Sport and Recreation Law Association Annual Conference

Book of Abstracts

March 4 - 7, 2020

Louisville, KY Sport and Recreation Law Association Conference

Table of Contents

A comparative study in soccer related injury legal cases between the United States and South Korea 1 Mr. Hongyoung Kim (University of New Mexico), Dr. Todd Seidler (University of New Mexico), Dr. Hyun-Duck Kim (Keimyung University)

A Teaching Tool for Decision Making and Critical Thinking: Applying the SLEEP Model© to the USOC’s Deci- sion to Change its Name to the USOPC 3 Dr. Mary Hums (University of Louisville), Prof. Nina Siegfried (University of Louisville)

A Technological Risk Management Approach to Crowd Flow and Evacuation of Sports Stadiums 7 Dr. John Miller (University of Southern Mississippi), Mr. Christopher Kinann (National Center for Spectator Sports Safety and Security)

A Trans-National Analysis of New IOC Rule 40 Guidance and Subsequent Enforcement Challenges to Olympic Advertising and Sponsorship Restrictions 11 Prof. Steve McKelvey (University of Massachusetts Amherst), Dr. John Grady (University of South Carolina), Prof. Anita Moorman (University of Louisville)

An Analysis of Risk and Security Management Practices of High School Athletic administrators in Mississippi 14 Dr. John Miller (University of Southern Mississippi), Mr. Jeffrey Curto (Troy University)

Apparel Brand Contracts in Collegiate Athletics -The Title IX Implications 17 Ms. Rachel Rose (University of North Carolina at Greensboro), Prof. Barbara Osborne (University of North Carolina at Chapel Hill)

As the College Basketball Bounces: Part III 20 Prof. Barbara Osborne (University of North Carolina at Chapel Hill), Prof. Mark Dodds (SUNY Cortland), Prof. Kerri Cebula (Kutztown University)

Assessing the NCAA as a Compliance Organization 23 Prof. Nathaniel Grow (Indiana University - Kelley School of Business), Prof. Todd Haugh (Indiana University - Kelley School of Business)

Betting on the Future of Sport; An Analysis of Recent Changes in Sport Gambling Laws and the Role of Oﬃcial Data 25 Mr. Bill Squadron (Elon University), Dr. Mark Cryan (Elon University)

Buffer Zones and the Recreational Golf Sector: A Comprehensive Case Content Analysis 27 Ms. Natalie Bird (University of Arkansas), Dr. Merry Moiseichik (University of Arkansas)

Chum in the water: Sports agency issues and the need to better educate collegiate athletes about agency 30 Dr. Natasha Brison (Texas A&M University), Dr. Chris Hanna (Georgia Southern University)

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College Athletes and the Standard of Care: What duty does the NCAA owe athletes 33 Prof. John Wolohan (Syracuse University)

Consider the Circumstances: The Burden of Zero-Tolerance in Drug Testing Policies 35 Prof. Lauren McCoy (Winthrop University)

Continued Abuse: Are Colleges and Universities Hiding Behind Legal Regulations at the Expense of Collegiate Athletes? 37 Mr. Mitchell Haroldson (University of North Carolina at Chapel Hill)

Dulling the Blade: A Policy Analysis on Intentional Bleeding in Professional Wrestling 39 Dr. Dylan Williams (University of Alabama), Dr. Andrew Goldsmith (Temple University), Dr. Kevin Cattani (University of Dubuque), Mr. Joseph Sabin (University of Dubuque)

Equitable Allocation of Recreation and Park Resources-Winston Lake Aquatic Park, a case study. 42 Prof. Jim Bemiller (The University of Tennessee), Prof. Steven Waller (The University of Tennessee)

Examining Academic Life For Sport Law Professors In 2019: The Good, The Bad, and The NASSM 44 Dr. Thomas Baker (University of Georgia), Dr. John Holden (Oklahoma State University), Prof. Dionne Koller (Univer- sity of Baltimore)

Feeling the Heat? Heat-Related Illness Concerns for the 2020 Tokyo Olympic Games 46 Prof. John Wendt (University of St. Thomas (MN)), Dr. John Miller (University of Southern Mississippi), Dr. Todd Seidler (University of New Mexico)

Framework for an Inclusive Training Session for Transgender Issues in Athletics: Social Contracts, Inclusive Language, & QR Codes 50 Dr. Jean Henry (University of Arkansas), Dr. Angie Smith-Nix (University of Arkansas)

Government Liability/Immunity for Recreational Injuries on Public Lands Since 2017 53 Prof. Joseph Long (University of Mount Olive)

Identifying Facility Hazards 54 Dr. John Miller (University of Southern Mississippi), Dr. Todd Seidler (University of New Mexico)

If you didn’t get dirty then you didn’t play: The Government’s Corruption Investigation Into MLB 56 Dr. Mark Dodds (SUNY Cortland), Mr. Lawrence Brady (SUNY Cortland)

Impactful or invasive? Esport leagues and wearable technology 58 Ms. Sarah Brown (Texas A&M University), Dr. Natasha Brison (Texas A&M University)

Is the mind sport really a sport? 60 Prof. Sławomir Fundowicz (The John Paul II Catholic University of Lublin)

Jean v. Francois (Naomi Osaka) – A Case Study on How Not to Draft Contracts 62 Prof. Mark Conrad (Fordham University, Gabelli School of Business)

Landowner liability, Pay-to-Play and Partnered Solutions for a Resurging Mountain Bike Scene 63 Dr. Jeb Gorham (Midway University)

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Legal Consciousness and Sport-Related Concussion: Comparing Perceptions of Youth Soccer Coaches in Scot- land and Florida, US 66 Ms. Anne Demartini (Flagler College), Dr. Sungwon Kim (St Johns University), Dr. David McArdle (Stirling University), Dr. Daniel Connaughton (University of Florida)

Loans and Marketing Guarantees in Athlete-Agent Recruiting: Why They Are Ill-Advised Under Agency Law and Attorney Ethics Regulations Principles 69 Prof. Josh Lens (University of Arkansas)

Make Athletes Pay More Again: An Analysis of Jock Tax Issues following 2017 Tax Reform 71 Dr. Dylan Williams (University of Alabama), Dr. Patrick Tutka (Niagara University), Mr. Joseph Sabin (University of Dubuque)

Maranello, We (May) Have a Problem: the Convention on the Manipulation of Sports Competitions and Team Orders in Formula 1 73 Prof. Kerri Cebula (Kutztown University)

Maximizing the effectiveness of community sport, recreation, and play assets: Understanding criminal incidents and permitting as barriers to public accessibility 76 Dr. Jeffrey Levine (Drexel University), Dr. Gareth Jones (Temple University), Dr. Andrew Goldsmith (Temple University)

NCAA Transfer Rules: The Struggle for Power in College Athletics 79 Mr. Eric Kramer (Troy University), Dr. Michael Carroll (Troy University)

Nevada and Sports Law Post PASPA 81 Prof. Adam Epstein (Central Michigan University)

Noncontroversial Legislation: A Review of the Overlooked NCAA Legislation Making Process 84 Mr. Joshua Smith (University of California, Riverside), Ms. Colleen Farrell (East Tennessee State University)

One Hundred Thirty Years before Federal Baseball Club v. National League: The Origins of the Law of Base- ball 86 Dr. Paul J. Batista (Texas A&M University)

Out of Bounds: Examining the Legality and Consequences of the NCAA’s Basketball Agent Certiﬁcation Pro- gram 88 Prof. Alicia Jessop (Pepperdine University)

PARSONS XTREME GOLF, LLC. V. TAYLORMADE GOLF COMPANY, INC.: LITIGATION AND ANTITRUST IMPLI- CATIONS OF PATENT SETTLEMENT 91 Dr. Sungho Cho (Bowling Green State University), Mr. Peter Park (Sughrue Mion, PLLC), Dr. June Won (Stone Ridge G.C.)

Personal Data, GeoFraming and the Privacy Rights of Sport Consumers 95 Mrs. Regina Presley (University of Louisville), Prof. Anita Moorman (University of Louisville), Mr. Keegan Arnold (University of Louisville)

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Playing space invasions: Exploring the college sport industry’s current policy approach 98 Dr. Brian Menaker (Texas A&M University - Kingsville), Dr. Jeffrey Levine (Drexel University), Dr. Dale Sheptak (Bald- win Wallace University)

Presentation Title: California’s Fair Pay to Play Act – the NCAA’s Likely Constitutional Challenge, the possibility of Legal Victory and the Future of Athletic Compensation 101 Prof. Mark Conrad (Fordham University, Gabelli School of Business)

Protecting Student-Athlete Free Speech Rights in Athletics Department Social Media Policies 103 Ms. Ashley Kavanagh (University of North Carolina at Chapel Hill)

Recreation Case Law 105 Mr. Jim Moss (Recreation Law)

Road back to glory: How the NCAA Football video game franchise could make a comeback 107 Mr. Addison Pond (University of Louisville), Prof. Adam Cocco (University of Louisville)

Sensory Challenged Lifeguards on the Stand. Legal Interpretations through the Lens of the ADA 109 Ms. Savannah Redd (Indiana University), Dr. William Ramos (Indiana University)

Serious Misconduct Rules and the NCAA: Keeping Sexual Violence Out of Sport 110 Prof. Erica Zonder (Eastern Michigan University), Dr. Kristy McCray (Otterbein University), Dr. Liz Taylor (Temple University)

Societal Values and their Inﬂuence on Sport Law 112 Dr. Andy Pittman (Texas A&M University), Dr. Robin Ammon (University of South Dakota)

SPORT LITIGATION, SOCIAL AGENDA, AND COMMODITY ACTIVISM: BIG DATA ANALYSIS AND EVENT STUDY METHOD 116 Dr. Sungho Cho (Bowling Green State University), Dr. Yonghwan Chang (University of Minnesota), Dr. Minyong Lee (North Carolina A&T State University), Dr. Steve Sohn (University of Louisville)

Sports Facilities and the Law: A review of the legal duty owed people attending events 120 Prof. John Wolohan (Syracuse University)

Sudden Cardiac Arrest in Basketball Players: Is the NBA doing enough? 122 Mr. Mark Lasota (University of New Mexico), Dr. Todd Seidler (University of New Mexico)

Suds in the Stands! What are the Risks? 124 Dr. Sarah Young (Indiana University), Ms. Kallee Hooley (Indiana University), Mrs. Celina Thomas (Indiana University)

Sunshine?: Direct Support Organizations and Intercollegiate Athletics 126 Dr. Nicholas Schlereth (Coastal Carolina University), Dr. Justin Lovich (Coastal Carolina University)

Suspect collection? Analyzing and understanding the athlete wearable data policies and practices of NCAA member institutions 128 Dr. Jeffrey Levine (Drexel University), Dr. Chris Hanna (Georgia Southern University)

Technology Keeping up with the Law 131 Prof. Gil Fried (UNH)

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Testosterone Level Regulations for Female Athletes: Is There Truly an Appropriate Level for Cisgender, Transgender and DSD Females? 133 Dr. Angie Smith-Nix (University of Arkansas), Dr. Merry Moiseichik (University of Arkansas), Dr. Jean Henry (Univer- sity of Arkansas)

The Baseball Rule and how the changing nature of the sport leaves potential for change 136 Prof. Michael Gentile (Niagara University), Dr. Patrick Tutka (Niagara University)

The Changing Tide of Liability for Collegiate Club Sports 138 Dr. William Ramos (Indiana University), Dr. Sarah Young (Indiana University)

The Legality of Symptom Reporting in Student-Athletes with Concussions 140 Ms. Annika Martensson (UNC- Chapel Hill)

The Risk of Risk Management Plans 143 Prof. Amanda Siegrist (Thomas More University), Dr. Matt Lovett (ULM), Dr. Colleen McGlone (Coastal Carolina University)

The Student Assistance Fund and International Tax Withholding: Let Me Check with My Accountant First 145 Mr. Joshua Smith (University of California, Riverside), Ms. Colleen Farrell (East Tennessee State University)

The Use of Social Media in Doping Prevention and Enforcement 147 Dr. Genni Birren (SUNY Cortland), Dr. Kerry Fischer (SUNY Fredonia)

The USWNT is still crying out “Equal Play, Equal Pay!” 150 Ms. Isabella Martin (Texas A&M University), Dr. Natasha Brison (Texas A&M University)

The “Fortnite” of E-Gaming Laws 153 Dr. Colleen McGlone (Coastal Carolina University), Prof. Amanda Siegrist (Thomas More University), Dr. Matt Lovett (ULM)

They Finally Killed the Golden Goose. An Analysis of the Recent Legislative Responses Nation-Wide to the Income Inequality in NCAA Athletics. 154 Prof. Jim Masteralexis (Western), Prof. Lisa Masteralexis (University of Massachusetts Amherst)

Three State Supreme Court decisions invalidate the use of releases after legislative statutory protections were enacted. 157 Dr. Merry Moiseichik (University of Arkansas), Mr. Jim Moss (Recreation Law)

Title: Esports and the law…the new class you need to add to your curriculum 159 Prof. Gil Fried (UNH), Dr. Margaret Keiper (University of Alaska Fairbanks)

Trademark Protection and the 2% 160 Ms. Kelly Lennon (University of North Carolina at Chapel Hill)

Using Player Contracts as Investment Vehicles Under League Collective Bargaining Agreements: The Case of Spencer Dinwiddie 162 Dr. Jim Evans (Viterbo University)

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Views from the Sideline: A Path to the First Female Head Coach in American Professional Sports 165 Ms. Katelyn Dwyer (Shumaker, Loop & Kendrick, LLP)

Youth sport concussion legislation: Nonstandard standards of care 167 Mr. Nick Swim (University of Louisville), Ms. Jessica Murfree (University of Louisville), Ms. Chelsea Police (University of Louisville)

“But They’re Already Paid”: Payments In-Kind, Student-Athletes, and the FLSA 170 Mr. Sam Ehrlich (Florida State University)

“I am a woman, and I am fast.” Caster Semenya vs. International Association of Athletics Federations: The Race Continues 173 Ms. Allison Fletcher (North Central College)

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A comparative study in soccer related injury legal cases between the United States and South Korea

Abstract ID: 79

Mr. Hongyoung Kim (University of New Mexico), Dr. Todd Seidler (University of New Mexico), Dr. Hyun-Duck Kim (Keimyung University)

Among 247 countries listed in the United Nations (World Population Review, 2019), 210 countries are currently registered as member of the FIFA (FIFA, 2019). With the United States Womens national soccer team’s successful back to back win both 2015 and 2019 of the FIFA Womens Word Cup (Das, July 7, 2019), the overall magnitude of the U.S. soccer industry has been expanding in terms of consumption, participation, and viewership (Maxwell, 2012; Giorgio, 2019). Since 2012 soccer has achieved nine percent increase in youth sports resulting total of 853,182 youth participants in soccer throughout the United States. On the other hand, traditional sports including football, basketball, and baseball are currently barely maintained or had slight decrease in youth sport participation which supports the increasing popularity of soccer in the United States (National Federation of State High School Associa- tion, 2019). In Korea, since the 2002 FIFA World Cup where South Korea made to the semifinals overall interest and participation for soccer has increased (Ha, Lee, & Lee, 2006). According to the Korea’s Ministry of Culture, Sports, and Tourism (2016), there are 12,560 soccer clubs in South Korea and total of 607,300 people are registered. How- ever, regarding risk management in sports, soccer as a contact sport is not immune from potential dangers and risks for participation. The nature of soccer is known primarily using both feet. But soccer allows contact between participants and is played with intensity and speed which can result in serious injuries (Kim, 2007). This study examines the difference between the legal approach and process of the United States and South Ko- rea for sport related injuries occurred in soccer participation. To analyze the difference between both countries, implementation of legal approach and process in regards factual background and ruling were reviewed through investigation of legal cases that covers injuries resulted in adult soccer matches in both the United States and South Korea. Each case reviewed in this study relates to head injuries caused between participant and its opponent. Tru- jillo v. Yeager 642 F.Supp.2d 86 (2009) and Kim v. Seo (Jang, 2019 May 15) were selected for the main analysis of this study. According to ‘Trujillo v. Yeager’ case, plaintiff Trujillo files complaints to co-participant and assailant Yeager, Yea- ger’s coach, and Yeager’s affiliated institution (Trujillo v. Yeager, 642 F.Supp.2d 86, 2009). According to ‘Kim v. Seo’ case, plaintiff Kim files complaint only to its assailant Seo where in South Korea sports injuries resulting from participation is solely dealt between the entities directly involved (Jang, 2019 May 15). Legal approach on the incident differ where in ‘Trujillo v. Yeager’ case dealt with negligence since the physical damage occurred can be regarded as a negligent action in an adult soccer match rather than reckless or intentional actions based on a precedent case, ‘Jaworski v. Kiernan’ (Trujillo v. Yeager, 642 F.Supp.2d 86, 2009). On the other hand, ‘Kim v. Seo’ case ruled that the incident occurred can be regarded as a reckless action of the defendant through application of FIFA rules. In addition, soccer facility involved with ‘Kim v. Seo’ case provided video recordings of the incident which shows how the incident has occurred (Jang, 2019 May 15). Furthermore this study identifies the current drawbacks and future improvements for U.S. based soccer match operations to support soccer club administrators and contribute to making a more legally reasonable environment for soccer participation. References Cotten, D. J. & Wolohan, J. T. (2016). Law for recreation and sport managers (7th ed.). Iowa:

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Kendall Hunt Publishing. Das, A. (July 7, 2019). U.S. wins record fourth world cup title. The New York Times. Retrieved from https://www.nytimes.com/2019/07/07/sports/soccer/usa-vs-netherlands-score.html FIFA (2019). FIFA/Coca-Cola world ranking. Retrieved from https://www.fifa.com/fifa-world- ranking/ranking-table/men/ Ha, C., Lee, K., & Lee, D. (2006). A study on the motive of participation and job satisfaction by soccer club socio-demographical characteristics. Korea Sport Research, 17(3), 541-550. Kim, J. D. (2007). The study on athletics injury of soccer player(master’s thesis). Wonkwang University, Iksan, Korea Jang, Y. J. (2019, May 15). How much is the percent of blame in ‘adult sport incidents and injuries’ where participants become enemies through sport. Hankyeoreh. Retrieved from http://www.hani.co.kr/arti/society/society_general/893922.html. Jaworski v. Kiernan, 241Conn.399 (1997). Westlaw. Retrieved from https://1-next-westlaw- com.libproxy.unm.edu/Link/Document/FullText?findType=Y&serNum=1997127583&pubNum=0000162&originatingDoc=I0a70de8688b911deb08de1b7506ad85b&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search) Maxwell, C. (2012). Assessing major league soccer’s efficiency. The review: A Journal of Undergraduate Student Research. 13(4). 6-14. Retrieved from http://fisherpub.sjfc.edu/ur/vol13/iss1/4. Ministry of Culture, Sports, and Tourism (2016). 2016 sport white paper. Ministry of Culture, Sports, and Tourism: Seoul. National Federation of State High School Association (2019). Participation in high school sports registers first decline in 30 years. Retrieved from https://www.nfhs.org/articles/ participation-in-high-school-sports-registers-first-decline-in-30-years/ Giorgio, P. (2019). Deloitte’s sports industry starting lineup: Trends expected to disrupt and dominate 2019. Deloitte. Retrieved from https://www2.deloitte.com/us/en/pages/ technology-media-and-telecommunications/articles/sports-business-trends- disruption.html Supreme Court of Korea (2019). Supreme court 2019. 1. 31. sentence 2017DA203596 verdict. Integrated Legal Information. Retrieved from https://glaw.scourt.go.kr/wsjo/panre/sjo 100.do?contId=3205925&q=%EC%B6%95%EA%B5%AC&nq=&w=panre§ion=panre_tot&subw=&subsection=&subId=1&csq=&groups=6,7,5,9&category=&outmax=1&msort=&onlycount=&sp=&d1=&d2=&d3=&d4=&d5=&pg=2&p1=&p2=&p3=&p4=&p5=&p6=&p7=&p8=&p9=&p10=&p11=&p12=&sysCd=WSJO&tabGbnCd=&saNo=&joNo=&lawNm=&hanjaYn=N&userSrchHistNo=&poption=&srch=&range=&daewbyn=N&smpryn=N&idgJyul=01&newsimyn=Y&tabId=&save=Y&bubNm= Trujillo v. Yeager, 642 F.Supp.2d 86 (2009). Westlaw. Retrieved from https://1-next-westlaw- com.libproxy.unm.edu/Document/I0a70de8688b911deb08de1b7506ad85b/View/FullTex t.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad62aee0000016d e102f1b12279c58d%3FNav%3DCASE%26fragmentIdentifier%3DI0a70de8688b911de b08de1b7506ad85b%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2 528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSo urce=28e982627742ae2baec60efa438f6b9f&list=ALL&rank=1&sessionScopeId=a4cde adc3546cae131419856a4999345c2a2445caab9e0e48a595500da0c19c5&originationCont ext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29. World Population Review (2019). List of countries in the united nations 2019. Retrieved from http://worldpopulationreview.com/united-nations-countries/

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A Teaching Tool for Decision Making and Critical Thinking: Applying the SLEEP Model© to the USOC’s Decision to Change its Name to the USOPC

Abstract ID: 45

Dr. Mary Hums (University of Louisville), Prof. Nina Siegfried (University of Louisville)

Sport management educators are continually looking for ways to improve student learning outcomes. COSMA defines student learning outcomes as activities that “identify what the learner will know and be able to do – the essential and enduring knowledge, abilities (skills) and attitudes (values, dispositions) that constitute the integrated learning needed for employment or further education” (2015, para. 1). This presentation lays out a guided model faculty can use to help students develop their decision making and critical thinking skills in the context of a legal aspects of sport, sport governance, sport policy, or leadership in sport course. This model is known as the SLEEP model© (Hums & MacLean, 2019; Hums & Wolff, 2016). Using the SLEEP model©, students are directed to reflect on the Social, Legal, Economic, Ethical, and Political implications of making an important or impactful organizational change decision. The student learning outcomes for using the SLEEP model© with classes are threefold: 1. develop critical thinking skills in a real world sport management scenario 2. learn organized decision making across a spectrum of organizational types 3. be able to see the “Big Picture” when making decisions that impact a sport organization both internally and externally. For this Teaching and Learning Activity, the authors selected a recent event in the sport industry that should serve as a useful example for students to apply the SLEEP model© in a variety of classes.. Once the recent event is identified, faculty members should (1) provide a brief introduction to the recent event, (2) identify essential readings associated with the recent event that provide both historical and recent context for the decision, (3) provide readings that may be necessary for a thorough understanding of the specific SLEEP issues, and (4) pose critical questions for students to consider as they apply the SLEEP model© For this presentation, the authors selected the recent changes implemented by the United States Olympic Committee (USOC) to rename the USOC as the United States Olympic and Paralympic Committee (USOPC). When an organization decides to rebrand (Simpson, 2017), and in this case does so to be more inclusive, managers need to consider a multitude of ramifications for their decision from various perspectives. The USOPC is a major national sport organization so the effect of the change ripples through the sport industry on multiple levels – administrators, coaches, athletes, sponsors, and the media. Brief Introduction to the USOPC Name Change The first formal organization to oversee the Olympic Movement in the United States was the American Olympic Association which was founded in 1921 and renamed the United States Olympic Committee in 1950 (Maese, 2019; USOPC, 2019a). The United State Olympic Committee (USOC) has been overseeing Olympic sport in the United States since then and is one the country’s most recognizable sport organization brand names. In 2019, however, the USOC made the decision to officially change its name to the United States Olympic and Paralympic Committee (UOPC) (USOPC, 2019b). The US now joins three other countries (Norway, South Africa, and The Netherlands) which have shared governance structures for their countries’ Olympic and Paralympic sports at the national level (Around the Rings, 2019). The name change is a part of a greater movement for inclusion of Paralympic athletes which was has also seen the organization decide to award Paralympic medalists the same prize money as Olympic medalists (Maese, 2019).

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Assigned Readings The following readings will help the students be prepared to apply the SLEEP model© in this particular context. Allentuck, D. (2019). Paralympians see a big welcome in a small title change. New York Times. Retrieved from https://www.nytimes.com/2019/06/29/sports/olympics/usoc- paralympians-.html International Paralympic Committee. (n.d.). History of the Paralympic Movement. Retrieved from https://www.paralympic.org/ipc/history International Paralympic Committee. (2017). 2016 Paralympics smash all TV viewing records. Retrieved from https://www.paralympic.org/news/rio-2016-paralympics-smash-all-tv- viewing-records USOPC. (2019). US Olympic Committee changes name to US Olympic and Paralympic Committee. Re- trieved from https://www.teamusa.org/News/2019/June/20/US-Olympic- Committee-Changes-Name-To-US-Olympic- Paralympic-committee Critical Questions for Students To apply the SLEEP model in a classroom setting, the following sample questions can be posed to students to encourage critical thinking and discussion. The sub-question can help instructors by guiding and enabling further classroom discussions. Social: What impact does the name change has on Paralympic athletes, coaches and the overall Paralympic community socially?

• How will the Paralympic athletes, coaches and the overall Paralympic community feel about the decision?

Legal: What legal ramiﬁcations will this name change have?

• Are there any laws which might be affected, and if so, how? • How does this decision support other movements of legal inclusion in sport?

Economic: Which USOPC revenues and expenses may be affected?

• Can this decision lead to new revenue or expense streams? • If you were a sponsor of the USPC how would you feel about being a sponsor of the USOPC now?

Ethical: Why was this decision ethically sound?

• What is the impact from an ethical standpoint on grassroots sports?

Political: How does this name change empower the USOPC politically?

• Is the name change just seen as “window dressing” in light of recent USOC scandals? • As only one out of three NOCs internationally with this governance structure, how may the USOPC leave their impact on other NOCs?

Information to Help Guide Students This next paragraph provides examples which could help prompt students to use the SLEEP model©to analyze the ramiﬁcations of this historic name change. From the Social perspective, changing the name to the USOPC creates a climate of inclusion and equality for Para- lympic athletes, coaches and the overall Paralympic community. Paralympic athletes have publicly expressed their

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feeling of inclusion resulting from the name change. Training centers, museums, merchandise, and the organisa- tion’s Foundation now will all use the expanded title. Legally, in addition to any contract language that may come into play, there is also the revisiting of the Amateur Sports Act (ASA) which may include reorganization of national governing bodies to be more inclusive of Paralympic sport. Further, the name change supports the movement for adding disability into Principle 6 of the Olympic Char- ter, potentially influencing current rules and by-laws of the International Olympic Committee (IOC). From an Economic standpoint, the name change has ramifications for budgets and investment being set up more equally for items such as uniforms, travel, training, and monetary awards for winning medals. Sponsorships, as a major revenue stream of the USOPC, may also be affected. The inclusion of Paralympic name its brand identity can provide positive brand association for current and potential USOPC sponsors. For former USOPC sponsors, the recent scandals of the USOC might cause a firm to withdraw from their sponsorship to avoid negative brand association. The move to the USOPC name may prove to be a positive force to bring any sponsors back. From an Ethical perspective, the main discussion point is the ethical stance of including Paralympic athletes and coaches into the organization, making sure Paralympic athletes to the same recognition and benefits as Olympic athletes. The Olympic and Paralympic Movements are not just about elite level athletes, however. Recognition of athletes with disabilities can promote participation on the grassroots level as well. Politically, Congress, specifically the US Senate, will now be involved in the restructuring of the Amateur Sports Act. The USOPC, as one of the largest National Olympic Committees (NOCs), now has the ability to put pressure on other NOCs on the inclusion of the National Paralympic Committees. This rebranding will provide strength for greater attention being paid to Paralympic sport. Major Take-Aways The following Take-Aways help measure the successful use of the SLEEP model© in students’ careers: 1. Program graduates provided specific examples of how they used the SLEEP model© in their workplaces after graduation 2. Industry professionals who learned the model explained how they used it in their day-to-day work in the sport industry 3. Using the model with the USOPC name change example helps student learn how diversity and inclusion can became essential elements in the mission of any sport organization This presentation will walk attendees through the decision-making process of the USOPC’s name change as an example of using the SLEEP model© in face to face or on-line classroom settings and how the model addresses COSMA student learning outcomes. References Around the Rings. (2019, June 20). Name change for USOC. Retrieved from http://aroundtherings.com/site/A__77143/Title__Name-Change-for- USOC/292/Articles COSMA. (2015). Measuring student learning. Retrieved from https://www.cosmaweb.org/measuring-student- learning.html Hums, M.A., & MacLean, J.C. (2019). Governance and policy in sportorganizations. (4th ed.). New York: Routledge. Hums, M.A., & Wolff, E.A. (2016). A sport management approach to the Paralympic Games – STEEPLE. In S. Darcy, S. Frawly, & D. Adair, Managing the Paralympics. London: Palgrave MacMillan. Maese, R. (2019). U.S. Olympic committee changes name to include Paralympians. Washington Post. Re- trieved from https://www.washingtonpost.com/sports/2019/06/20/us-olympic-committee-changes- name-recognize- paralympians/ Simpson, J. (2017). The art of rebranding: How to be smart and strategic. Forbes. Retrieved from https://www.forbes.com/sites/forbesagencycouncil/2017/02/23/the-art-of- rebranding-how-to-be-smart-and-

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strategic/#7608d97d5eee USOPC. (2019a). History. Retrieved from https://www.teamusa.org/About-the- USOPC/History USOPC. (2019b). US Olympic Committee changes name to US Olympic and Paralympic Committee. Re- trieved from https://www.teamusa.org/News/2019/June/20/US- Olympic-Committee-Changes-Name-To-US-Olympic- Paralympic-committee

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A Technological Risk Management Approach to Crowd Flow and Evacuation of Sports Stadiums

Abstract ID: 68

Dr. John Miller (University of Southern Mississippi), Mr. Christopher Kinann (National Center for Spectator Sports Safety and Security)

There are numerous occasions at sports events in which a considerable number of people assemble in one location. Throughout the busiest times, these facilities may accommodate thousands of pedestrians, creating highly congested conditions that are vulnerable to catastrophic accidents (Still, 2010). Abdelghany, Abdelghany, & Mahmassani (2016) refer to congestion as “a state of overcrowding and space that is ﬁlled with more people than is desirable (p. 160). When an emergency situation such as a ﬁre or bomb threat occurs, and crowd panic ensues, Helbing, Farkas, and Vicsek (2000) reported that individuals exhibit herding behavior and clogging behaviors, which reduces the effective emergent evacuation of the building. Chertkoff and Kushigian (1999) revealed that the unexpected reactions of the crowd create more injuries than the actual emergency. It is these behaviors that will generate destructive actions such as pushing others out of the way, knocking others down, or trampling on others by crowd during an emergency. The stampede during the 2015 Hajj pilgrimage in Mecca, where more than 700 people died (CBS News, 2015) demonstrated the necessity for improving crowd management and emergency evacuation procedures. Anytime there is a crowded environment, a strong likelihood that panic may occur due to the stress of overcrowding or unexpected evacuation could result in devastating outcomes (Abdelghany et al., 2016). Risks posed by crowds include crowd crush, collapse, and violence. Examples of such incidents include the Hillsborough in which 96 people died (BBC News, 2016), Philpot stadium stampede resulted in the loss of 74 lives, with 627 injured (Michaels, 2006) or Love Parade tragedy in which 18 people died (Connolly, 2010).In hindsight, many such crowd debacles could have been avoided with better crowd risk management. Premises Liability Issues Sport event managers may assume liability if an event turns into a chaotic episode (Abbott, & Geddie, 2000). Notwith- standing any casualties directly created by an accident or attack at a sports stadium, it is foreseeable that an increase number of deaths or injuries may occur as spectators stampede over other spectators during an emergency evacuation situation (Ammon & Fried, 1998). As such, it is imperative that sport event managers comprehend the legal duty owed, through premises liability, to those spectators who pay to attend a game at their facility. According to Restatement (Second) of Torts 1965 § 344, A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. While not unconditionally liable for the safety of others, premises liability holds landowners and/or possessors of a property responsible for injuries occurring on their property, including land areas and facilities (Restatement (Second) of Torts 1965). Notably, a duty of care may be enforced on sport event managers in a similar fashion to other premises owners or operators (Baker, Connaughton, Zhang, & Spengler, 2007). Risk Management Managing the risks in public sports facilities is a central safety concern that must be conducted on a continuous basis

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(Fried & Ammon, 2009; Seidler, 2006). The safety and security of large gatherings of crowds have been a significant worry to appropriate authorities because of the dynamics and degeneration of the risks involved (Kok, Lim, & Chan, 2016). As such, a field of interest regarding public safety and security concerns the ability of an organization to visually surveil mass gatherings of individuals such as sporting events (Kok et al., 2016). The risk management process illustrates how event planners and incident managers use people, processes, and technology to consult, assess, monitor, develop treatment strategies, and communicate risk to protect venue occu- pants during significant sports and entertainment events (Department of Homeland Security, 2005). Traditionally, security and crowd control methods relied on having uniformed police officers, security guards, and event staff providing a visible presence to guests of a stadium (Miller & Gillentine, 2006). In an effort to provide effective risk management of crowd congestion at sports events, visual observations of individuals have led to a broad range of positive functions (Hu, Tan, Wang, & Maybank, 2004). Visual surveillance, such as traditional closed-circuit television (CCTV) systems can detect, recognize and track specific objects or individuals from image sequences to identify and depict their actions (Georgoudas, Sirakoulis, & Andreadis, 2011). Episodes between individuals in emergency situations at sporting events may have been unintentionally ignored due to the inherent limitations from solely relying on manual monitoring by CCTV operators (Bandini, Gorrini, & Vizzari, 2014). The limitations are commonly due to (1) sheer number of screens to be monitored, (2) boredom and human fatigue, (3) distractions and interferences, (4) the complexity and uncertainty of human behavior, and (5) occlusion in which only individuals may be observable but at extremely low resolutions (Bandini et al., 2014). As a result, the use of CCTV’s has been shown to be somewhat fruitless (Georgoudas et al., 2011). When many moving individuals occlude each other, especially when their speeds, directions, and shapes are nearby, their movements will merge, making the location and tracking of the individuals extremely problematic. Several studies have reported that there were missed opportunities to use technology to achieve proactive surveillance for crowd behavior (Bandini et al., 2014; Georgoudas et al., 2011). As a result, significant risk and security advances have evolved using computer modeling, and technologies have been made to providing video monitoring for better organized and proactive crowd risk management. Technological Advancement in Crowd Risk Management Effective crowd management in routine and emergency situations rest on three pillars – time, space, and information (National Center for Spectator Sports Safety and Security (NCS4), 2019). Time affects every aspect of an event from when the staff should arrive, to when gates open, and how long it takes for a crowd to evacuate a venue. Space determines how many people fit within a venue to creating space to allow crowds to escape during an emergency, while information helps people in crowds make decisions about their routes of travel to and from an event. These pillars and the dynamic interaction between the venue, event, staff, and crowd create enormous complexity when developing and implementing crowd management, crowd control, and protective action plans (NCS4, 2019). According to Ijaz, Shail, and Hashish (2015), crowd modeling and simulation technologies can be used to simulate large, homogenous high-density crowds, or to model “individual social, physical, and psychological behaviors” of small crowds. Using the three pillars of time, space, and information, a crowding model created by the NCS4 (2019), shows how crowds at sports events influence, and are influenced, by the venue design and layout, the nature of the event in the venue, and the training, numbers, and quality of trained crowd stewards available to manage the crowd. Discussion Crowd dynamics and active visual surveillance of moving objects are attracting significant in advancing crowd safety in public sports facilities. As a result, concentrated awareness into crowd dynamics has generated an increased comprehension of managing risks regarding pedestrian behavior as well as the architecture of sports stadiums and arenas. This presentation will provide the audience with a viewing of an advanced computer-generated

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model developed by NCS4 designed to eliminate occlusion and identify proper crowd flow during an emergency evacuation at a sports contest. It is crucial for premises liability purposes that non-inherent risks are removed or diminished. Using this technological approach for emergency situations, sport event managers may decrease the likelihood of litigation and increase safety for sport spectators. References Abbott, J. L., & Geddie, M. W. (2000). Event and venue management: Minimizing liability through effective crowd management techniques. Event Management, 6(4), 259-270 Abdelghany, A., Abdelghany, K., & Mahmassani, H. (2016). A hybrid simulation-assignment modeling framework for crowd dynamics in large-scale pedestrian facilities. Transportation Research Part A: Policy and Practice, 86, 159-176. Ammon, R., Jr., & Fried, G. (1998), Assessing stadium crowd management practices and liability issues. Journal of Convention & Exhibition Management, 1(2-3), 119-150 Aubé, F., & Shield, R. (2004, October). Modeling the effect of leadership on crowd flow dynamics. In P.M.A. Sloot, B. Chopard, & A.G. Hoekstra (Eds.), Cellular Automata (pp. 601-621). Berlin: Springer. Baker, T. A., Connaughton, D., Zhang, J. J., & Spengler, J. O. (2007, Winter). Perceived risk of terrorism and related risk management practices of NCAA Division IA Football Stadium managers. Journal of Legal Aspects of Sport, 13(2), 145-179. Bandini, S., Gorrini, A., & Vizzari, G. (2014). Towards an integrated approach to crowd analysis and crowd synthesis: A case study and first results. Pattern Recognition Letters, 44, 16- 29. BBC News. (2016). How the Hillsborough disaster unfolded. Retrieved from https://www.bbc.com/news/uk- 19545126 CBS News. (2015). Hajj tragedy brings grief, questions in Saudi Arabia. Retrieved from https://www.cbsnews.com/news/hajj-stampede-saudi-arabia-muslim-pilgrims-mina- mecca/ Chertkoff, J. M., & Kushigian, R. H. (1999). Don’t panic: The psychology of emergency egress and ingress. Praeger Publishers. Connolly, K. (2010). Festival goers killed in stampede at Love Parade in Germany. Retrieved from https://www.theguardian.com/world/2010/jul/24/love-parade-festival-tunnel- stampede Department of Homeland Security. (2005, March). Special events contingency planning. Retrieved from https://training.fema.gov/emiweb/downloads/is15aspecialeventsplanning- jamanual.pdf Fried, G., & Ammon, R. (2009). Alcohol management: Boon or boondoggle. Journal of Crowd Safety and Security Management, 1(2), 63-80. Gillentine, A., Grady, J., Miller, J. J., & Pettus, K. (2016). Accessible tailgating: An examination of ADA requirements and implications associated with tailgating activities. Journal of Legal Aspects Sport, 26, 52-65. Georgoudas, I. G., Sirakoulis, G. C., & Andreadis, I. T. (2010). An anticipative crowd management system preventing clogging in exits during pedestrian evacuation processes. IEEE Systems Journal, 5(1), 129-141. Helbing, D., Farkas, I., & Vicsek, T. (2000). Simulating dynamical features of escape panic. Nature, 407(6803), 487-490. Helbing, D., Farkas, I. J., Molnar, P., & Vicsek, T. (2002). Simulation of pedestrian crowds in normal and evacuation situations. Pedestrian and evacuation dynamics, 21(2), 21-58. Hu, W., Tan, T., Wang, L., & Maybank, S. (2004). A survey on visual surveillance of object motion and behaviors. IEEE Transactions on Systems, Man, and Cybernetics, Part C (Applications and Reviews), 34(3), 334-352. Ijaz, K., Sohail, S., & Hashish, S. (2015, March). A survey of the latest approaches for crowd simulation and modeling using hybrid techniques. In 17th UKSIMAMSS International Conference on Modelling and Simulation (pp. 111-116). Kok, V. J., Lim, M. K., & Chan, C. S. (2016). Crowd behavior analysis: Review where physics meets biology. Neuro- computing, 177, 342-362.

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Michaels, F. (2006). Philippines: Fatal game-show stampede-an exploitation of social despair. Retrieved from https://www.wsws.org/en/articles/2006/02/phil-f16.html Miller, J., & Gillentine, A. (2006). An analysis of risk management policies for tailgating activities at selected NCAA Division I football games. Journal of Legal Aspects Sport, 16, 197-215. National Center for Spectator Sports Safety and Security. (2017). AWR-Risk management. Retrieved from https://ncs4.usm.edu/training/fema-dhs/risk-management Seidler, T. L. (2006). Planning and designing safe facilities. Journal of Physical Education, Recreation & Dance, 77(5), 32-44. Still, G.K. (2016). Crowd safety and risk analysis. Retrieved from http://www.gkstill.com/CV/ExpertWitness/CrowdDisasters.html Vermuyten, H., Beliën, J., De Boeck, L., Reniers, G., & Wauters, T. (2016). A review of optimisation models for pedestrian evacuation and design problems. Safety Science, 87, 167-178.

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A Trans-National Analysis of New IOC Rule 40 Guidance and Subsequent Enforcement Challenges to Olympic Advertising and Sponsorship Restrictions

Abstract ID: 29

Prof. Steve McKelvey (University of Massachusetts Amherst), Dr. John Grady (University of South Carolina), Prof. Anita Moorman (University of Louisville)

Dating back to the London Summer Olympic Games in 2012 – touted as the first “social media and digital Games” – highlighted growing tensions between Olympic athletes use of social media to promote themselves and their sponsors and the marketing restrictions imposed by the IOC and national governing bodies prior to and during the Olympic Games. During the London 2012 Games, Olympic athletes began to focus their collective opposition in protest of enforcement specifically of the International Olympic Committee’s Rule 40 of the Olympic Charter (Chana- vat & Desbordes, 2014). Rule 40 broadly restricts how Olympic athletes can be used in advertising by non-official sponsor brands as well as how athletes can interact with their own personal sponsors during the Games (Grady & McKelvey, 2015). The athlete protests and public criticism only resulted in a modest relaxing of Rule 40 restrictions for the two most recent games, the Rio Summer Games in 2016 and PyeongChang Winter Games in 2018, yet any substantive changes were designed to protect the commercial interests of the IOC’s official sponsors (Grady & McKelvey, 2015). However in 2017, a legal challenge by the German sporting goods industry and the German athlete association, Athleten Deutschland, produced “a fundamental shift” in Rule 40 enforcement. In the German case, Germany’s Federal Cartel Office (FCO) opened an investigation into the German Olympic Sports Confederation, referred to as the DOSB, and the International Olympic Committee (IOC) challenging how Rule 40 had been applied at the Rio Olympics (Butler, 2017). German authorities successfully argued that the way Rule 40 was being enforced was a violation of German competition law (“German cartel office claims win…”, 2017). The FCO complaint included two main legal claims: First, that Rule 40 was an “effective monopolization of marketing rights during the Olympics” and second, that IOC’s actions were “an abuse of the dominant position of the DOSB and IOC,” which resulted in subsequent harm on the earning abilities of athletes (Butler, 2017). In March 2019, DOSB agreeing to continued concessions for German athletes through the 2026 Olympics (Germano, 2019).

The German ruling laid the groundwork for considerably enhanced advertising opportunities for athletes and brands both in Germany and in other countries with similar competition laws which would prohibit the abuse of a dominant position in commerce (Kelham, 2019; Moorman & Grady, 2019). Several countries are considering significant changes to their Rule 40 policies for the upcoming Summer Games in Tokyo (Kelham, 2019). It also spurred the IOC to amend controversial Rule 40 at the behest of athletes and other Olympic stakeholders. In June 2019, the IOC announced new rules, effectively allowing athletes to associate with their personal sponsors during the Games period (Pavitt, 2019). The IOC’s announcement also stated that each individual country’s National Olympic Commit- tee (NOC) would be responsible for implementing Rule 40, while taking into consideration that country’s specific applicable legal framework (Pavitt, 2019). Most recently, Australia and the United States have promulgated their Rule 40 guidance for the Tokyo 2020 Games. While both new guides represent a “sea-change” in how athletes and non-official sponsors can engage during the Games, there are areas of vagueness and ambiguity that promise to raise legal issues of interpretation at enforcement time. The Australian Olympic Committee’s policy, for instance, allows athletes’ sponsors to continue “busi-

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ness as usual” campaigns featuring the sponsored athlete during the Games, provided “the campaign does not use Olympic properties” and “the campaign is not escalated during the Games” (Cronin, 2019). Additionally, Australian athletes may now thank their personal sponsors for their support during the Games, provided: there is no commercial connection made with the Olympic Games and the sponsor; the “thank you” doesn’t suggest the sponsor was responsible for the athlete’s performance; the “thank you” can be issued (across multiple social media platforms) once per performance, including any podium ceremony; and, the sponsor cannot congratulate the athlete for their performance (Cronin, 2019). Similarly, in October 2019, the United States Olympic and Paralympic Committee (USOPC) to released its Rule 40 guidelines (USOPC, 2019). Most interestingly, the new guidance eliminates the prior requirement that non-official sponsors submit their advertising campaigns for advance approval to the USOPC. Instead, athletes will need to register their personal sponsors with the USOPC prior to the Games and these sponsors will need to sign a “Personal Sponsor Commitment” to abide by the USOPC’s official sponsor protection guidelines. Notwithstanding the legal and practical business issues embedded in this commitment, which has not been released publicly, it will, according to the USOPC, make it easier for the USOPC to send cease-and-desist letters to companies that violate its anti-ambush terms (Fischer, 2019). The USOPC’s new rules also include increased freedom for athletes to thank personal sponsors via social media and to receive congratulatory messages from sponsors during the Games. Athletes’ personal sponsors can also engage in generic advertising during the Games; a similar provision has been in place since 2016. As expected, official partners maintain continued exclusivity around Team USA and Olympic intellectual property and also receive increased ambush protection through the Personal Sponsor Commitment agreement. The purpose of this presentation is (1) to examine the new Rule 40 guidelines for all countries that have publicly released them by February 2020 and compare and contrast the substance of each NOC’s guidance, (2) to identify and discuss the most likely legal challenges that may arise in the interpretation and enforcement of the various Rule 40 provisions in the United States, and (3) to examine the restrictions and enforcement rights contained in the Personal Sponsor Commitment agreement to better understand the limitations presumed to be imposed upon a non-official sponsor participating in the new Rule 40 advertising paradigm. References Butler, N. (2017). German competition authorities challenge DOSB over Rule 40 marketing restrictions. In- side The Games.Retrieved from https://www.insidethegames.biz/articles/1057224/german-competition-authorities- challenge-dosb-over-rule-40-marketing-restrictions Chanavat, N., & Desbordes, M. (2014). Towards the regulation and restriction of ambush marketing? The first truly social and digital mega sport event: Olympic Games, London 2012. International Journal of Sports Marketing & Sponsorship, 15(3), 151-160. Cronin, B. (2019, July 22). Australian Olympic Committee loosens Rule 40 restrictions. SportBusiness. Retrieved from https://www.sportbusiness.com/news/australian-olympic-committee-loosens-rule-40-restrictions/ Fischer, B. (2019, October 8). USOPC makes major changes to “Rule 40” on sponsorship. SportsBusiness Journal. Retrieved from https://www.sportsbusinessdaily.com/Daily/Morning-Buzz/2019/10/08/Rule-40.aspx Germano, S. (2019, Feb. 27). Olympic athletes seize advertising win. Wall Street Journal. Retrieved fromhttps://www.wsj.com/articles/olympic-athletes-in-germany-seize-advertising-win-11551282342 Grady, J., & McKelvey, S. (2015, May 18). The IOC’s Rule 40 changes and the forecast for Rio 2016. SportsBusiness Journal, p. 19. Kelham, A. (2019, March 5). German Olympians win relaxation of marketing rules. AdLaw Insights. Retrieved from http://adlaw.lewissilkin.net/post/102fg53/german-olympians-win-relaxation-of-marketing- rules?fbclid=IwAR2DvVC0fKMtu-_Md5XxiBvKsvHvexrzYfmehzpic4tcguAqh4hWbKKUBzc Moorman, A.M., & Grady, J. (2019, May). Amateur and Olympic athletes turn to anti-trust law to challenge sponsor-

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ship & advertising restrictions imposed by sport governing bodies. Presentation at the North American Society for Sport Management, New Orleans, LA. Pavitt, M. (2019, June 27). Rule 40 guidelines to be sent to NOCs as IOC claim balance reached between athletes and commercial rights. Inside The Games. Retrieved from https://www.insidethegames.biz/articles/1081272/rule- 40-guidelines-to-be-sent-to-nocs-as-ioc-claim-balance-reached-between-athletes-and-commercial-rights United States Olympic and Paralympic Committee. (2019). Rule 40 guidance for the Tokyo 2020 Games. Retrieved from https://www.teamusa.org/Athlete-Resources/Athlete-Marketing/Rule-40-Guidance.

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An Analysis of Risk and Security Management Practices of High School Athletic administrators in Mississippi

Abstract ID: 23

Dr. John Miller (University of Southern Mississippi), Mr. Jeffrey Curto (Troy University)

There are few things in the United States that are as “Americana” as high school sports. Gardner (2017) stated that attending high school sports contests provides communities an opportunity to cheer for the hometown team and celebrate a sense of commonality. However, violent behavior among fans attending high school sports contests appears to be increasing. Examples of such misbehaviors since the beginning of 2019 include: a ﬁght between students at two rival high school basketball teams that spilled over into the parking lot after a February 2019 game (Sabedra, Jensen, & Mazeika, 2019); ten teenagers were shot after a high school football game in September, 2019 (Holcombe & Moshtaghian, 2019); another September, 2019 incident in which two teenagers were shot during a high school football game in Philadelphia (PA) (Ganz, 2019). Students are not the only ones that have been involved in violence while attending high school athletic games. Vi- olent behavior at high school games may involve the parents, the coaches, the referees, and the fans attending the game. In fact, the violence exhibited by parents even has its own name: youth sports rage (Abrams, 2002). Sports rage may be referred to as “any physical attack upon another person such as striking, wounding, or otherwise touch- ing in an offensive manner, or any malicious, verbal abuse or sustained harassment which threatens subsequent violence or bodily harm” (Heinzmann, 2002, p 67). Additionally, if the violence is directed as referees, it is considered “referee rage” (Abrams, 2002). Recent examples of such rages include, a parent was charged with striking another parent with a large piece of wood after a junior varsity football game (Hedrick & Lowe, 2019). A parent hit in the head with a chair during an October 2019 middle school football game in Oklahoma (Yager, 2019). Finally, a basketball referee was “sucker-punched” in the face by the brother of a player at a high school girls’ junior varsity basketball game (McDowell, 2018). These examples represent the tip of the iceberg of issues that compromise the safety of spectators attending high school sports contests. These issues pose unique legal and risk management challenges for high school administrators in charge of sports games. Signiﬁcant concerns may relate to their ability to: (1) meet the duty of care to protect the fans at pre- and post-game sports events, (2) recognize the responsibilities of premise liability, and (3) address the issue of foreseeability. When a fan attends a game on the high school’s property, by either expressed or implied invitation, a special relationship between the fan and the school is formed. This relationship stipulates that the premises owner has a duty to the invitee to provide a reasonably safe environment (Dobbs, 2000). When such a special relationship exists, the defendant may be held liable under the concept of negligence for his or her failure to protect the injured third party from the actions of another (Bearman v. University of Notre Dame, 1985; Biscan v. Brown, 2005). Should an individual attending a youth sports event be attacked by a third party, the injured person can sue the landowner of the sporting facility for negligence (Hills v. Bridgeview Little League Association, 2000). Although there is no absolute duty for a premises owner to protect third parties, the special relationship doctrine establishes a legal duty where “the defendant” stands in some special relationship to either the person who is the source of the danger, or to the person who is foreseeably at risk from the danger” (Biscan v. Brown, 2005, p. 47). As such, high school administrators have a duty to provide a reasonable standard of care to game attendees by developing, implementing, and enforcing an effective stadium risk management plan (Fried & Ammon, 2009). Risk management research has often focused on the practices of intercollegiate athletic directors (Baker, Con-

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naughton, Zhang, & Spengler, 2007; Gray, & Crowell, 1993; Miller, Gillentine, Vogt, & Scroggins, 2019). However, despite some states passing legislation to deal with sports rage at high school athletic contests (Fiore, 2003), there is a shortage of information regarding risk management practices of interscholastic athletic directors. The purpose of this study was to analyze the risk and security management procedures for high school athletics in the state of Mississippi. A 20-item questionnaire was created to analyze the demographics such as years of experience and school classification as well as the actions of the sample. According to the Mississippi High School Athletic Association (MHSAA) there 31 schools in Class 6A (largest), 32 in Class 5A, 42 in Class 4A, 44 in Class 3A, 45 in Class 2A, and 45 in class 1A (smallest) for a total of 210 high schools. Using the MHSAA website to determine emails, Qualtrics was used to distribute the questionnaire to all 210 Mississippi high school athletics director. Since all of the schools were targeted for the inclusion of the study, a convenience sampling technique was used due to the nonprobability that members of the target population met such practical criteria, such as easy accessibility, geographical proximity, and time availability (Andrew, Pedersen, & McEvoy, 2011). A total of 66 responses were received over a four week period, resulting in an acceptable 31% response rate of online surveys (Sheehan & McMillan, 1999). Descriptive statistics (i.e., frequencies and percentages) were used to report the results. Results Demographic Information The results indicated that 23 (35%) of the respondents had been the athletic director for their school for one to five years. Additionally, 19 (29%) and 16 (24%) responded that they had been the athletic director for 11 to 15 years and 6 to 10 years, respectively. While four (6%) of the respondents had served for 16 to 20 years, four (6%) others reported being an athletic director at their school for more than 20 years. Regarding the level of competition classification, 12 (18%) reported that their school was classified as a 6A school; 15 (23%) indicated they were at the 5A or 4A level; eight (12%) were at 3A schools; eleven (17%) were 2A schools; and five (8%) were at 1A schools. Risk Management Plans Forty-seven (71%) of the respondents revealed that their athletic department possessed a written risk management plan. When asked to identify the components of the risk management plan, 59 (89%) of the respondents revealed an emergency response plan; 46 (70%) denoted that crowd control policies; 49 (74%) indicated that a bomb threat protocol was part of the risk management plan. Risk Management Plan Practices Eight (12%) agreed that the written risk management plan was available on the high school’s website. Thirty-one (47%) communicated evacuation plans by signs in the stadium in case of a bomb threat or active shooter situation. Additionally, 26 (39%) used closed-circuit television cameras for game security coverage. Fifty (76%) believed that the lighting in the stadium and parking lot was adequate enough to identify a person at least 100 feet away. Disturbingly, four (6%) stated searched spectators before allowing them into the game, and only 5 (8%) of the respondents noted that local law enforcement or security personnel checked vehicles as they entered the parking lot nearest the football field. Safety Personnel While 32 (48%) revealed that the high school principal/vice-principal was responsible for game safety and security, 20 (33%) reported that the athletic director was responsible. Of the 66 possible respondents, 48 (73%) indicated that local law enforcement personnel were present at all games. However, 19 (29%) reported that qualified security personnel searched the stadium prior to a football game. Finally, 48 (73%) said that ushers, ticket takers, nor concession vendors were not trained to address security issues such as active shooters, evacuation drills, or fights among parents and students.

