Archive | November, 2013

Owning a Player: Fantex and the Arian Foster IPO

November 23, 2013

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By Kevin Robertson – Thompson Rivers University 3L JD Student

A vast number of people grow up dreaming about becoming professional athletes but few ever reach that level.Instead they are relegated to playing sports recreationally, cheering on their team, and participating in a fantasy league.In a fantasy league a person acts as a combination of owner, general manager, and coach in an effort to run their team better then their opponent.While pride may be one the line, oftentimes there is also money up for grabs.

In American football, due to the constant injuries and changing focus of teams (say from running to passing, or vice versa) it is often necessary for a person to add or drop players based on how a person believes they will perform in future games.In a sense, a person is stating their belief over how the player will perform in the future.Simply put, if a person believes that a player will do well then they will play them.Alternatively, if the person believes that the player will not do well then they will not use them. 

In this way, a fantasy football league is similar to how a person plays the stock market.Buy the stocks that you think are going to perform well and sell the stocks that you believe are going to do poorly.When you consider the dedication that people put into researching their choices the parallels become even more apparent.

However, things are about to change.Fantex is launching a new program whereby for $10 a person can buy a percentage of a player’s future earnings. The first player to sign on with Fantex for this program is NFL Texans running back Arian Foster.In exchange for giving Fantex a 20% share of his future football earnings he will receive $10 million USD.Fantex will then take the 20% share and divide it into one million shares, which will then be sold to investors through an Initial Public Offering (IPO).

As with all things of this nature, someone is going to lose money.It’s possible that Foster will go on to have a healthy career and thus earn those who own his stock a healthy profit but it is also possible that he gets injured in his next game and never plays again.

What is fascinating and will be a huge point of contention in the future is that the contract does not only include his NFL salary but also includes any related fields.In defining related fields the prospectus for the stock gives a few examples such as broadcasting and coaching.That being said, there are a lot of things that could fall into the grey area and possibly result in disputes.If Foster opened a sports bar, which was named after him, could that be considered a related field?What about if he was selling autographs?

As well, there are a couple of other things that could pose problems in the future.The contract does not expire so Foster will be giving 20% of football related income to Fantex for the rest of his life.While the freedom of people to enter into contracts on their own volition is well established, the shear length of the contract will likely bring up concerns.One issues is that Foster has in effect “sold his soul to the devil” for a one time monetary payment.The contract only ends if he pays back the full amount plus a penalty.He cannot get out of the contract without Fantex’s agreement.In this way, if he retires within 2 years of signing the contract for any reason other than injury, illness or medical condition Fantex can unilaterally cancel the contract and demand repayment of $10.5 million USD.

In Foster’s case his contract might only be for 20% of his future income but what would happen if it were for more?Say 50% or 100%?There is something morally wrong for a society that has moved past slavery to then allow a person to become indebted to another for life.

It is unclear whether college players will sign up with Fantex.While the NCAA has been adamant that they are not interested in paying the players for their services, it would be hard for a lot of the players to turn down a lump sum payment even if the terms were not favorable in the long run.

In fact, it would be possible for a college player to game the system in a certain situation.Taking Foster’s contract as an example, a college athlete could get a lump sum payment and then pay it back (along with the penalty) with a signing bonus if they make it into the league and get a large contract.A strategy such as this would be very smart if the player knew that they had an even larger endorsement deal coming in the near future.Once again, legally this would be a grey area in that Fantex is registering each player under the Securities and Exchange Commission, which has strict rules governing insider trading.As well, with college players there may be issues due to them being minors.

Like many things in sports, the IPO into Arian Foster will garner a lot of money for some people, even if it isn’t in the best interest of the game or society.

The prospectus for the IPO is available to read here and contains some very interesting information not only on his health but also his contracts with both the NFL and endorsement deals. 

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The Right to Compete: Transgender Athletes

November 23, 2013

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By James Gill – Thompson Rivers University 3L JD Student

Issues regarding transgender students have recently been an area of significant discussion and debate. Early in 2013, California became the first American state to formally protect the rights of transgender students attending elementary and secondary schools in a number of ways. Specifically, Bill 1266 addresses a number of issues faced by transgender students during their schooling years including their ability to choose which restroom or locker room they use and, perhaps more relevantly, whether they compete in boys or girls sports .

Although California is among the first states to legislate on these issues, the rights of transgender athletes has long received much attention.For example, the 1977 case of Richards v United States Tennis Associationinvolved a transgender tennis player seeking an injunction against the United States Tennis Association which would prevent the Association from requiring the athlete to take a sex determination test before allowing her to compete as a woman.

In finding in favour of the athlete, the court found that such a requirement was grossly unfair, discriminatory, inequitable, and a violation of her human rights under the relevant state’s human rights laws. More recently, in 2013, a mixed martial arts athlete, Fallon Fox admitted to having undergone male-to-female gender reassignment surgery a number of years prior to competing professionally. Naturally, this sparked a series of heated statements, debates, and opinions regarding the use of hormones for hormone therapy, competitive advantages, and so forth. In this instance, however, the issue had been decided before it became public; the Florida State Boxing Commission licensed Fox, allowing her to compete in its jurisdiction, despite the non-existence of a codified transgender policy.

