November 17, 2014

0 Comments

Is Criminal Law Really the Solution to Doping?

By Stephanie Leong – Thompson Rivers University 3L JD Student

The German government last week presented a bill that would make doping in sport a criminal offence, punishable by up to three years imprisonment. Some of the early details of the proposed legislation are that it would only apply to professional athletes who receive federal funding; foreign athletes caught doping in Germany could be imprisoned; and that doctors who provide drugs to athletes could be punished with up to ten years in prison.

The purpose of this legislation is unquestionably to further punish athletes caught cheating and provide a greater deterrent to athletes who may consider using performance enhancing drugs. As a country, Germany has a dark history of doping relating back to the Cold War period when East German athletes were subjected to inhumane and widespread state-sponsored steroid use. More recently, decorated German cross-country skiing Olympian turned biathlete Evi Sachencacher-Stehle was disqualified from the Sochi Olympics after testing positive for a banned stimulant.

Sports and politics inevitably interact with each other. National governing bodies for sport are partially funded by government initiatives, not to mention the national pride associated with the Olympic Games. With sport being so integral to culture some European countries including Italy, Spain, and France have taken initiatives to bring doping under the jurisdiction of criminal law, making it akin to a drug offence. Although this may initially seem like a useful tool in the fight against doping, on further review making doping a criminal offense proves problematic.

In many countries an accused in criminal proceedings is guaranteed the presumption of innocence, no punishment without proof of intent, and a right to a fair hearing. Incorporating doping into criminal law proves difficult in all of these areas. The World Anti-Doping Agency (WADA) Code is the ultimate authority in doping disputes. The Code operates on a standard of strict liability so there is no presumption of innocence, in fact there is a presumption of fault as an athlete is responsible for all substances that enter their body (Code Article 2.1.1). In contrast, section 15 of the German Criminal Code provides that unless expressly stated, only intentional conduct shall attract criminal liability. This is consistent with the criminal law principle nulla poena sine culpa (no punishment without guilt) which is a foundation of criminal law.

According to online reports, the proposed law will only allow prosecution for athletes who fail both A and B sample testing. If the goal of the legislation is to stop all doping this may prove ineffective. Recent statistics published by USADA (United States Anti-Doping Agency) show only 0.003% of all samples tested in 2013 contained a banned substance. However, positive tests are not the only way to catch dopers under the WADA Code.

Under Article 2.2 of the Code, proof can be established by any reliable means, including admissions, witness statements, or other analytical information, meaning an athlete can be convicted of a doping offence without ever producing a positive test. Non-analytical evidence can also be purely circumstantial, something criminal law does not usually see as determinative. Requiring positive samples may be the only way to ensure fairness to the accused under this law, however it is probably not the most effective means of catching dopers.

Athletes are entitled to a fair hearing under Article 8.1 of the WADA Code which should include a timely hearing, fair and impartial panel, ability to be represented by counsel (at an athlete’s expense), and ability to present evidence. This article also allows for an expedited process for hearings held at during events. The benefit of sport arbitration courts are that they have specialized knowledge of lex sportiva and are efficient.

Criminal law courts in contrast cannot be hurried, especially when penal consequences are involved. Due process in criminal matters often provides an accused the right to appeal a judgement, which can be a lengthy process. Situations are foreseeable where an athlete charged with a doping offence awaits trial but before conviction is still permitted to compete. WADA’s system of mandatory provisional suspensions is far more effective in this manner (Article 7.5).

At its earliest, this law will come into effect in the spring of 2015. Before then, the bill must be debated in parliament where its necessity will be scrutinized. Perhaps more importantly, they will determine how and whether it can be practically implemented, because as demonstrated there are many questions remaining to be answered.

November 17, 2014

0 Comments

NCAA football player sues university for failure to educate

By Mitchell Smith – Thompson Rivers University 3L JD Student

Michael McAdoo played football at the University of North Carolina (“UNC”) from 2008 to 2010. In 2010 McAdoo was found ineligible to play and dismissed from the football team because he was accused of having a tutor do improper work on one of his papers and breaching NCAA eligibility requirements.

McAdoo later became one of the first players to shed light on a supposed 18-year academic scandal that was used in order to keep athletes eligible to play sports. The scandal involved the creation of fraudulent classes that never met or taking “paper classes”, where the only requirement was completing a single paper. The classes were then used to inflate players’ grade point average or GPA.

According to a CNN report, McAdoo is now suing the university in federal court. He is accusing the university of breaking its promise to provide an education in return for playing sports. His lawyers are attempting to represent a class of North Carolina scholarship football players who played between 1993 and 2011.