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Discussion Given the recent violent behavior of a variety of populations at high school games identified in the introduction, this issue is not going away soon. Although this study was conducted in one state, it does provide some insights into the risk management gaps that may compromise the safety of other spectators. This interactive presentation will provide a more in-depth discussion of the results. References Abrams, D. E. (2002). The challenge facing parents and coaches in youth sports: Assuring children fun and equal opportunity. Villanova Sports & Entertainment Law Journal, 8, 253-292 Andrew, D. P., Pedersen, P.M., & McEvoy, C. D. (2011). Research methods and design in sport management. Champaign, IL: Human Kinetics. Baker, T. A., Connaughton, D., Zhang, J. J., & Spengler, J. O. (2007). Perceived risk of terrorism and related risk management practices of NCAA Division IA football stadium managers. Journal of Legal Aspects of Sport, 13(2), 145-179 Bearman v. University of Notre Dame, 453 N.E.2d 1196 (Ind. Ct. App. 1983). Biscan v. Brown, 160 S.W.3d 462, 2005 Tenn. LEXIS 308 (Tenn. Mar. 30, 2005). Dobbs, D. B. (2000). The law of torts. St. Paul, MN; West Group. Ganz, J. (2019, September 21). 2 teens shot during Philadelphia football game, marks at least seventh shooting of this kind since August. New York Daily News. Retrieved from https://www.nydailynews.com/news/crime/ny-teens- shot-philadelphia-football-game- 20190921-gij2nx3k6netxjeiezwzzssq2i-story.html Gardner, B. (2017, August 28). High school activities bring communities together. Retrieved from https://nfhs.org/articles/high-school-activities-bring-communities-together/ Gray, G. R., & Crowell, S. E. (1993). Risk management behaviors in NCAA Division I athletic programs. Journal of Legal Aspects of Sport, 3(2), 64-70. Hedrick, C. & Lowe, J. (2019, September 18). Fans react to fight between parents at high school football game. Retrieved from https://www.wsaz.com/content/news/Police-Parent-hit- with-a-two-by-four-during-fight-after-high- school-football-game-560684331.html Heinzmann, G. (2002). Facts, myths, and videotape. Parks & Recreation, 37, 3, 66-72. Hills v. Bridgeview Little League Association, 745 N.E.2d 1166, 1177 (Ill. 2000). Holcombe, M. & Moshtaghian, A. (2019). At least 10 teens injured in shooting at a high school game in Alabama. Retrieved from https://www.cnn.com/2019/08/31/us/mobile-ladd- peebles-stadium-shooting/index.html McDowell, S. (2018, January 9). Fans disagree with a high school referee’s calls. Then one punched him in the face. Retrieved from https://www.kansascity.com/sports/high- school/article193795999.html Miller, J., Gillentine, A., Vogt, S., Scroggins, C., &. (2019). A content analysis of tailgating alcohol policies at NCAA Division I football games. International Journal of Sport Management, 20, 1-16. Sabedra, D., Jensen, P, & Mazeika, V. (2019, March). Why students are banned from Los Gatos vs. Palo Alto sports contests. The Mercury News. Retrieved from https://www.mercurynews.com/2019/03/11/why-students-banned-from- los-gatos-vs- palo-alto-sports-contests/ Sheehan, K. B. & McMillan, S. J. (1999). Response variation in e-mail surveys: An exploration. Journal of Advertising Research, 39(4), 45-54. Yager, P. (2019, October 4). Parent high on the head with chair by another parent following middle school football game. Retrieved from https://kfor.com/2019/10/03/parent-hit-on- the-head-with-chair-by-another-parent-following- high-school-football-game/

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Apparel Brand Contracts in Collegiate Athletics -The Title IX Implications

Abstract ID: 56

Ms. Rachel Rose (University of North Carolina at Greensboro), Prof. Barbara Osborne (University of North Carolina at Chapel Hill)

The role of apparel brand sponsorship contracts within collegiate athletics has significantly changed over the last three decades. Nike first signed a collegiate sport sponsorship deal in the late 1980s providing the University of Miami with uniforms (LaFeber, 2002). In the decade following that first notable signing, brand sponsorships became matters of trial and error with no accepted measure of success (Kuzma, Shanklin, & McCally, 1993). However, in the last decade, successful partnerships have been made as the expenditure on sports sponsorships has steadily increased to $62.8 billion globally (Kelly, 2018), with schools signing apparel brand contracts worth $8, $9, and even $16 million (Jensen, Weight, & Popp, 2017). The contracts worth tens of millions of dollars impact the approximately 492,000 (Division I, II, III) NCAA athletes and 65,000 NAIA athletes equaling over half a million student athletes (National Association of Intercollegiate Athletics, 2019; National Collegiate Athletic Association, 2018). As the driving force behind brand sponsorship agreements is often in association with highly visible men’s football and basketball teams, it is worthwhile to note the impact of these contracts on the almost quarter-million female student-athletes. The purpose of this legal research is to analyze who benefits from collegiate athletics apparel brand sponsorship contracts and identify potential gender equity issues. Title IX declares that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits to, or be subjected to discrimination under any education program or activity receiving federal financial assistance” (20 U.S.C. § 1681 (a)). These educational programs or activities include, “interscholastic, intercollegiate, club or intramural athletics” (34 C.F.R. § 106.41 (c)). Within athletics, a significant focus has been on providing female athletes with equal participation opportunities (Biediger v. Quinnipiac Univ., 2013; Cmtys. for Equity v. Mich. High Sch. Ath. Ass’n., 2006; Cohen v. Brown Univ., 1996; Jackson v. Birmingham Bd. of Educ., 2005; Mansourian v. Bd. of Regents of the Univ. of Cal., 2011; McCormick v. Sch. Dist. Of Mamaroneck, 2004; Pederson v. Louisiana State Univ., 2000). However, Title IX compliance also requires that male and female student-athletes receive equal treatment (§ 106.41 (c)). The 1975 Title IX regulations identified nine areas to examine in determining whether men and women student- athletes are treated equally. The “Laundry List’ consists of the following nine items: (1) The provision of equipment and supplies; (2) Scheduling of games and practice time; (3) Travel and per diem allowance; (4) Opportunity to receive coaching and academic tutoring; (5) Assignment and compensation of coaches and tutors; (6) Provision of locker rooms, practice and competitive facilities; (7) Provision of medical and training facilities and services; (8) Provision of housing and dining facilities and services; (9) Publicity (§106.41 (c)). These program components are assessed on a program-wide basis (comparing the men’s program as a whole to the women’s program as a whole) rather than comparing individual men’s teams and women’s teams by sport. Dis- parities are noted and further examined to determine whether the difference amounts to discrimination. As many apparel brand sponsorship contracts include designations for specific sports and specific coaches, it is important to measure the benefits to those teams and whether the contract creates a disparity. As advantages and disadvantages may be offset within each program component area, it is up to the athletics department to rectify any deficits created by the sponsorship agreement to be Title IX compliant. Recently, in Portz v. St. Cloud State University(2019), the US. District court in Minnesota sided with the plaintiff affirming Title IX non-compliance, and suggested a national problem still exists at the collegiate level.

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This research examines whether brand sponsorship contracts may be contributing to unequal treatment. For the purpose of this research, sponsorship is defined according to Pope (1998) as: the provision of resources (e.g. money, people, equipment) by an organization (the sponsor) directly to an individual, authority or body (the sponsee) to enable the latter to pursue some activity in return for benefits contemplated in terms of the sponsor’s promotion strategy and which can be expressed in terms of corporate, marketing, or media objectives. The contracts were obtained from Jensen, Weight, and Popp (2017). Without their assistance, this research would not have been possible. Jensen, Weight, and Popp (2017) utilized the contracts in their work on intercollegiate apparel agreements and provided the necessary foundational work for the research in this area. The contracts represent 106 schools in ten conferences. In total, there are 165 contracts and extensions, but a representative sample was chosen for this research. The contracts were first separated into conferences. Then a stratified random sample was chosen to effectively represent the conferences, including Power 5 and Mid-Major. For the stratifi- cation process, within each conference, the schools were alphabetized and then assigned a number from 1 to N, with the contract then chosen using a randomizer. Once the contracts were selected, each contract was coded for demographic information – the name of the school, the conference, and the apparel brand partner. Additional demographic information was retrieved from the EADA (Equality in Athletics Data Analysis) website – number of men’s and women’s teams, the spending on those teams, the number of male and female coaches for each sport, and the salaries of those coaches. Beyond demographic information, lines, excerpts, and full clauses were coded from the contracts themselves. Anything was coded that included references to a team’s benefits, a coach’s benefits, and male/female teams/benefits. The process was done using open coding and adapted over time to best analyze the fluidity of contracts. Lastly, an analysis was conducted considering the cumulative and comparative quantitative data to identify potential disparities due to the apparel brand contracts. The discussion will include the significant implications of the contracts on Title IX compliance, identifying whether contracts advantage coaches and/or teams based on sex, and specifically denoting inadequate and inequitable al- locations if the athletic departments do not adjust accordingly. The discussion will conclude with potential legal implications based upon precedent in Title IX inequity cases. References § 106.41 Athletics., 34 CFR 106.41 (2019). Retrieved from https://advance-lexis- com.libproxy.lib.unc.edu/api/document?collection=administrative-codes&id=urn:contentItem:5WRS-S490-008H- 0280-00000-00&context=1516831. § 1681. Sex, 20 USCS § 1681 (2019). Retrieved from https://advance-lexis- com.libproxy.lib.unc.edu/api/document?collection=statutes- legislation&id=urn:contentItem:8S8T-0T92-8T6X- 72K5-00000-00&context=1516831. Jensen, J., Weight, E., & Popp, N. (2017). 2017 CRIA Intercollegiate apparel agreement report. Center for Research in Intercollegiate Athletics. Retrieved from https://docs.wixstatic.com/ugd/1ee3b7_11a67a0eb0754c5e85250e2fb6c567b5.pdf Kelly, S. J. (2018). We are only starting to figure out the value of sponsoring sports. The Conversation. Retrieved from http://theconversation.com/we-are-only-starting-to-figure- out-the-value-of-sponsoring-sports-88858 Kuzma, J. R., Shanklin, W. L., & McCally, J. F. (1993). Number one principle for sporting events seeking corporate sponsors: Meet benefactor’s objectives. Sport Marketing Quarterly, 2(3), 27-32. LaFeber, W. (2002). Michael Jordan and the New Global Capitalism (New Edition). WW Norton & Company. National Association of Intercollegiate Athletics. (2019). The experts in the business of small college athletics. NAIA.org. Retrieved from https://www.naia.org/landing/index National Collegiate Athletic Association. (Mar 2018). NCAA recruiting facts. NCAA.org. Retrieved from

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http://www.ncaa.org/sites/default/ﬁles/Recruiting%20Fact%20Sheet%20WEB.pdf Pope, N. (1998). Consumption values, sponsorship awareness, brand and product use. Journal of Product & Brand Management, 7(2), 124-136. Portz v. St. Cloud State Univ., 2019 U.S. Dist. LEXIS 128673 (USDC Minn. , 2019). Retrieved from https://advance-lexis- com.libproxy.lib.unc.edu/api/document?collection=cases&id=urn:contentItem:5WPR- CT51- F22N-X46D-00000-00&context=1516831.

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As the College Basketball Bounces: Part III

Abstract ID: 87

Prof. Barbara Osborne (University of North Carolina at Chapel Hill), Prof. Mark Dodds (SUNY Cortland), Prof. Kerri Cebula (Kutztown University)

In 2017, four assistant basketball coaches at NCAA member institutions were arrested, along with five other individuals under two different criminal schemes. The Adidas Recruiting Bribery scheme accused Adidas executives of making payments to high school players and their families through intermediaries to secure those players’ commit- ments to attend Adidas-sponsored universities. The Coach Bribery scheme involved college coaches who took cash bribes to pressure players and their families to retain the services of agents and financial advisors. In late 2018, three defendants, former Adidas executive James Gatto, former Adidas consultant Merl Code, and Christian Dawkins were found guilty of wire fraud charges and received prison sentences ranging from six to nine months. Meanwhile, the four assistant coaches pled guilty to conspiracy to commit bribery and received sentences ranging from probation and community service to prison time. In May 2019, a second trial on separate charges resulted in additional guilty verdicts for Code and Dawkins. Former Adidas consultant TJ Gassnola pled guilty and cooperated with the FBI, testifying at Gatto, Code, and Dawkin’s trial. He avoided prison time for his efforts and received one year of supervised release. Attorneys for Gatto, Code and Dawkins filed a 144-page appeal on August 13, 2019; they remain released with their sentences deferred until the appeals are heard. Several additional college basketball coaches have been implicated in the two bribery schemes, but none have yet been arrested. The NCAA was caught completely unaware when the initial indictments were filed in September 2017. NCAA Presi- dent Mark Emmert released the following statement, “The nature of the charges brought by the federal government are deeply disturbing. We have no tolerance whatsoever for this alleged behavior. Coaches hold a unique position of trust with student-athletes and their families and these bribery allegations, if true, suggest an extraordinary and despicable breach of that trust” (NCAA, 2017). At the request of the FBI, the NCAA held off on their investigations until the trials were concluded. Its investigations were dealt a blow in September 2019 when Judge Lewis Kaplan denied the NCAA access to exhibits used at the trial of Gatto, Code, and Dawkins, stating: “the materials relate to potential rules violations of third-parties not on trial in this action…[d]isclosure carries the risk of certain significant reputational and professional repercussions for those referenced in these documents” (Schlabach, 2019). It is known that two schools, North Carolina State University (NC State) and the University of Kansas (Kansas), have received a Notice of Allegations (NOA) from the NCAA (Giglio, 2019; Newell, Vockrodt, Bedore, 2019). The NCAA issues a Notice of Allegations if, after an investigation, the Enforcement staff believes that the Committee on Infractions could find that a violation of NCAA rules has occurred (NCAA, 2019). NC State’s NOA alleges that Orlando Early, then an assistant coach for the Men’s Basketball team, arranged for TJ Gassnola to provide Early with $40,000 in cash to be passed through intermediaries to Dennis Smith, Jr, a prospective student-athlete whom Early was recruiting. It also alleges that then head coach Mark Gottfried failed to monitor his direct reports. One of the most serious charges the NCAA can level, lack of institutional control, has not been leveled against NC State. The Kansas NOA alleges that Gatto and Gassnola provided $89,000 to a student-athlete believed to be Billy Pre- ston; Kansas redacted names of student-athletes before releasing the NOA. It further alleges that Gassnola provided $15,000 to a family friend of a then prospective student-athlete believed to be Deandre Ayton, who attended the University of Arizona. Kansas is also alleged to have allowed impermissible recruiting contact between Adidas rep-

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resentatives and a prospective student-athlete believed to be Silvio DeSousa. Head Coach Bill Self has been charged with failure to promote an atmosphere of compliance and failure to monitor his staff. More importantly, unlike NC State, Kansas was charged with lack of institutional control and failure to monitor its athletics programs. A third school, the University of Louisville, reports that it has received a notice of inquiry from the NCAA (Sullivan, 2019). A notice of inquiry is given to institutions when the Enforcement staff begins an investigation into possible Level I or Level II violations (NCAA, 2019). Details of the notice of inquiry have not been announced, but it is believed that the investigation centers around the payments from Adidas representatives to then Louisville recruit Brian Bowen, Jr. to secure his commitment to the school (Sullivan, 2019). It should be noted that Bowen’s father testified for the United States in the first Adidas trial about receiving payments from Louisville assistant coaches (Sullivan, 2018). Currently, NCAA investigators are believed to be investigating five additional schools (Schlabach, 2019). Only time will tell if criminal prosecution and the resulting guilty pleas, convictions and prison sentences can “fix” the corruption problems in NCAA Division I Men’s Basketball. Judge Lewis Kaplan expressed hope that the sentences would send a “great big warning light to the basketball world,” deterring others involved in similar payments (Hobson, 2019). On their end, the NCAA Division I Council has developed eight working groups to address the recommendations made by the independent Commission on College Basketball, but the court of public opinion is often impatient for change. This presentation provides updates on the criminal trials, sentencing, and appeals. The primary focus is on the NCAA investigations of its members implicated for rules violations in the criminal trials. Discussion includes the effectiveness of criminal prosecution in addressing corruption in college basketball and how the lessons learned can be applied to other issues such as name, image and likeness compensation as legislators and litigators continue to pressure the NCAA to act swiftly.

References Giglio, J (2019, July 10). NC State gets NCAA Notice of Allegation for violations related to Dennis Smith Jr. The News & Observer. Retrieved from: https://www.newsobserver.com/sports/article232509892.html Hobson, W. (2019, March 5). Adidas officials and aspiring agent receive prison sentences in basketball corruption trial. The Washington Post.Retrieved from: https://www.washingtonpost.com/sports/2019/03/05/adidas-officials- aspiring-agent-receive-prison-sentences-basketball-corruption-trial/ National Collegiate Athletic Association (2019). 2019 – 20 NCAA Division I manual.Indianapolis, IN: Author. Newell, J., Vockrodt, S., Bedore, G. (2019, September 23). NCAA alleges major violations against KU basketball. Self, school to fight charges. The Kansas City Star.Retrieved from: https://www.kansascity.com/sports/college/big- 12/university-of-kansas/article235409312.html Notice of Allegations to the Chancellor of North Carolina State University (2019, July 9). Notice of Allegations to the Chancellor of University of Kansas (2019, September 23). O’Neil, D (2019, May 9). The FBI is done with college basketball. Can the NCAA finish the job? The Athletic. Re- trieved from: https://theathletic.com/970471/2019/05/09/the-fbi-is-done-with-college-basketball-can-the-ncaa-finish- the-job/?redirected=1 Schlabach, M (2019, September 3). Judge denies NCAA request for Gatto material. ESPN. Retrieved from: https://www.espn.com/mens-college-basketball/story/_/id/27529009/judge-denies-ncaa-request-gatto-material Sullivan, T (2018, October 10). Bowen Sr. adds fuel to dumpster fire by testifying in pay-to-play trial. Louisville Courier Journal. Retrieved from: https://www.courier-journal.com/story/sports/college/louisville/2018/10/10/brian- bowen-sr-testimony-adds-fuel-louisville-dumpster-fire/1586344002/ Sullivan, T (2019, April 10). Chris Mark, Brian Bowen Jr. still ‘focused’ on basketball after NCAA notice of inquiry. Louisville Courier Journal. Retrieved from: https://www.courier-

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journal.com/story/sports/college/louisville/2019/04/10/university-louisville-receives-ncaa-notice- inquiry/3429881002/

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Assessing the NCAA as a Compliance Organization

Abstract ID: 58

Prof. Nathaniel Grow (Indiana University - Kelley School of Business), Prof. Todd Haugh (Indiana University - Kelley School of Business)

At root, the National Collegiate Athletic Association (NCAA) is a compliance organization—one established to ensure that its membership is abiding by the association’s rules. Indeed, the association has established a considerable administrative apparatus to monitor whether its member institutions are complying with an increasing number of NCAA rules and regulations. While a significant body of academic literature analyzes the NCAA and its regulations, somewhat surprisingly none of these prior works evaluate the effectiveness of the NCAA as a compliance organization. This omission is all the more glaring considering that the past decade has seen a rich body of work emerge regarding the field of corporate and organizational compliance. This article seeks to fill this gap in the existing literature by analyzing the NCAA through the lens of corporate governance and compliance. In the process, it will make several contributions to the field. The article begins by examining the extent to which the body of NCAA rules and regulations has expanded over time, and considers the implications of this growth for effective compliance. Today, the NCAA’s operating bylaws total well over 350 pages, a sum that does not include the array of other manuals, documents, and interpretive guidance released by the association each year. While the NCAA compiles these additional resources ostensibly for purposes of providing added clarity regarding the expectations imposed on its member institutions, in reality such guidance creates layers of unnecessary complexity to the regulatory framework—complexity that can be counterproductive to the association’s compliance goals. Moreover, the manner in which the NCAA adopts these rules may itself further hamper the effectiveness of its compliance efforts. Because many NCAA rules have traditionally been initially proposed at the conference-level, the association’s legislative process has often focused on discrete issues championed by a small group of schools. This frequently results in a phenomenon where smaller-budget universities use the NCAA’s legislative process to enact a variety of rules intended to keep higher-spending universities in check, in the hopes of fostering greater competitive balance. The end result of this process is that NCAA bylaws now touch upon nearly every aspect of sporting competition and the student-athlete experience, regulating student-athlete eligibility, recruitment, financial aid, and practice limits, among other things, in what has been described as an “excruciating” level of detail.[1] Indeed, rather than focus on the NCAA’s stated core values of advancing “the well-being and lifelong success of college athletes,”[2] the association’s byzantine set of rules instead require schools to spend substantial resources monitoring their compliance with a variety of trivial minutiae that merely serve to equalize the competitive balance between NCAA member institutions. For instance, studies have found that most large, Division I institutions self- report more than 10 NCAA rules infractions each year, mostly of a minor variety,[3] while the NCAA itself annually processes more than 4,000 infractions involving low-level, secondary rule violations.[4] This regulatory bloat has significant implications for the NCAA’s compliance efforts. The literature regarding corporate compliance has observed that one of the most important aspects of compliance success is the internal legitimacy of the compliance program within the organization. But overregulation, especially when it is a product of the political economy of small-budget member institutions, breeds illegitimacy. As rules proliferate, they are inevitably enforced more arbitrarily, which delegitimizes the entire compliance endeavor. This delegitimization not only decreases compliance effectiveness, it actually fosters wrongdoing by allowing coaches, players, and compliance staff

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space to rationalize rule-breaking behavior. The recent college basketball bribery scandal offers an example of this phenomenon. At the same time, the NCAA’s compliance efforts have also been hampered by the fact that the individuals ultimately most responsible for ensuring compliance with the rules—namely the head coaches—have no formal contractual relationship with the NCAA. As a result, the association has been forced to develop the so-called “show cause” procedure, whereby any member institution that employs an individual found to have engaged in a serious violation of NCAA rules is required to show cause that they have properly penalized the employee in question for the violation. In this way, the compliance function is decoupled not only from the behaviors the NCAA says it is trying to curtail, but also from the person who should be leading those efforts on behalf of the organization. This process leads to lessened compliance program legitimacy and, ultimately, increased wrongdoing. Consequently, our paper makes several observations. First, it suggests that the NCAA should make a more serious effort to streamline its rules and regulations. While the organization has undertaken a series of deregulatory efforts over the years, these efforts have failed to meaningfully simplify the association’s rulebook. By streamlining the organization’s rules, the NCAA will allow itself and its member institutions to reallocate resources away from ensuring compliance with a plethora of relatively inconsequential regulations and instead put these resources to better use focusing on compliance efforts affecting the association’s most pressing issues. Along these lines, when streamlining its rulebook, the NCAA should reexamine its rules from the perspective of assessing whether each particular regulation actually furthers the organization’s core values, or instead simply re- ﬂects a desire to prevent larger-budget schools from furthering their competitive dominance on the playing ﬁeld. By refocusing the rules in this way, the NCAA can help to increase legitimacy of its regulatory efforts in the eyes of its most important stakeholders (i.e., its coaches and student-athletes), thereby bolstering these stakeholders’ commitment to following the rules. Fostering this type of positive, self-reinforcing compliance cycle offers the association its best path to reaching its core goals. [1] Maureen A. Weston, NCAA Sanctions: Assigning Blame Where It Belongs, 52 B.C. L. Rev. 551, 561 (2011). [2] What is the NCAA?, NCAA.org, http://www.ncaa.org/about/resources/media-center/ncaa-101/what-ncaa (last accessed Oct. 16, 2019). [3] Gene Marsh & Marie Robbins, Weighing the Interests of the Institution, the Membership and Institutional Repre- sentatives in an NCAA Investigation, 55 Fla. L. Rev. 667, 675 (2003). [4] Josephine R. Potuto, The NCAA Student-Athlete Reinstatement Process: Say What?, 63 Buff. L. Rev. 297, 307-08 (2015).

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Betting on the Future of Sport; An Analysis of Recent Changes in Sport Gambling Laws and the Role of Oﬃcial Data

Abstract ID: 64

Mr. Bill Squadron (Elon University), Dr. Mark Cryan (Elon University)

When the Professional and Amateur Sports Protections Act (“PASPA”) was struck down by the Supreme Court in May of 2018, it dealt a whole new hand of cards to state legislatures, the gaming industry, sports leagues, fans and bettors (Haines, 2018). Some states, such as New Jersey, have jumped into the game right away (“Supreme Court,” 2018). Others have adopted a wait-and-see strategy. Regardless of each state’s approach, major changes are coming. This presentation will provide a summary of recent developments and major issues in the wake of PASPA, including where key states stand on new sport betting legislation, and the industry’s efforts in the legislative arena. Many key issues remain unresolved, though, and the future of sport betting regulation is still up in the air, like a last-second field goal to cover the spread. One key issue is the legislative battle over whether states will require betting operators (bookmakers) to use a league’s official data. Leagues support this requirement, claiming that it insures that the settling of bets will be accurate and fast, enhancing the integrity of betting. They also stand to make money from the sale of official data. (Holden, 2019) The betting operators oppose this requirement because it would create a monopoly for a necessary element – data – that would leave them at the mercy of the leagues. They believe there should be a competitive market for data and that their deals for official data should be driven by negotiation. (Brown, 2018) The courts have previously held that “unofficial” data, logged from a game telecast, is not owned by the league and can be commercially exploited by any party (Frodl, 2015). So far, it seems that this precedent and the industry’s argument has been more persuasive, as most states that have legalized sports betting so far have not included this requirement. Only Illinois and Tennessee have mandated it (Holden, 2019). But the largest states like California, Texas and Florida have not yet acted. The issue boils down to whether this should be left to the market, or whether the leagues and the public need some form of protection through a statutory requirement requiring official data. This issue may be among the most important to leagues and bookmakers, but there are a host of related issues at play. Additional questions including whether federal legislation is forthcoming, if college athletics will be treated differently than pro sports by betting operators and legislators, and the choice of mobile gambling versus “brick-and-mortar” on-site wagering are among the other important issues that will be briefly discussed. Questions on these issues and the current state and the future of sports betting will be answered by the presenters, one of whom, Bill Squadron, is a leading expert in the field. REFERENCES Brown, M. (2018, May 7). MLB’s gamble on integrity fees and its official data stream getting pushback from gaming operators. Forbes. Retrieved from https://www.forbes.com/sites/maurybrown/2019/05/07/mlbs-gamble-on-integrity-fees -and-its-official-data-stream-getting-pushback-from-gaming-operators/#74ea0b998014 Frodl, C. (2015). Commercialization of sports data: rights of event owners over information and statistics generated about their sports events. Marquette Sports Law Review, 26, 55. Haines, H. M. (2018). Passing the Ball: The United States Supreme Court strikes down PASPA and throws sports gambling back to state legislatures. Maryland Law Review, 78, 604.

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Holden, J. (2019, September 6) Remember the federal sports betting bill? Apparently, it’s still a thing. Legal Sports Report. Retrieved from https://www.legalsportsreport.com/35368/federal-sports-betting-bill-oﬃcial-league-data/ Supreme Court strikes down PASPA, opens door to Sports Betting (2018, May 14). Sport Business Daily, Retrieved from https://www.sportsbusinessdaily.com/Daily/Issues/2018/05/14

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Buffer Zones and the Recreational Golf Sector: A Comprehensive Case Content Analysis

Abstract ID: 55

Ms. Natalie Bird (University of Arkansas), Dr. Merry Moiseichik (University of Arkansas)

Every sport has inherent risks, and golf is no exception. Anyone who watches professional golf regularly has seen a spectator get hit by an errant shot, and most avid golfers have experienced the panic of almost being struck by a golf ball. Awareness of the severity of injuries caused by errant shots has reemerged after professional golfer Brooks Koepka struck a woman in the eye at the 2018 Ryder Cup. This incident quickly made its way into the media, along with the woman’s threat to sue tournament organizers. The danger of errant shots at professional events has become a popular discussion topic, but this risk is relevant in every stage of the game. This incident and the subsequent threat of litigation pose important questions: What precautions is the golf industry taking to protect spectators and players from injury due to errant shots? More specifically, how are golf course managers protecting everyday players from injury due to errant shots during regular play? Seidler (2006) defines a buffer zone as “a certain amount of space between the activity area and any obstructions… to enhance the safety of the participants” (p. 33). Dougherty and Seidler (2007) explain “activity providers bear a legal obligation to take reasonable precautions to prevent harm to participants, spectators, and paid or volunteer staff” (p. 4). Insufficient buffer zones breach that duty and often result in serious injury that could have been prevented. Buffer zones are not alterations of an activity, but a strategy to “present the safest activity area possible” (Mumcu, Fried, & Liu, 2019, p. 86). However, because every sport has its own inherent risks due to elements such as rules, equipment, physical demands, and number of participants, buffer zones are not a one-size-fits all solution used to mitigate participant injury. Some sports have standard recommendations regarding buffer zones, but many governing bodies provide no or inconsistent suggestions for implementation (Martin & Seidler, 2009). Professionals who do not understand the risks associated with inadequate buffer zones put their participants at risk and create opportunities for litigation (Dougherty & Seidler, 2007). “In short, one can drastically reduce the likelihood of participant injuries and subsequent lawsuits in many sports and activities simply by providing ample buffer zones” state Dougherty and Seidler (2007, p. 5). One would assume golf buffer zone standards would have been developed over time, especially considering the game of golf is over 200 years old (Goodner, Gillmeister, and Moran, 2017). Dr. Alister MacKenzie’s 1920 book Golf Architecture: Economy in Course Construction and Green-Keeping is of the first publications in golf course design. Most of the points made in this work focus on creating the best experience for the player, sprinkled with vague statements such as “there should be a minimum of blindness for the approach shots” that are unclear in context (2015, p. 5). Surprisingly, resources available today are not much different. There are presently no professional standards in golf course design and buffer zone implementation, nor is there a governing body designated to create, implement, and enforce safety standards. Buffer zone lawsuits in golf are most often due to proximity of holes, such as in Milligan v. Sharman (2008) and Johnson v. City of Detroit (1977). In both of these cases, the plaintiff sued the golf course owner after being struck by another player’s shot from an adjacent hole. The decision in both cases was the owner owed no responsibility because expert witnesses “failed to identify any specific industry standard upon which he relied in concluding that the golf course was negligently designed” (Milligan v. Sharman, 2008, p. 1). Proximity of holes, however, is not the only concern when it comes to buffer zones—injuries may be caused by

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“golfers to other golfers, golfers in the same party and in another party, while taking instruction, golf carts, driving ranges, premises, club houses, non-golfers such as caddies, children, employees, spectators, and residents adjacent to golf courses” (Sawyer, 2005, p. ix). In Hawkes v.CatatonkGolf Club (2001) an errant shot from a hole parallel to the parking lot struck the plaintiff as he was walking toward the clubhouse. Property damage on a golf course premises was present in the case of MEC Leasing, LLC. v. Jarrett (2007), where four vehicles were damaged by four separate golf balls while they were parked next to the golf course. Cart path and restroom locations in Yoneda v. Tom (2006) resulted in injury as a golfer was struck after emerging from behind a bathroom while driving on the cart path. An errant shot caused the injury, but poorly arranged cart paths and restrooms were the proximate cause. Regardless of each case’s details, all of these lawsuits could have been prevented had buffer zone standards proposed better course planning and management. This study aims to understand the legal issues that surround recreational golf buffer zones using a content analysis of related court cases in the last 10 years. According to Moiseichik (2014), a “content analysis is a replicable, systematic examination” used to identify “themes, patterns, trends and longitudinal changes to draw inferences” (p. 43). Hall & Wright (2008) state “content analysis is more than a better way to read cases. It brings the rigor of social science to our understanding of case law, creating a distinctively legal form of empiricism” (p. 64). Two research questions guide this study: RQ 1: How many lawsuits in the last 10 years are due to inadequate buffer zones? RQ 2: What are common issues/themes in golf negligence lawsuits of the last 10 years? Data will be collected using a Nexis Uni search of U.S. state and federal golf-related negligence court cases that occurred in the 2008 to 2018 date range. This method of data collection was chosen for ease of access of the large number of cases that are public record per Nixon v. Warner Communications, Inc.(1978). After searching the key word “golf”, “negligence” was then used to search within the results, followed by the term “injury”. This search includes federal and state cases, yielding results of 1,427 and 1,332 cases, respectively. Cases pertaining to contracts, patents, and other legal issues outside the scope of this study will be removed throughout the data collection process. Date, issue, injuries/damages, and decision are the case data that will be collected. Examples of issues include, but are not limited to, golf balls, golf carts, course layout, parking lots, and signage. After all cases have been analyzed, descriptive statistics and qualitative analysis to determine themes for context of the lawsuits will be used to evaluate results of the study. This case content analysis aims to “predict future adverse events with sufficient warning to facilitate implementation of prevention programs” (Graham & Rhomberg, 1996, p. 17). The prevention programs of focus in this study are buffer zones as applied to recreational golf. Because zero buffer zone standards have been established within any sector of the golf industry, the findings of this research will contribute to the literature and also provide guidance for professional practice. An in-depth analysis of court cases will also expose other litigation issues present in the golf industry and can be used to develop risk management procedures. Strategies to protect entities from litigation are beneficial to the golf industry and also encourage prudent professionalism in the sport and recreation industries as a whole. References Dougherty, N., & Seidler, T. (2007). Injuries in the buffer zone: A serious risk-management problem.Journal of Phys- ical Education, Recreation & Dance, 78(2), 4-7 Goodner, J. R., Moran, F., & Gillmeister, H. (2017) Golf. Encyclopedia Britannica online.Retrieved from https://www.britannica.com/sports/golf Hall, M., & Wright, R. (2008). Systematic Content Analysis of Judicial Opinions.California Law Review, 96(1), 63- 122.Retrieved from http://0www.jstor.org.library.uark.edu/stable/20439171 Hawkes v. Catatonk Golf Club, 288 A.D.2d 528; 732 N.Y.S.2d 132; (N.Y. App. Div. 2001)

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Johnson v. City of Detroit, 2018 (U.S. App. 1977) MacKenzie, A. (2015). Golf architecture: Economy in course construction and green-keeping.Dublin, Ohio: Coventry House Publishing. (Original work published 1920) Martin, N. T., & Seidler, T. L. (2009). Buffer zones and primary assumption of risk. Journal of Physical Education, Recreation & Dance, 80(3), 9-11. Retrieved from http://0- search.proquest.com.library.uark.edu/docview/215761329?accountid=8361 MEC Leasing, LLC. v. Jarrett, 343 Ore. 555; 173 P.3d 832 (Ore. 2007) Milligan v. Sharman, 52 A.D.3d 1238; 859 N.Y.S.2d 827; (N.Y. App. Div. 2008) Moiseichik, M. (2014). Methods of government negligence protection for provision of physical activities. Journal of Legal Aspects of Sport, 24, 43-61. Mumcu, C., Fried, G., and Liu, D. (2019). Buffer zone: Policies, procedures, and reality. Journal of Legal Aspects of Sport, 29(1), 86-11. Sawyer, T. H. (2005). Golf and the law: A practitioner’s guide to the law and golf management. Durham, NC: Carolina Academic Press. Seidler, T. (2006). Planning and designing safe facilities. Journal of Physical Education, Recreation & Dance, 77(5), 32–37. Yoneda v. Tom,111 Haw. 12; 136 P.3d 288 (2006 Haw)

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Chum in the water: Sports agency issues and the need to better educate collegiate athletes about agency

Abstract ID: 25

Dr. Natasha Brison (Texas A&M University), Dr. Chris Hanna (Georgia Southern University)

Duke University freshman forward Zion Williamson—who earned All-America honors and multiple Player of the Year accolades—was one of the most talked about basketball players during the 2018-2019 collegiate season (Araton, 2019). With his anticipated decision to enter the draft, Williamson became the focus of not only the popular press for his skills on the court, but also sports agents hoping to represent the player. He averaged 22.6 points, 8.9 rebounds, and 2.1 assists per game (Foxsports.com, 2019) and set numerous records for not only Duke, but also the NCAA (Duke Athletics, 2019). After one year at Duke University, Williamson announced in April 2019 that he was entering the National Basketball Association (NBA) Draft (Conway, 2019). Two months later Williamson was selected by the New Orleans Pelicans as the number one pick during the NBA draft (Mahoney, 2019). However, during those two months, Williamson’s basketball career at Duke came under scrutiny. First, Attorney Michael Avenatti accused Nike of paying Williamson’s mother Sharonda Sampson a bribe to convince her son to attend Duke University. A five-month investigation determined there was “no evidence” of wrongdoing nor was Williamson’s eligibility compromised (Boone, 2019, para. 1). Next, he became involved in a lawsuit with Prime Sports and Gina Ford, a company he signed with on April 20, 2019 to represent him for marketing services. Williamson alleges that Prime Sports falsely misrepresented the company as registered agents (Williamson vs. Prime Sports, 2019a). In fact, no employee of Prime Sports is certified as a registered agent in North Carolina, which is a violation of the Uniform Athlete Agents Act (UAAA). Williamson is now represented by Creative Artist Agency and is seeking to void the contract (Williamson vs. Prime Sports, 2019a). Believing no violation has occurred, Prime Sports countersued for breach of contract and $100 million in damages (Prime Sports v. Williamson, Creative Artists Agency et al., 2019). There have been numerous cases involving sports agents and college players (Michael Beasley v. Bell Sports Inc., 2011; United States v. Norby Walters et al., 1989). Several states have revised their laws to distinguish whom is considered an agent. As such, the purpose of this presentation is to examine the federal and state rules (and penalties) regarding sports agents. Researchers also will explore several legal cases related to sports agent misconduct in recruiting student-athletes as clients. To protect student-athletes at the federal level, the Federal Trade Commission (FTC) created the Sports Agent Re- sponsibility and Trust Act of 2004 (SPARTA) (15 U.S.C. § 7801-7807). This Act details the duties required of sports agents when interacting with athletes. Specifically, the sports agents: 1) must be truthful and not misleading, 2) must disclose to student athletes the potential loss of NCAA eligibility by signing with an agent, and 3) cannot provide anything of value to the student-athlete or anyone associated with him/her prior to the signing of a formal contract (15 U.S.C. § 7802(a)). Violations of SPARTA can be enforced by the FTC or by a state’s Attorney General on behalf of the student-athlete. Under SPARTA, a sports agent may receive fines of up to $11,000 as punishment for unfair or deceptive practices (FTCA, Section 18(a)(1)(B)). At the state level, the Uniform Athlete Agents Act (UAAA) serves as the guideline for agent regulation. Although the laws can vary by state, most states require a sports agent to provide student-athletes with the relevant information needed to evaluate the prospective agent. The UAAA also mandates an agency to provide written notice to institutions when a student-athlete signs an agency contract before his/her eligibility expires. Violations of a state’s agent regulations may result in criminal, civil, and administrative penalties. For instance, in North Carolina, if an athlete can prove that a state’s agent laws have been violated, such as acting as an athlete agent without a certificate of

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registration, the contract may be voided by the athlete (See Section 78C-88). The National Collegiate Athletic Association (NCAA) is a member-led governing body for collegiate athletics which serves over 1,100 colleges and universities, 100 athletic conferences, and 40 affiliated sports organizations (NCAA, 2019a). The NCAA supports both SPARTA and the UAAA as mechanisms to protect student-athletes from any improper or illegal conduct by sports agents (NCAA, 2019b). This is due to the potential repercussions for the student- athlete under NCAA Bylaw 12.3.1. The Bylaw states that a student-athlete who agrees (verbally or in writing) to be represented by a sports agent for employment or marketing services will lose their eligibility to compete in collegiate athletics. Student-athletes may also lose eligibility if he/she (or a family member) receives anything of value from a sports agent while eligible to compete in collegiate athletics (NCAA Bylaw 12.3.1.2). Violations of the NCAA Bylaw may result in penalties for not only the athlete but also the team and the university (NCAA, 2019b). Despite the violations and penalties imposed by the NCAA, SPARTA, and the UAAA, student-athlete interactions with sports agents remain problematic. One of the earliest sports agent violation cases involved Norby Walters and Lloyd Bloom who signed 58 college football players to representation agreements and provided the players with personal loans. Players were told not to disclose the relationship (or the signing of the agreement) to their institutions. Only two players honored their agreements after graduating from college; those who chose not to remain with Walters and Bloom were personally threatened in an attempt to enforce the contracts. Walters and Bloom were convicted of five counts of RICO violations and conspiracy in the Northern District of Illinois. Both were sentenced to jail time as well as a five-year probation (United States v. Norby Walters et al., 1989). In 2011, NBA player Michael Beasley was involved in a breach of contract lawsuit with Bell Sports Inc. Beasley countersued claiming Bell had violated NCAA rules and federal laws governing agency conduct in his efforts to sign him as a client. Notably, the lawsuit alleged Bell had developed a financial relationship with Curtis Malone and the DC Summer Assault Amateur Athletic Union (AAU) basketball program to encourage Malone and his team coaches to steer clients, such as Beasley, to his agency. Even though Malone was not an agent, he and Beasley’s coach Dalonte Hill were individuals who provided the athletes with college and career advice. Also, unbeknownst to Beasley, Bell had made multiple payments to Beasley’s mother which were intended to induce Beasley into executing a player agent agreement with his agency (Michael Beasley v. Bell Sports Inc., 2011). In 2018, Oregon passed a law to modify its definition of an agent. Anyone who serves the athlete in an advisory capacity (e.g., financial matters, business pursuits, career management decisions) or who manages the business affairs of the athlete is deemed an agent (Senate Bill 5, Section 2a). In his testimony before the Senate Judiciary Committee, Jeff Hawkins (Senior Associate Athletic Director at the University of Oregon) stated that sports agents are still an issue for Oregon high schools and colleges. Many of the agents are using improper benefits such as cash and gifts to entice the athletes to sign with them, ultimately putting the student’s education at risk (Heitner, 2017). The Williamson case, the Beasley lawsuit, and Jeff Hawkins’ testimony beg the question of whether the NCAA needs to modify its process and provide collegiate athletes with more guidance regarding sports agents. Although there are numerous laws in place to protect student-athletes, student-athlete interactions with sport agents are a steadfast problem. Some have argued that the solution to the improper conduct of sports agents (and the plethora of other sports scandals) is to pay student-athletes (Bilas, 2017). However, paying the student-athletes is not enough. Efforts should focus on what is being communicated to these athletes about sports agents. Specifically, how best to conduct their own research about sports agents and how to make an informed decision as to representation. As a result, researchers will analyze the NCAA educational memos which provide agent information for student-athletes across various sports. The documents will be examined to determine the themes or messages within the educational memos. Using these documents, federal/state laws, and the case law, researchers will provide recommendations and suggestions for student-athletes and athletic administrators regarding how best to navigate interactions with sports agents.

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References Araton, H. (2019, June 20). Zion Williamson is the choosing one. Retrieved from https://www.nytimes.com/2019/06/20/sports/zion-williamson-nba-draft.html Michael Beasley v. Bell Sports Inc.(Case No. 342922-V) (filed September 27, 2011). Bilas, J. (2017, September 28). Why the college basketball scandal won’t get fixed until the NCAA pays athletes. Retrieved from https://www.espn.com/mens-college-basketball/story/_/id/20841877/until-ncaa-solves-money- problem-pays-athletes-problems-continue Boone, K. (2019, September 6). Duke clears Zion Williamson after investigating allegations from Michael Avenatti that Nike paid him. CBS Sports. Retrieved from https://www.cbssports.com/college-basketball/news/duke-clears- zion-williamson-after-investigating-allegations-from-michael-avenatti-that-nike-paid-him/ Conway, T. (2019, April 15). Likely No. 1 Pick Zion Williamson declares for 2019 NBA draft, leaves Duke. Re- trieved from https://bleacherreport.com/articles/2823708-likely-no-1-pick-zion-williamson-declares-for-2019-nba- draft-leaves-duke Duke Athletics. (2019). Zion Williamson. Retrieved from https://goduke.com/roster.aspx?rp_id=4453 FOX Sports. (2019). Zion Williamson. Retrieved from https://www.foxsports.com/college-basketball/zion- williamson-player-stats Heitner, D. (2017, February 23). Oregon considers modifying its sports agent law. Retrieved from http://sportsagentblog.com/2017/02/23/oregon-considers-modifying-its-sports-agent-law/ Manhoney, B. (2019, June 20). Pelicans select Zion Williamson with No. 1 pick in Draft. NBA Media Ventures. Re- trieved from https://www.nba.com/article/2019/06/20/pelicans-take-zion-williamson-no-1-pick-draft NCAA. (2019a). About. Retrieved from http://www.ncaa.org/about/resources/media-center/ncaa-101/what-ncaa NCAA. (2019b). Agents and amateurism. Retrieved from http://www.ncaa.org/enforcement/agents-and-amateurism Prime Sports v. Williamson, Creative Artists Agency et al., filing # 91374585 (filed June 21, 2019 in the Circuit Court of the 11th District in Miami-Dade County). Williamson vs. Prime Sports, Case No. 1:2019cv00593 (filed June 13, 2019, amended August 23, 2019 in the U.S. District Court Middle District of North Carolina). United States v. Walters, 711 F. Supp. 1435 (N.D. Ill. 1989).

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College Athletes and the Standard of Care: What duty does the NCAA owe athletes

Abstract ID: 80

Prof. John Wolohan (Syracuse University)

In October 1905, after 5 athletes were killed and 149 other athletes suffered serious injuries while playing college football, then President Theodore Roosevelt summoned the Presidents of Harvard, Yale, Princeton and 10 other institutions to the White House to urge their leadership in cleaning up the game. Spurred on by Roosevelt, who threatened to intervene if they failed to act, a second meeting of University Presidents was held on December 28, 1905. At the second meeting, 62 colleges and universities signed on to become charter members of the Intercollegiate Athletic Association of the United States (IAAUS) which came into existence in 1906. The IAAUS took its present name, the National Collegiate Athletic Association (NCAA), in 1910. The NCAA, a private organization of over 1200 college and university member schools, is made up of various legislative committees. The Board of Governors is the highest governance body in the NCAA and is composed of institutional chief executive officers that oversee Association-wide issues. The board is charged with ensuring that each of the three divisions and various sub-divisions operates consistently with the basic purposes, fundamental policies and with upholding and advancing the Association’s core values of fairness, safety and equal opportunity for all student-athletes. While the stated goal of the NCAA Board of Governors is to “ensure that each division operates consistently with the … Association’s core values of fairness, safety and equal opportunity for all student-athletes,” the fact is the member schools in each of the three NCAA Divisions have different interests and budgets for their athletic departments. As a result, the NCAA allows each Division to introduce legislation for their members. Impor- tantly, however, the NCAA national office can also introduce legislation that it deems appropriate. Since 1906, the main foundational underpinning of the NCAA is the protection of the health and safety of college athletes. In fact, “student-athlete well-being is a foundational component of the NCAA mission and has been a priority for the NCAA for more than 100 years.” To that end, the NCAA states that it aims to provide college athletes with the best environment for safety, excellence and wellness through research, education, best practices, and collaboration with member schools, national governing bodies, key medical and youth sport organizations, and the public and private sectors. The NCAA has worked to make sports safer by changing competition rules, impose mandatory drug tests of athletes, and monitor the mental health of athletes. However, when challenged in court, the NCAA has argued that it has no legal duty to the athletes. In particular, the NCAA argues that as a private organization made up of over 1200 member schools, the organization is powerless to enact any legislation. All legislation, the NCAA claims, must be proposed by member schools or conferences and voted on by the individual members before it can be enforced. The purpose of this presentation is to examine whether the NCAA has a legal duty to act when it has knowledge that an activity is putting athletes at risk and whether the NCAA is negligent when it fails to protect the athletes’ health and safety from the known risk. To answer this question, this presentation will use a hypothetical case involving concussions. The presentation will begin by reviewing the concept of negligent, with attention to when will the courts impose a legal duty. After reviewing negligence and the concept of duty, the presentation outlines some hypothetical facts about what the NCAA Sport Science Institute medical staff knew about concussions, and the long- term risk it posed to college athletes. The specific purpose behind the NCAA’s Sport Science Institute is to ensure college athletes are getting the best care possible both physically and mentally, on the field and off. The presentation concludes by examining whether the NCAA has a duty to act in such cases, or whether it can legally hide behind

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its committee structure and the claim that legislative proposals can only be submitted by member institutions and conferences.

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Consider the Circumstances: The Burden of Zero-Tolerance in Drug Testing Policies

Abstract ID: 51

Prof. Lauren McCoy (Winthrop University)

At the start of the 2019 National Football League (NFL) season, 20 players were suspended for a violation of one of three policies (NFL Nation, 2019). These three policies concern substance abuse, performance-enhancing drugs, and personal (off-field) conduct. The variety of violations and length of punishment for these suspensions were in line with previous years. However, some of these recent suspensions may highlight an inconsistency that could prove problematic for the league. Robert Quinn, defensive end for the Dallas Cowboys, missed the first two games of the season after a violation of the performance-enhancing substances policy for the use of a masking agent. Specifically, Quinn tested positive for Probenecid, a uric acid reducer used to treat gout that can function as masking agent for steroids (Alper, 2019; Mayo Clinic, n.d). The use of this drug as a masking agent is very rare. According to Quinn’s agent, Sean Kiernan, the rarity of this drug led the testing laboratory to question the positive results. Dr. Lombardo, the NFL’s drug advisor for performance- enhancing substances, informed Quinn and his representatives that he had only encountered two positive tests for Probenecid throughout his entire career with the NFL. Further investigation uncovered evidence that the pharmacy fulfilling Quinn’s seizure medication had filled a prescription for Probenecid on the same day that Quinn’s medication was dispensed. As a result, Quinn and his representatives believe that his medication was contaminated at the pharmacy (Kiernan, 2019). Even though the amount of Probenecid in his system was not enough to mask steroid use and the lab confirmed the results were consistent with contamination, the NFL suspended Quinn (Kiernan, 2019). His two-game suspension followed the required length for a first-time failed test for use of a masking agent under the performance-enhancing substances policy (National Football League, 2018). The NFL utilizes a zero-tolerance policy when it comes to all positive tests for performance-enhancing substances. Section 3.5 of the Performance-Enhancing Policy holds players “responsible for what is in their bodies and a positive test will not be excused because a Player was unaware he was taking a Prohibited Substance” (National Football League, 2018). There are no excuses allowed even if the drugs are cleared by a player’s or the club’s medical or athletic training staff. Based on a strict reading of Section 3.5, it is not surprising that Quinn received the full two game suspension. How- ever, this does create a harsher burden on the players to prove innocence than what the league must provide to suspend an individual. Section 11 of the performance-enhancing substances policy states that the burden of proof for the management council is to establish a positive test result only. They do not have to prove intent, negligence, or knowing use of the substance (National Football League, 2018). Because drugs can dissipate over time, this policy contains no leniency for false positives registered through trace amounts. In response, a player may establish that the positive test result was not due to his fault or negligence with objective evidence. Finding and establishing objective evidence may be difficult to obtain in the case of contamination. In a statement after the appeal was denied, Sean Kiernan noted that the NFL put Quinn in an impossible situation by punishing him for something that the league admitted was unintentional (Keirnan, 2019). The precedent is now set for players to monitor how drugs are being distributed or to conduct their own tests before ingesting any new substance along with merely avoiding prohibited substances. This creates an undue hardship on players that punishes those who are trying to abide by the rules with the same measures used for those who actively violate

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the policy. By creating a situation where players are equally responsible for trace substances as they would be for purposeful use, the execution of the policy becomes inconsistent and its intent is diluted. Quinn was not the only player who believed that mitigation should be allowed under the circumstances. Golden Tate, wide receiver for the New York Giants, received a four-game suspension after he self-reported a violation. As soon as he learned that a prescribed fertility drug he took during the offseason contained a banned substance, he stopped use and reported the issue to the team and the Independent Administrator. All of this was done before a failed test was confirmed (Caron, 2019). Tate argued that undergoing this treatment for a short period of time in April had no impact on his performance, meaning that it did not provide any competitive advantage (Tate, 2019). Although athletes have opportunity to appeal their suspensions, zero-tolerance places a strong burden on the player. For both Quinn and Tate, there was no direct impact on performance. However, that cannot factor into the appeal. They must establish that the challenged ruling was clearly erroneous (National Football League, 2018). The likelihood of success on appeal is minimal unless the player can prove that there was a procedural mistake. Zero tolerance assumes guilt and gives the league unilateral power to punish the players without allowing for an effective opportunity to be heard. Using the same standards for athletes who purposely uses a drug, those who inadvertently take a drug through negligence, and those who are given tainted materials without their knowledge creates potential inconsistencies with the policy. It develops a grey area that substantially benefits the league with little recourse for the player. While neither Quinn nor Tate chose to challenge the decision in a subsequent lawsuit, these cases create questions regarding due process and the power of the Commissioner. If the results are virtually guaranteed before a hearing occurs, has due process been provided as intended? Does zero tolerance create an undue burden along with inconsistent punishments that lead to arbitrary application of the rules? This presentation will discuss whether zero-tolerance results in an inconsistent valuing of circumstances and a possible violation of the law of private associations. Alper, J. (2019, August 8). Robert Quinn’s agent “extremely disappointed” by NFL’s decision. NBC Sports. Retrieved from https://profootballtalk.nbcsports.com/2019/08/08/robert-quinns-agent-extremely-disappointed-by- nfls-decision/. Caron, E. (2019, July 27). Giants’ Golden Tate to appeal four-game suspension for substance abuse violation. Sports Illustrated. Retrieved from https://www.si.com/nfl/2019/07/27/giants-golden-tate-four-game-suspension-appeal. Kiernan, S. [@SKiernan]. (2019, August 8). Statement re: Robert Quinn. [Tweet]. Retrieved from https://twitter.com/SKiernan78/status/1159553883963682816. Mayo Clinic (n.d.). Probenecid (oral route). Retrieved from https://www.mayoclinic.org/drugs- supplements/probenecid-oral-route/description/drg-20065625. National Football League (2018). Policy on performance-enhancing substances. Retrieved from https://nflpaweb.blob.core.windows.net/media/Default/PDFs/2018%20Policy%20on%20Performance- Enhancing%20Substances.pdf. NFL Nation (2019, September 4). NFL week 1: Suspended players for opener (and beyond). ESPN. Retrieved from https://www.espn.com/nfl/story/_/id/27434399/nfl-week-1-suspended-players-opener-beyond. Tate, G. [@ShowtimeTate]. (2019, July 27). My statement [Tweet]. Retrieved from https://twitter.com/ShowtimeTate/status/1155137839727644673

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Continued Abuse: Are Colleges and Universities Hiding Behind Legal Regulations at the Expense of Collegiate Athletes?

Abstract ID: 53

Mr. Mitchell Haroldson (University of North Carolina at Chapel Hill)

In recent years, the public has been made all too aware of a troublesome side of collegiate athletics. Cases involving psychological and physical (including sexual) abuse of student-athletes within the university system have continued to manifest, despite growing public awareness as of late. In an increasingly regulated world where colleges and universities openly call for inclusion, how is it possible that occurrences of student-athlete abuse continue to take place? Title IX of the Education Amendments Act went into effect in 1972, stating that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” (20 USCS § 1681) This landmark federal statute mandated that equal opportunities be given without regard to gender in educational programs or activities at any college or university who is the recipient of federal funds, including collegiate athletic departments. However, improvements for gender equality in collegiate athletics have been slow enough to where almost 50 years after its enactment, full Title IX athletic compliance has been achieved by virtually no coeducational institutions. Furthermore, while Title IX plaintiffs have a right to private action and recover money damages, low success rates in the courtroom combined with social factors such as social shunning and isolation create a reality where many victims simply choose not to report cases of Title IX abuse. (Cannon v. University of Chicago, 1979; Franklin v. Gwinnett County Pub. Sch.,1992. Another regulation aimed at keeping students safe and informed on college and university campuses is the Clery Act (20 USCS § 1092). “Enacted in 1990, the Clery Act requires higher education institutions to collect data on sexual assault crimes, hate crimes, Violence Against Women Act offenses, and other criminal offenses committed on their campus and in certain adjacent areas, and to report that data to employees and students annually. The Clery Act also requires schools to notify students of existing threats to campus safety and to train personnel to accurately report crimes” (U.S. Dept of Education, 2019). While protections included in the Clery Act are certainly beneficial, it has been abused and even ignored in recent years on a grand scale. Following the atrocities that occurred at Michigan State University at the hands of Dr. Larry Nassar, along with the subsequent record-breaking Department of Education fine of $4.5 million, those involved in collegiate athletics have the right to be puzzled (U.S. Dept of Education, 2019). Assuming a plaintiff navigates through the maze of legal obstacles in order to file a Title IX, negligence, §1983, or fraud lawsuit against their university, many encounter major issues overcoming the doctrine of sovereign immunity under the Eleventh Amendment. Sovereign immunity is defined as “the absolute immunity of a sovereign government (as a state) from being sued,” and essentially has the ability to prevent a state arm (such as a university) from being held legally liable as long as it was adequately responding to complaints of misconduct and their employees acted reasonably and within their scope of practice. (Morris, 2019) While this is beneficial for states, sovereign immunity makes it extremely difficult for a private plaintiff to prevail in court during certain instances when suing a state arm. (Haynes v. Ind. Univ, 2018) Through an analysis of cases, law reviews, and other secondary sources, I will examine to what extent colleges and universities are liable for the physical and psychological abuse of their student-athletes. Specifically, I will deconstruct how institutions of higher education take advantage of legal principles which shield them from blame

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in the event of student-athlete abuse rather than rooting out the real issues such as toxic culture and the pursuit of ﬁnancial security over holistic student well-being. Based on legal principles, settlements, and cases, this poster presentation will provide an analytical view of the legal mechanisms in play regarding physical and psychological abuse of student-athletes within a college or university. Additionally, we will explore factors that may lend support as to why student-athlete abuse cases continue to manifest and victims are reluctant to report when an issue arises. Finally, we will explore ways in which a better, more holistic and student-based system could be created for colleges and universities in order to take a meaningful stand against physical and psychological abuse of student-athletes and ensure that protections that are put in place are not simply tokens, but agents of empowerment and support for everybody involved. References Title IX, 20 USCS § 1681. (2019). Retrieved September 26, 2019, from § 1681. Sex, 20 USCS § 1681 (Current through Public Law 116-56, approved August 23, 2019.). Retrieved from https://advance.lexis.com/api/document?collection=statutes-legislation&id=urn:contentItem:8S8T-0T92-8T6X- 72K5-00000-00&context=1516831 Cannon v. University of Chicago, 441 U.S. 677 (1979). Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992). Haynes v. Indiana University, 902 F.3d 724 (7th Cir. 2018). Morris, M. B. (2019). 15A Am Jur 2d Colleges and Universities § 46. U.S. Dept of Education. (2019). Secretary DeVos Levies Largest-Ever Clery Fine Against Michigan State University, Requires Major Corrective Action Following Systemic Failure to Address Sexual Abuse | U.S. Department of Education. Retrieved September 26, 2019, https://www.ed.gov/news/press-releases/secretary-devos-levies-largest- ever-clery-ﬁne-against-michigan-state-university-requires-major-corrective-action-following-systemic-failure- address-sexual-abuse.

