boy wins b/c there is a duty to warn and warning after ball is hit is insufficient. The theory is that you have duty to protect others from your guest that you bring to the club who is a bad golfer.
5. Dilger v. Moyles(1997)-applies assumption of risk to golf and says "fore" isn’t a duty but just etiquette.

1. Nissen Trampoline Co. v. Terre Haute First Nat. Bank - D made the "Aqua Diver" – a small circular trampoline to be used recreationally as a diving board. A 13-yr. old kid was injured while using the product (got caught in between the springs and had to have his leg amputated). Bank (as guardian of his estate) sued D on S/L COA, saying that the product was defectively designed (need experts to testify to this).

• Tr. Ct. gave verdict to P, which judge overturned b/c great weight of evidence went against P. judge ordered a new trial, which D appealed.
• App. Ct. – Failure to warn about a known defect or potential danger renders a manufacturer strictly liable for injuries sustained while using the product.
• General Rule – the duty to warn arises where a supplier knows or should have known of the danger involved in the use of the product, or where it is unreasonably dangerous to place the product in the hands of a user w/o a suitable warning.
• However, where the danger or potentiality of danger is known or should have been known to the user, the duty to warn is not attached.

1. Benitez v. NY Board of Education - P was a HS football player who brought a PI action against the NY Board of Ed. and the football league. P asserted a negligence claim against both the principal of the school and the coach for allowing the players to participate in a match when they were fatigued. Season before P was injured, the principal attempted to move the school to a lower classification b/c the team sucked and didn’t have enough good players. Principal said this league was unsafe for his students. When the season began, P was the only good player. He didn’t want to come out of the game, but he was apparently tired, and got himself mauled one play. He never asked to come out. Trial ct. found P 30% liable, and coach 70% liable.

1. Benjamin v. State - P was an infant spectator at a state university hockey match. He was struck in the face by a puck and suffered injuries (depressed skull fracture to the orbital bone). He sued the state and the university, b/c there was a gap in the protective glass shield that a puck could (and did) get through and injure spectators. He claimed that the state and univ. failed to provide adequate protection. Tr. ct. gave P $24K in damages, and D appealed, saying this was too much.

1. The American Medical Association (AMA) provides rules recommending that students with particular types of disabilities be disqualified from participation in certain recreational activities.
2. When a student challenges a disqualification, courts will usually defer to the judgment of the school and uphold the disqualification unless the school’s actions are arbitrary or capricious.
3. Athletes who have been effectively excluded from sports participation b/c of a medical impairment or disability (e.g., AIDS, Casey Martin) have invoked the stringent anti-discrimination standards of federal disability laws in asserting rights to participate and to reasonable modifications of eligibility standards in sports programs at the interscholastic, collegiate, and professional levels.
4. Federal disability legislation, primarily through the Rehabilitation Act of 1973, which applies to federally funded programs, and the Americans w/Disabilities Act of 1990, whose broader coverage reaches most private employers and entities constituting places of public accommodations, prohibit discrimination on the basis of disability. The rules also further obligate these entities to provide reasonable accommodations, modifications, or auxiliary aids that will enable qualified individuals w/disabilities to access and participate in the program or activity.
5. see the Nutshell, pg 233 for info on ADA
6. Maddox v. Univ. of Tenn.(1995)- P was a former assistant coach who sued the school under ADA. TN’s motion for sum j was granted b/c school did not terminate the coach based on his disability. Coach was arrested for driving while intoxicated. School used this arrest as the reason for his termination. School said the coach was no longer qualified in their minds for the responsibilities associated with being an assistant coach. On coach’s application it asked for disabilities that would limit his ability to perform his position. Coach lied on application. His "disability" was alcoholism and he did not indicate that he had been arrested for dwi and intoxication. Coach claimed that this disability was the reason he was driving while intoxicated – therefore he could not be terminated for dwi. He alleged the termination was discriminatory.

