Legislating Sport: Does Law Aid, Abet or Hinder National Pastimes?

Abstract

The question of how laws in the USA might have promoted or harmed national pastimes raises a number of intriguing issues. Although many laws affect the day-to-day operations of sports at almost all levels, few laws profoundly impact the popularity of specific sports or leagues. Of the ones that might have affected the status of sport, laws regarding criminalisation, antitrust and gambling seem to have the most direct effect. Determining how much the law contributed to the rise of the sport is practically impossible. It is easier to consider how current laws may affect the future of existing sport. For example, two issues in law currently (concussion legislation and the antitrust and right of publicity lawsuit against the NCAA) might have a substantial impact on the future of football and of college sport.

Keywords::

• national pastimes
• law
• antitrust
• criminalisation
• gambling

Acknowledgements

My thanks to the participants of ‘The Lives (and Deaths) of American National Pastimes Workshop' at Penn State on October 12–13, 2012. Their comments were provocative and helped improve this project. I particularly appreciate the suggestions, critiques and corrections of Professors John E. Lopatka, Steven Riess and Stephen Ross. All remaining errors are mine. Thanks as well to Mark Dyreson for organising the project.

Notes

^1. Olympia (WA) Hearing Examiner Decision, ‘Ingersoll Stadium Use Modification, Case #11-00159’, April 22, 2013, accessed June 15, 2013, http://olympiawa.gov/city-services/planning-and-zoning/current-planning/

^2. Public Schools of North Carolina, State Board of Education, North Carolina Department of Public Instruction, and Academic Services and Instructional Support. ‘Middle/Junior High School Athletic Manual’. July 2012, http://www.ncpublicschools.org/docs/curriculum/healthfulliving/athletics/middle-athletics-manual.pdf

^3. 15 U.S.C. 32 §§ 1291–1295.

^4. See, e.g. New York Constitution art. 1 sec. 9.

^5. Fortunately many other scholars have addressed these areas of law that I will not. As an introduction to these topics, a portion of this work is cited.

^6. 20 U.S.C. §§ 1681–1688. It was passed in 1972 in order to combat discrimination in admittance procedures to institutions of higher education; however, it is now most commonly associated with its application to interscholastic and intercollegiate athletics.

^7. In 1972, 294,015 girls participated in high school sports and in 2012, that number had increased to 3,173,549, see R. Vivian Acosta and Linda J. Carpenter, ‘Women in Intercollegiate Sport. A Longitudinal, National Study, Thirty-Five Year Update. 1977–2012’, October 30, 2012. Accessed May 13, 2013. http://acostacarpenter.org/AcostaCarpenter2012.pdf. I am entirely ignoring the occasional national interest in women's sport at the Olympic games or the women's soccer World Cup as none of those events occur regularly – a two-week interest in an event does not make the sport a national pastime. For a discussion of Title IX, see Heckman, ‘Batter Up’.

^8. For a discussion of this issue see, McCormick and McCormick, ‘Race and Interest Converge in NCAA Sports’; Ross, Race and Sport.

^9. See, Fried and Ammon, ‘Baseball Spectators' Assumption of the Risk’.

^10. See, e.g. Cadkin, ‘Sports Officials Liability’; Moore, ‘Proposals for Reform to Agent Regulations’.

^11. See, Otto, ‘Report: Criminal Athletes’.

^12. See, MacCoun, ‘Testing Drugs versus Testing for Drug Use’.

^13.Gurdus, ‘Protection On and Off the Playing Field’.

^14. See, Mensh, ‘Upon Further Review’; Zimbalist, The Bottom Line.

^15. See Curry, Schiwirian, and Woldoff, High Stakes.

^16.Phelps, ‘Note: Stadium Construction for Professional Sports’.

^17. Steve Berkowitz, ‘NCAA Had Record $71 Million Surplus in 2012’, USA Today, May 2, 2013. Accessed June 15, 2013. http://www.usatoday.com/story/sports/college/2013/05/02/ncaafinancial-statement-surplus/2128431/

^18. See Colombo, ‘The NCAA, Tax Exemption’.

^19. See for a discussion of Bentham and Utilitarianism, Hughes, ‘Notes and Comments’.

^20.Gottfredson and Hirschi, A General Theory of Crime, 6.

^21.Friedman, A History of American Law, 222.

^22. Sir James Fitzjames Stephen, ‘Of Crimes in General and of Punishment' from his History of the Criminal Law of England, vol. II, pp. 75–93 (Macmillan, 1883) reprinted in Goldstein and Goldstein, Crime, Law, and Society, 18.

^23. Oliver Wendell Holmes, Jr, ‘Theories of Punishment and the External Standard’, from his The Common Law, pp. 41–51 (Boston: Little, Brown, 1881) reprinted in Goldstein and Goldstein, Crime, Law, and Society.

^24. See, Greene, ‘Note: “Show Me the Money!”’.

^25.McCaghy and Neal, ‘The Fraternity of Cockfighters’, 558–559.

