Archive | August, 2010

Prettiest Ambush I’ve ever seen!!!

August 26, 2010


Jon and I had the following article, “Ambush marketing: FIFA’s rights protection programme” recently published in the World Sports Law Reports (WSLR).

“Amidst the buzzing of the Vuvuzela’s and the occasional officiating error, the 2010 FIFA World Cup South Africa will also be remembered for the expulsion of 36 orange mini-skirt wearing women from a match and
the subsequent prosecution (and then dropping) of charges against the two alleged ‘ringleaders’ behind the incident. Whilst titillating, this is not just a story about beautiful women being used to market a product. The real story is about the lengths to which companies will go to exploit loop-holes in the existing law and what implications these campaigns have for tackling counter-insurgency actions at future events. The article will conclude by examining how FIFA and Anheuser-Busch (the official beer sponsor) were so comprehensively ambushed that Bavaria rocketed from unmeasurable before the ambush to the fifth most visited beer website in the UK,  while Nike’s unofficial ‘Write the Future’ campaign was widely viewed as the most successful marketing campaign of the World Cup……”

The Editors have kindly allowed us permission to make the full article available on the blog as a pdf download: WSLRaug10lines[1]

The ‘Bavaria’ girls in question:

DimDim girls:

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Performance enhancement from Doping is for life and not just for Christmas

August 24, 2010



The .pdf file of the full PNAS research findings can be downloaded at:

This interesting story caught my eye this morning. Essentially five scientists from the University of Oslo, Norway (Jo C. Bruusgaard, Ida B. Johansen, Ingrid M. Egner, Zaheer A. Rana, and Kristian Gundersen) have announced their findings in the Proceedings of the National Academy of Science (PNAS) that “Myonuclei acquired by overload exercise precede hypertrophy and are not lost upon detraining,”

In lay speak, while it is common knowledge that the principle “use it or lose it!” applies to exercise and that muscle fibre will atrophy when it is inactive over long periods of time, this research found that muscle fibres retained nuclei substantially longer after overload (training) was discontinued, indeed the scientists even suggested that the presence of this nuclei may also help to delay muscle atrophy.

Where the findings become really interesting for sports lawyers though is in Professor Gunderson et al’s findings on page 3, that contrary to popular opinion, these muscle nuclei do not disappear with the surrounding fibres when the muscle atrophies. If a hypertrophic episode leads to a lasting higher number of myonuclei, this might provide a long-term advantage even if the stimulus for hypertrophy subsides. The advantage could manifest itself as resistance toward detraining-related atrophy and a more efficient response to retraining.”

 And at page 4: “because anabolic steroids facilitate more myonuclei, nuclear permanency may also have implications for exclusion periods after a doping offense.”

This would seem to suggest that the advantages gained from taking performance enhancing substances, particularly anabolic steroids may stay in the body permanently, even when that athlete has demonstrated they are clean after a period of suspension, thereby giving drugs cheats an unfair advantage over other athletes. If these findings are true, they would certainly seem to support the British Olympic Association’s current life ban for Drug Cheats.

It also gives me hope that if my abdomen can somehow remember what a six-pack feels like all those years ago, there is hope for me yet, or at least that’s what I keep telling myself!

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calling all Staffordshire University Sports Law students…..

August 24, 2010


Quick post: If there are any Staffordshire University students (ex- or current students) interested in authoring a chapter in a forthcoming sports law book for schools, can you contact me at:

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If you don’t watch your kids, does that mean I don’t need to either?: An analysis of R v. Upper Bay Ltd [2010] EWCA Crim 495

August 24, 2010


This case was an appeal from a decision on 18th June in the Crown Court at Cardiff, in which Judge Hopkins QC held that Upper Bay Ltd should pay £150,000 for their breaches of s3(1) and s33(1)(a) of the Health & Safety at Work Act 1974.

