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programs were distributed over less than a 3-week span at an
event occurring only once a year. NCAA v. Commissioner, 914 F.2d
at 1421-1424.
In the instant case, petitioner argues that the activities
of BWE and McKnight should not be attributed to petitioner.
Petitioner argues that its contracts with each publisher
provided: (1) That the publisher was an independent contractor
and not the agent of petitioner, (2) that petitioner had no
direction or control over BWE’s personnel or business activities,
and (3) that the publisher agreed to "save" petitioner harmless
from any liability resulting from the publisher’s activities.
Petitioner points to the additional fact that the telephone
callers were employed by a subcontractor of BWE and McKnight, and
petitioner asserts that the subcontractor had complete control
over the callers.
In NCAA, this Court found an agency relationship because the
contract between the NCAA and the publisher expressly designated
the publisher as the NCAA’s "exclusive agent" for the sale of
advertising in the program, and because the contract manifested
an intent (1) that the publisher would act on behalf of the NCAA
in conducting the sale of advertising, and (2) that NCAA could
control the publisher’s activities. NCAA v. Commissioner, 92
T.C. at 467. In the instant case, petitioner’s agreements with
BWE and McKnight provide that each of the latter
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