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Richie Incognito and Bullying in Professional Sports

December 2, 2013

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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.

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The Future of Video Review in the NHL

December 2, 2013

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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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UFC vs The Big Apple

December 2, 2013

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By Mac Green – Thompson Rivers University 2L JD Student

New York is known as a sporting state with nine professional teams that compete in the National Football League, Major League Baseball, National Basketball Association, National Hockey League and Major League Soccer. New York City’s Madison Square Garden also has one of the most celebrated histories of combat sports.MSG hosted eight of Joe Louis’s title defenses (1938-1951) and was the site of “the battle of the century” between Joe Frazier and Muhammad Ali (1971).For these reasons, it is obvious why the Ultimate Fighting Championship (UFC) would want to promote a fight in New York.And yet New York is the only state out of the 48 others that have Athletic Commissions that are still upholding their ban on professional Mixed Martial Arts (MMA) sporting events.

In 1997, New York passed a law that effectively banned professional combative sports by introducing s.5 in the Regulations of Boxing, Wrestling and Sparring.In the Regulations, combative sport is defined as “any professional match or exhibition other than boxing, sparring, wrestling or martial arts wherein the contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.” However, this legislation also seems to have left the door open for MMA to be legalized in the future by giving the New York Athletic Commission the power to “promulgate regulation which would establish a process to allow for the inclusion or removal of martial arts organizations.

The UFC was founded in 1993 with the goal of identifying the most effective martial art by having experts of unique disciplines compete in a cage fight. Unfortunately, in the beginning it was more of a spectacle than a sport only having three rules initially: no biting, eye gouging or groin strikes.

Although the UFC began in 1993, the modern era of the sport and evolution from spectacle to legitimacy began when the current owners, Zuffa LLC, bought it in 2001. Zuffa bought the UFC for only $2 million because the original owners were on the verge of declaring bankruptcy. Seven year later, the UFC was on the front page of Forbes magazine and the company was valued at nearly $1 billion.  Zuffa has also made huge contributions towards legitimizing the sport by instituting 33 new rules that govern combat within the cage.They have also fostered a worldwide expansion of the sport including a push for the education of the referees, doctors and fans. As a direct result of the sport’s legitimacy, the quality of athletes has also increased drawing in National Collegiate Athletics Association (NCAA) Division I wrestlers, ex-NFL players and Olympians. MMA has been referred to as the fastest growing sport in the world and has risen from obscurity to global powerhouse in just 20 years.

The UFC filed a lawsuit against New York at the end of 2011 because they claimed that the combative sport ban was unconstitutional based on seven different arguments. The UFC named Attorney General Eric Schneider and Manhattan District Attorney Cyrus Vance Jr. as defendants.The state filed a general motion for dismissal in response. 

Just over one month ago, Judge Kimba M. Wood of the Southern Federal District Court in Manhattan ruled that the UFC’s lawsuit would not be dismissed. Although this is a symbolic victory for the UFC, Wood J only accepted one of the seven arguments submitted. One of the arguments that Wood J dismissed was that the ban of combative sports breached peoples’ 1st Amendment right to “expressive conduct.” However, the UFC may still appeal the dismissal of this argument.

The argument that was upheld by Wood J was that the ban is unconstitutionally vague under the Due Process Clause of the 14th Amendment. He agreed that the state’s interpretation of the combative sports ban has varied significantly over the years in their comments and briefs, which gives weight to the UFC’s allegations of vagueness.

The COO of the UFC stated that these “inconsistency has cost the UFC considerable time and expense, but more importantly it has deprived MMA’s countless New York fans of the opportunity to have a new law on MMA, one that legalizes the sport and regulates it in a safe way, as all other states have done. New York’s law is outdated, written at a time when MMA was a very different sport.”

In my opinion, because the government has changed their interpretation of what the legislation actually means several times it should be struck down due to vagueness. And New York should finally pass MMA regulations so they can continue to foster their celebrated sports history. 

