Archive | June, 2011

Police investigate lacrosse head stomping incident

June 30, 2011

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I live in the same city in which the court two years ago acquitted of assault a high-school player whose punch broke an opponent rugby player’s nose and cheekbone and has just had another violent incident in which during a lacrosse game it is alleged a 15 year old boy was head stomped by an opponent (click here for the article in The Vancouver Sun).

But first, in R v. TNB (BCPC 0117), Honourable Judge S.D. Frame ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game. Cognizant of the playing culture of the game, Frame J. stated that the ‘amalgam of rules includes the legitimate strategy of intimidation of the opposite team by head-butting, eye gouging, elbowing, raking and punching’ and noted that ‘none of these infractions is permitted by the written rules but it is accepted by the unwritten code of conduct at this level of play in the game of rugby.’ The defendant was exonerated on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.

Now the Royal Canadian Mounted Police (RCMP) are investigating the incident in which Blake Rose was felled by two cross-checks (which if properly administered are permissible) but then had his head stomped on in the waning minutes of a lacrosse game between the Kamloops Rattlers and Kelowna Kodiaks. The league has suspended the offending player. RCMP spokesman Staff Sgt. Grant Learned correctly noted that the investigation will hinge on whether ‘the nature of that contact [the cross-check and stomp] was so outside the boundaries of acceptable contact that the nature of misconduct was egregious and bordering into that realm of criminality?”

With respect to J. Frame’s judgment in R v. TNB, if the head stomping allegations are proven true, it is hoped that the court will not take such an accommodating view of the role of violence in sport and the extent to which participants consent to injurious force which are prohibited by the rules but are incredulously permitted within the culture of the game.

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Search and Rescue Volunteer Dies in BC

June 30, 2011

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A search and rescue volunteer with Nelson Search and Rescue drowned in the Goat River near Creston, British Columbia yesterday while helping undertake a search of a submerged vehicle. The young woman fell overboard from a watercraft and did not surface. Efforts to locate and rescue her were unsuccessful (click here for the article in The Vancouver Sun).

Search and rescue is inherently dangerous. Approximately 6 volunteer (unpaid professional) search and rescuers have tragically died in training or missions in BC in the last 20 years; this averages to 0.3 fatalities per year.

No data is readily available for comparable statistics to BC firefighters but according to the US Fire Administration and the US Federal Emergency Management Agency, 1091 American firefighters died while on-duty between 2000-2009. This averages to 109 deaths per year.

They are true heroes that deserve our gratitude. Their professionalism, technical expertise and tolerance for risk are unparalleled. Our thoughts and prayers go to her family and friends and to the Nelson Search and Rescue Group.

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6 climbers fall to their deaths in the French Alps

June 30, 2011

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Six climbers fell 200 m to their deaths in the French Alps. Their bodies were found at an altitude of 2,700 m on Neige Cordier Peak, 5 km from Villar-d’Arène in the Hautes-Alpes region south-east of Grenoble. The six French mountaineers were in two rope teams and had not gone far before they fell. While not a particularly difficult climb, the accident appears to have occurred at the most technical part of the ascent. Climbing conditions were ideal. It looks like there was no avalanche. The investigation is continuing. Click here for the article in The Guardian.

Without presupposing the outcome of the investigation, it is noteworthy that in response to an alarming number of falls on Denali / Mt. McKinley in Alaska in the 1990’s, the US National Park Service looked at the underlying causes of the falls. Daryl Miller, who was my leader on the Denali Rescue Team in 1997, led the study which showed that climbing teams roped together on steep terrain often have a false perception of security and that a high percentage of falls involve teams descending, roped together and with no fixed protection.

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Hard questions about the NHL’s regulation of hockey violence

June 21, 2011

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I’ve just surfaced following the Vancouver Canucks’ collapse at last Wednesday’s Game 7 of the Stanley Cup Finals. Notwithstanding the Canucks’ loss and the Boston Bruins win, the Finals offered some interesting insight into the National Hockey League’s management and regulation of the game.

