Archive | October, 2015

Heads Up: Concussions, Class-Actions and the National Hockey League

October 22, 2015

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By Brianna Meyer – Thompson Rivers University 2L JD Student

The Stanley Cup. Sidney Crosby. Wayne Gretzky. These buzzwords ignite dreams of aspiring elite hockey players across Canada as children of all ages commence the journey to the National Hockey League (NHL). For those that make it, the NHL provides the ultimate platform of hockey excellence. A dream come true. But at what cost?

For over 200 former NHL players, the lasting effects of head injuries sustained during their professional hockey careers have motivated a class action lawsuit against the NHL. The players allege that the league was wilfully withholding information about the long term health effects of repeated head trauma and was actively encouraging dangerous behaviour.

This lawsuit follows the successful $765 million dollar settlement for players of the National Football League sustaining similar head injuries. Boston University researchers have diagnosed several deceased NHL players as victims of trauma-related brain disease. Although this area of research is novel and still advancing, Boston University has identified a link between chronic traumatic encephalopathy (CTE) and repeated blows to the head. CTE is a degenerative brain disease found in former deceased athletes often identified by the presence of hyperphosphorylated tau (an abnormal protein in brain cells).

This link is currently being questioned by the NHL who has since subpoenaed records from the Boston University researchers conducting these studies. NHL commissioner Gary Bettman has rejected the very notion that the link between CTE and sports-related concussions exists at all. Besides this league denial of a connection, there are other significant obstacles that stand in the way of former NHL players claiming damages from the NHL for their injuries. The majority of the claimants are retired, which raises questions as to the limitation period upon which this litigation is brought. In addition, we are talking about professional hockey players who grew up playing in minor and amateur hockey leagues. Isolating causation and liability specifically to the NHL will be a significant burden to prove.

Despite these impediments, this issue is not going away. In February 2015, Steve Montador died at the age of 35 from an undisclosed cause. He had been exhibiting signs of a brain disorder including depression, memory problems and erratic behaviour leading up to this death. An examination of his brain post-mortem revealed that he suffered from CTE. The scope of this class-action lawsuit demonstrates that Steve Montador is not alone.

Changes to the NHL official rules to prohibit illegal checks to the head were made in 2011. But is that enough? For players suffering from the long-term effects of traumatic brain injuries sustained while playing professional hockey the answer is clearly no. When elite athletes elect to participate in a sport there are always inherent risks. However, the core of this lawsuit alleges that the NHL withheld the very information players needed to know to make a rational, informed choice about taking such risks. The lawsuit emphasizes that the NHL has the capacity and the resources to better prevent head injury but failed to do so. Players can only consent to risks they are aware of. The NHL, it is alleged, blurs the lines of what players actually consent to.

CTE. Second-impact syndrome. Traumatic brain-injury. These words are killers of professional hockey dreams unless there are significant changes in the prevention, treatment and and return-to-play protocols of concussed players in the NHL. Legal accountability is one mechanism that can trigger this process. For the sake of aspiring hockey players across North America, I hope that the courts can force the NHL back into the reality of the game to deal with this issue head on.

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R. v Riesberry – horse racing, doping, fraud and the Supreme Court

October 22, 2015

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By Chris Gall – Thompson Rivers University 2L JD Student

A unique case involving horse doping has reached the homestretch as it was heard by the Supreme Court of Canada last week. Here are the facts of the case: Derek Riesberry, a standardbred racehorse trainer, was caught by hidden camera injecting a performance-enhancing drug into a horse. Further, a syringe containing drugs was also found in his truck. He was charged with cheating and attempted cheating at a “game” as well as fraud and attempted fraud – all of which fall under the Criminal Code.

At trial, he was acquitted, with the judge ruling that horse racing is not a “game” within the meaning of the Criminal Code, and further, the Crown had failed to prove “deprivation” i.e. that anyone relied on his injecting or not injecting the horse with the drug. In essence, no monetary loss occurred from relying on the information so there was no deprivation and therefore no fraud. The charges of cheating were also dropped because the judge concluded horse racing was not a “game of chance or mixed chance and skill,” and thus did not meet the Criminal Code definition of a “game”.