The case concerns a holiday trip by the Mole family to “Splashlands” in 2005. Splashlands had a policy that all children under 8yrs old should be supervised by an appropriate adult, and that an adult could only supervise a maximum of three children. The pool also operated a policy that pool assistants (lifeguards) should challenge any child in the water not accompanied or directly supervised by an adult and ask them to stand on the poolside until the person responsible for the child is found and supervision is maintained.

That day, Mr Mole took his two sons, Chad (7yrs) and JJ (4yrs) to the pool. Neither boy could swim unaided, although they had both had limited swimming lessons previously. On the day in question, neither boy had armbands or buoyancy equipment. While Mr Mole was playing one-to-one with JJ in the shallow end, unbeknownst to Mr Mole, Chad made his way to a “bubble lounger” situated near the deep end of the pool. A few minutes later he got into difficulties, and had to be rescued by a swimmer. He was subsequently resuscitated by the lifeguards but suffered brain damage.

The question facing the Court was: who was responsible for Chad’s safety?

Mr Mole argued that because there were two lifeguards on duty in that area of the pool (but that both had their backs to the pool and instead focused on the water flume) there was a breach of duty. This breach was further exacerbated when one of the lifeguards (Jo) spoke to Chad in the vicinity of the bubble lounger and told him to return to his dad, but importantly, did NOT ask Chad to get out of the pool in accordance with the centre policy.

By contrast, the pool operators argue that Mr Mole was ultimately liable as he had a duty to supervise his children and he was negligent in not keeping both of them under close supervision and in failing to provide armbands for them. The centre further argued that the duty of pool attendants was merely to supervise and observe the pool and that they had no duty to provide for the security of visitors.

While the Court agreed with the principle that parents had a duty of care to protect their children from harm, and that Mr Mole had failed to some degree on this occasion, the Court also held that Splashlands owed a duty towards Chad.

Importantly, while the centre did not owe a guarantee of absolute safety, it did have a non-delegable duty to ensure, so far as reasonably practicable, that individuals using the facilities provided for them….were not exposed to risks to their safety or health. In particular, practical reality suggests that although parents should be expected to supervise their children, it was foreseeable that children can sometimes escape from this parental supervision. The duty of a pool operator is therefore to ensure that the risk that a child can drown is prevented. On this occasion, the centre failed to provide both adequate supervision for the deep end, and also to observe its own policy requiring unsupervised children to be challenged and to stand on poolside until appropriate supervision is found and it was right that liability should attach against it.

Because these duties are independent of each other and non-delegable, the failure of one party (in this case, Mr Mole – the parent) did not act as a defence for the failure of the other party (the pool).

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Biediger and others v. Quinnipiac University (or why Title IX is a smokescreen and competitive cheerleading doesnt deserve to be a sport!)

August 19, 2010

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 Source:; Case ruling:

When the United States District Court (Connecticut) published its recent verdict on the University’s sports plans, commentators predictably rose up in arms against it. This post attempts to analyse the judgement and to put forward an alternative view about how the District Court got the decision right, despite the implications for women’s sport.

The lawsuit concerned Quinnipiac University’s plans to cut three of its sports teams (women’s volleyball, men’s golf and men’s outdoor track) and to create a new varsity sport of ‘competitive’ cheerleading for their 2009-10 season. Five of the women’s volleyball players and their coach brought this lawsuit alleging the decision to eliminate the volleyball team violates their Title IX rights.

Title IX essentially prohibits sex discrimination by governing equal athletic opportunities for men and women in education. Based on whether an athlete is offered a genuine opportunity to participate in a varsity sport, the test is assessed in two parts [57].

Part one is based on the factors contained in a 2008 Office of Civil Rights (OCR) letter:

  • Whether the sport is recognised by the National Collegiate Athletic Association (NCAA) as a ‘legitimate’ sport
  • Even if an athlete participates on a varsity team, whether their experience is on a par with the experience of other varsity athletes.

Part two then involves a comparison of the % of athletic opportunities provided to women, as against a % of women enrolled as undergraduates at the University.

