Due Tonight! Really appreciate it!

Can I please have this Chapter Outline, { the main points }. Book is called Legal Concepts in Sport by Linda Jean Carpenter. As a reference I uploaded all the pages of the chapter.

Contracts: Buying and Selling Chapter 9 Contractual relationships generally fall into one of two main categories: per- sonal service contracts and contracts for goods. The elements required for a valid, enforceable contract are generally the same for either category, but each category has some unique qualities beyond the elemental ones. Contracts for the Purchase of Goods How good is your Latin? Caveat emptor means that the buyer should remain vigilant and not make the potentially erroneous assumption that goods or ser- vices will be exactly what is expected. Even though caveat emptor is good advice, it is not always a sufficient protection for the buyer, and thus it is not the buyer's solitary safeguard in the marketplace. In an attempt to add fairness and stability to the marketplace, most jurisdictions have adopted many of the provisions of the Uniform Commercial Code (UCC). The UCC is the general rulebook for contracts relating to the sale and pur- chase of goods. It tells us when an offer's acceptance can be successfully revoked, what happens if there is a typing error on an invoice, and what happens when the incorrect goods are shipped. If you are responsible for purchasing sporting goods, uniforms, or other merchandise, you should be familiar with the UCC's Article 2. If you are the boss of a pro shop or are involved in marketing your school's logo merchandise, you should be as familiar with Article 2 as you are with the rules of volleyball or basketball. Your future success depends on that knowledge. The UCC was proposed as model legislation to produce a uniform set of rules for the merchant and buyer. Two of its provisions are of particular significance to the purchaser of goods. They are . implied warranty of merchantability, and . implied warranty of fitness for a particular purpose.120 Legal Concepts in Sport: A Primer relying on the Various jurisdictions have adopted only portions of the C. However, playing competit states except Louisiana have adopted at least Article 2 of the UCC. Article 2 deal elements to trigg directly with the sale of good including the implied warranties of merchantabig purpose would h and fitness for a particular purpose. purchase at the ti Implied Warranty of Merchantability was goi erally in According to the UCC, whenever you purchase goods from a merchant who deals in that particular type of goods, you will enjoy an implied warranty of mal the bu chantability. That means you have an unwritten but valid and enforceable warran suitab ty that whatever you buy will be acceptable within the trade for sale. Whatever you buy doesn't have to be the best, but it has to be acceptable by normal standard The UC within the trade. So if you order volleyballs from a merchant who deals in s pose should ing goods, and you receive volleyballs so poorly made that they burst the first time edgeable or they are used, you have a legal right to get your money back. This is because such ateness of a a ball would not be deemed minimally acceptable among the sellers of volleyballs of sporting The volleyballs need to be merchantable, not perfect. A product is merchantable when the following three points are met: injury. passing in the trade without objection; fit for the ordinarily or generally intended purposes, adequately (by trade "Fine Pri The in standards) contained, packaged, and labeled; and conforming to the promises on the container's or package's label. are defea or simil The two required elements needed in order to obtain an implied warranty of ranties merchantability are that exist, th . the goods were purchased from a merchant who deals in that type of breach goods, and tract w . the goods fall below the minimum quality acceptable in the trade. Co Because this warranty is implied, you do not need any type of written state- 1. ment from the seller concerning the exis- tence of a warranty. In fact, the UCC im- . Implied warrantry of plied warranty of merchantability is usually 2. merchantability in effect even if the receipt you obtain from the seller says that the sale is made without . Implied warranty of fitness any warranties, either expressed or implied. for a particular purpose Implied Warranty of Fitness for a Particular Purpose The implied warranty of fitness for a particular purpose is less automatic than the implied warranty of merchantability. It requires the buyer to rely on the seller's advice about which type of merchandise would meet the needs of a particular purpose. If you told a salesperson at the local sporting goods store that you wereArticle 2 es of merchantab Contracts: Buying and Selling 121 plying on the salesperson's advice for a type of shoe that would be appropriate for Saying competitive tennis and the salesperson sold you a track shoe, the required Pements to trigger existence of the implied warranty of fitness for a particular om a merchant who purpose