Playing Catch-Up

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 predictably seems that as the tsunami of essays and exams approach with the end of our respective universities’ semesters (plus sundry other projects including working on writing and conference presentations, Kris’s recovery from some unidentified pernicious parasite or amoeba thing, coaching kids’ soccer/football teams, the start of the NHL playoffs, etc.), our pseudo-journalistic responsibilities to The Canary suffers.

Whilst our intent has been to offer educational or informational commentary in response to contemporary events in sports law, I am compelled to play catch-up to clear the backlog and break the bottleneck of events which are fading from view in the rear-view mirror. Accordingly, what follows is a brief synopsis of things from the not-so-distant past.

• The US Occupational Safety and Health Administration has just fined Wolf Creek Ski Area $17000 for serious workplace violations following an investigation into the death of the area’s ski patrol director in an avalanche on 22 November 2010 (see story here). The employee was alone was not wearing a helmet as required by state and federal laws. State intervention and regulation into the affairs of adventure activities is not new. California state regulators have fined Mammoth Mountain Ski Area $50,000 for several job safety violations related to the deaths of three ski patrol members on 6 April 2006 (see story here). The Wyoming Department of Employment cited Jackson Hole Mountain Resort in 2009 for failing to protect ski patroller Kathryn Miller with a helmet when she died in a fall in Spacewalk Couloir in 2008. The resort did not require its patrollers or other ski workers to wear helmets (see story here). Not that we needed any more convincing but this is yet further proof that adventure activities are not immune from the long arm of the law.
• Women’s ski jumping was approved by the International Olympic Committee at its meeting in London on April 6 for inclusion at the 2014 Sochi Winter Olympics. Ski half-pipe, biathlon mixed relay and team events in luge and figure skating were also approved (see story here). As a footnote, Kris and I wrote a piece in 2009 in the International Sports Law Review entitled ‘Ski jumping through Olympic-sized hoops: An analysis of Sagen v Vancouver Organizing Committee (VANOC) for the 2010 Olympic & Paralympic Winter Games.
• The family of a 17 year old girl killed in a skiing accident in Ontario two years ago filed a $2 million lawsuit last month against the school board, the resort, the superintendent of education, the director of education, the supervising teacher, and employees of the resort. Elisabeth Steel Reurink had received less than one hour of instruction before being permitted to ski at Collingwood’s Blue Mountain Resort. She was skiing in the company of a teacher employed by the London District Catholic School Board at the time of the accident. The trip was part of her school’s physical education curriculum. Permission and consent forms were signed along with a waiver. The lawsuit alleges Elisabeth did not want to ski L-Hill – the run on which she was killed – but was encouraged to ski it by her teacher. The lawsuit does not identify what conditions on the hill were like or its level of difficulty; however, according to Blue Mountain’s website retrieved in March 2011, L-Hill is an intermediate or expert run. Elisabeth lost control, hit a tree and was killed instantly. She was wearing a helmet. The suit basically alleges negligent instruction and evaluation. It is noteworthy that Elisabeth was encouraged to ski L-Hill rather than ski it against her will. There is a world of difference between being coerced or under duress to do something as opposed to being politely pushed or emboldened to ski a run under the supervision of a teacher. None of the allegations have been proven.
• The Manitoba Junior Hockey League recently suspended a player for 40 games for driving an opposing player into the boards (see story here). Hockey Manitoba past president Brian Sarna was bang on when he said that players who set out to deliberately injure someone don’t belong in the game. The National Hockey League could learn a thing or two and tear a page from the MJHL’s rule book.
• Also courtesy of my home province comes this unusual lawsuit that’s the first of its kind in Manitoba. The province has filed a civil suit aimed at seizing the Winnipeg home where a soccer coach allegedly abused a preteen girl who played on his team. Under the province’s Criminal Property Forfeiture Act, people can lose their property to the government if a court rules they used it for unlawful activity. The lawsuit says the man’s home was “an instrument of unlawful activity” because on at least two occasions the man allegedly sexually touched the girl while she was there (see story here). Child abuse in sport remains a problem. A 2010 study by the University of Huddersfield found that 52% of abused children were abused in community-based organizations which include sports teams (see story here). Whilst progress has been made, significant work needs to be done. As a small but sad example, USA Swimming, released a list last year which showed 46 people – including former director of the national team Everett Uchiyama – who received lifetime bans or permanently quit the organization, most for sex-related offenses (see story here). Lawsuits are not uncommon (see here for example). In this light, any legal device which aids in the reduction of child abuse in sport ought to be welcomed.
• Between Georgian lugar Nodar Kumaritashvili’s death and allegations that the Vancouver Organizing Committee (VANOC) may have violated International Olympic Committee (IOC) ethics rules with targeted visits (see story here), the squeaky clean image of John Furlong – who led Vancouver’s winning bid and the 2010 organizing committee – is in dire jeopardy. I wonder if VANOC’s foreknowledge of the luge track’s dangerously high speeds was disclosed to Nodar’s family when they accepted $150,000. On the world stage of the Olympics, VANOC blamed Nodar for his death while conveniently absolving themselves of responsibility. If Mr. Furlong didn’t tell them about VANOC’s and the International Luge Federation’s concerns over “extremely high speeds” that presented an “unreasonable demand” on the athletes and that the main cause was in fact a track that was too fast that they knew about in advance and did nothing about, then Mr. Furlong has some explaining to do. Maybe he’ll get around to that once he’s finished spinning and explaining his questionable behavior to the IOC. It all brings to mind a Sir Walter Scott quote: “Oh what a tangled web we weave … when first we practise to deceive.”

