Archive | October, 2013

To fight or not to fight that is the question

October 30, 2013

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By Hafiz Karim – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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

October 30, 2013

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By Kelsey Petersen – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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Difficulties in distinguishing disabled athletes

October 30, 2013

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By Mark Brade – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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In Loco Scholam: Analysing Woodford v. Essex County Council (and others) [2013] UKSC 66

October 25, 2013

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Link to the full Supreme Court Judgment

Glancing quickly at the 13yrs since the initial swimming accident, you may be forgiven for thinking that Woodford v. Essex CC contains more history, politics, drama and civics than physical education. Indeed, it is perhaps somewhat surprising that despite Wednesday’s Supreme Court ruling, 4 other trials and 2 Health & Safety Executive reports, the case is still only in its initial stages! However delve a little deeper and this somewhat tangled web belies the case’s considerable importance for determining and apportioning negligence liability through primary or non-delegable duties.

The infographic below may help clarify the current litigation (Click here to download as a PDF version): Woodlands

What happened?

At its core, the case concerns ten-year old Annie Woodland, who suffered a serious hypoxic brain injury while taking part in a school swimming lesson on 5th July 2000.  As part of their National Curriculum obligations, Whitmore Junior School had contracted with Beryl Stopford (trading as Direct Swimming Services) to provide swimming lessons for their pupils at the local pool in Essex. Mrs Stopford in turn assigned two employees to deliver the lesson and be present as a lifeguard. The class was streamed into two groups, with the claimant (Annie) swimming with the more experienced group from the deep end into the shallows. Tragically, during the lesson, the claimant got into trouble and was found “hanging vertically in the pool” and in need of resuscitation.

The case arises because the exact nature of who found her and the quality of the supervision leading up to this point has yet to be determined by the courts and as such is fiercely disputed by the parties. In the meantime, both parties are arguing about what duties are owed rather than establishing the facts.

  1. Round1 (Claimant 0 – Defendant 1): Originally in 2007, the solicitors for the 1st Defendant – The Swimming Teachers Association (the trade body that provided insurance for both Mrs Stopford and Ms Maxwell) admitted full liability for the incident. However in 2009, when new solicitors (Fishburns) took over the case, Fishburns immediately retracted this admission, leading to litigation on whether an admission of liability pursuant to CPR r.14.1A(5) could be retracted? (the Court of Appeal subsequently held it could, particularly in the interests of justice, and the CA judgment contains a good summary and analysis of the factors that would need to be considered).
  2. Round2 (1-1): Perhaps emboldened by this conclusion, Essex County Council tried to argue that responsibility lay solely with the STA for the alleged negligence, as there was no direct vicarious or employment relationship between the school and the ‘independent contractors’ (Mrs Stopford, Ms Maxwell and Mrs Burlinson). By contrast, the claimant argued that the school had a ‘non-delegable’ duty of care towards its pupils.

 

Non-Delegable duties 

Both the High Court (Langstaff, J) and the majority of the Court of Appeal (Tomlinson & Kitchin LJJ, Laws LJ dissenting) stated that the education authority did not owe a ‘non-delegable’ duty, indeed the Court of Appeal suggested that they were:

“precluded from recognising the non-delegable duty of care for which the Appellant has argued on this appeal….[given] the imposition of such a duty would have significant implications not just for all education authorities but also for all those who operate schools and hospitals…” [33]

The recent decision of the Supreme Court overrules this and Lord Sumption (giving the leading opinion) summarises non-delegable duties at [23] as applying where:

  1. The claimant is especially vulnerable and/or dependent on the protection of the defendant against the risk of injury

  2. There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which places the claimant in the actual custody, charge or care of the defendant, from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

  3. The claimant has no control over how the defendant chooses to perform these obligations, i.e. whether personally or through employees or through third parties

  4. The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

  5. The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

 

Implications

While Lord Sumption may have queried that:

“It must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation.” [2]

echoing Lord Justice Tomlinson’s earlier perceptive comments in the Court of Appeal that:

“If it is, the authority’s admission that the class attended for a swimming lesson at the pool under the control and supervision of the Second Defendant’s servants or agents may not tell the whole story. There would be scope for enquiry as to the extent to which the class in such circumstances remained in the care of the teacher from the school. The notion that the authority by its employees had no control over the manner in which the swimming lesson was conducted or supervised may be wholly unreal. The circumstances may be such that it is quite unnecessary to be searching for a non-delegable duty in order to impose liability upon the authority.” [36, CA]

The judgement does have important policy implications for schools and other providers. Interestingly, it appears that in practical terms, the law has finally caught up with what teachers and education professionals have been preaching for years, namely that schools should be ultimately responsible for the safety of pupils.

