October 24, 2014

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The Lasting Effects of Performance Enhancing Drugs: What does this mean for sport?

By Brittany Corwin – Thompson Rivers University 3L JD Student

In 2013, University of Oslo’s Professor of Physiology, Kristian Gundersen, and his team of scientists found that athletes’ muscles can retain the performance-enhancing benefit of anabolic steroids well after the athlete has actually taken the steroids.

Gundersen’s team studied the effects of steroids on mice, saying that the same mechanism is at work in human muscles and that other performance-enhancing drugs would have similar long-term benefits. He recently explained to the BBC that when a person takes anabolic steroids, they develop more nuclei within muscle cells that allow the muscle cells to grow bigger and stronger when trained. If steroids are taken away, muscle mass will be lost but the nuclei will remain inside the muscle fibers and it will be much easier to return to the same strength after a period of not training.

Effective January 2015, the World Anti-Doping Agency (WADA) Code, will double the doping ban to four years for athletes found guilty of doping. This will be an increase from the previous two-year ban for a first major offence, with athletes banned for life if tested positive again.

If performance-enhancing drugs have lasting effects, this invites the question of whether the new four-year ban is really enough? Regardless of whether or not the athlete is now clean, an unfair advantage may persist for the rest of their athletic career even though subsequent testing will come back negative.

The BBC piece comes in response to the past summer in which US track and field athlete, Justin Gatlin, ran the fastest ever 100 meter and 200 meter times by a man in his thirties. Not to mention that out of seven 100 meter races in the summer, Gatlin held six of the fasted times and he ran the fasted ever one-day sprint double consisting of the 100 meter race and then the 200 meter race an hour later. These results came after Gatlin served two suspensions for testing positive for doping – the most recent being for four years in 2006.

These extremely fast finishes were subject of great controversy for fellow athletes. Britain’s 2011 400 meter hurdles world champion, Dai Greene, told BBC that “He’s [Gatlin] over the hill as far as sprinting is concerned – he should never be running these times .…” Greene further went on to say that since Gatlin had to sit on the sidelines, unable to train or compete during his suspension, there has to be some other explanation for his incredibly fast times at his age. He suggests that either Gatlin is still doping or the drugs he did take are still hard at work.

As a previous positive doper, Gatlin’s recent success upon his return to the sport could arguably be a direct result of his past doping, as Greene suggested. If this is the case, this leads one to wonder whether the world of sport can truly ever be clean if previous dopers are still reaping the benefits of their previous drug use.

If the benefits of doping are life long, then whether WADA instills a four-year ban, or a 10-year ban for doping, is irrelevant. Sure, a four-year ban to an athlete may seen like a lifetime, but how can the fairness of sport be upheld if regardless of their punishment, athletes are returning from their doping bans with an advantage over those athletes who have never doped?

According to their website, WADA “…was founded with the aim of bringing consistency to anti-doping policies and regulations within sport organization and governments right across the world.” In order to uphold their mandate, future research needs to be conducted into the long lasting effects of doping to address the extent to which the drugs have an effect on the athlete in the future and the impact it will have on sport in general.

These athletes who use performance-enhancing drugs are cheating and while they do receive penalties for this, as previously mentioned, their cheating should not allow them to later succeed as a clean athlete. It is possible that prior doping – for which they have already been sanctioned and suspended – could be contributing to current success due to the long-lasting effects of doping. In order to uphold the preventative measure of doping sanctions, the WADA Code needs to accommodate for any long-lasting effects of doping. Future research will hopefully help answer the difficult question of just how WADA is to do this.

October 24, 2014

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Questions concerning the World Cup in Qatar

By Robert Mazzarolo – Thompson Rivers University 2L JD Student

December 2, 2010, a date that will live in infamy for soccer (football) fans around the world. The Fédération Internationale de Football Association (FIFA) was set to announce the hosts for the 2018 and 2022 World Cups. With the anticipated frontrunner being the United States of America (America) for 2022, the excitement in North America was palpable. The other hopefuls, which included Australia, South Korea, Japan, and Qatar, did not have a chance, or so it was thought. The World Cup would return to America to finish what it had started in 1994. What could be better? Inexplicably, this was not to be the case. As millions of soccer fans watched on their TV screens, FIFA President Sepp Blatter stepped up to the podium to announce the host nation for 2022. He opened the envelope and announced, “The winner, to organize the 2022 FIFA World Cup is, Qatar!” Yes! Wait … Qatar? Where is Qatar? This is where the tragedy of that evening begins.