Nodar Kumaritashvili’s death at the 2010 Vancouver Winter Olympics – Let the finger pointing begin!

I have consistently been critical of VANOC’s handling of the death of Nodar Kumaritashvili on the opening day of the 2010 Vancouver Olympic Winter Games. In February 2010 I wrote in The Globe and Mail, ‘Shame on VANOC for blaming Georgian luger Nodar Kumaritashvili for his tragic death while conveniently absolving themselves of responsibility.’ In October 2010 I wrote in the National Post that the BC Coroner’s Report was ‘off-base in pointing the finger of blame at Nodar Kumaritashvili, stating that his relative lack of experience set the backdrop for the incident. This track was intentionally engineered for world-record-breaking speed and high G-forces. A high-speed corner was named “50-50” due to the odds of making it without crashing. World-class lugers were crashing in their limited training runs. What happened was not just due to the inherent risks of the luge or to Mr. Kumaritashvili’s inexperience. VANOC’s shortening of the race course and building up of the walls is implicit recognition that the course was too fast and that its speed played a greater role than Mr. Kumaritashvili’s inexperience in his death.’

The Globe and Mail reported (read article here) two days ago that Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) CEO John Furlong ‘expressed concern that an athlete could get ‘badly injured or worse’ on the high-speed track and organizers might be accused of doing nothing to prevent it. Mr. Furlong’s unease, outlined in a startling, March 2009 e-mail … came after he received a copy of a letter to the luge track’s designer from the worried president of the International Luge Federation (FIL), Josef Fendt.’

FIL Secretary General Secretary Svein Romstad stated that, ‘Our goal is always to have tracks around 135 kmh, and that was what the designer projected. Instead, we suddenly got to 154 kmh. That was never our intention.’

In a letter written to IBG Designs, FIL President Fendt wrote, ‘Most of the athletes were able to cope with these extremely high speeds. Nevertheless, overstepping this limit would be an absolute unreasonable demand for the athletes …. This causes me great worry.’

Having received a copy of Mr. Fendt’s letter, Mr. Furlong e-mailed members of his senior management team writing, ‘An athlete gets badly injured or worse and I think the case could be made we were warned and did nothing. That said I’m not sure where the exit sign or way out is on this. Our legal guys should review at least.’

Tim Gayda, VANOC Vice-President of Sport, responded, ‘I don’t believe there is anything to do.’ This was echoed by VANOC Executive Vice-President of Sport, Paralympic Games and Venue Management Cathy Priestner-Allinger who wrote, ‘FYI, no action required at this time.’

I wonder if VANOC’s foreknowledge of the track’s dangerously high speeds was disclosed to Nodar’s family when they accepted $150,000 from a private insurance ostensibly to compensate a grieving father and mother for the loss of their son due to a tragic accident. On the world stage of the Olympics, VANOC blamed Nodar Kumaritashvili for his death while conveniently absolving themselves of responsibility. It is assumed that VANOC carried on with the line that Nodar’s inexperience caused his death. If Mr. Furlong didn’t tell them about their concern over ‘extremely high speeds’ which presented an ‘unreasonable demand’ on the athletes when the main cause was in fact a track that was too fast that they knew about in advance and did nothing about, then Mr. Furlong has some explaining to do.