Indeed, guidance from AfPE (Safe Practice & Physical Education, (2012) [3.4.26]) in relation to the earlier CA decision stated that the (2012) judgment,

“does not alter a school’s continuous duty of care to students where activities take place on site, whether delivered by a teacher or support staff, such as a visiting coach, because the workforce regulations demand that the coach is managed by the teacher so the teacher maintains responsibility even though someone else teaches the class.”

What is now clear from the Supreme Court judgment is that schools utilising specialist coaches or support staff to deliver aspects of the National curriculum may retain a liability that goes beyond performing initial recruitment and suitability checks for the role, and is akin to a ‘non-delegable’ duty to protect the safety of the pupils regardless of whether any contractual or employment relationship existed with the provider. Importantly, this duty extends to activities performed off-site, by non-teachers, unsupervised by any school staff, as long as the purpose of the activity can explicitly be linked to traditional school or national curriculum obligations.

Lady Hale argued at [42] that this was not as big a policy change as it might look:

“large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors. Nor can it be an objection that there may be more than one tortfeasor to hold liable.”

In making this statement, Lady Hale is explicitly countermanding Lord Justice Tomlinson’s suggestion from the CA judgment that:

“The days are long gone when we ignored the incidence of indemnity insurance. One would expect the costs charged to the Fourth Defendant [Essex CC] for the service provided by the Second Defendant [Beryl Stopford] to reflect the cost of the Second Defendant arranging adequate insurance. The only purpose of the present appeal is to ensure that liability is brought home to a defendant with sufficient resources to meet the possible award.” [34, CA]

Lady Hale’s approach seems much more legally justifiable and more accurately reflects the purpose rather than the delivery mechanism of the activity. Lady Hale also suggests that this reasoning is more likely to be accepted by “the man on the underground” [29] (it would seem that riding on omnibuses is so 20th century!)

That said, Lord Sumption was careful to limit the extent of this liability, suggesting at [25(3)] that schools:

“Are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions…..They will not be liable for the defaults of independent contractors providing extra-curricular activities outside of school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours…”

Of all the areas of the judgement, this latter section gives the most potential for future litigation, as potential claimants will no doubt argue that an educational field-trip during the school day could be equated to a core function. Whether it will or not, is ultimately a question of fact, (and possibly irrelevant given the presumed concurrent vicarious liability of school staff accompanying the pupils). In theory at least though, this principle is an expansion of liability that education and healthcare providers would be well advised to note.

In conclusion, the Courts may have rightly disregarded the oft-cited loco parentis as unhelpful, given the very different responsibilities of parents and schools, however I would suggest the legacy of the Supreme Court judgment is to create a new maxim: in loco scholam (in place of the school), let’s see if that catches on……

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High on the Horse – Doping in Horce Racing

October 21, 2013

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By Miranda Schmold – Thompson Rivers University 3L JD Student

Ben Johnson, Marion Jones, Ross Rebagliati, Alex Rodriguez, Joe Canseco, and of course, Lance Armstrong, have all become household names, not only for the achievements in their respective sports, but also for the doping scandals that have propelled many of them to worldwide notoriety. These world class athletes, and in some cases, Olympians, have all experienced, in one way or another, the public outrage at their use of performance enhancing or banned substances. But what if we started to associate doping with athletes like “I’ll Have Another,” “Animal Kingdom,” “Super Saver,” or “Mine that Bird”? These of course are neither the names of human athletes, nor have these athletes been associated with doping, but rather are the names of the winning horses from the past four Kentucky Derby horse races. I use these names as examples of what we could start seeing in terms of the newest athletes associated with doping in sports.