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Tort Law’s Inapplicability to Extreme Sports: The Death of Canadian Ski Cross Racer Nik Zoricic

November 12, 2013

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By Kelsey Petersen – Thompson Rivers University 2L JD Student

The National Post, in their coverage of the death of Canadian Ski Cross racer Nik Zoricic, quoted head coach, Eric Archer, as saying “the athletes are all searching for the same elusive thing: the edge of possibility.All truly elite athletes are searching for that line – they are trying to push the boundary of what humans can do.” In many extreme sports, pushing the boundaries leads to a form of risk taking that the law of negligence has yet to appreciate.Plaintiffs who are hurt while engaging in high risk activities do not fit within a doctrine that uses reasonableness as its central criterion.

Referred to NASCAR on skis, ski cross features up to six athletes racing side by side over banked corners and jumps 140 feet in length.Ski Cross began, and gained its popularity in the X-Games, and has been modified only slightly to become a World Cup and Olympic event.While the World Cup circuit features only four competitors racing at a time, as compared to six at a time in X-Games competition, the extreme nature of competition has transcended into the alpine racing circuit yet is not subject to the same regulations that traditional alpine disciplines enjoy.

Tim Danson, attorney for the Zoricic family, has called the death of Nik Zoricic the result of “gross negligence of race organizers and officials.”Although the Swiss police report found there to have been no third party causation involved in the crash, Danson is calling for the International Ski Federation (FIS) and Alpine Canada to conduct their own independent investigations to determine whether improper jump trajectory, safety measures and grooming protocols were responsible for Zoricic’s death.

While Smolden v Whitworth held that sport is not a special case with its own discrete jurisprudence, divorced from established general principles, the specific circumstances are of crucial importance in determining the applicability of tort principles.In addition to defining what is reasonable versus unreasonable risk within extreme sports, the court must evaluate the fundamental nature of the sport, and the defendant’s role and relationship to the sport, to determine whether the defendant owes a duty to protect the plaintiff from a particular risk of harm.

Athletes involved in extreme sports are often anything but careful, pushing the boundaries of risk taking to be successful in their sport; yet participating in a dangerous sport does not mean that an athlete consents to negligence which increases the risks posed by the sport itself.The defence of voluntary assumption of risk is yet another area to expose tort law’s inability to apply to extreme sports.“Traditionally, the assumption of risk defence barred a plaintiff’s claim, whether his behaviour was reasonable or unreasonable, on the ground that he voluntarily chose to encounter a known danger.” The assumption of risk doctrine is even more important in extreme sports where, by their nature, they are inherently dangerous.The risk of injury is extremely high without the defendant’s negligence increasing the likelihood of injury.While the voluntary assumption of risk defence continues to apply to dangers inherent in the sport, duty can be imposed if the defendant, through their negligence, increased the inherent risks of the sport. 

R v Jobidon held, in a criminal law context, that one cannot consent to death or grievous bodily harm. Can the principle of negligence follow with the assertion that an athlete cannot consent to death in extreme sports?  The death of Georgian luger Nodar Kumaritashvili prompted the following statement: “No sports mistake is supposed to lead to death.No sports mistake is supposed to be fatal.” While extreme sports adhere to a practice of increased risk, tort law principles must be modified to allow for the increased nature of risk in extreme sports to be preserved while maintaining the athlete’s right to impose liability on those guilty of negligence.

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NHL is not taking the threat of concussions seriously enough

November 12, 2013

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By Hafiz Karim – Thompson Rivers University 2L JD Student

Concussions have become a prominent issue in the world of hockey and they are becoming more and more noticeable in the National Hockey League.Through the first month of this season, the rate of concussions in the NHL is up by about 30%.Just this season alone, we’ve seen star players such as Rick Nash, Dustin Penner, Danny Briere and Dan Boyle all suffer concussions.

