Archive | November 7, 2014

Domestic violence in sports – guilty until proven innocent?

November 7, 2014

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By Ryan Monty – Thompson Rivers University 3L JD Student

There has been a rash of domestic violence charges springing up in professional sports leagues across North American in recent months and, even as a casual sports observer, you would have to have had your head in the sand not to notice. It all started with Baltimore Raven’s running back Ray Rice and the controversy surrounding the National Football League’s reaction to that incident. The punishment went from 2 games to an indefinite period of time after a video surfaced showing Rice physically assaulting his soon-to-be wife in an elevator. The public outrage was palpable and forced the hand of the league to reconsider its original suspension.

This set the precedent for subsequent situations involving criminal charges and athletes. The Minnesota Vikings suspended all-star running back Adrian Peterson indefinitely after charges were laid against him for physically disciplining his child, and most recently, Slava Voynov, a defenseman for the Los Angeles Kings, was suspended indefinitely by the National Hockey league mere hours after being arrested for domestic violence, all with the aim of curtailing any public backlash directed at the league or team.

This brings up the alarming fact that the standard of proof in the public eye is substantially lower than the blindfolded Lady Justice. In our criminal justice system a person charged with a crime of this nature needs to have his or her guilt proven beyond a reasonable doubt with the onus on the Crown/prosecution to prove it. However, the leagues and the teams of these players are now faced with the reality that public reaction will be so intense that anything less than an all out suspension is unacceptable, essentially shifting the idiom of “innocent until proven guilty” to “guilty until proven innocent” in the public sphere.

I am not going to defend the actions of someone like Rice, who clearly deserved what was coming to him, especially since the video was definitive on what role he played in the situation. The problem I have is with the escalading reactionary nature of the sports world to any type of criminal charges before all the facts are in. Anyone can make allegations to police and it is up our justice system to determine if those allegations are true. The public though doesn’t seem to have a problem with vilifying an athlete and tarnishing his reputation at the mere mention of pending charges.

Dante Cunningham, a professional basketball player is currently without a contract from any National Basketball Association team after his then-girlfriend called the police claiming he assaulted her. The charges were later dropped and it was proven that she had fabricated the events in question, yet Dante is still feeling the consequences of these false allegations because no team is willing to take on the player due to the possible public and financial burden of letting him join their team. The onus is now placed on him to prove to the public and any suitor that his value outweighs his detriment.

Teams have every right to sign whom they want for whatever reason. They, along with the league, also hold the right to suspend any of their players and that is clear in the respective Collective Bargaining agreements of each league. The NHL, for example, has a clause that stipulates a team can suspend a player if “the failure to suspend the player during this period would create a substantial risk of material harm to the legitimate interests and/or reputation of the league.”

The extent to which the legitimate interests or reputation team or league would suffer is essentially determined by the public reaction to the alleged incident. And the public reaction is sometimes – if not often – based on an intemperate, incomplete and inaccurate understanding of the facts. I am not here to suggest a new test or regime on how to suspend players charged with criminal offences but I am advocating for due process and the restraint to judge each situation based on its merits instead of blindly suspending any athlete that comes into contact with any legal troubles, which is where I fear we are at now and won’t easily return from.

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Potential CHL Employment Lawsuit

November 7, 2014

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By Kyle Nagy – Thompson Rivers University 3L JD Student

On Friday October 17, a statement of claim was filed against the Canadian Hockey League (CHL) by former players seeking $180 million of outstanding wages, holiday, overtime and vacation pay, and employer payroll contributions. Thousands of young players were given as little as $30 per week for training, practices, games, and travelling that often totalled full-time hours. The claim alleges the CHL violated provincial minimum wage laws. The CHL is the umbrella organization of the Western (WHL), Ontario (OHL) and Quebec (QMJHL) major junior hockey leagues and contains players ages 15-20.

The heart of the issue is whether CHL hockey players are employees of their teams, independent contractors, or interns. The statement of claim states that CHL players are employees and therefore teams must pay the players in accordance with provincial minimum wage laws. However, the CHL has long argued that its players are amateur student athletes and independent contractors, or the equivalent of interns training for professional positions. If the CHL is correct, they would be exempt from provincial minimum wage laws. If the courts deem the players independent contractors or interns, teams can continue to pay the players the $30-$50 per week they currently receive.

The CHL has taken strides in recent years to improve its scholarships for players and increased funding put in place for billeting, mental health and mentoring programs. This is commendable, but the players do not think it is nearly sufficient. The statement of claim alleges teams are “unjustly enriched” with “hundreds of millions of dollars in revenues annually” based on the services provided by the young athletes on the ice.

The argument that the CHL and its member teams receive little benefit from their players is dubious at best. The Quebec Remparts, London Knights, and Calgary Hitmen, the three teams that led their respective CHL leagues in attendance last year, averaged between 7,500 and 10,000 fans per game. These leagues are for-profit organizations that have lucrative television and internet packages with marketing arrangements with some of the biggest corporations in Canada.