The Claimant’s case

The claimants argued that the university had calculated both the men’s and women’s varsity rosters incorrectly. Therefore while the university’s figures had demonstrated parity between the sexes, thereby providing a justification of the cuts to the women’s volleyball team, the claimants argued the figures had been artificially massaged and the cuts to the volleyball team infringed their Title IX rights.

The claimants sought to attack these figures from two directions:

  • Increasing the size of the men’s varsity participation figures
  • Reducing the size of the women’s figures (primarily by attacking the figures for cheerleading and athletics)

Although there was some debate over how the varsity rosters were calculated, the claimants ultimately only succeeded in adding one player to the men’s calculations, as the Court held that there were legitimate reasons for the other alterations during the season. The Court did however note that the men’s teams seemed quite small compared to the National average squad sizes, while there was evidence to suggest that the equivalent women’s teams were inflated as against the National average squads. Although the Court suggested that the higher number of female athletes on the varsity rosters were only to boost the statistics and therefore didn’t represent genuine athletic opportunities for the girls, this argument was not supported by any evidence of female athletes quitting or being cut from the team partway through the season.


Ultimately the Court held that while Cross-country, indoor track and outdoor track were separate sports, for the purposes of the Quinnipiac University calculation, athletes on these teams should only be counted once rather than three times. The claimants argued that, in effect, as it was compulsory for female athletes to engage in all three sports and scholarships were not extended to runners who only competed in single events, female athletes were not receiving genuine athletic opportunities comparable to other varsity teams [78].

That said, the Court did suggest that the fact that:

  • the indoor and outdoor track teams were unable to host home meets due to a lack of facilities
  • the coaching structure was split over four teams (unique amongst the Quinnipiac university program)
  • and the indoor and outdoor track teams did not recruit field event participants and therefore cannot be as competitive in teams events as other varsity teams

Were only factors to be considered rather than automatic presumptions against full varsity status. As many of the athletes might have competed on all three teams voluntarily, the Court only subtracted 11 cross country runners from the University total.


The debate over whether ‘competitive’ cheerleading is a varsity sport is much more interesting (and controversial) –

While traditional ‘sideline’ cheerleading focuses on raising spirit by entertaining audiences at games through the use of pom-poms and other apparatus, ‘competitive’ cheer is a more athletic activity that focuses on the gymnastic elements of the discipline. The university’s decision to create a varsity ‘competitive’ cheerleading team that only focuses on the competitive elements rather than to engage in ‘sideline’ activities is to be applauded on one level as providing physical opportunities for women.

The problem that many external commentators seem to be confusing is that Title IX only governs varsity athletic participation opportunities. The fact that a university provides genuine and meaningful opportunities for participation in club and intramural teams and activities is therefore irrelevant to a university’s Title IX obligations.

Cheerleading (in any form) is not recognised as a sport by the NCAA. Indeed, the comments by Jeff Webb (President of Varsity Brands, Inc – an athletic equipment manufacturer) in his testimony at the trial that he started the Universal Cheerleaders Association (UCA) in order to use ‘sideline’ cheerleading competitions as a publicity vehicle to promote and sell his Varsity brand [30], and that the scoring system of the National Cheerleading Association (NCA), which he later set-up to cater for colleges and universities, was intertwined with the promotion of Varsity Brands [32], has massively undermined the credibility of cheerleading as a sport.

Webb did also testify that he was not averse to competitive cheerleading eventually becoming a sport, and that he was also instrumental in creating USA Federation for Sport and Cheer (“USA Cheer”) as a governing body for American sideline cheer in case it did become recognised as a sport. However surely a sport is more than just the activity itself, but rather encompasses all the other ‘non-athletic’ rules, structures and governance that underpins it.

The Office of Civil Rights (that enforces Title IX) seems to agree and interprets what they class as a sport on a number of factors namely:

  • its athletic elements
  • structure
  • administration
  • the competition it fostered
  • and how the experience of participating on a team compared to other varsity sports teams [56].

In 2008, they stated in a letter that cheerleading was not a sport and therefore its athletes cannot be counted under Title IX. Given this, Quinnipiac University’s decision to include its cheerleading squad as a full varsity team despite the OCR letter must therefore be seen as either an overly ambitious vote of confidence in their athletes or a cynical attempt to massage its varsity figures.