Lastly, parroting VANOC’s position at the time, the BC Coroner’s Report pointed the finger of blame at Nodar Kumaritashvili stating that his relative lack of experience set the backdrop for his death. The report conveniently ignored correspondence it had from VANOC and International Luge Federation executives who were worried that the unintended extreme speeds were unreasonable and that athletes could get injured or killed as a result. Cover-up, incompetence, or honest mistake? Let the finger pointing begin!

Read the e-mails here – VANOC Luge e-mail 1 + VANOC Luge e-mail 2

What is VANOC not telling us?

http://communities.canada.com/VANCOUVERSUN/blogs/insideolympics/archive/2010/03/19/donations-sought-for-dead-luger-earthquake-hit-haiti.aspx

The tragic death of Nodar Kumaritashvili on the opening day of the 2010 Vancouver Olympic Winter Games has been widely reported. VANOC magnanimously announced last week that they are giving Kumaritashvili’s family a sum of money under a private insurance policy.

When it was first reported, there was no mention if VANOC had compelled Kumaritashvili’s family to waive their legal rights to sue in return for accepting the money.

I e-mailed a respected newspaper columnist suggesting this might be a question worthy of asking at a press conference. Days later, the Vancouver Sun is reporting that VANOC is refusing to say if the family has had to waive their rights. VANOC gives the appearance by stonewalling that they are hiding something.

Olympic athletes are required to sign a waiver and release of liability as a precondition to compete. The waiver states, ‘I acknowledge and agree that: a. I participate in the XXI Olympic Winter Games in Vancouver at my own risk and that I will take all reasonable measures to protect myself from the risks of participation.’

These rights are waived however in light of the risks ordinarily inherent in the activity. It would be for the courts to decide if what happened to Nodar was within the range of risks normally assumed in the sport of luge – rather than abnormal or egregious risks – paying particular attention to the engineering, construction and maintenance of the track.

Regardless, it is disconcerting that VANOC would require Kumaritashvili’s family waive their right to seek legal compensation – in addition to the waiver Nodar signed in order to compete – in order to receive the death benefit.

Rules and Rogues

 

Marketing magazine just published a piece I wrote entitled, ‘Rules and Rogues – VANOC’s approach to ambush marketers may keep the lawyers happy but the strategy is backfiring.’  Here are a few excerpts:

———-

The Vancouver Organizing Committee has got its staid knickers in a knot over Lululemon’s new clothing line. The retailer’s “Cool Sporting Event That Takes Place in British Columbia Between 2009 and 2001” special edition clothing line has raised the ire of Olympic officials who accuse the yoga-wear company of rogue advertising and unsports-manlike conduct, and have threatened a “name and shame” campaign to encourage compliance. Even though VANOC concedes no laws have been broken, it believes it has the right to remind the public that Lululemon is not a sponsor of the Vancouver 2010 Winter Olympic Games.

VANOC’s ill-conceived strategy gives the story ‘legs’ enabling the ambusher even more and longer media exposure and puts the conflict on the front pages of the newspaper instead of being dissolved in the miasma of marketing clutter.

The rationale and effectiveness of the “name and shame” tactic is suspect. The legal goal is obviously to protect the intellectual property rights vested in the Olympics so that official sponsors get the maximum return on their investment and VANOC benefits insofar as being the beneficiary of the sponsorship fees. Underlying the strategy is a dogma that prevents them from seeing the trap set by the ambush marketer.

Lululemon is a made-in-BC success story. It has succeeded not only in launching a new product line but in making VANOC look silly while getting a mountain of free publicity. VANOC would be well advised to reconsider its approach the next time around.

———-

In light of VANOC’s recent harassment and threatened litigation of Toasterz, a BC-based business that manufacturers reusable heat packs and features a flame in the product’s name, or the bleating over Scotiabank’s ‘Show Your Colours’ campaign featuring two-time Olympic hockey gold medallist Cassie Campbell, it appears the lesson has yet to be learned.

Moving Mountains. Dodging Debt. What’s next?

http://www.ctvolympics.ca/news-centre/newsid=27124.html#snow+woes+officials+give+mother+nature

http://www.vancouversun.com/sports/2010wintergames/Whistler+Intrawest+auction+block+business+usual/2464475/story.html

It’s been said that bad things comes in threes.  If so, then the Vancouver 2010 Olympic and Paralympic Winter Games should brace itself.