The horse racing community was rocked by a doping scandal on April 9, 2013 when fifteen horses in Moulton Paddocks, UK tested positive for the prohibited anabolic steroids stanozolol and ethylestranol. Although the use of performance enhancing substances in racehorses is nothing new, what brought this scandal to the world stage is the fact that these fifteen horses are part of the mega-racing enterprise belonging to the monarch of Dubai, Sheikh Mohammed bin Rashid al-Maktoum. Sheikh Mohammed established the horse racing operation, Godolphin in 1992, which has since grown into 5,000 horses, in stables across 12 countries, who compete in races worldwide. Godolphin is worth billions and boasts winnings from over 200 top-level races. Mahmood Al-Zarooni was the trainer of these horses, who at the time was operating out of Godolphin’s Newmarket stables and was the one everyone looked to for answers.

The British Horseracing Authority (BHA) is the United Kingdom’s regulatory body. In a tribunal held near the end of April 2013, the BHA found that Al-Zarooni had breached their Rules of Racing. Although Al-Zarooni claimed he was not aware that he was using prohibited substances, the BHA nonetheless found him guilty. A BHA disciplinary panel gave Al-Zarooni an eight year ban and the horses that tested positive are not permitted to race for six months. Sheikh Mohammed has since outlawed the import, sale, purchase and use of steroids in equine sports in the United Arab Emirates (UAE) and has made the use of anabolic steroids on sport horses a criminal offence. This has had the result of implementing even stricter rules than those employed in Britain.

For many in the horse racing world this has raised the question of, what can be done to achieve global uniformity in anti-doping rules in the sport of horse racing? Of course many associate the World Anti-Doping Agency (WADA) and its World Anti-Doping Code (WADC) to an international anti-doping regime applied to sports played by humans, but what about a regulatory authority governing those sports involving non-human animals? Horse racing does have an international body called the International Federation of Horseracing Authority (IFHA), but it mainly oversees breeding, racing and betting, not doping.

One option could be for the IFHA, BHA and other horseracing bodies to sign onto the World Anti-Doping Code. In 2003 the International Federation of Sleddog Sports (IFSS) did just that. The IFSS established and implemented their own anti-doping rules and procedures in compliance with the WADC, which apply to both human and canine athletes. In an effort to establish international and uniform anti-doping rules that apply to both human and equine athletes, it would benefit those involved with the sport of horse racing to either develop their own international anti-doping agency, or align themselves with the World Anti-Doping Agency and comply with their anti-doping code.

Establishing international and consistent anti-doping rules and procedures for the sport of horse racing has the benefit of not only protecting both human and horse athlete, but also maintaining the spirit of the sport. Through the promotion of anti-doping in sport, WADA seeks to preserve the spirit of sport, and signatories sign on with the understanding that doping is contrary to upholding this spirit. WADA values ethics, fair play, honesty, health, and respect for rules and laws, among others. Becoming a signatory to the WADC would benefit the sport of horse racing in many ways, again, through the protection of the health of their athletes, both human and non-human animals, and through embracing values of ethics, fair play, honesty, and others.

In an effort to keep names like “I’ll Have Another,” “Animal Kingdom,” “Super Saver,” and “Mine that Bird” out of the media and the doping scandals that seem to be plaguing the sporting community, horse racing should look to the development of an international anti-doping organization or join forces with the already established governing authority of WADA, this would hopefully lead to stories like the one involving Sheikh Mohammed becoming less frequent.

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US College football players get paid for the first time

October 21, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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EA Settles with former NCAA Athletes for $40 Million

October 21, 2013

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By James Gill – Thompson Rivers University 3L JD Student

About four years ago, Ed O’Bannon launched an anti-trust lawsuit against the National Collegiate Athletic Association (NCAA) and its licensing company for the use of images of himself and other high profile college athletes. The lawsuit alleged that the defendants agreed to block the athletes from getting paid for their likenesses in video games produced by the infamous video game maker, Electronic Arts, after they left college. Later, his action was combined with Sam Keller’s, which sued the NCAA and Electronic Arts on similar grounds. Recently, Electronic Arts settled out of the action for $40 million. The settlement also covered another named defendant, Collegiate Licensing Co., leaving only the NCAA as the sole defendant. 

Upon participating in college athletics, the athletes are required to sign an agreement, which essentially gives up their rights to profit from their images and likeness. The agreement applies not only while they are athletes competing in the collegiate league, but also after graduation.Some have said that the agreement is a product of the NCAA’s effort to deprive the athletes of their compensation for their images. Such an agreement is a part of the league’s scheme that prevents college athletes from being compensated for their athletic contributions. Indeed, the NCAA regulations provide that athletes are ineligible for participation in sports where there has been some form of payment to the athlete in a number of circumstances. For example, athletes are ineligible for participation in NCAA sports if they have ever taken pay or a promise of pay for competing in the sport (Bylaw 12.1.2), or if they have ever accepted any pay for promoting a commercial product of service or allowing his or her name to be used for promoting a commercial product or service (Bylaw 12.5.2.1 and 12.3.2.2).

