Saturday, March 2, 2013

LEGAL ISSUES IN HIGHER EDUCATION




LEGAL ISSUES IN HIGHER EDUCATION

Introduction:
The law is indeed a double edged sword. It cuts through all matters of the society with no exceptions. The higher learning institution is also not exempted. In this case study, the writer seeks to analyze the information as presented in the agreements sent to the captain of the school’s cheer leading squad. The writer seeks to analyze the advantages that would befall the team if the contract would be accepted and duly signed in order to allow the team be involved in the making of  reality series. The writer also examines the negative aspects that would be attributed to signing the contract as stated. Further, the issues of the impact of the contract to the participants, is evaluated with the incorporation of both the positive aspects and the negative aspects. It is also necessary according to the writer to assess the impact that the contract would have directly or indirectly to the parties involved. Finally a conclusion of the whole case analysis is given in order to refresh the reader of the subject topic and to give a brief analysis of the whole content. It is also in the same regard that the writer presents recommendations to the main parties involved, which is generally a view of whether the stipulations as provide for in the contract are worth accepting or not.
Analysis:
The law that governs matters related to institutions of higher learning is dominant in aspects of both federalism and in issues regarding the separation of authority between members of the legislative and members of the executive within the Governments judiciary system. This therefore means that aspects regarding legality in institutions of higher learning may be presented in the courts of law, congress, legislatures implemented by the state and through the local agencies that have been formed to cater for the administrative issues in the society. It is essential to note that law is a very aspect that needs to be considered when responding to matters that may affect the students in campus. (Butler, 1994).
 It is also essential that an institution expands their boundaries to accommodate legal staffs and entities so as to get advice on matters that may require direction of the law. The main parties that may be affected by the law s in higher places of learning are the students, who are faced with the challenges of policies and regulations that have been acknowledged by the management on their behalf (Butler, 1994). Faculty members are also similarly active in matters of the law being that they have to give their consent or disregard about an issue before it is subjected to the students. Outside parties also play a role as well. In this case therefore, the athletic conferences may be involved in matters of the contract or in enforcing proper measures in case the contract does not go as stipulated by the two parties (Butler, 1994).
In regard to the matters related to the signing of the agreements in relation to the cheer leading team participating in the reality show, it is essential that the captain first evaluates all the pros and cons as they may occur in signing the agreements. We are first going to analyze the pros of signing the agreements as presented.
Due to accepting to sign the agreement, it means that the captain on behalf of the cheerleading squad will hold the M.T.V Company responsible in fulfilling the part of their terms as stated in the contract. There have been various incidences where unscrupulous parties get away without fulfilling a part of their bargain as initially agreed. To ensure that the students are comfortable in their series and reality show yet still being able to benefit form the contract (Montgomery, 2012). It is essential that the captain and vice chair of the team sign the contract. Incase of any breach, it can simply be used as a reference point for corrective action (Butler, 1994).
Through signing the contract, the cheer leading squad will always have a reference point incase they have to counter check any issues that they are not well comprehensive about (Montgomery, 2012). This way, if the M.T.V Company starts making stipulations or creating an atmosphere of doubt in regards to the service quotient that was agreed to be offered, her could be an easy point of reference and thus eliminate confusion aspects. This way any aspects of service delivery in the case where the contract maybe longer than expected can be easily rectified and improved.
Another benefit that may accrue to the cheer leading squad, if the chair person and the captain of the team sign the contract, is that there will be evidence in the case of litigation (Montgomery, 2012) it is not new or unheard of that people fail to stipulate their requirements as stated in the contracts that they bind themselves with. This leads to adverse effects to the other party as they are not fully satisfied as it ought to be. In this case therefore, in case of any disputes that may require arbitration or litigation through the courts of law, the, matter can easily be settled or even resolved to the favor of the plaintiff. In relation to the contract and agreement in case, the captain and the vice have nothing to loose by signing the agreement. Instead, they stand to benefit incase of breach.