First, the Pineapple Express has rolled into Vancouver bringing unseasonably high temperatures and heavy rain. The Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) has thrown in the towel to the snow gods at Cypress Mountain – host site of freestyle skiing and snowboarding events.  VANOC executive vice-president Cathy Priestner-Allinger conceded that the organizing committee is planning on not having snow at Cypress Mountain and that it will have to be transported to the race courses from higher up the mountain by sno-cat, trucks and helicopters. Crews are placing wood and straw on the freestyle, moguls, ski and snowboard cross venues to be covered with the snow and gravel may be laid down alongside race courses so that spectators don’t kick up clouds of dust.

Priestner-Allinger is confident that moving mountains of snow onto the race course will do the trick. ’We are focusing entirely on the field of play. That’s where the cameras are, for the most part,’ she said.

Second, a group of financial institutions owed by the owner of Whistler Blackcomb Ski Resort – Official Alpine Skiing venue for the Games – have scheduled an auction to sell off its assets.  The creditors, including Davidson Kempner Capital Management LLC and Oak Hill Advisors LP ran an ad in the Wall Street Journal announcing the sale of Intrawest ULC properties. Fortress Investment Group LLC, a New York based private equity and hedge fund firm, bought Intrawest in 2006 for $2.8 billion USD and recently missed a $524 million debt payment. Intrawest owns Whistler Blackcomb and nine other ski resorts, two heli-skiing operations and a myriad of other resort properties. While Intrawest CEO Bill Jensen puts on a brave face saying ‘Its business as usual’ and Dan Doyle, VANOC Executive Vice-President, downplays the distraction saying there’s only ‘a very miniscule chance’ the proceedings could interfere with the Games, this is not how organizers envisioned rolling out the red carpet to the world in the days leading up to the Olympics.

If the auction were to proceed, it would at the very least be a black eye to British Columbia’s provincial government which has invested billions of dollars in the Games and can ill afford to see them become a public relations debacle.

Given that Cypress Mountain will likely resemble a Potemkin village with ribbons of white surrounded by hectares of dirt and that Whistler Blackcomb teeters on the edge of foreclosure, we shudder at the thought of what will happen next.

Sagen & Others v. VANOC 2010 (case report)

Sources: see an interesting blog account of the trial: http://vanessapierce.wordpress.com/ or read the full case report here: http://www.vancouver2010.com/dl/00/69/78/-/69784/prop=data/1y2401t/69784.pdf

The facts of the case of Sagen & Others v. Vancouver Organizing Committee for the 2010 Olympic & Paralympic Winter Games (VANOC) has been reported in brief earlier on the blog. Here is the full case report.

The case was brought by 16 highly-ranked (current and retired) female ski jumpers who all claim that female ski jumpers are being excluded from competing at the 2010 Winter Olympic Games because of their sex, in violation of their equality rights under s.15 of the Canadian Charter of Rights and Freedoms. [1]

They argued in the Supreme Court of British Columbia that as the VANOC is a federally incorporated organisation, it had duties under the Charter to make provision for women’s events if it is also hosting male ski jumping competitions. The claimants therefore wanted VANOC to stage a female ski-jumping event, or alternatively to remove the male ski-jumping event (although the claimants suggest at [6] that the IOC would authorize VANOC to host a female event rather than cancel the male event).

By contrast, VANOC suggested that the claimants were suing the wrong defendants and that they were sympathetic to female ski jumping (and indeed remained ready to host an event), but their hands were effectively tied by the IOC [4].

Although the Court ruled that the exclusion of women’s ski jumping from the Winter Olympic was discriminatory and was for no other reason than their gender [7], her Honorable Madam Justice Fenlon then went on to state that as not every discrimination is actionable, and given the degree of IOC control, VANOC was not in breach of the Charter.

The main arguments of the case can be summarised by the following two questions:

1)       Does the Charter apply to VANOC?

Broadly speaking, the Charter only applies to government responsibilities [10]. For the claimants to succeed, they therefore had to argue that VANOC was either controlled by government, or carrying out a governmental program.

The problem for the claimants was that although the Canadian, British Columbia, Vancouver and Whistler governments were all represented on VANOC, there was no evidence of any governmental day to day governance [24] or control over VANOC finances [29], and indeed VANOC operated ‘more like a franchisee of the IOC, than a purchaser of a product’ [39]. Even the degree of control operating under s9 of the Trade Marks Act was not conclusive evidence [48].

However the claimants did succeed on the latter argument, and at [58] the Supreme Court held that staging the 2010 Winter Games was a governmental activity, even though it had created a private entity (VANOC) to deliver the actual event.