The appeal court overturned the ruling and entered convictions on fraud, because he deprived bettors of an honest race and violated the rules of horseracing. The Supreme Court of Canada reviewed the meaning of “game” under the Criminal Code and raised questions concerning fraud, cheating, and whether horse racing involves chance.
There are three potential outcomes for Riesberry: 1) the fraud convictions are confirmed, 2) the fraud convictions are overturned, and 3) a new trial is ordered on fraud charges.

This case is being watched closely by the racing industry in Canada which insists doping is rare, however it is severe enough that six Ontario police officers have been seconded to the regulatory body for horse racing, the Ontario Racing Commission. This case also has implications throughout North America, where horse racing is still big business with $11 billion being bet on horses last year ($5.7 billion of that in Canada). It will be interesting to see how the issue of doping sorts itself out. One possible solution from the USA is the recently introduced Thoroughbred Horseracing Integrity Act of 2015, which seeks to grant authority to an entity created by the United States Anti-Doping Agency for making and enforcing rules as well as testing for drugs and medications used in horse racing.

Another solution involves pressure applied by corporate sponsors. Scared by doping scandals in other sports, they do not want their brand associated with cheating or scandal. However, this is likely not enough. A real struggle comes from the veterinary business itself, where animal doctors prescribe and sell the drugs they administer. In this instance, the more drugs they prescribe the more money they make which raises issues of animal welfare as well. It is likely the courts themselves do not possess the power to compel real change. This poses a greater challenge when the potential health risks from doping are not faced by the person doing the injecting, and owners themselves may be unaware of what a trainer is doing. All bets are off until regulators, lawmakers, and industry insiders can work together and those in racing come clean.

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Uncertainty in Outcomes – Draft Kings Class Action Lawsuit Promotes Fair Play

October 22, 2015

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By Edward Hulshof – Thompson Rivers University 2L JD Student

Sport is a big-money industry. Players, coaches and team owners make millions. Teams are worth billions. Apparel, soft-drink and other spin-off companies make billions. Fans relish in entertaining contests of skill and talent and this fan participation is enhanced by fantasy sports. Fantasy sports date back to the early 1960s when Oakland Raiders partner Wilfred “Bill” Winrenbach helped start the GOPPPL (Greater Oakland Professional Pigskin Prognosticators League).

The .dot com boom has brought fan participation in fantasy sport contests to new levels, becoming a multi-million dollar industry. Money makes the world of sport go round, shaping the interests of stakeholders and participants. The entertainment value in sport stems from the uncertainty in outcomes. When the outcome becomes certain, aggrieved parties often head to the courts.

Indeed, class action proceedings were recently commenced against FanDuel, Inc. and DraftKings, Inc. (the “Defendants”), operators of daily fantasy sports (“DFS”) websites. The Class Action Complaint (the “Complaint”), filed October 8, 2015 in the southern district of New York, alleges the Defendants “fraudulently induced the Plaintiff and the proposed class to give Defendants money, which ultimately went to Defendants and employees through fees and contest prizes.”

“Fish,” DraftKings’ endearing name for new inexperienced users drawn to DFS contests in the hopes of winning large cash prizes, paid entry fees of varying amounts which, as alleged in the Complaint, found its way into the hands of “whales,” DFS top-earners, a significant number of whom are “employees – often executives – of other sites.” The Plaintiffs allege that as a result of misrepresentations and omissions, they were fraudulently induced to participate in the Defendants’ DFS websites, which were marketed as games of “skill.” The Complaint paints the DFS contests as nothing short of scams.