The lawsuit stems from an independent report, which was released last month. The report demonstrates how academic counselors in UNC’s athletic department pushed its athletes into these no-show classes. The report further discusses an example of classes in the African-American Studies department being organized by a student services manager. In these classes students never had interaction with faculty and the student manager assigned grades without considering the quality of work. Often times the student manager was told what grade the player should receive in order to reach the NCAA academic eligibility requirements.

The NCAA outlines its academic eligibility requirements in the form of GPA as follows:

• Division I

“Student-athletes must achieve 90 percent of the institution’s minimum overall grade-point average necessary to graduate (for example, 1.8) by the beginning of year two, 95 percent of the minimum GPA (1.9) by year three and 100 percent (2.0) by year four.”

• Division II

“Based on a 4.0 scale, Division II student-athletes must earn a 1.8 GPA after 24 semester or 36 quarter hours, a 1.9 GPA after 48 semester or 72 quarter hours and a 2.0 GPA after both 72 semester or 108 quarter hours and 96 semester or 144 quarter hours.”

The African-American Studies classes were seen as GPA booster courses. It was found that the average grade for student athletes was a GPA of 3.55 as compared to 2.84 in the regular classes.

McAdoo’s class action claim alleges that UNC breached its contract with football players, violated the state’s consumer protection law, and committed fraud when recruiting athletes. McAdoo expressed particular distaste for the fashion UNC conducted it recruitment, as that was one of the main reasons he had decided to attend UNC. He stated that when the coaches and academic staff came to visit they did not discuss football but instead talked about academics. This promise turned out to be false.

This suit is another hit to the NCAA who has been heavily targeted by former and current players for its treatment of student athletes. The NCAA is prohibited from remunerating its players for revenue and sponsorship it earns from college sports. Instead the NCAA believes they compensate student athletes adequately for their services by providing scholarship funding for an education that would otherwise cost $80,000 or more. McAdoo and his fellow claimants have been deprived of this benefit and UNC in turn continues to earn the substantial profits.

Is UNC the only university that conducts itself in such a manner? Skeptics say no; NCAA football is big business. Coaches are paid a substantial amount of money to win games. It is not unrealistic to conceive that they are motivated to ensure by whatever means possible that their student athletes meet the minimum academic requirements. To me this represents a moral hazard issue where the coach could very well be more concerned with losing his position rather than helping his student athletes both on and off the field. The reality is the majority of student athletes will not make a cent in the professional leagues and in turn will rely on the supposed education they were supposed to receive at university.

November 17, 2014

0 Comments

Are CHL hockey players amateur student athletes, independent contractors or employees?

By Kimberly Jensen – Thompson Rivers University 2L JD Student

In a recent class action lawsuit, players claim $180 million for back pay due to being underpaid when compared to the minimum wage. Vacation pay, overtime, and punitive damages have also been claimed. The 16-20 year old players sign contracts with teams and are paid between $35.00 per week and $125.00 per week.

The Canadian Hockey League (CHL) claims its players are ‘amateur student athletes’, although their contracts say they enter into the team agreement as ‘independent contractors’ and the class action claims they are employees. So, what are they?

The consensus from legal commentators is that the issue will be whether players are independent contractors or employees. The website for BC Ministry of Jobs, Tourism and Skills Training and Responsible for Labor sets out the test for whether a person is an employee or an independent contractor -

“In order to be an independent contractor, a person performing services has to be in business for himself. Designating a person as an independent contractor does not decide the issue.”

In the standard player contract, players sign on as independent contractors, however as stated above, ‘designating a person as an independent contractor does not decide the issue’, so the contractual label for players may not be as relevant as it seems.

The Court has made it clear that the test is very contextual, and not all factors apply in all situations. The central question is: “Whether the person engaged in doing the actions did so as a person in business on his own account. In making this determination, the level of control will always be a factor.”

Control includes factors such as: Does the person take independent financial risk? Does the person have opportunity for profit? Is the person hired given instruction, supervised, controlled, or subject to discipline? Was the person told what to do, how to do it, and when to do it? Is the person under the direction and control of another regarding the time, place and way in which the work is done? Did the person have to do the work, or could that person give the work to someone else?