would have been met . The elements are I warranty of mer- purchase goods from a merchant who deals in that type of goods; and nforceable warran. . at the time of the sale, the seller must have reason to know that the buyer sale. Whatever you was going to use the product for a particular use (rather than just the gen- erally intended use); and that normal standards the buyer was relying on the seller's skill or judgment to select or furnish ho deals in sport- suitable goods for that particular purpose . urst the first time s is because such The UCC's inclusion of the implied warranty of fitness for a particular pur- ers of volleyballs pose should alert the shopkeeper to either train employees so they will be knowl- is merchantable edgeable or instruct employees to refrain from offering advice about the appropri- ateness of a product for a particular use. This is particularly important in the area of sporting goods since the use of inappropriate products can cause significant injury. uately (by trade "Fine Print" label. The implied warranties of merchantability and fitness for a particular purpose are defeated when the goods being purchased are labeled "as is" or "with all faults" or similar language that would alert the buyer that there will be no implied war- d warranty of ranties accompanying the goods being purchased. Even when implied warranties exist, the damages for which the seller might become liable if the warranties are that type of breached may be limited by a liquidated damages clause or by a clause in the con- tract which limits damages. Read the fine print! INTERIM REVIEW Contracts for the Purchase of Goods 1. The Uniform Commercial Code defines the general rules for the conduct ritten state- of business related to the purchase and sale of goods. 2. Implied warranties of merchantability and fitness for a particular purpose are often available to the person who buys goods from a merchant who deals in such goods. When goods are purchased at a flea market or from a fitness neighbor's basement, the UCC warranties are unlikely to apply. se 3. Elements of a contract include meeting of the minds, legal subject, offer and acceptance, atic than consideration, e seller's legal capacity of parties, and articular precise terms. ou were122 Legal Concepts in Sport: A Primer The third theo Products Liability ry results because or implied) by th Another legal issue related, at least in part, to contracts is products liability warranty to reco When a product breaks or doesn't perform as promised, and thereby someone is support a person injured, the legal concept of products liability arises. Products liability refers to the ing 100 pounds liability of a manufacturer to the user (or, in some cases, bystanders) if the use of its products results in personal injury or property damage. important to re chaser may be Even though a teacher, coach, or administrator is not usually in the role of a defendant to claims of product failure, they are often in Warranty of M thus should understand the three main theories by which recovery lived as plaintiffs and recovery can be made . Purpose. If the pur The three main theories under which recovery for product failure can be sought are come void, a negligence, important to strict liability, and er's direction breach of warranty. Why sh price of equ Under the first of these theories, negligence, the manufacturer has a duty to successful exercise that reasonable degree of care (standard of care) that every ordinarily manufactu prudent manufacturer would use in the designing, manufacturing, testing, in- handful of specting, packaging, and labeling of a similar product to make it reasonably safe equipme for use by the ordinary customer. Because the theory is negligence, the same four Teachers elements required of any negligence claim are needed: duty, breach, cause, and the manu harm. Are there any defenses to the negligence theory as it applies to products li- ability cases? Yes. If the defect that caused the injury or property damage was undiscoverable by the use of reasonable care and reasonable care was used, no negligence exists because the standard of care was met (no breach occurred). Sometimes we are injured by products that were designed, inspected, pack- aged, and labeled with all due care. Negligence then is not a useful theory because there has been no breach of duty. The legal notion of strict liability might be a theory to provide an alternative means of recovery in such circumstances. Strict liability requires three elements. They are . the product contained a defect unreasonably dangerous to person or property, the defect existed at the time of sale by manufacturer, and the defect caused the injury. Recovery for trampoline injuries has been sought using the theory of strict liability. Some juries have been convinced that trampolines are inherently danger- ous and cannot be made safe regardless of how they are constructed, inspected, packaged, and labeled. If the jury in a trampoline case believes that the trampoline is inherently dangerous, the issue of whether the manufacturer exercised