Prior to the Fox incident, the Association of Boxing Commission’s medical advisory board recommended the creation of a transgender policy as a pre-emptive attempt to address the increasing number of transgender athletes in sports. Indeed, the Association is among a number of governing bodies actively addressing the topic. The International Olympic Committee (IOC), National Collegiate Athletic Association (NCAA) and Canadian Collegiate Athletic Association (CCAA) have all adopted policies designed to address the participation of transgender athletes in sport, with the NCAA’s and CCAA’s approaches, arguably, being more moderate than the IOC’s.

With that said, in Canada, there has yet to be legislation introduced similar to that in California. In fact, even some of the basic provincial human rights codes have yet to include such progressive terms. For example, one simply needs to look at the Ontario Human Rights Codefor a leading example of inclusivity. Section 1 reads: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”

In contrast, the analogous provision in the British Columbia Human Rights Codefails to formally recognize gender identity, gender expression, or anything to that effect, other than ‘sex’: “A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.”

The above illustration does not seek to suggest that transgender athletes are unable to freely compete (consider Cory Oskam, a transgender high school student who was widely supported in undergoing a gender reassignment surgery and subsequently competing in a boys hockey league). Rather, it seeks to highlight some differences and suggest that perhaps the time has come for Canadians to follow some of the examples set by our southern neighbours, namely to formally recognize and protect the right of transgender athletes to compete freely.

Bill 1266 comes into effect in January 2014. Thus, in a matter of months, the sporting community will be able to assess how well the law is received and how effectively it is implemented. Regardless, it ought to be seen as a forward thinking example of the recognition of the right of transgender athletes to compete freely.

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A Cruel Race – The Risks of Dog Sledding

November 23, 2013

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By Miranda Schmold – Thompson Rivers University 3L JD Student

It is generally accepted that participation in most, if not all sports and activities, involves some aspect of risk and the possibility of injury. From some of the most low-key sports, such as bowling and golf, right up to extreme sports like motocross and hel-skiing and whitewater rafting, all carry with them some degree of risk and danger. Most reasonable athletes, professional, non-professional, recreational and the like, take responsibility for their actions, even when those actions result in their injury or death.

In pursuit of their sport or chosen leisure interest, people voluntarily assume the risks and acknowledge the risks they undertake along with the possibility of harm that may befall them should they participate in said activity or sport. Oftentimes it is the inherent risk and danger that makes many sports and activities alluring and exciting. From soaring through the air on a BMX bike, dangling from a cliff face attached to a single rope, tearing down a ski hill at top speeds, to slamming up against your opponent in a gridiron football game, these are just some of the elements that not only make these sports risky but also tempting and fun. As consenting and reasonable participants we are able to choose what activities and sports we participate in and the risks we are willing to accept in enjoying these pursuits.

But what about when the very sport or adventure activity being engaged in requires the use of non-human athletes? What about sports and activities where it is impossible to get the consent of the non-human participants? This is the case with dog sled racing and dog sled tours. Of course it is possible for the person controlling the dog sled in a dog sled race to acknowledge and accept the risk they undertake when participating in the sport, and it is possible for those engaged in a dog sled tour to accept the risk of participating in this outdoor activity, but there is no way to discern whether or not the dogs accept these risks or even wish to participate in the race or tour.

While the person controlling the dog sled is no doubt at risk for injury or even death, dog sled racing carries with it innumerable risks and dangers, mainly to those without which the sport would not happen, the dogs. The Iditarod is one such notorious dog sled race where the non-human athletes are put in tremendous danger. The Iditarod takes place each year in Alaska starting on the first Saturday in March. These sled dogs are forced to run over 1,600 kilometers in some of the most punishing and arduous terrain. The dogs race from Anchorage to Nome, which would be like running from Vancouver to Saskatoon, and they must do it in 8 to 16 days!

Since 1973 approximately 142 Iditarod sled dogs have died, although this only accounts for reported deaths during the race and does not include dogs that have perished while training. Sled dogs in the Iditarod are at risk of death, paralysis, penile frostbite, bleeding ulcers, bloody diarrhea, lung damage, pneumonia, ruptured discs, viral diseases, broken bones, torn muscles and tendons, vomiting, hypothermia, sprains, fur loss, broken teeth, torn footpads, anemia, strangulation in towlines, internal hemorrhaging, liver injury, heart failure and pneumonia.

About 53% of dogs that start the race do not cross the finish line. Additionally, many handlers are extremely cruel to these integral members of their sled dog team. For example, whipping, kicking, beating and starving dogs have all been witnessed as regular practices in the sled dog racing industry.

This situation is not unique just to the sport of racing sled dogs, but also occurs in the adventure tourism experience of sled dog tours. British Columbia is no stranger to the controversy surrounding sled dog tours. In 2010 the province was rocked by tragedy with the culling of 43 sled dogs by Robert Fawcett, former owner of Howling Dog Tours Whistler Inc. With the collapse of the sled dog industry in Whistler after the 2010 Vancouver Winter Olympics, Fawcett admitted to slaughtering 43 of his sled dogs and burying them in a mass grave on his property in April 2010. After pleading guilty to causing unnecessary suffering, Fawcett faced a maximum sentence of 5 years in jail and up to $75,000 in fines as set out in the Prevention of Cruelty to Animals Act and the Criminal Code s. 447(2).