But could the argument not be made that this is a bad bargain? As noted by Forbes magazine contributor Patrick Rishe, young people who are still in their teenage years are put into a situation where, at the young age of 17 or 18, they are being asked to sign away some of their legal rights related to their athletic abilities.In many jurisdictions, such young people are still considered minors.Of course this is likely done by way of a guardian, or some other similar means. The point is that these are young people signing away significant rights, which in many cases have the potential to convert into significant value.

Further, many have argued that as the products being sold and drivers of much of the revenue for a multi-billion dollar sports league, these athletes ought to be entitled to compensation beyond that of receiving an education. In support of this notion, it is often stated that these athletes are no longer competing in an amateur league. In fact, an attorney for the plaintiffs in O’Bannon stated that these athletes are ‘semi-pro’ or ‘pre-professional’. If this is true, then why shouldn’t the model for NCAA athletes be revised in order to follow some other semi-pro leagues?

A common counter-argument is that the athletes are compensated by other, non-monetary means. Specifically, many of the athletes are given the opportunity to receive an education and get the exposure to win a professional contract in the ‘big leagues’. Some have even stated that monetary compensation would push college athletics further from academics, whereas it should be moving in the opposite direction. But is that fair? Of course, one cannot discount how invaluable an education is. Nor can one discount the possibility that some of these athletes will go on to obtain lucrative professional sports contracts. However, the vast majority of the athletes do not go on to participate in professional sports. It might be further argued that such an arrangement is disproportionate given the enormous revenues of the NCAA ($871.6 million in revenue for 2011-12).

In the end, the settlement by EA stands to compensate the athletes for the use of their likeness and identities. Although this may not necessarily be direct compensation for their participation in the sport, perhaps it stands as a starting point for a change. One thing that is for sure is that the settlement has forced some stakeholders to reevaluate their positions on the matter, as evidenced by EA deciding to pull production on the upcoming version of the NCAA football game.

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Help or Hurt? Understanding Canada’s Bill S209 and Its Impact on MMA

October 21, 2013

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By Germaine Watkins – Thompson Rivers University 2L JD Student

Combative sports are growing in popularity in Canada. Pro mixed martial arts (MMA) has found a large audience in Canada. As of April 2012, the Ultimate Fighting Championship’s (UFC) four highest grossing box office events were on Canadian soil. However, up until June of this year MMA was illegal under section 83 of the criminal code. In spite of this, several provinces hosted MMA events turning a blind eye to the illegality of these events. Participants, promoters, organizers and spectators who attended these MMA events were subject to conviction under this section.

Recognizing this reality and in light of the growing popularity of MMA in Canada, the government passed Bill S 209 amending the Criminal Code.

There are several pros and cons to Bill S 209.

In a positive light, the new Code has created further clarity towards understanding what activities are considered prize fighting. The new provision expands the list of exceptions to the offense to include combative sports that fall under IOC designation. These features assist in drawing the line between sports and an illegal street fight.

On the negative side, Bill S 209 puts MMA in no man’s land in many provinces. Bill S 209 went to royal assent on June 19, 2013. In its wake, decision making power concerning the future of MMA has shifted to the provinces. Under the new law, MMA is excepted from criminal sanction, “where permission is granted by an athletic board, commission or similar body established under provincial sport legislation.” While this provision creates a pathway for the future legality of MMA, at present the provision has actually undermined the sport by removing the validity commissions previously set up under the authority of municipalities.

In Moncton, New Brunswick, the Moncton Boxing and Wrestling Commission has been the key body sanctioning MMA.The commission receives its authority from Moncton city by-laws. The by-laws exhaustivelyset out regulations governing various aspects of the sport from registration of fighters to fee schedules for officials.Although this organization has functioned effectively for several years, at the time of writing the Commission had suspended its activities.In the absence of New Brunswick legislation the Commission is without the proper authority to operate.

