I. REVIEW

II. REGULATING PARTICIPATION SPORT CLUBS (GENERAL CONSUMERS) SCHOOLS (ATHLETES) DRUG TESTING (ATHLETES)

III. WRAP-UP

AGENCY LAW

Between principal and agent

Formation of agency

Express agency Implied agency Apparent agency Ratification agency

LABOR RELATIONS

Purpose: Achieving industry peace by maintaining power balance between corporations and unions

National Labor Relations Act provides

Establish an administrative agency (NLRB) How to unionize What must be negotiated if union is certified What are unfair labor practices

SPORT CLUBS

Title VII of Civil Rights Act Not govern membership practices Only in employment

PR & marketing concerns Allegation of discriminatory policy is very

damaging May negatively affect current & future

membership

SPORT CLUBS

Title II of the Civil Rights Act of 1964 Prohibits intentional discrimination Based upon race, color, religion, or national

origin In places of public accommodation (e.g.,

public library, hotel, sport facilities)

Statutory exemption: If “truly private” Sport clubs are exempted if “truly private” What is the legal rationale? Why?

SPORT CLUBS: TITLE II CLAIM

“Truly private” Test (Lansdowne Swim Club)

Genuine selectiveness in granting membership

Members’ control over operation History of organization (public < private) Nonmember use of the facility Purpose of the club’s existence (public <

private) Ads for membership (wide < niche) $$$ or non-$$$ org. ($$$ < non-$$$) Formalities (by-laws, meetings, etc.)

SPORT CLUBS: “TRULY PRIVATE” TEST

Lansdowne Swim Club

Fact: Black family rejected several times; only one non-White member in entire history

Rule: 8-factor test is broadly construed (court referred only three factors and found discrimination)

Rationale & policy: Title II is a remedial statute

SPORT CLUBS: § 1981 of the Civil Rights Act

No intentional discrimination based upon “race” in making or enforcing contracts

Specifically prohibits “racial discrimination” No exemption for private clubs Usually resorted in membership termination

or suspension case

SPORT CLUBS: § 1983 of the Civil Rights Act

When rights under US Constitution or federal law are compromised

Defendant must be a “state actor” (nexus test) Different cause of action from § 1981 claim

possible Example: BGSU golf club

- Discrimination based on race in contract (§ 1981 )

- 1st AM right to association was compromised (§ 1983)

SPORT CLUBS: ADA CLAIM

Three-part test for P (prima facie) Does Plaintiff have a “covered disability”? Does the impairment substantially limit a

“major life activity (e.g., sport activity)?” Discriminated on the basis of that disability?

Kuketz v. Petronelli Fact: Wheelchair racket ball player versus

tournament Rule: If fundamental alteration is necessary

for accommodation, no need to do it

SCHOOLS: TITLE IX

Remarkable progression in gender equity Female HS athletes: 294,000 (1971) 3M

(2005) Female collegiate athletes: 15% (1971) 43%

(2004)

No gender discrimination in EDU. (if $$$ from Gov)

USSC: If program receives $$$ only program is subject to Title IX (not whole school)

Congress: School as a whole must comply, even if one individual program receives federal funds

SCHOOLS: TITLE IX

Enforcement process

Individual or groups may petition U.S. Department of Education Office of Civil Rights (“OCR”)

OCR itself may begin investigation

Injunction & $$$ damage possible (e.g., Pepperdine University)

SCHOOLS: TITLE IX (COMPLIANCE); 3 WAYS

Prong #1: “We are done!” Opportunity in athletic program is

substantially proportionate to gender distribution

Prong #2: “We are moving on” If one gender is under-represented in

athletics, history & continuing efforts responsive to that gender group

Prong #3: “It’s still OK… Look!” If one gender is under-represented in athletics

& no history or continuing effort, whether interests of the gender group is accommodated by present system

SCHOOLS: TITLE IX

Cohen v. Brown Univ. Fact: School demoted men & women’s

programs Rule: Gender difference in levels of interest in

sport cannot satisfy the 3rd prong compliance Rationale

- Male (80%) > female (40%) rejected by court

- Title IX supports a preferential treatment of the under-represented gender

Closing men’s program for Title IX is not a reverse discrimination

DRUG TESTING

4th AM: No unreasonable search & seizure by state

Balancing Conspicuous status of athlete & repercussions Athlete’s 4th AM right

4th AM test Whether it was state action (NCAA is not!) Was it search & seizure? Was it reasonable? (probable cause & scope)

DRUG TESTING

U. of Colorado v. Derdeyn Fact: Random urine test for collegiate athletes Rule: No unreasonable search for collegiate

student athletes at state universities

Vernonia School District v. Acton Fact: Minor football players (≠ Dedeyn case

above) Rule: Random urine test is acceptable for high

school athletes

REGULATING PARTICIPATION

Private clubs: “Truly private” test

Schools: Must comply Title IX

Drug testing: 4th AM search & seizure

Only state actors are subject to 4th Amendment

NCAA may be conduct drug testing without considering 4th AM challenge