On November 22, 2012 Judge Merrick of the Provincial Court handed down Fawcett’s sentence as three years probation, 200 hours of community service, a $1,500 fine, a 10-year firearms ban and a 3-year ban on commercial involvement with animals. While this left Vancouver’s SPCA and animal welfare advocates reeling, the positive aspect that came out Fawcett’s trial and sentence was the development of Canada’s first Sled Dog Code of Practice and Standards of Care by the Province, the sled dog industry, veterinarians and the BC SPCA.

Unfortunately, the code of practice may not be holding up to all it was meant to be. In July 2013 yet another Whistler sled dog operation has closed its operations. Whistler Sled Dog Company was created shortly after the Fawcett scandal and even received many of his dogs. They hoped to run an ethical dog sledding company, but after operating for two seasons found they could not sustain their sled dog tours because of Whistler’s short 4-month season. Now the fate of 71 difficult-to-rehome sled dogs hangs in the balance.

The sport of sled dog racing has many inherent risks, mainly for the sled dogs themselves, of which they cannot consent to. It is up to the mushers and handlers of these dogs to keep their health and safety in mind when competing in this sport, however, history tells us that their best interests have not been a priority come race day. Many dogs that have competed in the infamous Iditarod have either perished while racing or suffered extreme or life threating injuries, not to mention the horrific conditions they live in and treatment they receive when not being raced. In contrast, the risks to the human athletes seem inconsequential. The risks involved with sled dog tours are equally as serious, with the main risk being that sled dog operations close after a short winter season, with no choice but to cull or euthanize a large number of challenging-to-rehome sled dogs.

While risk is inherent in most every sport and activity, we should endeavor to weigh the risks with the rewards. In the case of sled dog racing and sled dog tours we need to ask ourselves, is the manner in which we risk man’s best friend worth the reward of a few moments of animal entertainment?

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Contractual Difficulties – Why isn’t there blood testing in the NBA or NFL?

November 23, 2013

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By Charlie Livermore – Thompson Rivers University 2L JD Student

Earlier this year, just a day after it was announced that no new players would be selected for the Baseball Hall of Fame, Major League Baseball (MLB) announced that they were going to begin using in-season blood testing to detect human growth hormone. The Commissioner of the National Basketball Association (NBA) stated he “expected” blood testing to be phased into professional basketball this season. National Football League (NFL) commissioner Roger Goodell soon after announced he likewise thought blood testing would take place this season.

It appears neither the NBA or the NFL will test anyone for HGH this year.

Despite the optimism of the Commissioners, recent reports suggest a deal between the respective players unions and their league counterparts is still far away. The NFL is inching closer, with agreements in principle reached, but talks have stalled over the internal appeals process. The NBA Players Association seems ready to postpone the fight over blood testing for seasons to come, with a deal nowhere near ready.

Two facts help to put this dispute into context. Human Growth Hormone is undetectable in urine tests and players in both sports are recovering from injuries faster than they ever have.

I asked Travis Tygart, the CEO of the US Anti-Doping Agency, why the NFL doesn’t have blood testing yet. He said that the players union, in their ongoing labour negotiations, sees blood testing as a detriment which they are willing to accept, but would need something in exchange. Blood testing is a bargaining chip, just like off-season practices, concussion protocols, or any of the other (relatively) small things a billion-dollar employer negotiates with its labour force.

I’m sure this is all true. But it seems there might be more to the story. As with steroids or other performance enhancers, part of the issue surrounding enforcing the ban on HGH is its perception by players. But in some ways HGH doubles down on the conceptual justifications made by players and sports commenters towards Performance Enhancing Drugs.

HGH is a naturally according hormone, key in stimulating muscle growth. It is prescribed for a variety of medical issues. In a sporting context, HGH is thought to increase speed of recovery from injuries, even though this claim isn’t totally confirmed by science.

For some, HGH isn’t really cheating. Numerous commentators have wondered why we don’t let athletes use HGH to recover from injuries. When a running back tears their ACL on a cut, or a linebacker rips their bicep attempting a tackle, they are looking to get back on the field as fast as they can. A substance which helps recovery could be perceived by athletes not as performance enhancing, but performance allowing – they can get back to what they do, faster.

Conceptually, using HGH for injury recovery might not be thought by athletes as making someone more than they are, but as returning them to who they were. Tommy John surgery, European genetic knee therapies, and other recovery techniques that seem “unnatural” are routinely employed by athletes looking to get back in the game, without violating any rules.

What do these possible justifications have to do with a contractual dispute between the players union and the league? The reason players in the NBA and the NFL are pushing back so aggressively against blood testing may simultaneously be more simple, and more complicated, than we thought.

Put simply, more players are probably taking HGH than most people realize, and testing would expose its widespread use as a recovery aid.

But there is likely a more complex aspect. Players, and their representatives, may not perceive testing for Human Growth Hormone as a valid or worthwhile endeavor. Many probably see HGH as tool used to compete in an increasingly difficult field, a field where injuries end careers, and everyone is just trying to keep up. Is an unjust law a law at all? St. Augustine didn’t think so, and the NFLPA probably thinks likewise, even if not explicitly.

The job of players unions is to make sure employed athletes aren’t contractually obligated to do anything more than they have to, and the forced removal of a vial of blood from a few hundred oversized men every other Sunday is probably an obligation worth protecting against.

