Current Print Issue

Vol. 165, Issue 2

  January 2017


Featured Article

Evaluating NFL Player Health and Performance: Legal and Ethical Issues

By
Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch
165 U. Pa. L. Rev. 227 (2017).

This Article follows the path of a hypothetical college football player with aspirations to play in the National Football League, explaining from a legal and ethical perspective the health and performance evaluations he will likely face throughout his career. Some of these evaluations are commonplace and familiar, while others are more futuristic—and potentially of unproven value. How much information about themselves should aspiring and current professional players be expected to provide in the employment context? What are the current legal standards for employers collecting and acting on an individual’s health‐ and performance‐related information? Drawing on disability law, privacy law, and the law governing genetic testing, this Article seeks to answer those questions, as well as to provide recommendations to better protect the health and privacy of professional football players.

The upshot of our analysis is that it appears that some of the existing evaluations of players, both at the NFL Scouting Combine (Combine) and once drafted and playing for a club, seem to violate existing federal employment discrimination laws. Specifically, (1) the medical examinations at the Combine potentially violate the Americans with Disabilities Act’s (ADA) prohibitions on pre‐employment medical exams; (2) post‐offer medical examinations that are made public potentially violate the ADA’s confidentiality provisions; (3) post‐offer medical examinations that reveal a disability and result in discrimination—e.g., the rescission of a contract offer—potentially violate the ADA provided the player can still perform the essential job functions; (4) Combine medical examinations that include a request for a player’s family medical history potentially violate the Genetic Information Nondiscrimination Act (GINA); and (5) the preseason physical’s requirement that a player disclose his family medical history potentially violates GINA.

We believe all employers—including the NFL and its clubs—should comply fully with the current law. To that end, our recommendations center around four “C”s: compliance, clarity, circumvention, and changes to existing statutory schemes as applied to the NFL (and perhaps other professional sports).


Featured Comment

Revoking the Revocable License Rule: A New Look at Resale Restrictions on Sports Tickets

By
Alexander P. Frawley
165 U. Pa. L. Rev. 433 (2017).

Most sports fans consistently rely on the secondary ticket market. After all, the secondary ticket market provides fans with numerous benefits, including the opportunity to obtain tickets to sold out, high‐profile events and the ability to resell tickets to recoup the cost of a ticket for an event they cannot attend. But some key players—namely, primary ticket sellers like sports teams—have lamented the rise of the secondary market, complaining that resale exchanges unfairly profit from the teams’ labor and diminish the value of buying tickets directly from the teams. Consequently, teams have begun to develop new initiatives to curb the growth of the secondary market, including establishing official team resale exchanges to compete with sites like StubHub, prohibiting season ticket holders from selling tickets on unofficial resale exchanges, and implementing ticket delivery procedures that make it more difficult to resell tickets. Fortunately for teams, the law cuts squarely in their favor as courts, academics, and industry professionals alike adhere to the late nineteenth century notion of tickets as fully revocable licenses. As such, teams are free to impose resale restrictions as they see fit.

But in this Comment, I argue that lawmakers should reconsider the extent to which teams can continue to use the revocable license rule to restrict ticket holders’ resale rights. I show how the revocable license rule, though widely accepted today, was criticized and often rejected by early twentieth century courts and academics for seemingly allowing proprietors to unfairly and arbitrarily exclude innocent ticket‐holding patrons. I then explain how business incentives nevertheless prevented proprietors from abusing the rule and how judges and lawmakers relied on the assumption that these incentives would prevent the rule from being abused. In doing so, I show that the rule was actually adopted for a very limited purpose—namely, to protect a proprietor’s right to exclude unruly patrons. Given that limited purpose, I argue that courts and scholars have gradually—but improperly—extended the rule of tickets as revocable licenses such that primary ticket vendors now wield a type of unilateral power over ticket holders that the original proponents of the rule never intended to establish. Therefore, I urge that lawmakers stop allowing the notion of tickets as revocable licenses to inform the industry’s discourse about ticket holders’ rights. Finally, I explore various practical legislative solutions to reform the secondary market, which are free from the rigid assumptions of the revocable license rule and which account for the legitimate concerns of both ticket holders and teams.


Online Exclusives
 Last updated: January 21, 2017


Essay

The Future of Fast Food Governance

By
Andrew Elmore
165 U. Pa. L. Rev. Online 73 (2017)

The Fast Food Forward movement has swelled into one of the largest protests by low‐wage workers in U.S. history, animating efforts at all levels of government to raise and enforce workplace standards. One such strategy is to hold fast food franchisors accountable as joint employers of their franchisees’ employees. In what may be a watershed moment, New York Attorney General Eric Schneiderman (NYAG) recently filed suit against Domino’s Pizza, the franchisor, for wage‐and‐hour‐law violations in its franchisees’ stores across New York State.

Fast food store employees report widespread wage‐and‐hour law violations, and the NYAG’s Domino’s lawsuit appears to confirm this trend within one of the largest fast food brands in the United States. The NYAG’s suit is similar to successful nonfranchisor–franchisee wage‐and‐hour litigation, where courts have assigned liability to lead firms because their subcontractors’ employees economically depend on them. But courts presented with similar evidence in the franchisor–franchisee context have been reluctant to consider franchisors to be joint employers.6 What accounts for this difference?