The District Court found at [67] that:

  • the purpose of the squad (to compete rather than to entertain) was consistent with other varsity teams, and that the squad members (and indeed the Court at [67]) viewed the cheer squad as competitive athletes
  • The team followed the applicable NCAA rules as applied to other varsity sports, for example concerning funding, coaching structure, medical clearance, training practices, access to facilities and support staff

The barriers to ‘competitive’ cheerleading being recognised were more administrative and related to the governance of the sport:

  • The head coach of the Quinnipiac Cheerleading programme was not qualified under NCAA and NEC rules to recruit any athletes off campus (she later passed these exams in the Spring of 2010).
  • The cheerleaders had to buy their own catastrophic insurance policy as the activity was not covered under the NCAA insurance program, similarly the cheerleaders did not receive locker space like the other varsity athletes (although the court did note that these were only minor factors).

 The main problem however related to the competitive structure of the activity. Although in September 2009 Quinnipiac helped to establish the National Competitive Stunt and Tumbling Association (NCSTA) with seven other universities, that either fielded teams or were planning to sponsor varsity squads, the NCSTA was only a loosely defined unincorporated association with no clear governance, structures, strategy or progressive system of competitions (with sanctions to enforce these rules).

Indeed, over the course of the 2009-10 season, Quinnipiac competed against 5 other ‘competitive’ cheer squads (including 1 ‘all-star’ team from a private gym unaffiliated to any school), 3 ‘sideline’ cheer teams (including 1 ‘ high-school’ team) and used 6 different scoring systems! In comparison, no other varsity sport was subject to multiple governing bodies or judging rules.

The Court sums this up in the following phrases: “If Quinnipiac is serious that its competitive cheer team is a legitimate varsity sport, then it should not tolerate its team playing against non-varsity collegiate teams, non-scholastic all-star teams, and, especially, athletes who are still in high school.” [63]

“In reaching my conclusion, I also do not mean to belittle competitive cheer as an athletic endeavor. Competitive cheerleading is a difficult, physical task that requires strength, agility, and grace. I have little doubt that at some point in the near future – once competitive cheer is better organized and defined, and surely in the event that the NCAA recognizes the activity as an emerging sport – competitive cheer will be acknowledged as a bona fide sporting activity by academic institutions, the public, and the law. As the evidence in this case demonstrates, however, that time has not yet arrived.” [71]

 Despite media hype to the contrary, the cheerleaders were NOT dismissed as athletes, rather they were let down by the governance structures that were supposed to support them. If cheerleading is serious about becoming recognised as a sport, as it was in Noffke v. Bakke, then it is this aspect that needs to be addressed and quickly.

Quite correctly, the court subtracted the 30 cheerleaders from the University’s varsity totals.


  • 274 female (subtraction of 11 cross-country runners and 30 cheerleaders) = 233
  • 166 male (plus one extra ice hockey player) = 167

 233/400 = 58.25% compared to 61.87% of female undergraduates

 This difference of 3.62% represents a shortfall of 38 athletes which is a varsity team.

Ultimately then it was somewhat of a pyrrhic victory for the women’s volleyball team.  The court ordered the university to restore sponsorship of the women’s volleyball for 2010-11 season, thereby bringing the university back into compliance, however it only has to do this for one year, if after that season if it can demonstrate compliance with Title IX in any other way.

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Off-road truck racer kills 8 spectators

August 17, 2010

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A truck crashed during a desert race in California killing eight spectators on 14 August. The unfortunately-named driver, Brett M. Sloppy, lost control of his modified Ford Ranger after going up a feature called the ‘rock pile’ at the California 200 causing him to go airborne, land, and roll straight over the spectators.

