June 20, 2014

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The FIFA World Cup – #SayNoToRacism, #SayYesToConcussion?

Last night’s FIFA World Cup football raised two important duty of care issues, concerning whether, and if so when, athletes have the right to continue playing? The first issue, concerning Uruguayan (and Liverpool FC) striker, Luis Suarez was whether he would be fit to play following minor surgery to the meniscus in his knee in late May. While meniscal injuries can have comparatively quick recovery periods, it is important to differentiate between full match fitness and the graduated stages of functional rehabilitation immediately preceding that. Why is this important? Put simply, if a player returns to play too quickly, or for too long, this will increase the risk of subsequent injury. It is interesting to compare the example of Suarez with that of the French winger, Franck Ribery who refused to allow the French medical team to administer cortisone injections immediately prior to the World Cup (http://bit.ly/1oMsFYx ). Indeed, FIFA themselves argued in 2012 that the ‘”abuse’ of painkillers could put the careers and long-term health of footballers in jeopardy” (http://fifa.to/1jBQpqi – although some of the headline conclusions from this study have been criticised: http://bit.ly/1idT5jb) so whose decision is it to allow athletes like Suarez to play? Ultimately, there are four decision-makers:

  • The athlete themselves – they must have an informed consent as to the risks of participation, or sub-optimal rehabilitation on their long-term health. It has however been argued that this consent could not truly be regarded as wholly voluntary, given the employment pressures that they may (or may not) be under
  • The medical team – in all matters concerning the health of the player, ultimately the responsibility of determining the fitness of an athlete to play must be down to the medical staff. While this may be straightforward in the case of family doctors, the sports medical practitioner may be faced with conflicting duties to ensure the welfare of the player, and obligations towards the team (see http://bit.ly/1nnSqZZ and the Bloodgate incident for discussion of the difficulties in enforcing professional ethics in elite sport environments)
  • The Manager – As the designated responsible person in charge of controlling their players, the final decision as to whether an athlete should be allowed to play will be down to the manager.
  • The rule-making body, FIFA will also retain an element of responsibility through their “agent” (referee’s) control of the match – at present, it seems that there are no explicit FIFA rules governing the rehabilitation of players and the use of pain-killers, beyond a reference to the respective WADA policy. This policy [effectively on the medical best practice of supporting Therapeutic Use Exemptions (TUEs) for Musculoskeletal injuries - http://bit.ly/1lFDcB7] allows medical staff a comparatively wide discretion to prescribe glucocorticosteroids and narcotic analgesics depending on individual clinical need.

So why is this a problem? Eight retired American Football players are currently suing the National Football League (NFL) claiming that the “unethical (substitution) of pain medications for proper health care led to addiction and long-term medical complications.” (http://nydn.us/1gOtbSC) The case is currently ongoing and unsurprisingly is being contested by the NFL, however given FIFA’s own admittance of the problem in their 2012 report, another governing body may be vulnerable to a similar class-action case….

Is it a knock-out round or the group stages?

The second related issue concerns the liability for concussive (or sub-concussive) injuries. Plenty has been written on both the risks of traumatic brain injury in sports and the recent 4th International Conference on Concussion in Sport (held in Zurich, November 2012). Indeed, FIFA was an active participant in this process and contributed to the final consensus statement (http://bjsm.bmj.com/content/47/5/250.full.pdf+html). The FIFA website also clearly lists the Pocket Concussion Recognition tool: http://fifa.to/1m1ypKD which helps to diagnose concussions in athletes.

Why therefore did this process go so badly wrong in last night’s match between Uruguay and England. In the 60th minute, Alvaro Pereira looks to be temporarily unconscious and appears groggy when he is escorted off the pitch a few moments later by the Uruguayan medical staff (http://yhoo.it/1w0zdmg) (see also an excellent analysis of the collision at: http://read.bi/1pOaqBt).  The problem is that when the Uruguayan medical staff clearly signal for a substitution, Pereira is adamant that he should return to the pitch and he subsequently plays out the game. This decision to return to play is clearly wrong. It could be defended if Pereira was assessed and did not exhibit any symptoms, but both lying motionless and an athlete’s subsequent unsteadiness on their feet are visible signs of concussion and the protocol states (in bold) that:

“any athlete with a suspected concussion should be IMMEDIATELY REMOVED FROM PLAY, and should not be returned to activity until they are assessed medically”

Does a cursory pitchside argument with medical staff constitute sufficient assessment? I would argue no. FIFA is supposed to have neutral doctors at every venue to intervene and/or overrule the team doctor, but it appears that no substitution or challenge was made in this case. After the match, ABC News & AP reports that Pereira was checked by team doctors. He is also quoted as saying:

“I said sorry a thousand times to the doctor because I was dizzy. It was that moment your adrenaline flowing in your body, maybe without thinking … what I really wanted to do was to help get the result….What really matters is that everything is OK. Nothing happened. It was just a scare” (http://abcn.ws/1nRUdIm)

Pereira is right to say that nothing happened this time, but sports officials have a duty to protect the athlete from themselves, and if the team cannot, this duty should fall on the referee. The situation echoes the similar ‘Hugo Lloris’ incident in November 2013 (http://bit.ly/1w0ueSx). At the time, Professor Jiri Dvorak (FIFA’s Chief Medical Officer) was quoted as saying:

“The player should have been substituted. The fact the other player needed ice on his knee means it’s obvious the blow was extensive, When he has been knocked unconscious, the player himself may not see the reality. I do not know the details but I know that the Premier League doctors are extremely good and I can imagine that the doctor may have recommended he be replaced. We have a slogan: if there is any doubt, keep the player out.”