  • Spleens have been vented over how the on-ice officials swallowed their whistles, especially during the Finals, and how it played to the Boston Bruins’ advantage enabling them to browbeat the Canucks into submission and take them off their finesse game. It is generally agreed that the referees employed a different standard of officiating in the post-season than in the regular season. On the one hand, it’s dismissed as ‘that’s playoff hockey’ but it raises a fundamental question: How should a party to a contract respond when its terms and conditions are interpreted differently at the time when it matters most?
  • Even further, Bruce Dowbiggen of The Globe and Mail characterized Bruins’ Brad Marchand ‘using the head of Hart Trophy finalist Daniel Sedin as a speed bag – to the approval of hockey’s blood culture’ and rhetorically asked, ‘Imagine an NBA rookie speed-bagging [playoff MVP] Dirk Nowitzki’s head going into a timeout or a first-year NFL player hitting [all-star] Tom Brady in the head repeatedly after the play. What do you think the response would be from those leagues?’
  • Bruce Dowbiggen wasn’t done yet though. He also provocatively asked the following: ‘One final thought on rookie Marchand: How come when he abuses a superstar he’s applauded by Hockey Night in Canada and the media as a savvy kid who gets under the skin to win. But when Montreal Canadiens rookie P.K. Subban did the same, we were told by the same voices that he was a punk with no respect who needed to be taken down a notch? Is it because Marchand is a Bruin, a sacred squad on Hockey Night, because Sedin is a European or because Marchand is white while Subban is black, or all of the above. Take all the time you need to answer.’ Ouch.
  • The NHL is to be commended for its four game suspension of Aaron Rome for his open ice hit on Nathan Horton in Game 3 of the Stanley Cup Finals. Horton sustained a serious concussion and did not play the remainder of the series. The ends, however, do not justify the means. Rome was penalized not for a hit to the head in breach of Rule 48 but for interference. Mike Murphy, NHL Senior Vice President of Hockey Operations, applied a phantasmical formula to the hit in assessing the suspension. The existence of the formula is just as abstruse as the existence as the ‘hitting zone’ behind the net which enabled Vancouver Canuck Raffi Torres to flatten Chicago Blackhawk Brent Seabrook earlier in the playoffs or Boston Bruin’s Zdeno Chara’s vicious hit on Montreal Canadien Max Pacioretty which left Pacioretty with a severe concussion and an undisplaced fractured the fourth cervical vertebra which somehow escaped supplemental discipline from the league. The league appears to acknowledge the obtuseness of its approach to head shots. A blue-ribbon committee of former all-stars Brendan Shannahan, Rob Blake, Steve Yzerman, and Joe Nieuwendyk (the first two are now with the NHL hockey operations staff whilst the latter two are general managers with the Tampa Bay Lightning and the Dallas Stars respectively) has recently recommended to the league’s competition committee that Rule 48 be broadened and clarified. The solomonic challenge is to keep violence in the game but rid it of egregious violence. That’s easier said than done. As Ottawa GM Bryan Murray says, ‘We want hitting in the game, and there will be contact to the head, whether we like it or not, and it won’t be illegal all the time.’ Toronto Maple Leaf GM Brian Burke succinctly captures the flavour of inherent risk in hockey: ‘The tightrope we walk is [hockey] is a full contact sport …. We want to eliminate the really dangerous parts of the play but this is game where you’re going to get hit and there’s going to be injuries, and we’ve got to start with that basic understanding.’ Unspoken is the fact that the International Ice Hockey Federation, the Ontario Hockey League, the Quebec Major Junior Hockey League, and the NCAA (National Collegiate Athletic Association) prohibit any hit to the head and the quality and integrity of the game has not suffered as a result. If this is the case then how can traditionalists like Murray and Burke claim hits to the head are integral to hockey?
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Ignorance is bliss (at least in the case of doping sanctions!)

June 19, 2011

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In two recent English doping tribunals, The Football Association v. Kolo Touré [26 May 1011] and UK Anti-Doping v. Mark Edwards, the knowledge, experience and professionalism were considered relevant factors in the determination of the appropriate disciplinary sanctions.