all pos- sible care is not a defense. There are no defenses for the theory of strict liability in products liability cases.Contracts: Buying and Selling 123 The third theory of products liability is breach of warranty. Whenever an inju- ry results because a product fails to perform in a way warranted (either expressed or implied) by the manufacturer, the purchaser can use the theory of breach of warranty to recover. For instance, if a personal flotation device is warranted to support a person weighing 150 pounds but, in reality, sinks when a person weigh- ing 100 pounds uses it, the it, there has been a breach (failure) of the warranty. It is important to remember that even in the absence of expressed warranties, the pur- chaser may be able to use implied warranties under the UCC such as the Implied Purpose . Warranty of Merchantability and the Implied Warranty of Fitness for a Particular If the purchaser has altered or misused the product, all warranties may be- come void, and the theory of breach of warranty becomes useless. Therefore, it is er's directions. important to correctly install and repair equipment according to the manufacture Why should you care about protecting against products liability cases? The duty to price of equipment reflects the manufacturer's experience or projected exposure to dinarily successful products liability claims. Products liability cases against football helmet ng, in- manufacturers have been responsible, at least in part, for the demise of all but a bly safe handful of helmet manufacturing companies. The increase in price of gymnastics me four equipment similarly reflects a passing of litigation costs along to the consumer. se, and Teachers, coaches, and administrators can both help prevent injuries and protect the manufacturers of equipment (thereby keeping prices lower) by setting up and maintaining equipment as per manufacturer's ucts li- instructions, and ge was disseminating warnings promulgated by the manufacturer (who has a sed, no duty to warn) concerning improper use of the d). equipment. pack. ecause at be a Memory Testers There are no defenses to strict liability claims as long 1. True/False as all three required elements are proven. Misusing or altering safety devices on equipment may 2. True/False bar the successful use of the breach of warranty theory in a products liability case. The negligence theory, when used in a products liabil 3. True/False ity case, requires the manufacturer to be responsible I strid for any defect that could have been discovered by the anger use of modern scientific methods.124 Legal Concepts in Sport: A Primer 4. True/False On the other ha All the theories typically used in products liability cas. wise to check on t es are usable only by the purchaser, not by student and athletes. dures. Amazingly, several big-time s logos have not bee Memory Tester Discussion stickers carrying because of the in 1. True The determination of the first required element (defect un- 2. Does our potentia reasonably dangerous) is a subjective one. For example, some Juries have found that trampolines met this requirement while others would strongly disagree. If so, const tal. Obviously, 2. True It would be unfair to the manufacturer, who designed safety is one step wh features or at least engineered a degree of safety into the prod- uct to then be held liable when the user disabled those safety 3. Have features. perm 3. False The manufacturer must only use reasonable care and effort to Often I find defects that could be located by ordinary, not extraordi logo seen so nary, means. the "adapt develop an 4. False In the early days of products liability cases, the successful goods car claimant was the purchaser. However, over the years the the- or adapted ories have been expanded to include most individuals who could foreseeably be injured by a defective product, not just 4. Is the purchaser. Mos a lack So others Licensed Logo Merchandise cussi more Selling merchandise, including sports apparel and equipment carrying the hosti logo of the school, is becoming a more frequent business pursuit. If you're in- ticul volved in the process, you should ask yourself these questions: suit An 1. Is the merchandising effort large enough or potentially profitable enough suc to justify retaining the services of an attorney to help protect the logo and for develop specific licensing procedures when others want to use the logo? If you're only printing 50 T-shirts with your junior high school's name and logo to sell to fans at the last game of the year, it might be more expensive than it is worth to legally protect the logo.bility cas- students Contracts: Buying and Selling 123 on the other hand, if your college is going to the Final Four, it would be very wise to check on the status of your school's logo protection and licensing proce dures. Amazingly, after winning national championships in high profile sports, several big-time sport universities have been embarrassed to discover that their logos have not been protected. The thousands of T-shirts, caps, mugs, and bumper it un- vickers carrying the victorious school's logo brought no revenue to the school because of the institution's oversight. Oops. some 2. Does our school want to re while to restrict the use of our logo and thereby retain any potential profits from the sale of merchandise carrying the logo? If so, consult an attorney. There are times when consulting an attorney is vi- safety tal. Obviously, you can't check with an attorney before every step you take, but this prod- is one step where you really should seek legal advice before proceeding. lafety permission? 