There is no doubt that concussions are an extremely serious issue and the NHL Player Safety department has tried to address this.Rule 48.1 of the Official NHL Rulebook defines illegal checks to the head.It states that, “a hit resulting in contact with an opponent’s head where the head is targeted and the principal point of contact is not permitted.”The NHL states that they take this issue seriously and in reality they generally hand out suspensions for illegal checks to the head.Whether the sanctions given out to players who deliver headshots is adequate or even working is a question for another day.

The NHL makes a point of denouncing checks to the head but are they doing enough?One of my biggest problems with the NHL’s denunciation of headshots is that it is largely reactive rather than proactive.What I mean by that is that the NHL will suspend a player if he makes a deliberate and dangerous hit if a player gets injured, but they rarely seem to do anything over an attempted dangerous hit.

An example of this occurred last week in a game on November 2nd between the Vancouver Canucks and the Toronto Maple Leafs.Henrik Sedin, star centre of the Vancouver Canucks, cut to the front of the net and as he did so, Joffrey Lupul of the Maple Leafs, stuck out his elbow and took a run at Sedin.Sedin later said that he saw the elbow coming for his head out of the corner of his eye and was able to duck out of the way at the last minute.Lupul came at such speed that when he missed Sedin’s head, his momentum carried him forward and he ended up hitting his teammate Nazem Kadri in the head with his elbow.The game was being broadcasted by CBC as part of their Hockey Night in Canada program and it was astounding that the commentators did not reference this attempted dirty hit nor was there a replay shown of it during the game.It may have gone entirely unnoticed if not for social media, which picked up on it and the video clip went viral following the game.

The first time I watched the video, I thought it was hilarious that Lupul ended up elbowing his own teammate in the head.Only later did I realize how bad that could have been if Lupul’s cheap shot had actually connected with Sedin’s head when he was in a vulnerable position.Henrik Sedin is one of the star players on the Vancouver Canucks and is currently tied for third in points in the NHL this season.He also is second in the active Ironman streak in the league that recognizes most consecutive games played.That could have all ended had Lupul’s elbow connected.The Canucks were dominating the Leafs and Lupul must have been frustrated or angry because there is no doubt that he deliberately tried injuring Henrik Sedin with an elbow to the head.It amazes me that the league lays sanctions on players if they injure their opponent, but that there are no sanctions for deliberate attempts to injure that do not work.Even if the referees on the ice did not see Lupul’s attempt to injure another player, there is no way that the NHL did not see that play later on as it went viral.  How do you send a message that illegal checks to the head are not OK and are a suspendable offence, but attempting a check to the head is not a big deal as long it doesn’t connect?

In today’s day and age when there is so much evidence of the detriment of brain injuries, it makes zero sense not to punish players for attempting illegal shots to the head.As a Vancouver Province blogger stated, it makes no sense that someone would have to potentially concuss another player before they get suspended, yet they can attempt it as many times as they want without risk, until they connect.  

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“The Sean Avery Rule”

November 4, 2013

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By Kevin Robertson – Thompson Rivers University 2L JD Student

Few in the game of hockey are more loathed than Sean Avery. However, it is not for his devastating skill but instead for his tendency to push the grey area of the rules a tad to far.  One such incident occurred in April 2008 during a playoff game between the New Jersey Devils and the New York Rangers. Avery, playing for the Rangers, occupied his usual spot in front of the opposing goalie but then he did something unheard of in his attempt to block the goalies view, he turned around. 

Having a (usually large) player stand in front of the goalie in an attempt to block their view is a standard procedure. However, it has always been done with the players back to the goalie (face to the puck). The benefit of this is that the player can watch for the puck and potentially deflect it into the goal.  In fact, the move is so common it even has a name: screening the goalie. 

Most goalies attempt to overcome the body in their way by either looking over the players shoulder or to the side of the body. This has always worked because the player has to split attention between the puck and the location of the goalie.  When Avery turned his body to face the goalie (in this case Martin Brodeur) he completely disregarded the puck and instead focused solely on obstructing the goalies view. Now Avery did not simply stand there and let his body block the view of the goalie, instead he waived his hands in front of the goalies head. 

