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ESPE 6113 Sport Law PPT 1.1-1.5

Terms in this set (99)

**Black's Law Dictionary: "Law...a body of rules prescribed or controlled by authority having binding legal authority."

The system of principles or rules established to regulate human behavior.

Provides guidance for interpreting the laws. Past cases resolved by various courts.
A. Tort
B. Contract

aws passed by legislative bodies—i.e. national, state, municipal, district, county, and city.

-Criminal
-Constitutional- laws embodied in the US Constitution.
-Antitrust law- limits monopolies.

Administrative Law

Laws and rules developed by government units responsible for managing government agencies.

Examples: National Labor Relations Board (NLRB), Office of Civil Rights (OCR), Occupational Safety and Health Administration (OSHA), IRS.

Non-criminal matters. Against individuals. Monetary damages.

Criminal courts

Against the state. Physical harm to individuals. Deprivation of individual's liberty.

Statute of Limitations

Time limit to file a claim.

Courts authority to hear and decide a case.

State court: Has jurisdiction over cases conducting business or both parties reside in that state.
-State Supreme Court, Court of Appeals, District Courts

Federal court: Cases dealing with constitutional law, federal law, citizens of different states, or cases involving more than $75,000.
-US Supreme Court-- Court of Appeals (12 courts- only appellant jurisdiction)-- Fed. Dist. Cts. (94 cts)

Administrative court- created by Congress or state legislatures.
-E.g (NLRB- Labor law)

Previous cases that create boundaries by which future cases can be decided.

Stare decisis- legal term that means the same as precedent, designed to create order/standardization.

Party that files a legal claim.

Party that the claim is filed against.

Process by which a party to a suit can challenge the legal decision rendered by a lower court by taking to a Court of Appeals.

Party who lost case, initiates appeal.

Most cases are settled out of court. Only about 5% of cases go to trial.

Motion for Summary Judgment

Undisputed facts that are in a party's favor to cause that they should win case without going to trial.

-Wrong against person

-Individual is plaintiff

-Preponderance of evidence (>50% guilty)

-Money damages

-Wrong against society

-State is plaintiff (DA)

-Beyond a reasonable doubt

-Deprivation of liberty

Researching cases

Primary sources: Constitutional rules and regulations, statutes, court decisions.

Secondary sources: Articles, journals, summaries, legal dictionaries, encyclopedias, law review articles.

Complaint- document stating the claim

Interrogatories

Deposition- document numerous questions under oath (motion for summary judgment)

Physical Evidence- documents, inspections, video, etc.

Serving the notice of the complaint

Defendants must answer by certain date

Determination of geographic court

The means to find more detailed information

Plaintiff- always listed first in cases. Files claim.

Defendant- party being sued.

With or without jury (plaintiff's decision). Bench trial- judge only.

Judge's ruling OR
Jury deliberates

Only analyzes questions of law. There is no evidence presented.

Executive branch

Who: President and governors
What: Enforce laws
Type: Executive orders, agency regulations

Judicial branch

Who: Federal and state courts
What: Interpret laws
Type: Case law/common law

Legislative branch

Who: Congress and state legislatures
What: Enact new laws and amend existing ones
Type: Statutes

U.S. Supreme Court

Court of last resort

Writ of Certiorari: A court order stating that the court will/will not review a lower court's decision

Legal error: Only grounds on which a case may be appealed to the Supreme Court

Possible Actions of an Appellate Court

Affirms decision of lower court

Reverses the decision

Remands the case back to the lower court with instructions to reexamine it

Criminal Courts

Prosecute people charged with a crime against the state

Involve a trial by a jury of one's peers

Must prove guilt beyond a reasonable doubt

Hear cases involving controversies of a noncriminal nature

May involve a jury, or may involve a judge with no jury

Must prove the case by a preponderance of the evidence

Civil Causes of Action

Contract disputes

Employment discrimination

Torts

Civil Trial Process

plaintiff files complaint-> defendant answers complaint-> discovery-> settlement or trial

Concluding a Trial

Decision of full merits of the case

Motion to dismiss for failure to state a claim

Motion for summary judgment

Preliminary injunction

Court Interpretations

Statutes
Regulations
Constitutions
Common law

Interpretation of Statutes

Courts use time-honored maxims, or canons of statutory construction

Potential problems:
-Canons may contradict one another

-Statutes may be old—could result in an unjust interpretation in light of contemporary situation

-Statutory language may be ambiguous

Cumulative process

Effect: Uniformity, stability, and predictability of the law

Interpretive process

Effect: Flexibility; adaptation of existing law to new situations

In Your Role as Manager

The U.S. Legal System

Pay attention to statements in the news about the U.S. legal system and how it works—to feel comfortable about applying knowledge to future decisions.

