Archive | November 17, 2014

Is Criminal Law Really the Solution to Doping?

November 17, 2014

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By Stephanie Leong – Thompson Rivers University 3L JD Student

The German government last week presented a bill that would make doping in sport a criminal offence, punishable by up to three years imprisonment. Some of the early details of the proposed legislation are that it would only apply to professional athletes who receive federal funding; foreign athletes caught doping in Germany could be imprisoned; and that doctors who provide drugs to athletes could be punished with up to ten years in prison.

The purpose of this legislation is unquestionably to further punish athletes caught cheating and provide a greater deterrent to athletes who may consider using performance enhancing drugs. As a country, Germany has a dark history of doping relating back to the Cold War period when East German athletes were subjected to inhumane and widespread state-sponsored steroid use. More recently, decorated German cross-country skiing Olympian turned biathlete Evi Sachencacher-Stehle was disqualified from the Sochi Olympics after testing positive for a banned stimulant.

Sports and politics inevitably interact with each other. National governing bodies for sport are partially funded by government initiatives, not to mention the national pride associated with the Olympic Games. With sport being so integral to culture some European countries including Italy, Spain, and France have taken initiatives to bring doping under the jurisdiction of criminal law, making it akin to a drug offence. Although this may initially seem like a useful tool in the fight against doping, on further review making doping a criminal offense proves problematic.

In many countries an accused in criminal proceedings is guaranteed the presumption of innocence, no punishment without proof of intent, and a right to a fair hearing. Incorporating doping into criminal law proves difficult in all of these areas. The World Anti-Doping Agency (WADA) Code is the ultimate authority in doping disputes. The Code operates on a standard of strict liability so there is no presumption of innocence, in fact there is a presumption of fault as an athlete is responsible for all substances that enter their body (Code Article 2.1.1). In contrast, section 15 of the German Criminal Code provides that unless expressly stated, only intentional conduct shall attract criminal liability. This is consistent with the criminal law principle nulla poena sine culpa (no punishment without guilt) which is a foundation of criminal law.

According to online reports, the proposed law will only allow prosecution for athletes who fail both A and B sample testing. If the goal of the legislation is to stop all doping this may prove ineffective. Recent statistics published by USADA (United States Anti-Doping Agency) show only 0.003% of all samples tested in 2013 contained a banned substance. However, positive tests are not the only way to catch dopers under the WADA Code.

Under Article 2.2 of the Code, proof can be established by any reliable means, including admissions, witness statements, or other analytical information, meaning an athlete can be convicted of a doping offence without ever producing a positive test. Non-analytical evidence can also be purely circumstantial, something criminal law does not usually see as determinative. Requiring positive samples may be the only way to ensure fairness to the accused under this law, however it is probably not the most effective means of catching dopers.

Athletes are entitled to a fair hearing under Article 8.1 of the WADA Code which should include a timely hearing, fair and impartial panel, ability to be represented by counsel (at an athlete’s expense), and ability to present evidence. This article also allows for an expedited process for hearings held at during events. The benefit of sport arbitration courts are that they have specialized knowledge of lex sportiva and are efficient.

Criminal law courts in contrast cannot be hurried, especially when penal consequences are involved. Due process in criminal matters often provides an accused the right to appeal a judgement, which can be a lengthy process. Situations are foreseeable where an athlete charged with a doping offence awaits trial but before conviction is still permitted to compete. WADA’s system of mandatory provisional suspensions is far more effective in this manner (Article 7.5).

At its earliest, this law will come into effect in the spring of 2015. Before then, the bill must be debated in parliament where its necessity will be scrutinized. Perhaps more importantly, they will determine how and whether it can be practically implemented, because as demonstrated there are many questions remaining to be answered.

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NCAA football player sues university for failure to educate

November 17, 2014

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By Mitchell Smith – Thompson Rivers University 3L JD Student

Michael McAdoo played football at the University of North Carolina (“UNC”) from 2008 to 2010. In 2010 McAdoo was found ineligible to play and dismissed from the football team because he was accused of having a tutor do improper work on one of his papers and breaching NCAA eligibility requirements.

McAdoo later became one of the first players to shed light on a supposed 18-year academic scandal that was used in order to keep athletes eligible to play sports. The scandal involved the creation of fraudulent classes that never met or taking “paper classes”, where the only requirement was completing a single paper. The classes were then used to inflate players’ grade point average or GPA.

According to a CNN report, McAdoo is now suing the university in federal court. He is accusing the university of breaking its promise to provide an education in return for playing sports. His lawyers are attempting to represent a class of North Carolina scholarship football players who played between 1993 and 2011.

The lawsuit stems from an independent report, which was released last month. The report demonstrates how academic counselors in UNC’s athletic department pushed its athletes into these no-show classes. The report further discusses an example of classes in the African-American Studies department being organized by a student services manager. In these classes students never had interaction with faculty and the student manager assigned grades without considering the quality of work. Often times the student manager was told what grade the player should receive in order to reach the NCAA academic eligibility requirements.

The NCAA outlines its academic eligibility requirements in the form of GPA as follows:

• Division I

“Student-athletes must achieve 90 percent of the institution’s minimum overall grade-point average necessary to graduate (for example, 1.8) by the beginning of year two, 95 percent of the minimum GPA (1.9) by year three and 100 percent (2.0) by year four.”