While Avery did not break any sort of established rule many players complained that it should not be allowed. Montreal Canadians goalie Carey Price even went so far as to state that “it’s almost an unwritten rule.” 

What is most shocking is the speed by which the NHL had reinterpreted an existing rule to prevent the type of play from happening again; it was ready to go the day after the game. Colin Campbell, the NHL director of hockey operations clarified the rule saying that:

“An unsportsmanlike conduct minor penalty will be interpreted and applied, effective immediately, to a situation when an offensive player positions himself facing the opposition goaltender and engages in actions such as waving his arms or stick in front of the goaltender’s face, for the purpose of improperly interfering with and/or distracting the goaltender as opposed to positioning himself to try to make a play,”

The most interesting aspect was not that the NHL desired to end this type of conduct (this view was widely supported throughout the league), it was the speed and monopolistic manner with which they reinterpreted a rule to cover a situation that was not contemplated in the first place.

Nowhere in Rule 75 of the NHL’s official rules (which outline unsportsmanlike penalties) does it forbid “improperly interfering” or “distracting the goaltender” (wouldn’t a team encourage this?). The only way that the rule change could be situated as any sort of “reinterpretation” would be if one considered Avery’s conduct to be “disorderly” (which would place it in violation of Rule 75.1). In effect, the NHL used a catch-all provision regarding disorderly conduct on the ice to ban this type of maneuver. 

Whatever a person’s opinion is regarding the rule itself, it is disconcerting how the NHL was able to essentially impose a new rule on the game in such a short time period without consulting with NHL Players Association. Such a short turnaround can only occur in a situation where the governing body has complete and utter authority to act in a monopolistic manner. 

To put this in perspective, typically a rule change would be a 3-step process consisting of General Managers recommending a rule change, the Competition Committee (half players and half club officials) which ordinarily meets twice a year to analyze the proposed changes, and the Board of Governors who then votes on it. Historically rules changes have also been tested in either other leagues or pre-season games before they are ratified. 

Only after all steps are complete does a supported rule change become active. 

There was no reason, such as immediate player safety, to circumvent the established rule change process. It appears that the NHL wished to save face by outlawing the screening of a goalie’s face à la Sean Avery.  The NHL has shown that they can effectively alter the rules on the fly by disregarding the established process. It is surprising that the NHLPA did not publicly decry the procedure through which the rule change was instigated. It is hoped that future instances of rule changes made in response to an unforeseen development on the ice will conform to the collective agreement and due process.

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To fight or not to fight that is the question

October 30, 2013

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By Hafiz Karim – Thompson Rivers University 2L JD Student

Fighting in hockey: it has always been a contentious issue, but will it be taken out of the National Hockey League in the near future?  

Rule 46 of the Official NHL Rulebook governs fighting in the NHL.It sets out the criteria for what constitutes a fight, what the rules of a fight are, fines as well as everything else related to an NHL fight.Fighting has always been a part of the game and many are emphatic that fighting needs to remain in the game or the sport of hockey will not be the same.Most teams in the NHL have at least one player who acts as the designated tough guy or goon, and if fighting were no longer in the game, most of them would be out of a job.It is understandable that this group of players does not want fighting to be taken out of the game.Perhaps surprisingly, it is not only this small group of players who want fighting to remain in the game.In a recent article, Kevin Bieksa of the Vancouver Canucks stated that “we’ll play with a tennis ball before we take fighting out” when asked about whether fighting should be removed from the NHL.Players around the league echoed Bieksa’s comment. 

For the most part, fans of the game of hockey love the fights that often occur.This is evidenced in the fact that the crowd at any arena in the NHL erupts and goes wild whenever there is a fight.Based on the reactions of the spectators, it seems that most of them get more excited about a fight than a goal.  This tells you a lot about how fans of the game view fighting in the NHL. 

Another popular view of why many players and fans believe that fighting should remain in the game is expressed by Vancouver Canucks’ enforcer Tom Sestito.Sestito states, “if you don’t have fighting in the game, there are going to be a lot of dirty hits.”He is referencing the idea of accountability on the ice and he believes that fighting holds players accountable.The idea is that without the threat of being challenged to a fight, there is no accountability and that injuries will actually increase because there will be more dirty hits.