Talk to a trusted colleague when you have a concern about a legal problem—to see if you are interpreting it correctly and to role-play the lawyers' arguments.

Alternative Dispute Resolution (ADR)

A method of resolving a conflict while avoiding a lengthy trial

-Arbitration
-Mediation

Primary Legal Resources

Constitutions
Statutes
Regulations
Court decisions (case reporters)

Secondary Legal Resources

-Law dictionaries
-Legal encyclopedias
-Case summaries
-Restatements
-Treatises and hornbooks
-Law reviews
-Case digests
-Indexes
-Electronic databases
-Websites
-Shepard's Citators

Stages of Legal Research

Identify the specific issue to be researched -> Find the relevant law-> Read and summarize the relevant law -> Update the relevant law -> Organize the information you have collected

In Your Role as Manager

Using Basic Legal Strategies

-Conduct preliminary legal research on an issue to determine if you need to seek legal advice.

-Consult a lawyer to make sure a certain legal principle or law is relevant to the issue.

-Use a preventive law approach, and use a lawyer to help draft contracts, policies, and risk management planning.

-Have a working understanding of basic legal issues facing your organization or event.

Negligence Liability

Area of greatest number of lawsuits against schools, municipalities, private business, or non-profit.

About 1/2 of all college & universities have had such legal actions.

Negligence is foremost of all legal cases against high school athletics personnel.

Reasons for Negligence Cases

Anyone can be sued at anybody, for anything, at anytime.

We cannot eliminate all risk.

We have all been negligent at some point during our careers.

The strategy is to minimize the risk associated with any given activity.

Negligence is defined in Black's Law Dictionary as "the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."

Unintentional torts (wrongs) committed by individuals or organizations.

**Defenses are available for organizations.

Standards of Practice

Standards, guidelines, position statements, or recommendations developed and published by professional organizations used to measure competence (i.e duty) of a professional.

Negligence: 4-Part Court Test

1. Duty
2. Breach of Duty
3. Proximate Cause
4. Damage

1. Was there a duty owed?

Obligation to provide a duty-

Refers to a responsibility toward others arising from relationship made between two parties to protect them from unreasonable risk of injury (van der Smissen, 1990).

Obligations vary dependent on nature of activity, participants, facility, location, etc.

Sources of Duty (Sport)

Inherent relationship: Existence of special relationship

student/instructor, camp director/participant

Voluntary Assumption- maybe a moral obligation but not legal, volunteer coach, etc.

Statutory- from employment, supervisory requirements. Violations may be negligence per se (deemed negligent without having to prove negligence or investigate reasonableness of conduct)

Foreseeability

There is a duty to be proactive in protecting only when the risk is foreseeable by a prudent professional

Foresight not hindsight

Is it predictable?

Should you have known based on...?

Invitee
Licensee
Trespasser
Recreational user

2. Was there a breach in the duty?

1. Types of risks
2. Reasonable care
3. Foreseeability- the reasonable expectation that the situation could have been foreseen.

Inherent risks- those integral to the activity. If removed, would activity be altered? No liability for inherent risks.

This is legally speaking, primary assumption of risk.

Participants assume the inherent risks of any activity if they have the knowledge, understanding and appreciation of known risks.

Ordinary Negligence

An unintentional breach of duty, act of omission or commission that exposes a person (responsibility to protect) to unreasonable risk of injury, or cause damage.

Courts also stated defendants generally have a duty to not increase the risks over and above those inherent in the sport.

Extreme Behavior

Gross, reckless misconduct negligence normally falls outside of the organization's liability. Usually the employee is liable for this negligence type.

Reckless Misconduct

Courts find intentional tort has not occurred

Nabozny v. Barnhill seminal case in evolution of reckless misconduct in player-to-player violence

Reasonable Care

A reasonable amount of care or duty would be expected of a prudent person in similar circumstances.

3. Was there proximate cause?

Did the breach in duty lead to the injury/damage?

