WHY SPORTS LAW?

• Author: Clark, Sherman J.

INTRODUCTION 151 I. WHAT IS SPECIAL ABOUT SPORTS? 153 A. The Necessity of Cooperation 153 B. The Inchoate Value of Sports 153 II. HOW SPORTS MAKE US RETHINK LAW 155 A. Antitrust Law: When and How Cooperation Can Create Value 155 B. Trademark: The Nature and Relevance of Consumer Confusion 162 C. Sex Discrimination: The Aims of Anti-Discrimination Law 171 CONCLUSION 179 This essay argues that sports law can be more than just a fascinating and topical subject with great appeal to those who work or hope to work in the field. It can also be a valuable intellectual and pedagogical enterprise--even for those who do not or will not work in sports. In particular, sports law can be a useful and clarifying lens through which to study the law more broadly. This is because sports enterprises and issues tend to put unique and potentially illuminating pressures on the law. Ordinary or unexamined assumptions often break down or prove inadequate when confronted with the relatively unique world of sports. This in turn forces scholars, students, and courts to think more deeply about the law--and in the process facilitates that deeper thought.

This essay first describes some of the things that make sports relatively unique and therefore challenging to the law. The bulk of this essay then addresses three specific areas of law: 1) antitrust, 2) trademark, and 3) sex discrimination. These three contexts are used to highlight and illustrate the ways in which sports law can call upon us to rethink what we think we know--and thus can help deepen and clarify our thinking. This essay concludes by suggesting that teachers and scholars of sports law should try to tap the intellectual and pedagogical potential the subject offers.

INTRODUCTION

Why teach and write about sports law? Two answers are obvious: student demand and career preparation. Students want to study sports law and hope to work in sports, so we teach sports law. But we do not generally organize legal education by industry, and for good reason. Many of our students will not work in sports; and most will deal with many different industries over the course of their careers. In general, we believe that our students will better benefit from training rooted in skills and legal subject matter rather than a series of "law of the horse" industry-specific courses. (1) So those who teach and write about sports law hope to explain why it is a valuable endeavor, even for those who may not work in the field.

There are two familiar responses to the question of why study sports law. First, sports are big business with a large impact on the economy, so legal issues have substantial financial consequences. While this is true, financial impact does not automatically equate to intellectual significance. Second, sports involve significant social issues such as race and gender. This too is true, but the social significance of issues does not itself explain why sports law is a useful lens through which to examine these issues. The key question, especially for those who do not plan to work in the field, is whether and how sports law helps us think about important issues--legal, economic, and social--usefully and well.

I suggest here that sports law is a valuable academic endeavor because particular--if not unique--features of the sports industry put illuminating pressure on the law. When we try to apply the law to sports, it often does not fit well. Standard assumptions break down and familiar doctrinal tools prove ill-suited to the job. In this way sports cases frequently require us to rethink what we think we know about law, economics, and society.

In this essay I describe some of the things that make sports challenging and illuminating for law and policy. I then highlight three areas of the law and some of the pressures they place on our thinking: 1) antitrust, where sports cases require us to think carefully about when and how cooperation can sometimes be necessary to the creation of valuable products; 2) trademark, where sports cases force us to think carefully about the nature of consumer confusion; and 3) sex discrimination, where the necessity for "separate but equal" and other factors require us to rethink not only the aims and operation of anti-discrimination law but also other issues, including the very nature of gender identity and the broader aims of institutions in which discrimination is seen as problematic.

In these and other contexts, we come to better understand the law because the pressures placed on the law by sports force us to think more deeply about the underlying aims and logic of the law. And for this reason, sports law--if approached thoughtfully--can be a valuable intellectual and pedagogical lens through which to examine law and policy more broadly.

1. WHAT IS SPECIAL ABOUT SPORTS?

   What is it about sports that is unique, puts particular pressure on law and policy, and prompts the sort of thought I suggest the study of sports law can engender? I would highlight two interrelated things about sports that require us to rethink our assumptions and approaches to legal and social issues. First, sports businesses require a great deal of cooperation and coordination between competitors within sports businesses--as well as cooperation between sports and society at large. Second, the value created or tapped by sports businesses, though vast, is often amorphous, uncertain, and difficult to describe with precision. Neither of these things is completely unique to sports; but taken together, along with other circumstances, they tend to be particularly salient in the sports context.

   1. The Necessity of Cooperation

      The aspect of sports with the most obvious legal relevance is the necessity for cooperation among competitors. This is not completely unique to sports, as cooperation is needed or helpful in other contexts. Some industries rely, for example, on agreed-upon technical standards, and potential network effects make cooperation sensible and appropriate in many contexts. But cooperation is particularly essential in sports. Regarding professional sports leagues, the D.C. Circuit put it this way: "No NFL club can produce this product without agreements and joint action with every other team." (2) In the context of college sports, the United States Supreme Court has similarly observed: "[H]orizontal restraints on competition are essential if the product is to be available at all." (3) This reality can make it more difficult to figure out when and where cooperation is beneficial as opposed to problematic. Thus sports cases encourage and require lawyers and policymakers more broadly to re-examine and refine their thinking about what forms of cooperation are beneficial and why.

   2. The Inchoate Value of Sports

      A second aspect of sports is arguably even more fundamental, although its legal and policy relevance can be less evident. The value produced by sports businesses is often difficult to describe. What are people paying for when they spend millions to attend, watch, and advertise during sporting events? It is easy to say that sports are entertainment, and that is true; but it begs the question.

      What makes sports entertaining? What makes people eager to watch and willing to pay? No objective measure of on-court excellence can explain why millions of people are glued to NCAA basketball while the NBDL--with a similar level of play--is ignored. Nothing about level of play explains the appeal of high school football's Friday night lights. Other, more inchoate factors are at work; and they can be hard to nail down, difficult to quantify, and often more fragile that we might imagine.

      I cannot offer a comprehensive list of what makes sports appealing, and thus valuable--let alone a thorough account of how those factors interact--but it is worth highlighting some of those, as inherently difficult as they are to describe with precision.

      Sports can connect communities and generations. When college football fans fill a stadium, they are there not just for the action on the field, but also for the connection to the larger community. When a parent takes a child to a baseball game, they are paying not just for the play on the field; but for the memories invoked and created by generations of such outings.

      Sports can evoke and construct ideas of individual excellence and character. This role has been played by sports since Ancient Greece, (4) and remains so today. Sports provide an arena in which traits and virtues can be displayed and developed. Some of the forms of excellence modeled by athletes are of course physical--strength, speed, grace, endurance, and the like. But we also look to sports for ideas and ideals of courage, leadership, cooperation, fairness, and more. That too is part of what people are looking for--and paying for--when they watch and play.

      Sports can also provide an arena of seeming purity, relatively free from the unfairness and arbitrariness that pervades much of social and personal live. people are seeking--and paying for--a sort of escape. Not merely an escape, but also a brief sojourn into what is, in some ways, a better, fairer, purer realm.

      Sports are not all high-minded aspiration, of course. Much of the attention devoted to major sports events in driven by gambling (5)--a reality that does not always sit easily with the lofty ideals espoused by sports enterprises. This matters, because law and policy ostensibly designed to protect, leagues, players, and fans can often be fully understood only if seen also as efforts to protect the perceived interest of gamblers.

      Some of these may seem to be abstract or only academic concerns. Do pragmatic business people and lawyers really need to worry about the complex and inchoate nature of the value produced or tapped by sports? Yes. Business

      people ignore these issues at their peril, because if they forget or fail to understand what makes sports appealing, they risk missing or even undercutting that appeal. Even...