Brazil 2014 may have disappearing sprays and goal-line technology, but ultimately these gadgets are sideshows to the main event. Until officials and teams can enforce FIFA’s own medical rules, football seems very vulnerable to a negligence action, given the widely identified and foreseeable risks to health. Sport may have an immunity for ‘playing rules’ but this immunity does not extend to unjustifiable risks, see for example: the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage. Indeed, the Pereira incident only gives greater impetus to the cross-party call for a UK Parliamentary Inquiry into concussion in sport (http://bit.ly/1qjXUaI). Published earlier this week, the document calls for five clear steps to be taken:

  1. A full parliamentary enquiry into concussion in sport
  2. A coherent set of concussion protocols covering all sports
  3. Independent peer-reviewed research into concussion and British sport
  4. Better co-ordination between sports, schools, colleges and doctors
  5. A clear message that concussion can kill.

These sorts of enquiries are much needed, but these recommendations are only a starting point. The media and the public have already shown themselves able to recognise concussive events and there was widespread disapproval on twitter of the decision to allow Pereira to continue  (although admittedly it is interesting to see ow much of this disapproval came from international commentators, medical professionals or from followers of other codes of ‘football’). Without some form of enforcement mechanism though – whether through tighter regulations from FIFA, self-enforcement by the teams themselves, or a fear of lawsuits brought by players – this type of incident will continue unchecked at all levels of the game. Until something fundamental changes, sadly we will be making similar comments in another six months….

December 2, 2013

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Richie Incognito and Bullying in Professional Sports

By Chris Ross – Thompson Rivers University 2L JD Student

Bullying has always been a part of growing up. From the time children are in kindergarten, there are bullies and there are victims. Bullying is something that we expect to fade away as we get older and supposedly mature into grown-ups. However, at least in the National Football League, locker room bullying appears to be a widespread issue that is getting national attention due to some unfortunate circumstances.

Three weeks ago, Miami Dolphins offensive tackle Richie Incognito was suspended by the team indefinitely while the NFL investigates a situation involving Incognito and his second year African-American teammate Jonathan Martin. At the end of October, Martin went AWOL and left the team following a joke played on him by his teammates in the team cafeteria and has yet to return the team. According to reports, the reason for Martin’s departure was bullying and hazing from teammates, allegedly lead by his “best friend” on the team, Richie Incognito.

The most damning piece of evidence against Incognito is the transcript of a voicemail he left on Martin’s phone. The voicemail said: “Hey, wassaup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—— mouth. [I’m going to] slap your f—— mouth. [I’m going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

Jonathan Martin has since hired high profile sports attorney David Cornwell to represent him going forward. Cornwell alleges that Martin has been subject to a “malicious physical attack,” his sister threatened, and “daily vulgar comments” from Miami teammates. Cornwell claims that the treatment his client was forced to endure was harassment that went far beyond the traditional locker room hazing.

The Incognito-Martin situation is very difficult to judge accurately because there are so many questions yet to be answered. While Incognito has handed over text message communications with Martin indicating that Martin was not holding Incognito responsible, it is possible he simply sent those out of fear of retribution from Incognito. There is so much that we do not know about the situation and until all the information from the NFL investigation comes out, it is probably best to withhold judgement on either player.

Right or wrong, hazing of varying magnitudes has always been a part of sports culture, whether it be at the high school, college or professional level. Nevertheless, the legal implications of this case could have a profound effect on the unique locker room culture of professional sports and the fine line that athletes walk between harmless hazing and hurtful bullying.

According to ESPN legal analyst Lester Munson, Florida law provides the basis for a civil lawsuit that would assess monetary damages against Incognito. Incognito’s use of the N-word and his threats “to kill” could qualify Martin for money damages for anyone who “has been intimated or threatened on the basis of race or color.” Florida law provides triple damages and would allow Martin to collect his legal fees from Incognito. Given Incognito’s expected earnings in the future and a possible end to Martin’s career, Munson asserts that Martin could collect as much as $15 million.

Furthermore, the fact that the Miami Dolphins organization may have known about this situation, and there are reports alleging they may have even encouraged it, could allow Martin to hold them liable as well. High profile attorney Gloria Allred has said that if the Dolphins knew of the racial or sexual harassment of Martin and failed to take action or even condoned it, they would be in violation of Title VII of the Civil Rights Act of 1964 and potentially be liable for emotional damages to Martin resulting from discrimination.

While the facts of this eye-opening situation are still murky at best, there is no doubt that professional franchises around North America have taken notice. In the November 18 issue of Sports Illustrated, editor Jon Wertheim wrote that the story is “pitting the NFL’s macho old guard against the anti-bullying movement” and that we “might be surprised at who’s winning handily.”