Application of these factors to the CHL debate indicates that the players are employees. Players do not take financial risk (high control by the league); the players do not have chance for profit above and beyond their wage (high control by the league); the players are given instruction and supervised, although this factor doesn’t really fit because of the inherent nature of instruction required in coaching sport (neutral). The players are told what to do and when to do it, however this is also part of being coached in a sport, so is neutral. The players are not under the control of someone else with regard to time, place, and form of work (high degree of control by the league) and the players could not subcontract their work out to another (high degree of control by the league)

The greater the degree of control by the entity paying the person, the greater the likelihood the person will be deemed an employee. In the application of some factors that illustrate the degree of control, it does seem that the league has a high degree of control over their players. Without further analyzing the case law to see what analogies can be drawn to landmark cases, it is impossible to say whether the degree of control found here is high enough. It does seem like the court will need to weigh in carefully on this case.

There are factors that make application of the employee or independent contractor test complicated. For example, players have different contracts depending on their age and whether they live in their hometown or not. Perhaps this case will add another category of worker to the special designations recognized in the BC Employment Standards Act. The Act already allows for slightly different rules for specific classes of workers such as domestic workers and farm labor contractors. The different rules take into account specific situations that are inherent to the employment due to the nature of the work and employment relationship.

A specific class makes sense for this case as well because there is some merit to requiring the players to be paid minimum wage. There is money to be made from operating a CHL team and it doesn’t seem fair that players give up so much of their time for so little compensation. The hope of one day playing in the NHL doesn’t come true for many players, and the scholarships that are available also seem to be elusive for many players so although there is a claim that the CHL provides benefits above and beyond the small financial reward, these benefits appear to be uncertain. A specific class of worker such as ‘semi-professional athlete’ might be able to protect the players while maintaining the financial viability of the CHL enterprise.

November 9, 2014

0 Comments

Chris Pronger Joins NHL Department of Player Safety

By Kyle Nagy – Thompson Rivers University 3L JD Student

In October, five-time National Hockey League (NHL) All-Star, two-time Olympic gold medalist and Stanley Cup champion Chris Pronger joined the NHL’s Department of Player Safety (the “DPS”). Although many have voiced concerns over appointing a player widely regarded during his playing days as “dirty” to a position to judge other players’ transgressions, there are bigger legal issues of concern.

First is the issue of conflict of interest. Lawyers have an ethical obligation to avoid conflicts of interest. Although different than the context of the NHL and their DPS, some of the same principles may apply to both situations. A fundamental principle of a lawyer’s professional responsibility is the duty of loyalty the lawyer owes to the client. A lawyer generally cannot represent a client if the representation involves a conflict of interest. Rule 3.4-1 of the Code of Professional Conduct for BC states that “[a] lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.” Commentary for this rule further describes that a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by.… the lawyer’s duties to another client, a former client, or a third person. Due to the complexities that can arise from this rule, most law firms have rigorous systems for “conflict clearance” before any legal engagement is accepted.

This is relevant because Chris Pronger is still on the Philadelphia Flyers’ payroll. Pronger has not played with the Flyers since November 2011, when consecutive head injuries sidelined him. However, his $4.9 million per year guaranteed contract signed in 2010 runs until 2016-17. Prima facie, this looks like a classic conflict of interest situation. Although Pronger will not be asked to give an opinion on any Flyers players, what if an impact player from a division rival of the Flyers comes before the DPS for a hearing? It could be argued that Pronger’s loyalty to his current employer, the NHL, could be materially and adversely affected by his duty to another employer of his, the Philadelphia Flyers. The NHL does not adhere to BC’s Code of Professional Conduct, but it would be astute of them to perform some sort of similar “conflict clearance” check before hiring employees.

The related issue of bias is the main reason why observing a set of rules like the aforementioned code is crucial. The test for reasonable apprehension of bias of judges was outlined by the Supreme Court of Canada in the dissenting reasons in Committee for Justice and Liberty v. National Energy Board and was affirmed by the Supreme Court in R. v. S. (R.D.). The test is what an informed person, viewing the matter realistically and practically, having thought the matter through, would conclude, whether he or she would think it more likely that the decision-maker, consciously or unconsciously, would decide fairly. This test outlines the importance of the general public’s perception to the question of bias, and would be a good starting point for the NHL to use when hiring.

The rule against bias aims to maintain public confidence in the administration of justice by ensuring that decision-makers are not reasonably perceived to be deciding matter that will benefit them or those with whom they have significant relationships. Even if Pronger is able to objectively perform his duties and recuses himself from opining on decisions regarding Flyers players, it could be argued there still exists a perception of bias.

Hockey is not currently a top-tier sport in most American states. If the NHL wishes to change this, they must not underestimate public perception and should prudently protect their credibility. The hiring of someone that could trigger thoughts of conflict of interest, and subsequently the perception of bias, was not the wisest choice.