1. Knapp v. Northwestern Univ. - P played hoops for school. As a HS senior, he had heart problems. He was offered a scholarship, but was eventually not allowed to play. P sued, saying it was up to him to decide whether or not to assume the risk. Also claims that the school’s decision violated his statutory rights to maximize "education" under the Rehabilitation Act (can’t be subjugated to discrimination by any group receiving federal funds). He claimed his education was limited by not being allowed to play ball. Ct held that Knapp as a matter of law is not disabled within the meaning of the Rehab Act

1. Prove that P has a handicap
2. Prove that P is otherwise capable to participate (this is usually the main issue that is litigated)
3. Prove that P was subjected to discrimination b/c of the disability
4. Prove that D receives federal funds.

• Ct. held that P’s were not being discriminated against b/c of their learning disability, but b/c of their age.
• Ct. dismissed the injunction – didn’t think they could prevail on the merits of the claim, and they couldn’t prove irreparable harm.

1. Johnson v. Florida H Activities Assoc. - P was a 19-yr. old senior who was not enrolled in kindergarten until a year later than normal b/c he had contracted meningitis as a child, and lost all hearing in one ear and substantially all of his hearing in the other. He was eventually held back in first grade too b/c of his disability. By his senior yr., he was 19, but wanted to play sports since he had been playing fine since he was in 9^th grade. he was denied b/c of the rule that all schools have against players that old participating. He sued under the Rehabilitation Act and the ADA. Trial ct. granted the injunction, and this was appealed.

• RULE: If you make a reasonable accommodation to make a person w/a disability able to play, it can’t change the nature of the game.
• This is a fact-specific test, and is very tough to get a waiver.
• P will be required to prove his likelihood of success at trial, and the irreparable harm he will suffer if he is to get the injunction.
• The most impt. factor in deciding whether or not a P is likely to succeed on the merits is the "otherwise qualified" requirement as supplemented by the reasonable accommodation requirement.

1. Martin v. PGA Tour – Does the ADA apply to athletic events or sports organizations? P was a pro golfer who has a congenital deformity that severely atrophied his leg, which puts him at great risk of fracturing his leg simply be walking. He can no longer walk the golf course to play. D didn’t deny that P has a disability w/in the meaning of the ADA, or that this disability prevents him from walking. D responded w/2 statements: (1) The ADA doesn’t apply to professional golf tournaments; and (2) The PGA asserts that the walking requirement is a substantive rule of its competition, and that waiver of the rule results in a fundamental alteration of its competitions, which the ADA doesn’t require.

• Ct. dismissed the first argument – pro sports are not exempt from ADA restrictions as a "private club," b/c tournaments are held in public places that are included w/in the definition of places of public accommodation.
• D’s 2^nd arg. was more difficult – the ADA doesn’t require a covered entity to work a fundamental alteration of the nature of its business in order to accommodate the disabled if it would result in undue hardship to entity.
• Ct. looked to prior precedent: The "8 Semester Rule" which prevented players w/learning disabilities and who took longer to graduate HS couldn’t participate in athletics after the student athlete’s 8^th semester. Ct. determined that the rule was necessary to keep a level playing field, and that a waiver would create hardship by requiring a case-by-case examination.
• PGA said that the hardship to the tour in allowing P to ride in a cart would "unlevel" the playing field, b/c he wouldn’t be subjected to the fatigue factor. PGA said walking was essential to the nature of the sport. PGA saying that it alone has the authority to modify its rules, and that any alteration fundamentally alters the nature of the game.
• Ct. said that the ADA doesn’t distinguish between sports organizations and other entities when it comes to applying the ADA to a specific situation.
• P has the burden of proving that he has a disability, and the burden of proving that a modification was requested, and that modification is reasonable. PGA already allows cart use in limited situations.