Workers push an overturned off-road race truck upright after it went out of control and ran into a crowd of spectators killing 8. Francis Specker/The Associated Press

The 320 kilometre race was organized by Mojave Desert Racing of South El Monte and was held at Soggy Dry Lake Bed in the Johnson Valley Off-highway Vehicle Area on US federal land. The land is administered by the Bureau of Land Management (BLM). The race was part of a seven race circuit. Drivers reach speeds up to 160 kph on the 80 kilometre off-road course. The crowd was standing within three metres of the track with no guard rails separating them from the trucks.

The finger pointing has already begun. Some are blaming the promoter asserting that whilst the sport has its inherent risks, they allege the spectators were too close and that there ought to have been barriers between them and the racers. Others blame the BLM for not properly regulating off-road vehicles noting they issued the permits for the race.

Spectators dying at races are not unusual. Eight people were killed in February 2008 when a car plowed into a crowd that was watching an illegal drag race in Accokeek, Maryland. One of the two racers was convicted of vehicular manslaughter and sentenced to 15 years in prison; the other is awaiting trial. Six people were killed in June 2007 when a dragster went out of control and smashed into spectators during a fundraising festival in Selmer, Tennessee. The driver was convicted of misdemeanor reckless assault charges and sentenced to 18 months probation.

The California 200 was intended to test the limits of off-road driving. Instead it will test the criminal culpability of the driver and race organizer, the duty of care owed by the land manager and the organizer to the event’s spectators, and how much risk is to be reasonably assumed by the spectators. This case would hinge on what the courts consider reasonable or reckless in the circumstances. The ghosts of Wooldridge v Sumner [1963] 2 QB 23 would be amused.

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Did BC throw a $6 billion Olympic party for itself?

August 13, 2010


Simon Fraser University associate professor Kennedy Stewart has written an erudite piece in the Vancouver Sun examining the extent to which British Columbia tourism benefited from hosting the 2010 Vancouver Winter Olympic Games.

As noted in a July 17 post on The Canary, PrincewaterhouseCoopers released a report on the economic impact of the Games in 2009. The BC government has been making hay of the report ever since by selectively interpreting and disingenuously representing its figures.

Regarding tourism, the PricewaterhouseCoopers report states that ‘the hosting of the 2010 Winter Games does not appear to have directly drawn significant numbers of visitors into BC and Canada between 2003 and 2008’ but predicts that ‘visitor numbers are expected to increase significantly during the Games.’

Dr. Stewart researched Vancouver International Airport (YVR) passenger figures and discovered that YVR passenger traffic declined approximately 8% in the month of February from 2008 to 2010. Of the 1.25 million passengers who travelled in 2010, only 22% had an international destination – 27,000 fewer than in 2008. In other words, there was a proportional rise in domestic air traffic and a net drop in overall air traffic.

Relying upon these figures, Dr. Stewart suggests that the majority of the 2010 Winter Games’ spectators lived within driving distance of the Olympic venues. He notes that this theory needs confirmation but, if it is true, then ‘British Columbians spent $6 billion to have a giant party for themselves.’

This is compounded with the forecast reported in The Globe and Mail that Whistler was to be victim of an ‘Olympics aversion factor’ and experience a 68% drop in skier visits in February 2010 (actual figures have unsurprisingly not been released) and, even further, wasn’t anticipating an Olympic-related business boost.

If this is all true then British Columbia isn’t only The Best Place on Earth (its self-proclaimed and immodest brand) having just hosted what IOC President Jacques Rogge described as an ‘excellent and very friendly Games’ but these are yet more indicators that BC succeeded in pulling off the biggest economic con job in its history.

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Blue Bombers ban the beer-cup snake

August 11, 2010


This is admittedly on the fringe of lex sportiva but the Winnipeg Blue Bombers, a professional football team based out of my home city, last month banned the beer-cup snake from its stadium. Constructed from thousands of plastic beer cups and stretching over 30 rows, the beer snake was conceived at a 9 July losing game against the Toronto Argonauts.

Beer Cup Snake at Winnipeg Blue Bombers football game on 9 July 2010

The beer snake met its demise when fans tore at its tendrils and threw the stacked cups towards the field. Blue Bombers staff allege the lobbed cups caused some minor injuries and generated a flurry of complaints from fans who were in the line of fire and sprayed with stale beer.

