December 19, 2014

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Battle of the Commissioners: Legalization and Regulation of Sports Betting

By Sangin Safi – Thompson Rivers University 3L JD Student

In an op-ed published in the New York Times on November 13, 2014, NBA Commissioner, Adam Silver, argues for the legalization and regulation of sports betting. According to him, “despite legal restrictions, sports betting is widespread.” He points out that since there are only a few legal options available, those who wish to bet resort to illicit bookmaking operations and shady offshore websites. According to an estimate that he provides the underground industry is worth nearly $400 billion annually.

Mr. Silver argues that times have changed since the passage of the Professional and Amateur Sports Protection Act (PASPA), which generally prohibits states from authorizing sports betting. According to him, gambling has increasingly become a popular and accepted form of entertainment in the United States. He points to trends within the United States (i.e. New Jersey’s referendum demonstrating overwhelming support for legal sports betting) as well as international trends where sports betting is widely legal and subject to regulation. In light of these trends, Mr. Silver argues that Congress should adopt a federal framework for legalizing and regulating sports betting, subject to strict regulatory requirements and technological safeguards.

NHL Commissioner Gary Bettman disagrees. (As a hockey fan from Canada, I am not too surprised by Mr. Bettman’s cynical position!)

According to Mr. Bettman, “… some attention needs to be paid to what sport is going to represent to young people.” He further states, “[s]hould [sport] be viewed in the competitive, team-oriented sense that it is now? Or, does it become a vehicle for betting, which may in effect change the atmosphere in the stadiums and the arenas?” Mr. Bettman seems to be concerned that by legalizing sports betting, fans would be rooting for the spread instead of rooting for their favorite team.

However, Mr. Bettman seems to miss Mr. Silver’s point. By legalizing sports betting, Congress is not introducing sports betting. Sports betting already exists. By legalizing and strictly regulating it, the government would be bringing sports betting out of the underground and into the sunlight where it can be appropriately monitored and regulated, as Mr. Silver argues.

Furthermore, Mr. Bettman’s concern regarding how sports betting would affect young people as well as the atmosphere at sporting events seems to stem out of his moral judgment on the merits of gambling. However gambling is a form of entertainment just like sport is. As Mr. Silver points out, gambling has increasingly become a popular and accepted form of entertainment in the United States. Gambling and sport have co-existed without having a particular affect on young people or the atmosphere at sporting events. Therefore, it could hardly be argued that by legalizing and regulating what already exists, there would be a negative affect on young people and the atmosphere at sporting events.

Moreover, Mr. Bettman seems to suggest that rooting for the spread and rooting for your favorite team are mutually exclusive things. However, most sports fan are able to differentiate between the two and can partake in both activities without affecting their enthusiasm and loyalty to their favorite team. Indeed, it could be argued that sports betting might actually increase the level of interest ordinary citizens might have in sports and in attending sporting events.

In conclusion, while Mr. Silver’s offers a pragmatic opinion on the future of sports betting, Mr. Bettman seems to think that by legalizing and regulating an estimated $400 billion a year underground industry, society would be sending the wrong message to young people. In this battle, Mr. Silver is clearly leading 1-0.

 

December 19, 2014

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NHL Expansion in Toronto – is sharing caring?

by Michael Truong – Thompson Rivers University 3L JD Student

As long as Canada remains the hockey mecca of the world, rumour and speculation over National Hockey League (“League”) expansion in Toronto will not subside. With the Toronto Maple Leafs being the most valuable franchise valued at over $1 billion, a second team in the Greater Toronto Area (GTA) seems inevitable. While many Canadians, and in particular those living in Hamilton, support League expansion in the GTA, the Toronto Maple Leafs have refused to endorse any such idea.

A second team in the GTA would be a contentious expansion destination, not because the market could not handle a second team, but because the Toronto Maple Leafs would undoubtedly fight to prevent any potential market dilution. A second team means splitting the corporate support and the fan base, which may reduce the value of the existing franchise. Thus, it seems only natural that the Toronto Maple Leafs would vigorously defend their territorial rights before ever conceding their hockey monopoly.