1. The rule passed by the league or sport is so unreasonable that there’s no benefit to competition.
2. Courts will strike these down w/o examining .
3. Usually such examination is reserved for competition between 2 companies.
4. This is why it’s hard to apply to pro sports – teams aren’t really in competition w/one another ® rules are set out the common good for the entire league, b/c all teams have a stake in the league.

1. Adidas America, Inc. v. NCAA – Adidas sued NCAA alleging violation of §§1&2 of the Sherman Act (most suits come under §1 – Unreasonable Restraint upon Trade; §2 – requires P prove that D participated in agreement that unreasonably restrained trade in the relevant mkt.). Tried to enjoin NCAA from enforcing part of Bylaw 12.5.5, regarding the size of manufacturer’s logos on uniforms. NCAA in old days didn’t allow logos at all, but now they restrict them to an area not to exceed 2&1/4". Rule covered every team. Adidas said NCAA was restricting the use of their trademark, and wanted an injunction.

1. Banks v. NCAA - P entered Notre Dame on football scholarship. He decided to enter the NFL draft early b/c of injury problems. He participated in combine, but he didn’t perform well, and he wasn’t chosen by a team or able to sign on as a free agent. He had one yr. of eligibility left, but NCAA rules say that once you enter draft w/eligibility left, then you can’t go back to school (No Draft Rule). NCAA also has a No Agent Rule – once you sign w/an agent, then you also forfeit your remaining eligibility. P claims that the school didn’t request an exception for him. He sought an injunction to prevent enforcement of the No Draft Rule. Ct. denied the injunction, b/c he didn’t demonstrate a likelihood of success at trial that NCAA rule restricted trade in violation of §1 of Sherman.

• Ct. disagreed b/c P’s had no facts to back up their disproportionality claim (ct. actually said the penalty was too lenient).
• Ct. said there was no need to determine if there was a Sherman violation, b/c there was no antitrust matter at hand – players had no standing b/c they weren’t harmed.

1. Hoover v. Meiklejohn - P was an eleventh-grade girl who played HS soccer w/the boy’s team. One day the Principal said she could no longer w/the JV team b/c her participation violated the Colorado HS Activities Assoc. The sport of soccer was limited to members of the male sex. The decision to limit it to males was made by a group of 7 doctors who classified it as a contact sport, and to mix sexes would subject females to an inordinate risk of injury (after puberty, females has a higher ratio of lean body weight as compared to males, and also less bone density).

• P is claiming a denial of an equal educational opportunity.
• Both parties agree that the Supreme Court has excluded education from "fundamental" rights by reserving that category to those implicitly or explicitly recognized by the Const.
• Gender questions use the "important" scrutiny – less than strict scrutiny, but greater than rationally related.
• Ct. observed that the constitutional inquiry to test governmental denials of equal opportunity ought to balance several elements:

1. Williams v. Sch. Dist. Of Bethlehem(1993)-Boys wanted to play field hockey where there was only a team for women. Exclusion based on sex justified if there are real physical differences between girls and boys b/c it means that the sexes are not "similarly situated". If they arent similary situated, boys could dominate and it would not be fair. Ct. remanded for fact finding.
2. Blair v. Washington State Univ. - P’s were student athletes and coaches at WSU. They claimed that univ. discriminated against them on the basis of sex (disparate funds). Ct. agreed and gave them an injunction, costs, and fees. P’s appealed the decision b/c: (1) the ct. excluded football from its calculation for sports participation and scholarships; (2) trial ct. decided that the funds that each sport generates should be kept w/in the sport. Facts are that despite improvements since the 1970’s, women’s athletic programs continue to inferior treatment in funding (men’s ath. dept. budget = $3.01M; women’s ath. budget = $689K).

1. Horner v. Kentucky Athletic HS Ath. Assoc. - P’s are 12 female HS students who participate in HS slow-pitch softball. They contend that D discriminated against them on the basis of sex by sanctioning fewer sports for girls than boys, specifically by not sanctioning fast-pitch softball. Sued under Equal Protection and Title IX violations. By not sanctioning fast-pitch, D is denying them an opportunity to gain college athletic scholarships (no colleges give them out for slow-pitch). Trial ct. said that P’s were not discriminated against through denial of equal athletic opportunity and gave D SJ.