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Dulling the Blade: A Policy Analysis on Intentional Bleeding in Professional Wrestling

Abstract ID: 90

Dr. Dylan Williams (University of Alabama), Dr. Andrew Goldsmith (Temple University), Dr. Kevin Cattani (University of Dubuque), Mr. Joseph Sabin (University of Dubuque)

In July 2019, for its annual Slammiversary pay-per-view event, Impact Wrestling promoted a wrestling match between two of its talent, Eddie Edwards and Killer Kross, with the stipulation of the first wrestler to bleed losing the match (“This One Will Be,” 2019). Though there are many that discount the validity of the activity due to its “staged” nature (Atkinson, 2002; Chow, 2014), professional wrestling maintains a level of physical exertion and risk for wrestlers. Professional wrestling is essentially high impact, scripted, ballet performed within a match in order to evoke an emotional connection and entertain spectators (Smith, 2008). One traditional practice that helps heighten and accomplish the “realism” of this form of high impact ballet is to intentionally cause one opponent to bleed via “blading” (also known as, “juicing,” “gigging,” or “getting color”) or “the hard way” (i.e., when one opponent actually inflicts unintentional blooding). The practice of blading involves one wrestler intentionally cutting him/herself to provoke bleeding (Race, Steam- boat, & Thatcher (2005). Typically, one of the two wrestlers will utilize a small razor blade to make a small incision on his/her forehead or their opponent’s forehead (Chow & Laine, 2014). The forehead is the common area for intentional bleeding due to the abundance of blood vessels, and it is an area that can be manipulated by striking or pressing on it to further bleed (Chow, 2014). The act is usually accomplished a good length into a contest so that the blood will mix with a wrestler’s flowing sweat, creating the illusion that more blood is flowing from the wound than there actually is (Williams, 2011). Though the image of professional wrestlers bleeding due to contact from a match is powerful and common (Chow, 2014; Chow & Laine, 2014), the practice of intentionally blading oneself creates significant health issues for participants including today’s heightened awareness surrounding Acquired Immune Deficiency Syndrome (AIDS) and hepatitis. As a result, many wrestlers still consider alternatives to acquiring the bleeding image. For example, former Ultimate Fighting Champion (UFC) and World Wrestling Entertainment (WWE) heavyweight champion Brock Lesnar has deliberately caused bleeding to his opponents from a well-placed strike to the head (Sucu, 2012). In wrestling terms, this practice is known as “juicing the hard way” (Race et al., 2005; Williams, 2011). Another common practice is having wrestlers “bleed” but with fake blood capsules. In the match between Kross and Edwards, Kross “bled” through the use of capsules filled with red liquid that looks like blood that were hidden until it was time to be used at the end of the match (Pritchard, 2019). Interestingly, however, Impact Wrestling wanted Kross to blade for this match opposed to utilizing fake blood capsules. Sapp reported (2019) Kross did not agree to blading as he had concerns regarding Impact Wrestling not conducting blood testing on both wrestlers or having an on-site doctor. As a result, both Impact Wrestling and Kross agreed on the use of fake blood capsules. Though this latter practice may not be as authentic, it is a much safer alternative to blading, particularly when blades are shared between wrestlers. As an example, Canadian professional wrestler Devon Nicholson contracted Hepatitis C in 2007 after a match with legendary wrestler Lawrence Robert Shreve, commonly known as “Abdullah the Butcher” (Murray, 2011). During the match, Shreve used a razor blade on himself repeatedly, and then used the same blade on Nicholson without his consent or knowledge (“Ottawa Wrestler Claims WWE Legend,” 2011). By doing this action, Shreve’s blood was put directly into Nicholson’s blood stream, leading to Nicholson contracting the virus (Murray, 2011). Nicholson had signed a three-year contract with World Wrestling Entertainment (WWE)

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in 2011, but the organization rescinded the contract upon discovering Nicholson contracting Hepatitis C (“Ottawa Wrestler ‘Hannibal’ Wins,” 2014). Nicholson sued Shreve for this incident, winning $2.3 million in damages and fees from Shreve. Though Nicholson won the case, his situation highlights the dangers of the blading practice. As a result, many professional wrestling organizations like the WWE and Impact Wrestling maintain a no-blood policy in an attempt to ban the practice of intentional bleeding and protect their performers (Giri, 2014; WWE, 2008). However, both organizations continue to have instances of wrestlers bleeding during matches through unintentional or unplanned instances, causing “hard way juicing” among participants. Thus, the purpose of this project is to analyze the policies surrounding bleeding among the wrestling federations (e.g., WWE, Impact Wrestling, Ring of Honor [ROH], All Elite Wrestling [AEW], New Japan Pro Wrestling [NJPW]) in comparison with local independent wrestling promotions to understand how they handle the risks surrounding the practice. Further, this project determines whether these companies should require wrestlers to blade if asked. References Atkinson, M. (2002). Fifty million viewers can’t be wrong: Professional wrestling, sports-entertainment, and mime- sis. Sociology of Sport Journal, 19,47-66. Chow, B. (2014). Work and shoot: Professional wrestling and embodied politics. TDR: TheDrama Review, 58(2), 72-86. Chow, B., & Laine, B. (2014). Audience affirmation and the labour of professional wrestling. Performance Research, 19,44-53. Giri, R. (2014, December 14). News on changes to Impact Wrestling, new contracts being signed. Wrestling, Inc.Retrieved from https://www.wrestlinginc.com/news/2014/ 12/news-on-changes-to-impact-wrestling-587762/ Mueller, C. (2010, March 17). WWE bans blood, chair shots to head, sexiness, and wrestling. Bleacher Re- port.Retrieved from https://bleacherreport.com/articles/364374-wwe-bans-blood-chair-shots-to-head-sexiness-and- wrestling Murray, J. (2011, July 27). $6.5m dollar lawsuit filed by Ottawa wrestler “Devon (Hannibal) Nicholson” against “WWE Legend” and “WWE Hall of Famer” Abdullah the Butcher. Net News Ledger.Retrieved from http://www.netnewsledger.com/2011/07/27/ multimillion-dollar-lawsuit-filed-by-ottawa-wrestler-against- %E2%80%9Cwwe-legend%E2%80%9D-and-%E2%80%9Cwwe-hall-of-famer%E2%80%9D-abdullah-the-butcher/ Ottawa wrestler claims WWE legend game him hep C. (2011, July 29). CBC News.Retrieved from https://www.cbc.ca/news/canada/ottawa/ottawa-wrestler-claims-wwe-legend-gave-him-hep-c-1.1096801 Ottawa wrestler ‘Hannibal’ wins $2.3M hepatitis C lawsuit. (2014, June 3). CBC News.Retrieved from https://www.cbc.ca/news/canada/ottawa/ottawa-wrestler-hannibal-wins-2-3m-hepatitis-c-lawsuit-1.2663253 Pritchard, B. (2019, September 3). Report: Killer Kross’ Impact Wrestling absence due to refusal to blade. Wrestle- zone.Retrieved from https://www.mandatory.com/wrestlezone/ news/1131721-possible-reason-killer-kross-impactwrestling-absence Race, H., Steamboat, R., & Thatcher, L. (2005). The professional wrestlers’ workout &instructional guide. Champaign, IL: Sports Publishing LLC. Sapp, S. (2019, September 3). Killer Kross and Impact Wrestling still at odds after he refuses to blade; Impact wants him off AAA show. Fightful.Retrieved from https://www.fightful. com/wrestling/exclusives/killer-kross-and-impactwrestling-still-odds-after-he-refuses-blade-impact-wants-him-aaa-show Smith, R. (2008). Passion work: The joint production of emotional labor in professional wrestling. Social Psychology Quarterly, 71,157-176. Sucu, S. (2012, April 29). WWE Extreme Rules results: John Cena has a legit injury; will be out of action. Bleacher Re- port.Retrieved from https://bleacherreport.com/articles/1166171- wwe-extreme-rules-results-john-cena-may-have- a-legit-injury

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This one will be ﬁrst BLOOD. (2019, June 29). Impact Wrestling.Retrieved from https://impactwrestling.com/this- one-will-be-ﬁrst-blood/ Williams, S. (2011). Hardcore history: The extremely unauthorized story of ECW.New York, NY: Sports Publishing. World Wrestling Entertainment. (2008, July 28). WWE rated PG[Press release]. Retrieved from https://corporate.wwe.com/news/company-news/2008/07-28-2008a

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Equitable Allocation of Recreation and Park Resources-Winston Lake Aquatic Park, a case study.

Abstract ID: 60

Prof. Jim Bemiller (The University of Tennessee), Prof. Steven Waller (The University of Tennessee)

Abstract Summary: This case study will explore the legal and social factors which impacted the Winston Lake Aquatic Park in Win- ston, NC. This case study will be used to discuss the issue of minority access to public swimming facilities and the challenges faced by Black Americans who are at a disproportionate risk of drowning. Abstract: The equitable allocation of recreation and parks resources has been a topic of concern among scholars and prac- titioners for more than forty years (Crompton & West, 2008; Lucy & Mladenka, 1980; Wickes & Crompton, 1989). Wicks and Crompton (1989). The uniquely intimate nature of public swimming facilities has presented itself as a last vestige of resistance to desegregation of recreational facilities in the United States. Pools have historically been a venue for racial tension because they are intimate spaces which evoke stereotypical biases and prejudices. The lack of access to facilities and learn to swim programs has manifested itself into a critical social and safety issue for the Black population. Swimming pools have been a source of inequity when it comes to the distribution of recreation services in the United States. Academics such as Holland (2002), Rothstein (2017), Wiltsie (2007) and Waller and Bemiller (2018) chronicle the problematization of public swimming pools. Many of the problems that correlate with the inequitable allocation of recreation resources including public swimming pools began with ideas about race, geography, and faulty policymaking (Rothstein, 2017). The purpose of this presentation is twofold. First, we will examine the social pattern of discrimination that has stymied the growth of swimming in communities of color in the United States using the Winston Lake Aquatic Park, NC as the case study. Secondly, we will examine the key legal cases related to recreational resource allocation and the evolving burden of proof in these cases. Discussing how these and other federal and state decisions have helped to incrementally remove discrimination in the provision of public recreation services, although access to public swimming facilities is still a major issue for people of color. Attendees will be encouraged to join in the discussion regarding the topic. References Banks, T. L. (2014). Civil rights and civil justice: 50 years later: Still drowning in segregation: Limits of law in post-civil rights America. Law & Inequality:A Journal of Theory and Practice. 32(3), 215-255. Bemiller, J. (2018). Navigating rough waters: Public swimming pools, discrimination, and the law. International Journal of Aquatic Research and Education, 11(1), 1-15. Brown v. Board of Education, 347 U.S. 483 (1954). Clark v. Thompson, 206 F.Supp. 539 (SD Miss. 1962). 313 F.2d 637 (CA5), cert. denied, 375 U.S. 951 (1963). Crompton, J. & West, S. (2008). The Role of Moral Philosophies, Operational Criteria and Operational Strategies in Determining Equitable Allocation of Resources for Leisure Services in the United States, Leisure Studies, Vol. 27, No. 1, 35-38. Dawson v. Mayor of Baltimore, 220 F.2d 386 (4th Cir. 1955) (per curiam). Kennedy, R. (2018). Article: Reconsidering Palmer v. Thompson, Supreme Court Review, 2018 Sup. Ct. Rev. 179. Mayor and City Council of Baltimore City v. Dawson, 350 U.S. 877 (1955). Palmer v. Thompson, 419 F.2d 1222 (5th Cir.1969).

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Palmer v. Thompson, 403 U.S. 217 (1971). Plessy v. Ferguson, 163 U.S. 537 (1896). Wicks, B. (1987). The Allocation of Recreation and Park Resources: The Courts” Intervention. Journal of Park and Recreation Administration 5, 1-9. Wright, T. (1971). Constitutional Law - State Action - Closing Rather than Desegregating Recreational Facilities. Palmer v. Thompson, 91 S. Ct. 1940 (1971), 13 Wm. & Mary L. Rev. 524.

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Examining Academic Life For Sport Law Professors In 2019: The Good, The Bad, and The NASSM

Abstract ID: 38

Dr. Thomas Baker (University of Georgia), Dr. John Holden (Oklahoma State University), Prof. Dionne Koller (University of Baltimore)

Sport law professors are unique. They are unique from many others within the academy in that they can spread across several diverse and different academic communities. The Sport and Recreation Law Association reflects the diverse placement of sport law scholars in that its members hold appointments in law schools, business schools, and sport management programs. This presentation is designed to address the academic life for a sports law professor within each of the three academic communities. The presentation will specifically focus on both the realities of meeting employment expectations needed for tenure and promotion within those three fields, as well as the threats that scholars face. The proposed presenters represent perspectives from law school, business school, and sport management communities. Their purpose in this presentation is to provide guidance to junior scholars who intend to work within one (or more) of the three sub-disciplines that the majority of sport law scholars call home. In doing so, the presentation will address the way different aspects of academic life are treated within law school, business, and sport management programs. Specifically, the presentation will address: (a) research and teaching expectations, (b) publication rankings/scholarly impact, (c) perspectives on the value of sports law, and (d) the threats that scholars face within each of the three academic sub-disciplines. The influence of law on sport has never been more pronounced. Where there is money, there will be lawyers and the sport industry is a multi-billion dollar business. Yet, the number of scholars who study the role of law within sport has not risen at a pace needed to match the demand for content expertise in sport law. Instead, too many programs outsource to adjuncts or assign sport law courses to those who are not content experts on the subject. The lack of investment in sports law across academic sub-disciplines is unfortunate because there has never been a greater need for those who study the role of law in sport. Legal research plays an important role in assisting judicial determinations in various types of cases. Traditional legal scholarship is normative in that it aims to influence judges, lawyers and legislators to reform or interpret existing law in a way that makes society more just. For this reason, quality legal research has the potential to produce impact that extends beyond mere citation in other research studies. The force of well-developed legal arguments is felt by its readership, including judicial clerks, lawyers, judges, and legislators. In fact, traditional legal scholarship has been relied upon by both Congress and the courts in fashioning legal relief and in setting legal policy. Yet, non-law scholars often do not understand or appreciate the value of traditional legal research, a methodology with roots that trace back to the praetors in ancient Rome. In addition to traditional legal research, there exists a growing demand for empirical law studies that utilize diverse methodologies. Unfortunately, critiques and doubt exists concerning the ability of scholars who lack training in the non-traditional empirical methodologies. Furthermore, legal scholarship is unique in that most focus on the use of primary rather than secondary authority and this deferential writing approach limits the citation impact for legal publications as well as non-law journals that publish legal work. As a result, legal periodicals are often not ranked high on so-called objective scales that attempt to measure the value of scholarly work and this practice limits the opportunity for legal scholars employed outside of law school settings. The problem is even more pronounced within sport law because our field is very niche in its reach. Thus, there exists a need to evaluate the type of research that is valued within the various academic

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segments that employ sport law scholars. Junior scholars need to understand and appreciate both the opportunities and threats that they face within the various communities in which they could be employed. Similarly, there exists a need to examine the teaching and service requirements inherent to the segments that house sport law scholars. This presentation will provide different perspectives based on different experiences in sport law.

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Feeling the Heat? Heat-Related Illness Concerns for the 2020 Tokyo Olympic Games

Abstract ID: 37

Prof. John Wendt (University of St. Thomas (MN)), Dr. John Miller (University of Southern Mississippi), Dr. Todd Seidler (University of New Mexico)

In 2010, the eighth and final race of the 2010 Fédération Internationale de Natation (“FINA”) 10K Marathon Swim- ming World Cup. While 82 females and males entered the water, 81 completed the competition. After more than a two-hour search by coast guard and police divers, American swimmer Fran Crippen was carried to shore and taken to the hospital, where he was later pronounced dead of complications from heat exhaustion (Gomes, 2010). Ultimately, it was determined that the contributing factors leading to Crippen’a demise were hyperthermia, hypo- hydration (loss of fluids), and exercised induced asthma (Gomes, 2010). Recently, it has been reported that Japanese officials, 90-degree and high humidity that are typical during July and August, are concerned about heat-related issues that may occur at the upcoming 2020 Tokyo Olympics (Wharton, 2019). It is notable that the summer temperatures in Tokyo often exceeds 95 degrees Fahrenheit, 80% humidity, with a good deal of sunshine (Ridgwell, 2019). In fact, it was reported that 23 individuals died, and more than 12,000 were hospitalized in Japan between July 29th and August 5th, 2019 (Wharton, 2019). Finally, the number of visitors predicted has jumped to 40 million which will provide additional body heat (Wharton, 2019). Athletes hoping to participate in the Olympics often train for hours daily in order to perfect their technique, both to meet the challenges of the games or matches, as well as to fine-tune their skills to be more competitive against opponents. However, environmental issues have also led to athletes’ deaths, as in the case of Fran Crippen. While the same argument could be made that the risk of death was assumed in a given sport, this contention becomes problematic when the cause of the athlete’s death was not the associated activity of the competition. In particular, over the past few decades, studies have shown a consistent number of fatalities result indirectly from heat-related illnesses (Mueller & Cantu, 2009). High temperatures can make it very difficult for athletes to disperse the heat and the salt content of the water to develop dehydration. In addition, contestants also wore swimming caps, which further hindered heat dissipation. While Crippen, as well as other Olympic hopefuls, are seemingly an active, healthy young athletes, “healthy people can develop heat-related disorders in only moderately hot environments during heavy exercise, particularly if water and salts lost through sweat are not replenished” (Donaldson, Keatinge, & Saunders, 2003, p. 229). According to Ford (2010), Richard Pound, former Vice President of the International Olympic Committee, stated that: An athlete should never lose his or her life in a sport competition, but when such an incident occurs, it is the duty of the sport community to conduct a thorough and complete review of the situation and factors that may have caused or failed to prevent such a tragedy (para. 7). Simons (1987) argued, the more pertinent question is whether or not an organization such as FINA can reasonably demand athletes to participate regardless of the conditions. In other words, should the governing bodies require athletes to compete in an outside competition with an air temperature of 95°F and humidity at 80% or more? Inherent Risks In Olympic sports such as triathlons and swimming, participants face a number of risks. Specifically, external hazards such as currents, rogue waves, dangerous sea life, wind conditions, or poor road conditions. The swimmer also faces internal dangers familiar to many participants in swimming and triathlons such as cramping, hyperven-

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tilation, and inhalation of water. Additional concerns include hypothermia (dangerously low body temperature) and hyperthermia (dangerously high body temperature) (Mayo Clinic, 2011). Hyperthermia is especially deceptive because athletes can quickly advance through heat exhaustion without recognizing its warning signs and develop heatstroke. These are inherent risks that triathlon participants and open water swimmers assume because they are integral to the essence of the sport. Inherent risk “cannot be removed through the exercise of due care if the sport is to be enjoyed. It is a danger that is essentially impractical or impossible to eliminate while still allowing athletes to fully participate in the sport (Brett v. Great American Recreations, Inc., 1996, p. 496). However, “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of [his] skill and experience . . . and in that assessment a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport” (Maddox v. City of New York, 1985, p. 19). Fran Crippen apparently was agreeable to assume those inherent risks of open water swimming. As a professional swimmer, he may have been mindful of the potential of becoming hyperthermic. However, an important question is: was that awareness diminished by the hyperthermia, and possible brain dysfunction, that occurred while he was competing? Kletter (2008) indicated that nothing in traditional sports such as baseball would trigger an athlete’s mental faculties to be compromised. However, in extreme sports, such as triathlons and open-water swimming, mental acuity may plunge to 30% of normal levels. It is at this stage of mental acuity at which fundamental mathe- matics is virtually hopeless. The consequence is that “little errors, things that are black and white down here aren’t really black and white up there. You know, the decision-making process is a little bit more muddled” (Kletter, 2008, p. 779). FINA Reaction to Crippen’s Death After Crippen’s death, FINA created a task force regarding temperature ranges in 2011 for Open Water Swimming (Swimming World, 2011). A rule, OWS 5.5, was developed which stated that the temperature of the water should not be below 16 degrees Celsius (60.8 F) nor above 31 degrees Celsius (87.8 F) (Swimming World, 2011). Yet, there have been cases where FINA has ignored the rule such as the 2017 Asian Open Water Swimming Championships 10K endangering the athletes. Most recently, at the 2019 Inaugural World Beach Games the temperature was 87.6, just barely within the guideline, and the race continued with rumors that the temperature was actually higher (Rutemiller, 2017). Notably, both USA Swimming and Swimming Canada decided to withdraw their athletes because of the heat. Ironically, the race took place in the same body of water where Fran Crippen passed (Dornan, 2019). Managing Risks Conceptually, risks are often a considerably interconnected collection of elements that must be administered (Miller, Wendt, & Young, 2010). These elements should not be managed simply as a response to the distinctive qualities of a noteworthy risk, but with an eye towards understanding the interrelationships of all risks (Andersen & Schrǿder, 2010). When allocating responsibility, risk management tends to use a prospective decision-making model. This model is often applied retrospectively and builds towards a decision to draw the “right” conclusions (Andersen & Schrǿder, 2010). To reach the “right” outcome, event administrators must examine several assessments. The ﬁrst assessment to be considered is the impact of the threat (threat assessment) (Miller, Wendt, & Young, 2010). A vulnerability assessment concerns the possible and foreseeable vulnerabilities in and around the sports facility. The ﬁnal consideration, the criticality assessment, highlights the weaknesses and implements action to decrease the likelihood of damaging occurrences. Once these assessments have been analyzed, the administrator in charge should be able to apply appropriate risk management measures (Miller, Wendt, & Young, 2010). Discussion The preventable nature of heat-related deaths among elite athletes in open water and triathlon competitions pro-

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vides the prospect to prepare for the potential damaging occurrences and decrease their frequency. This presentation will further discuss the interrelated risks, such as heat and humidity, that open-water and triathlon Olympians may incur at the 2020 Tokyo Summer Olympic Games and how such risks may be managed. Additionally, this presentation will further delve into whether an athlete, whose mental acuity may be compromised, is capable of assuming the risks. Finally, the various risk assessments (i.e., threat, vulnerability, and criticality) as applied to heat-related illnesses at sports contest will be discussed. References Andersen, T. J., & P.W. Schrǿder. (2010). Strategic risk management practice. Cambridge, MA: Cambridge Press. Brett v. Great American Recreation, Inc., 144 N.J. 479, 677 A.2d 705, 1996 N.J. LEXIS 787 (Supreme Court of New Jersey June 13, 1996, Decided). Donaldson, G. C., Keatinge, W. R., & Saunders, R. D. (2003). Cardiovascular responses to heat stress and their adverse consequences in healthy and vulnerable human populations. International Journal of Hyperthermia, 19(3), 225-235. Dornan, B. (2019, October 14). Warm waters mar open water races at first ever World Beach Games. Retrieved from https://swimswam.com/warm-waters-mar-open-water-races-at-first-ever-world-beach-games/ Ford, B. D. (2010, November 10). Dick Pound leads Fran Crippen probe. Retrieved from https://tv5.espn.com/olympics/swimming/news/story?id=5787070 Gomes, A. (2010). Top swimmers allege FINA neglect. Retrieved from http://gulfnews.com/sport/other-sports/top- swimmers-allege-fina-neglect-1.701738. Hirata, T. (2019, August 14). Beating the heat at the Tokyo Olympics. Retrieved https://www.japantimes.co.jp/opinion/2019/08/14/commentary/japan-commentary/beating-heat-tokyo-olympics/ International Olympic Committee. (2019, October 16). International Olympic Committee announces plans to move Olympic marathon and race walking to Sapporo. Retrieved from https://www.olympic.org/news/international- olympic-committee-announces-plans-to-move-olympic-marathon-and-race-walking-to-sapporo Kletter, D. (2008). Negligence in the [thin] air: Understanding the legal relationship between outfitters and participants in high risk expeditions through analysis of the 1996 Mount Everest tragedy. Connecticut Law Review, 40, 769-796. Maddox v. City of New York, 1985 N.Y. LEXIS 17254 Mayo Clinic. (2011). Heatstroke. Retrieved from http://www.mayoclinic.com/health/heatstroke/DS01025\ Miller. J. J., Wendt, J. T., & Young, P.C. (2010). Fourth Amendment considerations and application of risk management principles for pat-down searches at professional football games. Journal of Legal Aspects of Sport, 20(2), 108-134. Mueller, F., & Cantu, R. (2009). Catastrophic sports injury research: Twenty-sixth annual report. Retrieved from http://www.unc.edu/depts/nccsi O’Kane, P. (2019, August 15). Tokyo roads to be paved with heat-shielding material to help reduce heat. Retrieved from http://www.insidethegames.biz/articles/1083495/hirata-dedicated-to-tokyo-heat-concern Ridgwell, H. (2019, August 2019). Fears grow over heat dangers at Tokyo 2020 Olympics. Retrieved from https://www.voanews.com/east-asia-pacific/fears-grow-over-heat-dangers-tokyo-2020-olympics Rutemiller, B. (2017, May 23). Here we go again—FINA disregards high temperature rule in open water. Retrieved from https://www.swimmingworldmagazine.com/news/here-we-go-again-fina-disregards-high- temperature-rule-in-open-water/ Simons, K. (1987). Assumption of risk and consent in the law of torts: A theory of full preference. Baylor University Law Review, 67, 213-287. Swimming World. (2011, April 15). FINA admits to lack of safety measures in Fran Crippen’s death; Releases set of recommendations. Retrieved from https://www.swimmingworldmagazine.com/news/fina-admits-to-lack-of-safety-

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measures-in-fran-crippens-death-releases-set-of-recommendations/ Wharton, D. (2019, August 15). 2020 Tokyo Olympics searching for answers amid heat wave. LA Times. Retrieved from https://www.latimes.com/sports/olympics/story/2019-08-15/2020-tokyo-olympics-searching-for-answers-amid- heat-wave ;B��

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Framework for an Inclusive Training Session for Transgender Issues in Athletics: Social Contracts, Inclusive Language, & QR Codes

Abstract ID: 65

Dr. Jean Henry (University of Arkansas), Dr. Angie Smith-Nix (University of Arkansas)

Lack of training regarding transgender youth leaves coaches, educators, administrators, and parents unprepared to become allies to an already disenfranchised community; thus, limiting the ability to address the varied needs of a range of stakeholders. Education and training about gender identity can take the form of small, informal discussions, modules that are incorporated into a larger diversity training curriculum, or full-fledged training and educational programs on transgender issues conducted by outside trainers and facilitators. The extent of communication and training required will be different for the audience being trained. For example, it may be particularly important to emphasize to board members, as fiduciaries of a district, how policy affects the district’s public image or mitigates risk. Meanwhile, coaches, teachers, and administrators may require more background information about transgender issues and unambiguous instruction regarding how policies will be implemented, in regard to supporting the civil rights and emotional well-being of both transgender and gender-conforming students. Consid- ering the potential costs of lack of education and clear communication, effective training and educational programs should be a strategy for all educational institutions and athletic organizations. This presentation will present three key strategies that can be used in the design of effective training efforts: social contracts in training environments, use of inclusive language, design and applications of QR codes for information sharing. SOCIAL CONTRACTS:A social contract is an agreement negotiated between trainers/teachers and participants/students which specifies principles, rules, and consequences for behavior during a training/classroom session. Such an agreement can help to establish a safe space for discussing value-laden topics, such as transgender. According to GLSEN (Gay, Lesbian, & Straight Education Network), “A Safe Space is a welcoming, supportive and safe environment…” 1 Contracts are different from traditional classroom rules in that participants are involved in designing the documents - they ensure clarity of rules, delineate consequences for inappropriate behavior, allow for change with group needs, and establish safeguards to protect the dignity of participants. The underlying assumption is that such communal agreement on process will engender improved respect and trust among participants, thus leading to improved communication.2 The foundational principles of developing a social contract include: include all participants in writing the contract; establish roles/rules for both participants and trainer/teacher; be clear in defining behavior rules; express in positive terms; establish logical consequences for undesired behaviors; establish who will be given copies of the contract. The essential components of a social contract include: 1) effective rules for behavior, 2) logical consequences, 3) guidelines for potential modification of the contract. This session will include discussion of the essential, foundational components of a social contract, as well as a list of resources to guide attendees in developing their own social contracts for educational or training sessions. 3,4 INCLUSIVE LANGUAGE: Language is powerful. The more clearly a professional’s language demonstrates respect for the language and experiences of the transgender student/athlete, the more effective s/he can be in engendering supportive and inclusive learning and participation environments. Some people believe that knowing exactly what a term means is a critical component of cultural competence. Unfortunately, perhaps, in the context of culture(s), meanings of terms are in a constant state of flux and evolution. In some contexts, such as sexual orientation and identity, different individuals may define terms in very different ways. In the transgender community, there are hundreds of words used to describe transgender and gender non-conforming identities and experiences. Learning

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terms and their deﬁnitions should be viewed not for the purpose of labeling, but rather to assist in understanding the nature of a topic/issue. Forge describes a “terms paradox,” wherein the terms that we use can be said to be both crucial and meaningless.5 Through either interpretation, the result should be a personalized vocabulary that informs and guides conversations with each unique individual or group. This session will cover the key terms most relevant to discussions with and about transgender athletes. A list of resources will be provided, to guide attendees in improving their own discourse and communication regarding transgender athletes in their programs. QR CODES: Controversial topics inevitably lead to the generation of massive amounts of information that is grounded in personal beliefs and values, rather than fact. As previously noted, terms related to gender identity can be ﬂuid and subject to different interpretations. A key component of any educational or public relations effort should be to enable constituents’ (athletes, parents, administrators, public) access to current, relevant, and factual information on a topic of concern. An emerging consumer technology, QR codes, is becoming a more widely utilized way to direct a target population to desired information and sources. “QR” stands for “Quick Response,” which refers to the instant access to the information hidden in the Code. They are square-shaped black-and-white symbols that people can scan using a smartphone to learn more about a product/topic. These encrypted squares can hold links, event details, and other information that users might want to take with them for referring to on demand and at their convenience. QR Codes are gaining popularity because the technology is “open source,” i.e. available for everyone. This session will include discussion of the key elements of QR codes, a list of resources to guide attendees in developing QR codes, and hands-on guidance and practice in setting up a QR code that could be used in their own educational or training sessions. Presenters will provide computers for attendee use, if needed, as well as guide attendees in using their own smartphones, or other device, to develop personalized QR codes.6,7,8 Most LGBT individuals frequently hear anti-LGBT language and experience harassment and discrimination related to their sexual orientation and gender expression. Many LGBT students feel unsafe in schools, including athletic settings, and are likely to skip workouts, classes, or days of school to avoid the harassment. Creating a safe space for learning and athletic participation is a primary goal of all coaches, teachers, and administrators. This presentation presents three key strategies for ensuring effective training efforts: social contracts, inclusive language, and QR codes. As a result of attending this Teaching Symposium Tabletop, attendees will be able to: 1) lead their own program participants in the design of social contracts to foster inclusive learning environments; 2) use and integrate appropriate inclusive language in all conversations and communications regarding transgender athletes and students; 3) create their own QR codes, for use in their training and informational programs. REFERENCES

1. Safe Space Kit. (2016). GLSEN. ISBH 978-1-934092-07-1 Retrieved from: https://www.glsen.org/sites/default/ﬁles/GLSEN%20Safe%20Space%20Kit.pdf 2. Flint, E.S. (2015). Engaging social constructivist teaching in the diverse learning environment: Perspectives from a ﬁrst year faculty member. Higher Education for the Future, 3)1), https://doi.org/10.1177/2347631115611285 3. Smith, K. (n.d.). Social Contracts…a proactive intervention for the classroom. Institute of Commu- nity Integration, Univ. of Minnesota; Minneapolis, MN. Retrieved from: http://ceed.umn.edu/wp- content/uploads/2017/05/Social-Contracts.pdf 4. Texas Region 13 Education Service Center. (n.d.) The Teacher Toolkit. Retrieved from: http://www.theteachertoolkit.com/index.php/tool/classroom-contract 5. Organization Author. (2012). Terms Paradox. Forge, Milwaukee, WI. https://forge- forward.org/2012/06/01/terms-paradox/ 6. QR Code Basics https://www.qr-code-generator.com/qr-code-marketing/qr-codes-basics/

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7. How to Make a QR Code in 8 Easy Steps https://blog.hubspot.com/blog/tabid/6307/bid/29449/how-to-create-a- qr-code-in-4-quick-steps.aspx 8. QR Code Generator – Create your code for free www.qr-code-generator.com/

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Government Liability/Immunity for Recreational Injuries on Public Lands Since 2017

Abstract ID: 50

Prof. Joseph Long (University of Mount Olive)

Government-owned or government-controlled land is often opened to public recreational use. The recreational uses vary widely and include simple uses like walks, picnics, swimming, or watching sporting events to more extreme uses like ice skating, snow skiing, heli-skiing, or off-roading. Such recreational activities often lead to patron injuries or death and, thus, result in tort lawsuits against government agencies. This presentation will explore case law since 2017 that addresses either liability imposed upon or immunity to government entities when injuries or death happen to those participating in recreational activities and will attempt to clearly illustrate when governmental immunity is upheld as opposed to when government entities may be held liable. The presentation will also include examples of when private entities may enjoy protection under government immunity laws. State and federal cases will be included in the presentation. Cases include, but are not limited to, the following: 1. Hurst v. United States, 2019 U.S. App. LEXIS 24091 2. Garvine v. Maryland, 2018 U.S. Dist. LEXIS 149849 3. Ball v. United States, 2019 U.S. Dist. LEXIS 86218 4. Lam v. United States, 389 F. Supp. 3d 669 (Cal. 2019) 5. Suarez v. Am. Ramp Co. & Town of Swansboro, 831 S.E.2d 885 (NC App. 2019) 6. Fernandez v. United States, 766 Fed. Appx. 787 (11th Cir. 2019) 7. Lee v. Department of Parks & Recreation, 38 Cal. App. 5th 2016 (2019) 8.Lewis v. City of Bastrop, 2019 La. App. LEXIS 1619 9. Normandin v. Encanto Adventures, LLC, 441 P.3d 439 (AZ 2019) 10. Cancel v. City of Providence, 187 A. 3d 347 (2018)

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Identifying Facility Hazards

Abstract ID: 72

Dr. John Miller (University of Southern Mississippi), Dr. Todd Seidler (University of New Mexico)

This assignment was designed to be an experiential learning activity for the students. Brown and Ellison (1995) stated that Kolb’s experiential education model might “… stimulate lifetime habits of thinking, to stimulate students to think about HOW as well as WHAT they are learning” (p. 40). Kolb’s (1981) model identifies four learning stages: concrete experience, reflective observation, abstract conceptualization, and active experimentation. Kolb (1981) summarized the model by stating that genuine learner: . . . must be able to involve themselves fully, openly and without bias in new experiences (concrete experience); they must be able to observe and reflect on these experiences from many perspectives (reflective observation); they must be able to create concepts that integrate their observations into logically sound theories (abstract conceptualization); and they must be able to use these theories to make decisions and solve problems (active experimentation) (p. 236). As can be viewed by the assignment requirements, the students, hopefully, proceeded through all four stages of Kolb’s model. Risk Assessment Part One This assignment may be completed individually or in groups of a maximum of three. Students will choose a sports venue to visit then complete a risk assessment report using a risk management rubric developed by the instructor. To avoid redundancy of facilities, the selection of the site is submitted for approval from the instructor on a “first- come, first-serve” basis. Students may choose to visit and report on any facility and could include a campus recreation facility, baseball stadium, basketball/hockey arena, aquatics facility, gym, etc. Students are encouraged to find facilities that will be relevant to your future career goals. Students are not allowed to assess the facility that they work or play in currently. Each student or group of students will present their findings to the class and instructor. The facility director may be invited to the presentation. Assignment Components Students will need to submit a paper with a minimum of 1,200 words (in proper APA format). The paper must include: Title Page: -Must identify all members of the group, name of the assignment, course name, and number. Introduction: -Provide location (city and state) of the facility -Why you chose this specific facility? -Types of events that the facility is used for Report: - Identify each area as a section (i.e., floors, lighting, etc…) and discuss why it is vital to ensure that such risks are addressed citing items including, but not limited to, elements of negligence, foreseeability, frequency, and severity of potential injuries, etc…citing supporting literature. -Take and provide a picture (or pictures) of each hazard (no Internet pictures) and answer the following questions: -Recommend how to eliminate it or reduce it as much as possible -Make a recommendation for preventing it in the future Conclusion:

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-What significant takeaways did you gain from this experience? -What did you learn, and how will it make you a better professional? -How will it help you with your future career goals? References: -Minimum of six scholarly articles. Must be APA format Risk Assessment Part Two The second part of this assignment requires students to view and assess many of the hazards identified by the class. Once the photos of the hazards have been turned in, the instructor will put them in a PowerPoint slide show, which will be placed online in the learning management system (e.g. Blackboard or Canvas). Students will then view the ppt and rank each hazard from 1 – 5 with 1 being a minimal hazard and 5 being a very significant hazard. After all, students have submitted their scores, and the scores will be tallied for each hazard. The student(s) whose photos earned the top scores from the class is then given an award. An award can be anything from a t-shirt to extra credit. This helps provide incentive to the student to really look for hazards and not settle for the first ones he/she comes across. Going through this process requires each student to examine many hazards and consciously reflect on each in order to assign a score. This process exposes the students to many hazardous conditions instead of just the few they identified on their own inspections and to consciously consider each. Feedback from students at the end of the class confirms the effectiveness of this assignment in getting them to look and facilities in a different way than they did before the class. References Kolb, D. A. (1981). Learning styles and disciplinary differences. In A. W. Chickering and Associates (Eds.), The modern American college: Responding to the new realities of diverse students and a changing society(pp. 232-255). San Francisco: Jossey-Bass.

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If you didn’t get dirty then you didn’t play: The Government’s Corruption Investigation Into MLB

Abstract ID: 28

Dr. Mark Dodds (SUNY Cortland), Mr. Lawrence Brady (SUNY Cortland)

In October 2018, the federal government opened an investigation into bribery allegations associated with Major League Baseball’s international player development system (Passan, 2018). Specifically, the Department of Justice is using the Foreign Corrupt Practices Act of 1977 to examine whether MLB clubs and third parties acting on its behalf are bribing clerks or immigration officials to change dates of birth on identification documents, or to falsify identity documents of top international prospects. The FCPA governs how US corporations conduct business in other countries. Among its provisions, the FCPA crimi- nalizes US corporations and its citizens from bribing foreign officials from a governmental department, agency or instrumentality thereof. Most commonly, this action is giving something of value (money or other benefits) to a public official with the intent to obtain or retain business. The FCPA has been applied to other international sport organizations, such as FIFA, the United States Olympic Committee, the International Olympic Committee, and the International Association of Athletics Federation (Riella and Harwood, 2019). MLB has significant resources scouting and developing international talent, particularly in the Caribbean and Latin America countries. All 30 teams have baseball academies in the Dominican Republic. Many other MLB players hail from Venezuela, Mexico, Cuba, Colombia, Curacao, Brazil, Nicaragua, and Aruba. In total, there are a total of 206 players on MLB rosters from this area of the world (Anderson, 2018). Although US baseball talent is distributed through a player draft, the international market is very different. The international amateur free agency process is governed by the 2017-21 Collective Bargaining Agreement. The current CBA puts a spending cap on each club’s ability to sign international players. This cap ranges from $4.7 million to $5.75 million depending on certain criteria (mlb.com). Typically, the international signing period begins on July 2 and lasts through June 15 of the following year. The international market applies to players residing outside the United States, Canada or Puerto Rico and the player must be 16 years old prior to September 1 (mlb.com). Foreign professionals who are at least 25 years old and have played in a foreign league recognized by Major League Baseball for a minimum of six seasons. MLB owners would like to change this process to an international draft. However, this option is opposed by the many Latin players in the MLBPA (Peck, 2018). This investigation should shine light on a long-rumored hidden corruptive industry where prospects, and agents commit rampant age and identity fraud so the player would appear to be younger thus increasing his market value. Also, it may expose corruption liability within the underground trafficking of Cuban national baseball players (Wertheim, 2018). If it is proven that MLB employees were involved with the bribery scheme, then MLB and/or individual teams may be liable for significant penalties. The involvement could be as active as providing the bribery money or as passive as failing to monitor the behavior of the third parties. This presentation will: (1) analyze the FCPA; (2) its’ use in other sport related corruption scandals; and (3) discuss other MLB scandals related to the international player market. References Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1495

Anderson, S. (2018, Apr. 27). 27% of major league baseball players are foreign-born. Forbes. Retrieved from:

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https://www.forbes.com/sites/stuartanderson/2018/04/27/27-of-major-league-baseball-players-are-foreign-born/

Passan, J. (2018, Sept. 28). Sources: A federal grand jury is investigating MLB international dealings, and oﬃcials on all sides are worried. Yahoo Sports. Retrieved from: https://sports.yahoo.com/sources-federal-grand-jury- investigating-mlbs-international-dealings-oﬃcials-sides-worried-055827471.html

Peck, A. (2018, Oct. 20). Could MLB clubs be criminally liable under the Foreign Corrupt Practices Act for signing of Cuban players? International Trade Law Prof Blog. Retrieved from: https://lawprofessors.typepad.com/inttradelaw/2018/10/could-mlb-clubs-be-criminally-liable-under-the-foreign- corrupt-practices-act-for-signing-of-cuban-pl.html

Riella, A. & Harwood, B. (2019, March 5). DOJ is “swinging for the fences” in expanding traditional industry focus. Vinson & Elkins FCPA & Global Anti-Corruption practice. Retrieved from: https://www.lexology.com/library/detail.aspx?g=5596ce53-45ed-4520-82d6-cb70786ecc94 Wertheim, J. (2018, Oct. 2). Exclusive: The evidence that persuaded U.S. Department of Justice to investigate MLB recruitment of foreign players. Sports Illustrated. Retrieved from: https://www.si.com/mlb/2018/10/02/fbi- investigation-mlb-atlanta-braves-los-angeles-dodgers

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Impactful or invasive? Esport leagues and wearable technology

Abstract ID: 30

Ms. Sarah Brown (Texas A&M University), Dr. Natasha Brison (Texas A&M University)

Wearable technology (wearables) has revolutionized professional sports, with athletes and trainers using athlete biometric data (ABD) collected from the wearables to enhance training and improve overall performance (Rewired esports, 2019). Traditional sports, such as baseball, basketball, hockey and American football, have embraced wearables and are starting to capitalize on the opportunities presented by the technology. In the United States (US), four of the ﬁve major professional sport leagues and their associated unions have incorporated some protections for their athletes’ biometric data into the league’s collective bargaining agreement (CBA). However, esport leagues do not have a players’ association to negotiate on its behalf or a CBA to incorporate such protections (Sharma, 2019). Yet, in 2017, the ELEAGUE announced a partnership with Dell Gaming, Alienware, and gaming tech company Tobbii to integrate wearables, speciﬁcally eye tracking technology, into an upcoming tournament (Rettig, 2017). Since esport leagues do not have a CBA, they will have to negotiate with each individual athlete to be able to legally capture and utilize the athlete’s data. Without agreements in place, esport leagues could potentially violate players’ privacy and publicity rights. Therefore, the purpose of this presentation is to explore current regulatory frameworks of ABD, discuss the athlete’s privacy and publicity rights, as well as, the obstacles for esport leagues management of those rights. Lastly, this presentation will discuss how esport leagues can comply with regulatory requirements without engaging in collective or individualized agreements.

ABD is comprised of unique behavioral and physiological characteristics that can identify a specific athlete (Osborne & Cunningham, 2017). As such, ABD is considered a right of publicity owned by the athlete (Gale, 2016). The right of publicity is a property right that has been recognized and protected at both the federal and state levels. Further, there are several issues surrounding an athlete’s right to privacy, specifically considering the intimate data wearables collects and the transmission and storage of such data. For example, Australian tech firm HUMM technologies, developed wearables to measure esport players’ heart rate, eye movements and even cognitive patterns. Such data can be used to calculate the stress and focus levels of players during a game (Rewired esports, 2019). At a minimum, players must provide consent to the teams and leagues to publicly disseminate such information (Chiavetta, 2017).

Additionally, these negotiations will not only take time, but there are signiﬁcant legal complications, such as nego- tiating agreements with minors and managing the various, complex regulatory frameworks of ABD that vary from state to state and internationally. Since esport is truly international and gamers are in different countries, leagues need to be familiar with and manage the different jurisdictions’ requirements of ABD protections. Over the past several years, states have enacted data privacy laws aimed at protecting ABD, particularly the transparency about the transfer of athlete data (Sharma, 2019). Currently, there are three states, Illinois, Washington, and Texas, that have passed statutes aimed at protecting ABD. Moreover, in 2018 the European Union (EU) passed the General Data Privacy Regulation (GDPR), which aims to (1) give EU citizens more control over their personal data and (2) simplify the regulatory environment to allow for both businesses and citizens to fully beneﬁt from the digital economy (Palmer, 2018). Further, the GDPR not only applies to organizations operating within the EU, but also to any orga-

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nization internationally that offers goods or services to businesses or customers in the EU (De Groot, 2019). Given the extensive reach of the GDPR, it is necessary for esport leagues to establish a GDPR compliance strategy to avoid the severe penalties imposed by the GDPR. Esport can undoubtedly beneﬁt from integrating wearable technology into their leagues. Not only does the data generate additional monetary opportunities, but also has the potential to enhance fan engagement, player training and help prevent burnout among players. However, to fully capitalize on these opportunities, esport leagues must understand ABD regulations and requirements. This research will advise esport leagues on best management practices of their athletes’ rights, as well as compliancy with ABD regulatory framework. References Chiavetta, R. (8 March, 2017). Biometric monitors bring fresh privacy concerns to pro sports. Retrieved from https://iapp.org/news/a/biometric-monitors-bring-fresh-privacy-concerns-to-pro-sports/. De Groot, J. (15 July, 2019). What is the general data protection regulation? Understanding & complying with the GDPR requirements in 2019. Retrieved from https://digitalguardian.com/blog/what-gdpr-general-data-protection-regulation-understanding-and-complying- gdpr-data-protection Gale, K. (2016). The sports industry’s new power play: athlete biometric data domination. Who owns it and what may be done with it? Sports and Entertainment Law Journal Arizona State University, 6,7-83. Osborne, B., & Cunningham, J.L. (2017). Legal and ethical implications of athletes’ biometric data collection in professional sport. Marquette Sports Law Review, 28, 37- 84. Palmer, D. (23 May, 2018). What is GDPR? Everything you need to know about the new general data protection regulations. Retrieved from https://www.zdnet.com/article/gdpr-an-executive-guide-to- what-you-need-to-know/. Rettig, M. (7 September, 2017). Eye tracking shows where ELEAGUE gamers look on the screen. Retrieved from https://www.sporttechie.com/eye-tracking-eleague-gamers-screen/. Rewired ESPORTS. (4 February, 2019). The emerging technologies that could fuel esports Expansion. Retrieved from https://rewired.gg/the-emerging-technologies-that-could-fuel-esports-expansion. Sharma, A.K. (19 February, 2019). Esports face signiﬁcant legal risk over collection and use of biometric data. Retrieved from https://www.sporttechie.com/esports-legal-risk-collection-use-biometric-data/.

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Is the mind sport really a sport?

Abstract ID: 39

Prof. Sławomir Fundowicz (The John Paul II Catholic University of Lublin)

On 26 October 2017 The Court of Justice of the European Union took a stance on a dispute between the English Bridge Union (EBU) and the UK tax authorities. The EBU organizes duplicate bridge tournaments and charges players an entry fee to participate. The EBU paid VAT on thee fees, but it was of the opinion that those fees should be exempt from VAT under the VAT Directive (2006/112) also covering the supply of certain services closely linked to sport. So, the EBU made an application to the tax authority for repayment of the tax. The dispute was finally referred to the Upper Tribunal (Tax and Chancery Chamber) which asked the Court a question whether bridge is a sport within the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1). In the course of the procedure, Advocate-General Maciej Szpunar issued a non-binding opinion that bridge should be considered “sport” and, by extension, be subject to separate VAT rules in the UK. He stressed that bridge needs “considerable efforts and skills of intellectual nature,” and that it should be considered “sport” in the public interest. He also mentioned that bridge was internationally recognized as sport, especially by the International Olympic Committee since 1998, and would be accepted into the pantheon of sports during the 2020 Tokyo Olympics. However, the Court of Justice of the European Union did not share this opinion. The Court noted that, since the VAT Directive failed to define “sport,” the word should be considered in its usual meaning in everyday language, while also taking into account the context in which it is used and the purposes of the rules of which it is part. Considering VAT exemptions, which should be construed in the strict sense, the wording of the VAT Directive related to sport relates only to activities characterized by a not negligible physical element. The Court admitted that duplicate bridge involves the use of high-level mental skills such as logic, planning or memory, and that playing duplicate bridge regularly promotes both mental and physical health. However, this is not enough to consider it “sport” within the VAT Directive. The fact that an activity beneficial for physical and mental health is pursued as a discipline does not lead to opposite conclusions. Finally, the Court found that an activity such as duplicate bridge, which is characterized by a physical element that appears to be negligible, is not covered by the concept of “sport” within the meaning of the VAT Directive. Still, the Court provided that the member states may regard duplicate bridge as falling within the concept of “cultural services” within the meaning of the said directive if the activity, in the light of the way in which it is practiced, its history and the traditions to which it belongs, holds such a place in the social and cultural heritage of a given member state that it may be regarded as forming part of its culture. This being the case, VAT exemption would also be possible within the VAT Directive. On 11 July 2007, the European Commission published the White Paper on Sport. It opens with Pierre de Coubertin’s statement (1863-1937), “Sport is part of every man and woman’s heritage and its absence can never be compensated for.” The White Paper definition of sport was transferred to the Act of 25 June 2010 on Sport almost verbatim (here- inafter “the AoS”). Article 2(1) AoS reads that sport is all forms of physical activity which, through casual or organised participation, influence the development or improvement of physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels. Indeed, the legal definition of sport is defective. Its fundamental concept is physical activity, though it does not need to be regular or assume an organised form. Be- sides, it excludes the so-called “mind sports”, i.e. the forms of competition based on intellectual effort (e.g. chess, bridge). Physical activity is linked to physical and mental health, the promotion of social relationships or sports performance. So, sport is defined as a physical activity intended for the improvement of sports performance, which is a tautology. Besides, the statutory definition fails to include any reference to the person taking up that physical

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activity. What follows, it is hard to find a physical activity that would not meet the statutory criteria of sport (e.g. physical work, stroll, or even eating). In the AoS itself, the concept of sport is not used in the general sense. This fact is already highlighted in the justification of the draft: “The draft law uses the notion of ‘sport” in two meanings: broad and narrow. On the one hand, sport (sensu largo) is defined as given above. In that sense, the concept is used in Article 2(10 of the draft. On the other hand, (sensu stricto) sport is related to its specific manifestation (a discipline within the meaning of the existing rules). In that sense, the concept is used in relation to the Polish sports association. It omits the notion of ‘sport discipline’ as indeterminate while assuming that the conventional seman- tic rules for a particular sport are sufficient for the correct operation of the draft law. This leads to a conceptual unification with the nomenclature used across the international Olympic movement where the concept of ‘sport’ is used to denote a specific activity organised or managed by a relevant international sports organization.” The sport definition controversy was addressed in the Act of 20 July 2017 amending the Act on Sport and in the Act on the Disclosure of Information on the Records of the State Security Service from the Years 1944-1990 and the Content of these Records. This law supplemented existing Article 2 of the AoS by adding paragraph 2a as follows, “Sport is also an intellectual competition aimed to achieve a sport result.” The mentioned tautology was not avoided, yet the concept of sport was extended to cover “mental sports” such as bridge, chess, or checkers. On 19 April 2005 during the GAISF (then General Association of Sport Federations) annual convention The Interna- tional Mind Sports Association (IMSA) was founded. The goal of IMSA was to gather different mind sports federations to pursue common aims and interests, to organize the World Mind Sports Games under the aegis of GAISF and further realize the inclusion of mind sports in the Olympic movement. In particular, the organization’s long- term plans included running the World Mind Sports Games on the same lines as the Olympics. IMSA membership currently stands at 7: including the 4 founding international federations, World Bridge Federation (WBF), Interna- tional Go Federation (IGF), Fédération Mondiale du Jeu de Dames (FMJD), and Fédération Internationale des Échecs (FIDE); the World Xiangqi Federation (WXF) was added in 2015, the Mahjong International League (MIL) in 2017, and the Federation of Card Games (FCG) in 2018. Board and card games that are outside the Federation of Mental Sports can be divided into those in which regular sports competitions take place, and in which attempts are organized. The first group includes skat - a card game, especially widespread in Germany, but also in the United States and Poland. You can also point to board games in which sport games are already taking place: Shogi (Japanese chess); Gomoku, Renju and Pente; Reversi. There are also many board games enthusiasts who meet at board games fairs, at environmental events: general, where you can play different games, or themed, dedicated to a specific game. This can lead to the development of thematic federations of individual games. At this stage, they are more often commercial than sports events. The main threat here is the pursuit of novelty, which makes it impossible to stabilize the rules of the game and competition. One of the most urgent challenges in defining sports is the status of e-sports. E-sport is a fact: people compete in computer or video games of various generations. Counter-Strike champions are celebrities, their game struggles being broadcast on TV. Their fans cannot name a single football player but can tell the clan arrangements on the de-dust map from the last tournament. In this case, considering the obvious linked between sport and physical activity outlined above, by no means do e-sports fall under the traditional definition of “sport.” Still, there are e-sport individuals and teams competing in national and international leagues and tournaments watched by thousands, and their prizes are worth millions. They seem to define competition as community action which makes it possible to compare the results against some established general rules. In other words, there is a multimillion group of e- sport amateurs led by a group of professionals with extraordinary personal capabilities. All in all, considering the existing legal framework, e-sport may be seen as fitting within the concept of sport. However, an e-sport organisa- tional development should follow that would correspond to the current traditional sports organisations in size and influence.

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Jean v. Francois (Naomi Osaka) – A Case Study on How Not to Draft Contracts

Abstract ID: 21

Prof. Mark Conrad (Fordham University, Gabelli School of Business)

Abstract Summary: This presentation is a case study centering on an attempt by a tennis coach to contract with the father of a world-class tennis player in securing some earnings for his services. A recent Florida court ruling concluded that the contract was so poorly drafted that it was unenforceable. In addition, the court noted that even if it was not the case, the court would be void under a Florida law regarding athletes who are minors. The court also refused to impose equitable relief under the doctrine of quasi-contract. The presentation will focus on using the case as a study to discuss the legal requirements of a valid contract and statutes that regulate contracts involving minors. Abstract: After securing victories in the 2018 U.S. Open and 2019 Australian Open, Naomi Osaka became the number one ranked women’s tennis player. Osaka spent much of her formative years in Florida. When she was 16, she was coached by Christopher Jean. During that time, Jean made an “agreement” with her father, Leonard Francois, whereby he was would be based on a percentage of her future earnings. The agreement was brief. It stated: “Both parties agree on a fixed fee of twenty percent (20%) on every tennis contract or monetary agreement on behalf of Marie and Naomi Osaka.” “The term of employment shall be indefinite. either [sic] party may terminate this agreement by giving three months written notice to the other party. All monetary obligations must be regulated [sic] before termination. All contract agreement assigned at time of employment will uphold until cancellation or completion of the contract. [sic]” Jean coached Naomi for five years and after she attained major success, he sued for breach of contract, claiming a valid agreement existed or, alternatively, that quasi-contract relief was justified. Osaka denied that a valid contract existed. On September 13, 2019, the Broward County Circuit Court, in Jean v. Francois,[1] concluded that the agreement was too vague to be a valid contract, and that even if it fulfilled the requirements of a contract, it violated Florida law because it involved a minor and was not approved by the Florida courts as required by the Florida Child Performer and Athlete Protection Act.[2] This presentation will serve as a case study and teaching tool, describing the importance of contract drafting and the risks made when contracting with a minor. It will serve as a way to integrate a contract case into a classroom lesson. The presentation is more pedagogical than scholarly, as, admittedly the case does not create any new law, but shows how a poorly crafted agreement would result in a voidable or even void agreement. However, for students to see such a poorly-drafted contract and then analyze the arguments made by the respective side would be beneficial to their understanding of sports contracts. I will distribute copies of the contract, the complaint by the former coach, the answer by Osaka’s lawyers and the court’s ruling. [1] See Jean v. Francois, No. CACE-19 002954 (Sept. 13, 2019) Broward County Circuit Court [2] See Fl. Stat. sec. 743.083

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Landowner liability, Pay-to-Play and Partnered Solutions for a Resurging Mountain Bike Scene

Abstract ID: 33

Dr. Jeb Gorham (Midway University)

In less than ten years, the National Interscholastic Cycling Association (NICA) has managed to rebuild U.S. cycling’s base by introducing tens of thousands of middle and high School students to the sport of mountain biking (MTB) (Dreier, 2018). Since 2009, NICA participation has grown 30-40% annually and the 501(c)3 organization currently serves over 22,000 student-athletes from 1,000 schools in its 31 state and regional leagues. In 2019 alone, NICA added four new leagues in Kentucky, Ohio, Kansas and Nebraska (NICA, 2019). NICA’s Teen Trail Corps focuses on providing youth the opportunity to engage in stewardship and advocacy projects to support the growth of the sport and trail systems. NICA has built the infrastructure through its network of coaches, partners and sponsors, to reach nearly 80% of the country’s youth (VeloNews, 2019). This growth has spurred more conversations than ever about trail expansion projects and new land access. Despite the popularity and growth of the sport, the International Mountain Biking Association (IMBA), local and regional MTB organizations track ongoing misconceptions about recreational risk to private and public landowners who provide access to trails on their property. MTB organizations consistently face questions and concerns about Recreational Use Statutes and Federal/State Tort Claims Acts relating to Liability and Immunity. Landowners are concerned with and typically ask questions about duty of care, negligence, failure to warn, vandalism, littering, signage, maintenance, waivers and insurance (Burghardt, 1996). The amount of public vs. private land ownership varies by state and so do the recreational and tort claims act protections. However, a common thread is the protection of the social function of recreation and the alleviation of nuisance claims. In this respect, The National Agricultural Law Center has developed a searchable database that can be used as a guide to explore state by state Recreational Use Statutes (Salton & Rumley, 2019). Efforts like this support healthy dialogue between MTB organizations and landowners as they explore the development of new trail systems. States with vast indigenous land assets and large recreational economies have gone as far as making their Recreational Use Statutes lenient, favoring access, while others work to keep pace. In States such as Vermont and Kentucky over 85% of land is privately owned (Headwaters Economics, 2019) and recreational access would be severely limited without private landowner support. As private landowners explore opening access, they not only consider liability issues, but also face scrutiny from environmental and public organizations as they develop their trails. In recent years, there has been a growth in the amount of Pay-to-Play and Exclusive MTB trail systems because landowners gain greater freedom over their trail construction, maintenance and access (Fisch, 2018). However, once landowners begin to charge fees for trail access, they potentially open the door for increased liability. MTB organizations at various levels have become advocates and experts when it comes to addressing landowner access concerns surrounding trail development, stewardship, access and liability. This forum will provide an opportunity for experts working with local, regional and national MTB organizations to discuss current issues and solutions for the resurging MTB scene. Forum topics will include:

• Legal review of current liability and immunity for private and public landowners with respect to MTB trails • Limitations of recreational use statutes

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• Interplay between recreational use statutes and Tort Claims Acts • Trail development, access, easements and stewardship • The rise of Pay-to-Play and Exclusive MTB Trail Systems • Partnered solutions for working with landowners • Best Practices for landowner access, organizational stewardship and risk reduction

In conjunction with this forum a research team has started to develop an on-going study to better understand and evaluate the issues that landowners face when they consider opening access to their property. Beginning in the Fall of 2019 and continuing through 2021, this research team will explore the legal and socio-cultural issues linked to land access for MTB. Researchers will seek to understand:

• The barriers to landowners when they consider opening access to their property. • How landowners perceive the various multi-use participants that wish to have access to their property (e.g. hikers, bikers, ATVers, hunters, ﬁshermen, etc.). • How to quantify the number of landowners who may partner and provide open access to mountain bikers in speciﬁed regions. • If landowners would be more likely to partner and open access to their property with the proper trail infrastructure in place. • Landowners’ expectations of trail partnership.

