Extreme sports and extreme sports sponsoring have become key features of the modern entertainment and sports industry. This article attempts to investigate fundamental issues of the law and economics of extreme sports sponsoring from a comparative perspective. A set of 40 interviews were conducted with sponsored athletes between June and September 2018. These interviews provide an up-to-date and, to the best of my knowledge, unique account of contract practice regarding extreme sports sponsoring worldwide. The main findings of the article can be summarized as follows: First, extreme sports sponsoring contracts are currently unbalanced. Risks and rewards are unbundled—while the athletes bear almost all the risks, the sponsor firms reap almost all of the rewards. This does not necessarily imply that the current contracting practice is inefficient. Unequal bargaining power and strong non-monetary incentives of athletes may account for an uneven distribution of the monetary cooperative surplus. But the available evidence suggests that the current practice incentivizes athletes to take inefficient risks, and, based on athletes’ preferences, there are ways to significantly increase the cooperative surplus compared to the status quo. In particular, firms could arrange for comprehensive health, disability and life insurance for the benefit of athletes and their families—at little costs to firms and with a significant positive effect on athletes’ welfare. Firms could establish systematic counselling, coaching and training programs for athletes, and they could move away from bonus-based compensation schemes. Second, sponsor firms face higher duties of care vis-a-vis young and/or inexperienced athletes. These athletes, in particular, are prone to “inefficient risk-taking”. Depending on the factual circumstances of the individual case, these duties may include enhanced counselling, coaching and safety training, as already mentioned. They may also require firms to refrain from subjecting young or inexperienced athletes to extremely high-powered financial incentives (bonus schemes) that encourage inappropriate risk-taking. Third, sponsors also face higher duties of care if they are involved in or influence the organization of extreme sports events or control the premises/facilities on which such events take place. Fourth, currently, sponsored athletes are treated by sponsors as independent contractors. Depending on the facts of each individual case and the applicable legal standard to delineate independent contractors from employees, this may or may not be correct. This article suggests that courts should give more weight to economic (in)dependency as a relevant standard in addition to control exercised by sponsor firms when assessing whether a sponsored athlete is an employee. Further, even if an athlete cannot be characterized as an employee of a particular sponsor, the level of control exercised by that sponsor and the athlete’s economic depende
{"title":"Setting Up Dates with Death? The Law and Economics of Extreme Sports Sponsoring in a Comparative Perspective","authors":"Horst Eidenmueller","doi":"10.2139/SSRN.3287794","DOIUrl":"https://doi.org/10.2139/SSRN.3287794","url":null,"abstract":"Extreme sports and extreme sports sponsoring have become key features of the modern entertainment and sports industry. This article attempts to investigate fundamental issues of the law and economics of extreme sports sponsoring from a comparative perspective. A set of 40 interviews were conducted with sponsored athletes between June and September 2018. These interviews provide an up-to-date and, to the best of my knowledge, unique account of contract practice regarding extreme sports sponsoring worldwide. \u0000 \u0000The main findings of the article can be summarized as follows: First, extreme sports sponsoring contracts are currently unbalanced. Risks and rewards are unbundled—while the athletes bear almost all the risks, the sponsor firms reap almost all of the rewards. This does not necessarily imply that the current contracting practice is inefficient. Unequal bargaining power and strong non-monetary incentives of athletes may account for an uneven distribution of the monetary cooperative surplus. But the available evidence suggests that the current practice incentivizes athletes to take inefficient risks, and, based on athletes’ preferences, there are ways to significantly increase the cooperative surplus compared to the status quo. In particular, firms could arrange for comprehensive health, disability and life insurance for the benefit of athletes and their families—at little costs to firms and with a significant positive effect on athletes’ welfare. Firms could establish systematic counselling, coaching and training programs for athletes, and they could move away from bonus-based compensation schemes. \u0000 \u0000Second, sponsor firms face higher duties of care vis-a-vis young and/or inexperienced athletes. These athletes, in particular, are prone to “inefficient risk-taking”. Depending on the factual circumstances of the individual case, these duties may include enhanced counselling, coaching and safety training, as already mentioned. They may also require firms to refrain from subjecting young or inexperienced athletes to extremely high-powered financial incentives (bonus schemes) that encourage inappropriate risk-taking. \u0000 \u0000Third, sponsors also face higher duties of care if they are involved in or influence the organization of extreme sports events or control the premises/facilities on which such events take place. \u0000 \u0000Fourth, currently, sponsored athletes are treated by sponsors as independent contractors. Depending on the facts of each individual case and the applicable legal standard to delineate independent contractors from employees, this may or may not be correct. This article suggests that courts should give more weight to economic (in)dependency as a relevant standard in addition to control exercised by sponsor firms when assessing whether a sponsored athlete is an employee. Further, even if an athlete cannot be characterized as an employee of a particular sponsor, the level of control exercised by that sponsor and the athlete’s economic depende","PeriodicalId":306561,"journal":{"name":"Marquette Sports Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125551483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In his confirmation hearings, Chief Justice Roberts famously described his vision of the judicial role as analogous to that of an umpire. “Judges are like umpires,” he said. “Umpires don’t make the rules; they apply them.” The Chief Justice was, of course, hardly the first to draw this analogy, and he will certainly not be the last. The comparison is natural, for both roles require their occupant to “make the call,” or, more formally, to serve as the presumptively final adjudicator of the rights of competing parties.Yet while the “judge as umpire” seems to have naturally captured the imagination of