November 9, 2014

0 Comments

Dangerous Soccer Celebrations Raise Questions About the Future of Goal Celebration Rules

By Brittany Corwin – Thompson Rivers University 3L JD Student

Late last month, Peter Biaksangzuala, an Indian soccer player from the Mizoram Premier League, celebrated an equalizing goal against Chanmari West FC with several flips. He landed one of these backflips on his head, leaving him unconscious and with severe spinal cord damage. Several days later, on October 19, 2014, Biaksangzuala tragically passed away due to complications from the injury.

In response to Biaksangzuala’s death, FIFA’s Medical Committee warned that it would be pushing for a new rule to ban such celebrations as backflips and somersaults because they pose a safety risk to players.

Currently, “Celebration of a goal” under Law 12, ‘Fouls and Misconduct’ of the ‘Laws of the Games’ currently states:

“While it is permissible for a player to demonstrate his joy when a goal has been scored, the celebration must not be excessive. Reasonable celebrations are allowed, but the practice of choreographed celebrations is not to be encouraged when it results in excessive time-wasting and referees are instructed to intervene in such cases.”

Further, this section of the ‘Law of the Games’ specifically mentions that players should be cautioned for such actions as making provocative or inflammatory gestures, removing one’s shirt or climbing on a perimeter fence, to name a few.

As you can see, the current rules are focused on avoiding excessive celebration and celebration that may be considered as wasting time, unsportsmanlike or inappropriate. There is no indication of safety as a concern relating to players’ methods of goal celebration.

The lack of safety consideration is eye opening, since Biaksangzuala’s tragic death is an indication that goal celebrations can be dangerous and can result in catastrophic outcomes. However, this raises the question of what FIFA should do in response to events like Biaksangzuala’s and prevent them from occurring again.

FIFA stated that it would be issuing a “directive” warning players not to perform such celebrations. Afterwards, the FIFA Medical Committee will then begin writing a proposal to ban celebratory somersaults and backflips. However, Dr. Michel D’Hooghe, chairman of FIFA’s Medical Committee, stated that he presumed the directive would not be effective in ensuring players avoid these actions, but instead he suggested that these celebrations need to be made illegal.

If FIFA makes backflips and somersaults illegal in the celebration of a goal, it would definitely help deter players from performing them and reduce those specific injuries as result. However, what about the other celebratory actions that result in injury but do not involve flips of any sort?

While Biaksangzuala’s celebration tragically resulted in his death, other sports have recently seen injuries during athlete celebrations as well. For example, on October 26, 2014, defensive end Lamarr Houston of the National Football League Chicago Bears suffered a season-ending ACL tear in his right knee while celebrating a sack against the New England Patriots. A month prior in another NFL game, Stephen Tulloch of the Detroit Lions similarly tore his ACL after celebrating a sack against the Green Bay Packers, rendering him unable to play for the year.

These sack celebrations were little more than a couple skips and jumps, which is quite the opposite of Biaksangzuala’s backflip. However, they resulted in significant injuries that left the athletes out for the season or year.

Celebrating one’s success, whether it is a goal or an amazing play at just the right moment, is inherent in the sport. Everyone wants to celebrate their successes and I am certain that in that moment these players do not consider the dangers that may arise from their celebrations.

Celebration is spontaneous and players take their own risk when choosing how to celebrate. It is such an exciting moment for the player, team and his or her fans and thus, making a long list of celebratory actions illegal takes away this spontaneity.

Even if backflips and somersaults were banned, as Dr. D’Hooghe suggested, there are no changes to rules of celebration that could address all the dangers that could possibly result from a player celebrating his or her success. The NFL sack celebrations are a prime example of this.

Celebration is inherent in the game of soccer, and sports in general, and backflips and somersaults should not be made illegal. Players take their own risk when they choose their celebration and while all possible injuries cannot be preventable or foreseeable, these players need to be aware of the possible dangers that could arise. Hopefully, Biaksangzuala’s tragic death will open players’ eyes to the real dangers that can materialize and they will think twice about taking the risk of throwing a flip and opt for a lower risk celebration instead.

November 9, 2014

0 Comments

Place Your Bets: Blurring the Line Between Sports Wagering and Fantasy Football

By Geea Atanase – Thompson Rivers University 2L JD Student

In 1992, the United States passed the Professional and Amateur Sports Protection Act (PASPA) (also known as the Bradley Act), which federally bans sports betting with the exception of sports lotteries in Oregon, Delaware, and Montana, as well as licensed pools in Nevada. States that had operated casinos for ten years prior to the introduction of the Bradley Act were also given one year to pass laws legitimizing sports betting, but New Jersey, which is home to the infamous Atlantic City, failed to pass such laws.

