Archive | November 9, 2014

Chris Pronger Joins NHL Department of Player Safety

November 9, 2014


By Kyle Nagy – Thompson Rivers University 3L JD Student

In October, five-time National Hockey League (NHL) All-Star, two-time Olympic gold medalist and Stanley Cup champion Chris Pronger joined the NHL’s Department of Player Safety (the “DPS”). Although many have voiced concerns over appointing a player widely regarded during his playing days as “dirty” to a position to judge other players’ transgressions, there are bigger legal issues of concern.

First is the issue of conflict of interest. Lawyers have an ethical obligation to avoid conflicts of interest. Although different than the context of the NHL and their DPS, some of the same principles may apply to both situations. A fundamental principle of a lawyer’s professional responsibility is the duty of loyalty the lawyer owes to the client. A lawyer generally cannot represent a client if the representation involves a conflict of interest. Rule 3.4-1 of the Code of Professional Conduct for BC states that “[a] lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.” Commentary for this rule further describes that a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by.… the lawyer’s duties to another client, a former client, or a third person. Due to the complexities that can arise from this rule, most law firms have rigorous systems for “conflict clearance” before any legal engagement is accepted.

This is relevant because Chris Pronger is still on the Philadelphia Flyers’ payroll. Pronger has not played with the Flyers since November 2011, when consecutive head injuries sidelined him. However, his $4.9 million per year guaranteed contract signed in 2010 runs until 2016-17. Prima facie, this looks like a classic conflict of interest situation. Although Pronger will not be asked to give an opinion on any Flyers players, what if an impact player from a division rival of the Flyers comes before the DPS for a hearing? It could be argued that Pronger’s loyalty to his current employer, the NHL, could be materially and adversely affected by his duty to another employer of his, the Philadelphia Flyers. The NHL does not adhere to BC’s Code of Professional Conduct, but it would be astute of them to perform some sort of similar “conflict clearance” check before hiring employees.

The related issue of bias is the main reason why observing a set of rules like the aforementioned code is crucial. The test for reasonable apprehension of bias of judges was outlined by the Supreme Court of Canada in the dissenting reasons in Committee for Justice and Liberty v. National Energy Board and was affirmed by the Supreme Court in R. v. S. (R.D.). The test is what an informed person, viewing the matter realistically and practically, having thought the matter through, would conclude, whether he or she would think it more likely that the decision-maker, consciously or unconsciously, would decide fairly. This test outlines the importance of the general public’s perception to the question of bias, and would be a good starting point for the NHL to use when hiring.

The rule against bias aims to maintain public confidence in the administration of justice by ensuring that decision-makers are not reasonably perceived to be deciding matter that will benefit them or those with whom they have significant relationships. Even if Pronger is able to objectively perform his duties and recuses himself from opining on decisions regarding Flyers players, it could be argued there still exists a perception of bias.

Hockey is not currently a top-tier sport in most American states. If the NHL wishes to change this, they must not underestimate public perception and should prudently protect their credibility. The hiring of someone that could trigger thoughts of conflict of interest, and subsequently the perception of bias, was not the wisest choice.

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Dangerous Soccer Celebrations Raise Questions About the Future of Goal Celebration Rules

November 9, 2014


By Brittany Corwin – Thompson Rivers University 3L JD Student

Late last month, Peter Biaksangzuala, an Indian soccer player from the Mizoram Premier League, celebrated an equalizing goal against Chanmari West FC with several flips. He landed one of these backflips on his head, leaving him unconscious and with severe spinal cord damage. Several days later, on October 19, 2014, Biaksangzuala tragically passed away due to complications from the injury.

In response to Biaksangzuala’s death, FIFA’s Medical Committee warned that it would be pushing for a new rule to ban such celebrations as backflips and somersaults because they pose a safety risk to players.

Currently, “Celebration of a goal” under Law 12, ‘Fouls and Misconduct’ of the ‘Laws of the Games’ currently states:

“While it is permissible for a player to demonstrate his joy when a goal has been scored, the celebration must not be excessive. Reasonable celebrations are allowed, but the practice of choreographed celebrations is not to be encouraged when it results in excessive time-wasting and referees are instructed to intervene in such cases.”

Further, this section of the ‘Law of the Games’ specifically mentions that players should be cautioned for such actions as making provocative or inflammatory gestures, removing one’s shirt or climbing on a perimeter fence, to name a few.

As you can see, the current rules are focused on avoiding excessive celebration and celebration that may be considered as wasting time, unsportsmanlike or inappropriate. There is no indication of safety as a concern relating to players’ methods of goal celebration.

The lack of safety consideration is eye opening, since Biaksangzuala’s tragic death is an indication that goal celebrations can be dangerous and can result in catastrophic outcomes. However, this raises the question of what FIFA should do in response to events like Biaksangzuala’s and prevent them from occurring again.

FIFA stated that it would be issuing a “directive” warning players not to perform such celebrations. Afterwards, the FIFA Medical Committee will then begin writing a proposal to ban celebratory somersaults and backflips. However, Dr. Michel D’Hooghe, chairman of FIFA’s Medical Committee, stated that he presumed the directive would not be effective in ensuring players avoid these actions, but instead he suggested that these celebrations need to be made illegal.

If FIFA makes backflips and somersaults illegal in the celebration of a goal, it would definitely help deter players from performing them and reduce those specific injuries as result. However, what about the other celebratory actions that result in injury but do not involve flips of any sort?

While Biaksangzuala’s celebration tragically resulted in his death, other sports have recently seen injuries during athlete celebrations as well. For example, on October 26, 2014, defensive end Lamarr Houston of the National Football League Chicago Bears suffered a season-ending ACL tear in his right knee while celebrating a sack against the New England Patriots. A month prior in another NFL game, Stephen Tulloch of the Detroit Lions similarly tore his ACL after celebrating a sack against the Green Bay Packers, rendering him unable to play for the year.