This forum will include experts who focus their work on MTB rider development, trail access, stewardship, and the important role that landowners play in providing outdoor recreation to the public. The following organizations are planned panel guests at the forum:

• National Interscholastic Cycling Association (NICA) Kentucky • Kentucky Mountain Bike Association (KYMBA) • Vermont Mountain Bike Association (VMBA) and Bennington Area Trail System (BATS) • A selection of College and University experts

• A selection of landowners recruited from our study

References: Burghardt, T. (1996). Landowner Liability. Retrieved September 15, 2019, from http://www.imba.com/resources/trail_issues/land_liability.html Dreier, F. (2018). High school MTB leagues rebuild U.S. cycling’s base. Retrieved September 10, 2019, from https://www.velonews.com/2018/08/from-the-mag/high-school-mtb-leagues-rebuild-u-s-cyclings-base_477418 Fisch, J. (2018, May 11). The rise of Pay-to-Play and Exclusive mountain bike trails. Retrieved September 10, 2019, from https://www.singletracks.com/blog/trail-advocacy/rise-pay-play-exclusive-mountain-bike-trails/ Headwaters Economics (2019). Public Land Ownership in the UnitedStates. Retrieved October 6, 2019, from https://headwaterseconomics.org/public-lands/protected-lands/public-land-ownership-in-the-us/ National Interscholastic Cycling Association. (2019, October). NICA expands to 31 leagues welcoming Kansas, Kentucky, Nebraska, and Ohio. Retrieved October 8, 2019, from https://madmimi.com/p/12816f?pact=10681399- 154301140-11405925157-aae322ee8f184bd0e443086cfa7e211d5381348b Salton, D. & Rumley, E. (2019). The National Agricultural Law CenterStates’ Recreational UseStatutes. Retrieved October 10, 2019, from https://nationalaglawcenter.org/state-compilations/recreational-use/

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VeloNews. (2019, October 1). Four additional programs will bring youth mountain bike racing to the Midwest, upping nationwide total to 31. Retrieved October 4, 2019, from https://www.velonews.com/2019/10/news/nica-expands-to- 31-leagues-welcoming-kansas-kentucky-nebraska-and-ohio_501238

65 Sport and Recreation Law Association Conference

Legal Consciousness and Sport-Related Concussion: Comparing Perceptions of Youth Soccer Coaches in Scotland and Florida, US

Abstract ID: 3

Ms. Anne Demartini (Flagler College), Dr. Sungwon Kim (St Johns University), Dr. David McArdle (Stirling University), Dr. Daniel Connaughton (University of Florida)

This presentation utilizes legal consciousness, a form of socio-legal scholarship, to compare perceptions of concussion management in girls’ youth soccer coaches in Scotland and the United States. Introduction: All 51 US states have laws regarding concussion safety in high school and/or youth sports (Kim, et al.,(2017). The vast majority of state statutes were formed based on the framework of the Lystedt Law, passed in Washington in 2009. However, Kim, et al. (2017) found little standardization among state statutes. Variations were found in several categories, including youth sport programs applicability, the definition of youth sport programs, the type of sport activities covered, the designated party responsible for removing athletes from play, and qualified personnel for medical clearance for return to play. In contrast, Scotland does not have laws regarding concussion management. However, in 2015, medics, sport associations, the Scottish Government and sportscotland, the national agency for sport, came together to produce a single concussion policy for all sports and released an update to those guidelines in March 2018, following a meeting of experts in Berlin. The updated guidelines were designed to shape a consistent, accurate message and build on Scotland’s world-leading approach of creating one consistent, evidence-based policy towards concussion across all sports (sportscotland, 2018). Theoretical grounding: Often defined as an “outcome of social processes through which meanings and identities are collectively recon- structed” (Merry, 1990 as cited in Sommers and Roberts, 2008, p. 23), legal consciousness draws on sociological and anthropological traditions, encompassing a person’s attitudes toward, willingness to mobilize, suppositions about, and experiences of the law (Young, 2009). It is the “common-sense understanding” of how the law works (Nielsen, 2004). Legal consciousness examines the role of law in everyday life and seeks to highlight the relationships and the contradictions between ‘law in the books,’ such as legislation, court decisions, governing body guidelines, and ‘law in action,’ those sources that influence an individuals’ daily practices (Ewick & Silbey, 2003; Young, 2014). Legal consciousness refers to what people do as well as say about law (Silbey, 2008). Ewick and Silbey, 1998 (as cited in Harding, 2006), describe three primary orientations to the law or types of legal consciousness: ‘conformity before the law, engagement with the law, and resistance against the law.’ Conformity before the law connotes discussions of law as a sphere separate from society, “objective, distinct, formally ordered and rational…compounded by a reification of law’s ability to ‘know’ what the correct solution should be” which may reflect a sense of individual powerlessness (Harding, 2006, p. 513). Engagement ‘with the law’ characterizes law as a game, where the skilled and resourceful can make strategic gains and which is invoked by the perception that law canbe changed whether through judicial, societal or political means (Harding, 2006). Resistance ‘against the law’ reflects a belief that the law is to be avoided rather than bowing to its power or playing its game, perhaps exemplified by “pilfering, violence or the threat of violence, tricks, institutional disruptions, footdragging, humour, storytelling and gossip” (Ewick & Silbey, 2003, p. 1336). These three types of legal consciousness are not mutually exclusive and people can conceptualize all three within one story of law or legal processes (Harding, 2005). Because legal consciousness is concerned with how organisations, social networks, working relationships and infor-

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mal interactions can influence the behaviour of individuals, legal consciousness frameworks allow us to consider coaches’ understanding and responses to concussion and potential concussive incidents and explore how these might be consistent with, or radically different to, those that ‘the law’ envisages. Method: The researcher conducted 16 semi-structured interviews of girls’ soccer (football) coaches in central Scotland during the summer of 2018 and in Florida, US through 2019. In Scotland, the coaches led youth club teams of girls’ 13-18 years old. The US coaches led high school girls’ teams in Florida schools. Subject matter experts and qualitative research experts vetted and revised the interview questions. Participation in the interview process was voluntary, and no incentives were offered. The interviews lasted 45-90 minutes and centered on 11 questions regarding concussion management. The Scottish coaches were primarily white, male and volunteer. The US sample included more female coaches and most received compensation from the school. Two researchers then coded the interview transcripts utilizing cycles of descriptive coding and structural coding. To ensure inter-coder reliability, each researcher coded the transcripts separately, and the primary researcher resolved any divergence through adjudication. Descriptive coding assigns basic labels to data to provide an inventory of topics (Saldana, 2015.) Structural coding applies a conceptual phrase representing a topic of inquiry to a segment of data that relates to a specific research questions used to frame the interview (MacQueen, et al., 2008, p. 124 as cited in Saldana, 2015, p. 98). In this study, researchers used the three orientations to the law as the guiding topics of inquiry. Results: The researchers analyzed interviewees by social position since these experiences shape their understanding of the law, noting gender, age, previous personal soccer playing experience, previous personal experience with concussion injuries, the type of soccer club and amount of club resources, international exposure to concussion management, parental status and volunteer status. Overall, the study found versions of conformity and engagement to concussion laws and guidance and observed differences between the groups of coaches. The legal consciousness of both coaches in Scotland and Florida supported the idea that legal authority is normally uncontested and that orientations to the law are not mutually exclusive. Initial analyses reveal conformity before the law, however, there were marked differences in the perceptions of coaches in Scotland and in Florida. Most notable was a knowledge gap demonstrated by the Scottish coaches. Several of the Scottish coaches were not aware of the sportscotland guidelines. However, every US coach was aware of the existence of concussion regulations dictated by law. While neither set expressed that they felt powerlessness in the face of the concussion regulations and laws, the Scottish coaches thought the guidelines were separate from their day-to-day experience since they did not perceive the prevalence of concussions in girls’ football to be very high. The Florida coaches perceived that concussions occur often in girls’ high school soccer and appeared more resigned to a conformity forced upon them through mandated concussion trainings. In terms of engagement with the law, the coaches did not perceive concussion guidance or laws as a game to play. They did view the guidelines as changeable and coaches from both Scotland and Florida indicated that their management of concussions i had changed over time. Scottish coaches desired more information as the science around concussion improves and Floridian coaches wanted new and more engaging training modules. In terms of resistance against the law, there was no evidence of either group of coaches actively trying to avoid concussion regulations/guidelines. However, the Scottish coaches expressed some skepticism that the guidelines do not accurately reflect the evidenced-based consequences of concussions and return to play protocols. The US coaches resisted the repetitiveness of the mandated concussion training. Both sets of coaches chafed at the idea of banning heading as a means of concussion management. Discussion/Significance:

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Legal consciousness frameworks allow us to consider coaches’ understanding of concussion management and explore how it might align with or differ from what US law or Scottish guidance contemplate. The results of this research can assist in providing recommendations for legislatures and governing bodies to ensure concussion guidelines “in action” are consistent with the guidelines “on the books.” The presentation will detail additional analyses and propose policy to address the gaps. References: Ewick, P. & Silbey, S. (2003). Narrating social structures: Stories of resistance to legal authority. American Journal of Law and Sociology,108(6), 1328-1372 Harding, R. (2006) Dogs are ‘registered’, People shouldn’t be: Legal consciousness and lesbian and gay rights. Social and Legal Studies, 15(4), 511-533. Kim, S., Connaughton, D., Spengler, J. & Lee, J.H. (2017) Legislative Efforts to Reduce Concussions in Youth Sports: An Analysis of State Concussion Statutes, Journal of Legal Aspects of Sport, 27,162 -186. Nielsen, L.B. (2004). License to harass: Law, hierarchy and offensive public speech. Princeton: Princeton University Press. Saldana, J. (2015). The coding manual for qualitative researchers,(3rd ed.)..Newbury Park, CA: Sage. Silbey, S. (2009). Legal consciousness. In Cane, P. and Conaghan, J. (Eds.) The New Oxford Companion to Law. Oxford: Oxford University Press. Sommers, S. & Roberts, C. (2008). Toward a new sociology of rights. Annual Review of Law and Social Science, 4,385- 425. Sportscotland, (2018). Scottish Sports Concussion Policy. Retrieved July 7, 2019 from: https://sportscotland.org.uk/clubs/scottish-sports-concussion-guidance Young, K. (2009). Rights consciousness in criminal procedure: A theoretical and empirical inquiry. Journal of Law, Crime and Deviance, 12, 67-95. Young, K. (2014). Everybody knows the game: Legal consciousness in the Hawaiian cockﬁght. Law and Society Review, 48(3), 499-530.

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Loans and Marketing Guarantees in Athlete-Agent Recruiting: Why They Are Ill-Advised Under Agency Law and Attorney Ethics Regulations Principles

Abstract ID: 8

Prof. Josh Lens (University of Arkansas)

Athlete-agents use various means to recruit prospective clients. Recent information shows that controversial yet common methods include offering loans and marketing guarantees to prospective clients. In each transaction, the agent provides his client with money, in some cases amounting to millions of dollars. The agent typically expects repayment of the loan whereas the guarantee amount is an advance on future marketing income that the agent will arrange for the athlete. This Article details the use of loans and marketing guarantees in the football agent recruiting process. The Article next explores both NFLPA and state athlete-agent law, based on the Uniform Athlete-Agents Act or its revised version, prohibitions on athlete-agents providing inducements to prospective clients. This analysis concludes that neither authority considers loans or marketing guarantees illicit inducements or prohibits these transactions. The Article also details the sentiment held by a large group of football agents who have been outspoken regarding their desire to eliminate the ability of agents to provide remuneration to clients or, at a minimum, cap that amount. Some agents point out that their colleagues who offer marketing guarantees to athletes who play positions such as defensive line know that the athletes will not garner enough marketing income to pay off the guarantee amount. Thus, the guarantees are essentially cash inducements that the NFLPA should prohibit. The Article describes the ongoing conversations between this group of agents and the NFLPA. The Article next describes the fiduciary relationship between athlete-agents and their clients and the duties that result under agency law. Among these duties is that agents, due to the overarching duty of loyalty, may not deal with their clients as adverse parties. Next, the Article applies agency law to the provision of loans and marketing guarantees by athlete-agents to their clients, concluding that agency law seeks to prohibit such transactions as they can put the agent’s interests in a position adversarial to, or conflicting with, those of the agent’s client. The Article sets forth the analysis courts in multiple states apply in scenarios involving transactions between an agent and principal, showing that courts are typically loathe to uphold such transactions. The Article then examines the application of attorney ethics regulations to the provision of loans and marketing guarantees by attorneys who serve as athlete-agents to clients. A commonly cited statistic reveals that attorneys comprise more than half of all athlete-agents who represent football players. Because the agent-client relationship differs largely from the traditional attorney-client relationship, many attorneys acting as agents incorrectly assume their actions are not subject to attorney ethics regulations. The Article explains why this assumption is incorrect. The Article then explores application of two Model Rules of Professional Conduct (“Model Rules”) provisions to the scenario whereby attorney-agents provide loans and marketing guarantees to their clients. More specifically, the Article details and applies the Model Rules prohibition on attorneys entering business transactions with clients. Next, the Article describes and applies the Model Rules prohibition on attorneys providing financial assistance to clients to these transactions. The Article describes a trilogy of non-sports cases that analyze and apply this prohibition. The Article determines that these two attorney ethics regulation prohibitions forbid attorneys who serve as athlete-agents from providing loans and marketing guarantees to clients. The Article concludes by explaining that, based on agency law and attorney ethics regulations principles, both athlete-agents and athletes should be leery of these dealings as they put the two parties’ interests in adverse posi-

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tions. Further, the Article urges the NFLPA and individual states to listen to the large contingent of agents who wish to prohibit or cap these transactions, and expressly prohibit them. Doing so would help create a level playing ﬁeld between agents who are attorneys and those who are not, as bar associations lack jurisdiction over non-attorney agents.

70 Sport and Recreation Law Association Conference

Make Athletes Pay More Again: An Analysis of Jock Tax Issues following 2017 Tax Reform

Abstract ID: 66

Dr. Dylan Williams (University of Alabama), Dr. Patrick Tutka (Niagara University), Mr. Joseph Sabin (University of Dubuque)

In 2017, President Donald Trump signed into law the Tax Cuts and Jobs Act (TCJA), the largest tax overhaul since the 1986 Tax Reform Act (Gale, Gelfond, Krupkin, Mazur, & Toder, 2018). The purpose of TCJA was to lower the federal income tax rates for both individuals and corporations (Greenwood, 2017). Before 2017, the top individual tax rate was 39.6% while the top corporate rate was 35%. These figures have been reduced to 37% and 21%, respectively (Gale et al., 2018). Additionally, TCJA doubled the standard deduction for all individual tax returns, which decreases one’s taxable income resulting in less federal income taxes owed. Thus, individuals whose filing status is married filing jointly increased in 2018 from $13,000 to $24,000 (Rubin, 2019). However, the new law also removes past items that helped reduce one’s taxable income. For example, TCJA suspended personal exemptions one could claim for spouses, dependents, and themselves (Gale et al., 2018). Addition- ally, TCJA biggest impact on taxpayers centers on an individual’s use of itemized deductions. Itemized deductions are expenses that one can claim on their return to help reduce taxable income (Michel, 2017). Taxpayers can choose to itemize if their qualified expenses exceed the standard deduction but cannot claim both standard and itemized. Most taxpayers choose the standard deduction, but those with high medical expenses, charitable contributions, or unreimbursed business expenses would itemize (Gale et al., 2018; Greenwood, 2017). While some believe the tax reforms are beneficial overall (Gale et al., 2018; Michel, 2017), it has affected individuals subject to nonresidential income taxes from income earned outside of their residential area (DiMascio, 2007; Fontein, 2018). These source-based income taxes are levied on all individuals that earn income despite not having residence within an area (Ekmekjian, Wilkerson, & Bing, 2004; Overbay, 2016; Pahuskin, 2011). However, anyone can be assessed this tax by earning income within an area that implements a nonresidential income tax, this practice is commonly known as the jock tax as it is regularly assessed on professional athletes. Though Weier (2016) noted the first instance of the jock tax occurred in 1976, the concept of taxing nonresident athletes was popularized by California lawmakers in 1991 after the Chicago Bulls defeated the Los Angeles Lakers in the 1991 National Basketball Association (NBA) Finals (DiMascio, 2007; Fontein, 2018; Williamson, 2017). California lawmakers subjected the Bulls’ players to pay state income tax against any salary earned in California during the 1990-91 NBA season (Pahuskin, 2011). In response, Illinois proposed its own version of the jock tax, but only for individuals from visiting states that tax Illinois residents (Fontein, 2018). According to DiMascio (2007), Illinois was hoping to eliminate the jock tax entirely, but the reciprocal nature of the tax legitimized the practice and led several other states to adopt their own version. Instead, only seven U.S. states do not impose a jock tax while nine U.S. cities impose their own city jock tax along with their state’s jock tax (Fontein, 2018). If one would pay these additional taxes, he/she had the ability to claim itemized deductions for state and local taxes (SALT) on his/her federal return and reduce his/her federal tax bill as well as any work-related expenses not reimbursed by his/her employer (Gale et al., 2018; Michel, 2017; Pogroszewski & Smoker, 2014). Itemized deductions are expenses that one can claim on their return to help reduce taxable income (Michel, 2017). Taxpayers can choose to itemize if their qualified expenses exceed the standard deduction but cannot claim both standard and itemized. Most taxpayers choose the standard deduction, but those with high medical expenses, charitable contributions, or unreimbursed business expenses would itemize (Gale et al., 2018; Greenwood, 2017). However, TCJA significantly reduced the ability for many individuals to claim these itemized deductions in an effort

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to increase federal tax revenue by approximately $168 billion per year (Committee on Ways and Means, 2017). First, it reduced the SALT deduction to a $10,000 cap (Michel, 2017). This measure impacted residents of states from highly taxed states like California or New York as opposed to states like Florida or Texas (Rubin, 2019). Furthermore, TCJA also eliminated the deduction for miscellaneous expenses subject to the 2% ﬂoor. Thus, individuals can no longer claim work-related expenses as a deduction. Due to these two measures, professional athletes and individuals with high nonresidential income are expected to have higher tax bills at the federal and state levels until TCJA expires in 2025 (Rubin, 2019). Thus, the purpose of this project is to explore the overall impact TCJA has on the jock tax for professional athletes and nonresidential workers and how one can mitigate its issues. Though certain deductions were eliminated, taxpayers can reduce their tax burden by establishing residence in a non-income tax state or creating a loan-out company for non-employment revenue. References Committee on Ways and Means. (2017). Estimated budget effects of the conference agree- mentfor H.R. 1, the ’Tax Cuts and Jobs Act.’Washington, D.C.: Author. Retrieved from https://waysandmeansforms.house.gov/uploadedﬁles/12.15.17_jct_score.pdf DiMascio, J. (2007). The jock tax: Fair play or unsportsmanlike conduct? University of Pittsburgh Law Review, 68,953- 973. Ekmekjian, E., Wilkerson, J., & Bing, R. (2004). The jock tax contest: Professional athletes vs. the states – Background and current developments. Journal of Applied Business Research, 20(2), 19-32. Fontein, A. (2018). The home team advantage: Why lawmakers and the judiciary should bench the jock tax. Arizona State University Sports & Entertainment Law Journal, 7,327-356 Gale, W., Gelfond, H., Krupkin, A., Mazur, M., & Toder, E. (2018). Effects of the Tax Cuts andJobs Act: A preliminary analysis.Washington, D.C.: Brookings Institute. Greenwood, M. (2017, September 8). Trump: Tax reform ‘needed now more than ever.’TheHill.Retrieved from https://thehill.com/homenews/administration/349776-trump-tax- reform-needed-now-more-than-ever Michel, A. (2017, December 9). Analysis of the 2017 Tax Cuts and Jobs Act. The HeritageFoundation.Retrieved from https://www.heritage.org/taxes/report/analysis-the-2017-tax- cuts-and-jobs-act Overbay, N. (2016). A uniform application of the jock tax: The need for congressional action. Marquette Sports Law Review, 27,217-238. Pahuskin, S. (2011). Heads up! Recent federal and state attempts to address nonresident income taxation perpetuate selective enforcement and unfairness of the ‘jock tax.’ The Tax Lawyer, 64, 961-974. Pogroszewski, A., & Smoker, K. (2014). My tax accountant says I can deduct my hot tub. He’s the expert – Should I question him? An overview of tax deductions for professional athletes and the responsibility of tax preparers who sign off on their returns. Marquette Sports Law Review, 25,435-467. Rubin, K. (2019, April 11). Tax consequences for professional athletes in 2018. The Tax Insider. Retrieved from https://www.thetaxadviser.com/newsletters/2019/apr/tax-consequences- professional-athletes-2018.html Weier, A. (2016). The effects of state & local taxes on NBA athletes(Unpublished undergraduate thesis). Northern Illinois University, DeKalb, Illinois. Williamson, C. (2017). Taxation of income on professional athletes(Unpublished master’s thesis).Liberty University, Lynchburg, Virginia.

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Maranello, We (May) Have a Problem: the Convention on the Manipulation of Sports Competitions and Team Orders in Formula 1

Abstract ID: 48

Prof. Kerri Cebula (Kutztown University)

Introduction

Team orders in Formula 1 have a wide and varied history. One of the earliest incidents of team orders occurred in 1951. Back then, drivers could switch cars with their teammates to earn half points. In the 1951 French Grand Prix, Alfa Romeo driver Luigi Fagioli was forced to swap with teammate Juan Manuel Fangio. Fangio goes on to win the race and the first of his four World Championships; Fagioli retires from racing at the end of the race (“Six times when,” 2018). The most famous recent example occurred in the 2002 Austrian Grand Prix. Race leader Rubens Barrichello of Ferrari was ordered to let teammate Michael Schumacher pass on the last turn of the final lap to ensure that Schumacher earned enough World Championship points. Schumacher and Ferrari were met on the podium with jeers and boos from the fans. Ferrari was fined one million dollars, not for issuing the team orders, but for violating the regulations on the podium ceremony (Zaksaite & Radusevicius, 2016). It worked for Ferrari as Schumacher went on to win the World Championship (“Six times when”, 2018). Formula 1 teams continue to issue team orders to this day. During the 2018 Russian Grand Prix, Mercedes AMG Petronas driver Valterri Bottas was ordered by the team to let teammate and World Championship points leader Lewis Hamilton have his position (“F1 - Hamilton wins in Russia”, 2018). During the 2019 season, there has been ongoing speculation, seemingly every race, over whether or not Ferrari will issue team orders to its battling drivers, Sebastian Vettel and Charles LeClerc. Team orders in Formula 1 took on a new significance in June 2019. Italy became the sixth country to ratify the Council of Europe’s Convention on the Manipulation of Sports Competitions (the Macolin Convention or the Con- vention); its ratification came into force on October 1, 2019 (“About the Convention,” n.d.). Italy is the only one of the six countries to host a Formula 1 Grand Prix and it is home to Ferrari, which is based in Maranello. The purpose of this research is to examine the Macolin Convention in light of Italy’s ratification to determine if team orders in Formula 1 violate the Convention. Convention on the Manipulation of Sports Competitions Possible issues surrounding team orders come when using the definition of manipulation of competition under the Convention. It defines manipulation of sports competition as “an intentional arrangement, act or omission aimed at an improper alteration of the result or course of a sports competition in order to remove all or part of the unpredictable nature of that aforementioned sports competition with a view to obtaining an undue advantage for oneself or others” (CETS No. 215). The manipulation does not have to be successful; the attempt is enough. The Explanatory Report to the Council of Europe Convention on the Manipulation of Sports Competitions, which does not constitute an authoritative interpretation of the text, but instead helps to provide understanding, breaks down the definition of manipulation of competitions into three distinct words: improper, intentional, and undue advantage. Improper refers to an act which infringes on the regulations of the sports competition and intentional means that the act improperly influences the results of a sport competition. Finally, an undue advantage refers to the objective of the act: does one gain financially from the act or even simply the glory of winning (CETS No. 215 Explanatory Report).

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Why Does Maranello have a Problem? Under the definition of manipulation of competition in the Macolin Convention, team orders could be considered to be a manipulation of competition, and a plain reading of the definition backs that up. The key is in the three words: improper, intentional, and undue advantage. Improper An act that violates the sport’s regulations is considered an improper manipulation of competition. The events of the 2002 Austrian Grand Prix led the Federation Internationale de l’Automobile (FIA), Formula 1’s governing body, to ban “team orders which interfere with a race result…” (Federation Internationale de l’Automobile (FIA), 2007). This ban did not matter as teams became more creative in issuing team orders. In the 2010 German Grand Prix, Ferrari driver Felipe Massa was leading the race when the following came over his team radio: “Okay, so, Fernando is faster than you. Can you confirm you understood the message?” Massa confirmed by slowing down and allowing teammate Fernando Alonso to take the lead and win the race. Alonso was in a battle with Vettel, then driving for Red Bull, for the World Championship and needed the points. Ferrari was fined $100,000 and Alonso ended up losing the championship by four points but beat the third place driver, Red Bull’s Mark Weber, by ten points (“Six times when”, 2018). Formula 1 removed the ban on team orders in 2011, but warned teams that they could still be punished for bringing the sport into disrepute under the FIA’s International Sporting Code (Elizalde, 2010; FIA, 2019). No team has been punished for issuing team orders since the ban was lifted. Intentional An intentional act is one that improperly influences the results of a sports competition. Mercedes’ team orders in the 2018 Russian Grand Prix was clearly an intentional act that improperly influenced the results of the race. During the 2018 German Grand Prix, Ferrari told driver Kimi Raikkonen, who was ahead of teammate Sebastian Vettel, that Vettel was faster in an attempt to get Raikkonen to let Vettel pass. Vettel was in a battle for the World Championship with Hamilton and Ferrari needed Vettel to earn maximum points. Raikkonen refused for several laps, forcing Vettel to wear his tires out. Vettel eventually passes Raikkonen, but his tires were so worn that he crashed out of the race, effectively ending his bid for the World Championship. Ferrari attempted to improperly influence the results of the race, which is enough under the Macolin Convention. An act may look like an improper influence from the outside, but auto racing is unpredictable. There are many parts and pieces to a race car that may fail. There are things that can happen during a pit stop. During the 2019 Russian Grand Prix, Vettel started behind teammate Charles LeClerc, but passed him in the first turn. Vettel was to give the position back but did not. Vettel pits after LeClerc, but his pit stop takes 0.5 seconds longer than LeClerc’s, putting Vettel back behind LeClerc. Could that have been Ferrari ensuring that LeClerc took the position? Yes, but the wrench could have failed, the tires may not have been in the exact position they needed to be in, or Vettel could have even stopped in slightly the wrong place. Undue Advantage Finally, do team orders allow one person or one team to gain an undue advantage? One type of undue advantage that a person or a team can gain is a financial gain. And this is where Formula 1’s unique system comes into play. Under Formula 1’s system, there is no prize money for winning the race. In addition, there is no prize money for winning the World Championship. All money comes from the Constructor’s (team) Championship. The points each constructor earns during a race is dependent on the results of its two drivers added together. In the 2018 Russian Grand Prix, Mercedes earned 43 points, 25 from Hamilton and 18 from Bottas. But if Bottas had won the race, Mercedes would have still earned 43 points, 25 from Bottas and 18 from Hamilton, earning it the same amount of money in the Constructor’s Championship. There was no financial gain. Many of the team orders issued by Formula 1 teams work in the same way; the team still earns the same number of points. A second type of undue advantage is the glory of winning the event. Winning is the goal of participating in compet-

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itive sports and teams and athletes do what they can to ensure they win by employing certain strategies and tactics. Strategy and tactics are an integral part of sports. Strategy is defined by the Oxford Dictionary (n.d.) as “[a] plan of action designed to achieve a long-term or overall aim” and tactic is defined as “[a]n action or strategy carefully planned to achieve a specific end.” In the 2007 Monaco Grand Prix, while the team order ban was still in place, the Vodafone McLaren Mercedes team was accused of using team orders to ensure that Alonso finished in front of teammate Hamilton. The FIA cleared the team of using team orders, stating that the team had used strategy to ensure a good outcome for the team and that its tactics of using a two pit stop strategy was a sound tactic in Monaco (Henry, 2009). Conclusion Team orders may violate the Macolin Convention under certain circumstances. But an argument can be made that team orders should be considered strategy and tactics and not manipulation of competition. References: About the Convention on the Manipulation of Sports Competitions (n.d.). Council of Europe. Retrieved from: http//www.coe.int/en/web/sport/about-the-convention-on-the-manipulation-of-sports-competitions Arron, S (2013, March 26). A history of team orders in Formula One. The Telegraph. Retrieved from: https://www.telegraph.co.uk/motoring/motorsport/formulaonediary/9954992/A-history-of-team-orders-in- Formula-One.html Carpenter, K. (2013, March 31). There is no Vettel in team: sporting match-fixing in F1? Law in Sport. Retrieved from author. Council of Europe Convention on the Manipulation of Sports Competitions. Council of Europe Treaty Series No. 215. Edmondson, L (2018, September 30). ‘Harsh realities’ - Wolff explains Mercedes’ team orders in Russia. ESPN. Retrieved from: http://www.espn.com/f1/story/_/id/24846297/harsh-realities-toto-wolff-explains-mercedes- team-orders-russia Elizalde, P (2010, December 10). FIA drops team orders ban from 2011. Autosport. Retrieved from: https://www.autosport.com/f1/news/88645/fia-drops-team-orders-ban-from-2011 Explanatory Report to the Council of Europe Convention on the Manipulation of Sports Competitions. Council of Europe Treaty Series No. 215. F1 - Hamilton wins in Russia ahead of Bottas as Mercedes employ team orders (2018, September 30). Federation Internationale de l’Automobile. Retrieved from: https://www.fia.com/news/f1-hamilton-wins-russia-ahead-bottas- mercedes-employ-team-orders Federation Internationale de l’Automobile (2007). 2008 Formula One Sporting Regulations 17.07.18. Retrieved from: http://paddocktalk.com/news/html/modules/ew_filemanager/07images/f1/fia/033007_2008_F1_SPORTING_REGULATIONS.pdf Federation Internationale de l’Automobile (2018). 2018 Formula One Sporting Regulations. Retrieved from: https://www.fia.com/regulation/category/110 Henry, A (2007, May 30). McLaren cleared over Monaco team orders that never were. The Guardian. Retrieved from: https://www.theguardian.com/sport/2007/may/31/motorsports.sport Six times team orders decided a race (2018, October 3). Planet F1. Retrieved from: https://www.planetf1.com/news/six-times-team-orders-decided-a-race/ Strategy (n.d.). Oxford Dictionary. Retrieved from: https://en.oxforddictionaries.com/definition/strategy Tactic (n.d.). Oxford Dictionary. Retrieved from: https://en.oxforddictionaries.com/definition/tactic Zaksaite, S (2013). Match-fixing: the shifting interplay between tactics, disciplinary offence, and crime. Int. Sports Law J 13:287-293. Zaksaite, S. & Radusevicius, K (2017). Manipulation of competitions in Formula 1: where policy ends and cheating begins. Int. Sport Law J16:240-246.

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Maximizing the effectiveness of community sport, recreation, and play assets: Understanding criminal incidents and permitting as barriers to public accessibility

Abstract ID: 27

Dr. Jeffrey Levine (Drexel University), Dr. Gareth Jones (Temple University), Dr. Andrew Goldsmith (Temple University)

Parks and recreation systems traditionally exist to benefit the public. A bevy of scholarly research details the benefits that play provides to children and adolescents (Sahlberg & Doyle, 2019; Yogman, & Hirsh-Pasek, 2018). Play serves an important role in facilitating a child’s physical, social, and intellectual development (Milteer & Ginsburg, 2012). For youth living in urban areas throughout the United States, parks and green spaces play an important part in this developmental process (Larson, Jennings, & Cloutier, 2016). However, in many of the nation’s urban communities, there are a shrinking number of designated locations for play and recreation (Sahlberg & Doyle, 2019). This magnifies the importance of maximizing the available parks and greenspaces to provide the most use and utility for residents. In other words, parks and recreation departments must constantly revise and implement policies to maximize the efficiency of resources. Access to resources and facilities are often a barrier for youth in urban areas, particularly those residing in low- income neighborhoods (Feldman, 2019). However, the City of Philadelphia has made improving its parks and recreation offerings a priority under its current leadership and is investing $500 million dollars into the city’s recreational assets as part of Project Rebuild (McCabe, 2019). This has led to Philadelphia having more sport and recreation assets than the typical urban city (Currie, 2019), which in theory provides more opportunities for youth and the public to engage in free play. However, before a parks and recreation asset can be utilized, it cannot be seen as a threat to users’ personal safety (see Esteban-Cornejo & Carlson, 2016). Some studies have suggested that the presence of parks and green space in cities reduce crime in surrounding areas (Larson & Ogletree, 2019; Schusler, Weiss, Treering, & Balderama, 2018), yet questions remain about the relationship between parks and crime incidents (Larson & Ogletree, 2019). This topic still inspires policy discussions (Bogar & Beyer, 2015). For instance, Boessen and Hipp (2018) found that areas with parks actually have higher rates for aggravated assault than others, while Groff and McCord (2012) found the parks are associated with higher levels of proximal crime. In addition, the rapid growth in organized sport programming, particularly for youth, has led to permitting logjams for many municipal recreation departments. As a result, even when parks and recreation facilities are within close proximity to residents, many are not actually available during peak hours due to use by permit-holding users. Collectively, these two aspects may reduce the usability of these resources, thus rendering policies for sport and recreation assets less effective. Sport and recreation managers must make decisions to maximize resources, and a foundational aspect of such a decision-making process is to have the appropriate information. Therefore, in order to make more informed policy decisions, the purpose of this study was to gain a better understanding of Philadelphia’s parks and recreation assets from a criminal incidence and utilization standpoint. This information helps to determine how readily available parks and recreation assets are for different types of play and use. Specifically, the study was guided by two research questions. First, public parks and greenspaces are typically underutilized when they are seen as places where crime is more prevalent. Thus, we will analyze: (1) whether or not there are differences between parks and recreation assets in the number of incidences and type of criminal act reported within 150 feet of the asset. Second, even if parks and recreation facilities are perceived as safe and accessible, the benefits may prove illusory if members of the public are unable to gain access because another person

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or group has a permit that provides for exclusive use. Thus, we will analyze (2) the proportion of time dedicated to free/open play across multiple parks and recreation assets (e.g., recreation center, pocket park, community park, neighborhood park, athletic field, greenspace, etc.). The authors will download shapefiles associated with the spatial distribution of parks and recreation assets in the City of Philadelphia. In addition, socio-demographic data from the American Community Survey will be downloaded and spatially referenced at the Census Block Group level to provide appropriate context. Spatially referenced crime data will be downloaded from a publicly available online reporting system supported by the Philadelphia Po- lice Department and permitting data will be collected from the Parks and Recreation Department. The analysis will include variable-based (i.e., descriptive statistics, regression) and geospatial (i.e., density, buffer analysis) methodologies to answer each research question. Although the City of Philadelphia has made significant progress improving its parks and recreation offerings through the Rebuild policy initiative, such efforts may face other barriers that discourage use. This criminal and usage data would help to understand the prevalence of potential barriers that can make facilities less accessible. The authors will report the results and discuss legal and policy implications. References Boessen, A., & Hipp, J. R. (2018). Parks as crime inhibitors or generators: Examining parks and the role of their nearby context. Social Science Research, 76, 186–201. https://doi.org/10.1016/j.ssresearch.2018.08.008 Bogar, S., & Beyer, K. M. (2015). Green space, violence, and crime: A systematic review. Trauma, Violence, & Abuse, 17(2), 160 – 171. DOI: 10.1177/1524838015576412 Currie, N. (2019, May 23). Philly has the nation’s 19th best park system, study finds. WHYY. Retrieved from https://whyy.org/articles/philly-has-the-nations-19th-best-park-system-study-finds/ Esteban-Cornejo, I., Carlson, J. A., Conway, T. L., Cain, K. L., Saelens, B. E., Frank, L. D., Sallis, J. F. (2016). Parental and adolescent perceptions of neighborhood safety related to adolescents’ physical activity in their neighborhood. Research Quarterly for Exercise and Sport, 87(2), 191–199. https://doi.org/10.1080/02701367.2016. 1153779. Feldman, N. (2019, February 6). Why your neighborhood school probably doesn’t have a playground. WHYY. Re- trieved from https://whyy.org/articles/uneven-play-most-philadelphia-public-schools-dont-have-playgrounds-thats- slowly-changing/ Groff, E., & McCord, E. S. (2012). The role of neighborhood parks as crime generators. Security Journal, 25(1), 1 – 24. https://doi.org/10.1057/sj.2011.1. Larson, L., & Ogletree, S. S. (2019, June 25). Can parks help cities fight crime? The Conversation. Retrieved from https://theconversation.com/can-parks-help-cities-fight-crime-118322 Larson, L. R., Jennings, V., & Cloutier, S. A. (2016). Public parks and wellbeing in urban areas of the United States. PLoS One, 11(4), 1 – 19. doi:10.1371/journal.pone.0153211 McCabe, C. (2019, June 1). Philadelphia parks are improving, thanks to Mayor Kenney’s Rebuild initiative. But need still abounds. The Philadelphia Inquirer, retrieved from https://www.inquirer.com/real-estate/housing/parkscore- philadelphia-trust-for-public-land-19th-nation-parks-and-rec-kenney-rebuild-soda-tax-20190601.html Milteer, R. M., & Ginsburg, K. R. (2012). The importance of play in promoting healthy child development and main- taining strong parent-child bond: Focus on children in poverty. American Academy of Pediatrics, 129(1). 204 – 213. https://pediatrics.aappublications.org/content/129/1/e204 Sahlberg, P., & Dolye, W. (2019). Let the children play: How more play will save our schools and help children thrive. New York, NY: Oxford University Press. Schusler, T., Weiss, L., Treering, D., & Balderama, E. (2018). Research note: Examining the association between tree canopy, parks and crime in Chicago. Landscape and Urban Planning, 170, 309 – 313. http://dx.doi.org/10.1016/j.landurbplan.2017.07.012

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Yogman, M., & Hirsh-Pasek, K. (2018). The power of play: A pediatric role in enhancing development in young people. American Academy of Pediatrics, 142(3). 1 – 18. https://pediatrics.aappublications.org/content/142/3/e20182058

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NCAA Transfer Rules: The Struggle for Power in College Athletics

Abstract ID: 61

Mr. Eric Kramer (Troy University), Dr. Michael Carroll (Troy University)

The purpose of this presentation is to provide a regulatory, legal, and practical context to NCAA transfer legislation while also offering a pathway towards a sensible solution. Free agency is the term that some in the national media use to describe the current state of transfer regulations within the NCAA’s primary revenue generating sports (Murphy, 2019; Rittenberg & VanHaaren, 2019). Conversely, an equally, if not more frequent, public point of view argues that the NCAA’s transfer rules continue to be inherently unfair to the well-being of student-athletes (Nocera, 2016). In addition, the legality of such transfer rules has been challenged both in the courts and through published writings. In order to comprehensively examine the issue, both sides of the argument must be addressed, as well as consideration of continued legal challenges to NCAA transfer regulations.

The basic rule that applies to all transfer student-athletes, regardless of where they previously attended school states that “[a] student who transfers to a member institution from any collegiate institution is required to complete one full academic year of residence at the certifying institution before being eligible to compete for or to receive travel expenses from the member institution, unless the student satisfies the applicable transfer requirements or qualifies for an exception set forth in this bylaw” (NCAA Manual, 2018, p. 152). There are a variety of exceptions for four-year transfers to utilize, including discontinued/non-sport, two-year non-participation, nonrecruited student, etc., but most will not meet the requirements of such exceptions (NCAA Manual, 2018). The most commonly used exception is the one-time transfer exception. The one-time transfer exception allows a student-athlete to transfer from a four- year institution one time in their college career without having to serve a year in residence before competing for their new institution, provided that they are athletically and academically eligible at the time of transfer and the previous institution does not object to the student-athlete using this exception (Transfer terms, 2018). This one- time exception, however, is only available to student-athletes who compete in sports other than baseball, men’s or women’s basketball, football (Football Bowl Subdivision), or men’s ice hockey, thus serving as a deterrent to athletes in the most lucrative NCAA sports. NCAA transfer regulations have been able to withstand various legal challenges. Cases such as McHale v. Cornell (1985) and Collier v. NCAA (1992) both pursued injunctive relief from transfer regulations, in part claiming a violation of the due process portion of the 14th Amendment of the United States Constitution. More recently, Pugh. v. NCAA (2016), Deppe v. NCAA (2017), and Vassar v. NCAA(2018) each challenged NCAA transfer regulations on antitrust grounds. This last triad of cases, heard in the 7th Circuit Court of Appeals, failed, due in large part to the 7th Circuit’s ruling in Agnew v. NCAA(2012), which effectively shielded the NCAA rulebook from antitrust scrutiny. The Agnew(2012) decision was primarily based upon the Supreme Court’s seminal decision in NCAA Board of Regents of the University of Oklahoma (1984), in which the court wrote that “most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore procompetitive because they enhance public interest in intercollegiate athletics” (p. 117). The Agnew(2012) court thus reasoned that any NCAA bylaw designed to help maintain amateurism would be presumed procompetitive. Through the use of a two-step approach, this presentation will examine various caselaw and literature that provide reasoning to challenge previous legal rulings in the matter of NCAA transfer rules. Section I will examine the application of antitrust law to NCAA bylaws and regulations. Section II will take a closer look at NCAA transfer rules and

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why the implementation of such rules should be considered a violation of the Sherman Act. The NCAA has already taken steps to deregulate the transfer market by implementing the NCAA Transfer Portal and easing requirements for transfer waivers. In an effort to continue those deregulation efforts to further support the legal rights of student- athletes, increased attention should be paid to the use of the one-time transfer exception for revenue generating sports. Student-athletes in revenue sports should be afforded the same opportunity to transfer from a four-year institution one time in their career without being penalized. While it is unrealistic for the NCAA to consent to a full-ﬂedged free agency in college athletics, a less restrictive transfer environment should be implemented through legislative actions within its membership or via legal action. References: Agnew v. National Collegiate Athletic Association, 683 F.3d 328 (7th Cir. 2012). Collier v. National Collegiate Athletic Association, 783 F. Supp. 1576 (D.R.I. 1992). Deppe v. National Collegiate Athletic Association, 893 F.3d 498 (7th Cir. 2018). McHale v. Cornell University, 620 F. Supp. 67 (N.D.N.Y. 1985). Murphy, D. (2019, February 14). NCAA committee reviewing college football’s transfer guidelines. Retrieved Oc- tober 18, 2019 from https://www.espn.com/college-football/story/_/id/25999149/ncaa-committee-reviewing-college- football-transfer-guidelines. National Collegiate Athletic Association (2018, July). 2018-19 NCAA Division I Manual. Indianapolis, IN: NCAA. National Collegiate Athletic Association (n.d.). Transfer terms. Retrieved October 18, 2019 from http://www.ncaa.org/student-athletes/current/transfer-terms. National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984). Nocera, J. (2016, April 1). With college transfer rules, hypocrisy never sits out a year. The New York Times Retrieved October 18, 2019 from https://www.nytimes.com/2016/04/02/sports/ncaabasketball/with-college-transfer- rules-hypocrisy-never-sits-out-a-year.html. Pugh v. National Collegiate Athletic Association, No. 1:15-cv-01747-TWP-DKL (S. D. Ind. 2016). Rittenberg, A. & VanHaaren, T. (2019, February 11). Portals, waivers and the future of college football free agency. Retrieved from www.espn.com/college-football/…/portals-waivers-future-college-football-free-agency. Vassar v. National Collegiate Athletic Association, No. 1:16-cv-10590-ARW (N.D. Ill. Aug. 14, 2018).

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Nevada and Sports Law Post PASPA

Abstract ID: 7

Prof. Adam Epstein (Central Michigan University)

The purpose of this presentation is to demonstrate that the state of Nevada has much to offer for sports law enthusiasts even after the Professional and Amateur Sports Protection Act of 1992 (PASPA) was declared unconstitutional by the Supreme Court in 2018. Found in the Ninth Circuit, Nevada has often been the center of discussion in sports law for its exemption under PAPSPA related to sports wagering (gambling) under PASPA, along with Delaware, Montana and Oregon. Much has already been written on Nevada’s exemption, but after the state of New Jersey convinced the Supreme Court in Murphy v. Nat’l Collegiate Athletic Ass’n that PASPA was not consistent with the Constitution, the decision paved the way for other states to legalize, tax, regulate and participate in the sports gambling industry. So profound was the Murphy decision that the National Collegiate Athletic Association (NCAA) changed its position to allow states that have legal sports wagering to now host NCAA championship events. After engaging in the presentation, it is hoped that viewers will agree that the Silver State has some other gems to offer. The gamut of material is ambitious but includes, of course, the decision in Nat’l Collegiate Athletic Ass’n v. Tarkanian. It also reminds attendees that following the Supreme Court’s decision in Tarkanian, Nevada and other states immediately enacted due process statutes specific to the NCAA and to regulate the NCAA’s enforcement procedure. The Nevada statute contained procedural requirements applicable to NCAA investigations to assure some measure of conformance to due process. The NCAA sued in response alleging a violation of the Commerce Clause by extending Nevada law beyond its own geographic boundaries, and in Nat’l Collegiate Athletic Ass’n v. Miller, the U.S. Court of Appeals for the Ninth Circuit held that the Nevada statute that required the NCAA to provide different “procedural due process protections” in Nevada than it provided in enforcement proceedings in other states violated the Commerce Clause because it directly regulated interstate commerce. Numerous sport scandals are also presented including the infa- mous “Fan Man” incident in 1993 and when boxer Mike Tyson was disqualified for biting Evander Holyfield’s ear in 1997. Other scandals involved fraud in the high school football recruiting process and fraud related to sports memorabilia. Nevada also has numerous sport-related statutes, including at least two statutes which address the failure of a contestant, promoter, ring official or other participant to use “best efforts” during a contest. Other examples include the Skier and Snowboarder Safety Act, a recreational use statute, and now a statute that pertains to youth sport and concussions. Indeed, there are gems found within the Silver State. Selected References

Adam Epstein, Sports Law (2013). Associated Press, Agent in Sentenced in Florida, N.Y. Times (July 3, 1996), https://www.nytimes.com/1996/07/03/sports/sports-people-football-agent-is-sentenced-in-ﬂorida.html. Associated Press, Ex-UNR Soccer Coach Rejects $151,000 Offer, San Diego Union-Trib. (Apr. 27, 2009), https://www.sandiegouniontribune.com/sdut-nv-soccer-coach-042709-2009apr27-story.html Associated Press, Tarkanian Rips NCAA at Luncheon, ESPN (Jan. 11, 2010), https://www.espn.com/mens-college- basketball/news/story?id=4817186. Adam Kilgore, Jerry Tarkanian a Pioneer in Taking Aim at the NCAA, Wash. Post (Feb. 11, 2015), https://www.washingtonpost.com/news/sports/wp/2015/02/11/jerry-tarkanian-a-pioneer-in-taking-aim-at-the- ncaa/?utm_term=.1f8bae35a571. Boland v. Nevada Rock & Sand Co., 894 P.2d 988 (Nev. 1995).

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Cy Ryan, UNR Soccer Coach Loses Appeal, Las Vegas Sun (Dec. 13, 2011), https://lasvegassun.com/news/2011/dec/13/unr-soccer-coach-loses-appeal/. Dan Purdum, NCAA Rescinds Ban on Title Events in Betting States, ESPN (May 3, 2019), https://www.espn.com/college- sports/story/_/id/26662014/ncaa-rescinds-ban-title-events-betting-states Danny Robbins, NCAA Fights Back, Challenges Nevada: Jurisprudence: Lawsuit Takes Aim at Statute that Requires Enforcement to Follow Due Process, L.A. Times (Nov. 13, 1991), http://articles.latimes.com/1991-11-13/sports/sp- 1325_1_legal-due-process. Emily Caron, Golden Knights, U.S. Army End Trademark Dispute, Enter Coexistence Agreement, SI.com (July 19, 2018), https://www.si.com/nhl/2018/07/19/golden-knights-us-army-trademark-dispute-settled-agreement-reached Eric Fisher, New Jersey Sets Sports Wagering History with First Monthly Win over Nevada, Sport Business (June 27, 2019), https://www.sportbusiness.com/news/new-jersey-sets-sports-wagering-history-with-first-monthly-win-over- nevada/ Erin Buzuvis, Sidelined: Title IX Retaliation Cases and Women’s Leadership in College Athletics, 17 Duke J. Gender L. & Pol’y 1, 20-21 (2010) Homeschool Participation, Nev. Rev. Stat. Ann. §§ 386.462, 386.580(5)-(7), 392.070 (LexisNexis 2018); Nev. Admin. Code ch. 386, §§ 793, 802, 804 (2018). Jeff German, Tark’s Fight with NCAA Finally Over, Las Vegas Sun (Mar. 15, 2002), https://lasvegassun.com/news/2002/mar/15/tarks-fight-with-ncaa-finally-over/ Kathryn Kisska-Schulze & Adam Epstein, “Show Me the Money!”-Analyzing the Potential State Tax Implications of Paying Student-Athletes, 14 Va. Sports & Ent. L.J. 13, 35 (2014). KeyMan Collectibles, Las Vegas Father and Son Sentenced in Sports Memorabilia Fraud Case (Mar. 22, 2006), http://keymancollectibles.com/forged.htm. Limitation of liability; exceptions for malicious acts if consideration is given or other duty exists, Nev. Rev. Stat. Ann. § 41.510 (LexisNexis 2018) (recreational activity statute). Maisonave v. Newark Bears, 881 A.2d 700, 709 (N.J. 2005). Michael S. Carroll, Dan Connaughton, & J.O. Spengler, Recreational User Statutes and Landowner Immunity: A Com- parison Study of State Legislation, 17 J. Legal Aspects of Sport 163 (2007). Michael Scott Davidson, Nevada Population Surpasses 3M, Las Vegas Rev.-J. (Dec. 19, 2018), https://www.reviewjournal.com/local/local-nevada/nevada-population-surpasses-3m-1554861/ Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018). Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988). Nat’l Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476 (D. Nev. 1992); 10 F.3d 633 (9th Cir. 1993), cert. denied, 511 U.S. 1033 (1994). Nevada Secretary of State, General Information, https://www.nvsos.gov/sos/licensing/sports-agents/general- information (last visited June 29, 2019). Nev. Rev. Stat. Ann. § 41.510 (LexisNexis, 2019). Nev. Rev. Stat. Ann. § 207.290 (LexisNexis, 2019) Nev. Rev. Stat. Ann. §§ 385B.010-385B.190 (LexisNexis, 2019). Nev. Rev. Stat. Ann. § 385B.150 (LexisNexis, 2019). Nev. Rev. Stat. Ann. §§ 386.420-386.470 (LexisNexis, 2019) renumbered and moved on July 1, 2019 to Nev. Rev. Stat. Ann. §§ 455A.010-455A.190 (LexisNexis, 2019). Nev. Rev. Stat. Ann. § 455A.200 (LexisNexis, 2019). Nev. Rev. Stat. Ann. § 467.0108 (LexisNexis, 2019). Nev. Rev. Stat. Ann. §§398.155-398.295 (1991).

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Nev. Rev. Stat. Ann. § 467.110 (LexisNexis, 2019). Nev. Rev. Stat. Ann. § 467.020 et seq. (2019). NIAA, http://www.niaa.com/information/about (last visited June 29, 2019). Patraw v. Groth, 2011 Nev. Unpub. LEXIS 1309 (Dec. 12, 2011) (unpublished decision). Professional and Amateur Sports Protection Act (“PASPA”) [the “Bradley Act”] 28 U.S.C. §§3701-3704 (1992). Revised Uniform Athlete Agents Act, Nev. Rev. Stat. Ann. §398A.010- §398A.440 (Lexis-Nexis eff. July 1, 2017). Safety of Participants in Outdoor Sports, Nev. Rev. Stat. Ann. §§ 455A.010 — 455A.200) (LexisNexis 2018) (“Skier and Snowboarder Safety Act” Chapter 455A. Sonja Steptoe, Anatomy of a Scandal, SI.com (May 16, 1994), https://www.si.com/vault/1994/05/16/131109/anatomy- of-a-scandal-florida-state-won-the-1993-national-football-championship-but-because-of-unsavory-agents-rule- breaking-players-and-its-own-lack-of-vigilance-it-ended-up-a-loser. Suspension, revocation and other disciplining of contestant and other participants; grounds for refusal to issue license, Nev. Rev. Stat. Ann. § 467.110 (LexisNexis 2019) (“best efforts” related to unarmed combat). Tarkanian v. Nat’l Collegiate Athletic Ass’n, 741 P.2d 1345 (Nev. 1987). Tim Kawakami, Tyson License Revoked; He is Fined $3 Million, L.A. Times (July 10, 1997), https://www.latimes.com/archives/la-xpm-1997-jul-10-mn-11357-story.html. Tom Friend, Kevin Hart to Sign with D-II School, ESPN (Feb. 1, 2012), http://www.espn.com/college- sports/recruiting/football/story/_/id/7525340/kevin-hart-recruit-lied-california-golden-bears-sign-missouri- western-state. Tom Friend, Tyson Disqualified for Biting Holyfield’s Ears, N.Y. Times (June 29, 1997), https://www.nytimes.com/1997/06/29/sports/tyson-disqualified-for-biting-holyfield-s-ears.html. Tom Friend, After Biting, Tyson Faces Trouble from All Corners, N.Y. Times (June 30, 1997), https://www.nytimes.com/1997/06/30/sports/after-biting-tyson-faces-trouble-from-all-corners.html. Tom Friend, The Boy Who Cried Cal, ESPN, http://www.espn.com/espn/eticket/story?page=kevinhart (last visited June 29, 2019). Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172 (Nev. 2008). U.S. Const., Art. I, sec. 8, clause 3, (Commerce Clause).