The Football Association v. Kolo Touré [26 May 1011]

Disciplinary proceedings were brought against Manchester City and Ivorian footballer, Kolo Touré (‘KT’) after his urine sample tested positive for bendroflumethiazide (a Thiazide diuretic listed under Category S5: Diuretics and Other Masking Agents), contrary to Rule E25 (Doping Control) of the Football Association’s Rules of Association.

The facts themselves were not in dispute:

  • Touré admitted that the sample taken after the Man Utd v. Man City match on 12th February 2011 contained bendroflumethiazide.
  • There was no complaint made about the testing or sample collection procedure, and KT declined to have the B sample tested
  • Similarly no challenge was made as to how the Specified Substance (bendroflumethiazide) entered KT’s body. The panel accepted that this was due to “water tablets” which he had started taking the month before due to a misplaced perception that he was fat (the tablets removed excess water from the body by increasing how much and how often you passed water).
  • While KT disclosed on the sample collection form that he had taken “HERBALLIFE [sic] NUTRITION” supplements in the last 7 days prior to the test, he did not disclose his use of the water tablets. The Commission did however accept that this omission was not sinister and that he had not intended to enhance sporting performance or mask the use of a performance enhancing substance [43].

Given that the player admitted and regretted the presence of the positive sample and that it was his first doping offence, the case therefore boiled down to the degree of KT’s culpability.

While the minimum penalty for a first offence under the Football Association Doping Control Programme Regulations 2010-2011 (‘FADR’) is for two years (FADR 44, Part 6), under Regulation 64.9, the Commission “may replace” the minimum penalties to a warning and reprimand without any period of suspension, if the player can establish to the “comfortable satisfaction” of the Panel that there was corroborating evidence to support the applicable conditions set out in FADR 66-73. In this instance, Touré relied upon FADR 67 (no intention to enhance sporting performance / mask the use of a performance enhancing substance).

KT provided unchallenged evidence that his wife (MT) asked her friend [MD] to check with the unidentified clinic, where the tablets had been purchased, as to whether the tablets were “fine for a footballer” [29]. Apparently the receptionist referred this enquiry to a doctor and relayed the advice back to MD, who then passed this onto MT. KT also argued that prior to travelling to an away game, he had put the water tablets into a drug dosette marked “herbalife” which also contained his “Herbalife” products and asked the club doctor to verify that everything in the bag was ok. This evidence was however contradicted by the club doctor who stated that he had never been shown the water tablets [33] and if he had, would unequivocally said that they were prohibited and not to be used [51b].

Although the Commission accepted the argument that the nature of the specified substance should be taken into account when assessing any period of suspension / ineligibility [50], it found that KT was at fault because the checks he made were limited, perfunctory and wholly inadequate [54], indeed:

  • KT did not check directly with the clinic, relying simply on ‘multiple hearsay’ from MT and MD. (Interestingly, the Commission stated that they would have found him at fault even if he had checked with the clinic himself, as he should have made proper enquiries with the club of his own doctor [51a.iv])
  • His approach to the Club Doctor was inadequate. Indeed, KT’s failure to tell the Doctor he was taking the tablets, ask specifically about the tablets or show the bottle the tablets came from fell markedly below the standard that the Commission would have expected from a professional footballer [51b.v]
  • He did not carry out his own research into the legality of the tablets

KT was suspended for 6 months from the date of the FA’s provision suspension (2 March 2011) and ordered to pay the costs of the hearing.

