One of the more controversial sessions at the Sports and Recreation Law Association’s annual conference last month was a presentation made by Paul M. Anderson, Associate Director of the National Sports Law Institute and Adjunct Associate Professor, on the topic of “Federal Regulation of Drug Testing in Professional Sports.”
While Anderson’s presentation looked at the legality of such an intrusion, the session morphed into a session where the audience looked at the moral implications of allowing the use of steroids.
If Congress was to insert itself in the professional sports world, “is that a good thing or not?” asked Anderson.
Anderson identified a number of problems with such an action:
• the government would be imposing its will on a private organization,
• there are Equal Protection issues,
• it could be an unreasonable search under the Fourth Amendment, and
• is more federal regulation necessary?
Anderson asked, “Can Congress superimpose its own standards by passing a new law specifically aimed at professional sports? Yes. But until the evidence shows that steroids are a widespread problem, then it probably should not.”
This of course opened up a healthy outcry from the audience about whether there was enough proof of widespread problems and whether Congress should wait for that proof. It should be noted that the presentation was given before the latest book on Barry Bonds’ alleged use of steroids hit the stands.
NCAA Won Antitrust Case, In Spite of $56.5 Million Payment
Professors Richard M. Southall of the University of Memphis and Mark S. Nagel of Georgia State University looked in retrospect at the antitrust litigation involving the NCAA and the Metropolitan Intercollegiate Basketball Association (MIBA).
The suit involved MIBA’s accusation that the NCAA violated antitrust laws by, among other things, requiring its members to play in the NCAA’s post-season tournament if they were invited, thereby gutting MIBA’s own post-season tournament.
The men began their analysis by noting the chameleon-like nature of the NCAA, which can portray itself as a commercial or membership entity, depending on how it is attacked.
They went on to suggest that while the NCAA may have shelled out $56.5 million to end the lawsuit, it was the obvious winner in the case, since it “bought out the competition.” In reaching a settlement, the NCAA made its “short and long-term problems go away” and now has the ability to “leverage the asset.”
“While I am a staunch critic of the NCAA,” said Southall, who is a member of the Drake Group, “I am also an admirer of the NCAA in some ways.”
A New Type of Waiver for the 21st Century
The highly respected Doyice J. Cotten suggested at the SRLA conference the practitioners consider a new type of waiver that “provides valuable information to the participant,” while giving “broad protection to the provider.”
As an example of this, Cotten suggested providing participants “of a good understanding of what is involved in the activity.” He offered examples such as whether the activity is “strenuous” or involves any unpleasant aspects.
Another suggestion involved notifying the participant of ALL the inherent risks and types of injuries that can occur. “Don’t be afraid to tell them they can get killed,” said Cotten.
Cotten also told the audience that the participant must acknowledge the assumption of risk in three ways:
“I know the nature of the activity;
“I understand the physical demands; and
“I appreciate the types of injuries.”
Other areas that Cotten, whose Sports Risk Consulting practice is based in Statesboro, Ga., addressed in his talk were the waiver of liability, indemnification agreement, other protective clauses, assertions and final acknowledgement.