On the other hand, through the signing of the agreement as stated, the captain of the team would be exposing the team to a situation where they can be fired at easily by the TV station once they have realized their goal. It only strengthens the other party’s mandate of hiring and firing and there is no security in terms of employment.
Through signing of this contract, the team will or may not be able to offer the same service to another company under the same perspective since they are going to be legally bound for a period if time by the clauses as stated in the contract (Bessant, 2004). This may impede on them in the long run in regards of participation in ventures that could be profitable to them financially or even in implementation of some requirements that may be needed by the team. In the same regard therefore, the TV Company MTV will have any amount of control that they may desire over them in regards to withdrawing form participating in the reality series at will. The team will be forced to stay and to participate even if their calendar may not allow yet they would not withdraw for fear of being charged a legal fee or for damages caused (Montgomery, 2012).
Through agreeing to the terms of the contract as stipulated, it means that the cheer leading team will be limiting their flexibility (Montgomery, 2012). This may especially be a problem since a cheer leading squad is mostly inclined towards areas of football cheers and participation in games and match fixtures or even in national contests. This therefore means that through the signing of the contract, they will not be able to do what they are meant to do; instead, they will be filming a reality series. In the long run however, the desire to change from that line of business may arise but due to the contract, the possibility of changing fields will be limited. Thus the team will loose out on the core element of their foundation.
It is a requirement that after signing the contract both parties should act in good faith towards one another (Bessant, 2004). In this case therefore, it may be quite difficult for a party to choose to change the terms of the contract without prior negotiation with the other party. In this case therefore, for the cheer leading team to have their policies and terms and conditions realigned in order to suit their needs at a later time, renegotiation may be necessary. In the same aspect however, it is very expensive to restructure the contract again and also, there will still be loss of time that would have been very productive to the team members.
If the captain of the team, together with the vice, of the cheer leading squad decide to go ahead with the signing of the contract, they would have chosen to expose the members of the cheer leading squad to a multiple benefits and detriments. These are as explained below:
The team will be positively exposed to valuable competition with other teams that would also have been chosen to participate in the cheer leading reality competitions. This way, the team will be able to get exposure through participation in the sense that they will be widely exposed to arrange of teams that may be even more competitive than they are and thus gain more experience in the cheerleading field. Incase the team performs better than the rest of the competitors or incase it exhibits desirable skills, it may be able to get sponsorships in their events and more so be able to get corporate endorsement from corporate companies that support sports and extracurricular activities in school. This will therefore be a platform through which the cheerleading team can be able to launch their professional resume.
Through the coach’s acceptance to be the instructor of the team, he will be able to gain recognition for the training techniques and thus a larger platform for exposure as well. He will also be able to get positive critic that may be able to shape and mould his career in regards to the sport.
Through participation in the reality series, the cheer leading team will be able to gain local recognition and thus may acquire the celebrity status. This will not only aid in their careers but also in the value of their services. This means that they can stand a chance to price themselves competitively according to the market rates when called upon to perform in social events. In the long run, this may be the only source o income for most of them and can be used to boost their standards of living or even be able to get sponsorships and scholarships that may aid to offset their needs or to propel them to a better future in the long run.
Through signing of the contract there is no copy right of the training materials that the captain will use (Kaplin & Lee, 2011). This means that he will be exposing his team to copy cats and duplicates in the sense that all the training guide and techniques used by the team can be easily emulated by other cheer leading teams. This may, make the team vulnerable in the sense that they may no longer have a competitive advantage of their competitors. In addition therefore, there is a risk of exploitation since the company, TV seeks to stand a better chance of gaining profits form the works of the participants yet they are not in nay way eligible to share in the division if the earned profits from the venture.
Through signing of the contract the privacy of the cheer leading squad is invaded and not protected in any way. The contract explicitly states that the team or the captain shall at no time prevent the release of videos or audio recordings as made by the producer in regards to the agreement signed. Additionally in regards to the above subject matter, neither the team or the cheer leading squad will be protected from the release of any damaging video or audio at the release whether they were aware of the detriments or not.