How could Qatar surpass the United States for the right to host the 2022 World Cup? According to United Nations statistics, the population of Qatar in 2010 was 1.7 million people. Comparatively, the US’s population as of 2010 was 309 million. Less must be more in the eyes of FIFA. Of that 1.7 million people, three quarters are male. This bodes well for Qatar, as nothing says gender equality more than an extremely disproportionate amount of males compared to females. The US, on the other hand, is roughly evenly split at fifty percent male and femaler.

How about weather you ask? The average temperature in Qatar during the months of June and July is 42 degrees Celsius. Temperatures can reach as high as 50 degrees Celsius with continuous sunshine and no rainfall. These are the conditions to which FIFA agreed would be suitable for the World Cup. Qatar would argue that the heat will not be a problem as it will be countenanced by radical new cooling technologies capable of making 80,000 seat stadiums and the players on the pitch comfortable in the otherwise blazing heat. Comparatively, the average temperature in the US during June and July is a more reasonable 25 degrees Celsius.

What about labour force and working conditions? Surely, no matter what country is selected, infrastructure will need to be built to host the tournament. Qatar’s vast majority of trade’s workers are migrants from Pakistan, India, and Nepal. They have severe restrictions placed on their movement, including when they can exit the country. It is estimated by the International Trade Union Confederation (ITUC) that at least 4,000 migrant workers will lose their lives in preparation for the World Cup in 2022. These facts along with others have led the ITUC General Secretary, Sharan Burrow, to classify Qatar as a “slave state.” Yikes! While America does have a history of slavery for its labour, at least they did the right thing and banned slavery almost 150 years ago. It would be interesting to hear FIFA’s defense of its decision in light of these facts.

Given these examples and others, it is clear that there are serious questions concerning Qatar being awarded the World Cup. Almost immediately after the results were announced, allegations of corruption within FIFA began to surface. Calls for an inquiry, an investigation became so loud and so widespread, even FIFA could no longer ignore them. FIFA hired former New York District Attorney, Michael Garcia, in 2012 to investigate the bid process and submit a report of what really happened behind the scenes. However, just to demonstrate FIFA’s arrogance, they will not release this report to the public. Furthermore, in the last few weeks, calls to strip Qatar from the right to host the 2022 World Cup have even come from within FIFA’s inner circle. Outspoken executive members of FIFA, such as Theo Zwanziger from Germany, remarked that he personally believes that the 2022 World Cup will not be held in Qatar. Even Sepp Blatter, the kingpin of them all, has stated that selecting Qatar to host a World Cup was a mistake. It may just be a matter of time before the right thing is done and the tournament is moved. Until then, FIFA should start to follow its own motto, “For the Good of the Game.”

October 22, 2014

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Is Women’s Figure Skating on the Eve of an Age Doping Scandal?

By Stephanie Leong – Thompson Rivers University 3L JD Student

With the 2014/15 ISU (International Skating Union) Grand Prix Series beginning next week in Chicago, audiences can expect to see an array of new skaters emerge in a post-Olympic season. Skating fans will remember the hype surrounding Russian fifteen-year-old Julia Lipnitskaia in Sochi and the extremely high expectations for her to medal in the women’s competition. However, Lipnitskaia almost did not qualify for the Russian team – not due to her talent, but her age. Had Julia been born 40 days later, she would have been too young to compete at the Olympics, European Championships, or World Championships (all of which she medaled in). The ISU Constitution and General Regulations, rule 108 1(a) states:

The word “Senior” is used in this Rule and in the ISU Statutes to describe certain competitions that have a minimum age entry requirement of fifteen (15) years, determined in each instance by the birthday of the Skater that occurs before the July 1st that immediately precedes the relevant competition.

Elite skaters under fifteen must compete as juniors. Although international ISU junior competitions exist, these events are rarely publicized and almost never broadcast in North America, limiting opportunities for junior skaters to obtain sponsorship or international acclaim. With top juniors often outscoring senior skaters, fans may be asking whether the minimum age requirement should be removed to increase competitiveness and prevent ‘age doping’.

What is Age-Doping?

Age doping is falsifying an athlete’s age to meet a requirement. To date, this topic has largely been discussed in the context of women’s gymnastics. At the 2000 Sydney Olympics China placed third in the group competition, but was later stripped of their medals after an investigation determined one athlete was only fourteen at the time of the Games (minimum age for gymnasts was sixteen). To date, there have not been allegations of age doping in an ISU competition. However, women’s figure skating is certainly an age sensitive sport. The idea that younger skaters have an advantage over more mature competitors is rooted in basic physiology. Skaters under fifteen often weigh less and have a lower body-fat ratio, a result of not yet experiencing puberty. This translates into being able to rotate faster, meaning easier triple-triple jump combinations. In fact, it is not uncommon for a skater who reaches elite competition before puberty to later disappear from competition when their body changes and jumping technique must be completely retaught.