But in two leagues where no one can agree on what cheating actually is, where entire cities depend on the knees of their quarterbacks, and where the public pressure to recover form injuries is obsessive, it seems like something else might be going on here. As far as management and labour disagreements go, this one might be more complicated.

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

November 12, 2013

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By Kelsey Petersen – Thompson Rivers University 2L JD Student

The National Post, in their coverage of the death of Canadian Ski Cross racer Nik Zoricic, quoted head coach, Eric Archer, as saying “the athletes are all searching for the same elusive thing: the edge of possibility.All truly elite athletes are searching for that line – they are trying to push the boundary of what humans can do.” In many extreme sports, pushing the boundaries leads to a form of risk taking that the law of negligence has yet to appreciate.Plaintiffs who are hurt while engaging in high risk activities do not fit within a doctrine that uses reasonableness as its central criterion.

Referred to NASCAR on skis, ski cross features up to six athletes racing side by side over banked corners and jumps 140 feet in length.Ski Cross began, and gained its popularity in the X-Games, and has been modified only slightly to become a World Cup and Olympic event.While the World Cup circuit features only four competitors racing at a time, as compared to six at a time in X-Games competition, the extreme nature of competition has transcended into the alpine racing circuit yet is not subject to the same regulations that traditional alpine disciplines enjoy.

Tim Danson, attorney for the Zoricic family, has called the death of Nik Zoricic the result of “gross negligence of race organizers and officials.”Although the Swiss police report found there to have been no third party causation involved in the crash, Danson is calling for the International Ski Federation (FIS) and Alpine Canada to conduct their own independent investigations to determine whether improper jump trajectory, safety measures and grooming protocols were responsible for Zoricic’s death.

While Smolden v Whitworth held that sport is not a special case with its own discrete jurisprudence, divorced from established general principles, the specific circumstances are of crucial importance in determining the applicability of tort principles.In addition to defining what is reasonable versus unreasonable risk within extreme sports, the court must evaluate the fundamental nature of the sport, and the defendant’s role and relationship to the sport, to determine whether the defendant owes a duty to protect the plaintiff from a particular risk of harm.

Athletes involved in extreme sports are often anything but careful, pushing the boundaries of risk taking to be successful in their sport; yet participating in a dangerous sport does not mean that an athlete consents to negligence which increases the risks posed by the sport itself.The defence of voluntary assumption of risk is yet another area to expose tort law’s inability to apply to extreme sports.“Traditionally, the assumption of risk defence barred a plaintiff’s claim, whether his behaviour was reasonable or unreasonable, on the ground that he voluntarily chose to encounter a known danger.” The assumption of risk doctrine is even more important in extreme sports where, by their nature, they are inherently dangerous.The risk of injury is extremely high without the defendant’s negligence increasing the likelihood of injury.While the voluntary assumption of risk defence continues to apply to dangers inherent in the sport, duty can be imposed if the defendant, through their negligence, increased the inherent risks of the sport. 

R v Jobidon held, in a criminal law context, that one cannot consent to death or grievous bodily harm. Can the principle of negligence follow with the assertion that an athlete cannot consent to death in extreme sports?  The death of Georgian luger Nodar Kumaritashvili prompted the following statement: “No sports mistake is supposed to lead to death.No sports mistake is supposed to be fatal.” While extreme sports adhere to a practice of increased risk, tort law principles must be modified to allow for the increased nature of risk in extreme sports to be preserved while maintaining the athlete’s right to impose liability on those guilty of negligence.

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NHL is not taking the threat of concussions seriously enough

November 12, 2013

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By Hafiz Karim – Thompson Rivers University 2L JD Student

Concussions have become a prominent issue in the world of hockey and they are becoming more and more noticeable in the National Hockey League.Through the first month of this season, the rate of concussions in the NHL is up by about 30%.Just this season alone, we’ve seen star players such as Rick Nash, Dustin Penner, Danny Briere and Dan Boyle all suffer concussions.

There is no doubt that concussions are an extremely serious issue and the NHL Player Safety department has tried to address this.Rule 48.1 of the Official NHL Rulebook defines illegal checks to the head.It states that, “a hit resulting in contact with an opponent’s head where the head is targeted and the principal point of contact is not permitted.”The NHL states that they take this issue seriously and in reality they generally hand out suspensions for illegal checks to the head.Whether the sanctions given out to players who deliver headshots is adequate or even working is a question for another day.

The NHL makes a point of denouncing checks to the head but are they doing enough?One of my biggest problems with the NHL’s denunciation of headshots is that it is largely reactive rather than proactive.What I mean by that is that the NHL will suspend a player if he makes a deliberate and dangerous hit if a player gets injured, but they rarely seem to do anything over an attempted dangerous hit.

An example of this occurred last week in a game on November 2nd between the Vancouver Canucks and the Toronto Maple Leafs.Henrik Sedin, star centre of the Vancouver Canucks, cut to the front of the net and as he did so, Joffrey Lupul of the Maple Leafs, stuck out his elbow and took a run at Sedin.Sedin later said that he saw the elbow coming for his head out of the corner of his eye and was able to duck out of the way at the last minute.Lupul came at such speed that when he missed Sedin’s head, his momentum carried him forward and he ended up hitting his teammate Nazem Kadri in the head with his elbow.The game was being broadcasted by CBC as part of their Hockey Night in Canada program and it was astounding that the commentators did not reference this attempted dirty hit nor was there a replay shown of it during the game.It may have gone entirely unnoticed if not for social media, which picked up on it and the video clip went viral following the game.