The Toronto Maple Leafs have defended their territorial rights once before. In 2009, Jim Balsillie, the former CEO of Research in Motion, attempted to purchase the former Phoenix Coyotes and move them to Hamilton. The Toronto Maple Leafs took the position that the relocation of a team into their home territory was not subject to a majority vote and that they held de facto veto over whether a new team could move into the region. Though a legal battle never materialized, the NHL Constitution seems to support the Maple Leaf’s case.

Under section 12.2 of the NHL Constitution, each member “accepts and agrees to abide by the … Constitution and each and every alteration, amendment and repeal.” Therefore, the Toronto Maple Leafs are bound by section 3.3, which provides that before any new teams are admitted to the League, the only requirement is a favourable vote of three-fourths of the Board of Governors.

More importantly, however, is the issue of territorial exclusivity. Section 4.3 of Article IV of the NHL Constitution states that each NHL team has exclusive control within its “home territory,” which means “exclusive territorial rights in the city in which it is located and within fifty miles of that city’s corporate limits.” The provision further states that “No franchise shall be granted a home territory within the home territory of a member, without the written consent of such member.” Section 4.3 appears to be the legal weapon with which the Toronto Maple Leafs could mount a defence against the League’s expansion into the GTA. So long as any expansion plans fall within the Leaf’s “home territory,” the League faces an uphill battle.

By virtue of Section 4.3, all NHL member teams seemingly hold a veto over the League if the expansion plan is in the respective team’s backyard. It seems odd that the League would leave a loophole open for teams to potentially handcuff them. Nevertheless, there are a few ways for the League to defend itself against a veto argument.

First, the “city’s corporate limits” in Section 4.3 is ambiguous enough that the NHL can argue for the most restrictive interpretation of territorial exclusivity so as to place them outside the scope of the Toronto Maple Leaf’s territorial rights as set out under Article IV. If successful, this would open up Southern Ontario as a potential destination.

The NHL may even argue that any potential expansion opportunity belongs solely to the League itself, an argument which has been successful in US courts (See, e.g., L.A. Mem’l Coliseum Comm’n v. NFL, 791 F.2d 1356 (9th Cir. 1986); NBA v. SDC Basketball Club, Inc., 815 F.2d 562 (9th Cir. 1987); St. Louis Convention & Visitors Comm’n v. NFL, 154 F.3d 851 (8th Cir. 1998).

If and when the Toronto Maple Leafs are faced with an expansion team in the GTA, any reservations regarding potential depreciation in the value of the franchise may be offset by the projected expansion fee of $1-1.5 billion. If Anaheim serves as an example, the Maple Leafs would stand to receive a sizable share of that expansion fee likely amounting to an influx of $500-750 million, a sum that would cause any owner to think twice.

November 23, 2014

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Overly ambitious parents in youth sports

By Robert Mazzarolo – Thompson Rivers University 2L JD Student

In early November, Chief Justice Chris Hinkson, of the British Columbia Supreme Court, issued a restraining order against a mother of three. While restraining orders are not uncommon, this one was. The mother was ordered to stop contacting coaches and officials of the National Hockey League, Western Hockey League, and Kootenay Ice Hockey League, in which her two older sons were involved. The mother was sending hundreds of e-mails to her sons’ coaches and officials, outlining her disapproval with their handling of the boys in their hockey activities. Undoubtedly, this mother believed her sons were the next Sidney Crosby and Jonathan Toews of hockey, but no one else could see it.

Those of us who have experienced coaching, managing, or just being involved in youth athletics, can recall horror stories of parents who believed their child was the next Great One, if only their coach would realize it. I understand parents wanting their child to be treated equally by their coach. I even understand overly competitive parents pushing their children to achieve more. However what I do not understand is a parent believing as fact that their kid is going to be a star in professional sport. The odds are stacked against them.

Here’s why.