• 6^th Cir. said that P’s were denied an opportunity under Title IX, but not under Equal Protections Clause.
• Ct.’s analysis said that D’s system isn’t fair under Title IX b/c P must prove that both sexes don’t have the same opportunities.
• D is subject to Title IX b/c they got federal funding. Ind. schools are subject also even though the association got the cash, b/c they got it indirectly.
• D claimed that they didn’t fund a program for girls b/c there wasn’t enough interest – school district policy was that 25% of the schools in the association needed to implement a sport, and 50% needed to continue after its initiation. Ct. said these numbers were bogus and unnecessary to the analysis.
• Keys to determine equal opportunity ("Effective Accommodation Factors"):

1. The opportunities for members of the excluded sex historically have been limited (P must meet this burden before moving on to next one):
2. There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for the team (D’s main argument in the case – there wasn’t enough of this); AND
3. Members of the excluded sex do not possess sufficient skill to be selected for a single integrated team, or to compete actively on such a team if selected (e.g., if they can’t participate on the boys team).

1. Roberts v. Colorado State Board of Agriculture - P claimed that D sexually discriminated against them by discontinuating the women’s fast-pitch softball program at CSU. Ct. agreed that the school violated Title IX.

1. Moore 233 F.3d 871- Squat thrust case. Parents allege student suffered injury b/c of excessive exercise and punishment. Excessive exercise imposed by teacher b/c student was talking in line. Coach was sued for negligence and intentional infliction of emotional distress. Δ won on summary judgment. Texas law forbids excessive corporal punishment. Texas Penal Code § 9.62 immunizes educators against criminal responsibility when they use non-lethal force against students, but only if they act reasonably. Section 22.051 of TX Education Code says the same thing. Discipline is a legitimate state interest, and immunity is granted when using discipline; HOWEVER excessive discipline will cause you to lose your immunity status.
2. Palmer v. Merluzzi(1989)- Student Discipline case. HS sr. busted for drinking beer and smoking pot at school. Principal first suspends him for 10 days from school but then wanted to do more so he kept him from playing sports for 60 days. Student appeals claiming no due process. Ct. said due process was had b/c he had a hearing and you don’t need two hearings for two punishments on the same violation. Thornton thinks school was saved b/c they called drug rehab clinics and asked what the dry out period was for addicts AND everyone got the same penalty.
3. Drambrot v. CMU(1993)-Lame white guy case. Coach using word "Niggah" to motivate players and school fires him. Players bring suit claiming no due process. Must meet a 3-part test to show it was a matter of public concern but school didn’t do it so it did not = a matter of public concern. (3-part test: 1. speech was a matter of public concern; 2. if it was, then it was entitled to protection after a balancing test is applied; 3. any 1^st amendment violation was a substantial factor in termination) Players got bounced out of Ct. anyway b/c they did not have standing. Ct. said the rule was too broad and too vague.

• Claimed that his speech was protected free speech.
• Standard = Public employee is required to show that his speech was a matter of public concern; if it is, then see if the free speech was a motivating factor in the termination. If it is, then he can sue.
• Ct. said he used the term to motivate ® there was no public concern here. Public Concern = would someone stand up on a soapbox and discuss the matter.

1. Veronia School Dist. v. Acton – The student drug testing program adopted by school dist. authorized random drug testing of students who participated in athletics. School created arule that in order to be an athlete, student must be drug-tested, then random drug testing of athletes after that. P refused to participate, and when he wasn’t allowed to participate, he filed suit saying that the policy violated his 4^th Amend. rights to privacy and unreasonable searches & seizures, as well as the 14^th Amend. (to apply fed. laws to states).