The first time I watched the video, I thought it was hilarious that Lupul ended up elbowing his own teammate in the head.Only later did I realize how bad that could have been if Lupul’s cheap shot had actually connected with Sedin’s head when he was in a vulnerable position.Henrik Sedin is one of the star players on the Vancouver Canucks and is currently tied for third in points in the NHL this season.He also is second in the active Ironman streak in the league that recognizes most consecutive games played.That could have all ended had Lupul’s elbow connected.The Canucks were dominating the Leafs and Lupul must have been frustrated or angry because there is no doubt that he deliberately tried injuring Henrik Sedin with an elbow to the head.It amazes me that the league lays sanctions on players if they injure their opponent, but that there are no sanctions for deliberate attempts to injure that do not work.Even if the referees on the ice did not see Lupul’s attempt to injure another player, there is no way that the NHL did not see that play later on as it went viral.  How do you send a message that illegal checks to the head are not OK and are a suspendable offence, but attempting a check to the head is not a big deal as long it doesn’t connect?

In today’s day and age when there is so much evidence of the detriment of brain injuries, it makes zero sense not to punish players for attempting illegal shots to the head.As a Vancouver Province blogger stated, it makes no sense that someone would have to potentially concuss another player before they get suspended, yet they can attempt it as many times as they want without risk, until they connect.  

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Why Lloris’ head injury was so severe that even the FA and Tottenham lost consciousness…

November 6, 2013

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brain

Although Tottenham’s website thankfully confirms that Hugo Lloris has been given the all-clear following a precautionary CT scan, if the outcome had been more tragic, Tottenham, the FA and the Premier League could all have been sued in negligence law, and most likely would have lost.

This article will review what liability exists, why, and what steps need to urgently be taken in order to manage this risk.

 

WHAT HAPPENED

Tottenham Hotspur played Everton in a Barclays Premier League match on the weekend. Near the end of the game (77th minute according to BBC live text website), the French international goalkeeper, Hugo Lloris suffered a head injury and brief unconsciousness following a collision with Romelu Lukaku’s knee in a challenge.

After a brief delay for treatment, Lloris was not substituted and played out the remaining 15mins of the match.

 

SO WHAT NEGLIGENCE LIABILITY EXISTED?

While the challenge between Lukaku and Lloris was not negligent, the actions by the team and authorities afterwards could create a liability along similar lines to the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage.

What is interesting is that despite the time-gap and the obvious differences between the two sports, there is a striking similarity between the two incidents:

  Watson Lloris
No player liability for the initial blow Eubank punch Lukaku challenge
No referee liability Referee stopped fight correctly Referee stopped game correctly
Rules of the game were followed BBBC rules on medical treatment followed At face value, FA [p.596] & Premier League [O.9] rules on medical treatment of head injuries followed as qualified medical personnel consulted
Medical professionals from outside the industry recommended more stringent rules Neurosurgeons attacked the BBBC rules pre-watson incident Stringent rules on concussion management recommended following NFL concussion suit, and other incidents particularly in Ice Hockey and Rugby

 

If we adopt the same Watson-esque reasoning for Lloris, a number of parties could therefore potentially be liable in negligence for breaching their duty of care towards the goalkeeper:

 

The Medical Professionals from the Club, and/or the Manager

Tottenham have based their media defence on the fact that they followed the FA rule on Head Injuries [6]:

All Clubs shall ensure that any player in a league match having left the field with a head injury shall not be allowed to resume playing or training without the clearance of a qualified medical practitioner.”

Because a qualified medical practitioner from the club assessed Lloris pitch-side, Tottenham argued that they were fully compliant with the relevant rules; and at first glance, this view seems correct. The situation however changes with a closer, more detailed examination of the FA rules on medical treatment. The next page of the FA rules states that:

Any player remaining immobile and unresponsive to verbal commands following a head injury will be regarded as being unconscious and treated in accordance with established principles for extrication and management of the unconscious player. There will be no return to play during that day……”

and further on that:       

“A player may suffer a transient alteration of conscious level following a head injury. It should be noted that under these circumstances, “transient” may coincide with the period of time between the injury and the arrival of the medical attendant at the player’s side. On-pitch assessment will include Maddocks questions as well as demonstration of conjugate gaze, “normal” visual acuity and full visual fields to confrontation. The player will only be allowed to resume play if asymptomatic and with normal co-ordination…..If a deficit is observed the player must be immediately removed from the field of play and regarded as suffering from a concussive head injury. There will be no return to play that day.”

The 4th Consensus statement on concussion in sport (supported and endorsed by FIFA) similarly says,

If any one or more of these [five] components are present [which includes loss of consciousness], a concussion should be suspected and the appropriate management strategy instituted.”

Given that it was widely reported in the media that Andre Villas-Boas (AVB) [the Tottenham Manager] admitted that:

“He [Lloris] doesn’t remember it so he lost consciousness. It was a big knock but he looked composed and ready to continue.”