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Noncontroversial Legislation: A Review of the Overlooked NCAA Legislation Making Process

Abstract ID: 10

Mr. Joshua Smith (University of California, Riverside), Ms. Colleen Farrell (East Tennessee State University)

Keywords: NCAA, Noncontroversial, Legislation, Emergency, Rule-Making, Voluntary Associations

This presentation will address the history, adoption and use of the unknown path to NCAA legislation known as emergency or noncontroversial legislation. Presenters will discuss the history of the original proposal, which created the ability of the Management Council to adopt legislation without membership votes. We will also discuss the legislation that has been adopted through this process over the past 20 years and any concerns over where this legislation could be heading and whether it is a worthwhile process that should be discontinued or possibly even expanded. Presenters will provide a short analysis of the legal aspects of the legislative rule-making process within voluntary associations and how the NCAA may differ from typical associations. In 1999, Proposal 1999-14 was adopted establishing Bylaw 5.3.2.2.1.4 (now 5.3.2.2.1.1) granting the Membership Council authority to adopt emergency, noncontroversial legislation by a three-fourths vote of members of the Coun- cil present and voting (NCAA LSDBi). The rationale was to streamline “housekeeping” legislative issues without clogging the typical legislative making process on topics that would have virtually no opposition from the membership. On January 2, 2001, Proposal 2000-35 was officially adopted permitting such noncontroversial legislation to be adopted during any meeting instead of just the first or third (January and July) Council meeting each year. It also clarified that the membership comment period is not applicable for legislation adopted as emergency or noncontroversial. This new rule making process was under scrutiny shortly following its adoption. In 2003, the Pac-10 Conference (now Pac-12) brought forward Proposal 2003-79 that would define noncontroversial and emergency legislation in an attempt to limit the Council’s authority to fast-track legislation. As part of its rationale the Pac-10 was concerned that the Council had adopted legislation that member institutions did not consider to be either emergency or noncontroversial. The proposal would have defined noncontroversial as legislation “recommended for adoption by at least a three-quarters majority vote of the Management Council and adopted by at least a three-quarters vote of the Board of Directors.” However, one day after submitting the proposal the conference withdrew it from consideration. Opposition to the bylaw has not been brought forward by a conference or member institution since the 2003-79 proposal was withdrawn. The Council has utilized its authority to recommend emergency or noncontroversial legislation over 100 times since 2000. The majority of rules adopted have affected recruiting (Bylaw 13) followed by Bylaw 31 (Executive Regula- tions) and 21 (Association-Wide Committees). Every section of the NCAA manual has been touched in this manner from Bylaw 12 (Amateurism) and 14 (Eligibility) to 15 (Financial Aid), 16 (Extra Benefits) and 17 (Playing Seasons). Only one proposal has been specifically recommended as emergency when Proposal 2010-5 was passed. The presentation will provide greater in-depth analysis of rules that have been passed through this process and a discussion on whether they should have been considered noncontroversial. There are two conflicting but equally legitimate arguments that can be made about the Association’s use of noncontroversial legislation. First, as the Pac-12 originally suggested 16 years ago, the Council has exceeded its authority to adopt legislation that does not meet the definition of noncontroversial to usurp the rule making process away from member institutions. The other side of the argument is that more legislation could easily fit into the definition and

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should be passed in an expedited manner. This presentation will pose each side of this argument and open up for debate the future of noncontroversial and emergency legislation. (Oct. 7, 2019). Retrieved from https://web3.ncaa.org/lsdbi/

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One Hundred Thirty Years before Federal Baseball Club v. National League: The Origins of the Law of Baseball

Abstract ID: 69

Dr. Paul J. Batista (Texas A&M University)

When contemplating the origins of the law pertaining to baseball, the usual starting point of the conversation is Federal Baseball Club v. National League (1922), the case in which the U.S. Supreme Court held that major league baseball is not subject to the provisions of the Sherman Antitrust Act (1890). However, research establishes that other legal authorities relating to the game of baseball predate this case by at least 130 years. As early as September 25, 1791, merely three years after the adoption of the United States Constitution, the ﬁrst ordinance (referred to as a “bylaw”) was adopted by Pittsﬁeld, Massachusetts, banning playing with a ball and bat within 80 yards “for the preservation of the windows of the New Meeting House.” (Thorn, 2011). Three years later, the Pennsylvania General Assembly adopted a blue law statute making it illegal to play baseball (and engage in other activities) on Sunday. The statute was titled “An Act for the Prevention of Vice and Immorality, and of Unlawful Gaming, and to Restrain Disorderly Sports and Dissipation.” (Lucas, 1971). Ironically, in 1816 the hamlet of Cooperstown, New York, adopted an ordinance prohibiting “play[ing] at Ball in Second or West Street, in this village.” The penalty for doing so was “one dollar, for each and every offence.” (Otsego Herald, 1816). This location today sits merely one-half block from the National Baseball Hall of Fame and Museum. Until the Court delivered its decision in Federal Baseball Club a century later, numerous legal issues related to baseball made their way into the public consciousness, including the following representative examples:

• Creation of the first organized baseball club through adoption of a formal club Constitution (1837) • Adoption of the first “official” rules of baseball by the New York Knickerbockers (1845) • The first reported “fixed game” where players accepted bribes to conspire to manipulate the result of the game. The leader of the team was William M. “Boss” Tweed of Tammany Hall fame (1865) • The Resolute Base Ball Club of Cincinnati, later to be known as the Cincinnati Red Stockings, was officially created (1866) • The first appellate case opinion relating to baseball was issued in Watson v. Avery(1867), • The first organized league of professional baseball teams, the National Association of Professional Base Ball Players, was formed (1871) • Patents were issued for various game items including a process to manufacture baseballs (1867), catchers’ masks (1878), padded chest protectors (1884), baseball gloves (1885), batting helmets (1905), and a batting cage (1907) • The “first instance of contract litigation” regarding the reserve clause was resolved in Allegheny Base-Ball Club v. Bennett (1882) • The Brotherhood of Professional Base Ball Players was formed as the first professional players’ union (1885) • The Brotherhood of Professional Base Ball Players formed the Players League, owned and operated by its member players (1889) • Congress adopted the Sherman Antitrust Act, signed into law by President Benjamin Harrison (1890) • The National and American Leagues signed an agreement to create the first World Series between the Leagues (1903)

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• A copyright was issued for Take Me Out to the Ballgame (1908) • The first players strike protested the suspension of Ty Cobb for his part in a fight with a fan (1912) • Crane v. Kansas City Baseball (1913) was the first case approving the assumption of risk defense for injuries caused by a foul ball (1913) • The Black Sox Scandal (1919) produced grand jury indictments of the conspirators (1920) • Babe Ruth loses his court battle over use of his name and image, and files suit against a movie producer for breach of contract (1920)

This presentation will explore the genesis of the intersection of the American “National Pastime” and the law prior to 1922, highlighting municipal ordinances, legislation, blue laws, contract disputes, club and league organization, labor-management disputes, intellectual property, criminal offenses, and game-fixing conspiracies. References Allegheny Base-Ball Club v. Bennett, 14 F.257 (C.C.W.D. Pa. 1882). Crane v. Kansas City Baseball & Exhibition, Co., 153 S.W. 1076 (Mo. Ct. App. 1913). Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922). Lucas, J.A. (1971). The Unholy Experiment – Professional Baseball’s Struggle Against Pennsylvania Sunday Blue Laws 1926-1934. Pennsylvania History: A Journal of Mid-Atlantic Studies,Vol. 38, No. 2, PP 163-175. Retrieved from https://www.jstor.org/stable/27771929?seq=1#metadata_info_tab_contents. Otsego Herald, number 1107 (1816, June 6). Retrieved from http://mlb.mlb.com/memorylab/chronology/index.jsp?sub_section=wny. Sherman Act of 1890, 15 U.S.C. § 1 (1890). Thorn, J. (2011, Aug. 3). The Pittsfield “Baseball” Bylaw of 1791: What It Means. Retrieved from https://ourgame.mlblogs.com/the-pittsfield-baseball-bylaw-of-1791-what-it-means-940a3ccf08db. Watson v. Avery, 65 Ky. 332 (1867).

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Out of Bounds: Examining the Legality and Consequences of the NCAA’s Basketball Agent Certiﬁcation Program

Abstract ID: 74

Prof. Alicia Jessop (Pepperdine University)

Following the FBI and Department of Justice’s investigation into corruption in NCAA Division I men’s basketball, the NCAA established the Commission on College Basketball (the “Commission”) “. . . to identify bold legislative, policy and structural modifications to improve the integrity of [its] processes and the well-being of student athletes” (NCAA, n.d.a). One of the first actions of the Commission, which is led by former Secretary of State Condoleezza Rice, was releasing a report highlighting strategies the NCAA could adopt to eliminate corruption from college basketball. These recommendations included allowing prospective and current NCAA men’s basketball players to engage with NCAA certified agents (Commission on College Basketball, 2018). In August 2019, the NCAA responded to the Commission’s agent recommendation by announcing the creation of an NCAA agent certification program (NCAA, 2019a). Agents in good standing with the NBPA who have been certified by the NBPA for at least three consecutive years, maintain professional liability insurance, submit an application and successfully complete an NCAA qualification examination may be certified by the NCAA. To apply for certification, agents pay a $250 application fee and submit to a background check. If they are certified, they pay a $1,250 annual certification fee and must reapply annually to be listed in the NCAA’s certified agent portal (NCAA, n.d.b.). NCAA certification is required for agents to recruit current or prospective NCAA men’s basketball players as clients or to assist them in securing a playing contract. NCAA men’s basketball players who engage with agents not certified by the NCAA risk the loss of their NCAA eligibility (NCAA, 2019b). Upon announcing the program, the NCAA faced immediate criticism. Concerns raised ranged from arguments that the NCAA is overstepping its economic control in requiring certification, to assertions that it is engaging in labor law violations and adopting a system precluding access to top NBPA agents by initially requiring agents to possess a bachelor’s degree for certification (Beard, 2019). The NBPA sent a letter to the NCAA informing it that its agents will not participate in the certification program as it stands over concern that the program is merely a method to obtain information on agents that the NCAA would not otherwise be able to obtain (Wojnarowski, 2019). Despite objections from the NBPA, the NCAA moved forward with its certification program, announcing that a list of registered agents will be released in December 2019 (NCAA, n.d.b). Along with stroking dissatisfaction amongst NBPA agents, the NCAA’s agent certification program raises a number of legal issues, which this presentation will examine. The purpose of this presentation is to address the legality of the NCAA’s agent certification program and to identify possible claims both agents and NCAA athletes can raise under it. First, the presentation will examine the authority the NCAA possesses to enforce a certification requirement. In terms of jurisdiction to enforce its rules, the NCAA can only sanction member institutions and NCAA athletes. Given this, should an NBPA agent not become certified with the NCAA, yet continue recruiting and representing NCAA athletes, the breadth of any penalty levied by the NCAA resulting from such actions would not be felt by the agent, but by the NCAA athlete and his member institution (NCAA, 2019b). Although the NCAA maintains the power to remove the agent from its list of certified agents, the impact to the agent of that action is dubious. Such is demonstrated by the NCAA’s 1984 attempt to certify sport agents, which was met by responses from agents that the “NCAA rules should be revamped to become more realistic and punish the people that do the harm” (Dunn, 1988). The presentation will next examine how labor law impacts the legality of the NCAA’s agent certification program.

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Section 9 (a) of the National Labor Relations Act makes “[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of employees in a unit. . . the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. . . (Representatives and elections, 2019).” Players associations have utilized this section of the National Labor Relations Act to collectively bargain their regulation of player agents (NBA-NBPA, 2017). Thus, the question that exists is how the NCAA’s agent certification program complies with federal law. Further, the labor law remedies that exist for the NBPA to oppose the NCAA’s agent certification program will be examined. Additionally, the presentation will review the possible antitrust scrutiny the NCAA may face in enforcing its agent certification program. NBPA agents could challenge the NCAA’s agent certification program by asserting that it is a restraint of trade. The agents could point to the fact that while players associations are the exclusive bargaining representatives for players, the right to negotiate player contracts has been delegated by players associations to sport agents. This delegation does not occur until an extensive certification process has been completed between the players association and sport agent. NBPA agents could argue that the NCAA’s agent certification program is a restraint on trade, because it prevents them from conducting business as they normally would (Trusts in restraint of trade illegal, 2019). Finally, the presentation will propose modifications the NCAA must adopt to the current structure of the program. These modifications are necessary to ensure fairness and efficacy in achieving the program’s stated objectives. In this regard, the presentation will scrutinize potential conflicts of interest that exist under the current program model and the necessity of adoption of a formal dispute resolution process (Karcher, 2007). References Beard, A. (2019, August 7). NCAA’s agent certification process draws concern, criticism. AP. Retrieved from https://www.apnews.com/5aa8a5f6cded43c3a8b3e559f2193f56 Commission on College Basketball (2018, April). Report and recommendations to address the issues facing collegiate basketball. NCAA. Retrieved from http://www.ncaa.org/sites/default/files/2018CCBReportFinal_web_20180501.pdf Dunn, D.L. (1988, July). Regulation of sports agents: Since at first it hasn’t succeeded, try federal legislation. Hastings Law Journal,39, 1031, 1043. Karcher, R.T. (2007, December). Fundamental fairness in union regulation of sports agents. Connecticut Law Review. 40, 355. NBA-NBPA (2017, January 19). Collective Bargaining Agreement. NBPA.Retrieved from https://nbpa.com/cba NCAA. (n.d.a). Commission on college basketball charter. NCAA. Retrieved from http://www.ncaa.org/governance/commission-college-basketball-charter NCAA. (n.d.b). Agent certification. NCAA. Retrieved from http://www.ncaa.org/enforcement/agents-and-amateurism/agent-certification NCAA (2019a, August 12). NCAA amends agent certification requirements. NCAA. Retrieved from http://www.ncaa.org/about/resources/media-center/news/ncaa-amends-agent-certification-requirements NCAA (2019b, August 1). 2019-20 NCAA Division I Manual. Retrieved from https://web3.ncaa.org/lsdbi/reports/getReport/90008 Representatives and elections. (2019). 29 U.S.C.S. § 159 (a). Trusts in restraint of trade illegal; penalty (2019). 15 U.S.C.S. § 1. Wojnarowski, A. (2019, September 14). NBA agents reject NCAA’s certification proposal.

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ESPN. Retrieved from https://www.espn.com/mens-college-basketball/story/_/id/27614802/nba-agents-reject-ncaa- certiﬁcation-proposal

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PARSONS XTREME GOLF, LLC. V. TAYLORMADE GOLF COMPANY, INC.: LITIGATION AND ANTITRUST IMPLICATIONS OF PATENT SETTLEMENT

Abstract ID: 22

Dr. Sungho Cho (Bowling Green State University), Mr. Peter Park (Sughrue Mion, PLLC), Dr. June Won (Stone Ridge G.C.)

Introduction The global sporting goods industry is a highly segmented market where one segment of sporting equipment has almost no common utility value for another (Cho & Kim, 2018). For instance, a set of golf clubs might not have any cross-sectional utility value to a recreational golfer living in Michigan when the person enjoys skiing and snow- boarding. Sporting goods can be divided into two distinctive categories based on the degree of specialization and technology associated with the product attributes, i.e., “equipment-intensive goods” and “trite goods” (Andreff, 2006a, p. 62). The equipment-intensive goods are those ones with highly specialized unit values that usually require advanced research and development (“R&D”) foundations and sophisticated manufacturing processes, e.g., high-end golf clubs. The trite goods category comprises of the goods with relatively low unit values, which could be used for a wider range of sport and recreational activities, e.g., athletic footwear, sports apparel, etc. (Andreff, 2006a). The size and growth of each sporting goods segment is likely determined by a function of various socioeconomic dynamics such as “fashion, the use value of sport good, its market price, households’ professions and revenues, the population’s use of equipment (equipment rate), and the sports goods’ life cycle” (Andreff, 2006b, p. 27). Sellers of sporting goods need to adjust such highly segmented market demands that may grow at remarkably different paces. As a result, the demand of sporting goods is generally volatile in a long run (Andreff, 2006b). On the other hand, the supply side of the industry is “fringed global oligopoly” (Andreff, 2006b, p. 31), which is dominated by a small number of multinational firms competing at the international level. Such multinational brands would occa- sionally compete with a fringe of small local companies in domestic markets. Because a price war would not likely be prevalent in such an oligopolistic market, the typical business strategy of sport merchandising conglomerates primarily hinges on building a variety of entry barriers including aggressive enforcement of intellectual property rights (Cho, 2015; Cho & Kim, 2018; see Already v. Nike, 2013). Given the unique product attributes and market structure, a patent infringement lawsuit is one of the most crucial tactics pursued by golf equipment brands. This project examines a dispute between two golf equipment companies over a set of club-design technologies where the parties had aggressively litigated before they reached a cross- licensing settlement (Stachura, Feb. 1, 2019), i.e., Parsons Xtreme Golf, LLC. v. Taylor Made Golf Company, Inc. (D. Ariz., filed on Sept. 12, 2017; settled on Feb. 1, 2019). The presentation explores a notable crossroad between the patent and federal antitrust law in terms of the anticompetitive effects of patent settlements. Parties and Technologies at Issue In 2014, the founder of GoDaddy.com, Bob Parsons, established his own global golf equipment company, Parsons Xtreme Golf, LLC., (“PXG” hereafter). After recruiting former senior product designer and director of engineering of PING, Parson and his R&D team invented and introduced the allegedly best-performing and most expensive luxury golf clubs, i.e., the PXG 0311 forged iron set. (Burke, 2017, October 18; Gray, 2016, March 20). The PXG 0311 had a hollow iron head with a cavity in the middle, rather than the more standard cavity at the back of the club head. The inside of the cavity was filled with a new material, thermoplastic elastomer (“TPE”). Since the TPE supported

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the steel of the face, the iron could have two arguably innovative features: (1) radically thinner clubface (58/1000 of an inch) compared to standard iron sets; and (2) adding a cushion under the club face. The thinner face allowed engineers to put additional mass around the perimeter of the club head that would make the club more forgiving. By moving the center of gravity to the backside on the club head, the club improved the launch angles of the ball flight. Additionally, the cushion generated a trampoline effect that allegedly causes a faster ball speed at the impact. PXG asserts that the technologies altogether warrant better performance and feel (Parsons Xtreme Golf, LLC., n.d.). In 1979, a golf equipment salesman, Gary Adams, incorporated Taylor Made Golf Company, Inc. At the outset, the company introduced probably one of the most innovative products in the history of sporting goods industry, i.e., a 12-degree driver cast of stainless steel which performed better than the traditional persimmon wooden woods. (Taylormadegolf, n.d.). Later, Salomon S.A., a French sports equipment manufacturing company, acquired the company, and Taylor Made was significantly benefited from the worldwide resources of Salomon. After Adidas bought Salomon in 1984, Taylor Made has focused on the driver market and been the top seller in the category since 2005. In 2017, KPS Capital Partners acquired the company for $425 million (Kelley, 2019, February 21). By 2018, Taylor Made has become the worldwide market leader in both driver and iron categories according to a survey conducted by Swing by Swing (Nackel, 2018, February 8). In 2017, Taylor Made launched P790 iron in the market. Like PXG’s GEN irons, the new iron had a forged hollow body construction filled with so-called SPEEDFOAM inside the cavity. PXG alleged that Taylor Made infringed upon multiple patents related to the PXG’s “revolutionary iron,” which purportedly contains “an expanded sweet spot, having an ultra-thin club face, and an elastic polymer material injected in the hollow bodied club head.” (McCann, 2017, September 13; Stachura, 2017, September 28). Complaint and Answer/Counterclaim On September 12, 2017, PXG filed a complaint against Taylor Made with the District Court of Arizona by claiming that Taylor Made P790 series infringed PXG’s 11 patents relating to golf club designs and methods of manufacturing. Throughout the complaint, the plaintiff’s alleged that manufacturing, sales, and distribution of Taylor Made P790 clubs were in violation of the patents at issue under 35 U.S.C. § 271(a)-(c) (Nexis Uni, 2019). The remedy sought by the lawsuit included a declaratory judgement against Taylor Made for the infringement, damages incurred by the infringement, injunctive relief, and reasonable attorney fees as an exceptional case under 35 U.S.C. § 285 (Nexis Uni, 2019). In the answer, Taylor Made primarily argued three affirmative defenses, i.e., non-infringement, invalidity of PXG’s patent, and prosecutorial estoppel (Festo v. Shoketsu, 2002). The answer states: “Taylor Made has not infringed, directly or indirectly, any claim of any of the patents in-suit … Each of the patents-in-suit is invalid for failure to satisfy the conditions of patentability under the Patent Laws of the United States, including, without limitation, one or more of 35 U.S.C. §§ 101, 102, 103, and 112 … Plaintiff is estopped from construing or interpreting the claims of the patents-in-suit to cover any acts of Taylor Made by reason of proceedings in the U.S. Patent and Trademark Office (“PTO”) during prosecution and/or review of the applications upon which the patents issued, and the admissions and representations made therein to the PTO on behalf of the applicants.” Answer at 17-18, Parsons Xtreme Golf, LLC. v. Taylor Made Golf Company, Inc. (D. Ariz. Dec. 18, 2017). In addition, the defendant brought a counterclaim to seek declaratory judgment of non-infringement, invalidation of PXG’s patents, and infringement of preexisting Taylor Made’s patents under the doctrine of equivalents. The U.S. patent law circumscribes the patentability of “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement” (35 U.S.C. § 101, Lexis Uni, 2019). First, an invention must satisfy the novelty requirement under §102. Thus, a patent must be denied if “the invention was known or used by others in this country, or patented or described … in this or a foreign country.” (35 U.S.C. § 102(a), Lexis Uni, 2019). Secondly, the subject matter should not be obvious. Thus, a patent will be rejected “if the differences between the

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subject matter sought to be patented and the prior art are such that subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” (35 U.S.C. § 103, Lexis Uni, 2019). Lastly, the law requires a patentee to fully disclose the technology to the public (35 U.S.C. § 112, Lexis Uni, 2019). On the other hand, 35 U.S.C. § 271(a)-(c) allows patent owners a cause of action in case of infringement: “[e]xcept as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent; (b) [w]hoever actively induces infringement of a patent shall be liable as an infringer; (c) [w]hoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practic- ing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.” (Lexis Uni, 2019). In case of patent litigation, the doctrine of equivalents and prosecutorial estoppel frequently become dispositive issues. Festo v. Shoketsu(2002). Settlement and Antitrust Implications The parties reached a settlement on Feb. 1, 2019. While the details of the settlement were not disclosed to the public for confidentiality provisions, the crux of the settlement was known to be a cross-licensing deal (Stachura, Feb. 1, 2019). The presentation materials will further discuss anticompetitive effects of patent settlements in light of FTC v. Actavis (2013). References Already, LLC. v. Nike, Inc., 133 S.Ct. 721 (2013). Andreff, W. 2006a. International trade in sports goods. In: W. Andreff & S. Szymanski, eds. Handbook on the economics of sport. Northampton, MA: Edward Elgar Publishing, Inc. pp. 59-67. Andreff, W. 2006b. The sports goods industry. In: W. Andreff & S. Szymanski, eds. Handbook on the economics of sport. Northampton, MA: Edward Elgar Publishing, Inc. pp. 27-39. Answer, Parsons Xtreme Golf, LLC. v. Taylor Made Golf Company, Inc., No. 2:17-cv-03125-JJT (D. Ariz., Dec. 18, 2017). Burke, M. (2017, October 18). GoDaddy Billionaire Founder Bob Parsons On His Passion For Golf And Motor- cycles. Forbes. Retrieved from https://www.forbes.com/sites/monteburke/2017/10/18/godaddy-billionaire-founder- bob-parsons-on-his-passion-for-golf-and-motorcycles/#5d22dedd19be Cho, S. (2015). Empirical substantiation of sport trademark dilution: Quasi-experimental examination of dilutive effects. Journal of Legal Aspects of Sport, 25(1), 27-55. Cho, S., & Kim, K. (2018). International trade in sport products: Free trade agreements, sporting goods and playing talent. In M. Dodds, K. Heisey, & A. Ahonen (Eds.), Routledge Handbook of International Sport Business(pp. 184-198). New York, NY: Routledge. Complaint, Parsons Xtreme Golf, LLC. v. Taylor Made Golf Company, Inc., No. CV-17-03125-PHX-JJT (D. Ariz., Sept. 12, 2017). Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002). Federal Trade Commission v. Actavis, Inc., 570 U.S. (2013). Gray, R. (2016, March 20). GoDaddy’s founder has a booming luxury golf club business. Fortune. https://fortune.com/2016/03/20/godaddy-founder-golf-clubs/ Kelley, B. (2019, February 21). Taylormade golf: A company profile. Liveaboutdotcom. Retrieved from https://www.liveabout.com/taylormade-golf-profile-1563956 McCann, M. (2017, September 13). Inside PXG’s patent suit against TaylorMade: What PXG must prove to

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win its case. Golf.Retrieved from https://www.golf.com/tour-news/2017/09/13/inside-pxg-patent-suit-taylormade- equipment-company-prove-to-win Nackel, T. (2018, February 8). The Golf Wire. Retrieved from https://thegolfwire.com/330071-2/ Parsons Extreme Golf, LLC. (n.d.). Retrieved from https://www.pxg.com/en-us Stachura, M. (2017, September 28). TaylorMade fires back hard (and humorously) against PXG in legal filings over iron patents. GolfDigest. Retrieved from https://www.golfdigest.com/story/taylormade-fires-back-hard-and- humorously-against-pxg-in-legal-filings-over-iron-patents Stachura, M. (Feb 1, 2019). PXG, TaylorMade settle patent-infringement suits with cross-licensing agreement. GolfDi- gest.com. Retrieved from: https://www.golfdigest.com/story/pxg-taylormade-settle-patent-infringement-suits-with- cross-licensing-agreement Taylormadegolf. (n.d.). Retrieved from https://www.taylormadegolf.com/about-us.html?lang=default U.S. Patent Act, 35 U.S.C. §§ 1 et seq. (Nexis Uni, 2019).

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Personal Data, GeoFraming and the Privacy Rights of Sport Consumers

Abstract ID: 62

Mrs. Regina Presley (University of Louisville), Prof. Anita Moorman (University of Louisville), Mr. Keegan Arnold (University of Louisville)

The rapid growth of internet enabled applications and the accelerating demand for access to data has drastically increased the amount of personal information that is being collected, stored and sold by marketing firms working in the digital space. Over the past several years there has also been a growing demand for big data in sport organizations, with all of the major professional sport franchises putting analytics to use (ESPN, 2019). Large and small data technology firms are using Internet Protocol (IP) addresses and geographic location-based targeting to increase the marketing efforts for sport organizations seeking to attract larger populations of individuals and consumers. This type of location-based targeting or marketing is the use of a consumer’s geographic location to plan and execute relevant marketing campaigns (Miller, 2019). Location data is “anonymous, user-level data collected from a mobile device that provides anonymous information about the devices current position in space” (Interactive Advertising Bureau, para. 2, 2019). One example of a common location-based marketing strategy is an IP targeting method called geofencing. Geofenc- ing is a method of gathering the location of a mobile device and associating it with a specific place or within a specific boundary (IAB, 2019). A geofence is a virtual border around a physical location that can detect personal devices using wifi, cellular and Bluetooth data in the area to then send specific marketing actions to the device. As geofencing is a growing IP targeting trend, the term “geoframing” has recently been used claiming to offer 100% cookie-free IP targeting strategies to advertisers. Geoframing, a type of geofencing, is similar as it offers the ability to influence large numbers of prospects and serve ads to people who have been tracked to a specific location (El Toro, 2019). The difference is the geoframing process, which collects mobile IDs, and will then map individuals back to their home IP addresses and proceed to sell all identifying personal data collected from that home or any device at that location. Currently, geofencing and geoframing is being used in the sport industry to help sport organizations with declining game attendance as well as to attract season ticket holders. Although the consumer has the choice about attending an event or sporting activity, the consumer does not have knowledge of IP device capture or awareness of the potential personal data being traced back to a home IP address. In addition, the consumer does not have the ability to decide how the data is then used or to whom it is sold. Most frequently, the personal device IDs and geographic location- based targeting are used to expand marketing efforts of sport organizations seeking to attract larger populations. The most concerning aspect of this process is the ability for technology companies to use past locations to inform future campaigns and to target high value prospects in the home and on the home network’s associated devices. From a marketing perspective, the benefits of geoframing to draw and/or retain season ticket holders, streamline stadium or arena attendance, or to recruit possible prospects could be viewed as beneficial. Yet, the ability for technology firms to catalogue a personal device’s ID, store the data and then sell the personal home information to target consumers with banner and video advertisements generates explicit digital privacy rights concerns. For example, in September 2019 to confront students leaving football games before the game ended, the University of Alabama athletics department encouraged students to download a new app to track their location during football games. If the students stay in the stands at a home game at Bryant-Denny Stadium through the fourth quarter as verified through geofencing using the app, the students would be rewarded with highly coveted post-season tickets

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to the SEC Championship Game or a College Football Playoff game (Criss, 2019). However, this increasing desire for data coupled with a marketing strategy that uses latitude and longitude data to target consumers down to the square meter raises critical questions concerning data privacy (El Toro, 2019). Does big data, machine learning, and the use of algorithms to craft targeted consumer profiles reduce the personal data privacy of sport consumers? As the demand for data grows in the United States (US), the acknowledgment of limited personal information protections has become more apparent. There is no single data protection law in the United States, but several laws at the Federal and State level designed to protect US residents and their data (Chabinsky & Pittman, 2019). There are US privacy laws which prohibit companies from matching IP addresses to a user’s Personal Identifiable Information (PII), but the PII data protection only protects information about an individual that is maintained by specific agencies such as motor vehicle records, addresses and collection of personal medical information (Chabinsky & Pittman, 2019; McCallister, 2010). The Federal Trade Commission (FTC) offers broad federal data protection legislation with the Federal Trade Commission Act over unfair and deceptive practices, but the FTC identifies that mobile devices do have the ability to reveal a user’s location and “build detailed profiles of consumers movements over time in ways that may not be anticipated by consumers” (Dreifach, 2015, para. 12; Federal Trade Commission, 2018). Additionally, many states in the US offer more significant privacy protections related to use, disclosure, data collection, personal records and others. A variety of these states offer strong privacy protection on personal data related to a company’s ability to use the data collected. California is currently a leader in personal data privacy protection laws with the passage of the California Consumer Privacy Act (CCPA). This law, which takes effect in January 2020, requires companies to disclose what personal data is collected on consumers, the purpose for collecting the data, and with whom the data will be shared (Chabinsky & Pittman, 2019; Davies, 2019). The CCPA is closely modeled after the data privacy legislation enacted in the European Union in 2018. This law, regulation (EU) 2016/679 of the European Parliament and Council, often referred to as the General Data Protection Regulation (GDPR), offers the EU clear and transparent privacy policies and requires compliance by organizations and companies. The GDPR aims to ensure protection and privacy for all individuals within the EU by imposing rules on controlling and processing Personally Identifiable Information (PII). One of its more notable features is the requirement for individuals to specifically and knowingly ‘opt-in’ to any data collection and tracking initiative of personal information (IAB, 2019). Within the regulation, it is explicitly stated that “the protection of natural persons in relation to the processing of personal data is a fundamental right” and that “everyone has the right to the protection of personal data concerning him or her” (Regulation EU, 2016, Article 4). The GDPR offers significantly more powerful legislation than the EU’s Data Protection Directive from 1995. The GDPR applies to organizations both inside and outside the EU that process, store, or monitor residents’ personal data or behavior as well as firms and organizations outside the EU that provide goods and services to EU residents (Regulation EU, 2016). The GDPR also makes an important distinction between data controllers and data processors. A data controller is any person, agency, or authority that determines the reasons for and methods with which data is processed. A data processor manages this personal data based on the commands of the data controller. One of the main functions of the GDPR is to protect the privacy rights of individuals (data subjects). Under the GDPR, data subjects have the right to be informed, the right of access, the right to rectification, the right to erasure, the right to data portability, the right to object and the rights related to automated decisions (European Commission, 2019). The GDPR took effect in 2018 and now each member state of the EU is responsible for passing their own data privacy laws to incorporate the protections provided in the GDPR (Swinhoe, 2019). For example, the UK recently passed its Data Protection Act of 2018 to parallel the GDPR. Despite these efforts throughout Europe to address growing concerns about data privacy, the United States does not have any uniform federal policy or protections in place. Thus, many states’ attorneys general are leading efforts to identify legal boundaries for data privacy. In 2018, the state attorneys general sued the social media company, Facebook, alleging that they improperly allowed a third

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party to gain access to D.C. residents’ personal data for targeted political adverting campaigns. In 2019, the FTC has turned their attention to the privacy practices of broadband providers “seeking knowledge about the information that data companies collect about consumers and their devices and what processes and techniques these companies are using to aggregate, anonymize or de-identify consumer data” (Chabinsky & Pittman, 2019, section 18.2). Thus, there is an increased need to deﬁne the territorial scope of personal data protection in the United States. The purpose of this presentation is to (1) explore the best practices in personal data protection and personal privacy policies to inform sport organizations of the changing IP targeting, geofencing and data collection landscape; and (2) to compare the expanded protections provided in the GDPR for the EU to the patchwork of protections available in the United States to identify the most promising elements for developing consistent protections in the U.S.

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Playing space invasions: Exploring the college sport industry’s current policy approach

Abstract ID: 19

Dr. Brian Menaker (Texas A&M University - Kingsville), Dr. Jeffrey Levine (Drexel University), Dr. Dale Sheptak (Baldwin Wallace University)

The sports industry continues to expand at a rapid pace, with revenues set to eclipse over $76 billion by 2020 in North America alone (Gough, 2019). In an effort to continue generating revenue, as well as to fight for customers’ attention in an increasingly cluttered marketplace, sport managers are often tasked with finding new and innovative methods to better connect with consumers. Some of these efforts are intended to develop an individual’s connection to the team or organization, thereby becoming a more loyal consumer. Linking that person’s self-concept to the organization would then increase the likelihood of buying behavior, thus increasing team revenue (Funk & James, 2001). However, sometimes the behavior of a fan may cross the line (Novelo, 2011). One behavior that sport managers across the world have become accustomed to is playing space invasions, defined as an unauthorized individual entering a playing surface. For instance, in college football, it is common for playing space invasions to occur toward the end of a college football and basketball game once an upset occurs (Winneker & Ehrlich, 2017). This phenomenon is called “rushing the field.” This type of activity occurs in various forms and is known by different colloquial names. Although this occurrence is usually celebratory, other playing space invasions can turn violent. However, it is unclear whether the college sport industry has developed policies that account for the threat that playing space invasions embody, as a whole. Dysfunctional fandom may be another factor that contributes to in-field invasion activity. One motivation for field invasions may derive from team or fan identification. Wann, Melnick, Russell, and Pease (2001) have defined team identification as the extent to which a fan feels a psychological connection with a sports team. Wann and Branscombe (1990) suggested that highly identified fans show more aggressive behavior than low identified fans when threatened by a loss. Sport team identification has been observed as a predictor of the appropriateness of physical and verbal aggression by fans (Donahue & Wann, 2009; Dimmock & Grove, 2005). The scarce research related to fan invasions of playing spaces is split between risk management and liability-focused research and the sociology of crowd behavior. From a risk management and liability point of view, Miller (2014) considered venue manager readiness in crowds rushing college basketball courts; he found (1) the majority of venues had plans in place for those incidents, and (2) concluded that venues should provide a reasonably safe premises for their patrons. In another study focusing on basketball court storming, Winnecker & Ehrlich (2017) noted that the SEC and PAC-12 possess maximum fines of $250,000 and $100,000 for court storming while the Big Ten, Big 12, and Atlantic Coast Conference do not have specific policies and punishments for such crowd behavior. Misinec (2005) highlighted the university liability that existed due to field-rushing injuries occurring in their football stadiums. Renfrow, Wissick, and Guard (2016) suggest that students who rush the field are choosing between defining it as a harmless celebration versus a dangerous situation. Furthermore, police and security response is focused on pri- oritizing property protection instead of public safety. Law enforcement and security may not serve as an effective deterrent to prevent these issues, especially when tradition legitimizes the behavior of field storming (LaVetter & Choi, 2010). [DS1] Since little research has focused on the content of policies intended to curb behavior leading to field invasions at college athletic facilities, the present study considers the policies in place for all playing space invasion for major college athletic programs whether it is a mass invasion, or one individual entering unlawfully. This study examines

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the policies concerning playing space invasions for 20 of the largest revenue generating universities according to the most recently published records collected by USA Today. The following research questions guide our inquiry into our overarching question of whether college athletic programs possess field invasion policies: How many participants responded to Freedom of Information Act (FOIA) requests? How many are willing to share their policies? Are there policies with repercussions for storming the field? What legal repercussions exist for those who violate policies, if any? Public universities with athletic programs in the top 20 for revenue production were sent FOIA requests regarding current policies in force by athletic departments intended to prevent and/or respond to playing space trespassing or invasions at athletic department facilities. Responses were received from 17 of those programs (response rate = 80%) representing four of the conferences in the NCAA’s Big Five. A content analysis of the furnished records by respondent universities was conducted. Policies were analyzed and yielded the following information from the respondents: FOIA standing [L2] [DS3], field access policy, conference rules for field invasions, and rushing the field policies. The frequency of universities who furnished records was 13 (76.5%) out of the 17 respondent programs. Respon- dents who determined there was no standing for a FOIA request due to the requestor’s status as a non-resident of respondent’s status as exempt was 14 (82.3%). Of the four universities claiming FOIA exemption, two had responsive documents which had field invasion policies. Two institutions did not have responsive documents relevant to the request. Thus, six [L4] (46.2%) of the 13 respondents with policies responded that conference rules established procedures for field invasions. This was due to one of the conferences levying institutional fines for mass storming of the field amounts. There were 11 (84.6%) universities with policies for rushing the field and 12 (92.3%) with specific authorized field access policies. In addition, one program included its strategy for quelling mass storming of the field. Findings suggest that the majority of the programs sampled have policies in place for field invasions. Repercussions included arrests and university sanctions for students, while institutional penalties were also part of the policies for members of one major conference. [5] [L6] This study concludes that a majority of the college athletic programs possess field invasion policies. It also provided data on current athletic department policies for preventing and responding to playing space invasions. However, further research is necessary to conclude the frequency of field invasion policies at college athletic departments and other professional venues, as well as to understand policies being implemented by college athletic departments. Limitations include the possibility that the universities who declined FOIA requests have field invasion policies but do not deem that information as subject to FOIA. The sample size of this study may also be another limitation. References Dimmock, J. A., & Grove, J. R. (2005). Relationship of fan identification to determinants of aggression. Journal of Applied Sport Psychology, 17(1), 37-47. Donahue, T., & Wann, D. L. (2009). Perceptions of the Appropriateness of Sport Fan Physical and Verbal Aggression: Potential Influences of Team Identification and Fan Dysfunction. North American Journal of Psychology, 11(3). Funk, D. C., & James, J. (2001). The psychological continuum model: A conceptual framework for understanding an individual’s psychological connection to sport. Sport management review, 4(2), 119-150. Gough, C. (2019, January 3). North America sports market size from 2009 to 2022 (in billion U.S. dollars). Statista. Retrieved from https://www.statista.com/statistics/214960/revenue-of-the-north-american-sports-market/ LaVetter, D., & Choi, Y. S. (2010). Implications of toppling goal posts in college football: Managing institutional risk. Journal of Applied Sport Management, 2(1). Miller, J. J. (2014). When Fans Rush the Court: Safety Perceptions of Intercollegiate Basketball Venue Managers. Journal of Facility Planning, Design, and Management, 2(1).

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Misinec, M. (2005). When the Game Ends, the Pandemonium Begins: University Liability for Field-Rushing Injuries. Sports Law. J., 12, 181. Novelo, E. (2011, August 24).The 30 absolute worst fans in sports history. Bleacher Report. Retreived from https://bleacherreport.com/articles/816529-ranking-the-30-absolute-worst-fans-in-sports-history Renfrow, D. G., Wissick, T. L., & Guard, C. M. (2016). (Re) Deﬁning the situation when football fans rush the ﬁeld. Sociology of Sport Journal, 33(3), 250-261. Wann, D. L., & Branscombe, N. R. (1990). Person perception when aggressive or nonaggressive sports are primed. Aggressive Behavior, 16(1), 27-32. Wann, D. L., Melnick, M. J., Russell, G. W., & Pease, D. G. (2001). Sport fans: The psychology and social impact of spectators. Routledge. Winneker, J. D., & Ehrlich, S. C. (2016). The Calm Before the (Court) Storm: Potential Fan Liability and the NCAA’s Necessary Response. Marq. Sports L. Rev., 27, 425.

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Presentation Title: California’s Fair Pay to Play Act – the NCAA’s Likely Constitutional Challenge, the possibility of Legal Victory and the Future of Athletic Compensation

Abstract ID: 16

Prof. Mark Conrad (Fordham University, Gabelli School of Business)

Abstract Summary: This presentation focuses on the much-discussed California law that permits college athletes to be compensated for the use of the names, images and likenesses while remaining eligible to engage in collegiate sports. The legislation, a direct challenge to the NCAA’s “amateurism” model, is the latest chapter in the growing movement to liberalize (or, some would say, professionalize) the rules of compensation for college athletes. It is likely that the NCAA will challenge this law and this presentation will discuss the likely arguments the organization will utilize. It discussion will center on the validity of the NCAA’s likely principal argument – that the law violates the dormant commerce clause of the U.S. Constitution. The paper will analyze the basis for the NCAA’s claims, discuss key constitutional precedent and predict the chances for victory for the NCAA. It will also discuss a contract clause challenge and some other potential problems with the law. Abstract: On September 30, 2019, California Gov. Gavin Newsom signed the “Fair Pay to Play Act”[1] into law. The new Cal- ifornia statute allows students attending four-year colleges and universities in the state to enter into endorsement agreements to license their names, images and likeness (NIL) unless that agreement is in conflict with a provision of the athlete’s team contract.[2] The law effectively negates the NCAA’s prohibitions on such conduct and marks the first successful legislative attempt to break the NCAA’s stranglehold on the rights of collegiate athletes. In effect, the new law permits student-athletes in California colleges and universities to monetize their names images and likenesses and still eligible to engage in college sports. The NCAA’s reaction has been anything but accepting. It has sharply criticized the law, calling it an “existential threat” to the longstanding model for collegiate athletics.[3] It has stated that a lawsuit challenging the new law is likely in the near future (possibly filed by the time this presentation would take place). There has been much ink written about this law, but little about the merits of the NCAA’s arguments to invalidate it. Although at the time of this submission, there has not been any lawsuit filed, it is almost assured that the NCAA and the Pac-12 Conference will challenge the law in court. The heart of the challenge will likely focus on the allegedly adverse effect on interstate commerce in violation of Art. I, sec. 8. It may also state a cause of action under the Constitution’s rarely invoked “contract clause” stated in Art. I, sec. 10 of the Constitution. The commerce clause challenge involves an important issue of whether the Fair Pay for Play Act infringes on interstate commerce, and if so, how extensive is the negative effect. It will outline the standards for determining a violation of the so-called “dormant” commerce clause, and after a short history of key cases, it will then address the question of whether California’s law so adversely affects the collegiate sports landscape that it interferes with the free flow of commerce. The NCAA and the Pac-12 will likely argue that the California law would attract more talented athletes to California schools, thereby skewing the competitive balance among schools in the conference and schools nationwide. Not surprisingly, past Supreme Court cases concluded that the NCAA is engaged in interstate commerce,[4] but it has not ruled on the question of state laws that may restrict NCAA rules. However, the U.S. Court of Appeals for the Ninth Circuit provides the clearest precedent for a commerce clause challenge to a state law that may stymie the NCAA’s rules. In 1993, that court, in NCAA v. Miller,[5] invalidated a Nevada state statute that bears similarities to the

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California law. It mandated that the Association apply procedural due process protections during any enforcement proceedings in which sanctions may be imposed against a Nevada institution, employee, student-athlete, or booster is accused of a rules infraction.[6] In a ruling that would be cited approvingly by the NCAA, the panel concluded that the Nevada law violated the commerce clause as it would apply “extraterritorial reach” by controlling commerce beyond its borders.[7] Given that California is in the 9th Circuit, Miller is controlling authority. But the question is whether the Cali- fornia law interferes with commerce in the same manner. The presentation will analyze whether the ruling in Miller should apply to a situation that deregulates a restrictive policy and therefore gives athletes the right to contract, which may be different than Nevada’s imposition of mandated due process due process rights for enforcement proceedings? Are these goals of the Fair Pay for Play Act suﬃciently distinguishable to produce a differing ruling? In addition, the NCAA may claim that the law violates the Constitution’s “contract clause” because the State of Cal- ifornia allegedly impairs the obligations of private contracts (in this case, the agreements student-athletes sign). It will note the rational basis standard found in Energy Reserves Group v. Kansas Power & Light[8] and whether the Fair Pay to Play Act substantially impairs existing contracts and the state’s policy reasons for this change. The presentation will quickly discuss some other potential problems with the new statute. For example, it does not impose any penalties for violations. By the time of this presentation, other states may enact the exact same or generally similar laws. If that is the case, the presentation will address how the laws of several states could bolster or weaken the NCAA’s argument. Footnotes [1] See Cal. SB 206. (An act to add Section 67456 to the state Education Code), signed into law on Sept. 30, 2019) [2] Id., at sec. 2. [3] See Dennis Dodd, NCAA prez calls name, image and likeness rights an ‘existential threat’ to college sports, CBSSports.com, Sept. 25, 2019, https://www.cbssports.com/college-football/news/ncaa-prez-calls-name-image-and- likeness-rights-an-existential-threat-to-college-sports/ [4] See NCAA v. Board of Regents of Oklahoma, 468 U.S. 85 (1984). [5] 10 F.3d 633 (9th Cir. 1993) [6] See [Nevada statute] [7] 10. F3d 633, 638 [8] 459 U.S. 400 (1983).

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Protecting Student-Athlete Free Speech Rights in Athletics Department Social Media Policies

Abstract ID: 57

Ms. Ashley Kavanagh (University of North Carolina at Chapel Hill)

Social media has become integrated into the lives of most students on college campuses, but coaches and athletic administration have taken a special interest in the profiles of their student-athletes. The rise of social media has posed many marketing and branding opportunities for universities, specifically within their athletic departments, but also regulatory challenges. Universities are struggling to draw a line between keeping a careful eye on their student-athletes and hindering the liberties guaranteed to them in the Constitution. The First Amendment states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (U.S. Const. Amend. 1). For student-athletes, their self-expression through social media may be restricted because of their membership on a team. While athletic departments can provide justifications to their social media regulations, at what point do university precautions breach the First Amendment rights of student-athletes? Through an analytical examination of case law, university athletic department policies, and NCAA enforcement materials, this research will provide some clarity to the blurred line that both administrators and student-athletes are currently walking. This legal question requires exploration into applications of the First Amendment in public school systems from kindergarten through the university level, and then takes it one step further by focusing on student-athletes at the collegiate level. Four Supreme Court cases have established a legal framework on how to handle freedom of speech cases within the education system but none provides a university standard. A footnote in one of the prominent cases explicitly states, “We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level” (Hazelwood Sch. Dist. v. Kuhlmeier, 1988, p. 273-274, n. 7). The court system has failed to make clear if university students have the same rights as other adults, or if the university setting diminishes them to the same rights held by high school students. The prevalence of social media has introduced a new element into the freedom of speech framework, the idea of “on-campus” versus “off-campus.” In B.L v. Mahanoy Area Sch. District(2019), a disgruntled cheerleader posted Snapchats with negative viewpoints about the school’s cheer program. These were posted outside of the school, on the weekend, and the student was not in cheer uniform. Word about the post made it back to the cheerleading coaches who removed her from the team. When the plaintiff brought it to court, she was granted summary judgment. The court found that her “off-campus” speech could not result in a school punishment without infringing on her First Amendment rights. The issue this poses from a collegiate athletics standpoint is that the majority of a student-athlete’s waking time is spent “on-campus.” University athletic departments are justifying their regulation of student-athlete social media for three main reasons: student-athletes are supposed to serve as role models while reflecting the university brand, athletic participation is a privilege, and the university has an obligation to monitor social media to detect potential NCAA rules violations. As stated in the NC State University Student-Athlete handbook, “As representatives of the university, student-athletes are held to a higher standard and are role models. Playing and competing for NC State is a privilege, not a right. In this context, each student-athlete has the responsibility to portray him or herself, the team, and NC State in a positive manner at all times” (North Carolina State University, 2019, p. 76). If student-athletes do not adhere to this, they no longer have a place on the team. While this may seem unfair, “by choosing to go out for

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the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally” (Vernonia School District 47J v. Acton, 1995). Even though they are being held to a higher standard than non-athlete students based on their representation of the university, does their voluntary participation in collegiate athletics outweigh the rights they are guaranteed in the Constitution? This poster presentation will examine case law to provide the legal history of First Amendment rights in the education system and discuss the challenges of applying it on a university level. The legal framework will then be applied speciﬁcally to college athletes relative to university and/or athletics department social media policies. Fi- nally, suggestions are made for athletics departments to craft social media policies that achieve their objectives while providing student-athletes with the ability to express themselves on social media. Resources B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429 (USDC Mid. Dist. Penn., March 21, 2019, Filed). Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). North Carolina State University. (2019). North Carolina State University Student-Athlete Handbook. Raleigh, NC: Author. U.S. Constitution, Amendment 1. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).

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Recreation Case Law

Abstract ID: 76

Mr. Jim Moss (Recreation Law)

This presentation will look at case law in the commercial recreation field. The review will look at the case law from the defenses used in recreation litigation and the activities that promoted the litigation. I have collected over 2500 recreation lawsuits that have been divided into groups for reference and analysis. Since the first outdoor recreation lawsuit in 1951, Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786 (1951) through today there have been more than 5000 different lawsuits that made it to the appellate level in state courts or the district court level in the federal court system. Three different defenses are used:

• Assumption of the Risk • Release • Statutory Protections

Assumption of the risk was the first defense that disappeared in the 80’s and 90’s when assumption of the risk was merged with contributory negligence. However, since Knight v. Jewett,3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969 it has made a resurgence as a complete bar to litigation. Twenty-Five states have adopted the reasoning in Knight v. Jewitt, id. and now state that for recreation and sporting activity’s assumption of the risk is a complete bar to a lawsuit. Releases have been used as a defense starting in the 70’s and growing in popularity as a defense in the 90’s. Several states still bar the use of a release, one, Montana just added a statute, untested that now allows a release to be used by recreation providers. Several states that have in the past allowed the use of a release to have either made the requirements for release law to be tougher or banned them altogether. In forty or more states, a release is the best and most comprehensive defense to litigation a recreation provider can use. In many situations, insurance companies make the use of a release a pre-requisite to coverage. Meaning if you cannot provide a release to the insurance company signed by a claimant when a claim is made, you have no defense to the claim. This creates a nightmare for outfitters and guides when state law, state licensing regulations or the activity does not allow the use of a release. The final defenses are statutes enacted by a state legislature to provide a defense to a recreation industry in their respective states. These statutes are usually written to provide some defenses to recreation providers as well as requirements to promote the activity within the state. None of the enacted statutes are comprehensive and provide any real protection to the providers. Consequently, they must rely on a release or assumption of the risk to provide a broader defense to a claim. In some cases, the enactment of the statutes has increased litigation. Equine liability act case law and litigation took off after enactment of the Equine Liability Acts. The acts provide protection for the actions of the horse. However, none of the acts provide protection and several increase the ease or suit or penalties for the actions of the horse owner. The case review is also divided into the activities giving rise to the litigation. Skiing, Whitewater Rafting, Chal- lenge Courses, Caving, Climbing Walls, Mountaineering, Races, Obstacle Courses and dozens of other commercial activities.

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Attendees will receive this case law divided and sorted both by the activity, and the defense used. They will be able to refer to the information both as a reference but also how the activity or the law surrounding the defense or the activity has changed over the years. Participants will have the best-case law for the various defenses to recreation litigation as well as case law from all types of commercial recreation activities. Citations and References Knight v. Jewett,3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969 Wright v. Mt. Mansﬁeld Lift, Inc., 96 F.Supp. 786 (1951) Assumption of the Risk, http://rec-law.us/wMtiET States that do not Support the Use of a Release, http://rec-law.us/25TFzFO Releases Invalid Louisiana Civil Code http://rec-law.us/1OgHePY New York General Obligations Law § 5-326 http://rec-law.us/2q6WDg7 Montana Statute Prohibits Use of a Release http://rec-law.us/1lR5sPD

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Road back to glory: How the NCAA Football video game franchise could make a comeback

Abstract ID: 75

Mr. Addison Pond (University of Louisville), Prof. Adam Cocco (University of Louisville)

On September 30, 2019, California Governor Gavin Newsom signed a bill which would amend the Student Athletes Bill of Rights (Title 3, Part 40.3, §§ 67450-57 of the California Education Code) to add provisions prohibiting an athletic association from restricting student-athletes (SA) attending public schools in California from profiting from their name, image, and likeness (NIL) rights (Gutierrez & Fenno, 2019). This bill, commonly referred to as the Fair Pay to Play Act (FPPA), is scheduled to take effect in 2023. The FPPA would afford SAs the opportunity to receive compensation from activities such as endorsing a product, social media advertising, or signing autographs. California is not alone in these legislative efforts, as 10 other states, including Florida, New York, Illinois, and Pennsylvania, have announced intentions to introduce similar legislation (Norlander, 2019). As expected, the National Collegiate Ath- letic Association (NCAA) offered strong opposition to the bill. After its passing, NCAA commissioner Mark Emmert wrote a letter to Governor Newsom, stating that the FPPA was unconstitutional, harmful, and would jeopardize the demarcation between college and professional athletics—a philosophy at the center of the NCAA’s mission (Fenno, 2019). Additionally, Emmert threatened to ban California schools from participating in NCAA championship events should the bill be passed, citing the effect that only paying California student-athletes would have on the competition (Redford, 2019). Despite these warnings and threats, the bill’s author, Senator Nancy Skinner, stated that multiple legal scholars have declared that the bill is in fact, constitutional, and that the NCAA’s championship ban is a violation of federal anti-trust law (Fenno, 2019). While this legislation has several potential ramifications on the landscape of college sports, one particular area of interest is the potential revival of the Electronic Arts (EA) Sports’ NCAA Football video game franchise. Debuting in 1993 as Bill Walsh Football,the franchise took on its permanent name in 1998. During the game’s 20-year lifespan, NCAA Football has generated over $1.3 billion in sales (Groves, 2013), with the game’s last installment to date, NCAA Football 14, selling over 1.5 million copies (Scarborough, 2013). Despite NCAA Football’s popularity, the implications of the Student-Athlete Likeness Litigation has put the future of the popular franchise in limbo, as it has been over six years since an iteration of the game has hit the shelves. The first notable court case that contributed to NCAA Football’s discontinuation was Hart v. Electronic Arts Inc.Ryan Hart, a former quarterback at Rutgers University, sued Electronic Arts, claiming that the use of his avatar in NCAA Footballgames violated his right of publicity (Reinckens & Ganas, 2013). The New Jersey district court originally sided with Electronic Arts, ruling that the company’s usage of Hart’s likeness was “sufficiently transformative to warrant First Amendment protection” (Reinckens & Ganas, 2013, para. 2) and that this outweighed Hart’s right of publicity. However, in May 2013, the Third Circuit overruled the district court, concluding that the first amendment did not provide sufficient protection for Electronic Arts to violate Hart’s right of publicity. Specifically, the Third Circuit ruled that the NCAA Football avatar’s physical attributes presented too strong of a resemblance to Hart to grant Electronic Arts first amendment protection. The same issue of right of publicity arose in Keller v. Electronic Arts, where former Arizona State and University of Nebraska quarterback Sam Keller sued Electronic Arts, the NCAA, and the Collegiate Licensing Company (CLC), claiming that NCAA Football’s usage of his likeness, stats, jersey number, and position was a violation of his right of publicity. Similar to the verdict of Hart v. Electronic Arts Inc., the Ninth Circuit ruled 2-1 against EA Sports (“Ninth Circuit Rules Against EA,” 2013). While the Keller and Hart court cases’ rulings of name of publicity rights presented the first legal threat to NCAA Football’s livelihood, the fatal blow

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came from a lawsuit brought forward by a former college basketball star. In 2009, attorney Michael Hausfeld sought to build a class-action lawsuit against the NCAA and its policies prohibiting payment to student-athletes (Fainaru & Farrey, 2014). The only element missing from Hausfield’s case was a prominent athlete willing to take on the NCAA in court (Fainaru & Farrey, 2014). One day, a friend of former UCLA Bruins star and NBA first-round draft pick Ed O’Bannon showed him the newly released NCAA Basketball 09, which featured a 1995 UCLA championship throwback team. On the Bruins’ roster was a power forward with the same height, weight, skin tone, number, and left-handed shot as O’Bannon (Fainaru & Farrey, 2014). While the game did not specifically refer to the player by name, there was no doubt that the animated player in the video game was Ed O’Bannon. After a lengthy legal battle, in 2014, U.S. District Judge Claudia Wilken sided with O’Bannon, ruling that the NCAA, as well as its member schools and conferences, had violated federal antitrust law by refusing to compensate SAs for the use of their NIL (McCann, 2014). While the NCAA benefited from certain aspects of the verdict, such as the three-judge panel’s ruling that the NCAA could legally prevent colleges from compensating student-athletes beyond the full cost of attendance, O’Bannon v. NCAA did have unfortunate ramifications for video game fans across the country; until SAs could profit from their NIL rights being used in the game, NCAA Football was a thing of the past. While California’s Fair Pay to Play Act encompasses more than NIL rights in NCAA Football video games, applying the implications of this bill to NCAA Football’s comeback presents an interesting line of examination. Specifically, if EA Sports, the game’s longtime producer, were to attempt reviving the franchise, they would have their feet in two different pools. For example, EA Sports would be allowed to perfectly replicate the UCLA Bruins’ current football roster, with the player’s real-life names, images, and likenesses. Conversely, for the Division-I FBS schools not located in California, EA Sports would have to ensure that the likenesses of players on these respective teams do not resemble that of the actual players in any fashion whatsoever. Thus, while the Fair Pay to Play Act is a step in the right direction, it’s unlikely that this legislation by itself is enough to bring NCAA Football back. In order for name, image, and likeness rights to gain enough traction for EA Sports to consider making another installment of the game, several other states, specifically those with multiple “Power Five” schools, will likely have to pass similar bills. Until sufficient legislation is passed to where the majority of players on future versions of NCAA Footballare replicas of their real-life personas, NCAA Football’s fate hangs in the balance. The Fair Pay to Play act represents another salvo in the ongoing feud between the NCAA and pay-to-play proponents. Caught in the cross hairs of this battle is one of the most popular sports video games of the 21st century. Examining this legal struggle through the lens of NCAA Football is a worthwhile line of inquiry, and helps put the legal issues of name, image, and likeness rights in context. The purpose of this presentation is to examine the legal issues of right of publicity and name, image, and likeness that led to NCAA Football’s discontinuation, as well as the impact that California’s Fair Pay to Play Act has on the franchise’s revitalization. Additionally, we will address several potential remedies that would allow fans to enjoy their beloved video game once again.