A connection must be established

Example: Lack of supervision

4. Was there injury/damage?

No damage, no liability

Examples are economic loss, physical pain and suffering, emotional distress, and physical impairment

Common Areas of Negligence

Failure to warn

Failure to hire competent employees

Failure to instruct

Failure to provide adequate and safe equipment

Failure to safely transport

Failure to provide and maintain safe facilities

Failure to provide training or emergency services

***Failure to supervise (#1)

Inherent Risks - Risks that are a normal part of the activity.
-These risks cannot be eliminated without changing the nature of the activity.

Negligence - Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm.

Fundamental Concepts

Common Law
Contract Law
Statutory Law

The body of principles and rules of action which derive their authority solely from the prior judgments and decrees of the courts.

The body of law that develops and derives through judicial decisions.

That body of law which governs the rules regarding binding agreements between parties.

Several means by which risk can be allocated are derived from contract law.

Body of law that is created by acts of a legislative body.

Depending on intent and wording of the legislation, specific acts or actions may apply to:
-Individuals
-Public Recreation and Sport Entities
-Private Recreation and Sport Entities

Primary Assumption of Risk

A legal theory by which a plaintiff may not recover for an injury received when the plaintiff voluntarily exposed himself or herself to a known and appreciated danger.

Presumed when an individual has voluntarily participated in an activity that involves inherent or well-known risks.

Three elements of Primary Assumption of Risk

Inherent risk

Voluntary consent

Knowledge, understanding, or appreciation
-(years of experience participating or viewing, age)

Implied Primary Assumption of Risk

Participant has voluntarily taken part in an activity that involves inherent risk or well-known risks.

The participant has signed no document by which he or she assumes the risk.

Express Assumption of Risk

Participant sets forth in words (verbal/written) assumes inherent risks.

Participant agreements, informed consent agreements, and agreements to participate are instruments that can be used to obtain this type of assumption of risk.

Secondary Assumption of Risk

Voluntary choice or conduct of the participant to encounter a known or obvious risk created the negligent conduct of the service provider.

Sovereign and Governmental Immunity
-Judicial doctrines that prevent one from filing suit against the government and its political subdivisions without their consent.

Available Defense for Organization

Ultra Vires Act

-Employee responsible for negligence rather than employer.
-Beyond powers (authority)
-Acting outside or beyond job responsibility
-Employer is not responsible!!

Defenses Based on Contract Law

Waiver
Informed Consent
Agreement to participate document
Assumption of risk agreement
Facility Leases Agreements---(Activity related/premise related)
Equipment Rental Agreements
Indemnification Agreement
Independent Contract Services

Defenses Based on Statutory Law

Contributory negligence- assignment of negligence percentages to both plaintiffs and defendants (e.g. 60/40%)
Pure comparative fault
Modified comparative fault
Legislation-based Immunity
Procedural Noncompliance
Statute of Limitation

Sovereign Immunity

Immunity granted to state agencies (e.g. public schools) in cases of ordinary negligence.

Note: Governmental or sovereign immunity is becoming less reliant in many states.

Auburn School District No.408 v King County (1999)
Pride Park Atlanta v City of Atlanta (2000)
Madsen v Wyoming River Trips, Inc. (1999)
Yang v Voyagaire Houseboats, Inc. (2005)
Beaver v Foamcraft, Inc. (2002)

Injury in Sport

Results from one of (3) causes
1. inherent risks of the activity (common activity)
2. negligence by the service provider or its employees
3. more extreme acts by the service provider or its employees (gross negligence, reckless conduct, willfull/wanton conduct)

Usually meant to protect the service provider from liability for the ordinary negligence of the service provider or its employees
Generally will not protect the provider from liability for extreme forms of negligence

(6) Different Categories

There are (6) different categories that are determined depending on the degree of rigor required for a valid waiver by the courts in the state:
Insufficient Information
Lenient (Virgin Islands and 10 States)
Moderate (16 States and D.C.)
Strict (16 States)
Strict or Not Enforced (4 States)
Not Enforced (3 States)

At least 43 States, D.C., and the Virgin Islands a well-written, properly administered waiver, voluntarily signed by an adult, can be used to protect the recreation or sport business from liability for ordinary negligence by the business or its employees
Arkansas is under the (Strict) Category