This would seem to suggest that with either interpretation, by continuing to play Lloris, Tottenham was in violation of the FA rules. Either Lloris was briefly fully unconscious, in which case there should be no return to play, or he had an observable deficit (dizziness, memory loss etc) in which case he should not have returned to play.

The only justification for allowing Lloris continuing to play would be that the injury was transient. This is however a difficult medical decision that should be made solely by medical professionals, ideally in a quiet, non-pressurised environment. In a post-match interview with Sky however, Villas-Boas suggests (at 2m30 in) that:

“The medical department was giving me signs that the player couldn’t carry on, because he couldn’t remember where he was….but he was quite focused and determined to continue, so when you see this kind of assertiveness it means he is able to carry on, and that is why it was my call to delay the substitution.”

Based on the mechanism of injury and his unconsciousness on the pitch, the evidence strongly suggests that Lloris sustained some type of concussion. Indeed his post-match rehabilitation would support this conclusion as it looks to be proceeding along the lines of a concussive injury (CT scan, medical assessment, rest). Given this, the Tottenham decision to allow Lloris to keep playing would seem contrary to the FA rules on Head Injuries and raises serious question marks over the influence of the medical staff in this decision-making process. Were they overruled by AVB? Or did the medical staff make this decision free from any managerial interference?

If the recommended solution was simple [removal of the player], would have comparatively little effect on the game [a substitute keeper was available and ready] and the risks of failing to do this were significant [death, or serious injury from second impact syndrome / Chronic Traumatic Encephalopathy (CTE)], then arguably if an injury had result, it would have been negligent not to have taken these steps.

  

The FA / Premier League Rules.

Even if we take the alternative superficial view of this incident (that Tottenham acted within and implemented the relevant FA / Premier League rules on Head Injuries), this is not sufficient to excuse their duty of care to the player. It could however be used as persuasive evidence that the Club had acted reasonably by taking appropriate advice and relying on the FA scientific experts to lay down appropriate medical rules (outside the competence of the club). Liability would then pass to the governing body / league for negligent rule-making.

Indeed, just as the Court of Appeal held in Watson that:

“The Judge held that it was the duty of the Board, and of those advising it on medical matters, to be prospective in their thinking and to seek competent advice as to how a recognised danger could best be combated. He held that he was left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as that which Mr Hamlyn was later to propose. He held that anyone with the appropriate expertise would have advised the adoption of such a system.” [121]

So this finding is equally instructive to this incident. It would be surprising if anybody in professional sport was not aware of the risks associated with concussion following protracted litigation in North America from both the NFL American Football players association, and NHL ice-hockey players, not to mention recent rugby incidents – most notably George Smith’s infamous return to the field following a heavy collision.

Could or should the FA have done more? Arguably yes. As regulators of the game, there needs to be a clearer stance taken as to how the rules should be applied, and whether in the first instance, they are actually strict enough. While there have recently been some clubs that display admirable restraint, for example Norwich’s substitution and treatment of Robert Snodgrass following a heavy collision with a defender, there have equally been occasions this season where concussed players have continued to play – indeed ironically, Lukaku himself was briefly knocked out during the Everton-West Ham game on September 21st. If the FA and Premier League are aware that players are not being substituted, then their continued tolerance of this practice must surely constitute tacit acceptance?

As Watson shows though, even full adherence to the FA rules may not act as a defence to a negligence claim if other sports or medical professionals implemented more stringent standards.

  • For example, any ice-hockey player suspected of concussion in the NHL is removed from the bench to a quiet place so that a full Sports Concussion Assessment Tool (SCAT2) test can be administered. 
  • Similarly, the NFL test for American footballers based on the SCAT test typically takes 8-12minutes to complete.
  • Perhaps most tellingly though, Dr Barry O’Driscoll (formerly the IRB medical advisor) recently stated that “it’s ferocious out there…there is no test that you can do in five minutes that will show that a player is not concussed….to have this acceptable in rugby, what kind of message are we sending out?”

What is considered reasonable should therefore be judged in the context of safe practice recommended by the medical experts in the field, for example, adopting the 4th Consensus statement on concussion in sport, supported and endorsed by FIFA (amongst other signatories), or reviewing literature and protocols from North America where awareness of concussive injuries seems to be much better understood. It is not sufficient for The FA to argue that their rules on head injuries are the strictest that they have ever been, or that with FIFA F-MARC accreditation the medical facilities at St. George’s Park are world class, instead what is needed is a world-class implementation of safe, effective rule-making and sadly this weekend’s incident exposes the deficiencies in the current system.