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Sensory Challenged Lifeguards on the Stand. Legal Interpretations through the Lens of the ADA

Abstract ID: 59

Ms. Savannah Redd (Indiana University), Dr. William Ramos (Indiana University)

Is it possible to allow someone with a sensory disability to take an active role in a position where they are responsible for a participant’s safety through key life-saving duties? This was exactly the case in 2011 when a Michigan man named Nicholas Keith sued Oakland County for discrimination under the American’s with Disabilities Act (ADA; Keith v. County of Oakland). The defendant in this case noted that an Oakland County public pool originally offered him employment as a lifeguard, however, after meeting with a doctor for a mandatory physical exam, the doctor advised the parks department that Keith was not “fit” to be a lifeguard because he was legally deaf, and had been since birth. The pool retracted their employment offer upon learning about the diagnosis. The first ruling resulting from litigation was in fact in favor of the Oakland County, however in 2013, Keith appealed and in a 3-0 decision, the 6th U.S. Circuit Court of Appeals determined that the Country of Oakland County Parks and Recreation Commission may have relied too much on advice from outside parties without focusing specifically on how Keith could perform the job” (The Associated Press, 2013). In contrast, David Shultz sued the Young Men’s Christian Association (YMCA) for discrimination in the 1990s concerning their denial over providing him a job because of his hearing disability. In court, the YMCA moved for summary judgment, claiming that the ability to hear distress signals was a reasonable requirement for lifeguard certification (Shultz v. YMCA, 1998). In it’s decision, the court noted that Shultz could not provide any substantial evidence that he suffered economic loss being denied employment and/or certification. There are many lifeguard organizations that train and certify lifeguards (i.e., American Red Cross, Ellis & Associates, YMCA, Starguard). In Shultz’ case, the YMCA not only revoked his employment, but also stripped him of his YMCA Lifeguard certificate so that he might not attempt to be employed at any other YMCA. Shultz appealed, and the original judgement was affirmed, “The court ruled that there was no evidence that defendant’s actions were not prompted by malice or hostility toward plaintiff or toward the disabled” (Shultz v. YMCA, 1998). While in Keith’s case, the courts ruled in the favor of defendant based on facts related to his ability and capability; within the Shultz case, the courts understood the aquatic facilities need to set standards in order to protect what creates a safe and risk managed environment for all. The purpose of this presentation is to use the platform of lifeguards with sensory disabilities as a means to provide an overview of how common law has historically been applied around the issue of disability and ability to perform in the workplace. The presentation will also present legal precedent and relevant matters of law provided through the legal system to those with disabilities and employers within boundaries of the Americans with Disabilities Act. References: The Associated Press, (2013). Deaf Lifeguard Wins Appeal in Lawsuit Against Oakland County. Cases: Keith v. County of Oakland, 703 F.3d 918 Schultz v. YMCA of the United States, 139 F.3d 286

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Serious Misconduct Rules and the NCAA: Keeping Sexual Violence Out of Sport

Abstract ID: 11

Prof. Erica Zonder (Eastern Michigan University), Dr. Kristy McCray (Otterbein University), Dr. Liz Taylor (Temple University)

In the wake of numerous student-athlete sexual assault incidents at National Collegiate Athletic Association (NCAA) member schools such as Baylor University, University of Tennessee, and Florida State University, the NCAA created the Commission to Combat Sexual Violence in 2016. The Commission’s mission was to “proactively examine issues and propose solutions” to address campus sexual violence and achieve positive culture change (NCAA, n.d., para. 1), including the possibility of incorporating “criminal” conduct as a criterion for eligibility (Greene, 2019). The NCAA had previously mandated sexual violence training and education for student-athletes in 2014, introducing a prevention “tool kit.” Regardless, there has been relatively little actual change at the NCAA-level in terms of eligibility restrictions or policy. The NCAA disbanded the Commission in 2018, and further, current NCAA President Mark Emmert said that some of the difficulty in creating NCAA-wide policy was due to differing laws across the 50 states. According to Emmert, it was “impossible to sort through all of those differences to treat everyone fairly in those processes” (Armour, 2019, para. 13). As a result, both conferences and individual schools have taken the matter of student-athlete sexual misconduct into their respective hands. In 2018, The Big Sky Conference, an NCAA Football Championship Subdivision (FCS) conference made up of schools from 10 different states, introduced a “Serious Misconduct Rule” which reads as follows: A current or prospective student-athlete who has been convicted of or pled guilty or no contest to a felony or misdemeanor involving Serious Misconduct, or has been subject to official University or athletic department disciplinary action at any time during enrollment at any collegiate institution (excluding limited discipline applied by a sports team or temporary disciplinary action during an investigation) due to Serious Misconduct shall not be eligible for athletically-related financial aid, practice or competition at a Big Sky member institution. For purposes of this provision, “serious misconduct” is defined as any act of sexual violence, domestic violence, dating violence, stalking, sexual exploitation, or any assault that employs the use of a deadly weapon or causes serious bodily injury (Big Sky, 2018). The rule went into effect for prospective student-athletes for the December 2018 signing period, and all other student-athletes for the 2019-2020 academic year. Also in 2018, the Southeastern Conference (SEC) expanded the conference’s serious misconduct rule to include recruits who have pleaded guilty to felonies such as sexual assault or domestic violence (Baby, 2018). The rule was initially created to prevent student-athletes who were dismissed from their team for similar acts from transferring to another SEC school. Individual schools have also recently expanded their discipline policies to specifically address sexual violence by student-athletes. In September 2019, the University of Wisconsin amended their policy to mandate suspensions of any student-athlete who is believed to be imminently facing arrest or the filing of certain criminal charges such as sexual assault or stalking (National Law Review, 2019) as well as other non-sexual violence related offenses. Also in September 2019, the University of Texas at San Antonio (UTSA) introduced the “Tracy Rule” which prohibits current and prospective students with a confirmed history of violence or sexual abuse from joining athletics teams, receiving sports scholarships, or participating in games or practices (Associated Press, 2019). UTSA worked in conjunction with sexual assault survivor and advocate Brenda Tracy to develop the policy. The purpose of this presentation is to assess the aforementioned policies, and others, in terms of language, scope,

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and legal ramifications, with an eye towards recommending NCAA-wide policy on serious misconduct and best practices. References Armour, N. (2019, April 4). NCAA continues to drop the ball by accepting athletes punished for sexual assault. USA Today. Retrieved from https://www.usatoday.com/story/sports/columnist/nancy-armour/2019/04/04/ncaa-failures- accepting-athletes-punished-for-sexual-assault/3369687002/ Associated Press (2019, September 19). UTSA bans student-athletes with confirmed sexual misconduct. Fort Worth Star-Telegram. Retrieved from https://www.star-telegram.com/news/state/texas/article235218002.html Baby, B. (2018, June 4). Despite its flaws, new SEC misconduct rule is another step forward for the conference and college athletics. The Dallas Morning News. Retrieved from https://www.dallasnews.com/sports/2018/06/05/despite- its-flaws-new-sec-misconduct-rule-is-another-step-forward-for-the-conference-and-college-athletics/ Big Sky Conference (2018, June 4). Big Sky Establishes Serious Misconduct Rule. Bigskyconf.com. Retrieved from https://bigskyconf.com/news/2018/6/4/general-big-sky-establishes-serious-misconduct-rule.aspx?path=general Greene, D. (2019, March 15). Cody McDavis Fighting to See Change in the NCAA Sexual Assault Policy. SI.com. Re- trieved from https://www.si.com/college-basketball/2019/03/15/ncaa-rules-violations-sexual-assualt-violence-cody- mcdavis The National Law Review (2019, September 27). University of Wisconsin-Madison Expands Student-Athlete Discipline Policy. Retrieved from https://www.natlawreview.com/article/university-wisconsin-madison-expands- student-athlete-discipline-policy NCAA (n.d.). NCAA Commission to Combat Campus Sexual Violence. NCAA.org. Retrieved from http://www.ncaa.org/governance/committees/ncaa-commission-combat-campus-sexual-violence

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Societal Values and their Inﬂuence on Sport Law

Abstract ID: 24

Dr. Andy Pittman (Texas A&M University), Dr. Robin Ammon (University of South Dakota)

The history of sports law can be traced to the origins of sport. Nafziger (1988) stated that organized sports competition dates back to the ancient Egyptians, and as early as 1829 B.C., athletic competitions were held in Ireland. A central concept of athletic competition has always been that participants agree to compete within the stated rules of accepted play. Thus, the first interactions of sport and law were violations of rules, which were intended to preserve the integrity of the game (Sloan, 1983). For example, the early Olympic Games were designed to promote better relations among the varied and often hostile Greek city-states and, in order to accomplish a sense of fairness throughout the competition, strict rules were passed and enforced by the judges (Schubert, Smith, & Trentadue, 1986). Among the topics covered by the Olympic rules were the enforcement of racial and sexual discrimination, legal controls on the character and conduct of athletes, sports-related injuries, and the status and compensation of athletes (Scanlan & Cleveland, 1981), values which were a reflection of Greek society. After the Romans conquered Greece and as Christianity was introduced to Europe by the conquering Romans, sport suffered a decline for hundreds of years. Theodosius, one of the early Christian emperors, abolished the Olympic Games in 394 A.D., because they were pagan in their influence (Rice, 1929). In 1314, King Edward II banned soccer, a ban which was not enforced in the rural areas of England until 1349, when King Henry III saw soccer not only as a threat to law and order, but also to national security, because the energies of young men were not being spent on archery practice (Falla, 1981). The ban was not revoked for 200 years. From 1457, during the reign of King James II of Scotland through the Third Parliament of James IV of Scotland in 1491, bans were enacted on at least three occasions against sports, especially golf and soccer because of their interference with archery practice (Mandell, 1984). In 1511, King Henry VIII of England forbade bowling for all except himself and certain members of his court (Schwendener, 1942). Over the next hundred years, the various prohibitions against sports participation on the Sabbath became consolidated into a powerful Puritan movement effectively prohibiting participation on that day. Upon returning to England and hearing the complaints of his subjects, King James I in 1618 issued his Declaration of Sports, which allowed recreational activities on the Sabbath after Sunday service (Guttmann, 1988). In 1633, Charles I reissued his father’s declaration which was later damned and ordered to be burned by Parliament (Guttmann, 1988). In 1660, sixteen years after sports activities were banned on Sundays, Charles II proclaimed them legal. (Guttmann, 1988). Colonial America The Puritan settlers brought their attitudes regarding sport to colonial America. In 1609, politicians in New England banned soccer (Falla, 1981). On June 22, 1611, Virginia Governor Sir Thomas Dale, in his code of laws, issued a decree banning sport on the Sabbath (Lucas & Smith, 1978). On December 25, 1621, Massachusetts Governor William Bradford reacted to the playing of sports by condemning them (Guttmann, 1988). In 1647, the General Court of the Massachusetts colony outlawed shuffleboard and prohibited bowling three years later (Guttmann, 1988). That same court on August 30, 1653, passed a law that made play, sport, and aimless sauntering on Sunday a misdemeanor (Lucas & Smith, 1978). The town fathers in Boston in 1657 imposed a fine of 20 shillings against anyone playing folk football (Falla, 1981). From 1695 through 1794, various Philadelphia courts and legislatures banned disorderly sports and play, especially on Sunday (Lucas & Smith, 1978). For instance, when the borough of Pittsburgh was organized on April 22, 1794, laws were immediately passed which prohibited engaging in billiards, bowling, bullet playing, cock fighting, horseracing, and shuffleboard (Brynn, 1968). In spite of all the legal prohibitions, sport in

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America continued to grow. Colonists in New Amsterdam at the southern tip of Manhattan Island, like those of the Virginia tidewater country, felt little or no governmental pressure to refrain from participating in leisure activities. Recreational and sports activities forced their way into the stronghold of Puritanism (Schwendener, 1942). With the liberalization in social attitudes and the adoption of the doctrine of “social gospel” by Protestant religious groups, sport began to flourish (Spears & Swanson, 1983). 19th Century During the 19th century, sports became better organized. Intercollegiate (Spears & Swanson, 1983) and interscholastic sports (Jable, 1986) had their beginnings in the early and latter portions of the century, respectively. Baseball was the first sport to receive school support in 1859 with the organization of the Worcester, Massachusetts High School baseball club (Schwendener, 1942). In 1866, California became the first state to require physical education in its public schools (Hoepner, 1970). Baseball became the first organized professional sport with the formation of the Cincinnati Red Stockings in 1869 (Schubert, et. al, 1986). On April 22, 1879, the National Association of Amateur Athletes of America was formed. It was disbanded 10 years later and was succeeded by the Amateur Athletic Union, later called The Athletic Congress (Falla, 1981). The first public playgrounds were built and physical education in higher education was instituted during this century (Spears & Swanson, 1983). In addition, during the late 1890s, the American Olympic Committee, a forerunner to the United States Olympic Committee, was organized (Falla, 1981). There were relatively few lawsuits during the 19th century. Van der Smissen (1990) noted two cases regarding public parks, three concerning immunity of public schools and two immunity cases involving university athletic associations. In the earliest case reported in the area of tort liability of school districts, their officers, agents and employees (Century Edition of the American Digest, 1903), the Supreme Court of Massachusetts ruled the defendant school was not negligent in providing a safe place for the injured plaintiff to attend school (Bigelow v. Inhabitants of Randolph,1860). In an 1880 lawsuit, a young boy, who had been suspended from school for hitting a ball through a schoolhouse window, was allowed to return to school though his family had refused to pay the $3 for the replace- ment window (Perkins v. Directors, 9NW356 Iowa 1880). Some professional baseball rules were also a reflection of the societal values of the time. One particular value in question was racial discrimination. From 1858, with the formation of the National Association of Baseball Players, until banned in 1867, African Americans were allowed to play for clubs that belonged to that organization (Ashe, 1988). In spite of this ban, African Americans continued to play professional baseball until 1884 when they were excluded from participation until Jackie Robinson’s entry in 1947 (Tygiel, 1984). Early 20th Century Sports during the first part of the twentieth century continued to be a time of organization and response to societal values. Charles Follis is believed to the first African American professional football player, having played for the Shelby Steamfitters from 1902 to 1906. Fritz Pollard and Bobby Marshall were the first African American players in what is now the NFL in 1920. Pollard became the first, and until 1989 the only, African American coach in the NFL in 1921. In 1933, only two African American players remained in the NFL. From 1934 to 1945, largely due to racial attitudes, there were no African American players in the NFL. Interestingly, ethnic minorities of other races were common. The Carlisle Indian School in Pennsylvania provided many Native Americans to the NFL during the 1920s and 1930s. Jim Thorpe was the most famous. The Dayton Triangles featured the first two Asian-Americans: Chinese-Hawaiian running back Walter Achiu and Japanese-Scottish quarterback Arthur Matsu both in 1928. The first Hispanic players were Cuban immigrant Ignacio Molinet, who played for the Frankford Yellow Jackets in 1927 and Jess Rodriguez who played for the Buffalo Bisons in 1929 (Black players in American professional football, 1929). Football had become such a brutal sport that by 1903, several state legislatures had tried to unsuccessfully ban it. (Falla, 1981). On October 9, 1905, President Roosevelt, reacting to the violence in football, summoned several football leaders to the White House and issued them an ultimatum – reform the game or abolish it. From this and

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a subsequent conference, the Intercollegiate Athletic Association of the United States, a forerunner of the NCAA, was formed (Falla, 1981). In an early case (Kinzer v. Directors of Independent School District of Marion, 1906), the suspension of a student from high school for playing football was upheld because of the high incidence of injuries, a legitimate societal concern. Changing societal values continue to shape sports law. Research by Pittman (2019) has revealed many cases that are a result of changing societal values. Matal v. Tam (137 S.Ct. 1744) and Murphy v. NCAA(138 S.Ct. 1461) are two recent US Supreme Court cases that have influenced free speech (Matal) and gambling (Murphy). The United States is still responding to the impact of those decisions especially concerning gambling laws. This term, the US Supreme Court has agreed to hear a trilogy of cases involving the employment of LGBTQ individuals. One is Altitude Express Inc. v. Zarda (198 S.Ct 2049). Don Zarda was a skydiving instructor who was fired when he revealed he was gay. The bottom line is that sport has been forever shaped by societal values and will continue to be. It will be interesting to see what the future will hold. References Ashe, A. R. Jr. (1988). A hard road to glory: A history of the African-American athlete from 1619-1918. New York: Warner. Black players in American professional football. Retrieved October 5, 2019 (https://en.wilkipedia.org/wiki/Black_players_in_professional_American-football). Brynn, S.S. (1968). Some sports in Pittsburgh during the national period, 1775-1860, part 1. The Western Pennsylva- nia Historical Magazine, 51(4), 345-363. Century Edition of the American Digest. (1903). Volume 43. St. Paul, MC: West. Falla, J. (1981). NCAA: The voice of college sports. Mission, KS: NCAA. Guttmann, A. (1988). A whole new ballgame: An interpretation of American sports. Chapel Hill, NC. University of North Carolina. Hoepner, B. J. (1970). John Swett’s experience with physical exercise at the Rincon School: Foundation for the first state physical education law in the U.S., The Research Quarterly, 41(3), 365-370. Jable, J.T. (1986). High school athletics: History justifies extracurricular status. JOPERD, 57(2), 61-68. Lucas, J.A. & Smith, R.A. (1978). Saga of American Sport. Philadelphia, PA: Lea & Febiger. Mandell, R.D. (1984). Sport; A cultural history. New York; Columbia University. Nafziger, J.A.R. (1988). International sports law. Dobbs Ferry, NY. Transnational. Pittman, A.T. (2019). The most important sport law cases. [Unpublished manuscript]. Department of HLKN, Texas A&M University. Rice, E.A. (1929). A brief history of physical education. New York. A.S. Barnes. Scanlan, J. & Cleveland, G. (1981). The past as prelude: The early origins of modern American sports law, 8 Ohio N.U.L. Rev. 433. Schubert, G.W., Smith, R. K. & Trentadue, J.C. (1986). Sports law. St. Paul, MN: West. Schwendener, N. (1942). A history of physical education in the United States. New York. A.S. Barnes. Sloan, P.S. (1983). The athlete and the law. New York: Oceana. Spears, B. & Swanson, R.A. (1983). History of sport and physical activity in the United States (2ed). Dubuque, IA; William C. Brown. Tygiel, J. (1984). Baseball’s great experiment: Jackie Robinson and his legacy. New York: Vantage Books. Van der Smissen, B. (1990). Legal liability and risk management for public and private entities. Cincinnati, OH. Anderson. Court Cases Altitude Express Inc. v. Zarda (198 S.Ct 2049).

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Bigelow v. Inhabitants of Randolph, (14 Gray 541, 80 Mass. 541, 1860 WL 6739). Kinzer v. Directors of ISD of Marion, 129 Iowa 441, 105 N.W. 686 (1906). Matal v. Tam, 137 S.Ct. 1744(2017). Murphy v. NCAA, 138 S Ct. 1461 (2018). Perkins v. Directors, 9NW356 (Iowa 1880).

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SPORT LITIGATION, SOCIAL AGENDA, AND COMMODITY ACTIVISM: BIG DATA ANALYSIS AND EVENT STUDY METHOD

Abstract ID: 14

Dr. Sungho Cho (Bowling Green State University), Dr. Yonghwan Chang (University of Minnesota), Dr. Minyong Lee (North Carolina A&T State University), Dr. Steve Sohn (University of Louisville)

Introduction In case of legal disputes relating to socially controversial agenda, stakeholders of the sport industry would need to take into consideration multiple strategic concerns in addition to the outcome of the litigation. This project introduces two social science methodologies that are designed to reveal marketing and financial implications of sport litigation in lights of two recent disputes, i.e., Morgan v. U.S. Soccer Fed’n (C.D. Cal. Mar.19, 2019) and Kaepernick v. NFL (Lab. Arb. Settled on Feb. 15, 2019) (Arb. Burbank). Theoretical Background While social science is based on objective, empirical, and open-ended inquiries to a problem, law pursues more normative, analogized, and final answers. Despite such significant differences in paradigmatic orientations, scholarships of law and social science have significantly relied on each other. In fact, a number of high-profile court cases have been decided based on social science information as dispositive evidence whereas scholars examined impacts of court decisions on a variety of socioeconomic perspectives (Ashenfelter, Collins, & Yoon, 2006; Cho & Moorman, 2014; See U.S. v. Lopez, 1995). Clearly, court decisions are not just end-products of interrelationships among different social dynamics but primary impetus for social changes. In this regard, an investigation of two recent legal disputes in the sport industry by using social science measurement platforms, i.e., big-data analysis and event study method, would be a good showcase to demonstrate how the impacts of the legal cases might be examined in terms of marketing and financial terms. In April 2016, five players of the U.S. Women’s Soccer Team (“USWST”) filed a charge of pay discrimination with the Equal Employment Opportunity Commission on the ground that the soccer federation had failed to pay the women’s national team equitably compared to the men’s counterpart. In June, a federal district court upheld the validity of the no-strike provision in the collective bargaining agreement between the players’ union and the federation. Given the want of any effective strategic option in the confrontational labor negotiation, on March 8, 2019, 28 players of U.S. Women’s Soccer Team brought a hybrid collective/class action under the Fair Labor Standard Act and Title VII of Civil Rights Act (West, 2014). Throughout the labor disputes and following lawsuit, one of the co-captains of the USWST, Megan Rapinoe, has been particularly vocal in disseminating various social agenda publicly via social media outlets. In contrast, Colin Kaepernick grievance case began with the player’s social activism. In 2016, the quarterback of the 49ers and his teammate, Ed Reid, began to kneel during the pregame national anthem performance at NFL games to protest police brutality targeting racial minorities. As dozens of other players joined the cause, the league had to deal with such a sensitive controversy around race, freedom of speech, and social justice. After 2016 season, Kaepernick opted out his contract with the 49ers to seek a different team as a free agent. In spite of his remarkable athleticism and prior achievements, no offer was made from any team. In October 2017, Kaepernick filed a grievance under the Article 69, Section 2 of the NFL Collective Bargaining Agreement by alleging that the owners in the league colluded to boycott the petitioner for his social activism. In August 2018, the league attempted to dismiss the claim for lack of plausible ground. The arbitrator Burbank, however, decided that the petitioner had produced enough evidence to enter into a full hearing. The league and the petitioner settled the case on Feb. 15, 2019. While Kaepernick’s protest

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prompted a variety of heated discussions nationwide, Nike fully supported his cause in the famous ad clip, “Believe in Something Even If It Means Sacrificing Everything,” which was arguably one of the most successful advertising messages the company recently propagated. Both aforementioned cases involves controversial issues raised or represented by individuals whose persona or characteristics may be perceived in a widely different ways by the general audiences. In such situations, a particular persona or characteristic each members of the audiences perceive from those two individuals (Rapinoe and Kaepernick) representing the cases typically have a significant bearing on how those audiences process the issues and become sympathetic toward (or against) the raised issues. Aristotle (Kennedy, 2007) argues that there are three primary elements of argument/persuasion: Logos (convinc- ing people through logic), Pathos (persuading people through the use of emotion), and lastly Ethos (appealing to people through authority, reputation, or virtue of good character). Of those three, Aristotle suggests that ethos may be the most powerful form of persuasion, and this idea of ethos refers to the character of the speaker, according to Halloran (1982). Halloran also states that Aristotle presents three criteria of evaluating ethos: phronesis (good sense), arête (good moral character), and eunoia (goodwill toward audience). Eunoia, particularly, is concerning with the relationship the persuader cultivates with the audience to gain their trust. This trust is what gives the source credibility and the power to persuade the audience. Therefore, analyzing how audiences perceive the characters, virtues, or reputations of those two key individuals, especially through the perceived level of trust that affects the source credibility, may become a key in understanding the marketing and financial implications of sport litigation. Meanwhile, there is another factor that must be considered when one is trying to understand the audiences’ perceptions toward the key individuals in controversies: news media coverage. Specifically, the amount of news coverage of the controversies in media and how such issues are covered by the news media. Agenda setting theory (McCombs & Shaw, 1972) explains that even though media may not have enough power to dictate how audiences think, they do possess enough power to suggest to the audiences what to think about. They do so by using the time and frequency of news coverage, the nature of the information relayed in a news coverage, and the relative position of the coverage in news contents. Even though agenda setting theory acknowledges the lack of media’s power to tell people how to think, there are other evidences suggesting that the news coverage in media may actually affect how audiences think. Tuchman (1978) states that news is a window frame through which limits the perception of reality. Consequently, some aspects of the reality perceived through the news may become more prominent than others. In particular, framing theory (Goffman, 1974) suggests that how story is presented to the audience (called “frame, which is an abstraction that work to organize or structure message meaning) influences the choices people make about how to process that information. In other words, a particular frame the news media place on the story they cover affects how audiences perceive and process the story including the character and persona of the individuals involved in the covered story. Therefore, in attempt to understand the marketing and financial implications of sport litigation, it becomes necessary to analyze the audiences’ perceptions and attitudes toward the individuals who are the central figures in the controversies. Moreover, it becomes critical to examine the amount and frequency of news coverage and the frame of the coverage on those two individuals to understand the connections between audiences’ perceptions and news media coverage. Methods 1. Big Data Analysis This study utilizes lexicon-based text mining analysis to examine how individuals perceive the two recent disputes. Among a variety of opinion mining tools emerged in computer science, Chang (2019) introduced the Twitter-based text mining approach (Liu, 2012) in the field of sport management, and it has garnered significant attentions among researchers and managers due its powerful utilities. For example, this innovative big data analysis enables re-

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searchers to analyze individuals’ real-time and natural affective responses expressed in social media (Chen et al., 2017). Also, this approach is beneficial for the current study especially because it analyzes emotions; an emotion is a response to an attitude object or event (including its characters and reputations), and also involves subjective experiences and action tendencies (Chen et al., 2017). Taken together, the adaptation of this unique and emerging tool in the field of sport law would provide an opportunity to broaden our understanding of the impacts of legal issues by exploring individuals’ unfiltered and unsolicited reactions. The lexicon-based tweets analysis includes three procedures, including (1) tweets harvest, (2) lexicon-based tweets identification, and (3) tweets classification. First, we collect millions of tweets by creating web crawlers in R 3.6.1 (R Development Core Team, 2019). In this harvesting process, tweets are collected through Twitter’s Search APIs by using the following hashtags (i.e., initially screening out irrelevant tweets): # Women’s Soccer, # USWST, and # Megan Rapinoe for the women’s soccer case and #Colin Kaepernick, # Ed Reid, #NFL protest for the Kaepernick’s dispute (case sensitivity is disregarded). Second, we identify emotional words in each tweet by utilizing the lexicon-based identification approach; based on the online dictionary (i.e., WordNet Affect; Strapparava & Valitutti, 2004), the TwitterR in R identifies each tweet’s affective tendency by detecting emotional terms expressed in tweets. Third, we utilize the Naïve Bayes algorithm for the emotion classification process (i.e., the conditional probability of an event that lexicon words in a tweet appear given a specified emotion category). After excluding tweets producing zero posterior probability, we estimate the tweet’s frequency to explore the strength of a particular emotion category, which would provide crucial marketing information. 2. Event Study Analysis The event study analysis measures abnormal returns, which are defined as the differences between actual ex post returns around a major economic event (in this paper: related to sport litigation) and normal returns. The theory underlying this methodology is the efficient market hypothesis (Fama 1970). Market efficiency implies that stock prices incorporate all relevant information that is available to market traders. If this presumption is true, then any financially relevant information that is newly revealed to investors will be instantaneously incorporated into stock prices. Research can identify significant events by their impact on the stock prices of firms. The use of event studies has allowed researchers to examine the direction, magnitude, and speed of security price reactions to a wide variety of new information in the marketplace. Fama (1970) initiated the employment of event study techniques by examining the information associated with stock splits. It has become one of the most widely used methodologies in a variety of disciplines, such as finance, accounting, law, and management (Agrawal & Kamakura, 1995). In the given sport litigation contexts, the method would present the impacts of controversial legal cases on the shareholder wealth of related parties, such as the leagues and sponsors. The presentation will share findings from the two measurement platforms and discuss their implications in lights of source credibility, agenda, and framing theories. References Agrawal, J., & Kamakura, W. (1995). The economic worth of celebrity endorsers: An event study analysis, Journal of Marketing, 59(3), 56-62. Ashenfelter, O., Collins, W. J., & Yoon, A. (2006). Evaluating the role of Brown v. Board of Education in school equal- ization, desegregation, and the income of African Americans. American Law and Economics Review, 8(2), 213-248. Chang, Y. (2019). Spectators’ emotional responses in tweets during the Super Bowl 50 game. Sport Management Review, 22, 348-362. Chen, J., Liu, Y., & Zou, M. (2017). User emotion for modeling retweeting behaviors. Neural Networks, 96, 11-21. Cho, S., & Moorman, A. (2014). An examination of the psychometrical comparability of survey evidence in sport trademark litigation. Journal of Legal Aspects of Sport, 24(1), 3-23. Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (West, 2014).

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Fama, E. F. (1970). Eﬃcient capital markets: A review of theory and empirical work, Journal of Finance, 25(2), 383- 417. Goffman, E. (1974). Frame analysis: an essay on the organization of experience. NewYork: Harper and Row. Halloran, S. M. (1982). Aristotle’s concept of ethos, or if not his somebody else’s. Rhetoric Review, 1(1), 58-63. Kaepernick v. NFL (Lab. Arb. Settled on Feb. 15, 2019) (Arb. Burbank). Kennedy, G. A. (Ed. and Trans.). (2007). Aristotle on rhetoric: A theory of civic discourse (2nd ed). New York, NY: Oxford University Press. Liu, B. (2012). Sentiment analysis and opinion mining. Synthesis Lectures on Human Language Technologies, 5, 1-167. Lopez v. U.S., 514 U.S. 549 (1995). McCombs, M. E. & Shaw, D. L. (1972). The Agenda-Setting Function of Mass Media. Public Opinion Quarterly, 36(2), 176-187. Morgan v. U.S. Soccer Fed’n, No. 2:19-CV-01717 (C.D. Cal. Mar. 19, 2019). R Development Core Team. (2019). R: A language and environment for statistical computing. Vienna: R Foundation for Statistical Computing. Retrieved from http://www.R-project.org/ Strapparava, C., & Valitutti, A. (2004). WordNet-Affect: An affective extension of WordNet. In Proceedings of the 4th International Conference on Language Resources and Evaluation (LREC 2004) (pp. 1083-1086). Lisbon: European Language Resources Association. Tuchman, G. (1978). Making News. NewYork: Free Press.

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Sports Facilities and the Law: A review of the legal duty owed people attending events

Abstract ID: 67

Prof. John Wolohan (Syracuse University)

The law is very clear that property owners owe a duty of care to people on their property. The level of care owed, however, is depended on both type of event and the status of the person on the property. In general, the duty owed to a business invitee, as opposed to a licensee or trespasser, is the highest duty owed to any person who enters upon your property. In determining the scope of duty property owners owe to business invitees, the Restatement (Second) of Torts § 343 states that: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. The landowner, therefore, is under an affirmative duty to protect a business visitor not only against known dangers but also against those which might be discovered with reasonable care. In applying this standard of care to sports facilities, the courts have generally found that sports facility owner and operators are only liable for those injuries that are foreseeable. The question of foreseeability, however, can sometime be difficult to judge especially in cases of criminal activity. For example, is it foreseeable that a fan of an opposing team might be assaulted during a football game? Generally, property owners are liable to business invitees for harm caused by the criminal actions of third parties only if the property owner knows or has reason to know, from past experience, that there is a likelihood of conduct on the part of third persons that would harm invitees. If the place or character of the business, or past experience, is such that the property owner should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, the property owner may be under a duty to take precautions against it, and to provide a reasonably sufficient number of security to afford a reasonable protection. The purpose of this presentation is to examine the decision of the Superior Court of Pennsylvania in Patrick Pearson v. Philadelphia Eagles, LLC, 2019 Pa. Super. LEXIS 1016; 2019 PA Super 304. In the case, Patrick Pearson a Dallas Cowboy fan was attacked by four or five men in a restroom during a game at Lincoln Financial Field between the Cowboys and the Philadelphia Eagles. Pearson, who suffered a broken leg in the assault, was wearing a Cowboys hat and jersey at the time. Pearson sued both the team and the stadium for negligence relating to their security program at the stadium, which he claimed caused his injury. Following a jury trial, the jury found that the stadium and facility operators negligent and awarded Pearson $700,000 in damages. On appeal, however, the Superior Court overturned the trial court’s decision in favor of Pearson when it ruled that the record did not support the trial court’s conclusion that the property owners and operators were on notice that violent assaults regularly took place in the stadium’s restrooms or that they conducted their security program without reasonable care. In addition to reviewing the Superior Court of Pennsylvania’s decision in Patrick Pearson v. Philadelphia Eagles, the presentation will also examine a series of other negligence lawsuits involving the owners or operators of sports facilities. In particular, since the duty owed to a business invitee must be determined on a case-by-case basis, the

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presentation will try to determine from the various cases what actually is a foreseeable danger. Finally, while it may not have been necessary to have security personnel stationed in the stadium restrooms, the presentation asks the question is it know a foreseeable risk?

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Sudden Cardiac Arrest in Basketball Players: Is the NBA doing enough?

Abstract ID: 86

Mr. Mark Lasota (University of New Mexico), Dr. Todd Seidler (University of New Mexico)

Although the health benefits of exercise are well-known, a relatively small number of people who harbor cardiac conditions can sometimes experience sudden cardiac arrest, and even death, from sport participation. Sudden Cardiac Arrest (SCA) is a condition in which the heart suddenly stops beating, which results in a stoppage of blood flow to the brain and other vital organs (U.S. Department of Health and Human Services, 2019). SCA is the most identifiable cause of death in young athletes, with an incidence of around 1 in 40,000 to 1 in 80,000 athletes per year (Harmon, Drezner, Wilson, & Sharma, 2014). Basketball players seem to be particularly more susceptible to SCA compared to other sport participants. According to a study reviewing incidence, cause, and comparative frequency of sudden cardiac death in NCAA athletes, the risk among male Division I basketball players has been estimated at more than 10 times that in the overall athlete population (1 in 5,200 vs. 1 in 53,703) and basketball players are 30 times more likely to die from SCA than non-basketball players (Harmon et al., 2015). A recent lawsuit challenging the NBA’s management of sudden cardiac arrest raises questions of whether enough is being done by organizations, such as the NBA, to protect basketball players. On March 24, 2018, former NBA G League wing player Zeke Upshaw, who played for the Grand Rapids Drive, suddenly collapsed on the court during the final minute of the team’s season finale against Long Island Nets. Zeke died two days later. Jewel Upshaw, Zeke’s mother, shortly after filed a lawsuit claiming negligence on the part of the NBA, DeltaPlexArena, and the Detroit Pistons and SSJ Group, Co-owner of the drive (Baker, 2018). Jewel Upshaw’s lawsuit maintained the NBA and its G League teams were not prepared to treat sudden cardiac arrest, the team physician for the Drive left shortly before Zeke collapsed, and that Zeke was not given life-saving measures for at least 40 minutes (Sellers, 2018). The lawsuit also alleges “the NBA still failed to adequately prepare for and protect its players from sudden cardiac death, a risk known since at least 1993.” (Upshaw v. Nat’l Basketball Assoc., S.D.N.Y., 2018). Although the NBA and the Detroit Pistons settled with the Upshaw’s family in July 2019, the lawsuit continues against other defendants in federal court (Associated Press, 2019). For many, just mentioning SCA and basketball sparks memories of former Loyola Marymount All-American forward Hank Gathers and Boston Celtics NBA All-Star guard Reggie Lewis, who both died from hypertrophic cardiomyopa- thy, a disorder that causes thickening of the heart muscle. Over the years, the NBA has taken steps to control the risk of SCA, but Jewel Upshaw’s lawsuit challenged the reasonableness of those measures (Baker, 2018). A study conducted by researchers from NewYork-Presbyterian/Columbia University Medical Center in collaboration with the NBA provided valuable insight into better understanding cardiac risk in NBA basketball players. In this study, the echocardiograms of 526 NBA players were analyzed for the 2013-14 and 2014-15 seasons (Engel, Schwartz, & Homma, 2016). Some key findings indicated that ECG classification rates were high in NBA players and the possible cause of the abnormalities is cardiac remodeling, which was believed to have been caused by stress resulting from training and playing basketball (Engel, et al., 2016). In addition, the Collective Bargaining Agreement between the NBA and NBPA includes a Fitness-to-Play policy protecting the health of players who have been diagnosed with potentially life-threatening injuries or illnesses. With this information available, the main concerns are if the NBA is adequately informing its athletes (including G league players) of this threat, reasonably attempting to detect, monitor, and manage these situations, and if there is an effective emergency action plan in place if a sudden cardiac arrest does occur. Therefore, the purpose of this

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study is to review the NBA’s policy and protocol in regards to sudden cardiac arrest and provide an emergency plan that may help reduce the risk of sudden cardiac death.

References Associated Press. (2019, July 25). NBA, Pistons settle lawsuit over G league player’s death. USA Today. Re- trieved from https://www.usatoday.com/story/sports/nba/2019/07/25 /nba- pistons-settle-lawsuit-over-g-league- players-death/39804977/ Baker, T. (2018, October 26). Lawsuit challenges NBA’s management of sudden cardiac arrest, ‘An Unaddressed Secret’ in the league. Forbes. Retrieved from https://www.forbes.com/sites/thomasbaker/2018/10/26/upshaws- wrongful-death-action- challenges-the-nba-and-g-leagues-management-of-sudden-cardiac-death/#4399987d2b3f Engel, D.J., Schwartz, A., & Homma, S. (2016). Athletic cardiac remodeling in U.S. professional basketball players. Journal of the American Medical Association, 1(1), 80-87. Harmon, K.G., Drezner, J.A., Wilson, M.G, & Sharma, S. (2014). Incidence of sudden cardiac death in athletes. British Journal of Sports Medicine, 100(16), 1227-1234.

Harmon, K.G., Asif, I.M., Maleszewski, J.J., Owens, D.S., Prutkin, J.M., Salerno, J.C., Zigman, M.L., Ellenbogen, R., Rao, A.L., Ackerman, M.J., & Drezner, J.A. (2015). Incidence, cause, and comparative frequency of sudden cardiac death in National Collegiate Athletic Association Athletes: A decade in review. Journal of American Heart Association, 132(1), 10-19. Sellers, S. (2018, July 25). NBA faces questions, lawsuit in hopeful’s on-court death. Bloomberg. Retrieved from https://news.bloomberglaw.com/product-liability-and-toxics-law/nba faces-questions-lawsuit-in-hopefuls-on-court- death Upshaw v. Nat’l Basketball Assoc., S.D.N.Y., 2018 U.S. Department of Health and Human Services, National Institutes of Health. (2019). Sudden cardiac arrest. Re- trieved from https://www.nhlbi.nih.gov/health-topics/sudden-cardiac-arrest

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Suds in the Stands! What are the Risks?

Abstract ID: 40

Dr. Sarah Young (Indiana University), Ms. Kallee Hooley (Indiana University), Mrs. Celina Thomas (Indiana University)

College football is how sports fans in America spend their autumn Saturdays, evoking images of tailgate parties where food and alcohol are plentiful. Alcohol and college football have a long history together, mostly from fans partying before or after games outside the stadium, or from fans discreetly sneaking flasks into their seats. In a 2017 study by Detox, more than 42% of Americans have snuck alcohol into a sporting event, with college football being the most frequently identified event at 56%. Costa (2019) observed that colleges have long shunned alcohol out of a mix of public safety and negative publicity. He stated, “even if in-stadium sales could be handled legally and with limits, many schools were [are] wary of being viewed as promoting drinking while dealing with underage and binge drinking on campus.” Yet in the last decade, with a decline in ticket sales and game attendance, universities have been pressed to creatively enhance the fan experience, and some have turned to in-stadium alcohol sales as the tactic by which to overcome this challenge. Of the Power 5 conferences, with the exception of the SEC, roughly one-half of schools sell beer and wine in-stadium. The rationale for this phenomenon from Texas A&M athletic director Ross Bjork was, “the evolution we’re in now is all about the fan experience—safe atmospheres but providing something for everyone. The alcohol piece provides that something for everyone” (Costa, 2019). This relatively recent “about-face” by universities across the nation begs the question of how institutions are managing the risk of alcohol sales on Saturdays. What is the duty owed by universities toward their student fans? Further, what is the liability of the university and its athletic department for inebriated fans who hurt themselves or hurt others (Bearman v. University of Notre Dame, 1983)? With the SEC’s alcohol ban lifted as of August 2019, conference members are in a quandary on whether alcohol sales should be permitted in their stadiums during sport events. For some of the schools, such as University of Alabama and Auburn University, alcohol sales are not expected anywhere in the near future. In contrast, University of Tennessee is already on board with the SEC’s decision and believes “individual universities in the SEC should have the autonomy to make decisions best for their campuses as it relates to selling alcohol at athletic events” (Haag, 2019 as cited in Toppmeyer, 2019). University of Tennessee is the lone SEC school selling alcohol at Neyland Stadium as of the 2019 football season. While these autonomous decisions are new for the SEC, they are not new for other conferences. Big 10, Big 12 and Pac-12 universities have always had the opportunity to make their own decisions regarding alcohol sales. While it is a financially impactful endeavor, it is also one that comes with risks. Universities deciding to allow alcohol sales have established similar policies they believe will be most effective in keeping their students and visitors safe. Many of these schools are attempting to reduce risks by ending the sales at the end of the third quarter of football games, limiting the amount of beers purchased per transaction, and having designated cups for drinks containing alcohol. Other universities have designated areas for individuals choosing to drink such as the University of Washington, which offers their fans a beer garden. For other schools, such as Georgia Tech, University of Kansas, and Iowa State University, alcohol sales are more exclusive with fans seated in general admission not able to purchase beer or wine, but those fans in premium seating or suites can purchase a drink. Similarly, while Clemson University does not allow alcohol sales, fans who purchased premium seats are free to bring their own alcoholic beverages to enjoy as they watch the game (Clouse, 2019). However, regardless of the efforts towards risk management, there still may be some legal implications these schools could face. The purpose of this presentation is to analyze the legal implications universities encounter serving alcohol at their

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football stadiums by reviewing the appellate court ruling in the Bearman v. University of Notre Dame (1983) case. Alcohol policies at each stadium are different due to location on campus, local liquor laws, and the party responsible for serving at the venue. A comparison of policies for the Power 5 conference schools now serving will be presented. As more schools are evaluating policies for general alcohol sales at their football stadiums, awareness of legal implications that can arise with drinking such as overconsumption, underage consumption, crowd control, and drunk driving need to be addressed. Each of these legal issues will be presented along with recommendations for reducing and managing the risks. References Bearman v. University of Notre Dame, 453 N.E.2d 1196 (Ind. Ct. App. 1983) Clouse, A. (2019, June 26). How do other Power 5 schools handle alcohol at college football games? Knoxville News Sentinel. Retrieved from: https://www.knoxnews.com/story/sports/2019/06/26/alcohol-college- football-games-policy-power-5-university/1358400001/ Costa, B. (2019, August 16). College football turns to an unlikely savior: Beer, beer, and more beer. The Wall Street Journal, retrieved from: https://www.wsj.com/articles/college-football-turns-to-an-unlikely-savior-beer-beer- and-more-beer-11565956854 Detox. (2017, October 9). Drinking during the game. An American Addiction Centers Resource. Retrieved from: https://www.detox.net/uncover/drinking-during-the-game/ Toppmeyer, B. (2019, May 31). SEC clears path for Tennessee, Vanderbilt to sell alcohol stadium-wide at games. Knoxville News Sentinel.Retrieved from: https://www.knoxnews.com/story/sports/college/university-of- tennessee/football/2019/05/31/tennessee-football-sec-alcohol-ban-beer-ut-vols- vanderbilt/1295287001/

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Sunshine?: Direct Support Organizations and Intercollegiate Athletics

Abstract ID: 52

Dr. Nicholas Schlereth (Coastal Carolina University), Dr. Justin Lovich (Coastal Carolina University)

Organizational leaders in college athletics are often tasked with adhering to ethical standards, rules of governing bodies, and state and federal governments. Nevertheless, examples of corruption and organizational malfeasance are rampant in intercollegiate athletics. Athletic departments and programs have historically demonstrated a willingness to subvert the rules of the NCAA to gain on field success and retain brand equity. As the U.S. Department of Justice continues to pursue criminal charges of public corruption against high-profile stakeholders in intercollegiate athletics, decision makers have displayed a willingness to even subvert federal law in pursuit of financial and competitive success. Amidst the unique visibility of sport organizations and the contextual intricacies of intercollegiate athletics organizations, organizational leaders face the challenge of making decisions in substantial public scrutiny (Kellison, Bass, Lovich, & Bunds, 2015). Transparency in organizational dealings, especially those that leverage public resources has led for scholars to introduce comprehensive reporting metrics to hold organizations accountable for their financial and social actions (Schlereth, 2018). Florida, nicknamed the “Sunshine State,” allows for a unique organizational structure for intercollegiate athletic departments. Pursuant to section 1004.28 of the State of Florida Statutes, public universities are enabled to create Direct Support Organizations (DSO) to by definition as the following.

1. A Florida corporation not for profit incorporated under the provisions of chapter 617 and approved by the Department of State. 2. Organized and operated exclusively to receive, hold, invest, and administer property and make expenditures to or for the benefit of a state university in Florida or for the benefit of research and development park or research and development authority affiliated with a state university and organized under part V of chapter 159. 3. An organization that a state university board of trustees, after review, has certified to be operating in a manner consistent with the goals of the university and in the best interest of the state. Any organization that is denied certification by the board of trustees shall not use the name of the university that it serves.

(a) “Personal services” includes full-time or part-time personnel as well as payroll processing

4. “Property” does not include student fee revenues collected pursuant to s. 1009.24

The statute also lays out protection for a DSO from public records request, providing cover for athletics department personnel and actions that would readily be available if they still function as a department of the university. The corporate model enabled by the statue has recently come under the microscope as Florida State University announced the merger of its athletics booster club and athletic department in 2019. This merger was justiﬁed as a means to streamline operations and eﬃciently use resources, but critics have claimed it serves to shield the athletics program from public scrutiny and hide an otherwise-public decision making process from constituents and stakeholders (Hobson, 2019). Additionally, while DSOs are granted private status, not subject to public records requests, they have been granted protections reserved for public entities. In Plancher v. UCF, the Florida Supreme Court held that despite enjoying

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the private status of a DSO, the University of Central Florida Athletic Association was granted limited sovereign immunity (Carroll, 2013; Hinson, 2013). In limiting the athletic department’s liability in the wrongful death of college athlete, the courts shielded the private organization with the cloak of the state. The purpose of this presentation is to explore the corporate model in detail and assess its potential application in other states. The presentation will focus on two speciﬁc area, public records request and limited sovereign immunity status afforded to DSOs. The University of Florida, University of Central Florida, and Florida State University, the three largest public universities in the state of Florida, currently utilize the DSO format, each with its respective board structure and relationship with its university partner. It is the goal of the presenters to provide an engaging and interactive presentation to discuss the legal pros and cons of this corporate framework. In questioning whether this model could become ripe for adoption in other states, it is important to examine whether the Sunshine State believes that sunshine is the best disinfectant (Brandeis, 1933) for college athletics. Brandeis, L. D. (1933). Other people’s money: And how the bankers use it. Washington: National Home Library Foundation. Carroll, M. (2013). Plancher continues: Whether athletic departments as Direct Support Organizations should be considered state agencies. Presented at the annual conference of Sport and Recreation Law Association, Denver, CO. Hobson, W. (2019, June 13). Florida State says privatizing athletics won’t change anything. Skeptics aren’t so sure. Washington Post. Retrieved October 15, 2019, from https://www.washingtonpost.com/sports/2019/06/13/ﬂorida- state-says-privatizing-athletics-wont-change-anything-skeptics-arent-so-sure/ Kellison, T.B., Bass, J.R., Lovich, J.M., Bunds, K.S. (2015), Compounding crisis events and the organizational response, International Journal of Sport Management, 16, 573-600. Schlereth, N. (2018). Social reporting & NCAA. Journal of Business Law & Ethics, 6(1), 1–14.

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Suspect collection? Analyzing and understanding the athlete wearable data policies and practices of NCAA member institutions

Abstract ID: 26

Dr. Jeffrey Levine (Drexel University), Dr. Chris Hanna (Georgia Southern University)

Introduction The National Collegiate Athletic Association (NCAA) is the governing authority of college athletics. This organization was founded on the notion of safeguarding the health and safety of the college athletes through creating a set of uniform rules and to be a clearinghouse where problems could be addressed (Kobritz & Levine, 2013). Over time, the NCAA’s role in college athletics has mushroomed, making the volunteer association deeply involved in virtually all areas of college athletes. One area involving governance relates to well-being, where the NCAA has taken its mandate to create the NCAA’s Sport Science Institute (SSI). The SSI’s mission is “[t]o promote and develop safety, excellence and wellness in college student-athletes, and to foster lifelong physical and mental development,” (About the SSI, n.d., para 2). Focusing on players’ health and safety, the SSI churns out an array of publications that tackle a variety of topics. One area is termed data-driven decisions, (Health Education Center, n.d.) a nebulous topic given the fact that a significant amount of data about college athletes is collected by NCAA member schools (Lemire, 2017; Tracy, 2016). The NCAA states that it selectively shares its collected data (“Shared NCAA Research Data,” n.d.). Literature Review The NCAA has been collecting data related to injuries from member institutions since 1982 as part of its injury prediction system (Klossner, Corlette, Agel, & Marshall, 2009). Although this program began using pen and paper as a means of tracking data, the NCAA has modernized how it collects information. Technology has continued to evolve, and now NCAA athletes are routinely equipped by their athletic departments with an array of wearable technology, including sensors in their clothing and equipment, collecting a litany of athlete biometric data (ABD) (Tracy, 2016) including, but not limited to, “heart rate, respiration, motion, blood oxygenation, brain activity, muscle function, body temperature, and changes in blood pressure” ( Karkazis & Fishman, 2017, p. 46). Another popular class of information collected is performance data, which tracks metrics on a variety of data through devices worn both on and off the field (Karkazis & Fishman, 2017). Collected data even can exist at the chemical level, effectively supplanting the function of a medical research lab (Karkazis & Fishman, 2017). Wearable technology is a default term that refers to various kinds of methods by which a person may be monitored electronically through a variety of sensors in or on someone’s person (McLellan, McCurrach, & Feldstein, 2018). This development has led to ethical issues related to privacy and security related to the collected information, among other issues (Arnold & Sade, 2018). Corporate entities with vast amounts of medical data have leveraged these datasets into lucrative revenue sources in the era of big data (Harris, 2018). Thus, questions remain whether the NCAA has chosen to pursue such a strategy when it comes to NCAA athlete ABD. Multiple perspectives exist regarding whether harvesting ABD violates an individual’s privacy rights. Smolenski (2019) argues that ABD is not protected under federal laws traditionally utilized to protect private health information, such as the Health Insurance Portability and Accountability Act (HIPAA). However, Arrison (2019) argues that protection exists under HIPAA due to the nature of data collected and its use. Additional theories of recovery may exist at common law under the doctrine of the right to privacy (see Warren & Brandeis, 1890). Significance The NCAA has habitually engaged in behavior intended to exploit college athletes for financial gain (Branch, 2011).

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NCAA executives invented a word, “student-athlete,” intended to deprive college athletes of rights customarily received by employees (McCormick & McCormick, 2006). In another financial-related move, college athletes were required to sign documentation granting the NCAA “without exception, no matter his or her skill, fame, or importance to the team,” the right to use their intellectual property in perpetuity without compensation in exchange for the right to participate in college athletics (Lush, 2015, p. 767). College athletes are barred from using their position as an athlete for their financial gain (Gartland, 2017; Henneke & Riches, 2018), and questions remain whether association administrators make decisions maximizing NCAA revenues while minimizing college athletes’ ability to pursue a meaningful education (Lumpkin, 2017). The NCAA’s historical treatment of college athletes naturally invites questions about what it is doing with ABD collected by its members. The NCAA’s pattern of behavior over the last 50 years could reasonably lead one to ask whether the NCAA is profiting from the information its member institutions collect from college athletes. College athletes may not be aware of what data is being collected, how that data is being used, and who is profiting from such information. While comparable sport entities such as the National Basketball Association have reached an agreement with players on how matters related to ABD are to be governed through collective bargaining (Arrison, 2019), the NCAA has no such arrangement with college athletes. This has left college athletes further exposed and increases the urgency to understand NCAA member schools’ policies as they relate to data collection. Once the policies are unearthed and understood, college athletes can begin to understand their position and assess the options available to ensure their protection. Thus, this presentation explores NCAA member institution data collection practices by providing a policy analysis of the 50 highest revenue-generating public institutions according to the most recent USA Today rankings. Each school’s policy will be gathered through public records requests, as the authors will file requests for any policy related to the institution’s athletic department collection of athlete biometric data involving a student athlete’s physical and physiological characteristics or metrics through wearable technology or technology embedded in clothing/equipment. The results will be coded for responsiveness, common terms and themes within responsive documents. The authors will then systematically discuss the findings once the data has been collected and analyzed, concluding with a brief discussion on how the results may assist college athletes to understand their position and assess the options available to ensure their protection. References About the SSI (n.d.). Retrieved from http://www.ncaa.org/sport-science-institute/about-ssi Arnold, J. F., & Sade, R. M. (2017). Wearable technologies in collegiate sports: The ethics of collecting biometric data from student-athletes. American Journal of Bioethics, 17(1), 67 – 70. doi: 10.1080/15265161.2016.1251648 Arrison, R. (2019). “You’re wearing that?”: Why data generated from wearable technology should be protected under privacy law. The Sports Lawyers Journal, 26(1), 211 – 227. Branch, T. (2011, October). The shame of college sports. The Atlantic. Retrieved from https://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/ Gartland, D. (2017, July 31). UCF Kicker Ruled Ineligible After YouTube Channel Gets Him in Trouble with NCAA. Sports Illustrated. Retrieved from https://www.si.com/college-football/2017/07/31/ucf-kicker-donald-de-la- haye-ineligible-ncaa-youtube-videos Harris, R. (2018, October 15). If your medical information becomes a moneymaker, could you get a cut? NPR. Retrieved from https://www.npr.org/sections/health-shots/2018/10/15/657493767/if-your-medical- information-becomes-a-moneymaker-could-you-could-get-a-cut Health Education Center (n.d.). Retrieved from http://www.ncaa.org/sport-science-institute/health-education-center Henneke, R., & Riches, J. (2018, November 16). Attorneys: UCF’s De La Haye settles for a bright future off the field. Or- lando Sentinel, Retrieved from https://www.orlandosentinel.com/opinion/os-op-ucf-kicker-de-la-haye-success-story- 20181116-story.html

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Karkazis, K., & Fishman, J. R. (2017). Tracking U.S. professional athletes: The ethics of biometric technologies. The American Journal of Bioethics, 17(1), 45-60. doi: https://doi.org/10.1080/15265161.2016.1251633 Klossner, D., Corlette, J., Agel, J., & Marshall, S. W. (2009). Data-driven decision making in practice: The NCAA injury surveillance system. New Directions for Institutional Research, 144(1), 53 – 63. doi: https://doi.org/10.1002/ir.313 Kobritz, J.I., & Levine, J.F. (2013). The show-cause penalty and the NCAA scope of power. Sports and Entertainment Law Journal,3(1), 29–48. Doi: https://doi.org/10.1123/jlas.2017-0001 Lemire, J. (2017, August 10). Rise Science Adds Alabama Football to Growing Sleep Coaching List, Sport Techie.Retrieved from https://www.sporttechie.com/rise-science-adds-alabama-football-growing-sleep-coaching-list Lumpkin, A. (2017). Commercialism in college sports undermines athletes’ educational opportunities and rights. In E. Comeaux (Ed.) College Athletes’ Rights and Well-Being: Critical Perspectives on Policy and Practice (pp. 101 – 112). Baltimore, MD: Johns Hopkins University Press. Lush, G. (2015). Reclaiming student athletes’ rights to their names, images, and likenesses, post O’bannon v. NCAA: Analyzing NCAA forms for unconscionability. Southern California Interdisciplinary Law Journal, 24(3), 767-804. McCormick, R. A., & McCormick, A. C. (2006). The myth of the Student-Athlete: The college athlete as employee. The Washington Law Review, 81(1) 71 – 157. http://digital.law.washington.edu/dspace- law/bitstream/handle/1773.1/262/81washlrev71.pdf McLellan, M. L., Gaither, R., McCurrach, E., & Feldstein, R. M. (2018, December 17). Wearables in the arena: The shifting legal landscape governing ﬁtness trackers in professional sports. Data Privacy Monitor. Retrieved from https://www.dataprivacymonitor.com/internet-of-things/wearables-in-the-arena-the-shifting-legal-landscape- governing-ﬁtness-trackers-in-professional-sports/#page=1 Shared NCAA research data (n.d.). Retrieved from http://www.ncaa.org/about/resources/research/shared-ncaa- research-data Smolenski, G. (2019). When the collection of biometric and performance data on college athletes goes too far. Wake Forest law Review, 54(1), 279 – 301. Tracy, M. (2016, September 9). With wearable tech deals, new player data is up for grabs. The New York Times. Retrieved from https://www.nytimes.com/2016/09/11/sports/ncaafootball/wearable-technology-nike- privacy-college-football.html Warren, S., & Brandeis, L. (1890). The right to privacy. Harvard Law Review, 4(1), 193 – 220.

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Technology Keeping up with the Law

Abstract ID: 63

Prof. Gil Fried (UNH)

Presentation Summary: This presentation will examine how new trends are developing legal headaches across the world. Are disruptive technologies really good, really bad, or presenting legal concerns that many did not think about when the idea/concept was launched? Special attention will be given to trampoline parks, scooter rentals, and bike sharing companies and the various legal issues they are generating. Abstract: One of the most famous tort law cases is the famed decision penned by Learned Hand in The T. J. Hooper case (T.J. Hooper v. Northern Barge Corp, 60 F2d 737(2nd Cir. 1932). In that case, a ship did not have ship to shore radio. They argued that while some ships were starting to use such radios, they had not yet purchased them. The court concluded that while the industry standard was not yet for all ships to have them, the court felt that they should. This is the same underlying principal when it comes to new technologies such as the recent boom in trampoline parks, scooter rentals, and bike sharing companies. They are new, but not necessarily well regulated and the legal issues are just starting to arise. They have exploded onto the scene with very little oversight, and there have now been an epidemic of injuries and the associated companies have generated significant public concern and litigation. “Trampoline Park Injury Lawyer” (https://www.torhoermanlaw.com/personal_injury_lawsuit/trampoline-park- injury-lawyer/) That is the header for a law firm trying to attract injured individuals from trampoline parks to sue. The trampoline park industry has been the Wild West. The Sky Zone has six franchises in Massachusetts and from 2011-2018 there were 240 calls from those facilities for ambulance, fire or police assistance with injured jumpers. The most common injuries were to legs and ankles (Alulema and Rasmussen, 2018). Until 2017 there were no state regulations associated with trampoline parks. State lawmakers in Utah recently passed a new law to try to make trampoline parks safer. Utah joins at least seven other states requiring more oversight from insurance companies and annual inspections. Utah’s law- Trampoline Park Safety Standards Act (H.B. 300 Trampoline Park Safety Standards Act (2017)) requires trampoline parks to comply with certain safety and administrative requirements, requires inspection of certain records, and requires inspection of trampoline parks. In response to the deaths and injuries, the International Association of Trampoline Parks has said: “There are parks that do not adhere to industry technical standards, and do not operate with safety at the forefront of their agendas.” To help address the issues and concerns, IATP has launched an initiative to require third-party inspections to ensure the safest experience possible. It is not just trampoline parks facing significant injuries. Scooters and ride sharing devices raise a number of concerns. An Indianapolis woman suffered life-threatening injuries this summer (2019) while riding a Lime scooter and is suing the company for negligence, The lawsuit claims the devise was “defective” and had several design flaws, including a “sticking” of the scooter’s accelerator, small wheels that made it unstable, and a sudden and rapid acceleration (Hill, 2019). It is not all about injuries. A disabled advocate is suing the city of Minneapolis and two electric scooter sharing companies, alleging the vehicles have made sidewalks inaccessible. For the disabled (Sepic, 2019). This follows-up on a suit filed in a federal district court in January, 2019 against the city of San Diego and scooter rental companies Lime, Bird and Razor for failing to prevent people from riding or parking scooters on sidewalks- thus impacting the disabled. Riding motorized scooters on sidewalks is illegal under California law. So is parking them in such a way

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that blocks pedestrian or disabled access to public walkways. In 2018, the San Diego Police Department issued 551 citations issued to people for riding a scooter on the sidewalk. Police issued more than four times as many citations to people riding without a helmet, which is now no longer a legal violation. A small study reviewed e-scooter injuries at two emergency rooms in Los Angeles (Ronald Reagan UCLA Medical Center and UCLA Medical Center), from September 2017 through August 2018. The study found 250 injuries with 80% of the injuries occurring to riders themselves (Bennet, 2019). A separate CA class action lawsuit was ﬁled initially by eight people injured by scooter drivers who hit them when they were walking on the sidewalks. The suit accuses two of the largest e-scooter companies, Lime and Bird, as well as other e-scooter ﬁrms, of “gross negligence” and “aiding and abetting assault.” (Holley, 2018). These are just some examples that help show the Wild West related to new sport products/activities and how the law is trying to catch-up with these new technologies.

