Note help: vicarious liability, sports teams, and sports law Forum

[beach_terror]

So, my article deadline is breathing down my neck and I wanted to consult the TLS brain trust before I dive into something and then fuck myself over because it doesn't add up.

I want to argue that sports teams should be held liable for saying racist shit to each other on the field - which is banned by the governing body's regulations (it's about soccer, so each country's government delegates the power to a football authority). Discriminatory speech is outlawed in every league. Would arguing the leagues should adopt a vicarious liability approach for punishment work? I know it's typically only for negligence, but it's been expanded to intentional assaults on the field, with a trend pushing for even further liability for the teams. Basically X says some racist shit to Y during a game, instead of holding X liable individually, I want X's team to be on the hook too.

Speech obviously isn't a tort, and is protected by the first amendment, but does this matter in the sports law arena? Don't know much about it so I'm seeking opinions from those who do.

Important edit: the liability would come out through the administrative proceedings the governing bodies conduct.

[beach_terror]

Another thought: would it be possible to argue that the employers (the organization, i.e. the LA Galaxy) were negligent in their supervision of the employee's to act within the well-established rules of the game? Basically, it's the duty of the club managers and coaches to ensure that all the players are aware of and follow the rules of the game, and by failing to adequately do so, they were negligent and should be held liable? Trying to get around the tort requirement. Someone halp.

ETA: think I may have figured out a way to do this: (1) argue for the adoption of the common law intentional infliction of emotional distress which can then lead to (2) vicarious liability/respondeat superior.

[kalvano]

Speech obviously isn't a tort, and is protected by the first amendment, but does this matter in the sports law arena? Don't know much about it so I'm seeking opinions from those who do.

Since it's about soccer and no one cares about soccer in the US, the First Amendment wouldn't apply to other countries.

[beach_terror]

Speech obviously isn't a tort, and is protected by the first amendment, but does this matter in the sports law arena? Don't know much about it so I'm seeking opinions from those who do.

Since it's about soccer and no one cares about soccer in the US, the First Amendment wouldn't apply to other countries.

I've actually changed the focus. Arguing now that the MLS should adopt the stuff below in order to preemptively avoid the problem England and most other soccer countries are having. Basically, MLS should adopt the second restatement's IIED elements into the governing regulations of the MLS. I'll have to go through and establish how all the elements can be met, but I'm pretty sure I can do that by cherrypicking stuff from other articles about IIED and racist speech. Then, since its a tort, respondeat superior/vicarious liability applies.

Did you take a First Amendment class? Would the above theory get destroyed in court? My biggest issue is I don't know how the courts and sports law intersect.

I'm clearly trying to avoid doing actual work/research on this.

[kalvano]

Did you take a First Amendment class? Would the above theory get destroyed in court? My biggest issue is I don't know how the courts and sports law intersect.

I did, and I think you'll be fine. The First Amendment only restrains the government or government agents. Employers have a lot wider ability to control your speech.

Also, you might want to check out some of the recent hockey cases where an injured player tried to sue the league, that sort of thing. I'm sure you'll find some stuff about teams and liability in there.

Steve Moore / Todd Bertuzzi is the first one that comes to mind, maybe Zdeno Chara / Max Pacioretty.

[beach_terror]

Did you take a First Amendment class? Would the above theory get destroyed in court? My biggest issue is I don't know how the courts and sports law intersect.

I did, and I think you'll be fine. The First Amendment only restrains the government or government agents. Employers have a lot wider ability to control your speech.

Also, you might want to check out some of the recent hockey cases where an injured player tried to sue the league, that sort of thing. I'm sure you'll find some stuff about teams and liability in there.

Steve Moore / Todd Bertuzzi is the first one that comes to mind, maybe Zdeno Chara / Max Pacioretty.

Awesome, very much appreciated. Do you happen to know how the NHL, NBA, NFL, etc. handle disputes? In soccer, it's typically handled by the regulatory commissions, but I can't find a similar thing in the MLS. Am I missing something? Where do players appeal judgments against them or file complaints?

[kalvano]

Did you take a First Amendment class? Would the above theory get destroyed in court? My biggest issue is I don't know how the courts and sports law intersect.

I did, and I think you'll be fine. The First Amendment only restrains the government or government agents. Employers have a lot wider ability to control your speech.

Also, you might want to check out some of the recent hockey cases where an injured player tried to sue the league, that sort of thing. I'm sure you'll find some stuff about teams and liability in there.

Steve Moore / Todd Bertuzzi is the first one that comes to mind, maybe Zdeno Chara / Max Pacioretty.

Awesome, very much appreciated. Do you happen to know how the NHL, NBA, NFL, etc. handle disputes? In soccer, it's typically handled by the regulatory commissions, but I can't find a similar thing in the MLS. Am I missing something? Where do players appeal judgments against them or file complaints?

I know in the NHL, they have a Player's Association and the League. I believe they are governed by union rules and the NLRB for governmental purposes, but most disputes are between the League and a player, who is backed by the NHLPA.

In court cases, I think they have some PA representation, but it depends on what is alleged and what else is going on. It's actually pretty rare to end up in court, I believe. Another, older situation you might check out is Marty McSorely / Donald Brashear. I think that garnered some attention.

But I think it boils down to a basic employer (the league & the team) / employee (the player) relationship, governed by a CBA and union rules. So, assuming MLS is run the same basic way, there are two ways to get in a new rule: at the expiration of their current CBA, the MLS would try and have your proposal incorporated into the new CBA (probably with opposition from the player's union, or the league's board of governors would vote to incorporate it into the rulebook. It's a pretty major rule, though, so it would probably be more of a CBA thing.

I could be completely wrong, I don't know much about sports. But I keep up with hockey stuff, and that's what I remember reading. I'm planning on taking a sports law class just for shits and giggles.