Why is this an issue now?

Contemporary changes to skating’s scoring system also provide young skaters with a potential advantage over their competitors. Figure skating is a unique sport as skaters are rewarded for technical athleticism, as well as their artistry and presentation. The cumulative points calculation (CPC) judging system, implemented after the 2004 Salt Lake City Olympics, recognizes this duality and awards points in a way similar to artistic gymnastics (for full explanation on scoring see here). Under the CPC system scoring is a mathematic formula. This aids young skaters as it is easier to gain points in the technical score, than in the presentation score, which is where older skaters outperform youngsters, as developing artistry and skating skills generally occurs later in an athlete’s career. Additionally, growing popularity for the sport is putting increased pressure on young skaters to win. Skating is popular in North America every four years, but in Japan and South Korea it is an obsession. In a recent Wall Street Journal article, Mao Asada was named Japan’s favourite sports star, dethroning baseball legend Ichiro Suzuki. In South Korea, skating superstar Kim Yuna is undoubtedly responsible for skating’s surge in popularity and was a major lobbyist for the 2018 Pyeongchang Winter Olympics. Additionally, China will host the ISU World Championships for the first time in March, a sure sign of skating’s popularity in that country.

Why should we be concerned about the possibility of age doping?

Apart from obvious detriments to the integrity of sport, the health of young athletes is a major concern. In 1997 the minimum age requirement in gymnastics was raised from 15 to 17 citing athlete burnout, musculoskeletal damage, early onset osteoporosis, and eating disorders amongst younger athletes. Although it is possible that lowering the minimum age rule may increase competitiveness, this should not be done at the cost of athlete health. Skating currently does not have an age doping problem, but given the similarities between gymnastics and figure skating, as well as contemporary factors, this is certainly something the ISU and national federations should consider.

October 22, 2014

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Does the O’Bannon decision shake the foundation of the concept of amateurism in sport?

By Sangin Safi – Thompson Rivers University 3L JD Student

In the ever-continuing saga of Ed O’Bannon’s battle against the National Collegiate Athletic Association (NCAA), the United States District Court Judge, Claudia Wilken, delivered a judgment on August 8th, 2014 that has the potential to shake the foundation of NCAA’s principle of amateurism in sport (i.e. no compensation for its student athletes).

In the 99-page decision, Wilken issued an injunction against a ban on payments to players for the commercial use of their names, images and likeness (NILs) in things like video games. The ruling also allowed the NCAA to cap the payments at $5,000 per year. What this means is that athletes will now be able to share in some of the multi-million dollar revenues that the NCAA generates annually. Although the ruling definitely puts a dent on NCAA’s principle of amateurism, analysts and commentators are divided on whether the ruling completely shakes the foundation of the principle. Specifically there seems to be a divide with respect to the potential future implications of the decision.

On the one hand, there are commentators that claim the ruling completely destroys amateurism in college sports. For example, Forbes magazine contributor Matt Powell states, “…the Wilkens (sic) ruling clearly destroys the ‘collegiate model’ thesis. Any pretense of amateurism…is now over.” Powell believes that the $5,000 annual cap on compensation will not hold for long. He further believes that players will also be “freed from the silly enforcement rules like the prohibition of selling memorabilia on EBay” and he even contemplates whether player endorsements might be something of the future.

On the other hand, there are commentators that insist that the reach of the decision should not be overstated. For example, contributors at The New York Times maintain that although NCAA was the clear loser in the case, the decision should not be overstated. According to them, “[p]ost-O’Bannon collegiate athletics won’t operate according to free-market principles. Far from it. Players did not win the right to sign endorsement deals.” They also note that the NCAA may keep the $5,000 annual payments in a trust until players graduate or leave. Therefore, according to the contributors, although the NCAA will have to adjust to the new order, the decision does not completely destroy amateurism in sport.

Although the cautious position by The New York Times is a safe one to take, the August 8th ruling definitely clears a wide path for future litigation against the NCAA with respect to student athlete compensation. As Jon Solomon of CBS Sports notes, there is currently a looming lawsuit being brought by a prominent sports attorney, Jeffery Kessler, who is seeking a free market for college recruits. The O’Bannon ruling is surely to boost the confidence of Mr. Kessler in pursuing vigorous arguments in support of further student athlete compensation.

Furthermore with the August 8th decision, a federal judge has now confirmed that college sports are indeed a big money making enterprise; therefore it is inconceivable that the NCAA can continue to make multi-million dollars in revenue without sharing some of it with the value drivers of the business, the student athletes themselves. Indeed, one could sense the rise of a new area of unjust enrichment within the context of lex sportiva (i.e. sports law).