Between player and fan support of fighting in the NHL, it seemed like it was going to stay.However, due to an event earlier this month, the debate of whether to remove fighting or not reopened.On the night of October 1st, in a game between the Toronto Maple Leafs and Montreal Canadiens, Colton Orr and George Parros, the respective enforcers for their teams squared off.The two started throwing punches, which led to Orr losing his balance and falling down.Orr still had a hold of Parros’ jersey as he fell and as Parros threw a punch, he too lost balance and fell face first into the ice.Parros was knocked unconscious, suffered a concussion and had to be taken off the ice in a stretcher. 

This event caused four NHL general managers to come out and speak publicly against fighting in the NHL.Tampa Bay’s Steve Yzerman, Carolina’s Jim Rutherford, Pittsburgh’s Ray Shero and St. Louis’ Doug Armstrong all publicly said it was time that the league took a tougher stance on fighting.  This was significant because in the past the argument was that it was only the media who spoke out against fighting but the “real” hockey people recognized the value of fighting.That argument was laid to rest with the statements made by these general managers.Rutherford was very blunt and stated, “we’ve got to get rid of fighting.It has to go.” Yzerman made a strong argument by pointing out the efforts the league goes through to reduce head injuries by penalizing and suspending players for making contact with the head but they still allow fighting.He goes on to say that “we’re stuck in the middle and need to decide what kind of sport do we want to be.Either anything goes, and we accept the consequences, or take the next step and eliminate fighting.”

Will the NHL re-examine their policy on fighting in the league after the Parros injury and the public statements made by four of their general managers or will they continue to allow fighting in the league?Only time will tell.

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The Debate Surrounding Bill C-397- An Act to amend the Income Tax Act (Golfing Expenses)

October 30, 2013

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By Kelsey Petersen – Thompson Rivers University 2L JD Student

John Williamson, a conservative MP from New Brunswick, may have summarized the thoughts of many Canadians when he, upon learning of the proposition of Bill C-397, argued: “The NDP wants to help CEO’s take their friends golfing.  Many Canadians still can’t make ends meet. But the NDP wants to give a tax credit to corporations…for golf.” While this may be a legitimate concern, MP Randall Garrison, with the support of the federal government’s All Party Golf Caucus, has proposed a legislative amendment which will do just that.

Bill C-397, a private member’s bill currently in the Second Reading in the House of Commons, introduced legislation designed to amend subparagraph 18(1)(l)(i) of the Income Tax Act to permit the deduction of an expense incurred by a taxpayer for the use of a golf course or facility.The question to be put forth in Parliament, whether or not golf related fees can be considered a business expense, will also require having to answer whether there are legitimate distinctions between golf and the other sport and entertainment options that qualify for the deduction.

Currently, the Canadian Income Tax Act holds that businesses can deduct 50% of a meal or entertainment expense from their taxes so long as the event helps them earn income.Since 1971, golf has been held not to qualify for this deduction based on it being an ‘elitist activity’. Proponents of the legislative amendment argue that this is an outdated policy and the sport of golf is being unfairly disadvantaged by this categorization. 

An examination of the accepted sports and entertainment options provides a strong basis of support for an argument of inequality.Canadian companies can deduct the cost of hockey, football and other professional sporting events,concert tickets and expensive meals, all of which invites the question: why is golf not included amongst this category?Jacqueline Nelson, reporter with Canadian Business Magazine, sums up this argument by saying: “In the eyes of the tax man, deals conducted between swings aren’t equal to those done at the rink.” 

The grounds for an argument based on inequality are further supported by the fact that it was not until 1997 when federal laws were amended to include meals and beverages at a golf clubhouse in the 50% deduction. Golf has now evolved into one of Canada’s most popular recreational activities and contributes over $11 billion to Canada’s gross domestic product.One would be hard pressed to maintain the belief that golf courses and facilities do not provide a suitable venue to conduct business.