UK Anti-Doping v. Mark Edwards (NADP 7 June 2011)

The defendant, Mark Edwards (ME) was an experienced Olympic shot-putter who had competed for more than 20years of national and international competitions. On 19th August 2010, ME was selected for the English team for the Delhi 2010 Commonwealth Games that October. In accordance with the standard pre-Commonwealth Games testing programme, ME was selected for a “no notice” out-of-competition drugs test to be carried out at his home on the 15th September 2010. The urine sample collected that day was tested and found to contain two prohibited anabolic agents, namely, exogenous Testosterone and a metabolite (4-chloro-3a-hydroxy-17-oxo-androst-4-ene) of Clostebol, both of which are listed on WADA’s List of Prohibited Substances. As such ME was charged with two counts of Doping Offences under UK Athletics (UKA) rule 32.2(a) (Presence of a Prohibited Substance or its Metabolities or Markers in an Athlete’s Sample) and later 32.2.b (Use by an athlete of a Prohibited Substance).

As ME did not dispute the laboratory findings or request testing of his B sample, the strict liability element of the charges, particularly in relation to Clostebol was made out, the only explanation was how they entered his body.

Rather than admitting the charges, ME attacked all elements of the process. His first argument was to contend that because he had telephoned UK Athletics the day before the test on the 14th September to inform them that he was withdrawing from the England team for ‘medical reasons’, in addition to sending two emails on the 16th and 17th September confirming that he was retiring from all competitions, UKAD had no jurisdiction to test him [3.4.1].

This was however dismissed by the Panel as the athlete had contractually consented to abide by all UKA competition rules when he had joined an affiliated club (Newham & Essex Beagles Athletics Club) earlier that year [3.4.11]. While he had indeed withdrawn from competition, there is no evidence that ME had resigned in writing (as required by UKA rule 3.7) from the Athletics club and therefore he still remained under UKA jurisdiction on the date of the sample collection [3.4.23].

The Panel also noted that there was a distinction between retirement and withdrawal from a registered testing pool, and the evidence was put before the tribunal that the defendant was aware due to a previous retirement through injury in 2002, that even though he had retired from competition, he could still be liable to no-notice drug testing during the following 12 months [3.4.17]. The final blow for ME is that he submitted to testing on 15th September even though he had told the Doping Control Officer (DCO) that he had retired [3.4.18] and the Sample Collection form filled out during the test noted no irregularities, complaints or problems.

The lack of complaint on the contemporaneous form also helped undermine the defendant’s allegations that the sample collection process was incorrectly carried out. Indeed, the panel found that ME was not a credible witness [3.4.28], that there was no evidence to suggest that the DCO had departed from the International Testing Standard [3.4.29] and that the sample was received intact by the laboratory [3.4.30]. As such ME did not meet his burden of proof for having the charges dismissed [3.4.34].

With no explanation for the presence of the prohibited substances, the panel had no option but to find against ME. What was interesting however was what came next. Although the standard period of ineligibility is 2 years, the Panel held that IAAF Rule 40.6 allows them the discretion to increase that sanction to 4 years if there was evidence of aggravating factors such as a failure to admit the anti-doping violation promptly or the presence of multiple substances (both of which existed in this case). As such the Panel imposed a 3 year period of ineligibility on ME from 3 November 2010 [3.5.57].

 

FURTHER QUESTIONS

What is particularly noteworthy about both of these cases is the suggestion that both transgressions were made by senior athletic role-models. In Kolo Touré’s case, the Panel held that he should have known better because he was an experienced professional footballer:

“[KT] has received anti-doping education. He has been tested many times before. He has appeared in an anti-doping film. He is a seasoned and experienced international player. “ [23]

“Further, a player in the position of KT might be expected to carry out his own researches of anti-doping information and literature; a wealth of it is easily and freely available. For example, the World Anti-Doping Code 2011 Prohibited List is widely available. According to the undisputed evidence of Jenni Kennedy, at the start of this season the FA provided the PFA with sufficient anti-doping information packets for each Premier League and Football League player. The packets contain inter alia an anti-doping advice card which includes on the first page examples of prohibited substances printed in red ink; diuretics and other masking agents are listed there. “ [51c]

In Mark Edward’s case, the panel stated that:

“…The Athlete is a senior athlete and a role model in the throwing community. He runs a sports therapy business and has a history of working with disabled athletes. In 2008, he attended the Paralympic Games as a full time employed UK Athletics Performance Coach. In these circumstances we consider that an increase in the period of ineligibility is appropriate.” [NADP: UKAD v. Edwards, 3.5.5]

Taken together, do these two cases mean that professional athletes have a higher responsibility to comply with anti-doping rules? In echoes of Lord Donaldson’s infamous quote in the negligence case of Condon v. Basi [1985] 1 WLR 866, 868 that: “there will of course be a higher degree of care required of a player in a First Division football match than of a player in a local league football match.”