 

Recommendations

This article would suggest four actions need to be taken urgently:

  1. The FA or League to impose disciplinary sanctions for clubs acting against the safety of a player – If no sanction exists for ignoring or misapplying the FA rules on Head injuries (or any other medical condition affecting the safety of participants), then medical staff and managers are not incentivised, beyond their own professional values, to make ‘correct’ or ‘safe’ decisions. What is instead needed is for the FA to implement fines or other disciplinary measures for a failure to follow agreed medical protocols. The FA (and clubs) have a duty of care to protect the safety of the players, and much as hard-helmets and ear-protection are mandatory and punishable by health & safety violations in the construction industry, so the FA need to implement a system of enforcement for the (mis)application of their rules.
  2. The FA or League to implement ‘medical suspensions’ akin to yellow and red cards. Just as players might receive suspensions following red cards, so automatic minimum medical suspensions could be triggered followed head injuries. If players, coaches and officials were not just educated about the risks of concussion and return-to-play protocols, but had to abide by minimum suspensions (for example, 5 days), then this would help to reinforce the potential seriousness of the injury. Clubs would of course be free to extend this recuperation as needed, but a minimum mandatory rest-period could also help change public perception that athletes were not being brave by continuing to play and wimps for being substituted, but rather that this decision was taken out of their hands by the governing body. A system of governing body / league ‘medical suspensions’ would also assist with epidemiology as it would make it easier to track repeated concussive injuries or identify particular high-risk athletes.
  3. The FA to review concussion best practice in other sports. Following the clear principle laid down by the Court of Appeal in Watson, the FA as the industry regulator has a duty of care to provide best medical practice, and continuously review these protocols in light of other sports or medical guidelines, with a view to making alterations to the current rules if necessary. [At the time of writing, this recommendation seems to already be in progress]
  4. Consider whether independent medical teams should have ultimate decision-making authority over clubs.  Finally, to avoid any appearance of undue influence, conflict of interest or pressure being exerted on club medical staff (as was observable with Dr Wendy Chapman, the club doctor at the centre of the ‘Blood-gate’ scandal in rugby), it may be advisable for the FA to leave the decision over whether a player sustained a concussive injury, or other medical condition affecting the safety of a player, to an independent doctor available on the side-line. Of the four recommendations, this last point is however more controversial and would add an additional expense to games, particularly since the other three recommendations could equally be applied throughout the Football League structure comparatively easily.

Whether footballers are viewed as human beings, or as multi-million pound club assets, they deserve the protection and safety of the very best medical protocols, whether they want this protection (or in this incident, not). The injury to Lloris represents a warning to the FA that it is not just the professional football clubs that would face negligence liability, but rather the regulator would also be liable for a failure to act in the face of foreseeable injuries. Concussions may be comparatively invisible, but that doesn’t mean the regulator should be as well….

 

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“The Sean Avery Rule”

November 4, 2013

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By Kevin Robertson – Thompson Rivers University 2L JD Student

Few in the game of hockey are more loathed than Sean Avery. However, it is not for his devastating skill but instead for his tendency to push the grey area of the rules a tad to far.  One such incident occurred in April 2008 during a playoff game between the New Jersey Devils and the New York Rangers. Avery, playing for the Rangers, occupied his usual spot in front of the opposing goalie but then he did something unheard of in his attempt to block the goalies view, he turned around. 

Having a (usually large) player stand in front of the goalie in an attempt to block their view is a standard procedure. However, it has always been done with the players back to the goalie (face to the puck). The benefit of this is that the player can watch for the puck and potentially deflect it into the goal.  In fact, the move is so common it even has a name: screening the goalie. 

Most goalies attempt to overcome the body in their way by either looking over the players shoulder or to the side of the body. This has always worked because the player has to split attention between the puck and the location of the goalie.  When Avery turned his body to face the goalie (in this case Martin Brodeur) he completely disregarded the puck and instead focused solely on obstructing the goalies view. Now Avery did not simply stand there and let his body block the view of the goalie, instead he waived his hands in front of the goalies head. 

While Avery did not break any sort of established rule many players complained that it should not be allowed. Montreal Canadians goalie Carey Price even went so far as to state that “it’s almost an unwritten rule.” 

What is most shocking is the speed by which the NHL had reinterpreted an existing rule to prevent the type of play from happening again; it was ready to go the day after the game. Colin Campbell, the NHL director of hockey operations clarified the rule saying that:

“An unsportsmanlike conduct minor penalty will be interpreted and applied, effective immediately, to a situation when an offensive player positions himself facing the opposition goaltender and engages in actions such as waving his arms or stick in front of the goaltender’s face, for the purpose of improperly interfering with and/or distracting the goaltender as opposed to positioning himself to try to make a play,”

The most interesting aspect was not that the NHL desired to end this type of conduct (this view was widely supported throughout the league), it was the speed and monopolistic manner with which they reinterpreted a rule to cover a situation that was not contemplated in the first place.

Nowhere in Rule 75 of the NHL’s official rules (which outline unsportsmanlike penalties) does it forbid “improperly interfering” or “distracting the goaltender” (wouldn’t a team encourage this?). The only way that the rule change could be situated as any sort of “reinterpretation” would be if one considered Avery’s conduct to be “disorderly” (which would place it in violation of Rule 75.1). In effect, the NHL used a catch-all provision regarding disorderly conduct on the ice to ban this type of maneuver. 

Whatever a person’s opinion is regarding the rule itself, it is disconcerting how the NHL was able to essentially impose a new rule on the game in such a short time period without consulting with NHL Players Association. Such a short turnaround can only occur in a situation where the governing body has complete and utter authority to act in a monopolistic manner. 

To put this in perspective, typically a rule change would be a 3-step process consisting of General Managers recommending a rule change, the Competition Committee (half players and half club officials) which ordinarily meets twice a year to analyze the proposed changes, and the Board of Governors who then votes on it. Historically rules changes have also been tested in either other leagues or pre-season games before they are ratified. 