Although the NCAA is currently appealing the decision, the August 8th ruling definitely sends a strong message to everyone that the NCAA can’t hide behind the cloak of amateurism and continue to earn big money. As the saga of Ed O’Bannon continues, and likely to be followed by other lawsuits, the amateurism model simply cannot be sustained in college sports in the long run.

October 21, 2014

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The Case for Equal Prize Money in Women’s Cycling

By Jeanine Ball – Thompson Rivers University 2L JD Student

The ongoing debate regarding inequality in prize money between men’s and women’s cycling was re-ignited last month. A member of the winning women’s time trial team in the Road World Championships and a top U.S. road cyclist, Evelyn Stevens, reacted to the discrepancy when the winning women’s team received a total of 10,666 € , whereas the winning men’s team received 33,333 €.

Only this past year, the UCI (Union Cycliste International), the International Federation which governs cycling, amended its regulations to require that the men’s and women’s World Champions in each cycling discipline (except the team time trial) receive the same prize money. This is only a requirement for World Championships. Equal prize money is not mandatory at most other international, national or local races.

Why does it matter?

Cycling, like many sports, has been traditionally male-dominated. However, women have competed at the highest level for decades. Women competing today at an elite international level put in equal amounts of training time and effort into racing as men. Inequality of prize money for women racing at the international level amounts to gender discrimination. Insufficient income from winnings prevents women who choose cycling as their profession from accessing the same opportunities as men.

Prize money is an essential source income for many female cyclists. This is especially true for women because there is no UCI minimum requirement for salary on professional women’s teams. By contrast in men’s cycling there have been recent discussions around salary caps, and the UCI sets a mandatory minimum wage for international level road teams.

The legal argument for equal prize money is based on a fundamental human right, which is that equal work merits equal pay. In Canadian law, this right is supported both under section 15 of the Charter of Rights and Freedoms as well as statutes in six provinces such as the Pay Equity Act in Ontario. While the UCI is an international federation and is not bound by Canadian law, Cycling Canada, which oversees the sport in Canada, is federally funded, and required to abide by all aspects of Canadian domestic law as well as Canada’s international commitments. In several instances, such as the National Cyclocross Championships in 2012, race organizers under Cycling Canada have justified lower women’s prizes claiming that the UCI does not require them to pay equal prize amounts.

Arguments against equal prize money

Opponents of equality in prize money have made a number of arguments against providing equal prize money to women. First, there are often not as many competitors in a women’s category, and therefore the organizer of a race would not have as much income from the entry fees for women, so the prize should reflect this. Second, a women’s race is generally a shorter distance, so the women aren’t actually doing the same amount of work. Finally there is an argument that women’s racing does not generate the same level of interest from spectators, and subsequently sponsors.

A response to the arguments against

This could be described as a “chicken and egg” scenario. For example, if the prizes were higher, perhaps more women would enter a race. Greater numbers of women racing would also make events more competitive, exciting and appealing to spectators. Women’s races generally are also held before the men’s race, which is typically the featured event, in the timeslot when there would be greatest interest from spectators.

In terms of the argument that women are not doing the same amount of work because their races are shorter, it is worth noting that the UCI sets the limits for race distances. Additionally, a comparison may be made to other sports such as professional tennis where physiological differences between men and women are recognized through varied rules of competition yet prizing is awarded equally. Further, equality is supported by statutes such as Ontario’s Pay Equity Act which strives to ensure that women and men receive equal pay for performing jobs that may be very different but are of equal value. Women are certainly engaging in competition which is of equal value to men’s in terms of both the level of competition and athletic ability.

While equal prize money at World Championship events is an important step, there are still significant opportunities to move towards gender equity in cycling. Canadian Race Organizers should lead the way not only because it is ethical, but because Canadian law also obligates them to do so.

 

October 21, 2014

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The Road to the 2022 Winter Olympics – Lip Service to Good Intentions

By Geea Atanase – Thompson Rivers University 3L JD Student

Since the creation of the International Olympic Committee (IOC) in 1894, when 13 nations met at the Congress of Paris to revive the Ancient Greek traditions of unity and diplomacy in organized sport, the modern Olympic Games have purported to represent the harmonious coming together of nations from across the globe in friendly competition and mutual respect. The IOC has codified these values in the Olympic Charter, which states in part that the goal of the Games “is to place sport at the service of the harmonious development of man with a view to promoting the preservation of human dignity.” Additionally, the IOC “opposes any political or commercial abuse of sport and athletes.”