These sack celebrations were little more than a couple skips and jumps, which is quite the opposite of Biaksangzuala’s backflip. However, they resulted in significant injuries that left the athletes out for the season or year.

Celebrating one’s success, whether it is a goal or an amazing play at just the right moment, is inherent in the sport. Everyone wants to celebrate their successes and I am certain that in that moment these players do not consider the dangers that may arise from their celebrations.

Celebration is spontaneous and players take their own risk when choosing how to celebrate. It is such an exciting moment for the player, team and his or her fans and thus, making a long list of celebratory actions illegal takes away this spontaneity.

Even if backflips and somersaults were banned, as Dr. D’Hooghe suggested, there are no changes to rules of celebration that could address all the dangers that could possibly result from a player celebrating his or her success. The NFL sack celebrations are a prime example of this.

Celebration is inherent in the game of soccer, and sports in general, and backflips and somersaults should not be made illegal. Players take their own risk when they choose their celebration and while all possible injuries cannot be preventable or foreseeable, these players need to be aware of the possible dangers that could arise. Hopefully, Biaksangzuala’s tragic death will open players’ eyes to the real dangers that can materialize and they will think twice about taking the risk of throwing a flip and opt for a lower risk celebration instead.

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Place Your Bets: Blurring the Line Between Sports Wagering and Fantasy Football

November 9, 2014


By Geea Atanase – Thompson Rivers University 2L JD Student

In 1992, the United States passed the Professional and Amateur Sports Protection Act (PASPA) (also known as the Bradley Act), which federally bans sports betting with the exception of sports lotteries in Oregon, Delaware, and Montana, as well as licensed pools in Nevada. States that had operated casinos for ten years prior to the introduction of the Bradley Act were also given one year to pass laws legitimizing sports betting, but New Jersey, which is home to the infamous Atlantic City, failed to pass such laws.

Until now, that is.

Governor of New Jersey Chris Christie recently approved legislation that allows state licensed casinos and racetracks to offer sports betting to patrons, and for the state, the new law could not have come at a better time. Revenue from gambling at the once sparkling Atlantic City is close to half of that in 2007, and the rapid closing of casinos has led to cuts to thousands of jobs. The legitimization of state-sponsored sports wagering could breathe some much-needed life into a struggling economy, and in the past, state senators from Iowa, Rhode Island, and Missouri have attempted to repeal the PASPA as well. In fact, New Jersey State Senator Raymond Lesniak filed a lawsuit in 2009 claiming that the PASPA unconstitutionally discriminates against all but the four states that allow sports betting, which led to voter approval of a repeal of the Act.

Although dissatisfaction with the PASPA appears to be widespread, both professional and amateur sports leagues have a different story to tell. The NCAA, NFL, NBA, MLB, NHL, and other leagues filed a motion to stop New Jersey from offering sports wagering, citing the conflict with the PASPA as the reason for seeking the injunction. The onus was on the leagues to show that they would suffer ‘irreparable damage’ if the state expands sports betting, and they were granted the injunction on this basis.

Although the NBA and NFL refused to comment, ESPN gambling writer David Purdum has stated that the leagues have been fighting against a repeal of the PASPA for several years, and they fear that the expansion of sports betting will hurt the integrity and credibility of their respective sports. However, proponents of the PASPA repeal argue that the legitimization of sports wagering can only help the integrity and credibility of sports in the US.

Would the expansion of sports wagering to include placing bets at casinos and racetracks truly cause irreparable damage to the integrity of sport? Not likely. Between 1984 and 2013, casinos in Nevada recorded $64.4 billion on sports bets, and since 1989, the total amount won on football bets is just over $1.1 billion. Purdum noted in an interview on ESPN that only about 1% of the money that is bet on sports in the US is wagered legally in Nevada; given that Nevada has already raked in billions of dollars on sports betting, the potential for other states to follow suit (should sports betting become legal) looks promising.

Additionally, when the NFL sought an injunction in 1976 to prevent Delaware from allowing casino patrons to bet on football games, Judge Stapleton found no “threat of immediate irreparable injury” to the NFL and refused to grant the order. Rather than tread on the integrity of sport, expanding state sanctioned sports wagering would funnel some of the illegally bet money into state economies and add some legitimacy to practices that occur with or without legislative approval.

Interestingly, the NFL wholeheartedly supports sports wagering when the league is able to claim a piece of the pie. Forbes estimated that people in the U.S. spent $15 billion playing Fantasy Football in 2013, and while the NFL does not directly claim revenue from that amount, it is still able to capitalize on this form of sports betting in other ways. More than half of those who take part in fantasy sports report watching significantly more games, buying more tickets and spending more money at stadiums.

Additionally, in 2006, the NFL entered into a $600 million deal with Sprint in order to allow football fans to use their phones to monitor drafts, and recently, the New England Patriots entered into a partnership with DraftKings, a fantasy sports website. As Marc Edelman at Forbes also notes, the lines have blurred between fantasy sports and sports gambling: “TradeSports has begun to allow users to compete head-to-head based on their ability to predict a number of ‘yes or no’ bets based on a single NFL game – something that sounds similar to head-to-head parlay betting. The NFL has not uttered a public word about this.”

It seems obvious that the NFL is less concerned with ‘irreparable injury’ to the league and the integrity of sport than it is with maintaining a monopoly on a market from which it stands to gain. As Edelman also notes, the NFL’s fight against the expansion of sports betting in New Jersey misses the mark if the league actively endorses Fantasy Football and implicitly endorses other forms of online betting. In the future, perhaps the NFL should put its money where its mouth is and pursue legal action against those who truly threaten the league with ‘irreparable injury.’

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