Until now, that is.

Governor of New Jersey Chris Christie recently approved legislation that allows state licensed casinos and racetracks to offer sports betting to patrons, and for the state, the new law could not have come at a better time. Revenue from gambling at the once sparkling Atlantic City is close to half of that in 2007, and the rapid closing of casinos has led to cuts to thousands of jobs. The legitimization of state-sponsored sports wagering could breathe some much-needed life into a struggling economy, and in the past, state senators from Iowa, Rhode Island, and Missouri have attempted to repeal the PASPA as well. In fact, New Jersey State Senator Raymond Lesniak filed a lawsuit in 2009 claiming that the PASPA unconstitutionally discriminates against all but the four states that allow sports betting, which led to voter approval of a repeal of the Act.

Although dissatisfaction with the PASPA appears to be widespread, both professional and amateur sports leagues have a different story to tell. The NCAA, NFL, NBA, MLB, NHL, and other leagues filed a motion to stop New Jersey from offering sports wagering, citing the conflict with the PASPA as the reason for seeking the injunction. The onus was on the leagues to show that they would suffer ‘irreparable damage’ if the state expands sports betting, and they were granted the injunction on this basis.

Although the NBA and NFL refused to comment, ESPN gambling writer David Purdum has stated that the leagues have been fighting against a repeal of the PASPA for several years, and they fear that the expansion of sports betting will hurt the integrity and credibility of their respective sports. However, proponents of the PASPA repeal argue that the legitimization of sports wagering can only help the integrity and credibility of sports in the US.

Would the expansion of sports wagering to include placing bets at casinos and racetracks truly cause irreparable damage to the integrity of sport? Not likely. Between 1984 and 2013, casinos in Nevada recorded $64.4 billion on sports bets, and since 1989, the total amount won on football bets is just over $1.1 billion. Purdum noted in an interview on ESPN that only about 1% of the money that is bet on sports in the US is wagered legally in Nevada; given that Nevada has already raked in billions of dollars on sports betting, the potential for other states to follow suit (should sports betting become legal) looks promising.

Additionally, when the NFL sought an injunction in 1976 to prevent Delaware from allowing casino patrons to bet on football games, Judge Stapleton found no “threat of immediate irreparable injury” to the NFL and refused to grant the order. Rather than tread on the integrity of sport, expanding state sanctioned sports wagering would funnel some of the illegally bet money into state economies and add some legitimacy to practices that occur with or without legislative approval.

Interestingly, the NFL wholeheartedly supports sports wagering when the league is able to claim a piece of the pie. Forbes estimated that people in the U.S. spent $15 billion playing Fantasy Football in 2013, and while the NFL does not directly claim revenue from that amount, it is still able to capitalize on this form of sports betting in other ways. More than half of those who take part in fantasy sports report watching significantly more games, buying more tickets and spending more money at stadiums.

Additionally, in 2006, the NFL entered into a $600 million deal with Sprint in order to allow football fans to use their phones to monitor drafts, and recently, the New England Patriots entered into a partnership with DraftKings, a fantasy sports website. As Marc Edelman at Forbes also notes, the lines have blurred between fantasy sports and sports gambling: “TradeSports has begun to allow users to compete head-to-head based on their ability to predict a number of ‘yes or no’ bets based on a single NFL game – something that sounds similar to head-to-head parlay betting. The NFL has not uttered a public word about this.”

It seems obvious that the NFL is less concerned with ‘irreparable injury’ to the league and the integrity of sport than it is with maintaining a monopoly on a market from which it stands to gain. As Edelman also notes, the NFL’s fight against the expansion of sports betting in New Jersey misses the mark if the league actively endorses Fantasy Football and implicitly endorses other forms of online betting. In the future, perhaps the NFL should put its money where its mouth is and pursue legal action against those who truly threaten the league with ‘irreparable injury.’

November 8, 2014

0 Comments

Pushing the Possibilities in Extreme Sports – Is stricter regulation necessary?

By Kimberly Jensen – Thompson Rivers University 2L JD Student

Since when has performing front flips on snowmobiles been thought to be possible? With high stakes, such as paralysis or death, what is driving the exponential development of extreme athletes’ ‘bags of tricks’? Is it their individual desire for excitement or is it pressures from competition and sponsors? The answer to whether stricter regulation of extreme sports is necessary depends on what the catalyst for progression is.