The two most popular team sports in Canada for youth athletes are hockey and soccer. Both sports have professional leagues in North America and in other countries around the world. Both have a well-defined pathway and structure, designed to assist young athletes who wish, presumably along with their parent’s wishes, to make it professionally in that sport. In the following analysis I will be making assumptions in order to simplify matters. However, all assumptions will benefit the young Canadian becoming a professional athlete in that sport. This analysis will only focus on young male athletes, as this data is more accessible and their opportunities in these sports are more lucrative.

First, let’s analyze hockey. According to Statistics Canada, in 2012 roughly 537,000 males, aged 17 and younger, were registered in minor hockey across Canada. The NHL consists of 30 franchises across North America. Assuming each franchise has a roster of 23 players and all roster spots are available for Canadians only (notwithstanding that the actual number of Canadians in the NHL is just over half of the total), there are a total of 690 roster spots available in the NHL. Taking the total roster spots available in the NHL (690), dividing it by the total number of registered male youth minor hockey players in Canada for 2012 (537,000), and then multiplying that number by 100 to get a percentage, your result is 0.128%. For each parent who believes their son is going to the NHL, the odds of that happening are 0.128%. Barely over one tenth of one percent!

Second, we’ll look at soccer. According to the Canadian Soccer Association, there are approximately 850,000 registered soccer players in Canada. 58% of players are male. The professional league in North America is Major League Soccer (MLS), which as of 2014 had 19 franchises. Let us assume that each franchise has 30 roster spots available and once again, they are reserved for Canadians only. Therefore, there are a total of 570 roster spots available in MLS. Using the same formula as we used for hockey (570 divided by 425,000 times 100), the result is 0.134%. As with hockey, each registered male soccer player in Canada has less than a 1% chance of playing professionally in MLS, let alone playing professionally in Europe or South America.

Truly, these numbers are astoundingly low and represent long odds for any young athlete hoping to be a professional athlete in either hockey or soccer. This even includes the key assumption of all roster spots are available only to Canadians which is clearly not the case here. If this assumption were removed, the odds fall dramatically. It is a wonder why any parent believes their son will become a professional athlete, especially in hockey or soccer. My message to all parents who have kids involved in sports is this: Relax, take a step back, and enjoy the excitement of your son and/or daughter competing, having fun, and learning invaluable life lessons while they participate in sports. They almost certainly will not become a professional athlete. Very little you do will change the odds of that happening and we certainly do not need any more restraining orders in sports.

November 23, 2014

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The saga of Adrian Peterson

By Jeanine Ball – Thompson Rivers University 2L JD Student

NFL star running back Adrian Peterson, who has been touted as one of the best players in the NFL will face a hearing on the fate of his future with the League this coming Monday.

In early September, allegations broke that Peterson abused his four year old son. His son was injured when hit by a wooden switch or stick, including bruising and cuts on his body. Peterson was indicted for reckless or negligent injury to a child. Last week he bargained for a plea deal to a lesser charge of misdemeanor assault. The terms of the plea included 80 hours of community service work, two years of “deferred adjudication” (which is similar to probation), a fine of $4,000, and a requirement to attend parenting classes.

Throughout the ordeal Peterson has been suspended from his team, the Minnesota Vikings, while still receiving his annual salary of $11.25 million.

Issues of race, domestic violence, and the intense scrutiny on professional athletes have brought this story to a fevered pitch on social media.

Peterson has had a chaotic year. His two year old son was murdered in October of 2013. Peterson returned to play just days later. Since the indictment for abuse of his four year old son in September, his arrest was considered after he admitted to “smoking a little weed.”

Now he has pled guilty. What does this mean for his future in the NFL?

The NFL guidelines for domestic violence were amended in August following the Ray Rice scandal. A six game suspension is now the punishment for a first offence (it was previously just two games). The player’s union on Peterson’s behalf is arguing for immediate reinstatement. Neither option seems a just solution under the circumstances.

Peterson offered some justification for his actions towards his son as Peterson used disciplinary techniques used on him as a child growing up in Texas. His mother has defended his actions and has emphasized they were acts that were motivated by love. She has been quoted as saying, “When you whip those you love, it’s not about abuse, it’s about love. You want to make them understand that they did wrong.” Regardless of his personal history, causing harm to a child contravened both United States federal and international Law. A $4,000 fine to an individual making a salary of $11.25 million and some hours of community service and probation time is not a significant penalty considering the circumstances of the offender.