• Division II

“Based on a 4.0 scale, Division II student-athletes must earn a 1.8 GPA after 24 semester or 36 quarter hours, a 1.9 GPA after 48 semester or 72 quarter hours and a 2.0 GPA after both 72 semester or 108 quarter hours and 96 semester or 144 quarter hours.”

The African-American Studies classes were seen as GPA booster courses. It was found that the average grade for student athletes was a GPA of 3.55 as compared to 2.84 in the regular classes.

McAdoo’s class action claim alleges that UNC breached its contract with football players, violated the state’s consumer protection law, and committed fraud when recruiting athletes. McAdoo expressed particular distaste for the fashion UNC conducted it recruitment, as that was one of the main reasons he had decided to attend UNC. He stated that when the coaches and academic staff came to visit they did not discuss football but instead talked about academics. This promise turned out to be false.

This suit is another hit to the NCAA who has been heavily targeted by former and current players for its treatment of student athletes. The NCAA is prohibited from remunerating its players for revenue and sponsorship it earns from college sports. Instead the NCAA believes they compensate student athletes adequately for their services by providing scholarship funding for an education that would otherwise cost $80,000 or more. McAdoo and his fellow claimants have been deprived of this benefit and UNC in turn continues to earn the substantial profits.

Is UNC the only university that conducts itself in such a manner? Skeptics say no; NCAA football is big business. Coaches are paid a substantial amount of money to win games. It is not unrealistic to conceive that they are motivated to ensure by whatever means possible that their student athletes meet the minimum academic requirements. To me this represents a moral hazard issue where the coach could very well be more concerned with losing his position rather than helping his student athletes both on and off the field. The reality is the majority of student athletes will not make a cent in the professional leagues and in turn will rely on the supposed education they were supposed to receive at university.

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Are CHL hockey players amateur student athletes, independent contractors or employees?

November 17, 2014

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By Kimberly Jensen – Thompson Rivers University 2L JD Student

In a recent class action lawsuit, players claim $180 million for back pay due to being underpaid when compared to the minimum wage. Vacation pay, overtime, and punitive damages have also been claimed. The 16-20 year old players sign contracts with teams and are paid between $35.00 per week and $125.00 per week.

The Canadian Hockey League (CHL) claims its players are ‘amateur student athletes’, although their contracts say they enter into the team agreement as ‘independent contractors’ and the class action claims they are employees. So, what are they?

The consensus from legal commentators is that the issue will be whether players are independent contractors or employees. The website for BC Ministry of Jobs, Tourism and Skills Training and Responsible for Labor sets out the test for whether a person is an employee or an independent contractor –

“In order to be an independent contractor, a person performing services has to be in business for himself. Designating a person as an independent contractor does not decide the issue.”

In the standard player contract, players sign on as independent contractors, however as stated above, ‘designating a person as an independent contractor does not decide the issue’, so the contractual label for players may not be as relevant as it seems.

The Court has made it clear that the test is very contextual, and not all factors apply in all situations. The central question is: “Whether the person engaged in doing the actions did so as a person in business on his own account. In making this determination, the level of control will always be a factor.”

Control includes factors such as: Does the person take independent financial risk? Does the person have opportunity for profit? Is the person hired given instruction, supervised, controlled, or subject to discipline? Was the person told what to do, how to do it, and when to do it? Is the person under the direction and control of another regarding the time, place and way in which the work is done? Did the person have to do the work, or could that person give the work to someone else?

Application of these factors to the CHL debate indicates that the players are employees. Players do not take financial risk (high control by the league); the players do not have chance for profit above and beyond their wage (high control by the league); the players are given instruction and supervised, although this factor doesn’t really fit because of the inherent nature of instruction required in coaching sport (neutral). The players are told what to do and when to do it, however this is also part of being coached in a sport, so is neutral. The players are not under the control of someone else with regard to time, place, and form of work (high degree of control by the league) and the players could not subcontract their work out to another (high degree of control by the league)

The greater the degree of control by the entity paying the person, the greater the likelihood the person will be deemed an employee. In the application of some factors that illustrate the degree of control, it does seem that the league has a high degree of control over their players. Without further analyzing the case law to see what analogies can be drawn to landmark cases, it is impossible to say whether the degree of control found here is high enough. It does seem like the court will need to weigh in carefully on this case.

There are factors that make application of the employee or independent contractor test complicated. For example, players have different contracts depending on their age and whether they live in their hometown or not. Perhaps this case will add another category of worker to the special designations recognized in the BC Employment Standards Act. The Act already allows for slightly different rules for specific classes of workers such as domestic workers and farm labor contractors. The different rules take into account specific situations that are inherent to the employment due to the nature of the work and employment relationship.

A specific class makes sense for this case as well because there is some merit to requiring the players to be paid minimum wage. There is money to be made from operating a CHL team and it doesn’t seem fair that players give up so much of their time for so little compensation. The hope of one day playing in the NHL doesn’t come true for many players, and the scholarships that are available also seem to be elusive for many players so although there is a claim that the CHL provides benefits above and beyond the small financial reward, these benefits appear to be uncertain. A specific class of worker such as ‘semi-professional athlete’ might be able to protect the players while maintaining the financial viability of the CHL enterprise.

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