Earlier this year a similar situation arose in Weyburn, Saskatchewan. The municipality, under the Cities Act, sought to form the Central Combative Sports Commission for the sanctioning of MMA.However, before the Commission was finalized the Province stepped in and declared that such a move was in breach of the proposed amendments of the Criminal Code as the body lacked the appropriate authorization from the Province.

Bill S 209 has not only put MMA on hold in various areas, it has inadvertently stifled the development of the sport by criminalizing certain martial arts used in MMA. Under the new Criminal Code pro muay thai and pro kick boxing are not given the same exemption as MMA. This is particularly interesting as the techniques used in these sports make up a large part of MMA. A pro MMA fighter can execute a specific kick combination in an MMA fight, but performing the same moves in a pro kick boxing match is a criminal act.

Many MMA fighters improve on fundamental skills by participating in top caliber environment provided by pro kickboxing and pro muay thai matches.These matches provide the opportunities for fighters to develop specific skill sets found in MMA on a high level. As well, the growth of MMA has been partially fueled by the development of these sports. Fighters will often come to MMA leagues after a career in kickboxing or muay thai. By failing to give exemption to these sports Bill S 209 may turn out to stunt the growth, if not change the face of MMA.

While Bill S 209 may have been passed with the intention of championing mixed martial arts in Canada, to date it has had mixed results. With the revised Code centralizing decision making authority to the provinces rather than at a local level, it has had the unintended effect of creating a vacuum to the extent that provinces have yet to legislate athletic boards or commissions to oversee MMA. The future of MMA in Canada remains to be seen as provinces begin to regulate the sport and kinks of the new legislation are worked out.

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Britain’s Steroid Dilemma – Not dangerous enough to criminalize but dangerous enough to be made safer

October 21, 2013

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By Kris Henderson – Thompson Rivers University 2L JD Student

The British Health Authority recognizes the adverse health effects of anabolic steroid use on the population and aims to make the population healthier. Their recommendation, however, is not a ban on all performance and physique enhancing substances. The National Institute of Health and Care Excellence (NICE), is instead recommending that gyms and other athletic training facilities provide sterile needles for individuals using intravenous anabolic steroids all in an effort to reduce the transmission of blood borne pathogens.

Providing clean needles for intravenous drug users is not a new concept, nor is it without its critics. The Vancouver safe injection site – InSite – located along East Hastings in the heart of Vancouver, Canada not only provides drug users with sterile needles, but staff provide first aid to individuals who fail to recognize their limit and overdose. Usually this consists of simply providing oxygen to the user. Helping two overdosed users in the safe injection site saves the provincial health authority the equivalent of InSite’s monthly operating budget as of 2010. The criticism of the site being open is therefore not cost of operation. The question is really what effect is it having on drug use? Drug use rates in Vancouver have not, by most accounts, seen a decrease since InSite began operating. Proponents of InSite, however, claim the true benefit comes from the reduction in blood borne disease transmission through the reduction of needle sharing. Other health authorities in Canada have also adopted clean needle programs to certain extents, all with differing measures of success.

It is easy to see that the potential clientele being served by this program in Britain would be drastically different that those being served by the clean needle programs in Canada. Individuals injecting themselves with anabolic steroids for the purpose of better athletic performance are obviously not the same ‘vulnerable population’ of heroin and other hard drug addicts being served in Canada. But to what extent does that matter? According to the NICE report, an estimated 70,000 people aged between 16 and 59 in England and Wales are thought to have injected anabolic steroids in the last year. While it is certainly not a staggering percentage of the population, it has proven sufficient to get the attention of the national health authorities.

Even if the clean needle program has no effect on user rates, any reduction in blood borne disease transmission can be measured as a success, both from a moral and government financing standpoint, as any publicly funded health care regime would see a decrease in costs associated with the treatment of these diseases.

This latest recommendation from NICE is sure to once again draw the ire of the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC). Drug laws in England were heavily criticized during the lead-up to the London 2012 Olympics. Unlike previous host countries that stiffened criminal laws regarding personal possession and use of anabolic steroids and human growth hormones, the British government refused to criminalize possession and use of many performance enhancing anabolic steroids. The government stance was that athletes who use these substances during competition should face severe penalties such as lengthy bans from competition, but not criminal sanctions.

