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Sports Law in the State of Wisconsin Paul M Marquette Sports Law Review Volume 15 Article 6 Issue 2 Spring Sports Law in the State of Wisconsin Paul M. Anderson Marquette University Law School Follow this and additional works at: http://scholarship.law.marquette.edu/sportslaw Part of the Entertainment and Sports Law Commons Repository Citation Paul M. Anderson, Sports Law in the State of Wisconsin, 15 Marq. Sports L. Rev. 425 (2005) Available at: http://scholarship.law.marquette.edu/sportslaw/vol15/iss2/6 This Survey is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For more information, please contact [email protected]. SURVEYS SPORTS LAW IN THE STATE OF WISCONSIN NATIONAL SPORTS LAW INSTITUTE OF MARQUETTE UNIVERSITY LAW SCHOOL' I. IN TRODUCTION ................................................................................. 426 II. TO RT L AW ........................................................................................ 426 III. WAIVERS, RELEASES OR EXCULPATORY CONTRACTS .................... 473 IV. INTERSCHOLASTIC ATHLETICS ......................................................... 484 V. INTERCOLLEGIATE ATHLETICS ........................................................ 490 V I. GENDER EQUITY ............................................................................... 491 V II. SPORTS CONTRA CTS ......................................................................... 494 V III. LABOR L AW ..................................................................................... 499 IX . A NTITRUST LAW .............................................................................. 507 X . TAX L A W .......................................................................................... 508 XI. INTELLECTUAL PROPERTY LAW .......................................................517 XII. DRUG TESTING IN SPORTS............................................................... 522 XIII. REGULATION OF BOXING ................................................................. 523 XIV. REGULATION OF GAMBLING ............................................................ 524 XV. REGULATION OF ATHLETE AGENTS ................................................. 528 X V I. C ONCLU SION .................................................................................... 530 * This compilation and summary was prepared under the supervision of Adjunct Associate Professor Paul Anderson, Associate Director of the National Sports Law Institute, Co-Faculty Advisor to the Marquette Sports Law Review and Chair of the Sports & Entertainment Law Section of the State Bar of Wisconsin, who wrote, organized and edited the survey. Marquette University Law School students Katie Featherston (L'06) and Michael Baird (L'05), and Attorney Christopher McKinny (L'03), Legal Action of Wisconsin, Oshkosh, Wisconsin, researched and wrote drafts of this survey. Susan Menge (L'06) wrote drafts of portions of the survey and edited it with Jenni Spies (L'06). In addition, the following Marquette University Law School alumni researched portions of this survey, including: Attorney Benjamin Menzel (L'02), Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman SC, Milwaukee, Wisconsin; Attorney Scott Mielke (L'03), Assistant District Attorney, Milwaukee County District Attorneys Office, Milwaukee, Wisconsin; and Attorney William Appleton, Jr. (L'03), judicial law clerk, Supreme Court of the Commonwealth of the Northern Mariana Islands in Saipan. Thank you to the Sports & Entertainment Law Section of the State Bar of Wisconsin, which provided financial support for the production of this survey. 426 MARQUETTE SPORTS LA W REVIEW [Vol. 15:2 I. INTRODUCTION The state of Wisconsin has a rich history involving the intersection of sports and law. Although not a center of the sports industry, Wisconsin is home to the Wisconsin Interscholastic Athletic Association (WIAA), the first and oldest statewide interscholastic athletic association, the National Association of Sports Officials, the Commissioner of Major League Baseball, and one of the most storied franchises in sports, the Green Bay Packers. Wisconsin is the home of the National Sports Law Institute of Marquette University Law School. Founded in 1989, the Institute's mission is to be the leading national educational and research institute for the study of legal, ethical, and business issues affecting amateur and professional sports. One of the ways that the Institute fulfills this mission is by publishing the Marquette Sports Law Review (formerly the Marquette Sports Law Journal). This survey is another outgrowth of that mission. The purpose of this survey is to provide an overview of the development of sports law in the state of Wisconsin until the end of the year 2004. With the support of the Sports