Through signing the above service as stated, the captain has agreed to the fact that they cannot bargain for better remuneration or better working conditions other than the ways stipulated from those in the contract. This is however a liability to the cheer leading team since they may not be able to get value for heir services in future or demand for better working conditions. By allowing to this agreement, they would have legally bound themselves to unknown factors that might affect their productivity (Montgomery, 2012). The fact that the contract is not liable to facilitating the health care of the participants during the show and any injuries related to participating in the show means that they stand at a greater liability than the producer. Being that their sport revolves around lots of physically movements and techniques; the first benefit that they should be able to acquire is medical treatment as a result of injuries sustained while at work. In this case therefore, I feel that the contract is legally binding and require so much of the team that it is will in got offer.
In short, the MTV Company has been selfish in the sense that they have exonerated themselves form a lot of liabilities thus exposing the team to a lot of risk. The contract is more one sided than fair for both of the parties. In case the team chooses to take up the project and sing the agreement as stated, then the captain will be greatly affected by the fact that he will be the one to take liability for the team in the case of any injuries. This is due to the clause that states that he will be the one responsible to ensure that they are trained in the required standards to avoid injuries and that in case of injuries the MTV Company will not be liable. In choosing to take up this participation therefore, the school administration and team will be directly affected incase of any resultant damages.
Through the waiver in the clause section 1542, the team may have their privacy breached and this may directly affect their reputation and image in the society. The school being the authority over the team will also be affected following that the team is a part of them. This may also negatively impact on their families and may stir reactions form the general society as well. Consequently this may result to a certain brand image given to the school. However, if the impact of their scrutiny is positive, then they may warrant a lot of positive criticism thus giving their school a positive brand name.
The agreement in the contract stipulates that whenever summoned to a certain location for the production of the program, the team should be available and convenient. In this case, I feel that the contract is very stringent in its stipulations basing on the fact that the cheer leaders are students and the core factor that they are in school is to attain a level of education. This service therefore contradicts with the laws as stipulated in the higher learning guidelines and should be revised to make them more lenient for the participants involved (Kaplin & Lee, 2009). This will not only affect the students performance but may also stem up reactions from the faculty members and may tend to be a factor of concern to parents and the school committee at large
Conclusion:
It is evident that there are many key underlying issues that are necessary to be tackled by a legal entity or personnel before the signing of any contracts. In this case where the participants are students, there is a higher risk of liability being that they are still under the supervision of their guardians and parents. As the agreement by the producer, the MTV Company, it is clear that they would not want to be held liable for any form of loss or injury or loss of reputation by the participants and thus stipulate so in the contract. It is necessary that before the school captain and the vice chairman of the club sign the document, they should be able to incorporate a lawyer to facilitate better understanding of the clauses that they are not very well versed with. Just as stipulated in the contract, there are positive attributes related to signing of the document though there are also negative attributes that have come along (Kaplin & Lee, 2009). In my own understanding, I would recommend that the contract be re-evaluated in regards to making some key aspects flexible. For example it should include collective bargaining and allow for re-negotiation if one of the parties feels that there is need to do so. However, with its current clauses, I would not recommend that the team accepts it.

References
Bessant, J. (2004). Legal issues in higher education and the trade practices act. Journal Of            Higher Education Policy & Management, 26(2), 251-263.          doi:10.1080/1360080042000218294
Butler, G. L. (1994). Legal and policy issues in higher education. Journal Of Negro Education,     63(3), 451.
 Kaplin,W,A , Lee,B,A(2009), A Legal Guide for Student Affairs Professionals: (Updated and Adapted from The Law of Higher Education, 4th Edition)New jersey, John Wiley & Sons  Kaplin W,A ,Lee,B,A(2011).The law of higher education.New Jersey.John Wiley &Sons.
Montgomery, J. (2012). IMPORTANCE OF CONTRACTS. Indiana Lawyer, 23(4), 7A-8A.