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.

 

October 7, 2014

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We’re Back

The road to hell is paved with good intentions. This expression is just as appropriate now as it was when coined by – depending on whom you believe – either Samuel Johnson (1709-1784) or Saint Bernard of Clairvaux (1091-1153).

It seems that despite the best of intentions, our pseudo-journalistic responsibilities have suffered due to our academic duties at our respective universities (just think of the time we would have if we could teach without prepping, evaluate without marking, write without researching, and administrate without pushing paper), our coaching responsibilities (Kris to his gymnastics and trampoline teams and Jon to his kids’ soccer/football and volleyball teams) plus changes in our work lives (Kris as Associate Professor and coordinator of LLM and PhD programmes at Staffordshire Law and Jon as Associate Dean of Law at Thompson Rivers University).

Whilst our intent has been to offer educational or informational commentary in response to contemporary events in sports law, we haven’t posted as much as we would have liked in recent months but hope to remedy the situation by increased vigilance and through posts written by JD or LLB students in our respective programmes.

We’ll begin with a piece about alleged gender discrimination at the FIFA Women’s World Cup Canada 2015.

We’re back.

June 20, 2014

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The FIFA World Cup – #SayNoToRacism, #SayYesToConcussion?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 2, 2013

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Richie Incognito and Bullying in Professional Sports

By Chris Ross – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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

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

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

December 2, 2013

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The Future of Video Review in the NHL

By Chelsea Dubeau – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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