Likewise, a six game suspension may serve a purpose in terms of deterrence, but the time involved is insufficient to allow substantive recovery or reconciliation for Peterson with his family. A leave of absence from his team and the NFL would give him time to receive counselling and increase the chance for him to restore a healthy relationship with his son and focus on parenting out of the media glare. Continuing to play in the NFL is not a context that will allow Peterson to rehabilitate from these personal issues.

In order to move towards positive outcomes, the discussion should shift to a focus on healing at a number of levels. Seemingly forgotten in the hysteria around Peterson’s punishment is that a four year old boy was physically and emotionally abused and that concern for his rehabilitation – not those of his famous father back into the NFL – should come first.

November 23, 2014

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Concussion Lawsuits: Is settling fair for the players?

By Ryan Monty – Thompson Rivers University 3L JD Student

A recent concussion lawsuit filed against the Barrie Colts of the Canadian Hockey League reminds us that no contact sports league in North America, professional or otherwise, are immune to these legal proceedings. John Chartrand, a former player for the Colts, claims the medical staff of the team was negligent in clearing him to play even though he suffered a concussion in a car accident only days earlier. Although Chartrand’s original injuries occurred off the ice, it is still relevant in questioning the medical procedures and the culpability of the team and league when assessing the risks of allowing an athlete to return to play after suffering a head injury.

What amount of liability should the leagues governing these sports accept? One argument is that the players accept the inherent risks when playing contact sports like hockey. Any injuries or long-term side effects are their responsibility to deal with because it was their choice to participate. However, others argue the leagues were aware of the risks, and had more information regarding the long-term repercussions of head injuries than what was available to the players, making the teams culpable for allowing players who had recently sustained a concussion to return to play too soon. They also claim the leagues had the money to prevent players from suffering these on-field injuries but ultimately failed to do so. The National Football League settled a lawsuit with 1,400 former players for nearly $1 billion but as the case was not decided by a court, there isn’t an answer to what the duty of care is owed, if any, by the leagues and teams to their players, if they breached their standard of care, and what amount of compensation would be fair.

Some of the NFL players in the deal mentioned above are opting out because they believe the amount is insufficient. The process is also being stalled by players who are launching legal action against the deal itself in the hopes of preventing it from going through. As reported by USA TODAY, this has pitted the lawyer for the players, Craig Mitlick, against former players like Sean Morey. Mitlick believes that Morey, and players like him, are being greedy and hurting the other plaintiffs by delaying money that would fund their much needed medical treatments, while Morey feels the deal is not enough and is benefitting third parties, like the lawyers involved, too much. It is impossible for us to know who is right without the proceedings of a trial, but with the sheer amount of players seeking compensation, and the still relatively unknown extent of the long-term damages of concussions, the potential that former players accepting a deal from the leagues which is less than fair is increasingly more probable.

There is also the question of why no star players have been involved in any of these suits. Surely the settlement amount would be significantly higher with more high profile players attached. The highest profile athlete to date would have been Dan Marino, the former superstar quarterback of the Miami Dolphins. He was attached to a lawsuit against the NFL, along with 14 other players, but ultimately decided, days after the suit was made public, to remove his name from the list of plaintiffs, claiming it was a big misunderstanding.

Is it possible that higher paid athletes aren’t exposed to the same level of risk as other players? Unlikely. It’s more plausible that they do not want to alienate the game that made them rich, along with the fact that many former elite players, Marino included, end up working for the league or teams after retiring which makes the preservation of a positive relationship essential. This is where I believe the fallacy lies – the players, who are suffering from quantifiable damage, are either left with taking less than they should, or forced to suffer through the pain, holding out for a better deal because the players are not a unified group. There is no solidarity between the lower tier athletes and the elites, and until there is, or until one of these suits finally goes to trial, the players might not get the compensation they deserve.