The scam works like this: the Defendants aggressively promoted their DFS contests as games of skill. The “skill” in the game is a participant’s unique exercise of analytical abilities including culling large amounts of player statistics to make informed purchases of athletes for their fantasy teams. The better informed players – those with knowledge of athlete performance statistics – create the best teams and perform best. Access to information is key: the more a player knows, the better positioned they are to win. Unfortunately, “whales” have access to more information than “fish.” They also have access to analytics tools and “years of data on optimal strategies” enabling them to better analyze and detect the purchasing patterns of “fish.” “Whales,” it is alleged in the Complaint, used this inside information to their benefit. The game of “skill” wasn’t a game of skill at all.

There are inequities in all sports. Some athletes are stronger and faster than others. Some deal with pressure better than others. Some have more time to practice The law often steps in to level the playing field by placing limits on access to unfair advantages; for example, professional golf authorities place limits on equipment technology and most sports ban performance enhancing drugs.

In the sport of DFS contests, the law can be used to promote fair play by restricting who participates and how they play. Indeed, the allegations surrounding fraudulent misrepresentation coupled with a large class action lawsuit, if successful, will surely serve as a useful deterrent against future unfair play in the DFS arena.

In order to be successful, however, the Plaintiff must satisfy the test for class action certification. In New York this consists of satisfying the elements of numerosity, commonality, typicality, adequacy, and superiority. The Plaintiff addresses each of these elements by arguing (1) the joinder of all members of the plaintiff class would be impractical, (2) the plaintiffs share questions of law and fact, (3) the plaintiffs were all induced by the Defendants’ advertisements, (4) the plaintiffs do not have any conflicts of interest and would protect the interests of the class, and (5) the class action will permit fair and efficient adjudication. A fundamental policy rationale for class actions – that is behaviour modification – is best served, however, if the Plaintiff class can keep their case in court.

Interestingly, the Complaint makes an effort to thwart any attempts by the Defendants to avoid a class action by arbitrating pursuant to the DFS website “Terms of Use,” arguing the Terms of Use are invalidated by the fraudulent misrepresentations of the Defendants. (There can be no contract if the Plaintiffs were fraudulently induced.) Arbitration, it could be argued, would not serve the interests of the plaintiff class, and the larger policy rationale of behaviour modification, by potentially sheltering the legal claims behind closed doors. If the class action is to have its intended benefit, avoiding arbitration is an important strategic approach to pleading.

The DFS class proceeding is still in the early stages and it is too soon to tell whether it will continue. In any event, this looming lawsuit will likely cause many DFS websites to modify their Terms of Use and make efforts to level the playing field. Like all sports, uncertainty in outcome is the source of entertainment. If DFS is to remain entertaining, companies would be wise to take note of this class proceeding.

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Publishing ‘Suspicious’ Blood Tests – Lining the Pockets of Media Outlets or Serving a Public Interest?

October 18, 2015

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By Vivian Wilson – Thompson Rivers University 2L JD Student

On August 2, 2015, International Association of Athletics Federations (IAAF) blood test data was leaked and published by German Broadcaster, ARD, and British newspaper, The Sunday Times. These media outlets claimed that the data was leaked by a whistle-blower who was troubled by the content of the blood sample database. However, after conducting internal investigations, the IAAF stated that there was no whistle-blower and the data had been illegally obtained.

The leaked blood test data, purportedly containing ‘suspicious’ results, has put clean athletes, like Paula Radcliffe, in the spotlight and forced them to defend themselves by publicizing additional personal information, such as medical reasons for fluctuations in blood test results. The Sunday Times allegedly told athletes that if they failed to consent to the publication of the data, and did not disclose further information to show they were not guilty of cheating, they would cast doubt on their innocence. However, as Radcliffe stated in response to the Sunday Times coverage, providing additional personal information to explain the fluctuations in blood data leads to widespread media coverage of athletes’ names in connection with allegations of doping, causing further damage to their reputation, despite their innocence.

Under British law, blood test results are categorized as ‘sensitive personal data’ and are protected by the Data Protection Act 1998 (DPA). Also, the World Anti-Doping Agency (WADA) provides an International Standard for the Protection of Privacy and Personal Information, a mandatory international standard that all relevant people and organizations must adhere to, which gives a certain level of protection over privacy and personal data in jurisdictions where data protection requirements are less strict.