The NICE recommendation will likely affect the use of steroids in the UK, but what are the broader implications regarding the public perception surrounding their use? While I have no hesitation in accepting that the program will likely reduce the transmission of blood borne diseases such as various strains of Hepatitis and the HIV virus, the provision of sterile needles to steroid users may have a larger impact on sport and culture in the UK.

The unintended consequences of reducing the risks associated with steroid injections is very different than that of hard drug use. Individuals crippled by hard drug addiction, it is argued, are less likely to consider the sterility of their needle before making their next injection, or even their first injection. Potential or regular steroid users, however, see a reduction in the potential health risks to an activity that is still legal. The government position is that users should face heavy penalties though steroids aren’t so dangerous as to warrant its criminalization but dangerous enough to be made safer.

Will we see anabolic steroid use in the UK rise as a result of implementing a sterile needle program? Only time will tell. What we know for sure is that those looking to prevent athletes from using anabolic steroids in Britain through deterrence will be fighting an even steeper uphill battle, with an even greater reliance on the WADA.

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FIFA Considers Move to Winter for Qatari 2022 World Cup

October 4, 2013

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By Chelsea Dubeau – Thompson Rivers University 2L JD Student

In 2010, FIFA, the international governing body of football, awarded the 2022 World Cup to Qatar. The agenda on this week’s meeting of the FIFA Executive Committee meeting is a discussion of the “period of the competition” of this event.

According to the FIFA Statutes, the Organizing Committee follows a “fair and transparent bidding procedure” with “the objective of securing the best possible hosting conditions.”The temperature of Qatar in the summer can reach up to 50 degrees Celsius, prompting concern from the FIFA medical chairman.In the interest of safety for all participants, FIFA is considering moving the month-long tournament to the winter. FIFA’s upcoming decision is unprecedented, as the World Cup has been held during the months of May through July since its inaugural event in 1930.

Football Federation Australia (FFA) recently declared their intention to sue FIFA if the games are officially moved to the winter.Australia was one of the unsuccessful countries that lost during the 2022 bidding process. According to FFA Chairman Frank Lowy, the Australian bid was put forward according to the FIFA requirement that the tournament must occur in June and July. Thus, their bid was put forward under false pretenses.

FIFA has responded to the FFA allegations by saying that the Committee is acting within its governing authority. FIFA’s President, Joseph S. Blatter, has stated that all bids were put forward under the same Bid Registration Agreement, which does not outright say that the games must take place during the summer.Therefore, FIFA does not owe Australia compensation, nor will they owe any other party affected by the move.

FIFA is relying on issues of interpretation. As the Bid Registration Agreements have not been made public, the exact terms of the contract are unknown. However, Blatter has stated that the Agreements refer to FIFA’s wishes for the event to occur in summer, not that the event must be held during this time. As such, no representations were made by FIFA that the World Cup is only a summer event.

If the FFA decides to pursue their legal challenge, it will be up to the courts to rule whether FIFA’s interpretations of the Agreements fit within a fair and transparent process. FIFA’s choice to rely on semantics is questionable, and this argument may not succeed in a court of law. Every tournament in the history of the World Cup has occurred in the summer, and the upcoming events that have been scheduled uphold this tradition. The logical conclusion of a reasonable person, or in this case a reasonable bidder, would be that FIFA intends the games occur in the summer, even in absence of the word ‘must’ in the document.

In addition to the FFA, there are many other interested parties that may pose a challenge for FIFA and the Executive Committee if the decision is made to move the World Cup to the winter. The move will interfere with the season for the European leagues, and the IOC has expressed concerns related to the timing of the Winter Olympics.

FOX Sports won the American broadcasting rights to the 2018 and 2022 World Cup, paying over $1 billion for the deal.Due to the fact that it has never happened before in the history of the event, it is not likely that FOX considered the change that the broadcast could happen in the winter. With this change, it is now possible for the month-long event to interfere with the NFL schedule, and it could even overlap with the Superbowl. Would FOX have put forward such an impressive bid, knowing that it would be competing for viewers against the most-watched sporting event in the United States? It would not be surprising if FOX proceeds with an action based on a misrepresentation of the contract. FOX can assert that they were induced to enter the contract based on an untrue representation that the event would occur in the summer.

While the decision has not yet been made to move the World Cup, it is clear that there are multiple considerations that FIFA must keep in mind before the final decision is made. Regardless of the outcome, one can expect that this will not be the only challenge faced by the Committee leading up to the 2022 World Cup.

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