The locker room culture, a culture that is said to be incomprehensible to an outsider, may be forced to drastically change as a result of the Incognito-Martin fallout. Although it will be interesting to see if Richie Incognito and/or the Miami Dolphins are held legally accountable for this incident in some manner, the amount of negative attention this story has received, in both the sports and legal world, should be a catalyst to transforming the way in which locker rooms across professional sports operate.

December 2, 2013

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The Future of Video Review in the NHL

By Chelsea Dubeau – Thompson Rivers University 2L JD Student

In a recent hockey game between the Vancouver Canucks and the Dallas Stars, Henrik Sedin scored what would have been a game-tying goal. The referee waived off the goal, citing “incidental” goaltender interference by Daniel Sedin in the crease. Television replays quickly revealed that there was no contact between the players. The disallowed goal proved to be the difference in the game, as the Stars held on to win by a score of 2-1.

In his post-game interviews, Canucks coach John Tortorella expressed his discontent with the referees not reviewing the judge. The Dallas goalie, Kari Lehtonen, also agreed with this sentiment, stating, “I wish they would maybe use some video replay or something just to make them right.”

Video review is currently only available in a game in situations of a disputed goal or to verify time. Rule 38.1(ii) of the Official Rules states that video review can be utilized when the goal judge is “requested to do so by the Referees.”

The National Hockey League is one of many leagues that utilize instant replay for decision-making, in addition to the on-field officials. However, the NHL is often criticized for the restrictions on the use of this technology.

Two possible ways in which the NHL could expand video replay is through allowing review of more than just scoring plays, or introducing the ability to challenge a call.

The National Basketball Association allows video review for situations such as the correct scoring of a shot, determining if a player has stayed within bounds, determining penalties during player altercations, and whether to call a flagrant foul. Review is still conducted at the discretion of the on-field official, and the final decision remains with the Crew Chief.

Major League Baseball has a similar system to the NHL, in which the Chief Umpire makes the executive decision whether to review a play. However, a player or coach may argue for a play to be reviewed. The MLB rules also do not restrict video review to scoring plays. It can also be utilized to determine whether a ball has left the playing field, or if there was interference from a spectator.

The NHL could introduce a similar expanded system of when a referee can review a play. There could be the ability to review whether icing applied or whether the faceoff should remain in the offensive zone. There could be the ability to review penalties that assessed during more serious situations, such as in overtime of playoff games. The referee could review which team last handled the puck before it went out of play, leading to a possible delay of game penalty.

The rules could simply be expanded to review any plays related to scoring, not just the actual goal itself. The ability to review on-ice calls could eliminate erroneous calls of goaltender interference, such as the incident that occurred with Daniel Sedin. It could also be applicable to an official that misses stopping play due to an offside player, which then leads to a scoring chance and eventual goal.

The other option available to the NHL is to consider the ability to challenge a play.

While MLB is looking to introduce a manager’s challenge during the 2014 season, there are many other leagues that are currently utilizing this rule.

Some tennis bodies, including the Grand Slam Committee, allow players to make up to three challenges during a set.

In the National Football League, coaches are allowed to challenge an official’s decision, at least twice per game. However, they are not allowed to challenge subjective calls, such as most penalties. Challenges for too many men and illegal passes are allowed.

The NHL would have to consider many questions in regards to the introduction of a challenge. Could individual players challenge, such as in tennis? Would the team captain be able to propose review? Or would the discretion remain with the on-ice official, such as in the NBA?

If challenges were introduced, what would be limitations on the timing or amount?  Would it be restricted to each period, or each game? Would it depend on the extent of the game played, and reset later in the game, such as in the MLB? What types of calls could be challenged? Would it still be restricted to scoring? Would penalties be off limits due to their nature as judgement calls, similar to the NFL? How would the video review be conducted? Would everything still be sent to the ‘war room’ in Toronto, or could the on-ice officials review calls themselves, similar to the NBA? How would the challenge rules change if the game is in overtime, or if it was during the playoffs?

These are only a few of many questions that would need to be considered before a new system could be implemented.

Last year, sporting news outlets were reporting that topic of discussion at a General Manager’s meeting was the possibility of a coach’s challenge. While no rule changes occurred this season, as other sports move towards the integration more video replay, the NHL may be more inclined to follow suit.

December 2, 2013

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UFC vs The Big Apple

By Mac Green – Thompson Rivers University 2L JD Student

New York is known as a sporting state with nine professional teams that compete in the National Football League, Major League Baseball, National Basketball Association, National Hockey League and Major League Soccer. New York City’s Madison Square Garden also has one of the most celebrated histories of combat sports.MSG hosted eight of Joe Louis’s title defenses (1938-1951) and was the site of “the battle of the century” between Joe Frazier and Muhammad Ali (1971).For these reasons, it is obvious why the Ultimate Fighting Championship (UFC) would want to promote a fight in New York.And yet New York is the only state out of the 48 others that have Athletic Commissions that are still upholding their ban on professional Mixed Martial Arts (MMA) sporting events.