 

2)       Is VANOC in breach of s15 of the Charter?

Having established this, the next problem to be overcome was whether VANOC was in breach of the Charter. In doing this, the Court considered three issues:

i)                     What was the benefit at issue? – the opportunity to participate in the 2010 Winter Games at an Olympic Ski Jump Event [75]

ii)                   What is the appropriate comparator group? – Male ski jumpers [75], indeed the court held that Lindsey Van holds the facility record at Whistler [66]

iii)                  What is the discrimination? That the claimants are being treated less favourably on account of their gender [75]

Having established that this discrimination exists, it is then important to understand why and this effectively is the crux of the claimant’s case. The IOC criteria for the inclusion of new events were governed by rule 47 of the Olympic Charter (which effectively laid down certain criteria regarding participation and standards of competition). The problem is not that the rule itself is discriminatory (if anything while it applies equally to men and women, the rule sets a lower standard for participation in women’s events), but rather that its application to ski jumping is discriminatory. This is because while women’s ski jumping does not meet the criteria, neither does the men’s events [86], but they are still included under a ‘grandfather clause’ because they had previously been an Olympic event. As women’s ski jumping had not historically been included, this event was not eligible and therefore constituted discrimination.

The problem with this argument is that the claimants were not asking for a women’s ski jumping exhibition event, but rather an Olympic event [108] and this was beyond VANOC’s capacity. Indeed, the claimants agreed at [116] that VANOC does not have the authority to stage an Olympic Event without the consent of the IOC (while VANOC itself could stage a women’s ski jumping event at the venue, without IOC approval it would not be an Olympic event. Similarly, both the International Ski Federation (FIS) and many National Olympic Committees (NOCs) have stated that they will only participate in IOC sanctioned events during the Olympics).

Given this conclusion, and the IOC’s degree of control, VANOC was not therefore in breach of s15 of the Charter by implementing the IOC Programme of events.

Olympic Gender Discrimination Lawsuit to Begin

http://www.ctvolympics.ca/ski-jumping/news/newsid=9545.html#future+games+doubt+womens+jump+held+vanoc+warns

 

Vancouver, BC

 

The trial pitting women ski jumpers excluded from competing in the 2010 Olympic Winter Games against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) is set to begin on April 20^th.  Both sides in the summary trail just released their written arguments. 

 

The sport was left off the roster for the 2010 Games because the IOC declared it was not developed enough to merit inclusion in the Olympics.  The women ski jumpers argue they are being discriminated against in violation of their rights under the Canadian Charter of Rights and Freedoms since male jumpers are allowed to compete in three events whereas there are none for women.  The women argue that the local organizers must respect the Charter because the Olympics are partially funded and supported by the federal government and cannot avoid its reach just because the IOC is outside Canadian jurisdiction.  The plaintiffs are asking the British Columbia Supreme Court for a declaration that restricting the Olympics to male jumpers contravenes the Charter thus compelling VANOC to host a women’s competition in order to comply with the court’s finding. 

 

In its defence, VANOC argues that it is the IOC’s responsibility to determine what events are included in the Olympics and that Charter arguments are moot as the IOC is beyond the jurisdictional reach of the court.  They argue that the IOC’s decision was not discriminatory but based on the fact that women ski jumping did not meet IOC standards to qualify for inclusion in the Olympics, falling below the number of participants and skill level required.  VANOC also points out that women ski jumpers have trained and competed at the Olympic Games ski hill this winter and claims that a judgment in favour of the women ski jumpers would imperil the future of Canada ever again hosting an Olympic Games.

Five female ski jumpers join lawsuit to be included in 2010 Winter Olympics

Source: Winnipeg Free Press

http://www.winnipegfreepress.com/breakingnews/40854992.html

Five female Canadian ski jumpers want to add their names to a lawsuit seeking to have their sport included in the Vancouver 2010 Olympic Winter Games. The women join 10 others who allege their rights under the Canadian Charter of Rights and Freedoms are being violated since male jumpers are allowed to compete in Olympics but they are not. The sport was left off the roster for the 2010 Games because the IOC declared it was not developed enough to merit inclusion in the Olympics. The claimants filed suit against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC).  The women argue that the local organizers must respect the Charter because the Olympic Games are partially funded by the federal government. In their statement of defence, VANOC claims they cannot override the IOC and even if the women’s rights were violated, there are reasonable grounds to do so. The lawsuit is scheduled to be heard in B.C. Supreme Court in April 2009.