^26. Ed Anderson, ‘Louisiana's Ban on Cockfighting Takes Effect Friday’, New Orleans Times-Picayune, Aug. 12, 2008.

^27.Powell, ‘Sport, Social Relations and Animal Husbandry’, 362.

^28. Ibid.

^29. Ibid.

^30.Maunula, ‘Of Chickens and Men’.

^31. Brandi Grisson, ‘Cockfighting Outlaws Evade the Law and Continue to Prosper’, New York Times, Dec. 23, 2010. Accessed June 10, 2013. http://www.nytimes.com/2010/12/26/us/26ttcockfighting.html?_r = 0&pagewanted = print

^32. US v. Langford, 641 F.3d 1195 (10th Cir. 2011).

^33.Isenberg, John L. Sullivan and His America, 72.

^34. Commonwealth v. Collberg, 119 Mass. 350, 353 (1876).

^35.Millspaugh, ‘The Federal Regulation of Professional Boxing’, 38 n.23.

^36. Ibid., 38.

^37.Isenberg, John L. Sullivan and His America, 260–279.

^38.Jeben, ‘The Public Acceptance of Sport in Dallas’, 9.

^39. Bettina Heiskanen, ‘Boxing’, in Reiss, Sports in America, v. 1, 191.

^40.Riess, The Sport of Kings, xvii.

^41.Millspaugh, ‘The Federal Regulation of Professional Boxing’, 40–41.

^42. Ibid., 38–42.

^43.Lowe, The Kid on the Sandlot, 8.

^44.Gorn, The Manly Art, 67.

^45. Heiskanen, ‘Boxing’, 192.

^46. Dan Rafael, ‘Floyd Mayweather, Jr. Ties Purse Mark’, ESPN Boxing, May 3, 2013. Accessed June 20, 2013. http://espn.go.com/boxing/story/_/id/9240531/floyd-mayweather-jr-earn-recordtying-guarantee-32-million-fight-robert-guerrero

^47. The Colonial Laws of Massachusetts, 1672–1686, at 347, April 9, 1677 (1890), quoted in Howland, ‘Let's Not “Spit the Bit”’, 485.

^48.Howland, ‘Let's Not “Spit the Bit”’, 485.

^49. An Act to Prevent Horse-Racing, and for Other Purposes Therein Mentioned, ch.44, 1802 N.Y. Laws 52–53, quoted in Howland, ‘Let's Not “Spit the Bit”’, 489.

^50.Howland, ‘Let's Not “Spit the Bit”’, 489.

^51.Riess, The Sport of Kings, 6.

^52.Howland, ‘Let's Not “Spit the Bit”’, 489, claimed that Jackson raced his horses under his personal secretary's name, but Riess, The Sport of Kings, 7, reported that Jackson raced his horses under his nephew's name.

^53.Riess, The Sport of Kings. The book historicises New York racing in remarkable detail.

^54. Ibid., xii-xiv.

^55. ‘Gambling, an Issue in 6 State Ballots’, New York Times, October 14, 1984, 31; ‘Kansas on Verge of Horse Racing while Missouri Waits’, Fort Scott (KS) Tribune, July 11, 1989, 5.

^56. ‘Horse Racing – Missouri–Race Tracks’, accessed September 7, 2012, http://www.horseandtravel.com/horseracing/missouri.html

^57. See ‘New York State Racing and Wagering Board’, accessed September 12, 2012, http://www.racing.ny.gov as an example.

^58.Howland, ‘Let's Not “Spit the Bit”’, 489. Figuring out how much $7 in 1792 would be in today's dollars is difficult. Per an assortment of online websites, it appears to be the equivalent of between $100 and $200.

^59. Tennessee v. Posey, 20 Tenn. 384, 386 (1839), quoted in Howland, ‘Let's Not “Spit the Bit”’, 490.

^60. For court documents, see ‘Famous American Trials, Black Sox 1921’, accessed June 15, 2013, http://law2.umkc.edu/faculty/projects/ftrials/blacksox/blacksox.html

^61. See Figone, Cheating the Spread.

^62.Woo, ‘Note: “All Bets Are Off”’, 572.

^63. Ibid., 573.

^64.Riess, The Sport of Kings, 221–34.

^65.Steven A. Riess, ‘Horse Racing’, in Sports in America, 457.

^66. 15 U.S.C. 1 §§1–2.

^67.Friedman, A History of American Law, 346–349.

^68. US v. E.C. Knight, Co., 156 U.S. 1 (1895).

^69. US v. Trans-Missouri Freight Association, 166 U.S. 290 (1897).

^70. Standard Oil Co., of New Jersey v. US, 221 U.S. 1 (1911).

^71. Note that natural monopolies which are the result of a superior product eliminating competition without any unfair practices are legal. See Heintel, ‘Note: The Need for an Alternative’, arguing that sports leagues, specifically the NFL should be viewed as natural monopolies.

^72.Wong, Essentials of Sports Law, 441.

^73. See Gellhorn, Kovacic and Calkins, Antitrust Law and Economics in a Nutshell.