In 1997, New York passed a law that effectively banned professional combative sports by introducing s.5 in the Regulations of Boxing, Wrestling and Sparring.In the Regulations, combative sport is defined as “any professional match or exhibition other than boxing, sparring, wrestling or martial arts wherein the contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.” However, this legislation also seems to have left the door open for MMA to be legalized in the future by giving the New York Athletic Commission the power to “promulgate regulation which would establish a process to allow for the inclusion or removal of martial arts organizations.

The UFC was founded in 1993 with the goal of identifying the most effective martial art by having experts of unique disciplines compete in a cage fight. Unfortunately, in the beginning it was more of a spectacle than a sport only having three rules initially: no biting, eye gouging or groin strikes.

Although the UFC began in 1993, the modern era of the sport and evolution from spectacle to legitimacy began when the current owners, Zuffa LLC, bought it in 2001. Zuffa bought the UFC for only $2 million because the original owners were on the verge of declaring bankruptcy. Seven year later, the UFC was on the front page of Forbes magazine and the company was valued at nearly $1 billion.  Zuffa has also made huge contributions towards legitimizing the sport by instituting 33 new rules that govern combat within the cage.They have also fostered a worldwide expansion of the sport including a push for the education of the referees, doctors and fans. As a direct result of the sport’s legitimacy, the quality of athletes has also increased drawing in National Collegiate Athletics Association (NCAA) Division I wrestlers, ex-NFL players and Olympians. MMA has been referred to as the fastest growing sport in the world and has risen from obscurity to global powerhouse in just 20 years.

The UFC filed a lawsuit against New York at the end of 2011 because they claimed that the combative sport ban was unconstitutional based on seven different arguments. The UFC named Attorney General Eric Schneider and Manhattan District Attorney Cyrus Vance Jr. as defendants.The state filed a general motion for dismissal in response. 

Just over one month ago, Judge Kimba M. Wood of the Southern Federal District Court in Manhattan ruled that the UFC’s lawsuit would not be dismissed. Although this is a symbolic victory for the UFC, Wood J only accepted one of the seven arguments submitted. One of the arguments that Wood J dismissed was that the ban of combative sports breached peoples’ 1st Amendment right to “expressive conduct.” However, the UFC may still appeal the dismissal of this argument.

The argument that was upheld by Wood J was that the ban is unconstitutionally vague under the Due Process Clause of the 14th Amendment. He agreed that the state’s interpretation of the combative sports ban has varied significantly over the years in their comments and briefs, which gives weight to the UFC’s allegations of vagueness.

The COO of the UFC stated that these “inconsistency has cost the UFC considerable time and expense, but more importantly it has deprived MMA’s countless New York fans of the opportunity to have a new law on MMA, one that legalizes the sport and regulates it in a safe way, as all other states have done. New York’s law is outdated, written at a time when MMA was a very different sport.”

In my opinion, because the government has changed their interpretation of what the legislation actually means several times it should be struck down due to vagueness. And New York should finally pass MMA regulations so they can continue to foster their celebrated sports history. 

November 23, 2013

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Owning a Player: Fantex and the Arian Foster IPO

By Kevin Robertson – Thompson Rivers University 3L JD Student

A vast number of people grow up dreaming about becoming professional athletes but few ever reach that level.Instead they are relegated to playing sports recreationally, cheering on their team, and participating in a fantasy league.In a fantasy league a person acts as a combination of owner, general manager, and coach in an effort to run their team better then their opponent.While pride may be one the line, oftentimes there is also money up for grabs.

In American football, due to the constant injuries and changing focus of teams (say from running to passing, or vice versa) it is often necessary for a person to add or drop players based on how a person believes they will perform in future games.In a sense, a person is stating their belief over how the player will perform in the future.Simply put, if a person believes that a player will do well then they will play them.Alternatively, if the person believes that the player will not do well then they will not use them. 

In this way, a fantasy football league is similar to how a person plays the stock market.Buy the stocks that you think are going to perform well and sell the stocks that you believe are going to do poorly.When you consider the dedication that people put into researching their choices the parallels become even more apparent.

However, things are about to change.Fantex is launching a new program whereby for $10 a person can buy a percentage of a player’s future earnings. The first player to sign on with Fantex for this program is NFL Texans running back Arian Foster.In exchange for giving Fantex a 20% share of his future football earnings he will receive $10 million USD.Fantex will then take the 20% share and divide it into one million shares, which will then be sold to investors through an Initial Public Offering (IPO).

As with all things of this nature, someone is going to lose money.It’s possible that Foster will go on to have a healthy career and thus earn those who own his stock a healthy profit but it is also possible that he gets injured in his next game and never plays again.

What is fascinating and will be a huge point of contention in the future is that the contract does not only include his NFL salary but also includes any related fields.In defining related fields the prospectus for the stock gives a few examples such as broadcasting and coaching.That being said, there are a lot of things that could fall into the grey area and possibly result in disputes.If Foster opened a sports bar, which was named after him, could that be considered a related field?What about if he was selling autographs?