Is it the case that more is expected from professional athletes because of their seniority or their status as role models within the community, or is simply that they should have known better? If so, it may be one occasion where ignorance is indeed bliss. Ironically, penalising seniority and experience would seem to undermine the incentives for athletes to engage with the current education policy currently undertaken by governing bodies and anti-doping regulators…..

Kolo Toure decision for distribution

ME_Decision_263

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CISL Launch Event

June 19, 2011

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I am pleased to report that the Official CISL Launch Event was a success and we would like to thank all the speakers, helpers behind the scenes, and all the guests who braved the Staffordshire weather to contribute and make our first event at the Britannia Stadium memorable for all the right reasons.

In particular, I would like to express our thanks to Professor Ian Blackshaw who led the audience in a lively debate challenging the ‘special’ nature of sport in International law. The debate ranged from media rights to FIFA governance to European Union Regulation to the legality of the Court of Arbitration, and all stops in between, and challenged many of the assumptions on how sport should be governed. The full text of his supporting paper can be downloaded here (CISL – INAUGURAL DEBATE ON HOW SPECIAL IS SPORT UNDER EU LAW).

As I am conscious that this blog and CISL have many international readers, we will also be making all the videos and photographs taken at this event available as soon as possible, watch this space for more details….

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Centre for International Sports Law (CISL) Launch Event

June 7, 2011

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I am pleased to invite you to the official launch of the Centre for International Sports Law (CISL) – a unique collaboration between Staffordshire University and Thompson Rivers University (Canada).

  • Time: 5pm – 8pm
  • Date: Thursday 16 June 2011
  • Venue: The 1863 Lounge, Britannia Stadium, Stoke-on-Trent, UK
  • Admission: Free

Exchange ideas with fellow professionals

The Centre will provide a worldwide forum in which to exchange ideas with leading sports researchers, legal practitioners, athletes, sporting bodies and academics. Help shape the global sports law agenda If you are involved with sport or the law at any level, I urge you to attend this important launch, where there will be the opportunity to hear from key guest speakers, share views with fellow professionals, instigate research and make important new acquaintances.

Confirm your attendance today

Taking place outside office hours to avoid conflicting with your busy day, attending the launch at the Britannia Stadium is free of charge and refreshments will be provided.

For more details about the event, please call Kris Lines on 01782 294088 or 07949 218318.

To confirm your attendance, please use our online booking form: www.staffs.ac.uk/faculties/law/cisl/events/booking_form.jsp

For any queries about the booking form, please email louise.robinson@staffs.ac.uk. However you choose to respond, please hurry – places are strictly limited.

Yours sincerely,

Rosemary Evans, Dean of Law – Staffordshire University

Download the CISL Launch Invitation

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NHL, Labatts and the ‘monster deal’ that got away

June 6, 2011

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The Vancouver Canucks are up 2-0 in the Stanley Cup Finals on an overtime goal scored by Alex Burrows 11 seconds into the extra period. Burrows had distinguished himself the previous game by inadvertently masticating upon and potentially dislocating or amputating Patrice Bergon’s phalange. In other words, Burrows bit Bergon’s finger.

Such bizarre incidents (bizarre because they’re condemned as classless and gutless – notwithstanding that they typically occur in the context of players ‘fashwashing’ one another in a scrum which begs the inane question, what was Bergon’s finger doing in Burrows’ mouth in the first place? – whereas fighting, egregious hits to the head and concussions are considered normal and condoned) occasionally occur in the NHL. The most infamous incident occurred in the 1989 Stanley Cup Final when Claude Lemieux bit Jim Peplinski ‘s finger, eliciting the quote,  ‘I didn’t know they allowed cannibalism in the NHL.’