Parliament, on the other hand, argues that there remains a distinction between golf and other sporting events which allows golf fees to be excluded from an income tax deduction.A spokesperson for the Canadian Department of Finance argued that the business purpose associated with golf was “accessory or subordinate to the recreational and personal nature” of the golf activity.Furthermore, in a more recent report, the Department of Finance has stated that the limitation on the deductibility of golf is said to have been designed to ensure that businesses, using only disposable income to golf, assume the tax burden and do not force Canadian tax payers to subsidize their business outings.

Whether golf, and all other sporting and entertainment events, should be eligible for a 50% deduction under the Canadian Income Tax Act will inevitably be up for reevaluation; yet it is difficult to argue that business conducted at a golf course can be substantially differentiated from the accepted forms of entertainment so not to qualify for an income tax deduction.

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Difficulties in distinguishing disabled athletes

October 30, 2013

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By Mark Brade – Thompson Rivers University 2L JD Student

Within elite sporting events the necessity of ensuring athletes are in fair competition with one another has led to the creation of anti-doping programs, qualification scores, and other means of protecting the integrity of sport. The International Paralympic Committee (IPC) is faced with an unusual additional challenge; the difficult task of quantifying the disabilities of athletes in order to ensure balanced competition. Ensuring achievement of the equality and participatory standards expected of an international sporting event is a daunting task when consideration is given to the spectrum of possible impairment within just a single disability and the IPC has struggled to meet these obligations on an ongoing basis.

Managing an admissions system for athletes with intellectual disabilities raises particular challenges and this may explain why the category did not exist until the 1996 Atlanta Paralympic Games. The next Summer Paralympics to take place, at Sydney in 2000, saw the failure of the IPC to adequately protect the integrity of competition when only 2 out of 12 players on the Spanish basketball team were disabled. The president of the Spanish Federation for Mentally Handicapped Sports (FEDDI) had arranged for these players to avoid testing in order to dominate the competition, which they did by winning the gold medal. Once discovered the IPC revoked their medals however only the president of FEDDI was charged while a mixed group of 18 athletes and officials avoided court imposed sanction.

In response to their failure to protect disabled athletes the IPC cancelled intellectual disability competition until a reliable system could be created to determine eligibility. It was not until 2009 that the ban was lifted while the IPC instituted a series of ‘sports intelligence’ tests to confirm claimed disabilities. The new system requires an IQ score below 70 or 75, and satisfactory demonstration of a limitation in conceptual, social and practical adaptive skills assessed against through standardized testing. In addition to ignoring the documented cultural bias which exists in intelligence quotient testing the test demonstrates – even highlights – the differences between non-disabled and disabled athletes as a means of separating them. To an athlete seeking to assert him/herself as an elite performer on a world stage this is hardly an equitable or affirming system of evaluation.

Admissions criteria for athletes with non-intellectual disabilities have also been difficult to manage without controversy. Victoria Arlen is an 18-year-old swimmer who has been paralyzed since emerging from a three-year coma she entered while 11-years-old. Victoria has an autoimmune disease which attacks the spinal nervous bundle and swims without use of her legs and with limited mobility of her arms. The IPC has ruled her ineligible for competition because her condition may potentially not be permanent. The report relied upon by the IPC suggests that after years of physical therapy Victoria might be able to walk again. 

The nature of disability is not easy to describe and yet the Paralympic Games are considered the pinnacle sporting event for disabled athletes. The nature of the sport is competition among all those who are similarly limited in their ability to perform and winning is not intended to be a consolation prize for a disability. Accordingly, athletes who are equally disabled ought to be free to compete against one another without regard for whether one athlete may, possibly, one day be able to walk again. The potential that a non-disabled athlete who has had the benefit of being free of the training limitations of a disability may become disabled, compete, win, then recover, is not justification for denying a person who has a faint hope of recovery the opportunity to compete. The alternative is to create a two-tiered system which excludes athletes of equal disability due to the unpredictable nature of advances in medicine.