However, the IOC’s apparent lust for luxury has come under fire recently when Oslo, Norway decided to withdraw its bid to host the 2022 Winter Games. This is due to the conservative party of Norway’s refusal to provide a financial guarantee for the Games, partly because of the high costs of hosting the Olympics, and partly because of a list of demands that the IOC put to Oslo as a host.

These demands include separate chauffeur-driven Olympic traffic lanes with ‘priority’ traffic lights, opening and closing ceremonies with gourmet food, a cocktail reception attended by King Harald V and funded by Norway’s royal family, and an entire hotel to be set aside for use by the IOC. Although IOC spokespeople have called these demands mere ‘suggestions,’ the outrage shown by the Norwegian government toward the IOC’s ostentatious requests sheds light on what can only be described as a commercial abuse of sport by the IOC, contrary to the values espoused in its Charter, as well as an abuse of the IOC’s position of power as the governing body of the Olympic Games.

Additionally, bidding for 2022 Winter Games will not be reopened by the IOC, which leaves Beijing, China and Almaty, Kazakhstan as the only host options; however, human rights abuses in both countries are well-documented. The US Department of State’s (DOS) Report for 2014 lists the most significant human rights problems in Kazakhstan as arbitrary and unlawful killings by government agents, government and security force corruption, torture of prisoners and detainees, violence and discrimination against women and LGBT persons, abuse of children and child labor, sex and labor trafficking, and restriction on freedom of speech, press, assembly, religion, and association.

The US DOS Report for 2014 also describes significant human rights abuses in The People’s Republic of China, an authoritarian state ruled by the Communist Party; these issues include harassment and intimidation by the government toward public interest advocates and critics of the regime, extrajudicial killings without due process, torture of detainees and coerced confessions, political control of courts and closed trials, restrictions on freedom of religion, and forced abortions and sterilizations in accordance with a birth limitation policy, to name a few.

If the IOC is truly concerned with ‘promoting the preservation of human dignity,’ as stated in its Charter, it might think twice about choosing to host the Olympics in countries where state sanctioned harassment, torture, and discrimination against its citizens are commonplace abuses, among others. However, given the IOC’s track record when it comes to ignoring blatant human rights violations in nations involved in Olympic bids, its refusal to reopen bidding for the 2022 Winter Games is unsurprising. Despite the obvious human rights violations against Jews perpetuated by Adolf Hitler’s Nazi regime, the IOC refused to reopen the bid for the 1936 Summer Games after awarding the honor of hosting the event to Berlin. In fact, even amid strong opposition from western nations and Jewish athletes who called for a US boycott of the Games, the IOC ejected boycott supporter Ernst Lee Jahncke from the Committee and replaced him with Avery Brundage, who spoke publicly about a ‘Jewish-Communist conspiracy’ to prevent the US from competing in Berlin.

The IOC also failed to respond in any meaningful way to the controversy surrounding its decision to hold the 2014 Winter Games in Sochi, particularly with the law prohibiting the spread of ‘non-traditional sexual arrangements between adolescents,’ which was signed into legislation by Putin in 2013. Despite the IOC paying lip service to its values of anti-discrimination and assuring participants of the Games that it would be a safe environment for athletes, human rights organization RUSA LGBT put it best – “we want to know how they can ensure this in a country with state-sponsored homophobia backed by federal law?”

Perhaps the more pressing question is whether the IOC can dig itself out of the moral conundrum it finds itself in once again with respect to holding the Olympic Games in countries known for human rights violations, this time in direct relation to the unrealistic and exorbitant demands they themselves placed on the only functioning democracy that was in the running. After years of practices that run contrary to the values espoused in the Olympic Charter, it remains to be seen whether the IOC will take a stand regarding the very values it professes to embody.

October 11, 2014

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Two Stones, One Ray-ven

By Michael Truong – Thompson Rivers University 3L JD Student

Recently, the National Football League (NFL) has come under intense scrutiny not for the violence on the field but off of it. Ray Rice, a running back for the Baltimore Ravens, is at the centre of the NFL’s domestic violence controversy.

Early in 2014, Rice was arrested for assaulting his then-fiancée and now wife, Janay Palmer. Shortly after, TMZ released a video of Rice dragging an unconscious Palmer out of an elevator. The NFL responded by suspending Rice for two games. In September of 2014, TMZ released a more complete video, which showed Rice punching Palmer in the face rendering her unconscious and then dragging her out of the elevator. The Baltimore Ravens terminated Rice’s contract while the NFL suspended him indefinitely.