judges, commentators, and laypersons alike, it has also come in for its share of critique, with critics pointing out the various ways in which the comparison is inapt. Perhaps the most frequently mentioned distinction is that judges, unlike umpires, and contrary to the Chief Justice’s suggestion, actually do have to role to play in the creation and refinement of the rules they must apply. Thus, commentators have proposed substitute analogies, including the “justice as commissioner” and “justice as color commentator.”This essay’s goal is not to add to these critiques, but rather to suggest that there is a better analogy — the somewhat less euphonious notion of the “judge as judge.” The best sporting analogy to judges in law may be to their namesakes in sport — the judges who provide the authoritative scoring in what philosophers of sport call “aesthetic sports,” such as gymnastics and figure skating.Judges in aesthetic sports, like their counterparts in law, derive a substantial portion of their authority and legitimacy from the expertise they bring to the position. Both play a significant role in shaping the content of the governing standards and draw, to a considerable degree, on their “tacit knowledge” in shaping and applying the rules. At the same time, however, their reliance on this sort of expertise — which necessarily entails the application of criteria unavailable or at least opaque to the lay observer or even the less expert participant — creates an opening for skepticism. Observers will often be unable to determine for themselves whether judges of either sort have accurately assessed the merits, and their efforts to do so will often lead them to assessments that differ from the judges, likely because the lay observer will not have accounted for all the factors that an expert judge considers. Because these observers cannot access all the factors driving the experts’ decisions and, thus, cannot fully understand them, they can easily conclude that those decisions are being driven by improper factors. Of course, judges in aesthetic sports have been accused, and occasionally found to be guilty, of corruption, as well as less pernicious forms of bias. The same is true of judges in law. Indeed, given the enormous cognitive demands associated with judging aesthetic sports, it is unsurprising that some extraneous factors influence officials’ determina
{"title":"Of Umpires, Judges, and Metaphors: Adjudication in Aesthetic Sports and Its Implications for Law","authors":"Chad Oldfather","doi":"10.2139/SSRN.2566895","DOIUrl":"https://doi.org/10.2139/SSRN.2566895","url":null,"abstract":"In his confirmation hearings, Chief Justice Roberts famously described his vision of the judicial role as analogous to that of an umpire. “Judges are like umpires,” he said. “Umpires don’t make the rules; they apply them.” The Chief Justice was, of course, hardly the first to draw this analogy, and he will certainly not be the last. The comparison is natural, for both roles require their occupant to “make the call,” or, more formally, to serve as the presumptively final adjudicator of the rights of competing parties.Yet while the “judge as umpire” seems to have naturally captured the imagination of judges, commentators, and laypersons alike, it has also come in for its share of critique, with critics pointing out the various ways in which the comparison is inapt. Perhaps the most frequently mentioned distinction is that judges, unlike umpires, and contrary to the Chief Justice’s suggestion, actually do have to role to play in the creation and refinement of the rules they must apply. Thus, commentators have proposed substitute analogies, including the “justice as commissioner” and “justice as color commentator.”This essay’s goal is not to add to these critiques, but rather to suggest that there is a better analogy — the somewhat less euphonious notion of the “judge as judge.” The best sporting analogy to judges in law may be to their namesakes in sport — the judges who provide the authoritative scoring in what philosophers of sport call “aesthetic sports,” such as gymnastics and figure skating.Judges in aesthetic sports, like their counterparts in law, derive a substantial portion of their authority and legitimacy from the expertise they bring to the position. Both play a significant role in shaping the content of the governing standards and draw, to a considerable degree, on their “tacit knowledge” in shaping and applying the rules. At the same time, however, their reliance on this sort of expertise — which necessarily entails the application of criteria unavailable or at least opaque to the lay observer or even the less expert participant — creates an opening for skepticism. Observers will often be unable to determine for themselves whether judges of either sort have accurately assessed the merits, and their efforts to do so will often lead them to assessments that differ from the judges, likely because the lay observer will not have accounted for all the factors that an expert judge considers. Because these observers cannot access all the factors driving the experts’ decisions and, thus, cannot fully understand them, they can easily conclude that those decisions are being driven by improper factors. Of course, judges in aesthetic sports have been accused, and occasionally found to be guilty, of corruption, as well as less pernicious forms of bias. The same is true of judges in law. Indeed, given the enormous cognitive demands associated with judging aesthetic sports, it is unsurprising that some extraneous factors influence officials’ determina","PeriodicalId":306561,"journal":{"name":"Marquette Sports Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116251668","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Getting in the Game: Title IX and the Women's Sports Revolution","authors":"Cassandra Jones","doi":"10.5860/choice.48-6572","DOIUrl":"https://doi.org/10.5860/choice.48-6572","url":null,"abstract":"","PeriodicalId":306561,"journal":{"name":"Marquette Sports Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116666117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Antitrust and Inefficient Joint Ventures: Why Sports Leagues Should Look More Like McDonald's and Less Like the United Nations","authors":"S. Ross, Stefan Szymanski","doi":"10.1057/9780230274273_3","DOIUrl":"https://doi.org/10.1057/9780230274273_3","url":null,"abstract":"","PeriodicalId":306561,"journal":{"name":"Marquette Sports Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114192178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781492596929.part-003
Barbara Osborne
{"title":"Title IX in the 21st Century","authors":"Barbara Osborne","doi":"10.5040/9781492596929.part-003","DOIUrl":"https://doi.org/10.5040/9781492596929.part-003","url":null,"abstract":"","PeriodicalId":306561,"journal":{"name":"Marquette Sports Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122297669","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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