Under British Columbia’s Employment Standards Act (the “Act”), an “internship” is on-the-job training offered by an employer to provide a person with practical experience. If the duties performed by interns fall within the definition of “work” contained in the Act, the intern falls within the definition of “employee” for the purposes of the Act. Once someone is considered an “employee”, they must be paid at least the current BC minimum of $10.25 per hour.

Duties performed by interns will be considered work for the purposes of the Act when their training is a) directed by the employer (or on the employer’s behalf), and b) related to performing the employment duties the employee has been hired to do. Employers are required to pay for the training an employee needs in order to learn how to do their job at the employer’s business.

When determining whether players are employees or independent contractors, and therefore not subject to protection under provincial employment legislation, the central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In 671122 Ontario Ltd. v. Sagaz Industries Canada Ltd., Justice Major of the Supreme Court of Canada stated that the court will also consider a number of factors. These include the level of control the employer has over the work’s activities, whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks. Each of these factors appears to point towards CHL players being employees rather than independent contractors. The players have very little independence.

Pending the approval of the class-action lawsuit by a judge, this will be the first time this issue has been litigated in Canada. One case from 2000, however, gives insight into how the courts view the CHL-player relationship. In McCrimmon Holdings Ltd. v. Minister of National Revenue, the Tax Court of Canada found that a CHL team was an employer and players employees for the purposes of employment insurance. The court stated that while the league’s emphasis on supporting player education is admirable, the teams are still commercial organizations carrying on business for profit.

Considering the Employment Standards Act’s characterization of internship and work, the Sagaz factors, and the Tax Court case, the players appear to have the upper hand at the outset of this potential lawsuit.

 

 

 

 

 

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Canada’s Las Vegas-styled Sports Gambling Bill Stalled

November 7, 2014

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By Mitchell Smith – Thompson Rivers University 3L JD

A law that would embrace Vegas-style sports gambling in Canada is still stalled in the Senate. Bill C-290 was proposed in 2012 by New Democrat MP, Joe Comartin and was passed quickly through the House of Commons without any opposition. Since then however, the Senate has avoided putting it to a vote, citing the lack of debate and upset senators displeased with the bill’s premise.

The following will examine this new law’s potential affect on the sports industry and society. It will not discuss the political aspects at issue with an unelected body attempting to block a law that has been supported by all parties.

Bill C-290’s purpose would be to give each province in Canada the power to allow single-game betting. While betting on a single sporting event or athletic contest is currently outlawed by sections 206 and 207 of the Criminal Code of Canada, provinces are allowed to offer parlay-style wagers on multiple games. A “parlay” is a bet that links two or more wagers together and is dependent on all of those wagers winning. The result is that the payoffs are usually higher than single-game betting but the odds of winning are also likely slimmer.

Why is single-game betting an issue?

Some of the major stakeholders that this bill affects are the professional sports leagues in Canada– including the National Hockey League (NHL) and Major League Baseball (MLB) – and society as a whole. Both of the professional sports leagues oppose Bill C-290, citing concerns over how it may affect the integrity of the sport.

The NHL is quoted as saying, “Such wagering poses perhaps the greatest threat to the integrity of our games, since it is far easier to engage in ‘match fixing’ in order to win single-game bets than it is in cases of parlay betting [as currently exists in Canada], where bets are determined on the basis of multiple game outcomes.”

Additionally, the CEO of the Toronto Blue Jays, Paul Beeston, stated that, “When gambling is permitted on team sports, winning the bet may become more important than winning the game; the point spread or the number of runs scored may overshadow the game’s outcome and the intricacies of play.” Beeston goes on to explain that he wants the fans to support and cheer for the home team and athletes, instead of the fans cheering for their bets to win.

In contrast to these opinions, Senator Frank Mahovlich, a former Toronto Maple Leaf hockey player argues that match fixing is not a concern because hockey players are insulated from being bought off by gamblers because of the large amount of money being earned.

The proponents of the bill believe that society stands to gain from job creation, increased government revenues, and tourism. They point to the fact only a handful of U.S. states allow single-game bets and therefore will attract more American visitors to our casinos. It is also stated that Canadians are already wagering their money on single-game bets through online casinos or through organized crime. All of society stands to benefit if the monies generated by gambling stay ‘in-house’ in provincial treasuries.

The question that politicians are trying to resolve is simple: are the detrimental affects of opening up sports gambling outweighed by society’s benefit?

In my opinion, Maholovich’s argument misses the point and is perhaps a little naïve. There are players in all sports who, regardless of the amount of money they are being paid, could still be manipulated and thus affect the integrity of the sport. As a sports fan, I agree more with Paul Beeston. I want to cheer for my favorite team because of the emotional attachment and for the spirit of the sport –not because of the reward I get from them winning or losing. Ultimately however, those who want to wager on single-game bets will easily find a way to do so online. Knowing this, it only makes sense to allow the bill to pass and let the provinces decide the best way to implement. The revenues generated are better served supporting Canadian society rather than in the hands of online casinos or organized crime.

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