Only after all steps are complete does a supported rule change become active. 

There was no reason, such as immediate player safety, to circumvent the established rule change process. It appears that the NHL wished to save face by outlawing the screening of a goalie’s face à la Sean Avery.  The NHL has shown that they can effectively alter the rules on the fly by disregarding the established process. It is surprising that the NHLPA did not publicly decry the procedure through which the rule change was instigated. It is hoped that future instances of rule changes made in response to an unforeseen development on the ice will conform to the collective agreement and due process.

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Exceptional FIFA ruling orders Italian clubs to pay for player’s breach of contract

November 4, 2013

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By Shaun Foster – Thompson Rivers University 2L JD Student

Chelsea Football Club is no stranger to big money transactions in the footballing world. Since Russian billionaire Roman Abramovich purchased the club in 2003, the club has spent on players without much business concern for turning a profit. This practice was most recently demonstrated in 2010 with the record breaking purchase price for Fernando Torres of £50 million (which, incidentally, has been viewed by many as a failure, with each goal Torres has scored costing Abramovich £3.3 million to date).

Perhaps as a result of their extravagant purchases, or the impending Financial Fair Play rules that will soon come into force, there are signs that Chelsea is beginning to tighten the purse strings. Interestingly, the most recent financial development for the club is in its legal battle with former player Adrian Mutu.

Mutu signed with Chelsea in 2003 for a reported £15.8 million. He started brightly with the club, but the new relationship went sour in September of 2004 when he failed a drug test for cocaine use. He was released from the club the following month and received a 7-month ban for his failed test.

This was followed by a series of legal battles between Mutu and the club, which concluded with the Court of Arbitration for Sport affirming a FIFA Dispute Resolution Chamber ruling that Mutu would have to pay Chelsea compensation of €17,173,990 for breach of contract. Mutu attempted an appeal to the Federal Supreme Court of Switzerland, but that was also dismissed and the order of CAS was affirmed.

After being released from Chelsea, Mutu was essentially a free agent in the footballing market. Juventus was the first club to show an interest in signing the elite striker on a free transfer since he had been released. As league rules governing the signing of non-EU players from abroad prevented Juventus from signing him directly, Livorno FC signed the player and held him for them (clubs are limited to how many players they can sign directly from abroad, so Livorno signed the player and then transferred him to Juventus to avoid the rule.

It has recently been reported by Italian newspaper Gazzetta dello Sport that Juventus and Livorno have been ordered by FIFA to pay Chelsea £17.9 million in compensation. Although neither club was involved in Chelsea’s contract with Mutu, it appears that the FIFA Dispute Resolution Chamber feels that they significantly benefited from the circumstances, and have informed Chelsea that they can demand the money from the two Italian clubs. It has been suggested that Livorno will argue that they were simply a pawn in the process, used by Juventus to get around the league rules and that they did not benefit from the signing.

Juventus, on the other hand, will await the written decisions from FIFA as to why they should be paying the damages caused by Mutu’s contractual breach.

The general principle surrounding privity of contract is that only the parties named in the contract are permitted to sue for breach. However, there have been both British and Canadian cases that have made exceptions to this rule. In London Drugs Ltd v Kuehne & Nagel International Ltd, an exception was made to allow for employees to benefit from limitation of liability clauses even though they were not named in the contract.

In Beswick v Beswick, Lord Denning made an equitable exception to the privity rule, where not doing so would have meant that the state of the law would be deplorable. He said that “no third person can sue, or be sued, on a contract to which he is a third party,” but that “is only a rule of procedure.” It is clear that both Livorno and Juventus were not party to the contract between Chelsea and Mutu. There is, however, no doubt that Juventus benefited from the acquisition of a released player (who was arguably worth nearly £16 million, as that is what Chelsea paid for him) without having to pay a transfer fee. The legal question, though, is on what grounds FIFA will be saying that Juventus must compensate Chelsea.

Without seeing the written decision, we can only speculate that FIFA’s order may be a principled exception to the general doctrine of privity of contract, stating that Juventus were unjustly enriched by Mutu’s breach with Chelsea. On the other, hand, some would argue that Juventus simply completed a bit of good business. They saw a troubled player for free in the market, and were willing to take a chance on him after Chelsea had disposed of his services. Either way, it is almost certain that Juventus will be appealing the decision to CAS, and it will be interesting to see the legal arguments and how it is decided.

Contract law, and the doctrine of privity of contract is understood in general terms to apply to all situations. It could be that FIFA’s judgment will demonstrate an understanding of how contracts in football terms are different from general employment contracts. In the normal workforce, a company does not pay millions of dollars in order to acquire another company’s star employee. Most valuable employees’ contracts will contain some sort of restrictive covenant that prevents them from working for certain competitors within a certain period of time if they breach their contract. In football, as is demonstrated in Mutu’s case, clubs pay their competitors compensation in order to retain their star players. It could be that, in light of this distinguishing feature, FIFA feels the need to create an exception to the doctrine to prevent abuse by competing clubs.

No matter what happens, Chelsea will be looking to collect £17.9 million in compensation (the original judgment, plus interest) from either Mutu, Juventus, Livorno, or some combination of all three. If football were a game played in purely financials and statistics, that would buy them another 5 goals from Fernando Torres.

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