Journal of Legal Aspects of Sport

The COVID-19 Pandemic, the Empowering Olympic, Paralympic, and Amateur Athletes Act, and the Dawn of a New Age of U.S. Olympic Reform

Mark Conrad — Wed, 10 Feb 2021 00:00:00 -0500

In the fall of 2020, Congress enacted the first substantive changes in the governance of the Olympic Sports system in over four decades. The new law, The Empowering Olympic, Paralympic and Amateur Athletes Act, was passed in the wake of sexual abuse scandals that rocked certain sport governing bodies. In amending the 1978 Amateur Sports Act, the new law grants Congress the power to decertify the United States Olympic bodies, mandates greater athlete representation in governance, and increases funding to protect athletes through greater support of the U.S. Center for SafeSport. Aside from the decertification power, the most significant provision of the new law is the establishment of a Commission on the State of U.S. Olympics and Paralympics to review the governance of the United States Olympic and Paralympic Committee (“USOPC”) and make proposals for change. The Commission’s creation comes at a crucial time in U.S. Olympic governance. Due to the governance scandals, uncertain funding and the general national sports upheaval caused by the COVID-19 pandemic, this article advocates for more significant changes
to the Olympic structure that the commission should consider, such as direct or indirect government funding for the USOPC and the sport governing bodies in return for adherence to more stringent transparency and ethical rules. Ideas that the Commission could consider include mandatory disclosure of information such as sponsorship agreements as well as compensation and bonus limitations for those in key leadership positions, the appointment of an inspector-general, and greater athlete involvement in the U.S. Olympic movement. The article also proposes more statutory changes such as a limited antitrust exemption and the end of special trademark protections for the USOPC.

Raising the Bar: Increasing Protection for Athletes in the Olympic Movement from Sexual Harassment and Abuse

Anne Marie Burke — Wed, 10 Feb 2021 00:00:00 -0500

After the Larry Nassar and USA Gymnastics scandal surfaced in 2016, the United States enacted a federal act titled “Protecting Victims from Sexual Abuse and Safe Sport Authorization Act of 2017.” This Act requires immediate mandatory reporting to the U.S. Center for SafeSport for any alleged child abuse of an amateur athlete who is a minor. An increasing amount of legislation is being passed to address sexual harassment and abuse in sports in the United States; however, the International Olympic Committee (IOC), which governs the Olympic Movement, is lacking in its sexual harassment and abuse policies. This article will address how the IOC’s sexual harassment and abuse policies are not as robust as they should be. The amount of attention that the Olympics receives worldwide gives the IOC a global platform to be a leader in taking a stance on sexual harassment and abuse policies.

Ambush Marketing and Rule 40 for Tokyo 2020: A Shifting Landscape for Olympic Athletes and Their Sponsors

Steve McKelvey, John Grady, Anita M. Moorman — Wed, 10 Feb 2021 00:00:00 -0500

This study explores the historical development of the regulatory landscape related to Olympic and Paralympic athlete marketing activities, together with current restrictions imposed on athlete marketing, and discusses potential legal challenges to these restrictions. Specifically, this study analyzed various countries’ Rule 40 Tokyo 2020 guidance through a trans-national lens by comparing and contrasting the different approaches found in various national Olympic committees’ legal frameworks to combat ambush marketing. The potential legal challenges to the United States Olympic Commititee’s enforcement of new Rule 40 guidance are highlighted, with particular focus on discussing the restrictions and enforcement rights contained within the personal sponsor commitment agreement within the United States for the postponed Tokyo 2020 Games. Critical analysis of the potential impact of enforcing this agreement within the broader Olympic intellectual property and brand protection frameworks for Olympic stakeholders in the US is provided.

An Examination and Analysis of Division I Football Game Contracts: Legal Implications of Game Cancellations Due to Hurricanes

Jessica R. Murfree, Anita M. Moorman — Wed, 10 Feb 2021 00:00:00 -0500

In recent years, extreme weather events, namely hurricanes, have compromised the college football schedule in the United States. Incidents of extreme weather have caused the cancellation, postponement, relocation, or otherwise alteration of dozens of Division I college football games in recent years. Focusing primarily on hurricanes, this study will present several concerns related to these storms and extreme weather in the US, and contractual law principles of common law defenses and force majeure clauses as they relate to college football game contracts. The purpose of the present study is to begin to better understand the football game contract inconsistencies that can lead to legal disputes faced by college football programs that deal with these storms, and gain a better insight of the contractual considerations made in light of these storms that are becoming increasingly
frequent and severe. To do so, college football game contracts were obtained through Freedom of Information Act (FOIA) requests to select NCAA Division I colleges, internet-based searches, and media exchanges. Analysis of force majeure contract language revealed inconsistent definitions of force majeure events, a limited number of contracts containing specific weather-related force majeure language, and a range of force majeure events leading to the absence of a clear and consistent understanding of how extreme weather-related cancellations would impact the contractual relationships. Recommendations, as
a result of the document analysis, are then made for provisionary revision and reconstruction to meet current realistic needs for individual schools. Societal consciousness regarding climate change is adjusting, therefore sport and legal practitioners can reflect this modernization by scrutinizing potential prudent risks.

Operation Varsity Blues and the NCAA’s Special Admission Exception

Joshua Lens — Wed, 10 Feb 2021 00:00:00 -0500

“Operation Varsity Blues,” the university admissions scandal and ensuing federal investigation, made national news and captivated the public. Fascination with the scandal could have stemmed from the involvement of celebrities such as Lori Loughlin and Felicity Huffman and/or the sheer ridiculousness of the scheme, in which wealthy and prominent families paid exorbitant amounts of money to secure their childrens’ admission to elite universities. Others may have closely followed the resulting legal proceedings that included federal criminal charges like racketeering against 50 individuals and civil lawsuits against elite universities and celebrities with one suit seeking $500 billion in damages. Lawmakers’ attempts at preventing future university admissions scandals legislatively may have also caused curiosity.

This article, though, explores the scandal’s intricate ties to college athletics and seeks to determine the most effective and practical means to mitigate the likelihood of a future similar admissions scandal. More specifically, the article explores how head coaches and an athletics administrator used their positions at academically elite universities to exploit a little-known NCAA rule permitting universities to use more lenient admissions standards for incoming student-athletes. Scheme participants falsely indicated dozens of applicants were incoming student-athletes in order to trigger the less rigorous standards and secure admission to elite universities. The criminal proceedings resulting from the scandal have yielded relatively light sentences for involved coaches, and civil suits against universities have been unsuccessful. California attempted to address the scandal legislatively, but, as this article explains, its reform package contains holes that fail to address many of the scheme’s key components.

The article concludes that the NCAA, as opposed to lawmakers, the legal system, or individual universities, is in the best position to prevent, or mitigate the likelihood of, a future university admissions scheme like Operation Varsity Blues. Doing so would require only eliminating a single NCAA rule that is inconsistent with myriad other NCAA rules and principles and has resulted in decades of poor academic results.