The Vision and Mission statement in the Constitution of the IPC states the organization seeks to uphold fundamental ethical principles and the spirit of fair play. It is a requirement of a fair and ethical competition that entry is based neither upon uncertain testing nor speculative assessments of future medical and personal accomplishments.

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US College football players get paid for the first time

October 21, 2013

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By Alexander Mac Green – Thompson Rivers University 2L JD Student

On July 17th 2013, the National Collegiate Athletic Association (NCAA) announced they would not be renewing their licensing agreement with Electronic Arts (EA). This was a direct reaction to the class action lawsuits that have been brought against the NCAA, EA and the CLC (Collegiate Licensing Company). The allegations cited in these lawsuits are that the listed defendants have profited from using college football athletes’ likenesses and as a result have been unjustly enriched. Over the last 20 years, EA has made 21 different versions of their NCAA football videogame featuring hundreds of thousands of student athletes and making more than $1.3 billion dollars since 1998. Following the NCAA’s announcement the Big Ten, Pac 12 and SEC also announced that they would not license EA to use their trademarks until these lawsuits had been resolved.As a result, on September 26th EA had no other choice but announce that they would not be making a college football videogame for 2014 and for the foreseeable future.

The lawsuits claim that the defendants have breached these former college athletes’ property rights. Personality property rights include the right to be compensated for the profitable use of one’s own likeness. Although EA never used any of these players’ names in their videogames, they used the players’ exact characteristics: jersey numbers, heights, weights, skin tones, hair colors, and home states.EA has never compensated or received permission from any of the athletes featured in their games. They have only paid the NCAA and the CLC over this time period for the licensing rights to use their trademarks.

Shortly after EA’s announcement, they notified the US District Court of Northern California that they had reached an agreement to settle with the former players. However, EA still refuses to admit any wrongdoing on their part. They claim that they just “follow rules that are set by the NCAA.” The NCAA, for their part, has made it clear that they are not willing to compromise and are prepared to proceed with litigation.

The managing partner of Hagens Berman and the co-lead counsel of the settlement negotiations, Steve Berman, claims that anywhere from 200,000 to 300,000 former players will be “substantially” compensated by this settlement. EA Sports and the CLC plan to settle these lawsuits for $40 million dollars. It has not yet been decided how this money will be divided, but $40 million dollars divided amongst potentially 300,000 will only result in a whopping $133.33 per athlete. I am not sure if this meets Berman’s “substantial” claim but this settlement carries much more weight as a symbolic victory.

This settlement is historic because college athletes have never been compensated in this fashion before. The NCAA forbids all of their student athletes from earning money by using their names or likenesses in, for example, endorsements. However, these settlements are being awarded retroactively to former students who are no longer restricted by the NCAA rules.This settlement has potentially changed the relationship between student athletes and licensing companies drastically. Some predict that this may have opened the floodgates to retroactively compensating college athletes beyond their regular sports scholarships which ordinarily include tuition, room and board.

There are many arguments for and against college athletes getting paid. Personally, I believe college athletes are compensated fairly by their schools based on the following arguments:

1.  College graduates earn $1 million dollars more in their lifetime compared to high school graduates according to census data;

2.  College students without sports scholarship will pay anywhere from $100,000 to $200,000 for their education; and

3.  College athletes are given the opportunity to build their brand for the future as a professional athlete or any other occupation. These athletes have access to an influential network of people, state of the art facilities, professional level coaching, higher level competition, media training and fan building opportunities, all of which could enrich these athletes lives even if they do not go pro.

It is, however, easy to feel sympathetic for college athletes who don’t make it to the NFL especially if the reason is due to injuries suffered during their college career. These athletes could have been compensated for their high level of athletic ability prior to their injury.Time Magazine recently wrote an article claiming that there is an “ethical imperative” to college athletes being compensated for the millions of dollars that they help generate for their colleges and other beneficiaries.

The monetary value of this settlement should not belittle its historic impact on the future of college sports.

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