As well, there are a couple of other things that could pose problems in the future.The contract does not expire so Foster will be giving 20% of football related income to Fantex for the rest of his life.While the freedom of people to enter into contracts on their own volition is well established, the shear length of the contract will likely bring up concerns.One issues is that Foster has in effect “sold his soul to the devil” for a one time monetary payment.The contract only ends if he pays back the full amount plus a penalty.He cannot get out of the contract without Fantex’s agreement.In this way, if he retires within 2 years of signing the contract for any reason other than injury, illness or medical condition Fantex can unilaterally cancel the contract and demand repayment of $10.5 million USD.

In Foster’s case his contract might only be for 20% of his future income but what would happen if it were for more?Say 50% or 100%?There is something morally wrong for a society that has moved past slavery to then allow a person to become indebted to another for life.

It is unclear whether college players will sign up with Fantex.While the NCAA has been adamant that they are not interested in paying the players for their services, it would be hard for a lot of the players to turn down a lump sum payment even if the terms were not favorable in the long run.

In fact, it would be possible for a college player to game the system in a certain situation.Taking Foster’s contract as an example, a college athlete could get a lump sum payment and then pay it back (along with the penalty) with a signing bonus if they make it into the league and get a large contract.A strategy such as this would be very smart if the player knew that they had an even larger endorsement deal coming in the near future.Once again, legally this would be a grey area in that Fantex is registering each player under the Securities and Exchange Commission, which has strict rules governing insider trading.As well, with college players there may be issues due to them being minors.

Like many things in sports, the IPO into Arian Foster will garner a lot of money for some people, even if it isn’t in the best interest of the game or society.

The prospectus for the IPO is available to read here and contains some very interesting information not only on his health but also his contracts with both the NFL and endorsement deals. 

November 23, 2013

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The Right to Compete: Transgender Athletes

By James Gill – Thompson Rivers University 3L JD Student

Issues regarding transgender students have recently been an area of significant discussion and debate. Early in 2013, California became the first American state to formally protect the rights of transgender students attending elementary and secondary schools in a number of ways. Specifically, Bill 1266 addresses a number of issues faced by transgender students during their schooling years including their ability to choose which restroom or locker room they use and, perhaps more relevantly, whether they compete in boys or girls sports .

Although California is among the first states to legislate on these issues, the rights of transgender athletes has long received much attention.For example, the 1977 case of Richards v United States Tennis Associationinvolved a transgender tennis player seeking an injunction against the United States Tennis Association which would prevent the Association from requiring the athlete to take a sex determination test before allowing her to compete as a woman.

In finding in favour of the athlete, the court found that such a requirement was grossly unfair, discriminatory, inequitable, and a violation of her human rights under the relevant state’s human rights laws. More recently, in 2013, a mixed martial arts athlete, Fallon Fox admitted to having undergone male-to-female gender reassignment surgery a number of years prior to competing professionally. Naturally, this sparked a series of heated statements, debates, and opinions regarding the use of hormones for hormone therapy, competitive advantages, and so forth. In this instance, however, the issue had been decided before it became public; the Florida State Boxing Commission licensed Fox, allowing her to compete in its jurisdiction, despite the non-existence of a codified transgender policy.

Prior to the Fox incident, the Association of Boxing Commission’s medical advisory board recommended the creation of a transgender policy as a pre-emptive attempt to address the increasing number of transgender athletes in sports. Indeed, the Association is among a number of governing bodies actively addressing the topic. The International Olympic Committee (IOC), National Collegiate Athletic Association (NCAA) and Canadian Collegiate Athletic Association (CCAA) have all adopted policies designed to address the participation of transgender athletes in sport, with the NCAA’s and CCAA’s approaches, arguably, being more moderate than the IOC’s.

With that said, in Canada, there has yet to be legislation introduced similar to that in California. In fact, even some of the basic provincial human rights codes have yet to include such progressive terms. For example, one simply needs to look at the Ontario Human Rights Codefor a leading example of inclusivity. Section 1 reads: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”

In contrast, the analogous provision in the British Columbia Human Rights Codefails to formally recognize gender identity, gender expression, or anything to that effect, other than ‘sex’: “A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.”

The above illustration does not seek to suggest that transgender athletes are unable to freely compete (consider Cory Oskam, a transgender high school student who was widely supported in undergoing a gender reassignment surgery and subsequently competing in a boys hockey league). Rather, it seeks to highlight some differences and suggest that perhaps the time has come for Canadians to follow some of the examples set by our southern neighbours, namely to formally recognize and protect the right of transgender athletes to compete freely.

Bill 1266 comes into effect in January 2014. Thus, in a matter of months, the sporting community will be able to assess how well the law is received and how effectively it is implemented. Regardless, it ought to be seen as a forward thinking example of the recognition of the right of transgender athletes to compete freely.

November 23, 2013

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A Cruel Race – The Risks of Dog Sledding

By Miranda Schmold – Thompson Rivers University 3L JD Student

It is generally accepted that participation in most, if not all sports and activities, involves some aspect of risk and the possibility of injury. From some of the most low-key sports, such as bowling and golf, right up to extreme sports like motocross and hel-skiing and whitewater rafting, all carry with them some degree of risk and danger. Most reasonable athletes, professional, non-professional, recreational and the like, take responsibility for their actions, even when those actions result in their injury or death.

