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Wk5 1 hr4

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Transcript

  • 1.
    • REVIEW
    • REGULATING PARTICIPATION
      • SPORT CLUBS (GENERAL CONSUMERS)
      • SCHOOLS (ATHLETES)
      • DRUG TESTING (ATHLETES)
    • WRAP-UP
  • 2.
    • AGENCY LAW
      • Between principal and agent
      • Formation of agency
        • Express agency
        • Implied agency
        • Apparent agency
        • Ratification agency
  • 3.
    • 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
  • 4.
    • 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
  • 5.
    • 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?
  • 6.
    • 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.)
  • 7.
    • 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
  • 8.
    • 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
  • 9.
    • 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 )
          • 1 st AM right to association was compromised ( § 1983)
  • 10.
    • 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
  • 11.
    • 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
  • 12.
    • 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)
  • 13.
    • 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
  • 14.
    • 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 3 rd 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
  • 15.
    • DRUG TESTING
      • 4 th AM: No unreasonable search & seizure by state
      • Balancing
        • Conspicuous status of athlete & repercussions
        • Athlete’s 4 th AM right
      • 4 th AM test
        • Whether it was state action (NCAA is not!)
        • Was it search & seizure?
        • Was it reasonable? (probable cause & scope)
  • 16.
    • 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
  • 17.
    • REGULATING PARTICIPATION
      • Private clubs: “Truly private” test
      • Schools: Must comply Title IX
      • Drug testing: 4 th AM search & seizure
        • Only state actors are subject to 4 th Amendment
        • NCAA may be conduct drug testing without considering 4 th AM challenge