Archive | October 21, 2013

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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