The purpose of this Essay is to provide one answer to this question. This Essay argues that the franchise relationship is often misunderstood by the judiciary as an arms‐length relationship when, in fact, it is frequently characterized by ongoing dependence. This is an important misapprehension because dependence lies at the heart of how courts evaluate franchisor liability under wage‐and‐hour and franchise laws. It leads many courts to assume that the franchise agreement reflects an independent relationship between franchisors and franchisees and to disregard the supervisory controls that franchisors write into franchise agreements as routine quality standards.

The difference in judicial interpretations of the franchise relationship relative to other contracting arrangements suggests that improving fast food franchise store compliance with wage‐and‐hour law requires a reexamination of the franchise relationship. The Essay explores the regulation of franchising under wage‐and‐hour law and franchise law, finding that both legal regimes create perverse incentives for franchisees to violate wage‐and‐hour law. This Essay argues that improving wage‐and‐hour law compliance in franchise stores will require a reconfiguration of the franchise relationship to incentivize franchisor monitoring of franchisee pay practices, notwithstanding the franchisor’s joint‐employer status. franchisor monitoring of franchisee pay practices, notwithstanding the franchisor’s joint‐employer status.


Response

Things Left Unsaid, Questions Not Asked

By
Peter L. Strauss
164 U. Pa. L. Rev. Online 293 (2016)
Responding to Cass R. Sunstein, The Most Knowledgeable Branch

The University of Pennsylvania Law Review’s symposium on executive discretion is an important undertaking, but it is remarkable for several silences—for things left unsaid on this important subject—and for questions not asked. First, although the Constitution’s “Take Care” Clause is extensively discussed, the one power Article II gives the President over domestic administration—to require the “Opinion, in writing” of the heads of the agencies Congress has invested with administrative duties—is not. Second, the discussion of the President’s undoubted but possibly constrained authority to remove officials of whose actions he disapproves omits discussion of the difference between the strictly political discretion enjoyed by some officers in some functions, and the law‐constrained discretion enjoyed by others. Third, discussion of the executive branch’s clear advantages in dealing with complex, technological issues of fact, as compared to Congress and the courts, omits discussion of the possibility that the opaqueness of the executive’s internal functioning may prevent understanding of the extent to which electorally driven politics, not technical expertise, controls its actions. And finally, the empirical exploration of the public’s attitude toward possible differences between presidential oversight and presidential control frames its questions in a manner likely to have predetermined its outcome, and in considering the impact on public perceptions does not address the possible impact on administrators’ behavior of their understanding whether the President’s views have only political or (rather) legal bearing on the issues statutes say they are to decide. This Response addresses each topic in turn.


Case Note

Of Laundering and Legal Fees: The Implications of United States v. Blair for Criminal Defense Attorneys who Accept Potentially Tainted Funds

By
Philip J. Griffin
164 U. Pa. L. Rev. Online 179 (2016).

“In the common understanding, money laundering occurs when money derived from criminal activity is placed into a legitimate business in an effort to cleanse the money of criminal taint.” 18 U.S.C. § 1957, however, prohibits a much broader range of conduct. Any person who “knowingly engages” in a monetary transaction involving over $10,000 of “criminally derived property” can be charged with money laundering under § 1957.

Because § 1957 eliminates the requirement found in other money laundering statutes that the government prove an attempt to commit a crime or to conceal the proceeds of a crime, § 1957 “applies to the most open,

above‐board transaction,” such as a criminal defense attorney receiving payment for representation. In response to pressure from commentators, Congress passed an amendment two years after § 1957’s enactment defining the term “monetary transaction” so as to exclude “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.”

The statutory safe harbor found in § 1957(f)(1) has successfully immunized defense attorneys from money laundering prosecutions. However, United States v. Blair raised concerns among the criminal defense bar because of its holding that an attorney‐defendant was not entitled to protection under § 1957(f)(1). In Blair, an attorney‐defendant was convicted of violating § 1957 for using $20,000 in drug proceeds to purchase two $10,000 bank checks to retain attorneys for associates of his client. Noting that Sixth Amendment rights are personal to the accused and that Blair used “someone else’s money” to hire counsel for others, the Fourth Circuit held that his actions fell “far beyond the scope of the Sixth Amendment” and were not protected by the safe harbor. In his strongly‐worded dissent, Chief Judge Traxler criticized the court for “nullif[ying] the § 1957(f)(1) exemption and creat[ing] a circuit split.”

This Case Note discusses the implications of Blair for the criminal defense attorney who accepts potentially tainted funds and proposes a solution to ameliorate its unintended consequences. First, Part I provides relevant background information by discussing the money laundering statutory framework, the criticisms leveled at the framework as it was written, the Congressional response to that criticism, and § 1957(f)(1)’s application up until Blair. Next, Part II describes the Blair decision in detail and examines its implications. Part III then proposes a novel solution to the problems it created. Finally, the Case Note concludes with a brief word of practical advice for the criminal defense bar.