^74. National League of Professional Baseball Clubs v. Federal Baseball Club of Baltimore, 269 F. 681 (D.C. Cir. 1920), 685.

^75. Ibid.

^76. Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922).

^77. Ibid. 208.

^78. Toolson v. New York Yankees, 101 F. Supp. 93 (S.D. Cal. 1951), 95.

^79. Toolson v. New York Yankees, 346 U.S. 356 (1953), 364.

^80. Flood v. Kuhn, 407 U.S. 258 (1972).

^81. College Athletic Placement Services, Inc. v. NCAA, No. 74-1144, 1974 U.S. Dist. LEXIS 7050 (D. N.J. August 22, 1974) (regarding the ineligibility of athletes who used the recruiting service); English v. NCAA, 439 So. 2d 1218 (La.Ct. App. 1983) (regarding the ineligibility of a student who transferred).

^82. Hennessey v. NCAA, 564 F. 2d 1136 (5th Cir. 1977).

^83. Association for Intercollegiate Athletics for Women v. NCAA, 558 F. Supp. 487 (D.D.C. 1983) aff'd by 735 F.2d 577 (D.C. Cir. 1984).

^84. NCAA v. Board of Regents, 468 U.S. 85 (1984).

^85.Meyers and Horowitz, ‘Private Enforcement of the Antitrust Laws’.

^86. 15 U.S.C. 1291 and 1292.

^87. Los Angeles Memorial Coliseum Commissioner v. NFL, 726 F.2d 1381 (9th Cir. 1984).

^88. American Football League v. NFL, 323 F.2d 124 (4th Cir. 1963).

^89.Wong, Essentials of Sports Law, 458.

^90. United States Football League v. NFL, 842 F.2d 1325 (2d Cir. 1988).

^91. American Needle, Inc. v. NFL, 560 U.S. 183 (2010).

^92.Grow, ‘American Needle’.

^93. Roberson v. NBA, 389 F. Supp. 867 (S.D.N.Y. 1975).

^94.Levine, ‘Note: Hard Cap or Soft Cap’.

^95. Wood v. NBA, 602 F. Supp. 525 (S.D. N.Y.1984), aff'd, 809 F.2d. 954 (2nd. Cir. 1987).

^96.Weiler, Leveling the Playing Field, 5–6.

^97. ‘Concussion Laws by State’, accessed June 15, 2013, http://www.edweek.org/ew/section/infographics/37concussion_map.html

^98.Gessell et al., ‘Concussions among High School and College Athletes’; Alan Schwartz, ‘Silence on Concussions Raises the Risk of Injury’, New York Times, 15 Sept. 2007. Accessed July 8, 2012. http://www.nytimes.com/2007/09/15/sports/football/15concussions.html?pagewanted = all

^99. Dr Dawn Comstock, member of Pop Warner Medical Advisory Board, in discussion with author, June 2013.

^100. This case has already seen more than 25 published legal decisions on a myriad of legal minutia and it has not gone to trial. As of June 19, 2013, no decision had been rendered regarding certifying the case as a class action. See Michael McCann, ‘Ed O'Bannon v. NCAA Class Certification Hearing Primer’, Sports Illustrated, June 19, 2013. Accessed June 19, 2013. http://sportsillustrated.cnn.com/college-football/news/20130619/ncaa-ed-obannon-hearing-primer/; Andy Staples, ‘Ed O'Bannon v. NCAA: A Complete Case Primer’, Sports Illustrated, 2 April 2013. Accessed May 7, 2013. http://sportsillustrated.cnn.com/college-football/news/20130402/edobannon-ncaa-case-primer/

^101. Congress has held and continues to hold many hearings regarding sport in America. Only rarely do those hearings result in any legislation but it does give the Congress members an opportunity to waive their fingers at professional and college sport and rant about the children. For a thorough discussion of Congressional hearings on sport in the twentieth century, see Lowe, The Kid on the Sandlot. The dawn of the new century brought more hearings on MLB steroid use, see Dan Jung, ‘Congressional Hearing on Steroids in Baseball’, Washington Post, March 16, 2005. Accessed August 17, 2012. http://www.washingtonpost.com/ac2/wp-dyn/A41366-2005Mar16?language = printer. When one player appeared to have lied during his testimony, the US government charged him with perjury but a jury acquitted him, see Del Quinten Wilbur and Anne E. Marimow, ‘Roger Clemens Acquitted of All Charges’, Washington Post, June 18, 2012. Accessed August 18, 2012. http://www.washingtonpost.com/local/crime/roger-clemens-trial-verdict-reached/2012/06/18/gJQAQxvzlV_story.html. Given the popularity of sport and the media attention it garners, the congressional hearings will likely continue.

Additional information

Notes on contributors

Sarah K. Fields

Sarah K. Fields is an associate professor in the Communication Department at the University of Colorado Denver. She holds a J.D. from Washington University in St. Louis and a Ph.D. in American Studies from the University of Iowa.