There is little doubt that Ray Rice deserves a significant punishment from the league. That much is clear. Given that NFL Commissioner Roger Goodell initially punished Rice with a two-game suspension, should he have been able to substitute the two-game suspension with an indefinite one based solely on the new video evidence? While Section 4 of Article 46 of the NFL Collective Bargaining Agreement (NFL CBA), also known as the “One Penalty Rule”, bars discipline of a player for the same act by both the Commissioner and the team, there is no similar provision in the NFL CBA that addresses whether the Commissioner can alter punishments already handed down. The NFL Constitution and the NFL Personal Conduct Policy are also silent.

Had Commissioner Goodell suspended Rice indefinitely from the outset, Rice would have had far less legal flexibility because the NFL Personal Conduct Policy gives the league wide discretion to punish players for conduct detrimental to the league. Given that Commissioner Goodell did not “get it right” the first time, it seems natural that the concept of double jeopardy should warrant some consideration. While the rule of double jeopardy may not readily apply in this case, particularly because a collective bargaining agreement governs the relationship between the NFLPA and the NFL, Rice may nevertheless be able to mount a compelling argument that Commissioner Goodell overstepped his authority by essentially handing down two punishments for the same act.

According to the timeline of events, TMZ released the first security video in early 2014, Rice apologized a few months later, and then the Commissioner handed down the initial suspension. While “new” video evidence subsequently emerged, the facts of the situation remained largely unchanged. The league claimed it never saw the second video but this implies that had it seen the video, the result would have been different. In reality, the increased penalty was more likely the result of the video being released to the public and Commissioner Goodell acquiescing to public outrage.

Commissioner Goodell had access to the first video which depicted Rice dragging a limp Palmer from the elevator. How did he honestly think Palmer became unconscious? With Rice’s statements that he “made the biggest mistake of [his] life” and his actions “were totally inexcusable” alongside the video evidence, the league knew that violence was involved. Should the manner in which Palmer was rendered unconscious have justified increasing an already imposed penalty? Rice admitted his role, if not explicitly then at least implicitly, and he accepted responsibility; thus, the Commissioner’s increased penalty looks like a second punishment. If Section 4 of Article 46 of the NFL CBA precludes disciplining a player for the same act by both the Commissioner and the team, surely the “One Penalty Rule” can be read as also barring the Commissioner, or the team, from punishing a player twice for the same act.

This is supported by the apparent finality of the initial suspension. Double jeopardy hinges on the idea that an individual cannot be placed in jeopardy twice for the same offence. The assumption is that the initial punishment is final; if not, then double jeopardy does not apply. The NFL would be hard-pressed to assert that Rice’s initial two-game suspension was not the end of the matter, especially since the decision was made following a hearing and not appealed. Seeing as the NFL CBA and the NFL Constitution are silent as to whether the Commissioner can increase or substitute an already imposed punishment, the NFLPA’s next step should be to address this glaring hole.

October 10, 2014

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Suffering Sports Spectators: The Canadian view on liability for injuries to spectators at sporting events

By Danika Heighes – Thompson Rivers University 3L JD Student

Sports, especially contact sports such as hockey, have an inherent risk of injury. When players take to the ice they assume liability for their possible injury within the regular course and scope of the game. The logic behind the assumption of risk doctrine is quite sound: a player provides consent for the activity in question after being fully aware of the risks involved in that activity. But what happens, when the injured party is not a player, but a spectator?

Recently spectator injuries at Chicago Blackhawks games have resulted in two lawsuits. On June 12, 2013 during Game 1 of the Stanley Cup Finals, Patricia Higgins was struck in the face by a puck. Higgins was seated behind the safety net in section 115, in the southwest corner of the stadium, when an errant puck had flown up and under the protective netting to strike her in the face. As a result of the incident, Higgins suffered a bone-deep gash that required 20 stitches, a bruised retina, a concussion, and required reconstructive surgery. In July, she filed a lawsuit against the United Center for $50, 000, plus legal costs, claiming the safety netting wasn’t “functional” to protect her from the puck.

In September 2014, a second spectator lawsuit was filed regarding the Chicago Blackhawks. Gerald Green was seated in the northwest corner of the rink in the second row as the Chicago Blackhawks hosted the Minnesota Wild on May 2, 2014 in a playoff game. Although Green was seated in an area behind protective glass and the spectator netting, he was struck in the side of the head by a puck that flew over the protective glass at a high rate of speed. According to the lawsuit, Green sustained a “severe neurological injury”, has trouble formulating words, can no longer do mathematical equations and can no longer work to support his family of four. Green’s lawsuit against the NHL and the United Center claims negligence, seeks at least $200,000 in damages and expects the team to extend its safety netting further around the rink. In addition, Green claims he was not warned of the serious risk associated with being hit with a hockey puck.