Recently, three athletes died in two separate avalanches in South America while filming ski segments for marketing. While these deaths were not part of a regulated activity, they are illustrative of the risks athletes take. The film industry and the competition circuit are two very different components in the life of an extreme sports athlete.

Apart from those two components of the professional version of extreme sports, there is also a recreational component that sees people privately participating, solely for the enjoyment of pushing their comfort levels.

Extreme Sports Films

It is up to athletes to resist pressure and make choices rather than be pressured by sponsors to film, however regulation (if feasible in any form) may be desirable because of the trickle down influence from films to the general population.   The footage from films is often seen as inspiration for recreationalists looking to emulate what professionals do, leading to ambitions overstepping ability.

A factor making it hard to regulate films is that often, film segments are freelance. Athletes make clips then try and sell them to production companies, or even just edit and post them online. The near impossibility and impracticality of regulating the freelance film producers may be unfortunate for safety standards, however there are freedoms that individuals should be accorded and this seems to fit into that category.

Extreme Sports Competitions

The purses at the top competitions for extreme sports are not comparable to traditional sports, however, they are increasing – $3,000,000 is given out in prize money at each X Games. With this kind of money on the line, the athletes are motivated to engage in risky behavior.

It seems that defenders of competitions always proffer the same arguments – athletes have assumed risk and understand possible consequences. While these points are true, is a race or trick worth dying for? Recently, in response to fatalities during competition, the FIS and X Games have made modifications to create a safer arena for athletes. The X Games even dropped Snowmobile Best Trick category because it had no purpose other than for athletes to engage in risky behavior. This is a great reaction, and sets the tone for reigning in extreme sports competitions for the sake of safety, which I propose athletes deserve.

Recreational Participation in Extreme Sports

As long as suicide is legal, it seems the question of whether participation in non-commercialized extreme sports can be regulated answers itself: no. Currently, some locations available for engaging in extreme sports are regulated; other than that, participants have freedom to do as they wish. Part of the issue here is that often the sports happen in natural locations that are not developed by anyone, so there is no one to regulate except the participants themselves. Regulation may drive the sports underground, however it is not likely to increase safety.

What Is the Catalyst and Is Stricter Regulation Necessary?

Many athletes claim to be motivated by their inherent desire to push the limits and progress in their chosen sports. Climbing mountains because they’re there or taking up wing-suit flying without any sponsors, cameras or competitions in sight suggests that at least some people are driven to participate in these sports appreciating these inherent risks and not motivated by commercial forces.

In the day of ‘Kodak Courage’, significant sponsorship dollars and prize money, it may not be possible for athletes to be immune to external pressures and self regulate. The culture of extreme sports is often that of enjoying an alternative lifestyle, where money is not really a concern beyond being able to afford the appropriate sports equipment. Athletes that have been inducted into this culture are reluctant to recognize external commercial pressure – it is not part of who they want to be, nor is it part of the image they want to convey.

Even though athletes seem to voluntarily assume these risks, it seems to me that the modern industry thriving from extreme sports should bear some responsibility for safety of athletes. Extreme sports will continue to progress, injuries and deaths will continue to happen and regulations will never be enough to eliminate the inherent risk of flying a wing-suit through a hole in a cliff. Yes, there are arguments that the whole point of extreme sports is to continue the progression toward the edge of possible, however there are ‘safer’ ways in which it can be done, and participation should be because it is what the athlete ‘needs’ for self-actualization.

The law needs to keep people safe, however it must also allow people fundamental freedoms. In extreme sports, perhaps safety and maintaining freedom of athletes to participate are not mutually exclusive and a balance will be found between regulation and participation.

November 7, 2014

0 Comments

Domestic violence in sports – guilty until proven innocent?

By Ryan Monty – Thompson Rivers University 3L JD Student

There has been a rash of domestic violence charges springing up in professional sports leagues across North American in recent months and, even as a casual sports observer, you would have to have had your head in the sand not to notice. It all started with Baltimore Raven’s running back Ray Rice and the controversy surrounding the National Football League’s reaction to that incident. The punishment went from 2 games to an indefinite period of time after a video surfaced showing Rice physically assaulting his soon-to-be wife in an elevator. The public outrage was palpable and forced the hand of the league to reconsider its original suspension.

This set the precedent for subsequent situations involving criminal charges and athletes. The Minnesota Vikings suspended all-star running back Adrian Peterson indefinitely after charges were laid against him for physically disciplining his child, and most recently, Slava Voynov, a defenseman for the Los Angeles Kings, was suspended indefinitely by the National Hockey league mere hours after being arrested for domestic violence, all with the aim of curtailing any public backlash directed at the league or team.