Requirements for a Valid Waiver

Public Policy
that principle of law under which freedom of contract or private dealings is restricted for the good of the community
Consideration
Something of value be exchanged between parties
Parties to the Contract
Parties relinquishing rights
Parties protected by the waiver
Parties who do not have capacity to contract

waiver is generally against public policy if it peertains to a service important to the public, if the parties are not of queal bargaining opwer (contracts of adhesion), if there is an employer-employee relationship, or it attempts to preclude liability for extreme forms of conduct such as gross negligence, reckless misconduct, or willful and wanton conduct.
The general rule in most states is that recreation or sport related waivers are not against public policy

Parties to the Contract

Parties Relinquishing Rights
When waiver is signed, signer relinquishes rights of signer to hold service provider liable in event of injury
If signer is seriously injured or killed, their spouse often file suit against service
A phrase in which the signer relinquishes the right to recover for injury or death is usually included in the waiver

***Not enforceable in most states, because most states hold that loss of consortium and wrongful death claims are independent causes of action and are not derivative upon whether the signer has or would have a valid claim

Loss of Consortium

loss of material services or inatngibles such as companionship and sexual relations

Parties Protected by the Waiver

Waiver must specify the parties protected by the agreement

Parties Who Do Not Have Capacity to Contract

Certain classes of individuals do not have the capacity to contract
Among those classes are persons lacking mental capacity, those unduly influenced by drugs or alcohol, and persons who have not reached the age of majority

Waivers signed by minors are UNENFORCEABLE
Minors can not be bound by a contract
Recreation or Sport Related Waiver require the Minor's Parent to sign, making the contract valid

No cases have been found in which a recreation- or sport-related waiver, signed only by a minor, was upheld when challenged in court

Strategies to Minimize Liability

Providers have used 3 strategies in attempting to gain protection
1. Required that the parent or guardian sign the waiver on behalf of the minor client
2. Required the parent to indemnify the provider (agree to repay the provider for any loss suffered due to the participation of the minor
3. Requiring the parent to sign a mediation/arbitration agreement by which the parent agrees to submit any claim to mediation and/or arbitration rather than filing a lawsuit

Cases Regarding Minors

Smith v. YMCA of Benton Harbor/St. Joseph, 1996
A 10 yr old girl was hurt by another girl jumping on top of her
Mother signed a post-injury release in exchange for a $ Settlement
When girl reached Majority, she filed suit against YMCA
Parent has no authority to waive, release, or compromise claims by or against the parent's child.
YMCA was not protected by release signed by parent

Stand-Along Document
The only function of the document is to provide liability protection for the service provider

Waiver Within Another Document
Membership agreement, entry form, or rental agreement

Group Waiver
A waiver at the top of a sheet on which several parties sign (i.e. team roster, sign-in sheet at health club)

Disclaimer
Statement asserting that the provider is not responsible for injury

Often found on the back on tickets
Not signed, provides no evidence that the participant agreed to it, and, with a few exceptions, is ineffective
No harm in using disclaimers, but provider should be aware that they will not effectively protect the business

Participant Agreement

Designed to improve the rapport and understanding between the provider and the participant
Increases the understanding of the rewards and activity risks of the participant, prepares them psychologically for any discomforts, making legal action less likely

Estimated Likelihood of Courts Enforcing a Waiver Signed by a Parent on Behalf of a Minor

Very unlikely to be enforced
HI, WA
LA, IL
MI, ME
NJ, MT
TN,PA
VT, VA

Fair
AR
AL
GA
IN
MO
NE

Good
AZ
IA
DE
MS
NY

Excellent
CA
CO
CT
FL
MA
ND
OH
WI

Participant Agreement

Allows participant to make more informed decisions as to participation
Provides a much broader range of protection

Guidelines for writing waivers(Cotton, 2001)

1) Title should be descriptive (e.g. Waiver & Release of Liability)
2) Print size should be at least 10 pt and waiver language should be conspicuous
3) Waiver should clearly and unambiguously state the signer is releasing the service provider from liability for injuries resulting from ordinary negligence of the provider.
4) Denote consideration within the waiver... "In consideration for being allowed to participate in..., the signer agrees to..."
5) Specify all parties who are relinquishing the rights and parties protected by the waiver.
6) In a separate section, inform the signer of the inherent risks associated with activity, have the signer acknowledge an understanding of the risks, and have signer assume responsibility for the inherent risks.

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