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Testosterone Level Regulations for Female Athletes: Is There Truly an Appropriate Level for Cisgender, Transgender and DSD Females?

Abstract ID: 71

Dr. Angie Smith-Nix (University of Arkansas), Dr. Merry Moiseichik (University of Arkansas), Dr. Jean Henry (University of Arkansas)

International, national and state level sport governing bodies are racing to find a response to the question of “What are appropriate testosterone limits for female athletes?” The age of expanding gender classifications seems to be setting hurdles for sport governing bodies that are searching for a smooth, equal finish line for female athletes. The IAAF Council reviewed research findings of their previous maximum 10 nanomole testosterone levels for female athletes and determined that it should be cut that in half, limiting testosterone maximum to 5 nanomoles. While trying to provide opportunities for all females, the IAAF determined that all female runners, be they cisgender, transgender or athletes with DSD, must present with testosterone levels that are within ‘female’ testosterone ranges. The Court of Arbitration for Sport in Lausanne, Switzerland ruled that women with higher testosterone levels could not compete in races of 800 to 1500 meters, unless they take testosterone suppressors to drop testosterone to the 5 nanomoles level. CAS was hearing a complaint brought by Caster Semenya, a two-time Olympic 800 meter champion, whose naturally occurring testosterone levels are above 10 nanomoles. Caster argued that the 5 nanomole levels would block her from competing in IAAF and IOC 800 and 1500 meters events, when she has never taken testosterone. Why only limit the middle-distance runner testosterone levels? In part, because of the advantage testosterone has given in these races and part because there are extremely high number of female middle-distance runners who have hyperandrogenic testosterone levels. Stateside, the U.S. Supreme Court is deciding whether LGBTQ persons should be a protected class in in the U.S. and the Senate is struggling with the Equality Act. At the university level, CeCe Telfer led Franklin Pierce University in New Hampshire to their first DII Track and Field Title. A brief 15 months earlier, CeCe competed on the FPU Men’s Track Team, but following 12 months of testosterone suppression, she ran for the Women’s Team. NCAA Transgender Regulations do allow transgender female athletes to compete with at least 12 months of testosterone suppressing treatment, nonetheless this has caused some to question the appropriate testosterone levels for female athletes, whether they are transgender, intersex or hyperandrogenic females. Rounding out the athlete testosterone debate at the high school level, The Alliance De- fense Federation filed a Title IX complaint with the U.S. Department of Education Office for Civil Rights on behalf of parents of three minors who are track athletes in Connecticut. The ADF motion was filed against the Connecticut In- terscholastic Athletic Conference & Glastonbury Board of Education (OCR Complaint No. 01-19-4025 & 01-19-1252). The filing asserts that the minor female runners were denied equal athletic benefits and opportunities due to the Connecticut Interscholastic Athletic Conference Transgender Policy that allows Transgender athletes to compete on female teams based on gender identity. While the NCAA and other state athletic organizations allow transgender athletes to participate, they stipulate that transgender female athletes complete 12 months of testosterone suppressors prior to competing on a female team. However, Connecticut does not have a testosterone suppression pre- competition requirement. The complaint also named the Glastonbury Board of Education due to the fact that they did not challenge and seek changes of the CIAC Transgender Policy in order to protect the females’ equal athletic competition opportunities of the named minor athletes in their school system. Another section addresses the issue of retaliation of the coaches against the complainant’s advocacy against the policy by disallowing them to serve as team captains and another coach stating that they could not recommend one of the complainants to colleges

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because of their efforts to question the CIAC Policy. The OCR is investigating the merits of the Title IX complaint. How can programs provide an equal playing field when the female athlete regulations varies so greatly between the competition levels? Presenters will share findings on testosterone regulations for collegiate and international female athletes. Attendees will get a snapshot of the physiological impact of testosterone throughout various stages of development. Updated maps of state legislation will be shared to better explain their role in High School Athletic Association policies. References Anderson, E., & Travers, A. (2019). Transgender athletes in competitive sport. London Routledge. Brechlin, D. (2019, June 20). Connecticut high school transgender athletes ‘no longer want to remain silent’ following Title IX complaint. Retrieved from courant.com website: https://www.courant.com/sports/high-schools/hc-sp- transgender-policy-runners-respond-20190619-20190620-5x2c7s2f5jb6dnw2dwpftiw6ru-story.html Complaint Filed with the U.S. DOE Office for Civil Rights. (2019, June 17). Retrieved October 18, 2019, from ADFLegal.org website: https://adflegal.blob.core.windows.net/mainsite-new/docs/default-source/documents/legal- documents/selina-soule—title-ix-complaint/selina-soule—title-ix-complaint—complaint-filed-with-u-s-doe-office- for-civil-rights-(2019-06-17).pdf?sfvrsn=4e2231c5_6 Connecticut Law Tribune Editorial Board. (2019, June 7). Is There A Way To Protect All Females Under Title IX? | Connecticut Law Tribune. Retrieved October 18, 2019, from Connecticut Law Tribune website: https://www.law.com/ctlawtribune/2019/06/07/is-there-a-way-to-protect-all-females-under-title-ix/ Forrest, J. (2019, August 15). Common sense, and Title IX, need to prevail. Retrieved October 18, 2019, from The CT Mirror website: https://ctmirror.org/category/ct-viewpoints/common-sense-and-title-ix-need-to-prevail/ https://adflegal.blob.core.windows.net/mainsite-new/docs/default-source/documents/legal-documents/selina- soule—title-ix-complaint/u-s-doe-office-for-civil-rights-investigation-letter-(2019-08-07)—selina- soule.pdf?sfvrsn=c451c07f_4. (2019, August 7). Retrieved from ADFLEgal.org website: https://adflegal.blob.core.windows.net/mainsite-new/docs/default-source/documents/legal-documents/selina- soule—title-ix-complaint/u-s-doe-office-for-civil-rights-investigation-letter-(2019-08-07)—selina- soule.pdf?sfvrsn=c451c07f_4 Liptak, A., & Peters, J. (2019, October 8). Supreme Court Considers Whether Civil Rights Act Protects L.G.B.T. Workers. The New York Times. Retrieved from https://www.nytimes.com/2019/10/08/us/politics/supreme-court-gay- transgender.html Maese, R. (2019a, May 1). Court Rules Olympic Runner Caster Semenya Must Use Hormone-Suppressing Drugs To Competete. Retrieved from washingtonpost.com website: https://www.washingtonpost.com/sports/2019/05/01/court-decides-against-caster-semenyas-appeal-controversial- rule/ Maese, R. (2019b, May 19). Stripped of Women’s Records, Transgender Powerlifter asks, “Where do we draw the line?” Retrieved from washingtonpost.com website: https://www.washingtonpost.com/sports/2019/05/16/stripped- womens-records-transgender-powerlifter-asks-where-do-we-draw-line/ Morton, V. (2019, June 3). CeCe Telfer, Franklin Pierce transgender hurdler, wins NCAA women’s national championship. Retrieved October 18, 2019, from The Washington Times website: https://www.washingtontimes.com/news/2019/jun/3/cece-telfer-franklin-pierce-transgender-hurdler-wi/ NCAA Inclusion of Transgender Athletes. (2011). Retrieved from NCAA.org website: http://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf Pell, S. (2019, June 19). Girls Say Connecticut’s Transgender Athlete Policy Violates Title IX, File Federal Com- plaint. Retrieved from washingtonpost.com website: https://www.washingtonpost.com/sports/2019/06/19/girls-say- connecticuts-transgender-athlete-policy-violates-title-ix-file-federal-complaint/

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R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. (2019). Re- trieved from scotusblog.com website: https://www.scotusblog.com/case-ﬁles/cases/r-g-g-r-harris-funeral-homes-inc- v-equal-opportunity-employment-commission/

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The Baseball Rule and how the changing nature of the sport leaves potential for change

Abstract ID: 84

Prof. Michael Gentile (Niagara University), Dr. Patrick Tutka (Niagara University)

Few examples exist within the sport world of what would be largely considered settled law, as the sport world, especially as it comes to tests in the courtroom are relatively new. Within the last several years, significant cases, with significant potential impacts have came through the American court system, such as O’Bannon v. NCAA,(2015), Murphy v. NCAA(2017), and many others have had significant impacts throughout the sports arena. One area where this is not the case, is in what is known as the baseball rule, as originally set by Crane v. Kansas City Baseball and Exhibition Co., (1913). Historically, lawsuits brought by fans due to injuries suffered by batted balls or bats were based upon negligence theory. Under the baseball rule, courts held that professional baseball teams are not liable for injuries sustained by fans hit by bats or balls leaving the field of play, so long as the teams have taken minimal precautions to protect their spectators from harm. Specifically, the Baseball Rule imposes a legal duty of care upon professional teams to merely implement two safety measures. First, teams are generally expected to install protective netting to shield the “most dangerous area” of their stadiums, determined by courts to be the seats located immediately behind home plate and second, teams must also maintain a sufficient number of screened seats to meet the anticipated consumer demand for protected seating during an average game. (Grow & Flagel, 2018). Coupling this minimal standard with the broad application of assumption of risk as a defense and the increased use of waivers and warnings, teams and stadiums have consistently been deemed to have met their duty of care and will not be found liable for injuries to fans. While the baseball rule, with the few noted exceptions above has largely stayed the same, the game has gone through significant progression. The game played in 1913, looks similar to the game played today in the rule book. But that is where the similarity ends. The goal of the current project is to look at how the changes within the game within the last three years, have left potential for the baseball rule to be challenged in new and different ways. Following significant injuries over the last few years (Bregman & Axelrod, 2019; Tak, Nguyen, Enoch & Lehren, 2019; Wiltz & Kepner, 2019), Major League Baseball (MLB) and Minor League Baseball (MILB) have instructed their teams to increase the amount of netting surrounding the field of play (Gleason & Schad, 2019). MLB required the netting to reach beyond the dugouts following the 2018 season (Acquvella & Axisa 2019), with several teams extending them to the foul poles during the 2019 season. According to one study, 2019 saw 16 cases of foul balls and bats injuring fans at MLB stadiums and another five at MILB parks (Gutierrez, 2019). The same study found five MLB teams and seven MILB parks extended their netting beyond the mandated end of the dugout (Gutierrez, 2019). Following the 2019 season six more were planning to extend in MLB and 11 more in MILB (Gutierrez, 2019). Another area that has drawn significant discussion is the changes in the baseball since the 2014 season. One area where this is shown is a 60 percent increase in home runs since the 2014 season with new total home run records in 2017 and 2019 (Passan, 2019; Yomtov, 2019). Several studies have shown that the baseball has changed between 2014 and 2019. The most commonly cited study, which was later supported by MLB comes from Arthur (2017), which showed that the core was less dense in 2017 than in 2016 or before which decreased the drag on the baseball, increasing home runs and exit speeds of baseballs (Anderson, 2019). Another interesting piece of the challenges for spectator safey is an almost 12 percent increase in the number of foul balls in 2018 (the year of the study) and 1998 (the year MLB expanded to 30 teams (Sawchik, 2019). This 12 percent works out to almost 14,000 more foul balls over the course of a season (Sawchik, 2019). Combined with findings that show the fan is 20 percent closer to

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the field than when the Baseball Rule was implemented in 1913 leaves baseball in an interesting situation (Grow & Flagel, 2018). More and more balls are reaching the seats, which can be shown by the decrease in foul ball outs from over 4,200 in 2003 to just over 3,200 in 2016 (Sawchik, 2019). Given the changes in stadium construction, baseball manufacturing, increased fan injury and simply by the way the game is now played, there is a need to create a more stringent standard of care for stadiums and teams to protect fans from injury. Further need for an enhanced or modern standard stems from the distractions now created to enhance the fans experience at games. The question becomes how to create a new standard and how can it be applied to modern cases? Such a standard may evolve from the safety netting precautions employed by more professional stadiums, standards employed by Japanese professional baseball and safety standards implemented in hockey arenas, creating a standard in the sport facility industry. Causes of action based in something other than negligence theory can be explored. Finally, many states currently have statutes which codify some version of the baseball rule (eg. Arizona, New Jersey). These statutes can be modified and in states without them, passed to more accurately reflect the nature of the game as it is now played. Furthermore, it is through statutory measures that laws can be flexible enough to impose a legal standard and financial burden on high level professional organizations while allowing colleges, school districts and recreation programs to meet standards that are more reflective of the nature of their level of play. This paper will analyze the justification for an enhanced standard of care placing greater responsibility on professional teams and facilities, what elements can be used to create such a standard and how it may be incorporated in to the decision making of courts that are asked to hear these cases.

137 Sport and Recreation Law Association Conference

The Changing Tide of Liability for Collegiate Club Sports

Abstract ID: 13

Dr. William Ramos (Indiana University), Dr. Sarah Young (Indiana University)

Keywords: College, University, Student, Organizations, Liability

In September of 2017, a freshman who had joined a caving club at a midwestern university, went on an outing with the club. The group visited a cave on an expedition targeted for students with little or no caving experience. After several hours of the expedition, in which a group of 12 students (including the leader) participated, the group loaded up the van and headed back to campus. Unfortunately, the freshman student had become separated from the others in the group and was left behind. For safety purposes there was gate on the cave entrance, and the leader had locked the gate prior to leaving the premises. The student left behind survived in the cave for 58 hours before it was discovered he had not arrived back on campus and was rescued. While the student suffered no physical injury, this scenario illustrates the legal risks of student sport clubs on colleges and universities today! Club sports have long been a part of campus life (Lifschutz, 2012) because of the popularity of sport participation, and because of the wide scope of skill levels accommodated (Mull, Forrester, & Barnes, 2013). Defining club sports varies by institution although the NIRSA: Leaders in Collegiate Recreation has defined campus club sports as “student-run organizations with a shared interest in a particular competitive sport” (Dugan, Torrez, & Turman, 2014). But, because campus club sports are typically initiated, organized, and conducted by students, the question of who is liable for injuries, poor decision-making, or mishaps becomes a focal point. Over a century ago, in loco parentis was the legal theory held by the courts for colleges to oversee its students (Gott v. Berea College, 1913). While this doctrine allowed institutions to govern their students much like parents govern their children, in loco parentis entrusted a college with immense authority and responsibility for its students and was actually viewed as a source of legal immunity, not a legal duty (White, 2005). By the 1980s, with dramatic societal changes having occurred, educational institutions were no longer standing in loco parentis (Bradshaw v. Rawlings, 1979) for their students. Furthermore, the movement away from in loco parentis created concerns by club faculty sponsors in how to interpret indemnification for liability since clubs were required to identify a faculty sponsor. Student sport activities are generally viewed positively because they are instrumental in boosting school spirit in its participants and are an extremely effective marketing tool for attracting prospective students. While students are not highly recruited for club sports, many colleges and universities promote their recreational sport programs (i.e., intramural and club sports) as tools for student recruitment and retention, as well as academic success (Vasold, Deere, & Pivarnik, 2019). In the late 1990s, courts recognized a special relationship between student-athletes and the institution meaning that universities could be found liable for harm to these students (Kleinknecht v. Gettysburg College, 1993; Davidson v. University of North Carolina at Chapel Hill, 2001). The literature (White, 2005) suggests that courts might find club sport athletes’ special relationship to the institution potentially giving rise to liability for injuries. The special relationship theory mandates a critical review of who is actually controlling club sports. Is it the campus recreation department or is it the students? The answer to this question has important legal consequences! Today universities are once again searching for the best option to avoid liability for student club sports. As illustrated by the caving scenario and its consequences for liability, institutions are not comfortable being linked with “student-run” organizations, including club sports. A growing list of institutions are re-classifying their student organizations so the connection between club activity and the university is minimal. As an example, Indiana

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University informed their club sports programs at the start of the 2019-20 school year the clubs were re-classiﬁed as “self-governed student organizations” (SGSO) sending students into a tailspin at the loss of access to university resources and liability protection. The purpose of this presentation is to investigate the legal issues involving club sports on today’s university campuses. A review of case law will illustrate how responsibility for delivery of club sports has changed throughout the past century, and anecdotal examples will demonstrate how it continues to evolve today. The presentation will focus on the new model currently being adopted by many institutions as a shield from liability, and the potential consequences of its implementation. References: Dugan, J. P., Torrez, M. A., & Turman, N. T. (2014). Leadership in intramural sports and club sports: Examining inﬂuences to enhance educational impact. Corvallis, OR: NIRSA. Lifschutz, L. (2012). Club sports: Maximizing outcomes and minimizing risks. Recreational Sports Journal, 36, 104- 112. Mull, R. F., Forrester, S. A., & Barnes, M. L. (2013). Recreational Sport Programming (5th ed.). Champaign, IL: Sag- amore Publishing. Vasold, K. L., Deere, S. J., & Pivarnik, J. M. (2019). Club and intramural sports participation and college student academic success. Recreational Sports Journal, 43(1), 55-66. White, N. (2005). Sports: Taking one for the team: Should Colleges be liable for injuries occurring during student participation in club sports? Vanderbilt Journal of Entertainment and Practice, 7, 193-207. Cases: Bradshaw v. Rawlings, 612 F.2d 135, (3d Cir. 1979) Davidson v. University of North Carolina at Chapel Hill, 543 S. E.2d 920 (N.C. Ct. App. 2001) Gott v. Berea College, 161 S. W. 204, (Ky. 1913) Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993)

139 Sport and Recreation Law Association Conference

The Legality of Symptom Reporting in Student-Athletes with Concussions

Abstract ID: 49

Ms. Annika Martensson (UNC- Chapel Hill)

What is the reasonableness of symptom self-disclosure for student-athletes with a brain injury? While the study of concussions and other traumatic brain injuries has gained medical attention over the past decade, brain injuries are still misdiagnosed and misunderstood. According to a study done on Football Subdi- vision Players, for every one diagnosed concussion, there are six suspected concussions and 21 “bell-ringers” or “dings” (Washington-Childs 2018). Lack of concussion diagnosis from medical personnel and student-athletes alike takes place at all levels of athletic competition, from the NFL to high school ranks. In 2015, 48% of major college football schools in the NCAA did not publicly report a concussion (Washington-Childs 2018). This clear under-diagnosis comes despite the attention that the media pays to concussions. In their research, Miyashita et al. state that many high school athletes are under-educated regarding the seriousness of a concussion and often fail to recognize when they have sustained a potential brain injury and do not report these injuries when they do happen (2014). Despite medical personnel knowing more about concussions than ever before, student-athletes still fail to report symptoms of suspected injuries (Miyashita et al. 2014). Many concussion test protocols rely on symptom-reporting as one of the main tools used to diagnose and initiate return-to-play protocol. Student-athletes in most states are educated regarding the signs and symptoms of a concussion, so why is it that student-athletes are failing to report concussion symptoms when they experience them? A concussion is a type of traumatic brain injury caused by a bump, blow, or sudden jolt to the head that causes the brain to bounce around inside the skull (Center for Disease Control 2019). Concussions are deﬁned as mild brain injuries, but symptoms can be temporarily, and sometimes even permanently, debilitating physically, emotionally, and mentally. Aside from the physical symptoms of a concussion (i.e. headache, nausea), concussions can impede cognitive abilities, focus, and concentration; including, inability to recall events prior to or after a hit/fall, trouble making decisions, and personality/mood changes. In law, a tort is a private wrong where an injury suffered is a result of another individual’s conduct. The individual who caused the harm can be found guilty of intentional or negligent tort. In order to prove negligence, meaning that the individual did not mentally intend to cause the harm, the plaintiff must prove that there was a duty of care that was breach that caused actual harm to the plaintiff (Cotton and Wolohan 2013). The case of Pinson v. State (1995 Tenn. App. Lexis 807) focused on the duty portion of negligence of the athletic trainer to a student-athlete. Michael Pinson sustained a blow to the head during a football practice and collapsed unconscious, remaining so for about 10 minutes. During this time, the athletic trainer examined Pinson. After regaining consciousness, the athletic trainer sent Pinson the hospital to be examined by a physician but the athletic trainer never spoke to the physician regarding Pinson’s injuries. Pinson was released from the hospital and given Empirin #4 for his headache. Despite Pinson continuing to complain to his athletic trainer of a headache over the ensuing week, the athletic trainer called the attending physician and reported that Pinson was asymptomatic. The physician, relying on the athletic trainer’s report, did not examine Pinson and cleared him for athletic participation. Over the next month, Pinson suffered headaches, blurred vision, dizziness, and nausea. Despite reporting these symptoms to the athletic trainer, Pinson practiced, traveled, and played throughout the month. One month after the initial head injury, Pinson collapsed during a football practice, was taken to the hospital, and remained in a coma for several weeks, suffering permanent damage. The trial was held before a Tennessee Claims Commissioner

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who held that the athletic trainer had a duty to report Pinson’s initial neurological signs and subsequent headaches to a medical physician (Osborne 2001). The doctrine of contributory negligence most typically occurs when an athlete volunteers to participate in a sport despite warnings not to or that participation in sport in unreasonable. If an athlete is found contributorily negligent, the medical professional is not liable for the injuries incurred by the athlete. Importantly, an athletes can also be found guilty of contributory negligence if he/she lies about the medical condition or omits important medical information regarding medical status to a health professional. Student-athletes who have sustained a potential concussion should not face contributory negligence charges because they are at a diminished mental capacity. A traumatic brain injury, like a concussion, alters the brain’s function, at least temporarily, and can have a significant impact on the student-athlete’s ability to think and reason rationally (Center for Disease Control 2019). A student-athlete may not be able to accurately report symptoms from a concussion immediately after the event, such as a headache or nausea, as the adrenaline from the event or even collision itself might be impairing detection of the symptoms. In the case of Jarreau v Orleans Parish School (La. App. 4th Cir. 1992), Darrin R. Jarreau, a high school football player for Orleans Parish School, injured his wrist in a game when it struck another player’s helmet. Jarreau’ coaches did not withhold him from any practices/games. Despite being in pain, Jarreau did not inform medical professionals the severity of his symptoms. Jarreau was not informed of the significance of the injury to his wrist and continued to play the rest of the season. At the end of the season and at Jarreau’s request, the team trainer, Henry Dunbar, referred him for treatment to Dr. Michael Brunet, a board-certified orthopedist who specialized in sports medicine. Dr. Michael Brunet performed two surgical operations on Jarreau to fix the injury but concluded that Jarreau would have permanent limitations with his wrist movement, which would preclude vigorous manual labor. In this case, the court ruled that football player’s action had not prescribed, because the football player did not discover his injury until it was diagnosed. After a trial on the merits, the jury decided that both Henry Dunbar and Michael Sims were negligent and their negligence was the legal cause of damages to Darrin R. Jarreau. However, the court held that Jarreau was partly responsible for delaying treatment for the wrist, and reduced the trial court’s damage award by one-third. The court noted that the football player knew he was experiencing pain yet failed to consult a physician on his own. Assumption of risk states that an athlete can legally assume the risk of harm by opting to play with a known medical condition of injury, thereby removing the liability of the athletic trainer. This legal doctrine is based on the principle that no harm is done to one who knowingly and willingly consents. In order for an athletic trainer or other medical professional to argue assumption of risk, he or she must prove that the athlete knew of the risk (or that a reasonable athlete would have known the risks) and that despite knowing the risks, the athlete agreed to accept the risk expressly or by implied consent. In the case of a student-athlete who has sustained a potential brain injury or concussion, it is important to note that this student-athlete is likely physically incapable of appreciating the health risks of continuing to play after the injury. An athlete who has sustained a brain injury cannot be held legally responsible for their inability to adequately articulate their symptoms to medical professionals. Consent is defined differently state-by-state; however, it is generally agreed upon that to give consent, one must have the mental capacity to make a decision and understand the consequences (Cotton and Wolohan 2013). Concussions affect the functioning and processing abilities of the brain and some of the potential effects can include difficulty making decisions, diminished mental capacity, trouble concentrating, and mental fogginess. All of these cognitive effects would impact a student-athlete’s ability to recognize and report symptoms symptoms to medical professionals. Informed consent is the legal principle that a competent adult has the right to determine what to do with his or her body. Consent must represent an informed decision regarding the risks or participation and treatment. Collegiate

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student-athletes who are adults must give informed consent in regards to their physical and mental health in order to receive treatment or care from a medical professional. However, if the student is unable to give consent, and the situation appears to be life-threating, the medical personnel present have the liberty to “act as any reasonable medical professional would” (Osborne 2001). Consent is defined differently state-by-state; however, it is generally agreed upon that to give consent, one must have the mental capacity to make a decision and understand the consequences (Cotton and Wolohan 2013). Concussions affect the functioning and processing abilities of the brain and some of the potential effects can include difficulty making decisions, diminished mental capacity, headaches, trouble concentrating, and mental fogginess or slowness. A student-athlete who has sustained a concussion or a suspected concussion cannot make decisions that impact their short and long-term health. When the brain is compromised from a blow to the head or a suspected concussion, consent is no longer possible; the student-athlete is mentally and physically impaired. In Classen v Izquierdo (1997), Classen, a professional boxer lost consciousness during the tenth round of the fight, and although the physicians rendered emergency medical care, he died five days later. Classen’s widow claimed that her husband’s death was caused by the negligence in allowing the match to proceed into the tenth round. The physicians argued that Classen willingly participated in the event and assumed all risks inherent in the sport, including negligence on their part. The court granted summary judgment for the boxing facility and denied the motion on the claims against the physicians to determine their negligence. The facility met its duty to avoid reckless or intentional acts, and the boxer knew or should have known of the risks of injury inherent in boxing. The physicians were independent contractors and their negligence was not imputed to the facility. It is unreasonable for a student-athlete in a medically-compromised state to be held legally responsible for their decision or lack thereof to report symptoms. The brain’s ability to make decisions and understand the consequences is severely impaired after sustaining a potential concussion. Student-athletes can neither give informed consent nor properly assume risks after sustaining a blow to the head and therefore should not be held contributorily negligent for their inaccuracy in symptom-reporting. The ownness must fall on coaches, athletic training staff, and medical personnel to properly and effectively evaluate the student-athlete for a traumatic brain injury. Concussion tests cannot rely solely on student-athlete symptom-reporting. Doctors and athletic trainers must evaluate their student- athletes based on physical examinations and computerized testing in order to supplement potentially inadequate student-athlete symptom reporting.

142 Sport and Recreation Law Association Conference

The Risk of Risk Management Plans

Abstract ID: 83

Prof. Amanda Siegrist (Thomas More University), Dr. Matt Lovett (ULM), Dr. Colleen McGlone (Coastal Carolina University)

This presentation will provide a look into the creation of risk management plans and the potential liability they can create if not structured carefully. By examining cases and sample risk management plans, an analysis of best practices in writing and implementing a risk management plan will be discussed. Further, an analysis of when words can make a party negligent will be addressed. When words or actions induce reasonable reliance by a party, and consequently causes unreasonable risk of foreseeable harm to them, then the offending party can be found liable (Sims, 1992). “The use of the words safe and safety in marketing materials, on a website, or in a risk management program can be twisted around to a guarantee of safety and risk-free participation and can be used against you in a lawsuit” (Sadler, n.d.). This presentation will provide an analysis of effective risk management plans, and consequently in marketing materials, and the careful language necessary in the implementation of such. By examining when language can cause a party to be negligent, best practices for risk management plans emerge. Having policies and standards created in acknowledgement of a risk, but then not following through in the practice of those policies and standards is problematic. Even if the use of a cross-guard at an event was not necessary under negligence theory standards, by saying so in a risk management plan and then failing to do so, could create liability, particularly through reliance. The presenters will detail risk management plans that proved effective for companies and organizations in litigation through an examination of past and recent lawsuits (Smith, 1900; Herbert & Brusstar, 2016). Examples of language used in media through press releases, social media, instructions and warnings will also be reviewed. “Non- libelous negligent statements have many similarities to libelous speech,” especially to ‘private’ libel resulting from negligence by the speaker. The injury in both instances will be the result of a breach of a duty to exercise care in the use of language. Furthermore, in both situations the harm will typically be both unintended and unexpected” (Weingarten, 1984, p. 751). Lastly, the presenters will also offer potential solutions to improve risk management plans and careful language. For example, the difference in “shall” versus “should” language in risk management practices. Further, organizations need to not only review the content of their risk management plan annually to identify new risks and better treat existing risks, but also to review the accuracy and effectiveness of the implementation of the plan (Risk Management, 2019). References: Herbert, D. L., & Brusstar, R. (2016, September 5). Stem the Rising Tide of Lawsuits in the Fitness Industry with Three Risk Management Steps. Retrieved October 18, 2019, from https://www.clubindustry.com/clubs/stem-rising- tide-lawsuits-ﬁtness-industry-three-risk-management-steps. K., C. M. (1998, February 1). Loopstra Nixon LLP, Barristers & Solicitors. Retrieved October 18, 2019, from http://www.loopstranixon.com/resources/archive/liability-for-negligent-misrepresentation-and-other- employee-errors-and-omi. Risk Management, Disaster Planning and Protecting Against Crime. (n.d.). Retrieved October 18, 2019, from https://managementhelp.org/riskmanagement/index.htm. Sadler & Company, Inc. (n.d.). Retrieved October 18, 2019, from https://www.sadlersports.com/effective-risk- management-program/. Sims, A. B. (1992). Tort Liability for Physical Injuries Allegedly Resulting from Media Speech: A Compre-

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hensive First Amendment Approach. The Fordham Law Archive of Scholarship and History. Retrieved from http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1194&context=faculty_scholarship Smith, J. (1900). Liability for Negligent Language. Harvard Law Review, 14(3), 184-199. doi:10.2307/1323899 Weingarten, S. J. (1984). Tort Liability for Nonlibelous Negligent Statements: First Amendment Considerations. Yale Law Journal, 93(4), 744–762.

144 Sport and Recreation Law Association Conference

The Student Assistance Fund and International Tax Withholding: Let Me Check with My Accountant First

Abstract ID: 15

Mr. Joshua Smith (University of California, Riverside), Ms. Colleen Farrell (East Tennessee State University)

The presenters will review the history of the NCAA Student Assistance Fund (SAF) with an ultimate focus on whether current tax laws permit the use of such funds to pay for the tax withholdings of international student-athletes. The presentation will provide an overview of the creation of SAF along with the expenses that conferences have typically permitted to be covered by its member institutions. It will also delve into tax law, specifically the basics of tax treaties among the United States and foreign countries as well as gift tax legislation. The Student Assistance Fund was created as a merger of two previously existing funds. The Special Assistance Fund and Student Athlete Opportunity Fund had been in existence at the time of the White Settlement in 2008 (Infante). The new SAF was not limited to only those student-athletes who showed the greatest financial need (determined by Pell eligibility) as the Special Assistance Fund had been. The NCAA also adopted legislation that excluded money received via the Student Assistance Fund from being “included in determining the permissible amount of financial aid that a member institution may award a student-athlete” (NCAA, pg. 174). Each Division I conference is charged with providing guidelines for its member institutions on the permissible uses of SAF. The NCAA sets parameters for what SAF money cannot be used with each conference having broad range to otherwise restrict. Bylaw 16.11.1.8 provides that institutions and conferences “shall not use money…from the fund to finance salaries and benefits; tuition & fees, room and board, and course-related books…; capital improvements; stipends; competition-related travel expenses; and outside athletics development opportunities” (NCAA, pg. 210). Many of the permissible uses are standard across conferences including medical expenses not otherwise covered; summer school aid; exhausted eligibility aid (5th year or medical disqualification); clothing; educational supplies; emergency travel; and graduate school exam fees. The majority of conferences also permit its members to pay for a current international student-athlete’s tax withholdings with schools spending tens of thousands of dollars or more annually to help cover these expenses. While domestic student-athletes do not have their tax automatically withheld for non-qualified expenses, international students may be depending on the tax treaty agreed to between the United States and the student’s home country. The taxable (non-qualified) expenses of a scholarship include the portion of the scholarship covering room & board and stipends but exclude qualifying educational expenses such as tuition and fees and books. The tax rates vary according to the specific treaty with many international students charged 14%. Various agreements, however, do not charge a withholding for educational expenses with countries such as France and Germany prominently among them. Coaches may promise major recruits and their family that the student will incur no expenses if they attend their college or university. Even with legislative changes permitting schools to cover the cost of attendance for student- athletes, an international student-athlete may find an account balance awaiting them each term of enrollment due to the additional tax withholding. The way around this for most schools is to utilize SAF to pay the withholding tax. Not all conferences, however, permit their member institutions to use SAF for this purpose. The Internal Revenue Code (Tax Code) is a comprehensive, ever-evolving federal tax law outlining taxable income and rates requiring expert analysis to understand and appropriately apply. Due to its complexity, there are differing opinions on the application of member institutions using SAF to pay for federal tax withholdings. The presenters intend to explore those complications with the hope to give attendees a greater understanding of the Student Assis-

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tance Fund and its tax implications for both the student-athlete and institution. 2019-2020 NCAA Division I Manual Infante, J. (n.d.). Digging Into the NCAA’s Truth-Telling Numbers. Retrieved from https://www.athleticscholarships.net/2012/08/23/digging-ncaa-truth-telling-numbers.htm. Tutka, P. M., & Williams, D. (2017). The Expensive Truth: The Possible Tax Implications Related to Scholarship and Cost of Attendance Payments for Athletes. Journal of Legal Aspects of Sport, 27(2), 145–161. doi: 10.1123/jlas.2016- 0008

146 Sport and Recreation Law Association Conference

The Use of Social Media in Doping Prevention and Enforcement

Abstract ID: 20

Dr. Genni Birren (SUNY Cortland), Dr. Kerry Fischer (SUNY Fredonia)

As social media prevalence increases, it seems inevitable that it will eventually have a role in sport doping and indeed is already being used in some areas of sport doping. This presentation will examine social media use in areas of doping prevention and control and privacy and legal concerns related to such social media use. There are four primary areas that will be addressed: (1) Use of social media to conduct formal anti-doping campaigns by anti- doping organizations; (2) Use of social media by other athletes as a form of social norm creation; (3) Use of social media to monitor athlete behavior and whereabouts; and (4) Use of social media as a means to communicate with athletes in doping matters. Social media is already being used in the first two areas and the potential for it exists in the last two. Social being is already being used in anti-doping campaigns. In 2010, EdComs issued a report to the World Anti- Doping Agency (WADA) regarding how WADA and other anti-doping organizations could use social media to combat doping among youth athletes (EdComs, 2010a). The report included examples of prior social media campaigns targeted at youth, including an anti-doping one by the United States Anti-Doping Agency. EdComs also issued guidelines for how anti-doping organizations can create these social media campaigns (EdComs, 2010b). In 2014, WADA ran its first social media campaign, ‘Ask the Athlete’, which gave clean sport supporters a chance to ask questions of the WADA Athlete Committee via Twitter (WADA, 2014), and in 2017 WADA paired with the World Curling Fed- eration for #CurlClean (WADA, 2017). In 2017, UK Anti-Doping launched an annual Clean Sport Week as a social media campaign, in addition to live events (Cerebral Palsy Sport, 2019). It appears that the use of social media in anti-doping campaigns in growing and will likely continue to do so in the future. The EdComs guidelines included discussion of social media as an avenue for creating and communication social norms (EdComs, 2010b). This is done primarily through athletes engaging in social media campaigns against doping, such as the one involving athlete selfies done by the Clean Sport Collective in 2016 (Kole, 2016) or the #MyMoment campaign done by 2018 Winter Olympic Games athletes in the lead-up to the Games (Euronews, 2017). Individual athletes, such as Mathieu van der Poel and Kevin Pauwels, have also chosen to post about their doping experiences to show they have nothing to hide (Cycling News, 2017). Privacy issues arise if athletes feel pressured or even obligated to disclose their doping control information publicly on social media. UK Anti-Doping has even issued guidance to athletes regarding how to post about their doping control experiences online (UKAD, 2019). In addition to social media campaigns against doping, athletes themselves provide doping surveillance. Through social media, athletes may regulate offline behavior of other athletes through their own posting and communication with their followers (Sefiha & Reichman, 2017). For instance, United States swimmer Lilly King was openly critical of Russian swimmer Yulia Efimova’s doping allegations during the 2016 Rio Olympics, and many social media users supported King “calling out” Efimova (Horner, 2016). In this respect, athletes create a social norm by using social media to monitor each other and create instances of social control. The use of social media to monitor athlete behavior and whereabouts is a more recent issue, but one unlikely to go away. In July of 2018, United States swimmer Ryan Lochte accepted a 14-month ban for an anti-doping violation, the investigation of which was sparked by a picture he posted on Instagram where he was receiving an intravenous infusion (USADA, 2018). Although this picture was posted in a public forum, it raises questions about the use of social media posts that are not public being used against athletes in anti-doping cases. At the collegiate level in the United States, the monitoring of athlete social media by coaches and athletic administrators has raised concerns

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about athlete privacy and First Amendment rights, among others (Epstein, 2012). Although constitutional concerns do not exist for the monitoring of professional and U.S. Olympic athletes, issues around privacy do. As of now no professional sport organization or Olympic or national governing body requires that athletes grant social media access to coaches or administrators, but that could change in the future, making such access a condition of participation. It is likely that the unions in professional team sports would challenge this as a change in working conditions and thus must be collectively bargained, but independent athletes and Olympians would have no such protection. Additionally, access to social media accounts would give anti-doping agencies another method for tracking athletes’ whereabouts. Lastly, social media may be used during the doping control and enforcement process as a way to communicate with athletes. This creates more ways for the athlete to be notified of activities related to their doping tests as well as raises questions about the privacy of social media accounts and their appropriateness for official communication. At least one athlete has been notified about the opening of his B sample via social media the day before it was to be opened (Oyarzun Guiñez v. UCI, 2017). The risk is that people other than athletes may have access to an athlete’s social media account, such as agents, partners, or public relations representatives, which means that confidential notifications may be accessible to people other than the athlete. It may also make it difficult to ascertain whether the communication has reached the athlete, which could become an issue in the event the athlete faces discipline. Social media accounts are also often targeting by hackers. WADA created the ADAMS Mobile App to allow athletes to input whereabouts information and receive official whereabouts notifications, however the app is very poorly reviewed by athletes, having 1.2 stars out of 5 on Google Play (ADAMS Mobile App, n.d.) and WADA is currently developing a new whereabouts app called Athlete Central (Athlete Central, n.d.). References ADAMS Mobile App. (n.d.). Google Play. Retrieved from https://play.google.com/store/apps/details?id=com.wada.ama.whereabouts.android&hl=en_US Athlete Central. (n.d.). Google Play. Retrieved from https://play.google.com/store/apps/details?id=com.wada.athlete.central&hl=en_US Cerebral Palsy Sport. (2019, May 20). UK Anti-Doping launch Clean Sport Week 2019. Retrieved from http://www.cpsport.org/news/latest-news/uk-anti-doping-launch-clean-sport-week-2019/ Cycling News. (2017, Jan. 28). Van der Poel says riders should publish anti-doping data for transparency.Retrieved from https://www.cyclingnews.com/news/van-der-poel-says-riders-should-publish-anti-doping- data-for-transparency/ EdComs. (2010a). Social Science Research Fund: Harnessing social media to combat doping amongst young athletes. Retrieved from https://www.wada-ama.org/sites/default/files/resources/files/edcoms_final_report_2010.pdf EdComs. (2010b). Using social media to engage young people: Guid- ance for anti-doping organisations. Retrieved from https://www.wada- ama.org/sites/default/files/resources/files/edcoms_guidelines_antidoping_organisations_2010.pdf Epstein, T.L. (2012). Student-athlete.o: Regulation of student-athletes’ social media use: A guide to avoiding NCAA sanctions and related litigation. Mississippi Sports Law Review, 1(1), 1-36). Euronews. (2017, March 11). 2018 Winter Olympic athletes launch anti-doping campaign #MyMoment. Eu- ronews.Retrieved from https://www.euronews.com/2017/11/03/athletes-unite-against-doping Horner, S. (2016, Aug. 8). Twitter’s cold war trash talk after Lilly King wins. Retrieved from https://www.indystar.com/story/sports/college/indiana/hoosier-insider/2016/08/08/twitter-enjoys-lilly-kings- gold-medal-performance-against-russian/88437096/ Kole, W.J. (2016, Nov. 19). Selfies: Latest tool in anti-doping campaign by athletes. The Christian Science Moni- tor.Retrieved from https://www.csmonitor.com/USA/Society/2016/1119/ Selfies-Latest-tool-in-anti-doping-campaign-by-athletes Oyarzun Guiñez v. Union Cycliste Internationale (UCI) & UCI Anti-Doping Tribunal (UCI-ADT) & Pan American Sports

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Organization (PASO) & Chilean National Olympic Committee (CNOC), Arbitration CAS 2016/A/4828 (May 31, 2017). Seﬁha, O., & Reichman, N. (2017). Social media and the doping of sport surveillance. Sociology Compass,10, 1-11. UKAD. (2019, Feb 21). Advice to athletes on sharing doping control experiences on social media. Retrieved from https://www.ukad.org.uk/news/article/advice-to-athletes-on-sharing-doping-control-experiences-on-social-media USADA. (2018, July 23). U.S. Swimming athlete Ryan Lochte accepts sanction for anti-doping rule violation. Retrieved from https://www.usada.org/sanction/ryan-lochte-accepts-doping-sanction/ WADA. (2014, Sept. 19). WADA launches “ask the athlete’ social media campaign. Retrieved from https://www.wada- ama.org/en/media/news/2014-09/wada-launches-ask-the-athlete-social-media-campaign WADA. (2017, Jan. 30). WCF and WADA team up to promote anti-doping campaign - #CurlClean. Re- trieved from https://www.wada-ama.org/en/media/news/2017-01/wcf-and-wada-team-up-to-promote-anti-doping- campaign-curlclean

149 Sport and Recreation Law Association Conference

The USWNT is still crying out “Equal Play, Equal Pay!”

Abstract ID: 54

Ms. Isabella Martin (Texas A&M University), Dr. Natasha Brison (Texas A&M University)

The United States Women’s National Team (USWNT) is looking to come out on top once again, except this time on a different type of playing field. The team, four-time Fédération Internationale de Football Association (FIFA) World Cup and Olympic Champions, has yet to prevail in their pursuit of equal pay. After not receiving adequate compensation or the desired changes to their Collective Bargaining Agreement (CBA) in their 2016 Equal Employment Opportunity (EEOC) complaint, the team has taken their fight to the courts to seek the compensation they deserve and have earned on the field.

In March 2019, the entire roster of the USWNT filed a class-action gender-discrimination lawsuit against the United States Soccer Federation (USSF). The USSF, which employs both the Men’s National Team and the Women’s, has previously justified that the pay disparities are due to “market realities” (Morgan et al. v. United States Soccer Federation, 2019, p. 1), and that provided this, the women do not deserve equal pay. The lawsuit claims the team is still being discriminated against based on their sex, even while performing the same job as the Men’s National Team. Their jobs require equal skill, effort, and responsibilities, all under similar, if not slightly worse working conditions as their male counterparts (Morgan et al., v. United States Soccer Federation, 2019).The lawsuit further states the USSF admits the Women’s Team generates more revenue and profit than the Men’s, notwithstanding their pay disparities (Morgan et al., v. United States Soccer Federation, 2019). Equal pay lawsuits are not specific to the USWNT. There have been lawsuits associated with other sports, the film industry, and several large corporations (see Cahill v. Nike, 2018; Moussouris v. Microsoft Corporation, 2015; Ras- mussen and Moore vs. The Walt Disney Company, 2019; Stanley v. University of Southern California, 1999). Each lawsuit highlights the systematic pay disparities among male and female employees and the need for progressive action in the workplace. If the USWNT prevails, the lawsuit will join a series of cases that have changed the landscape of how female employees are treated in the workplace. Therefore, the purpose of this paper is to analyze the claims alleged in the USWNT lawsuit. Based upon case law regarding how other professional female athletes (or employees) have succeeded in achieving similar goals, researchers will provide insight into possible outcomes of the USWNT lawsuit. Additionally, researchers will discuss how the USSF can address establishing more equitable-pay going forward. Under the Equal Pay Act of 1963 (EPA), an employer is prohibited from discriminating against an employee on the basis of sex for jobs that are substantially equal (EPA, 1963). Given that the USWNT and the USMNT are employees of the same organization, the USSF must present evidence the differences in pay are due to either a seniority or merit system, a quality of production measurement system, or a factor that is not based on sex (EPA, 1963). Title VII of the Civil Rights Act of 1964 is more general than the Equal Pay Act. This legislation prohibits discrimination based on color, race, sex, race, religion, or national origin. It typically applies to employers with 15 or more employees (Title VII, 1964). To be victorious at trial, the USWNT must prove that their required skills are at least equal to the Men’s Team. Both teams have the same expectations set by the USSF for pre-game, game, post-game, skills, ability, experience, training, education, and ability (Coyne, 2018). In addition to this, the game durations are the same and require the same physical demands; however, the frequency of the games is not the same. Despite the men playing more games to qualify for the FIFA World Cup, from 2015-2018, the Women’s Team played nineteen more games than

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the men (Morgan et al. v USSF, 2019). Furthermore, women’s professional soccer teams, including the USWNT, are frequently forced to play on turf fields, which are inadequate for performance. Men’s teams play on real-grass fields and games will not be played if the field is not up to competition standards. The difference in playing fields would not be relevant if the Men’s Team was ever subjected to this type of treatment (Campbell, 2017). Another factor that should tip the scale in the USWNT’s favor is that they spend more time traveling, training, and engaging with the media and fans than the Men’s Team (Morgan et al. v. USSF, 2019), proving that their job responsibilities are equal if not more. While gender discrimination against women occurs in many aspects of sport due to its historical male-dominance, many teams and organizations have worked to combat the issue and progress along with societal changes. Adidas, a major sponsor of the FIFA World Cup, supports pay equality and has decided to award both the Men’s and Women’s champion the same payout (Delikat, Mantoan, & Reyzis, 2019). Other sports also have started to make the necessary changes to implement equal pay for all athletes. For example, in September 2018 the World Surf League announced that equal cash prizes among male and female competitors would be required (Baird, 2019). Others are ahead of the times; the International Ski Federation has awarded equal prizes to male and female winners for the last fifteen years (Delikat et al., 2019). Given that women’s sports popularity is currently on the rise globally (Rowan, 2017), a win for the USWNT would be a major turning-point for professional sports. This lawsuit is also unique because the USSF employs both the Men’s and Women’s Teams. Most professional women’s teams, such as the WNBA or LPGA, are employed by separate entities than their male counterparts. Even though there has been some success in achieving pay-equality for male and female athletes, there is room for improvement in most sports. In 1973, Billie Jean King threatened to not compete in the U.S. Open unless the prize was paid out equally amongst the Men’s and Women’s champions. Her ultimatum sparked the U.S Open to become the first of the Grand Slam tournaments to provide equal payouts for both champions (Mervosh & Caron, 2019). In the same sport just thirty- some years later, Venus Williams made her plea for equal-pay at Wimbledon in 2005. While a change in pay was not established until 2007, both champions have received the same prize money since. In 2016, around the same time as the first USWNT lawsuit, the USA Women’s Hockey Team warned their employers of a potential boycott of the World Championship if their compensation was not adjusted. The team’s actions proved to be successful, as they saw an increase in pay and subsequently went on to win the World Championship (Campbell, 2017). California, where the USWNT lawsuit was filed, is paving the way for equal pay for female athletes. The state legislature has proposed a bill that requires athletic competitions, upon applying for their permits to host the event, to award equal prizes to both gendered winners if the event takes place at a state-owned venue (Delikat et al., 2019). While it is no longer arguable that the USWNT is wildly more successful than their male counterparts, the USSF has a list of defenses that are likely to be exhausted at trial in May of 2020. The Men’s and Women’s teams have two separate CBAs that their Player’s Associations negotiated for/with them. These two CBAs are the source of the most significant pay disparities. The Men’s Team is compensated on a pay-for-play basis and earns higher bonuses when they are successful on the field (Delikat et al., 2019). On the contrary, the USWNT negotiated for guaranteed-pay with benefits. Due to the differences in their CBAs, the women are unable to earn equal compensation (Campbell,2017). Also, the USWNT and the USMNT are both subjected to FIFA’s rules, regulations, and tournament scheduling, given that they compete internationally. FIFA is responsible for the pay-out to the champions of their games. Due to this, many of the necessary changes to achieve equality need to be addressed by not only the USSF but also FIFA. Although female athletes have been breaking through the metaphorical glass-ceiling since the establishment of the All-American Girls Softball League in 1943 (Rowan, 2017), the progress that has been made in other sports will likely be reflected in the court’s decision at trial. While the current USWNT CBA remains in place until 2021, an increase in their guaranteed pay that matches the Men’s would be a reasonable expectation, at the very least, during re-

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negotiations. Under the lawsuit, the USSF could be required to pay the damages sought by the USWNT, including but not limited to back pay, front pay, and liquidated damages (Morgan et al. v. USSF, 2019). The Federation will more than likely be required to re-evaluate and adjust the team’s wage rates and benefits in the coming seasons. If the suit does not end favorably for the USWNT, the media and press attention alone have undoubtedly placed the issue of gender workplace inequalities on a global platform. References Alex Morgan et al. vs. United States Soccer Federation Inc.,Case No. 2:19-CV-01717 (C.D. California) (filed March 8, 2019). Baird, S. (2019, April 14). Why female surfers are finally getting paid like their male peers. The At- lantic. Retrieved from https://www.theatlantic.com/entertainment/archive/2019/04/how-female-surfers-won-pay- equity-fight/587065/ Cahill v. Nike Inc., Case No. 3:18-cv-01477 (D.C. Oregon) (filed August 9, 2018). Campbell, H. (2017). Superior play, unequal pay: U.S. women’s soccer and the pursuit for pay equity. University of San Francisco Law Review, 51(3), 545-570. Coyne, P. C. (2018). A Huge Win for Equal Pay: Women’s National Teams Grab Their Biggest Victories Yet in Recent Contract Disputes. Jeffrey S. Moorad Sports Law Journal, 25, 315-358. Delikat, M., Mantoan, K., & Reyzis, Y. (2019, March 29). Female athletes are looking to score big with new equal pay lawsuit. Retrieved from https://blogs.orrick.com/equalpaypulse/2019/03/29/female-athletes-are-looking- to-score-big-with-new-equal-pay-lawsuit/. Equal Pay Act, 29 U.S.C. §206 (1963). Mervosh, S., & Caron, C. (2019, March 8). 8 times women in sports fought for equality. Retrieved from https://www.nytimes.com/2019/03/08/sports/women-sports-equality.html. Moussouris v. Microsoft Corporation, Case No. 2:15-cv-01483 (W.D. Wash.) (filed September 16, 2015). Rasmussen and Moore vs. The Walt Disney Company et al., Case No. 19STCV10974 (filed April 2, 2019). Rowan, J. N. (2017). Equal protection for equal play: A constitutional solution to gender discrimination in international sports. Vanderbilt Journal of Entertainment and Technology, 20, 919-945. Stanley v. University of Southern California, 178 F. 3d 1069 (9th Cir. 1999). Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1983 (1964). United States Soccer Federation, Inc. (2019). 2018 Consolidated financial statements and supplemental schedules. Retrieved from https://www.ussoccer.com/governance/financial-information.

152 Sport and Recreation Law Association Conference

The “Fortnite” of E-Gaming Laws

Abstract ID: 81

Dr. Colleen McGlone (Coastal Carolina University), Prof. Amanda Siegrist (Thomas More University), Dr. Matt Lovett (ULM)

The esports and online gambling industry in the United States is projected to surpass $8 billion in 2019 (Wimer, 2019). This includes $560 million in wagering. Globally in 2019, the industry is projected to be worth approximately $30 billion by 2020. The term esports is short for electronic sports, and it refers to competitive video gaming. Which basically refers to people playing video games against each other in a competition. This is nothing new in itself, of course, as it has been happening in people’s homes ever since the ﬁrst home computers and gaming consoles came out. The esports fan base is expanding ever since but is still short of what the fan base is for traditional sports. Companies like Players’ Lounge, OneUp, Bet365 and NetBet combine two of the hottest topics in the sport and recreation industry, the evolution of eSports and sports gambling. Some sites like to position themselves as skilled wagering versus a sports gambling platform. In 1992, President George H.W. Bush signed the Professional and Amateur Sports Protection Act of 1992 (PASPA). This act is widely held as the federal standard and ban on sports betting. The act prohibited 46 states from legal- izing sports betting; but 4 states, Nevada, Delaware, Montana, and Oregon were grandfathered in and received an exemption from the act. However, this act was scrutinized by the New Jersey Supreme Court Case Murphy vs. NCAA. In a 7-2 majority opinion, Justice Alito argued, “The PASPA provision at issue here - prohibiting state authorization of sports gambling - violated the anti-commandeering rule” (Evans, 2018, para. 12). This historic decision did not make sports gambling federally legal but instead allowed for each individual state to pass laws regarding sports gambling. The PASPA was repealed in 2018. Currently, several states have already passed sports gambling legislation and, many states have introduced sports gambling legislation but have not been passed; however, it is projected that all 50 states will follow suit and legalize sports gambling (Rodenberg, 2019). The rules for esports gambling, will fall under the same compliance that the sports gambling companies must follow. Online gaming laws in the United States are convoluted, but, in short, it is not always legal or illegal to gamble online. This presentation will (1) examine the various state laws and statues as each applies to esports and 2) explore the differences between terms Wagering and Betting as they apply to the gaming industry. References Murphy v. National Collegiate Athletic Association. Oyez, www.oyez.org/cases/2017/16-476. Accessed 18 Oct. 2019 Rodenberg, R. (2019). Antitrust standing after Applle v. Pepper: Application to the Sports Betting Data Market. The Antitrust Bulletin. 28 U.S.C. § 3702 (2006). Wimer, K. (2019, June3) Betting isesports’ biggest and most underappreciated opportunity. VentureBeat. Retrieved from https://venturebeat.com/2019/10/18/gamesbeat-decides-128-jedi-fallen-order/.

153 Sport and Recreation Law Association Conference

They Finally Killed the Golden Goose. An Analysis of the Recent Legislative Responses Nation-Wide to the Income Inequality in NCAA Athletics.