In pursuit of their sport or chosen leisure interest, people voluntarily assume the risks and acknowledge the risks they undertake along with the possibility of harm that may befall them should they participate in said activity or sport. Oftentimes it is the inherent risk and danger that makes many sports and activities alluring and exciting. From soaring through the air on a BMX bike, dangling from a cliff face attached to a single rope, tearing down a ski hill at top speeds, to slamming up against your opponent in a gridiron football game, these are just some of the elements that not only make these sports risky but also tempting and fun. As consenting and reasonable participants we are able to choose what activities and sports we participate in and the risks we are willing to accept in enjoying these pursuits.

But what about when the very sport or adventure activity being engaged in requires the use of non-human athletes? What about sports and activities where it is impossible to get the consent of the non-human participants? This is the case with dog sled racing and dog sled tours. Of course it is possible for the person controlling the dog sled in a dog sled race to acknowledge and accept the risk they undertake when participating in the sport, and it is possible for those engaged in a dog sled tour to accept the risk of participating in this outdoor activity, but there is no way to discern whether or not the dogs accept these risks or even wish to participate in the race or tour.

While the person controlling the dog sled is no doubt at risk for injury or even death, dog sled racing carries with it innumerable risks and dangers, mainly to those without which the sport would not happen, the dogs. The Iditarod is one such notorious dog sled race where the non-human athletes are put in tremendous danger. The Iditarod takes place each year in Alaska starting on the first Saturday in March. These sled dogs are forced to run over 1,600 kilometers in some of the most punishing and arduous terrain. The dogs race from Anchorage to Nome, which would be like running from Vancouver to Saskatoon, and they must do it in 8 to 16 days!

Since 1973 approximately 142 Iditarod sled dogs have died, although this only accounts for reported deaths during the race and does not include dogs that have perished while training. Sled dogs in the Iditarod are at risk of death, paralysis, penile frostbite, bleeding ulcers, bloody diarrhea, lung damage, pneumonia, ruptured discs, viral diseases, broken bones, torn muscles and tendons, vomiting, hypothermia, sprains, fur loss, broken teeth, torn footpads, anemia, strangulation in towlines, internal hemorrhaging, liver injury, heart failure and pneumonia.

About 53% of dogs that start the race do not cross the finish line. Additionally, many handlers are extremely cruel to these integral members of their sled dog team. For example, whipping, kicking, beating and starving dogs have all been witnessed as regular practices in the sled dog racing industry.

This situation is not unique just to the sport of racing sled dogs, but also occurs in the adventure tourism experience of sled dog tours. British Columbia is no stranger to the controversy surrounding sled dog tours. In 2010 the province was rocked by tragedy with the culling of 43 sled dogs by Robert Fawcett, former owner of Howling Dog Tours Whistler Inc. With the collapse of the sled dog industry in Whistler after the 2010 Vancouver Winter Olympics, Fawcett admitted to slaughtering 43 of his sled dogs and burying them in a mass grave on his property in April 2010. After pleading guilty to causing unnecessary suffering, Fawcett faced a maximum sentence of 5 years in jail and up to $75,000 in fines as set out in the Prevention of Cruelty to Animals Act and the Criminal Code s. 447(2).

On November 22, 2012 Judge Merrick of the Provincial Court handed down Fawcett’s sentence as three years probation, 200 hours of community service, a $1,500 fine, a 10-year firearms ban and a 3-year ban on commercial involvement with animals. While this left Vancouver’s SPCA and animal welfare advocates reeling, the positive aspect that came out Fawcett’s trial and sentence was the development of Canada’s first Sled Dog Code of Practice and Standards of Care by the Province, the sled dog industry, veterinarians and the BC SPCA.

Unfortunately, the code of practice may not be holding up to all it was meant to be. In July 2013 yet another Whistler sled dog operation has closed its operations. Whistler Sled Dog Company was created shortly after the Fawcett scandal and even received many of his dogs. They hoped to run an ethical dog sledding company, but after operating for two seasons found they could not sustain their sled dog tours because of Whistler’s short 4-month season. Now the fate of 71 difficult-to-rehome sled dogs hangs in the balance.

The sport of sled dog racing has many inherent risks, mainly for the sled dogs themselves, of which they cannot consent to. It is up to the mushers and handlers of these dogs to keep their health and safety in mind when competing in this sport, however, history tells us that their best interests have not been a priority come race day. Many dogs that have competed in the infamous Iditarod have either perished while racing or suffered extreme or life threating injuries, not to mention the horrific conditions they live in and treatment they receive when not being raced. In contrast, the risks to the human athletes seem inconsequential. The risks involved with sled dog tours are equally as serious, with the main risk being that sled dog operations close after a short winter season, with no choice but to cull or euthanize a large number of challenging-to-rehome sled dogs.

While risk is inherent in most every sport and activity, we should endeavor to weigh the risks with the rewards. In the case of sled dog racing and sled dog tours we need to ask ourselves, is the manner in which we risk man’s best friend worth the reward of a few moments of animal entertainment?

November 23, 2013

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Contractual Difficulties – Why isn’t there blood testing in the NBA or NFL?