Which brings us back to the question: who is liable for a spectator’s injury at a sporting event? Specifically in Canada, spectators at a sporting event are assumed to have accepted the ordinary, reasonable, and foreseeable risks associated with attendance. Nonetheless, in general, when a spectator is injured an action will be brought against the occupier of the facility where the sporting event was held and potentially against the individual participant, team, or league. The principle behind this is that the occupier has a duty to ensure that the premise is reasonably safe. However, as the great cricket case of Bolton v Stone illustrates, there is a difference between guarding against foreseeable risk and an absolute guarantee of a completely risk-free environment. Thus, when the courts determine whether an occupier has discharged its duty of care, they consider the nature of the sporting event, any inherent risks, whether the spectator can foresee those risks, and the industry standard for safety precautions. The United States, however, has a very different set of rules governing spectator injuries.

The current NHL industry standards regarding spectator safety has been in place since the 2002 death of a 13-year-old girl. Currently every arena has safety netting which is roughly 120 feet wide and 30 feet high. This netting is consistent with European hockey leagues, and minor leagues. In addition, every hockey ticket sold in the NHL has a waiver of liability written on them asserting that the spectator assumes any risks inherent to the sporting event, including “flying pucks”. The lawsuits both allege that the current netting does not protect spectators. However, both Higgins and Green were seated in the lower bowl, where the risk of a flying puck is greater than other sections. In fact, the appeal of the corner sections is that the line of sight is not encumbered by the netting.

Frankly, the current standards guard against reasonably foreseeable risk, even if they do not absolutely guarantee a completely risk-free environment. How can any spectator at a hockey game state that they were not warned of the serious risk associated with being hit with a hockey puck? At some point, a spectator must take liability for their own safety at a hockey game where it is reasonably foreseeable that a puck will leave the ice during the course of a game.

October 7, 2014

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Washington Redskins Trademark Battle

By Michael Cunningham – Thompson Rivers University 2L JD Student

The National Football League’s Washington Redskins find themselves in a familiar legal battle yet again over the offensiveness of their team name. Since 1992, there has been an ongoing protest over whether the name of the team is degrading to the Native American population. This first protest began with an action brought forward by Susan Harjo to the Trademark Trial and Appeal Board (TTAB) under s.2(a) of the Lanham Act. Section 2(a) bars the registration of trademarks that “… may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols …” Finally in 1999, the TTAB ruled that this was the case, and invalidated the trademark registrations held by Pro-Football, Inc., the ownership group of the Washington football club. Pro-Football appealed the decision and had the ruling reversed in 2003. The district court held that the plaintiffs had not shown substantive evidence that the term was disparaging to Native Americans when the trademarks were registered in 1967. As well, the decision was overturned on the defence of laches, which is essentially that the plaintiff had an unreasonable delay in bringing their claim forward and by doing so has prejudiced the defendant. The unreasonable delay resulted from the plaintiffs having known about the name for many years before choosing to bring their claim forward.

The new action against the Washington ownership group, which was put forth by Blackhorse et al. in 2006, was recently decided on by the TTAB. Once again, they found the trademarks to be disparaging towards Native Americans. One notable difference between the current case of Blackhorse and the earlier case of Harjo, is that this time around the plaintiffs are all 18 years of age. Having just reached the age of majority, Pro-Football will not be able to use the same lache defence they were able to previously.

Evidently, it seems that the Washington ownership group will raise constitutional issues with the TTAB’s ruling, in that their First and Fifth Amendment rights have been violated, those being their right to freedom of speech and their protection against unfair treatment in a legal process, respectively. In the meantime, Pro-Football has appealed this decision, which allows them to keep their trademarks intact for the time being.

Looking to the future, even if Pro-Football is unable to have the TTAB decision reversed, they are not legally required to change their name, as neither the US Patent and Trademark Office or the TTAB have the power to enforce such a decision. As pointed out by Darren Heitner, a contributor to Forbes and an intellectual property lawyer, even without federal trademark protection Pro-Football would still have common law protection over their trademarks.

This case also has implications in many other pro sports leagues in North America, as there are a handful of other teams such as the Atlanta Braves, Cleveland Indians, Chicago Blackhawks, Edmonton Eskimos and the Kansas City Chiefs that flirt with this controversy. In most of these cases it would likely be very difficult for a plaintiff to show that any of these teams’ trademarks were disparaging towards Native American people when they were filed.