This brings up the alarming fact that the standard of proof in the public eye is substantially lower than the blindfolded Lady Justice. In our criminal justice system a person charged with a crime of this nature needs to have his or her guilt proven beyond a reasonable doubt with the onus on the Crown/prosecution to prove it. However, the leagues and the teams of these players are now faced with the reality that public reaction will be so intense that anything less than an all out suspension is unacceptable, essentially shifting the idiom of “innocent until proven guilty” to “guilty until proven innocent” in the public sphere.

I am not going to defend the actions of someone like Rice, who clearly deserved what was coming to him, especially since the video was definitive on what role he played in the situation. The problem I have is with the escalading reactionary nature of the sports world to any type of criminal charges before all the facts are in. Anyone can make allegations to police and it is up our justice system to determine if those allegations are true. The public though doesn’t seem to have a problem with vilifying an athlete and tarnishing his reputation at the mere mention of pending charges.

Dante Cunningham, a professional basketball player is currently without a contract from any National Basketball Association team after his then-girlfriend called the police claiming he assaulted her. The charges were later dropped and it was proven that she had fabricated the events in question, yet Dante is still feeling the consequences of these false allegations because no team is willing to take on the player due to the possible public and financial burden of letting him join their team. The onus is now placed on him to prove to the public and any suitor that his value outweighs his detriment.

Teams have every right to sign whom they want for whatever reason. They, along with the league, also hold the right to suspend any of their players and that is clear in the respective Collective Bargaining agreements of each league. The NHL, for example, has a clause that stipulates a team can suspend a player if “the failure to suspend the player during this period would create a substantial risk of material harm to the legitimate interests and/or reputation of the league.”

The extent to which the legitimate interests or reputation team or league would suffer is essentially determined by the public reaction to the alleged incident. And the public reaction is sometimes – if not often – based on an intemperate, incomplete and inaccurate understanding of the facts. I am not here to suggest a new test or regime on how to suspend players charged with criminal offences but I am advocating for due process and the restraint to judge each situation based on its merits instead of blindly suspending any athlete that comes into contact with any legal troubles, which is where I fear we are at now and won’t easily return from.

November 7, 2014

0 Comments

Potential CHL Employment Lawsuit

By Kyle Nagy – Thompson Rivers University 3L JD Student

On Friday October 17, a statement of claim was filed against the Canadian Hockey League (CHL) by former players seeking $180 million of outstanding wages, holiday, overtime and vacation pay, and employer payroll contributions. Thousands of young players were given as little as $30 per week for training, practices, games, and travelling that often totalled full-time hours. The claim alleges the CHL violated provincial minimum wage laws. The CHL is the umbrella organization of the Western (WHL), Ontario (OHL) and Quebec (QMJHL) major junior hockey leagues and contains players ages 15-20.

The heart of the issue is whether CHL hockey players are employees of their teams, independent contractors, or interns. The statement of claim states that CHL players are employees and therefore teams must pay the players in accordance with provincial minimum wage laws. However, the CHL has long argued that its players are amateur student athletes and independent contractors, or the equivalent of interns training for professional positions. If the CHL is correct, they would be exempt from provincial minimum wage laws. If the courts deem the players independent contractors or interns, teams can continue to pay the players the $30-$50 per week they currently receive.

The CHL has taken strides in recent years to improve its scholarships for players and increased funding put in place for billeting, mental health and mentoring programs. This is commendable, but the players do not think it is nearly sufficient. The statement of claim alleges teams are “unjustly enriched” with “hundreds of millions of dollars in revenues annually” based on the services provided by the young athletes on the ice.

The argument that the CHL and its member teams receive little benefit from their players is dubious at best. The Quebec Remparts, London Knights, and Calgary Hitmen, the three teams that led their respective CHL leagues in attendance last year, averaged between 7,500 and 10,000 fans per game. These leagues are for-profit organizations that have lucrative television and internet packages with marketing arrangements with some of the biggest corporations in Canada.

Under British Columbia’s Employment Standards Act (the “Act”), an “internship” is on-the-job training offered by an employer to provide a person with practical experience. If the duties performed by interns fall within the definition of “work” contained in the Act, the intern falls within the definition of “employee” for the purposes of the Act. Once someone is considered an “employee”, they must be paid at least the current BC minimum of $10.25 per hour.

Duties performed by interns will be considered work for the purposes of the Act when their training is a) directed by the employer (or on the employer’s behalf), and b) related to performing the employment duties the employee has been hired to do. Employers are required to pay for the training an employee needs in order to learn how to do their job at the employer’s business.