and Entertainment Law Section of the State Bar of Wisconsin, the Institute began to compile the cases and statutes that make up this report in 2002. The focus of the report is on the rich history of cases in Wisconsin focusing on legal issues in sports. Many of the cases discuss several distinct legal claims; therefore, these cases are included in several different areas within the report according to the specific claim discussed. Cases are presented in chronological order to demonstrate the progression within the particular area to the most recent decision by the Wisconsin courts. Statutory law will also be provided where appropriate; however, due to the difficulty in tracking the historical progression of and changes in various state statutes, the focus will be on those statutes specifically mentioned in the cases presented and those current statutes that specifically involve sports. This survey is a starting point for practitioners undertaking the practice of sports law in the state of Wisconsin. It is also intended to provide an in depth look at how the law has impacted the sports industry in the state of Wisconsin. II. TORT LAW On the national level, the most highly litigated area in sports is claims arising from torts or alleged torts committed by participants, organizers, spectators and others. In Wisconsin, this also is true as the area of torts in sports has been the most litigated. What follows are cases involving various 2005] SPORTS LAW IN THE STATE OF WISCONSIN aspects of tort law, from negligence and various immunities, to specific legally created duties within the sports context.' A. Negligence Many sports tort cases in Wisconsin involve injured plaintiffs' claims that the negligence of the defendant caused their injuries. For a court, this analysis may include a focus on whether the plaintiff assumed the risk of his or her injuries, whether the danger was open or obvious, whether the defendant may have had a duty to supervise the plaintiff, whether the injury sustained was foreseeable, and whether there are any public policy concerns that may affect the negligence analysis. Wisconsin is a contributory negligence state. Under the contributory negligence doctrine, when the negligence of another is the proximate cause of the individual's injury, the individual will not be allowed to recover for his or her injuries if his or her negligence is also a proximate cause of the injury. Many of the cases that follow discuss contributory negligence in Wisconsin as codified in section 895.045 of the Wisconsin statutes.2 According to the statute, Wisconsin's contributory negligence standard is that of comparative negligence; even where there is contributory negligence, an individual will not be barred from recovering damages for injuries if his or her negligence is not greater than the negligence of the other individual. 3 When determining whether a plaintiff can recover damages, courts must compare the negligence 4 of the parties involved. The following cases focus on negligence claims in the sports setting. The cases are organized so that cases with similar fact patterns are discussed in the same section. 1. Spectator Injuries The first cases deal with situations where an injured spectator sues to recover for those injuries.5 1. For further analysis of sports torts in Wisconsin see, Jay Urban, Sports Torts in Wisconsin, 8 MARQ. SPORTS L.J. 365 (1998). 2. WIS. STAT. § 895.045 (2003-04). 3. Id. 4. Id. 5. For further information on spectator injuries see, Joshua Kastenburg, A Three Dimensional Model of Stadium Owner Liability in Spectator Injury Cases, 7 MARQ. SPORTS L.J. 187 (1996). MARQUETTE SPORTS LA W REVIEW [Vol. 15:2 6 Wills v. Wisconsin-Minnesota Light & Power Co. Rose Alice Wills was attending an amusement park run by the Wisconsin- Minnesota Light & Power Co. with her mother and other relatives. The amusement park had a movie theatre, dancing pavilion and baseball field on its premises. Wills and her mother were stopped on a path ninety feet from home plate when she was struck in the face by a line drive. She brought an action for negligence, and a jury entered judgment in her favor. The Light & Power Co. appealed. 7 The Wisconsin Supreme Court affirmed the jury verdict in favor of Wills. Light & Power Co. alleged that it was not negligent and that Wills was contributorily negligent. The supreme court disagreed. The court concluded that Light & Power Co. could have reasonably protected visitors to its park from the foreseeable danger of getting struck by a baseball. Additionally, Wills was not contributorily negligent because she was not aware of the possibility of being struck by a baseball. She was not watching the baseball game, did not know a baseball game was going on, and had never seen a baseball
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