Abstract ID: 73

Prof. Jim Masteralexis (Western), Prof. Lisa Masteralexis (University of Massachusetts Amherst)

The NCAA, in 2016, collected approximately $8 billion in revenues[1] and twenty-four (24) schools made at least $100 million from their sports teams.[2] Coaches, league commissioners and NCAA leaders make handsome salaries. For example, Alabama head football coach Nick Saban has a base salary of $7.9 million in 2019 plus $800,000 for “contract-year completion payments.”[3] Jim Delany, the Big Ten’s Commissioner, made $5.5 million and NCAA president Mark Emmert made $3.9 million this year.[4] Irrespective of these economic facts, NCAA rules prohibit athletes from earning money from their sport.[5] Attempts to bring economic fairness to college athletes have taken various strategies, such as the unionization effort of the Northwestern University football team[6] and the O’Bannon v. NCAA antitrust lawsuit,[7] and have had limited practical success. Historically as early as at least 1981 in Nebraska a bill, 1981 Neb. Law L.B. 363, was introduced to pay a stipend to college athletes.[8] In 2003 a version of the bill passed, 2003 Neb. Law L.B. 688, and it would pay a stipend to football players, and other college athletes at the discretion of the University of Nebraska-Lincoln. Furthermore, if that stipend were paid the college athletes could not be considered professional athletes. However, L.B.688 would only become operative when and if four (4) other schools in the conference adopted rules to pay players and restrict hours of athletic participation so athletes would be ensured to have enough time to study.[9] This year, state legislators throughout the nation have responded to the NCAA’s cartel-like amateurism rules, effectively overruling the unfair treatment of their citizen-athletes. Unsurprisingly, as it does on many progressive issues, California took the lead. On September 30, Governor Gavin Newsom signed the Fair Pay to Play Act allowing college athletes to be paid for the use of their name, likeness and image.[10] The law allows athletes to hire agents, secure sponsorship and business deals. All of these things are in direct conflict with NCAA Amateurism rules.[11] In Colorado, legislation similar to California’s Fair Pay to Play Act will soon be introduced.[12] In Florida, House Bill 251 prevents the NCAA from prohibiting student athletes from profiting from their name and likeness.[13] In Illinois, a bill was filed to allow college athletes to enter endorsement deals and stops the NCAA from revoking an athletes eligibility for doing so.[14] In South Carolina, a proposal allows college athletes, who play revenue generating sports such as football and basketball, to receive a $5000 stipend.[15] In Washington, HB 1084 would allow athletes the right to earn compensation for their services, to be paid for his/her name, image, or likeness, and allow athletes to hire agents to represent the student-athlete’s interest.[16] Another bill is pending in Maryland which would allow universities that field athletic teams in the state to bargain collectively in four primary areas: scholarship terms, insurance benefits, use of name and likeness, and the establishment of an independent advocate.[17] Similar state legislation is also in play in Kentucky, Minnesota, Nevada, New York, Pennsylvania and Texas. On the Federal level, on March 14, 2019 U.S. House of Representatives member Mark Walker (R-N.C.) introduced the Student-Athlete Equity Act which would amend the tax code to force the NCAA to remove restrictions on student- athletes being compensated for their name, image and likeness.[18] Another Congressman, Anthony Gonzalez a member of the U.S. House of Representatives (R-Ohio) and a former wide received at Ohio State and a five (5) year NFL veteran, is proposing federal legislation to allow college athletes to be paid endorsement money.[19] This presentation will review the effectiveness of prior legal action by college athletes through unionization at-

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tempts and litigation to level the economic playing field and compensate them for their labor. It will then compare California’s Fair Pay to Pay Act with the other proposed state and federal legislation. A proposed uniform statute will be offered to help college athletes achieve a measure of economic justice from their efforts on the field and on the court. [1] Sean Illing, College Football is a Moneymaking Sham, Vox.com, (Sept. 5, 2017 8:30am). [2] Cork Gaines, The 25 Schools that Make the Most Money in College Sports, Business Insider, (October 13, 2016 1:46pm), https://www.businessinsider.com/schools-most-revenue-college-sports-2016-10. [3] Kristi Dosh, Nick Saban Gets Another Pay Raise from Alabama and the Numbers Show He Deserves it, Forbes, (July 28, 2018), https://www.forbes.com/sites/kristidosh/2018/07/28/nick-saban-gets-another-pay-raise-from- alabama-and-the-numbers-show-he-deserves-it/#466c8c4f5834. [4] Bran Fischer, Jim Delany was the Highest Paid Conference Commissioner…, NBC Sports, (May 25, 2019), https://collegefootballtalk.nbcsports.com/2019/05/25/jim-delany-was-highest-paid-conference-commissioner-in- 2017-18-ncaa-president-mark-emmerts-salary-climbs-to-nearly-4-million/. [5] NCAA Division I Manual, 2018-19, Article 12 Amateurism and Athletics Eligibility. See also Article 2.9 The Prin- cipal of Amateurism. [6] Northwestern University and College Athletes Players Association (CAPA), Petitioner. Case 13–RC– 121359 August 17, 2015. [7]O’Bannon v. NCAA, 802 F. 3d 1049 (9th Cir. 2015), See also Marc Tracy, The N.C.A.A Lost in Court, but the Athletes Didn’t Win Either, New York Times, (March 11, 2019), https://www.nytimes.com/2019/03/11/sports/ncaa-court-ruling- antitrust.html. [8] Ernie Chambers, A Nebraska Legislator’s Proposal: Pay the Players, New York Times, Feb. 22, 1981, Section 5, Page 2, https://www.nytimes.com/1981/02/22/sports/a-nebraska-legislator-s-proposal-pay-the-players.html [9] Neb. Law L.B. 688. (2003). [10] Jack Kelly, Newly Passes California Fair Pay to Play Act Will Allow Student Athletes to Receive Compensa- tion, Forbes, (October 1, 2019), https://www.forbes.com/sites/jackkelly/2019/10/01/in-a-revolutionary-change-newly- passed-california-fair-pay-to-play-act-will-allow-student-athletes-to-receive-compensation/#262aa1c757d0 [11] NCAA Division I Manual, 2018-19, Article 12 Amateurism and Athletics Eligibility. See also Article 2.9 The Prin- cipal of Amateurism. [12] Alex Burness, Colorado Lawmakers Promise 2020 Bill to Let College Athletes Make Money, The Denver Post, (October 1, 2019), https://www.denverpost.com/2019/10/01/colorado-california-pay-student-athletes/. [13] HB 251 (2019), Florida House of Representatives, https://www.myfloridahouse.gov/Sections /Bills/billsdetail.aspx?BillId=66760. [14] HB 3904 (2019), Illinois General Assembly, http://ilga.gov/legislation/billstatus.asp?DocNum=3904&GAID=15 &GA=101&DocTypeID=HB&LegID=122043&SessionID=108. [15] Avery G. Wilks, 2 SC Lawmakers will file Proposal to Pay College Athletes, Following California’s Lead, The State, September 13, 2019, https://www.thestate.com/news/politics-government/article235015452.html. [16] HB 1084 (2019), State of Washington 66th Legislature, http://lawfilesext.leg.wa.gov/biennium/2019- 20/Pdf/Bills/House%20Bills/1084.pdf [17] Nick Bromberg, Maryland legislature would give athletes right to collectively bargaining, unionize, Ya- hoo.com, (Feb. 8, 2019), https://sports.yahoo.com/bill-maryland-state-legislature-give-athletes-right-collectively- bargain-unionize-143852403.html. [18] Mark Walker, Walker Introduces Student-Athlete Equity Act to End NCAA Restrictions on Player’s Publicity Rights, Congressman Mark Waller Press Release, (March 14, 2019), https://walker.house.gov/media-center/press- releases/walker-introduces-student-athlete-equity-act-end-ncaa-restrictions.

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[19] Dan Murphy, Congressman to Propose Federal Legislation Form Paying College Athletes, ESPN.com, (October 2, 2019), https://www.espn.com/college-sports/story/_/id/27751454/congressman-propose-federal-legislation-paying- college-athletes. See also Greta Anderson, The Push for Player Pay Goes National,Inside Higher Ed, (October 4, 2019), https://www.insidehighered.com/news/2019/10/04/us-congressman-propose-college-athlete-payment-bill.

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Three State Supreme Court decisions invalidate the use of releases after legislative statutory protections were enacted.

Abstract ID: 85

Dr. Merry Moiseichik (University of Arkansas), Mr. Jim Moss (Recreation Law)

Releases are the best protection for outdoor recreation providers for negligence in most states but many states have enacted statutory protections for specific recreation industries also. States began passing laws in the 1970’s that limited negligence claims brought by injured skiers, then later white water and paddlesports in the 1980’s and equine statutes starting in 1990. These statutes increase the risks that are considered inherent to the activity giving greater protection from lawsuits for those risks. This presentation will look at the legislation and the Supreme Court decisions removing the defense of a release because of the enactment of the statute. There are 23 states with ski laws. Colorado’s Ski Safety Act, C.R.S. §§ 33-44-101. Et. Seq., the act that many states used in the creation of their own statutes, provides specific requirements for ski area operators to reduce accident risk, such as requiring signage at trailheads and warnings of bad conditions (C.R.S. §§ 33-44-101. Et. Seq. ). In part it states, Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another (C.R.S. §§ 33-44-105. 5). Skiers assume inherent risks, including snow conditions, terrain, and collisions with other skiers and identify the responsibilities of the provider (Consumer’s products law blog, 2019). In 1984 Colorado passed the first White Water River Outfitters Act. This statute sets up an advisory committee who determine outfitters licenses for commercial river outfitters that defines qualifications and responsibilities. It also requires liability insurance. In 2010 West Virginia created the White Water Responsibility Act. Similar to the skier statute, it identified the requirements for the outfitter and the participant and stated, “No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article 2 (W. Va. Code Ch. 20, Art. 3B et seq). Colorado also passed the first Equine outfitters act in 1990 to protect providers of horseback riding opportunities from being sued for inherent risks. The latest state to add a statute was New York in 2018 (Fershtman, 2017). Only California and Maryland still have not passed such legislation. Similar to the skiers acts, these laws outline the responsibilities of the both the providers and the visitors. Colorado statute states, “All equine professionals must post a sign stating, “UnderColorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 13-21-119, Colorado Revised Statutes” (C.R.S. §§ 13-21-119). State Supreme Court Cases Three state Supreme Courts have made decisions that because of these statutory protections removed the defense of release from the defenses available.

• Murphy v. North American River Runners, Inc., 186 W.Va. 310 (W.Va. 1991) 186 W.Va. 310 (W.Va. 1991)

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• Berlangieri v. Running Elk Corporation, 76 P.3d 1098, 2003 -NMSC- 24, 134 N.M. 341 (N.M. 2003) 76 P.3d 1098, 2003 -NMSC- 24, 134 N.M. 341 (N.M. 2003) • King v, CJM Country Stables, 315 F.Supp.2d 1061 (D. Hawai’i 2004)

In each of these cases the Supreme Court of the respective states eliminated the use of a release as a defense. In Murphy v. North American River Runners id., the WV supreme Court held that: “When a statute imposes a standard of conduct, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for the failure to conform to that statutory standard is unenforceable.” Although not a 100% ban on using a release in the whitewater industry in WV, it narrowed the ways a release could provide a defense In Berlangieri v. Running Elk Corporation, id., the New Mexico Supreme Court found that using a release after the legislation passed statutory protections was against public policy. In doing so, New Mexico held that recreation is a necessity in that state. The only state to make that decision. In most states a necessity is food, shelter, public transportation, or utilities, those items that you cannot live without. As such the provider of a necessity cannot contract away their liability. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself [or herself] out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his [or her] services. In exercising a superior bargaining power the party confronts the public with a standard- ized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his [or her] agents. In King v, CJM Country Stables, id., the Hawaiian Supreme Court went out of its way to find the releases void for all recreational activities in Hawaii. “Although neither party cites or discusses it, the Court finds that Hawaii Revised Statutes, Section 663-1.54, addressing “Recreational activity liability,” applies to this case.” Once the decision brought in the statute then the court was free to find problems with the release because of the statute. Citations & References Colorado Equine Activities section 13-21-119, C.R.S. §§33-44-101. Et. Seq.” Consumer products law blog (2015) Ski resorts and outdoor industries may face increasing liability. Norton Rose Ful- bright. Retrieved from: https://www.consumerproductslawblog.com/2015/02/ski-resorts-and-outdoor-industries- may-face-increasing-liability/ Fershtman, J. (2017, October 30) New York is 48th state to enact an equine liability law. Equine Law Blog. Retrieved from: https://www.equinelawblog.com/new-york-equine-liability-act Skilaw. com (2018) Ski law by state. Chaletlaw.com Retrieved from: https://www.chalatlaw.com/skilaw/ski-laws-by- state C.R.S. §§33-44-101. Et. Seq. The Ski Safety Act (2006) Colorado law: Title 33, Article 44. Retrieved from: https://www.coloradoski.com/sites/default/files/uploads/Colorado-Ski-Safety-Act.pdf

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Title: Esports and the law…the new class you need to add to your curriculum

Abstract ID: 77

Prof. Gil Fried (UNH), Dr. Margaret Keiper (University of Alaska Fairbanks)

In 2014 Robert Morris University became the first American higher education institution to offer a varsity eSports program (Keiper, Manning, Jenny, Olrich & Croft, 2017). Since then, the popularity of eSports has grown into a regular topic and booming area of popularity across college campuses. Initially, the majority of the discussion around eSports in higher education has focused on the role of eSports in relation to collegiate athletics. However, the discussion has no infiltrated down into academics, specifically curriculum, program, and degree development. The purpose of this session is to provide participants with an interactive session on developing an eSport related program with special emphasis on the legal issues of eSports. ESports is a multi-billion dollar industry and continually growing (Pannekeet, 2019). Consumer demand of eSports is not limited to simply the entertainment aspect of eSports. Students and academics alike are embracing the growth and acceptance of eSports. In 2001, sport management, was considered a fast growing areas within academia (Pitts, 2001). Almost twenty years later, it is speculated by the authors that the acceptance of eSports into the traditional sport realm has caused a gap in sport management programs that should be addressed. From Shenandoah University to University of New Haven to University of California Irvine, programs are continually being developed to capture students attention and the market. Many academic programs focusing on eSports now exist. However, eSports are still a relatively novel phenomenon within the sport management realm (Funk, Pizzo, & Baker, 2018). Though there are many similarities between traditional sport and eSports there are also some challenges unique to eSports and the adoption of eSports to academia. Many of the legal challenges surround legal topics. Many of us have all taught sport law over the years and feel that with a minor tweak we could possibly teach entertainment or facility management law. Does the same apply to teaching eSports and the law? Teaching sport law comes naturally to many of us. However, when things change in an industry, especially something that might be very dynamic, we might have trouble integrating that into a class. Imagine if the collegiate landscape completely changed and there was no longer collegiate athletics? Would that warrant a new course? I think we would all say yes. Similarly, the same can be said for eSports. Esports is presenting a new legal minefield for those who teach sport law and this presentation will try to help establish the framework for an eSports law class. This presentation will focus on how to effectively approach teaching eSports and give guidance on how to identify if eSports focused curriculum is a good addition to your program. Using various examples and cases, the presentation will help provide attendees with the guts to create their own eSports law class. This presentation will briefly cover intellectual property, tort law, commercial law, contract law, defamation, gambling, harassment, and governance among other topics relevent to eSports.

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Trademark Protection and the 2%

Abstract ID: 35

Ms. Kelly Lennon (University of North Carolina at Chapel Hill)

Less than 2% of NCAA student-athletes become professionals in the sport in which they compete. This 2% of student- athletes are often well-known names who have highly publicized collegiate careers that are followed nationwide. Despite the amount of attention the 2% receives, given that student-athletes are not permitted to benefit from their name, image and likeness, they receive no compensation from their right of publicity until (and if) they become professional athletes. One of the issues they may face, however, is being able to gain those benefits from their name, image and likeness if others have already done so. An aspect of name, image and likeness that is not as often discussed is the opportunity for a student-athlete to register personal trademarks before their eligibility is finished. However, if a student-athlete who has a likelihood of a professional career does not register a trademark for themselves, a third party may register it and use it to benefit from the student-athlete’s name, image and likeness. Johnny Manziel, for example, was engaged in litigation with a t-shirt company over the trademark of “Johnny Football” before his time at Texas A&M ended (Cho, 2015). Though this could potentially benefit the student-athletes who have the opportunity to brand themselves post-college, trademark registration is not a black and white issue, or one that a collegiate student is likely to understand without legal aid. This research examines the question: should the NCAA, or its member institutions, have a duty to protect a student-athlete’s trademark rights from third-party exploitation throughout their NCAA careers? Under the Lanham Act (15 USCS § 1051), “a person who has a bona-fide intention, under circumstances showing the good faith of such person, to use a trademark in commerce may request registration of its trademark on the principal register”. It goes on to discuss that a party who registers a trademark must use it within six months of the filing date or request an extension of no more than 24 months in order to keep the trademark registered. According to NCAA Bylaw 12.5.2.2, if a student-athlete’s name or image is used in commerce or promotion without their permission, the student-athlete “is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics” (NCAA, 2019). Student-athletes are also not eligible to participate if he or she “accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind” (NCAA, 2019). The core issue is that the Lanham Act, without extension, has a “use it or lose it” policy – and student-athletes may not “use it” while they’re completing their eligibility. This time period, if not acted upon, is a window for third-parties to generate revenue from big-name trademarks, such as “Johnny Football”. In considering the possible legal responsibility of either member institutions or the NCAA, it’s important to note that it has been shown that there is a contractual relationship between schools and student-athletes, as well as between the NCAA and its member institutions. Though the NCAA has no contractual obligation to the student- athlete, student-athletes have been proven to be a third-party beneficiary of the relationship between the NCAA and its member institutions (Bloom v. NCAA, 2004). As previously mentioned, NCAA rules do not necessarily prohibit student-athletes from filing trademarks, rather, just from benefiting from the trademarks and their name, image and likeness. The problems arise when considering that student-athletes may not be able to protect themselves from third-parties on their own or register trademarks that could be valuable to them in the future. Student-athletes may not be able to afford a trademark attorney to assist them in the process of filing an application or litigating to try to reclaim rights to one that has been trade- marked already. In the original filing of an application, it may be tricky to determine whether a student-athlete has

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a likelihood of future use with the trademark. While the Johnny Manziel’s of the world may know they have an NFL career in sight, other student-athletes may not. If this student-athlete doesn’t register a trademark and then goes on to be extremely successful, they will have lost the opportunity to brand themselves before they even had it. If they do ﬁle and don’t reach that success in their career, they take an economic loss for going through the ﬁling or litigation process. Further, the “use it or lose it” clause in the Lanham Act could pose an issue for student-athletes in that they aren’t allowed to “use it”. Filing for an extension doesn’t always guarantee an extension. All these factors could lead to a possible economic loss for the student-athlete, which could mean a potential lawsuit due to lack of adequate protection from institutions or the NCAA. This poster presentation will highlight a history of trademark issues from former NCAA student-athletes. It will then draw from case law to elaborate on the connections between the schools and student-athletes, the NCAA and its member schools as well as the student-athlete and the NCAA to identify what potential duty the NCAA and member institutions have to help protect student-athletes from exploitation. It will then discuss the connections between the NCAA bylaws and the Lanham Act and the issues that creates for the 2% of student-athletes who may have value attached to their trademarks. Finally, suggestions for potential solutions will be made and be connected to the current name, image and likeness issue that faces intercollegiate athletics. References Bloom v. NCAA, 93 P.3d 621, 2004 Colo. App. LEXIS 781, 2004-1 Trade Cas. (CCH) P74,396 (Court of Appeals of Colorado, Division Five May 6, 2004, Decided ). Cho, C. (2015). Protecting Johnny Football®: Trademark Registration for Collegiate Athletes. Northwestern Journal of Technology and Intellectual Property, 13(1), 24. National Collegiate Athletic Association. 2019-2020. NCAA Division I Manual. § 1051. Registration of trademarks, 15 USCS § 1051 (Current through Public Law 116-65, approved October 9, 2019

161 Sport and Recreation Law Association Conference

Using Player Contracts as Investment Vehicles Under League Collective Bargaining Agreements: The Case of Spencer Dinwiddie

Abstract ID: 88

Dr. Jim Evans (Viterbo University)

In December 2018, the New Jersey Nets and potential free agent point guard Spencer Dinwiddie agreed to a seemingly ordinary contract extension, worth approximately $34 million to be paid over three seasons (Wojnarowski, 2018a). Then, in September 2019, Dinwiddie announced that he intended to use his new contract as an investment vehicle in order to gain access to more upfront capital (Charania, 2019). The National Basketball Association (NBA) swiftly responded that Dinwiddie’s proposal would violate the collective bargaining agreement (CBA) between the league and the National Basketball Players Association (NBPA; Stein, 2019). In October 2019, Dinwiddie delayed the implementation of his plan in order to engage with league officials and attempt to resolve the disagreement (Dinwiddie, 2019a). As yet, the two sides have not reached a solution, creating potential a labor grievance and/or litigation. Dinwiddie’s standoff with the NBA raises several interesting issues regarding labor law and governance in professional sports. The purpose of this study was to use the Dinwiddie case as an avenue to explore the rights of professional athletes to utilize their contracts in alternative investment strategies. Three research questions were specifically addressed: (a) Does Dinwiddie’s plan in fact violate the terms of the CBA or the NBA’s standard player contract (SPC)? (b) How do other professional sports league CBAs and SPCs address similar circumstances? and (c) Depending on the outcome, what are the potential legal and financial implications for Dinwiddie, the NBA, and other professional athletes and leagues? To answer the first question, it is necessary to dig deeper into the specifics of Dinwiddie’s contract, his financial plans, and the relevant terms of the current NBA CBA. The contract is scheduled to pay Dinwiddie $10.6 million for the 2019-20 season and $11.4 million in 2020-21 and includes a player option worth $12.3 million for 2021-22 (Wojnarowski, 2018b). Under the investment proposal, Dinwiddie would utilize blockchain technology to issue digital tokens, which would feature many of the same properties as bonds (i.e., regular principal and interest payments) and would be secured by the payments due to Dinwiddie under his contract with the Nets (Charania, 2019). Blockchain is a distributed ledger technology that records transactions across a large, shared network (Fulmer, 2019; Rodrigues, 2019). Although blockchain technology has several advantages, including (theoretically) zero fraud possibility, instant transactions, and improved financial efficiency, it can be volatile and difficult to understand for some investors, and has also been criticized as enabling illegal transactions (Taleb, 2019). Dinwiddie’s company, SD8 LLC, would use the Ethereum blockchain network to sell 90 tokens for $150,000 each in hopes of immediately raising $13.5 million (Sprung, 2019). The NBA CBA provides, “No player shall assign or otherwise transfer to any third party his right to receive Com- pensation from the Team under his Uniform Player Contract” (Collective Bargaining Agreement, 2017, p. 60). The Restatement (Second) of Contracts (1981) defines an assignment of a contract right as “a manifestation of the assig- nor’s intention to transfer it by virtue of which the assignor’s right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance” (§ 317). A contractual right is assignable unless it would materially alter the duties or risk imposed on the other party to the contract, is forbidden by statute or against public policy, or is validly precluded by contract (Restatement [Second] of Contracts, 1981, § 317). Rules governing assignment of rights to future payments are governed by the same rules as assignment of existing rights

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(Restatement [Second] of Contracts, 1981, § 321). Thus, the legal question becomes whether Dinwiddie’s plan is, in fact, an assignment of his right to receive compensation under the contract. Although the specific terms of the offering are not yet public, it would appear that purchasers of SD8 tokens would not receive any direct payment from the Nets or the NBA under his player contract, but rather a monthly principal and interest payment straight from Dinwiddie. The actual right to payment under the contract is not assigned; the token is merely secured by the future income stream represented in Dinwiddie’s NBA contract. In this way, the strategy is similar to a tax or revenue bond, a financial instrument that the league and its franchise owners have often taken advantage of in financing and constructing new arenas (Crompton & Howard, 2013). Further, per the Restatement (Second) of Contracts (1981), even where assignment of rights is prohibited under the contract (as the NBA asserts), the assignment is not void, but rather the other party to the contract merely accrues a right to damages for breach of the term forbidding assignment (§ 322). Thus, not only does Dinwiddie’s proposal not appear to violate the CBA; the NBA probably could not even enforce the non-assignment clause except to recover what would likely be nominal damages. The second research question asked how Dinwiddie’s proposal might be handled under the CBA and SPC provisions of other professional sports leagues. The CBAs and SPCs of Major League Baseball (MLB), Major League Soccer (MLS), National Football League (NFL), National Hockey League (NFL), and Women’s National Basketball Associa- tion (WNBA) were closely examined for relevant language. Based on this intensive review, it appears that MLB, MLS, NFL, and NHL have no restrictions on players’ ability to assign their contractual payment rights (though all leagues have strict performance requirements, effectively prohibiting players from assigning their duties under their contracts). In 2015, several current and former NFL players assigned the rights to their future earnings to company called Fantex, Inc., which intended to leverage its investments into the players to make an initial public stock offering, though the efforts failed (Charania, 2019). Additionally, there are companies that offer cash advances to Minor League Baseball players in exchange for some percentage of future earnings (Ehrlich, Landry, & Baker, 2019). However, the WNBA CBA has a clause which tracks the exact language of the NBA CBA: “No Player shall assign or otherwise transfer to any third party her right to receive Salary from the Team under her Player Contract” (Women’s National Basketball Association Collective Bargaining Agreement, 2014 pp. 38-39). It is possible that the similar wording is a remnant of the early years of the WNBA, when the league was owned and operated by the NBA. It is also plausible that, since many WNBA teams are now owned by the same groups that run the NBA franchises in their cities and the two leagues still have a close working relationship, WNBA owners have specifically sought to have the same terms incorporated into the WNBA CBA. Regardless of why, it seems that of all the major North American professional sports leagues, only the NBA and WNBA would have an issue with what Dinwiddie is proposing. The final research question considered the financial and legal implications for Dinwiddie, his investors, the NBA, and other professional athletes and leagues. According to Dinwiddie, he will continue forward with the secured token offering, despite the league’s objections (Dinwiddie, 2019b; Sprung, 2019). While the league may not like it, there is probably little they can do legally to stop him. If the league does attempt to block Dinwiddie, the grievance/arbitration process and any resulting litigation will be discussed during the conference presentation. Because the NBA has guaranteed contracts, Dinwiddie’s (and his investors’) primary risk is if he violates the clause of the SPC stating that the contract may be terminated based on the league’s anti-drug, domestic violence, sexual assault, or child abuse policies (Collective Bargaining Agreement, 2017). In that case, the player would lose the income he plans to use to pay his investors, and the investors would lose their ability to go after the collateral in the event of default. Still, Dinwiddie has been praised by many commentators as “revolutioniz[ing] the way professional athletes own their brands and intellectual property” (Sprung, 2019, para. 1). With these types of strategies, leagues and players can not only create new revenue streams in emerging legal and financial markets (i.e., blockchain net-

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works), but connect with fans in a unique and personal way. And while the cost barrier to entry is still relatively high, for those who want to feel attached to the NBA and its players, $150,000 is far less than what would be needed to become involved in a franchise ownership group. These and other implications will be discussed in greater detail during the conference presentation. References Charania, S. (2019, September 12). Sources: Spencer Dinwiddie to convert his NBA contract into a secured digital investment. Here’s what that means. The Athletic. Retrieved from theathletic.com. Collective Bargaining Agreement (2017). National Basketball Players Association. Retrieved from nbpa.com. Crompton, J. L., & Howard, D. R. (2013). Costs: The rest of the economic impact story. Journal of Sport Management, 27, 379-392. Dinwiddie, S. [SDinwiddi_25]. (2019, October 13). We were ready to open on the 14th but in the spirit of partnership, we are pushing it back a week to try and allow the @NBA suﬃcient time to respond. Having been on the ground in China, we are sensitive to what the @NBA has been dealing with. [Tweet]. Twitter. Dinwiddie, S. [SDinwiddi_25]. (2019, October 13). This is why we are giving additional time as our goal is to partner. Regardless of the @NBA’s position, we will move forward. Therefore we will launch on Oct. 21st, a week from our original date and before the start of the @NBA season. [Tweet]. Twitter. Ehrlich, S., Landry, J., & Baker, T. (2019, March). Risk of harm at the farm: Mejia v. Big League Advance and a new threat to minor league players. Paper presented at the meeting of the Sport and Recreation Law Association, Philadelphia, PA. Fulmer, N. (2019). Exploring the legal issues of blockchain applications. Akron Law Review, 52(1), 161-192. Restatement (Second) of Contracts. (1981). Rodrigues, U. R. (2019). Law and the blockchain. Iowa Law Review, 104(2), 679-729. Sprung, S. (2019, October 17). Spencer Dinwiddie discusses digital tokenization plan, happening against NBA’s wishes. Forbes. Retrieved from forbes.com. Stein, M. (2019, September 27). Nets’ Spencer Dinwiddie can’t sell shares in his contract, N.B.A. says. The New York Times. Retrieved from nytimes.com. Taleb, N. (2019). Prospective applications of Blockchain and Bitcoin cryptocurrency technology. TEM Journal, 8(1), 48-55. Wojnarowski, A. [wojespn]. (2018a, December 13). Spencer Dinwiddie will get $34M over a three-year extension with Nets, league source tells ESPN. There will be a player option on third year, sources said. [Tweet]. Twitter. Wojnarowski, A. [wojespn]. (2018b, December 13). Dinwiddie was eligible for four years, $47M, but sides went with a shorter deal that would get him back into free agency quicker. His new deal will pay him: $10.6M, $11.4M and $12.3M annually starting with the 2019-20 season.[Tweet]. Twitter. Women’s National Basketball Association Collective Bargaining Agreement. (2014). Women’s National Basketball Players Association. Retrieved from wnbpa.com

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Views from the Sideline: A Path to the First Female Head Coach in American Professional Sports

Abstract ID: 31

Ms. Katelyn Dwyer (Shumaker, Loop & Kendrick, LLP)

If you watch a men’s professional sports game in 2019, you will not see a female head coach on the sidelines. In fact, you probably won’t see any female assistant coaches on the sidelines either. In a time where women are finding unprecedented success in breaking into traditionally male-dominated industries, women have largely been kept out of the men’s professional coaching world. There are several reasons to cite when attempting to explain this under-representation, including societal gender norms, disrespect for qualified female candidates, and the difficulties in comparing men’s and women’s sports; among many others. The coaching industry is dominated by an “old boy network,” meaning that (mostly white) men who currently occupy the few jobs available continue to hire and recommend other men that they’re familiar with, making it extremely hard for females and other minorities to break in.[1] Female coaches also have to combat the perception that they are unqualified, which, I argue, is largely explained by the theory of hegemonic masculinity. Beyond these societal factors lies the role that the law plays in the life of a woman seeking to be hired as the head coach of a men’s professional sports team. Currently, women face a lack of legal recourse in the event that they are discriminated against in the coach hiring process. As a result of “old boy networks” and “unwritten rules,” female coaches are often denied the protection of federal anti-discrimination laws, as they cannot point to a specific team policy, practice, or requirement that disproportionately affects females. Female coaches also face a lack of available data to prove their discrimination claim due to the small pool of women actually interested in coaching positions on men’s sports teams. Proving qualification for a coaching position can also be difficult in a world where prior playing experience is a highly sought-after quality in a head coaching candidate, and the revenue disparities between men’s and women’s leagues are vast. In this Article, I propose an affirmative action-style solution aimed at increasing the opportunities and representation of female head coaches in the four major American professional sports. This proposal is loosely based on the “Rooney Rule”—an NFL hiring policy stating that “all teams are required to interview at least one minority candidate for head coaching and senior football operation openings.”[2] In detailing my proposal, I examine the legal aspects of such a policy, including whether or not it would be permissible in light of previous affirmative-action litigation. I also discuss the viability of a potential reverse-discrimination claim raised by a male who is passed-up for a head coaching position in favor of a female. Beyond the law, I also examine the potential response and societal impacts of a female coach influx, specifically focusing on public attitude and the issue of tokenism. At the Conclusion of this Article I evaluate the proposal’s possibility of success, and take a look at what else can be done to increase female representation on the sidelines. Current scholarship on this topic has largely been focused on collegiate sports and the impact of Title IX. Scholarship relating to professional sports has looked at increasing minority hiring and female participation in general—not with regard to coaching positions specifically. I aim to dive deep into the current climate, examine the reasons for the lack of female representation, provide a potential solution to this problem, and honestly evaluate that solution’s potential effectiveness. Ultimately, this Article stands for the proposition that, through the understanding of societal and legal barriers in the current climate, the law can be used as a tool in the quest for an equally-gendered coaching sideline. [1] See Michelle Ruiz, Is the NBA Woke Enough to Make Becky Hammon Its First Female Coach?, VOGUE (May 16,

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2018, 12:03 PM), https://www.vogue.com/article/becky-hammon-nba-women-coaches-mens professionalleagues. [2] Kenneth Johnson, What Corporations Can Learn About Diversity from the NFL’s Rooney Rule, FORBES (Feb. 1, 2018, 8:30 PM), https://www.forbes.com/sites/forbescoachescouncil/2018/02/01/what-corporations-can-learnabout- diversity-from-the-nﬂs-rooney-rule/#852a1c147de8.

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Youth sport concussion legislation: Nonstandard standards of care

Abstract ID: 36

Mr. Nick Swim (University of Louisville), Ms. Jessica Murfree (University of Louisville), Ms. Chelsea Police (University of Louisville)

Professional sport leagues, the NCAA, state legislatures, national and state high school athletic associations, as well as some youth sport organizations have adopted concussion identification and management protocols to afford their athletes a proper standard of care (Carter, 2018). In 2017, Boston University researcher Dr. Ann McKee examined brains of deceased NFL players and found that 110 of 111 brains showed signs of Chronic Traumatic Encephalopathy (CTE) (Chavez, 2017). Findings also indicated 177 of 202 brains (88%) of high school and college football players examined showed signs of CTE. In 2014, the Center for Disease Control (CDC) reported approximately 2.87 million concussion related hospital visits with 837,000 occurring in children (CDC, 2019). Other estimates state between 1.1 and 1.9 million sport and recreation-related concussions occur annually for youth 18 and under in the United States (Bryan, Rowhani-Rahbar, Comstock, & Rivara, 2016). This figure is troublesome given youth who experience a concussion are one and half times more likely to experience another one (Brody, 2015). Concussions in youth are more difficult to recognize, more severe, and require more recovery time (Belson, 2017). Further, having an underdeveloped brain when a concussion occurs, can leave young athletes especially susceptible to impacts on their quality of life over-time (Amberg, 2012). This research and other similar research studies have led the CDC to identify Traumatic Brain Injury (TBI) and the concussion epidemic in sport as an ongoing national public health issue (CDC, 2019). The history of the NFL concussion crisis dates back to the 1990’s with growing concerns being expressed by players, medical professionals, and agents only to be met with denials and lack of action on the part of the NFL (CNN, 2019). Yet, the first player lawsuit against the NFL was not filed until 2011 followed in 2012 by a class action lawsuit com- bining more than 80 concussion related lawsuits on behalf of more than 2000 NFL players. The class has grown to almost 4,500 plaintiffs (Ezell, 2013). The NFL adopted a concussion protocol stemming from the National Football League Players’ Concussion Injury Litigation (2017),where the NFL reached a settlement with former players, totaling upwards of $1 billion in legal fees responding to cover-up allegations on concussion side-effects (Associated Press, 2018). In their most recently revised concussion protocol, the NFL sought guidance from outside neurotrauma spe- cialists to identify and address concussions. The current protocol includes: identification of potential concussions (all coaches and personal are defined as spotters), sideline concussion examination, return to play requirements, and concussion symptom monitoring (NFL, 2018). Similarly, the NCAA faced legal action associated with concussions in National Collegiate Athletic Association Student-Athlete Concussion Litigation (2019). Filed in association with former student-athletes, this class action suit argued the NCAA did not properly warn or protect against potential concussions (Sellars, 2019). This case subsequently ended in an out of court settlement of $75 million and paved the way for a concussion protocol adopted in 2015 by the NCAA Concussion Safety Protocol Committee (CSPC) for all divisions in the NCAA (NCAA, 2019; Wood, 2019). In contrast to the NFL, the CSPC has only set forth ‘best practices’ for concussion management, their current recommendations include pre-participation assessments, recognition and diagnosis, post-concussion management, and a stepwise progression approach to return-to-play (NCAA, 2019). While both the NFL and NCAA designed concussion protocols and recommendations applicable to their respective teams or membership, no national standard or federally mandated standard of care for the management of concussion treatment for athletes exists. This lack of overarching guidelines leaves thousands of athletes in interscholastic and recreational sport contexts without a

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clear standard of care regarding concussion identification, treatment, and return-to-play. State legislators began addressing concussion protocols in youth sport a decade ago, long before the media attention of the NFL and the NCAA. Beginning with the State of Washington in 2009, the Zackery Lystedt Law (HB 1824) established a protocol for athletes at the youth and high school levels, and provided concussion education, removal of play policies, and return to practice or play restrictions (Bompadre et al., 2014). Upon enactment of the Lystedt Law, Bompadre et al. tracked the number of reported concussions in Seattle-area high schools to assess whether the number of concussions reported and their frequencies changed. Their findings indicated the number of reported concussions doubled, however the researchers argued concussion frequency did not increase, and determined proper education policies lead to more and better? diagnoses (Bompadre et al., 2014). Since 2014, all 50 states have followed Washington’s lead by passing some type of concussion legislation to include concussion awareness or education (Potteiger, Potteiger, Pitney, & Wright, 2018). However, according to the Society of Health and Physical Educators (SHAPE) of America, each state’s individual policy varies in terms of enforcement, who it applies to, and what its requirements entail (SHAPE America, 2017). Therefore, the purpose of this presentation is to (1) provide an overview of the youth concussion issue; (2) review the current legislation and state high school federation concussion practices across all 50 states to identify standards and criteria that are common or shared among the state laws and high school association concussion guidelines; and (3) identify and discuss the major gaps or differences across all states, to analyze the differences and highlight potential weaknesses in the current system. References Amberg, P. A. (2012). Protecting kids’ melons: Potential liability and enforcement issues with youth concussion laws. Marquette Sports Law Review, 23(1), 171-190. Associated Press. (2018, July 30). Claims in NFL concussion settlement hit $500 million in less than 2 years. CBS News. Retrieved from https://www.cbsnews.com Belson, K. (2017, September 19). Playing tackle football before 12 is tied to brain problems later. The New York Times. Retrieved from https://www.nytimes.com Bompadre, V., Jinguji, T. M., Yanez, N. D., Satchell, E. K., Gilbert, K., Burton, M., Conrad, E. U., & Herring, S. A. (2014). Washington State’s Lystedt law in concussion documentation in Seattle public high schools. Journal of Athletic Train- ing, 49(4), 486-492. Brody, J. (2015). Concussions can occur in all youth sports. The New York Times. Retrieved from https://well.blogs.nytimes.com/2015/08/24/concussions-can-occur-in-all-youth-sports/ Bryan, M. A., Rowhani-Rahbar, A., Comstock, R. D., & Rivara, F. (2016). Sports-and recreation-related concussions in US youth. Pediatrics, 138(1), e20154635. Carter, T. B. (2018). It is a mindboggling dilemma: To play or not to play youth sports due to concussion risk? Catholic University Law Review, 67(1), 1-66. Centers for Disease Control and Prevention (2019). Surveillance Report of Traumatic Brain Injury-related Emer- gency Department Visits, Hospitalizations, and Deaths—United States, 2014. Centers for Disease Control and Pre- vention, U.S. Department of Health and Human Services. CNN. (2019, August 15). NFL concussions fast facts. Retrieved from https://www.cnn.com Chavez, C. (2017, July). Boston University study finds CTE in 110 of 111 brains of former NFL players. Sports Illus- trated.Retrieved from https://www.si.com Ezell, L. (2013, October 8). Timeline: The NFL’s concussion crisis. Retrieved from https://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/timeline-the-nfls-concussion- crisis/#disqus_thread National Collegiate Athletic Association Student-Athlete Concussion Litigation, 1:13-cv-09116 (Ill. Dist. Ct. 2019).

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NCAA. (2019). Concussion Safety Protocol Management. NCAA: Sport Research Institute.Retrieved from http://www.ncaa.org/sport-science-institute/concussion-safety-protocol-management NFL. (2018, June 22). Protecting players: NFL head, neck and spine committee’s concussion protocol overview. NFL Play Smart, Play Safe. Retrieved from https://www.playsmartplaysafe.com/newsroom/videos/nﬂ-head-neck-spine- committees-concussion-protocol-overview/ Potteiger, K. L., Potteiger, A. J., Pitney, W., & Wright, P. M. (2018). An examination of concussion legislation in the United States. Internet Journal of Allied Health Sciences and Practice, 16(2), 1-9. Sellers, S. (2019, March 5). College concussion claims put NCAA at risk as tragedies multiply. Bloomberg Law. Re- trieved from https://news.bloomberglaw.com/product-liability-and-toxics-law/college-concussion-claims-put-ncaa- at-risk-as-tragedies-multiply SHAPE America. (2019). Concussion: State legislation and policy. Society of Health and Physical Educators. Retrieved from https://www.shapeamerica.org/standards/guidelines /Concussion/state-policy.aspx Turner v. NFL (In reNFL Players’ Concussion Injury Litig.), 307 F.R.D. 351, 361 (E.D. Pa. 2015). Wood, L. (2019, August 12). $75M NCAA concussion deal gets ﬁnal ok with $14M fees. Law360. Retrieved from https://www.law360.com/articles/1187958

169 Sport and Recreation Law Association Conference

“But They’re Already Paid”: Payments In-Kind, Student-Athletes, and the FLSA

Abstract ID: 6

Mr. Sam Ehrlich (Florida State University)

A common refrain exists in most discussions regarding the potential right for NCAA student-athletes to be paid for their services: the argument that student-athletes are already paid by virtue of their receipt of in-kind benefits including room and board, daily meals, and a full athletic scholarship (see, e.g., Burton, 2012; Dorfman, 2013; Frei, 2014; Jacobs, 2019). According to these commentators, student-athletes do not need to be compensated with any kind of wage, salary, or stipend beyond what they already receive, because what they already receive is more than enough to fairly compensate them for the services they provide to their college or university. But despite the multitude of opinions arguing the benefits of such in-kind compensation made along ethical and policy lines, little attempt has been made to discuss the legal ramification of such payments under federal and state employment law. While it is clear to most scholars that the efforts by the NCAA, conferences, and member institutions to fix compensation to athletic scholarships and cost-of-living would violate antitrust law but for the “ample latitude” given to amateurism restrictions by the courts (NCAA v. Board of Regents, 1984; see also, e.g., Baker, Edelman, & Watanabe, 2019), a complete picture of the potential legal liability for institutions under wage- and-hour laws is still unclear. Discussion of student-athlete compensation within the context of the federal Fair Labor Standards Act (FLSA) is particularly important given three recent cases that have collectively left open the idea that revenue-sport student- athletes are employees of their colleges and universities (see Ehrlich, 2019). While the Seventh Circuit in Berger v. NCAA (2016) definitively declared two non-scholarship track-and-field athletes to not be employees of their school or the NCAA itself, the Eastern District of Pennsylvania in July 2018 refused to find that a former intercollegiate football player was not an employee as a matter of law (Livers v. NCAA, 2018). More recently, the Ninth Circuit significantly narrowed a district court ruling rejecting the idea that student-athletes are employees of their schools by focusing their analysis strictly on the NCAA and athletic conferences while explicitly denying to consider the question of whether the schools themselves could be considered employers (Dawson v. NCAA, 2019; Baker, 2019). This presentation is framed by a basic assumption: that student-athletes will soon be declared by the courts to be statutory employees of their college or university under the FLSA. With that assumption in mind, this presentation will explore that common argument that student-athletes are, in fact, “already paid,” and determine whether the current compensation afforded to student-athletes satisfies federal wage and hour law by applying the FLSA’s in-kind compensation provisions to the in-kind benefits given to student-athletes by their colleges and universities. In doing so, this presentation will focus on the applicability to the FLSA minimum wage requirements of three primary in-kind benefits provided by institutions to their student-athletes that employees in other contexts generally do not receive to such a degree: food, lodging, and college tuition.

Under section 3(m) of the FLSA, lodging and food may be creditable towards minimum wage requirements (Definitions, 1961; see Donovan v. Miller Properties, 1983). However, these in-kind benefits are only creditable if certain requirements are met. For example, in order to receive credit for providing lodging and food to employees under Section 3(m), five requirements must be met: (1) the lodging must be regularly provided by the employer or similar employers; (2) the employee must voluntarily accept the lodging; (3) the lodging must be furnished in compliance with acceptable federal, state, and local laws; (4) the lodging must primarily benefit the employee,

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rather than the employer; and (5) the employer must maintain accurate records of the costs incurred in the furnishing of the lodging (U.S. Dept. of Labor, n.d.; see Balbed v. Eden Park Guest House, 2018, p. 289).

While most of these requirements are easily satisfied within the student-athlete employment context, the second requirement—that the employee must voluntarily accept the lodging—belies an interesting analysis thanks to a string of decisions in the early 1980s that set forth inconsistent interpretations of the Department of Labor’s interpretation of what exactly constitutes “voluntary and uncoerced” acceptance of lodging and food benefits (see Lopez v. Rodriguez, 1981; Donovan v. New Floridian Hotel, 1982; Davis Bros v. Donovan, 1983; Donovan v. Miller Proper- ties, 1983). Indeed, a later court found that the voluntary acceptance requirement is not supported by the FLSA at all, though that line of reasoning has not thus far been adopted by other courts (Herman v. Collis Foods, 1999). Similarly, the applicability of college tuition benefits to FLSA minimum wage requirements is fairly undefined within the law. Per the Department of Labor under 29 C.F.R. § 521.32 (2013), “tuition furnished by a college to its student employees” can be credited under Section 3(m) as “other facilities” similar to food or lodging (see, e.g., White v. Publix Super Markets, 2015). As such, at least one court has found that this regulation “strongly suggests that facilities that are regarded as primarily for the benefit and convenience of the employee must be included in the calculation of the regular rate” (Adoma v. Univ. of Phoenix, 2011; see also Arriaga v. Florida Pacific Farms, 2002). However, this same regulation also states that “facilities which are primarily for the benefit or convenience of the employer need not be included in computing wages.” Whether the grant of college tuition primarily benefits the student-athlete or the college is a matter of strong debate, given the need for institutions to give scholarships to student-athletes in lieu of payment in order to comply with NCAA regulations. While this presentation focuses exclusively on base-level legal judgments about the applicability of these in-kind benefits to federal employment law, it invites future research as to whether, given the ‘reasonable costs’ of such benefits, schools are in compliance with minimum wage restrictions even without paying college athletes. This analysis is particularly important in today’s environment of intercollegiate sports, as it may allow for the potential preservation of NCAA ‘amateurism’ restrictions through collective bargaining and the nonstatutory labor exemption (see Ehrlich, 2019). Whether a path to the preservation of amateurism would be a positive development is a matter of debate, but this presentation invites further discussion on this topic by answering once and for all whether student-athletes are in fact “already paid” under federal employment law.

References Adoma v. Univ. of Phoenix, 779 F.Supp.2d 1126 (E.D. Cal. 2011). Arriaga v. Florida Paciﬁc Farms, 305 F. 3d 1228 (11th Cir. 2002). Baker, T. (2019, August 15). Narrow decision favoring NCAA and Pac-12 fails to resolve whether college athletes are employees. Forbes. Retrieved from https://www.forbes.com/sites/thomasbaker/2019/08/15/narrow-ninth-circuit- decision-favoring-the-ncaa-and-pac-12-fails-to-resolve-whether-college-athletes-are-employees/#53bf2af312a0. Baker, T.A., Edelman, M., & Watanabe, N.M. (2017). Debunking the NCAA’s myth that amateurism conforms with antitrust law: A legal and statistical analysis. Tennessee Law Review, 85(3), 661-706. Balbed v. Eden Park Guest House, 881 F. 3d 285 (4th Cir. 2018). Berger v. NCAA, 843 F.3d 285 (7th Cir. 2016). Burton, R. (2012, April 13). NCAA athletes are already paid and paid handsomely. Forbes. Retrieved from https://www.businessinsider.com/ncaa-athletes-are-already-paid-2012-4.

Davis Bros. v. Donovan, 700 F.2d 1368 (11th Cir. 1983).

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Dawson v. NCAA, 932 F.3d 905 (9th Cir. 2019).

Deﬁnitions, 29 U.S.C. § 203 (1961). Donovan v. Miller Properties, 711 F.2d 39 (5th Cir. 1983). Donovan v. New Floridian Hotel, 676 F. 2d 468 (11th Cir. 1982). Dorfman, J. (2013, April 2013). Pay college athletes? They’re already paid up to $125,000 per year. Forbes. Re- trieved from https://www.forbes.com/sites/jeffreydorfman/2013/08/29/pay-college-athletes-theyre-already-paid-up- to-125000year/#40ab136e2b82. Ehrlich, S.C. (2019). The FLSA and the NCAA’s potential terrible, horrible, no good, very bad day. Loyola LA Enter- tainment Law Review, 39(2), 77-114. Frei, T. (2014, February 2). College athletes are already paid. The Denver Post. Retrieved from https://www.denverpost.com/2014/02/02/frei-college-athletes-are-already-paid/. Herman v. Collis Foods, 176 F. 3d 912 (6th Cir. 1999). Livers v. NCAA, No. 17-4271, 2018 U.S. Dist. LEXIS 124780 (E.D. Pa. 2018). Lopez v. Rodriguez, 668 F. 2d 1376 (D.C. Cir. 1981). Jacobs, T. (2019, April 3). College athletes are already ‘paid’ [Letter to the editor]. Hartford Courant. Retrieved from https://www.courant.com/opinion/letters/hc-le-jacobs-murphy-athletes-20190403-20190403- cihztzifx5frnhpxa3whtv6324-story.html. Other Facilities, 29 C.F.R. § 531.32 (2013). U.S. Department of Labor. (n.d.) Credit towards wages under section 3(m) questions and answers. Retrieved from https://www.dol.gov/whd/homecare/credit_wages_faq.htm. White v. Publix Super Markets, No. 14-cv-1189, 2015 U.S. Dist. LEXIS 109670 (M.D. Tenn. 2015).

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“I am a woman, and I am fast.” Caster Semenya vs. International Association of Athletics Federations: The Race Continues

Abstract ID: 70

Ms. Allison Fletcher (North Central College)

Although the struggle to defend her gender as a female athlete began more than a decade ago, elite South African women’s track athlete Caster Semenya was forced to turn to the Court of Arbitration for Sport (CAS) in 2018. Se- menya filed a request for arbitration against the International Association of Athletics Federations (IAAF), which is the worldwide governing body for professional track and field, in hopes that CAS would declare the following IAAF regulation unlawful: “IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development)” (CAS, 2018). To be ruled as eligible to compete in international competitions within her track events (i.e., 400-meter, 800-meter, and 1500-meter), this regulation would require Semenya to utilize medical interventions to reduce her endogenous circulating testosterone level to below 5-nanomoles. Although the presiding CAS panel, in a two-to-one decision, found the aforementioned regulations to be discriminatory, they stated that “such discrimination is a necessary, reasonable, and proportionate means of achieving the aim of what is described as the integrity of female athletics and the upholding of the ‘protected class’ of female athletes in certain events.” (CAS 2018/O/5794 Mokgadi Caster Semenya v IAAF,p. 160). In brief, Semenya lost her case against the IAAF, but she has filed an appeal with the Swiss Federal Supreme Court. Additionally, CAS suggested the 1500-meter and mile be considered for exclusion from the regulations until additional evidence becomes available that female athletes with high endogenous circulating testosterone enjoy a significant advantage during these events, but the IAAF elected to forego this suggestion (IAAF, 2019). The aforementioned regulations instated by the IAAF and upheld by CAS were created based on scientific evidence submitted to CAS by the IAAF in conjunction with a CAS ruling from a previous case involving Indian sprinter Du- tee Chand (CAS 2014/A/3759 Chand v. AFI & IAAF;CAS, 2017). Chand had challenged former IAAF regulations (i.e., “IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition”), and received an Interim Award from CAS, which order the IAAF to submit the aforementioned scientific evidence, specifically “evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes” (CAS, 2017, para 2). As a result of the new regulations replacing the previous, Chand’s case was void, and the new regulations do not affect Chand’s eligibility; for, she competes in the 100-meter, which is not an event included within the new regulations. Because the aforementioned scientific evidence was submitted to comply with a previous CAS ruling in a similar case, and the evidence was alluded to by CAS judges’ in their decision against Semenya, it is prudent to offer some information regarding this evidence. It appeared that the primary research upon which the IAAF based their current regulations was Bermon and Garnier (2017) and Eklund, et al. (2017). In short, Bermon and Garnier (2017) stated that high free circulating testosterone levels in female athletes contributed to a competitive advantage over female athletes with low free testosterone levels, and Eklund, et al. (2017) suggested an association between endogenous androgens (i.e., sex hormones such as testosterone) in female athletes and enhanced athletic performance. How- ever, there has been controversy surrounding the authors’ methods and findings. Some critiques of this research included: Pielke, Tucker and Boye (2019), Camporesi (2018), Karkazis and Carpenter (2018), Menier (2018), and Sőnksen et al. (2018). Among the key concerns submitted by these critics was that the IAAF funded Bermon and Gar- nier (2017) and independent researchers could not adequately replicate their findings. While Bermon, Hirschberg, Kowalski and Eklund (2018) was submitted to correct some errors pointed out by critics in Bermon and Garnier

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(2017), these results also could not be replicated by independent researchers and were described as being of “unknown validity” (Pielke, Tucker & Boye, 2019, p. 23). Additionally, Sőnksen et al. (2018) pointed out, in relation to Berman and Garnier (2017) and Eklund, et al. (2017), that “while such studies [showed] the presence of an association…between blood testosterone concentration and athletic performance…they [did] not prove causality,” (p. 1481). Thus, researchers have expressed concerns regarding the evidence from which the current regulations were built, especially in light of the fact that some female athletes may lose their eligibility to compete as a result of the implementation of these regulations. While it would seem Semenya’s mission to race without medical interventions to lower her endogenous testosterone has come to end, her appeal with the Swiss Federal Supreme Court is on-going. However, the court ruled the IAAF regulations would remain in effect during the appeals process (Swiss Federal Supreme Court, July 2019). Thus, for the time being, Semenya has been sidelined from international track and field competitions. Additionally, based on the statement published by the Swiss Federal Supreme Court (i.e., Swiss Federal Supreme Court, July 2019), the probability for success in her appeal does not appear to be in Semenya’s favor. It is the purpose of this presentation to: 1) Provide a brief explanation of the current IAAF DSD Regulations and the research upon which those regulations were built, 2) Explain the key arguments against the regulations submitted by Semenya to CAS, 3) Describe how CAS arrived at its decision to rule in favor of the IAAF, and 4) Provide updated information about the current status of this case as it unfolds over the next few months. References: Bermon S., & Garnier, P.Y. (2017). Serum androgen levels and their relation to performance in track and field: mass spectrometry results from 2127 observations in male and female elite athletes. British Journal of Sports Medicine, (2017)51,1309-14. Camporesi, S. (2018). A question of ’fairness’: why ethics should factor in the court of arbitration for sport’s decision on the IAAF Hyperandrogenism Regulations. British Journal of Sports Medicine, (2019)53,797-98. CAS 2014/A/3759 Chand v. AFI & IAAF CAS 2018/O/5794 Mokgadi Caster Semenya v. IAAF Court of Arbitration for Sport [CAS], (2017). CAS Suspends the IAAF Hyperandrogenism Regulations Until End of September 2017. Court of Arbitration for Sport: Lausanne, Switzerland. Retrieved from http://www.tas- cas.org/fileadmin/user_upload/Media_Release_3759_July_2017.pdf Court of Arbitration for Sport [CAS], (2018a). Caster Semenya Challenges the IAAF Eligibility Regulations for Female Classification at the Court of Arbitration for Sport (CAS). Court of Arbitration for Sport: Lausanne, Switzerland. Retrieved from http://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_IAAF.pdf Eklund, E., Berglund B., Labrie F., et al., (2017). Serum androgen profile and physical performance in women Olympic athletes. British Journal of Sports Medicine, (2017)51,1301-8 International Association of Athletics Federations [IAAF]. (2019). “IAAF PUBLISHES BRIEFING NOTES AND Q&A ON FEMALE ELIGIBILITY REGULATIONS.” Retrieved from https://www.iaaf.org/news/press-release/questions-answers- iaaf-female-eligibility-reg Karkazis, K., & Carpenter, M. (2018). Impossible “Choices:” The Inherent Harms of Regulating Women’s Testosterone in Sport. Journal of Bioethical Inquiry, 15(4),579-87. Menier, A. (2018). Use of event-specific tertiles to analyse the relationship between serum androngens and athletic performance in women. British Journal of Sport Medicine, (2018)52,1538-9 Pielke, R., Tucker, R., & Boye, E. (2019). Scientific Integrity and the IAAF testosterone regulations. The International Sports Law Journal, (2019)19, 18-26. Sőnksen, P. H., Bavington, L.D., Boehning T., et al. (2018). Hyperandrogenism controversy in elite women’s sport: an examination and critique of recent evidence. British Journal of Sport Medicine, (2018)52,1481-2.

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Swiss Federal Supreme Court. (30, July 2019). The DSD Regulations are, for the time being, again applicable to Caster Semenya. Retrieved from https://www.bger.ch/ﬁles/live/sites/bger/ﬁles/pdf/en/4A_248_2019_yyyy_mm_dd_T_e_09_54_21.pdf

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Authors Index

Ammon, R. 112 Grow, N. 23 Arnold, K. 95 Hanna, C. 30, 128 Baker, T. 44 Haroldson, M. 37 Batista, P. 86 Haugh, T. 23 Bemiller, J. 42 Henry, J. 50, 133 Bird, N. 27 Holden, J. 44 Birren, G. 147 Hooley, K. 124 Brady, L. 56 Hums, M. 3 Brison, N. 30, 58, 150 Brown, S. 58 Jessop, A. 88 Jones, G. 76 Carroll, M. 79 Cattani, K. 39 Kavanagh, A. 103 Cebula, K. 20, 73 Keiper, M. 159 Chang, Y. 116 Kim, H. 1 Cho, S. 91, 116 Kim, S. 66 Cocco, A. 107 Kinann, C. 7 Connaughton, D. 66 Koller, D. 44 Conrad, M. 62, 101 Kramer, E. 79 Cryan, M. 25 Curto, J. 14 Lasota, M. 122 Lee, M. 116 Demartini, A. 66 Lennon, K. 160 Dodds, M. 20, 56 Lens, J. 69 Dwyer, K. 165 Levine, J. 76, 98, 128 Long, J. 53 Ehrlich, S. 170 Lovett, M. 143, 153 Epstein, A. 81 Lovich, J. 126 Evans, J. 162

Martensson, A. 140 Farrell, C. 84, 145 Martin, I. 150 Fischer, K. 147 Masteralexis, J. 154 Fletcher, A. 173 Masteralexis, L. 154 Fried, G. 131, 159 McArdle, D. 66 Fundowicz, S. 60 McCoy, L. 35 Gentile, M. 136 McCray, K. 110 Goldsmith, A. 39, 76 McGlone, C. 143, 153 Gorham, J. 63 McKelvey, S. 11 Grady, J. 11 Menaker, B. 98

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Miller, J. 7, 14, 46, 54 Siegfried, N. 3 Moiseichik, M. 27, 133, 157 Siegrist, A. 143, 153 Moorman, A. 11, 95 Smith, J. 84, 145 Moss, J. 105, 157 Smith-Nix, A. 50, 133 Murfree, J. 167 Sohn, S. 116 Squadron, B. 25 Osborne, B. 17, 20 Swim, N. 167 Park, P. 91 Taylor, L. 110 Pittman, A. 112 Thomas, C. 124 Police, C. 167 Tutka, P. 71, 136 Pond, A. 107 Presley, R. 95 Waller, S. 42 Ramos, W. 109, 138 Wendt, J. 46 Redd, S. 109 Williams, D. 39, 71 Rose, R. 17 Wolohan, J. 33, 120 Won, J. 91 Sabin, J. 39, 71 Schlereth, N. 126 Young, S. 124, 138 Seidler, T. 1, 46, 54, 122 Sheptak, D. 98 Zonder, E. 110

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