Canadian football does not have a history of hooliganism, spectator disorder or crowd disturbance.

Citing safety concerns, Winnipeg Blue Bombers president Jim Bell banned the beer-cup snake from ever reappearing and beefed up the presence of police in the most raucous sections of the stadium at subsequent games.

Defenders of the snake argued that the snake was not at fault but rather it was the cups which made up the snake being thrown which was the problem. This subtle distinction however fell on deaf ears.

In discharging the duty of care owed to spectators under the Occupiers Liability Act to take reasonable care in the circumstances to ensure that fans are reasonably safe, the team nipped this snake in the grass.

Check out the 31 second YouTube video at

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Competing views of checking in hockey

August 4, 2010


A study recently published in the British Journal of Sports Medicine suggests that body checking causes fewer injuries than run-of-the-mill accidents in ice hockey.

The results of the University of Buffalo study showed that unintentional contacts accounted for 66.0% of overall injuries compared with 34.0% from intentional contacts and that serious injury such as fractures, dislocations and concussions resulted more often from such unintentional collisions.

The findings were based on a five-year study of approximately 3000 boys aged 4-18 years who played in three levels of competition – house, select and representative – in Burlington, Ontario. This represented 13,292 player years. There were 247 reported injuries.

The study is garnering considerable media attention. At a time when youth leagues are reconsidering their position on body checking, this report is fodder for those who wish to keep it in the game.

It is in contrast to a study by Carolyn Emery PhD, associate professor of sport epidemiology at the University of Calgary, published in the June 9 issue of the Journal of the American Medical Association which showed that 11-12 year old hockey players who played in leagues that allowed body checking had a 3-fold increased risk of game-related injuries, including severe injuries and severe concussions, compared to those who played in leagues which did not allow body checking.

Dr. Emery estimates that if body checking were eliminated in 11-12 year old ice hockey that there would be 1000 fewer injuries and 400 fewer concussions in Alberta alone.

Notwithstanding these findings, University of Buffalo professor of psychiatry and rehabilitation sciences Barry Willer PhD of the BJSM study minimizes the impact of body checking to kids’ health and says that ‘There is an image of body checking as a form of violence that is condoned by the game of hockey [which it is]. However, this study found that body checking did not account for a large proportion of injuries.’

This is all important stuff.

But it is equally important to distinguish between those risks truly inherent and integral to the game and those which are manufactured. There is a difference between getting hit by a puck or accidentally colliding with another player versus getting taken out of the game and into a hospital as a result of a check from behind or a blind hit.

On a different note, it is curious that American researchers are studying Canadian children playing their national winter sport and publishing their results in a British medical journal.

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‘Pukemon’ baseball fan jailed over vomit attack on off-duty police officer

August 3, 2010


The Canary reported on 31 May 2010 about the strange case of Matthew Clemmens who pled guilty to charges of simple assault, disorderly conduct and harassment for his conduct when he vomited on an off-duty police captain and his 11 year old daughter in the stands during a Philadelphia Phillies baseball game on April 14.

Matthew Clemmens mugshot

After Clemmens’ friend was ejected for spitting, Clemmens was sitting alone behind the victims when he answered his cellphone and allegedly said, ‘I need to do what I need to do. I’m going to get sick’ whereupon he then put his fingers down his throat and puked on Michael Vangelo and his daughter before punching Vangelo four or five times to the face.

Clemmens apologized profusely to Vangelo in court but Common Pleas Court Judge Kevin Dougherty was not impressed. Dougherty J stated that Clemmens had ‘invaded the opportunity to enjoy the American pastime of baseball’ and, as if to impart some judicial baseball wisdom before announcing the sentence said, ‘You struck out.’

Dougherty J sentenced Clemmens to one to three months in jail, two years of probation, 50 hours of community service which he sagely suggested cleaning toilets at Citizens Bank Park, and to pay $315 in restitution – the cost of the Vangelo’s five tickets – which the police captain plans to donate to charity.

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