By Charlie Livermore – Thompson Rivers University 2L JD Student

Earlier this year, just a day after it was announced that no new players would be selected for the Baseball Hall of Fame, Major League Baseball (MLB) announced that they were going to begin using in-season blood testing to detect human growth hormone. The Commissioner of the National Basketball Association (NBA) stated he “expected” blood testing to be phased into professional basketball this season. National Football League (NFL) commissioner Roger Goodell soon after announced he likewise thought blood testing would take place this season.

It appears neither the NBA or the NFL will test anyone for HGH this year.

Despite the optimism of the Commissioners, recent reports suggest a deal between the respective players unions and their league counterparts is still far away. The NFL is inching closer, with agreements in principle reached, but talks have stalled over the internal appeals process. The NBA Players Association seems ready to postpone the fight over blood testing for seasons to come, with a deal nowhere near ready.

Two facts help to put this dispute into context. Human Growth Hormone is undetectable in urine tests and players in both sports are recovering from injuries faster than they ever have.

I asked Travis Tygart, the CEO of the US Anti-Doping Agency, why the NFL doesn’t have blood testing yet. He said that the players union, in their ongoing labour negotiations, sees blood testing as a detriment which they are willing to accept, but would need something in exchange. Blood testing is a bargaining chip, just like off-season practices, concussion protocols, or any of the other (relatively) small things a billion-dollar employer negotiates with its labour force.

I’m sure this is all true. But it seems there might be more to the story. As with steroids or other performance enhancers, part of the issue surrounding enforcing the ban on HGH is its perception by players. But in some ways HGH doubles down on the conceptual justifications made by players and sports commenters towards Performance Enhancing Drugs.

HGH is a naturally according hormone, key in stimulating muscle growth. It is prescribed for a variety of medical issues. In a sporting context, HGH is thought to increase speed of recovery from injuries, even though this claim isn’t totally confirmed by science.

For some, HGH isn’t really cheating. Numerous commentators have wondered why we don’t let athletes use HGH to recover from injuries. When a running back tears their ACL on a cut, or a linebacker rips their bicep attempting a tackle, they are looking to get back on the field as fast as they can. A substance which helps recovery could be perceived by athletes not as performance enhancing, but performance allowing – they can get back to what they do, faster.

Conceptually, using HGH for injury recovery might not be thought by athletes as making someone more than they are, but as returning them to who they were. Tommy John surgery, European genetic knee therapies, and other recovery techniques that seem “unnatural” are routinely employed by athletes looking to get back in the game, without violating any rules.

What do these possible justifications have to do with a contractual dispute between the players union and the league? The reason players in the NBA and the NFL are pushing back so aggressively against blood testing may simultaneously be more simple, and more complicated, than we thought.

Put simply, more players are probably taking HGH than most people realize, and testing would expose its widespread use as a recovery aid.

But there is likely a more complex aspect. Players, and their representatives, may not perceive testing for Human Growth Hormone as a valid or worthwhile endeavor. Many probably see HGH as tool used to compete in an increasingly difficult field, a field where injuries end careers, and everyone is just trying to keep up. Is an unjust law a law at all? St. Augustine didn’t think so, and the NFLPA probably thinks likewise, even if not explicitly.

The job of players unions is to make sure employed athletes aren’t contractually obligated to do anything more than they have to, and the forced removal of a vial of blood from a few hundred oversized men every other Sunday is probably an obligation worth protecting against.

But in two leagues where no one can agree on what cheating actually is, where entire cities depend on the knees of their quarterbacks, and where the public pressure to recover form injuries is obsessive, it seems like something else might be going on here. As far as management and labour disagreements go, this one might be more complicated.

November 12, 2013

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Tort Law’s Inapplicability to Extreme Sports: The Death of Canadian Ski Cross Racer Nik Zoricic

By Kelsey Petersen – Thompson Rivers University 2L JD Student

The National Post, in their coverage of the death of Canadian Ski Cross racer Nik Zoricic, quoted head coach, Eric Archer, as saying “the athletes are all searching for the same elusive thing: the edge of possibility.All truly elite athletes are searching for that line – they are trying to push the boundary of what humans can do.” In many extreme sports, pushing the boundaries leads to a form of risk taking that the law of negligence has yet to appreciate.Plaintiffs who are hurt while engaging in high risk activities do not fit within a doctrine that uses reasonableness as its central criterion.

Referred to NASCAR on skis, ski cross features up to six athletes racing side by side over banked corners and jumps 140 feet in length.Ski Cross began, and gained its popularity in the X-Games, and has been modified only slightly to become a World Cup and Olympic event.While the World Cup circuit features only four competitors racing at a time, as compared to six at a time in X-Games competition, the extreme nature of competition has transcended into the alpine racing circuit yet is not subject to the same regulations that traditional alpine disciplines enjoy.

Tim Danson, attorney for the Zoricic family, has called the death of Nik Zoricic the result of “gross negligence of race organizers and officials.”Although the Swiss police report found there to have been no third party causation involved in the crash, Danson is calling for the International Ski Federation (FIS) and Alpine Canada to conduct their own independent investigations to determine whether improper jump trajectory, safety measures and grooming protocols were responsible for Zoricic’s death.