November 23, 2014

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No Rhyme or Reason to Gender Discrimination in Sport

By Danika Heighes – Thompson Rivers University 3L JD Student

Gender discrimination is rampant in sports. Men’s sports are better funded, have more lucrative prizes, greater broadcasting and a greater fan base than women’s sports. This is undeniable and indisputable at both the amateur and professional level both nationally and internationally. However, the international sports community generally does not engage in techniques to combat this gender discrimination. Instead, it is often justified by various sports organizations as a natural by-product of the “higher” intensity of men’s sports.

At 7 pm on November 8th, 2014, Canada and the USA commenced the gold medal game in the 4 Nations Cup, a prestigious women’s hockey tournament which was held in Kamloops, BC, Canada. Also, at 7 pm on November 8th, 2014, the Vancouver Canucks played the Los Angeles Kings in a regular season game in the NHL. Although the Canadian women’s team won the gold medal game in this international tournament, the following day, I heard more about the Canucks 5-1 loss to the Kings. In addition, I would be willing to place a wager that the NHL game was more heavily broadcast as well. For some reason, even in the town that hosted this women’s hockey event, it was less important than a regular season men’s hockey game featuring the nearest team. For whatever reason, the women’s sport fades into the background, and is outshone by its male counterpart. This is the least of the discrimination faced by women in sports.

Currently in Canada, several women’s soccer players have launched a court case against FIFA and the Canadian Soccer Association (CSA) stating that their Section 15(1) right to equality under the Canadian Charter of Rights and Freedoms, has been breached. FIFA and CSA have agreed that the 2015 FIFA Women’s World Cup will be played on artificial turf rather than grass, while the men’s tournaments have only ever been played on grass. According to the women’s soccer players they are being discriminated against, which prima facie, looks to be an accurate allegation, since the international governing body for football/soccer would never have allowed the men’s premier tournament to be played on a new substance on an experimental basis. Nevertheless, FIFA and CSA deny that this decision is meant to discriminate against the women’s tournament.

These are simply two examples of women’s sports facing discrimination in different ways. There are numerous other examples of gender discrimination in the arena of sports that are even more blatant or subtle, yet the international sports community remains unconcerned. Contrast this complacent treatment of gender discrimination in sport to the outrage of the international sports community at the discrimination of a female spectator at a men’s volleyball game in Iran.

On November 2nd, 2014, an Iranian court sentenced a British-Iranian woman, Ghoncheh Ghavami, to a year in prison in Iran, for spreading propaganda against the system. Ghavami, along with several other people attended a peaceful protest calling for equality outside a volleyball stadium and were allegedly beaten and arrested by police. Specifically, the protest demanded that women be allowed to watch a men’s volleyball match between Iran and Italy in June. In essence she will spend a year in prison for being a woman who wished to watch a men’s volleyball game in an oppressive and patriarchal country.

The international sports community is indignant at this excessive gender discrimination, and rightly so. In fact, volleyball’s governing body (FIVB) has called for Ghavami’s release and has written a letter to the President of Iran. Clearly, the sports community is quick to condemn a patriarchal middle-eastern country for its arbitrary cultural custom of disallowing women from watching men’s sporting events, especially in light of the particularly egregious prison sentence this woman is facing. However, they previously did not take issue with this Iranian custom until this incident.

Quite frankly, it seems that the common practice of the international sports community is to turn a blind eye to gender discrimination until it actively pokes them in the eye. Perhaps this incident will incite the international community to look more closely at gender discrimination within their own sporting organizations. Or perhaps, there will be more and more litigation brought forward by individual players in women’s sports alleging gender discrimination on the basis that it violates Article 2 of the Universal Declaration Human Rights, or similar national legislation.

November 17, 2014

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Is Criminal Law Really the Solution to Doping?

By Stephanie Leong – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

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

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

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

November 17, 2014

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NCAA football player sues university for failure to educate

By Mitchell Smith – Thompson Rivers University 3L JD Student

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

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

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

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

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

• Division I

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

• Division II

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

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

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

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

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

November 17, 2014

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

By Kimberly Jensen – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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

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

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

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

November 9, 2014

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Chris Pronger Joins NHL Department of Player Safety

By Kyle Nagy – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

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