Archive | Uncategorized RSS feed for this archive

Two Stones, One Ray-ven

October 11, 2014

0 Comments

By Michael Truong – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

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

Continue reading...

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

October 10, 2014

0 Comments

By Danika Heighes – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

Continue reading...

Washington Redskins Trademark Battle

October 7, 2014

0 Comments

By Michael Cunningham – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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

Continue reading...

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

October 7, 2014

0 Comments

By Fei Kang – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

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

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

 

Continue reading...

We’re Back

October 7, 2014

0 Comments

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

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

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

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

We’re back.

Continue reading...

Richie Incognito and Bullying in Professional Sports

December 2, 2013

0 Comments

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.

Continue reading...

The Future of Video Review in the NHL

December 2, 2013

0 Comments

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.

Continue reading...

UFC vs The Big Apple

December 2, 2013

0 Comments

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. 

Continue reading...

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

November 12, 2013

1 Comment

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.

Continue reading...

NHL is not taking the threat of concussions seriously enough

November 12, 2013

0 Comments

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.  

Continue reading...
Follow

Get every new post delivered to your Inbox.

Join 552 other followers