When determining whether players are employees or independent contractors, and therefore not subject to protection under provincial employment legislation, the central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In 671122 Ontario Ltd. v. Sagaz Industries Canada Ltd., Justice Major of the Supreme Court of Canada stated that the court will also consider a number of factors. These include the level of control the employer has over the work’s activities, whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks. Each of these factors appears to point towards CHL players being employees rather than independent contractors. The players have very little independence.

Pending the approval of the class-action lawsuit by a judge, this will be the first time this issue has been litigated in Canada. One case from 2000, however, gives insight into how the courts view the CHL-player relationship. In McCrimmon Holdings Ltd. v. Minister of National Revenue, the Tax Court of Canada found that a CHL team was an employer and players employees for the purposes of employment insurance. The court stated that while the league’s emphasis on supporting player education is admirable, the teams are still commercial organizations carrying on business for profit.

Considering the Employment Standards Act’s characterization of internship and work, the Sagaz factors, and the Tax Court case, the players appear to have the upper hand at the outset of this potential lawsuit.

 

 

 

 

 

November 7, 2014

0 Comments

Canada’s Las Vegas-styled Sports Gambling Bill Stalled

By Mitchell Smith – Thompson Rivers University 3L JD

A law that would embrace Vegas-style sports gambling in Canada is still stalled in the Senate. Bill C-290 was proposed in 2012 by New Democrat MP, Joe Comartin and was passed quickly through the House of Commons without any opposition. Since then however, the Senate has avoided putting it to a vote, citing the lack of debate and upset senators displeased with the bill’s premise.

The following will examine this new law’s potential affect on the sports industry and society. It will not discuss the political aspects at issue with an unelected body attempting to block a law that has been supported by all parties.

Bill C-290’s purpose would be to give each province in Canada the power to allow single-game betting. While betting on a single sporting event or athletic contest is currently outlawed by sections 206 and 207 of the Criminal Code of Canada, provinces are allowed to offer parlay-style wagers on multiple games. A “parlay” is a bet that links two or more wagers together and is dependent on all of those wagers winning. The result is that the payoffs are usually higher than single-game betting but the odds of winning are also likely slimmer.

Why is single-game betting an issue?

Some of the major stakeholders that this bill affects are the professional sports leagues in Canada– including the National Hockey League (NHL) and Major League Baseball (MLB) – and society as a whole. Both of the professional sports leagues oppose Bill C-290, citing concerns over how it may affect the integrity of the sport.

The NHL is quoted as saying, “Such wagering poses perhaps the greatest threat to the integrity of our games, since it is far easier to engage in ‘match fixing’ in order to win single-game bets than it is in cases of parlay betting [as currently exists in Canada], where bets are determined on the basis of multiple game outcomes.”

Additionally, the CEO of the Toronto Blue Jays, Paul Beeston, stated that, “When gambling is permitted on team sports, winning the bet may become more important than winning the game; the point spread or the number of runs scored may overshadow the game’s outcome and the intricacies of play.” Beeston goes on to explain that he wants the fans to support and cheer for the home team and athletes, instead of the fans cheering for their bets to win.

In contrast to these opinions, Senator Frank Mahovlich, a former Toronto Maple Leaf hockey player argues that match fixing is not a concern because hockey players are insulated from being bought off by gamblers because of the large amount of money being earned.

The proponents of the bill believe that society stands to gain from job creation, increased government revenues, and tourism. They point to the fact only a handful of U.S. states allow single-game bets and therefore will attract more American visitors to our casinos. It is also stated that Canadians are already wagering their money on single-game bets through online casinos or through organized crime. All of society stands to benefit if the monies generated by gambling stay ‘in-house’ in provincial treasuries.

The question that politicians are trying to resolve is simple: are the detrimental affects of opening up sports gambling outweighed by society’s benefit?

In my opinion, Maholovich’s argument misses the point and is perhaps a little naïve. There are players in all sports who, regardless of the amount of money they are being paid, could still be manipulated and thus affect the integrity of the sport. As a sports fan, I agree more with Paul Beeston. I want to cheer for my favorite team because of the emotional attachment and for the spirit of the sport –not because of the reward I get from them winning or losing. Ultimately however, those who want to wager on single-game bets will easily find a way to do so online. Knowing this, it only makes sense to allow the bill to pass and let the provinces decide the best way to implement. The revenues generated are better served supporting Canadian society rather than in the hands of online casinos or organized crime.

Follow

Get every new post delivered to your Inbox.

Join 571 other followers