3. Have we "borrowed or adapted" our logo from another institution without irt to ordi- Often logos start out very simply: a parent or school employee adapts a cute logo seen somewhere else. Initially there are no plans to sell merchandise carrying the "adapted" logo. Years go by. The program improves and expands and its fans develop an affection for the adapted logo. The school now plans to merchandise sful goods carrying the logo. However, the school from which the logo was borrowed he- or adapted does not look favorably on your use of it. Oops again. who just 4. Is the logo (mascot or team name) one which is offensive to others? Most people don't intend to offend, but nonetheless, many are offended when a lack of sensitivity or poor foresight results in a bad choice of a logo. Some inappropriate selections will cause public relations problems, whereas others will cause expensive legal problems. We could have a philosophical dis- cussion about the issues surrounding logo, mascot, and team name selection, but more to the point of this text is the legal impact of our choices. If we produce a hostile atmosphere by using a logo that is of sacred or cultural significance to par- ng the ticular religions or ethnic groups, we may invite the expense of defending a law- 're in- suit based on religious harassment. Items such as eagle feathers (sacred to Native Americans), cartoons of an ethnic group, and references to stereotyped behaviors, such as the violent acts of scalping, may create both negative and offensive images nough for our programs and may create a sufficiently hostile environment for members 10 and of the particular offended group that lawsuits based on harassment may ensue. go? If, based on our expanding empathy for the bad will we are creating by our poor choice, we voluntarily elect to find more appropriate logos, we still incur the ex- e and pense of redesigning and restocking merchandise. If, based on litigation, we are han it126 Legal Concepts in Sport: A Primer forced to change our logo, we incur the considerable legal expense of defends a lawsuit. In either case Arnold v. Riddell selection in the the first place. case, the most efficient course to follow is to be careful in about the ab liability in s Brighton, J. "T 3. Is the name or likeness (photos, videos, etc.) of any specific person betrip Case May F used on or within any merchandising effort? tertainmen lege athlet For many years athletes in high profile college athletics programs have been a integral part of marketing efforts for jerseys, posters, videos, and related merchan Carrabis, And Violated dise marketed either by the institution of by organizations such as the NCA ploitation seys with the athletes' names and numbers, posters with their images, and video Licensin of dramatic plays are sold or licensed to other entities that will sell them to fans Typically the licensing fees and any other profits from the marketing efforts go MacPherson to the benefit of the NCAA, or the institution, but not the athletes. Several groups landma of athletes have filed lawsuits to retrieve a share of the profits generated from the ity for use of their names and images. There are large amounts of money and complicate Nissen Tro ed legal theories (including anti-trust allegations) involved as well as philosoph 265 Ir ical disputes about the ethical nature of forcing athletes to sign over their rights bility to the use of their names and images in order to be able to pay. So, if your name O'Banno or image is being used by others or if you are using the name or image of others, July tread lightly. This is a controversy in flux. See Chapter 15 for more information onli about this legal issue. cau vol San Fr Contract Risk Management in a Nutshell 48 The risk management techniques for contracts are quite straightforward: of 1. Have a written contract. 2. Read the contract. tolog to Shos 3. Don't agree to a contract unless it totally reflects your agreement. 4. Know your rights and responsibilities under the UCC. How About Looking Up a Few Cases and Law Review Articles? You might find it interesting to read some of the following cases. Some have value as precedents within their jurisdictions, others don't. So don't assume that the outcome would be the outcome in your jurisdiction. Read them to gain an in- sight into how the issues of contract law are evaluated. As you read them, develop arguments of your own for the plaintiff and then for the defendant. If you're plan ning on using the Internet, check the Appendix for suggested sites