While Smolden v Whitworth held that sport is not a special case with its own discrete jurisprudence, divorced from established general principles, the specific circumstances are of crucial importance in determining the applicability of tort principles.In addition to defining what is reasonable versus unreasonable risk within extreme sports, the court must evaluate the fundamental nature of the sport, and the defendant’s role and relationship to the sport, to determine whether the defendant owes a duty to protect the plaintiff from a particular risk of harm.

Athletes involved in extreme sports are often anything but careful, pushing the boundaries of risk taking to be successful in their sport; yet participating in a dangerous sport does not mean that an athlete consents to negligence which increases the risks posed by the sport itself.The defence of voluntary assumption of risk is yet another area to expose tort law’s inability to apply to extreme sports.“Traditionally, the assumption of risk defence barred a plaintiff’s claim, whether his behaviour was reasonable or unreasonable, on the ground that he voluntarily chose to encounter a known danger.” The assumption of risk doctrine is even more important in extreme sports where, by their nature, they are inherently dangerous.The risk of injury is extremely high without the defendant’s negligence increasing the likelihood of injury.While the voluntary assumption of risk defence continues to apply to dangers inherent in the sport, duty can be imposed if the defendant, through their negligence, increased the inherent risks of the sport. 

R v Jobidon held, in a criminal law context, that one cannot consent to death or grievous bodily harm. Can the principle of negligence follow with the assertion that an athlete cannot consent to death in extreme sports?  The death of Georgian luger Nodar Kumaritashvili prompted the following statement: “No sports mistake is supposed to lead to death.No sports mistake is supposed to be fatal.” While extreme sports adhere to a practice of increased risk, tort law principles must be modified to allow for the increased nature of risk in extreme sports to be preserved while maintaining the athlete’s right to impose liability on those guilty of negligence.

November 12, 2013

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NHL is not taking the threat of concussions seriously enough

By Hafiz Karim – Thompson Rivers University 2L JD Student

Concussions have become a prominent issue in the world of hockey and they are becoming more and more noticeable in the National Hockey League.Through the first month of this season, the rate of concussions in the NHL is up by about 30%.Just this season alone, we’ve seen star players such as Rick Nash, Dustin Penner, Danny Briere and Dan Boyle all suffer concussions.

There is no doubt that concussions are an extremely serious issue and the NHL Player Safety department has tried to address this.Rule 48.1 of the Official NHL Rulebook defines illegal checks to the head.It states that, “a hit resulting in contact with an opponent’s head where the head is targeted and the principal point of contact is not permitted.”The NHL states that they take this issue seriously and in reality they generally hand out suspensions for illegal checks to the head.Whether the sanctions given out to players who deliver headshots is adequate or even working is a question for another day.

The NHL makes a point of denouncing checks to the head but are they doing enough?One of my biggest problems with the NHL’s denunciation of headshots is that it is largely reactive rather than proactive.What I mean by that is that the NHL will suspend a player if he makes a deliberate and dangerous hit if a player gets injured, but they rarely seem to do anything over an attempted dangerous hit.

An example of this occurred last week in a game on November 2nd between the Vancouver Canucks and the Toronto Maple Leafs.Henrik Sedin, star centre of the Vancouver Canucks, cut to the front of the net and as he did so, Joffrey Lupul of the Maple Leafs, stuck out his elbow and took a run at Sedin.Sedin later said that he saw the elbow coming for his head out of the corner of his eye and was able to duck out of the way at the last minute.Lupul came at such speed that when he missed Sedin’s head, his momentum carried him forward and he ended up hitting his teammate Nazem Kadri in the head with his elbow.The game was being broadcasted by CBC as part of their Hockey Night in Canada program and it was astounding that the commentators did not reference this attempted dirty hit nor was there a replay shown of it during the game.It may have gone entirely unnoticed if not for social media, which picked up on it and the video clip went viral following the game.

The first time I watched the video, I thought it was hilarious that Lupul ended up elbowing his own teammate in the head.Only later did I realize how bad that could have been if Lupul’s cheap shot had actually connected with Sedin’s head when he was in a vulnerable position.Henrik Sedin is one of the star players on the Vancouver Canucks and is currently tied for third in points in the NHL this season.He also is second in the active Ironman streak in the league that recognizes most consecutive games played.That could have all ended had Lupul’s elbow connected.The Canucks were dominating the Leafs and Lupul must have been frustrated or angry because there is no doubt that he deliberately tried injuring Henrik Sedin with an elbow to the head.It amazes me that the league lays sanctions on players if they injure their opponent, but that there are no sanctions for deliberate attempts to injure that do not work.Even if the referees on the ice did not see Lupul’s attempt to injure another player, there is no way that the NHL did not see that play later on as it went viral.  How do you send a message that illegal checks to the head are not OK and are a suspendable offence, but attempting a check to the head is not a big deal as long it doesn’t connect?

In today’s day and age when there is so much evidence of the detriment of brain injuries, it makes zero sense not to punish players for attempting illegal shots to the head.As a Vancouver Province blogger stated, it makes no sense that someone would have to potentially concuss another player before they get suspended, yet they can attempt it as many times as they want without risk, until they connect.  

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