There are likely two ways in which this situation will sort itself out. As suggested by Steven Shelton, a contributor for “The Legal Intelligencer”, the controversy may likely be resolved through political pressure, as there was a bill introduced to the US House of Representatives in 2013 that would deregister any trademarks that used the term “Redskin.” As well, a congressional representative from D.C. is pushing for a bill that would revoke the NFL’s tax-exempt policy unless Washington’s team name is changed.

The second situation involves pressure applied by corporate sponsors of the NFL. What would likely occur is something similar to what transpired with the NBA’s Los Angeles Clippers owner David Sterling in the aftermath of his racist remarks becoming public. Just as the NBA forced Sterling to sell his team for actions considered to be detrimental to the league, the NFL and its owners could do the same to Pro-Football, and force the name of the club to be changed.

This may be wishful thinking since this controversy has been around for over 20 years and there has yet to be enough pressure from either politicians or sponsors to influence the changing of Washington’s name. Pro-Football has been adamant that they will not change the name, and without substantial pressure from either of these groups, it likely will not occur as the courts do not possess the power to compel a change.

October 7, 2014

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To Grass or Not to Grass: Gender Discrimination at the FIFA Women’s World Cup Canada?

By Fei Kang – Thompson Rivers University 3L JD Student

Canada will host the 2015 FIFA Women’s World Cup. Exciting, eh? The Canadian Soccer Association (CSA) will see this world-class tournament played from June 5th to July 6th in 6 cities across the country next summer. FIFA, the international governing body of football, agreed to a “2-star recommended football turf” as part of Canada’s bid deal; yes, artificial turf. Once this announcement was made, confusion and public outrage began. This is because the men’s equivalent of the event has only ever been played natural grass. My egalitarian Canadian roots tell me there must be a reason for this difference … but there doesn’t seem to be one.

Abby Wambach, a striker and leading goal scorer for the US Women’s Team, has been leading the public protest. She decided to take it public when nothing came of private complaints from the players to both FIFA and CSA. Wambach is not alone in her disdain either. International male players, US congressmen and even celebrities such as Kobe Bryant and Tom Hanks have given their two cents on the matter: “Hey FIFA, the women deserve real grass. Put in sod!”

There seems to be a consensus among soccer players that artificial turf is a second class surface and inferior for international soccer. Most can attest that turf is unforgiving on the players’ bodies, especially where recovery time is precious. Grass holds moisture, turf cannot. As a result, turf tends to get unbearably hot when the air temperature rises, which can lead to less-forgiving injuries, including second degree burns. Indeed, robust biomechanical data suggests that torque and strain may be greater on artificial surfaces than on natural grass. Recent data by Drakos et al. in 2013 suggest that elite athletes may sustain injuries at increased rates on the newer 3G surfaces. Some also say that the ball simply travels differently on turf and affects the game negatively.

FIFA states that while turf has been unsuccessful in the past, recent developments have made football turf a qualified and viable “best alternative” to natural grass. FIFA only certifies 3G systems, which fulfill quality requirements like playing performance, durability and quality assurance. Turf has financial advantages as well, which is where CSA likely stands, due to the resistance to weather, ability to endure intense use and multi-sport purpose. FIFA has stated that the particular geographic and climatic conditions in Canada mean it is more expedient to play on artificial turf, and that it is “the surface of the future.” In short, FIFA a is turf cheerleader.

The protesting athletes say the decision to play the tournament on turf amounts to gender discrimination because the men would never be forced to play the sport’s premier tournament on fake grass. In fact, there are no plans to shift future men’s World Cup tournaments to turf through to 2022. In late July, 40 top players and their lawyers joined in a letter of protest to FIFA and CSA. As of Sept 27th, FIFA has yet to respond and CSA has deferred comment to FIFA. The players are now poised to take legal action in Canada. Under the Canadian Charter of Rights and Freedoms, Section 15(1) states:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on … sex.”

Additionally, under the BC Human Rights Code (and similarly enacted in every Province and Territory), a person (Section 8) or association (Section 14) must not discriminate against any person or member because of sex. The players will likely bring an action under both the Charter and Code.

Overall, it just doesn’t make sense. Even FIFA’s website out-rightly states that its certified turf is a best alternative to natural grass. So use grass? It’s the World Cup and we are not in 1915. Many questions remain: if turf is the future, why is it not incorporated in future men’s tournaments? Will the 40 players’ legal action be successful under anti-gender discrimination laws in Canada? Whatever the court says, and whatever FIFA and CSA may say, the fact is that it looks like turf is being used as experimental surface in a world-class women’s tournament. Women are being singled out. I am proud of the protesting players for their unwillingness to accept less than they deserve. We should not accept gender discrimination in international sporting events. We can do better, Canada.

 

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