Regardless, Burrows avoided suspension by the NHL because the league found no conclusive evidence that he intentionally bit Bergon’s finger. Burrows presumably chomped down on the errant finger as part of an involuntary gag reflex.

To quote OMC, ‘How bizarre, how bizarre.’

Meanwhile, the NHL’s $375-million sponsorship with Molson-Coors was rejected three days ago by an Ontario Superior Court Judge who ruled the league had reneged on its deal with the company’s archrival, Labatt’s. The decision by Judge Frank Newbould tosses out the most lucrative deal in NHL history. It was described as ‘a monster deal’ by NHL chief operating officer John Collins when it was unveiled in February 2011.

The Ontario Superior Court ruled Friday in favour of Labatt’s accusation that it already had an agreement in place with the NHL before the League committed to a $375-million sponsorship deal with arch-rivals Molson Coors. ‘In my view the NHL should not be entitled to profit from its breach of its agreement with Labatt, Newbould J. said. ‘Labatt should be entitled to its bargain and to its unique marketing position resulting from the agreement to be the Canadian sponsor of the NHL for the next three years.’

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Baseball player injected with stem cells returns to the mound

June 2, 2011

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Even though the world failed to end as predicted on May 21st, it appears now the stars are in a positive alignment. In the last 48 hours, the NHL has returned to Winnipeg, the Vancouver Canucks beat the Boston Bruins 1-0 in Game 1 of the Stanley Cup Finals by scoring with 19 seconds left in the game, and my 8 year old son’s soccer/football team (the Black Knights) whom I coach won 5-2. Maybe I should buy a lottery ticket.

Meanwhile, in other sports news …

The New York Times recently reported (read article here) that Major League Baseball (MLB) is conducting an inquiry into a medical procedure performed on Yankees pitcher Bartolo Colon. The procedure involved stem cells being injected into his damaged shoulder and elbow.

MLB’s executive vice-president for labour relations, Rob Manfred, said players are required to disclose their health history on a standard form and that failure to do so could be viewed as a breach of a player’s contract.

The American surgeon who performed the procedure, Dr. Joseph R. Purita, is a proponent of using human growth hormone in such treatments, but he has insisted that HGH was not used in Colon’s case. HGH is banned in baseball and by WADA.

Kris and I have written extensively about the interface of technology with sport which has been pejoratively described as technological doping. We’ve tried to wrap our heads around what performance enhancement means and distinguishing between different kinds of technology-inspired performance.

To this end, we’ve definitionally proposed that performance correction returns an athlete’s performance to its pre-existing condition, performance optimization enables an athlete to make the best use of their ability, and performance enhancement allows an athlete to do what would not otherwise be conceivably possible and thereby exceed genetic potential.

Lasik surgery which returns an athlete’s visual acuity to a normal range is an example of performance correction. Examples of performance optimization include exotic energy drinks and protein shakes, massage therapy, and training with a heart rate monitor. Genetic manipulation, blood doping and EPO are examples of performance enhancement which are regarded as illegal.

Dr. Purita insists that no HGH was administered (“There is no smoking gun here” he is quoted as saying) and hence Colon would not be in violation of the MLB’s anti-doping policy. It appears equally improbable that Colon would receive anything more than a slap on the wrist for breach of contract by not disclosing the procedure on his health history form.

But the question left unanswered is whether this stem cell surgery is tantamount to other medical procedures such as EPO and blood doping. MLB President Bob DuPuy has properly characterized (read article here) those performance enhancement techniques as improper if they undermine the integrity of the sport, affects the fairness of competition, and tilts the playing field.

Is a technique which ‘turns back the hands of time’  – and makes a 37 year old pitcher who once won the American League Cy Young Award for best pitcher but whose best years were clearly behind him – and returns him to the mound with a 95 mile per hour fastball legal? Is this an instance of science enabling Colon to do what would not otherwise be possible or is it an example of modern medicine prolonging the career of an athlete through technologically-inspired means?

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