Sports law commentators, Abby Brindley and Edward Carder, note that if the Sunday Times held the blood data in the United Kingdom, they had a duty to comply with the DPA. Section 32 of the DPA has an investigative journalism exemption from those provisions that would prevent people from processing information for the purposes of investigative journalism where there is a reasonable belief that the publication is in the public interest. Further, the European Convention of Human Rights provides that journalists are able to process personal data without an individual’s consent where there is a public interest. These exceptions to the DPA and Article 8 of the European Human Rights Convention – the right to respect for private and family life – raise the question, is there a public interest here sufficient to allow for the Sunday Times and ARD’s disclosure of the blood data?

Doping in sport is typically thought of as the worst kind of cheating. It is sanctioned harsher in sport than acts like domestic abuse and other felonious behavior committed by athletes, but is this view warranted? What public interest is served here by exposing athletes’ private information, and in some cases forcing athletes to publicize additional personal information in order to clear their names?

The sensitive nature of cheating in sport and the damage that doping allegations can do to athletes’ reputations and earning potential, as well as their potentially devastating effect on the fans of implicated athletes, suggest that there is no public interest being served by publishing ‘suspicious’ blood data that casts doubt on the honesty of athletes.

Rather, doping accusations cause social harm by vilifying athletes who inspire and motivate people. For example, during Ben Johnson’s doping scandal, media outlets reported that Johnson left Canada “shattered,” “plunged [the nation] into embarrassment,” and caused his mother a “lifetime of grief and shame.” These media overreactions to Johnson’s doping exemplify the effect that doping scandals have on the public and the athlete’s reputation, and demonstrate the harm caused by allegations of cheating in sport with essentially no foundation in genuine public interest.

In conclusion, the August 2, 2015 publication of IAAF blood data does not serve a public interest but rather the economic interest of the media outlets that publicized the information. Therefore, their actions go against the DPA and the WADA International Standard for Protection of Privacy and Personal Information and should not fall under the journalism exceptions of the relevant UK and European law.

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From Sport Courts to Law Courts – Are Lawsuits the Answer for Benched Players?

October 18, 2015

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By Samantha Sayn-Wittgenstein – Thompson Rivers University 2L JD Student

Increasingly, more teenaged “benched athletes” and their families are looking to the courts when they are dissatisfied with playing time. Sport scholarships are increasing, and youth sports are becoming over-organized and professionalized. In turn, greater time and monetary investments from young athletes and their families are required. With this increased input, the demand for more output grows accordingly. If parents are spending thousands of dollars on their child’s athletics, they expect adequate development and exposure to collegiate scouts. When this development and exposure doesn’t occur, some parents are willing to spend thousands of dollars on lawsuits against coaches, leagues and associations.

More and more, participation in high school or collegiate sports is being viewed as a “career” or a high pressure job. In 2014, sport scholarships amounted to just over $15 million in Canada, a number which doubled in just seven years. The more money that is available in scholarships, the greater the pressure on athletes to perform and receive one of them. Furthermore, with youth sport organizations such as the CIS (Canadian Interuniversity Sport) in Canada or the NCAA (National Collegiate Athletic Association) in the US becoming more similar to professional sport associations, the proprietary interests of youth sports has grown.

The recent case of 16-year-old volleyball player Audrey Dimitrew who had high hopes to play in front of varsity and college scouts after making the team of the Chantilly Juniors in Virginia, but was benched and then sued the association, is an example of the pressure to impress. But can the courts interfere with the coach’s discretion to bench a player?

Another example is the William Munck case about an attorney, who sued the Dallas Lacrosse Academy for benching his son. It made national headlines as Munck filed the lawsuit under the Racketeer Influence and Corrupt Organizations Act. This brings up the question whether or not it is appropriate for parents and players to bring their dissatisfaction and disagreement with a coach’s decision to the courtroom.

The answer by the courts continuously seems to be that playing time, or even mere participation in school athletics, is simply part of a multifaceted education, and not constitutionally protected. Further, courts are hesitant to get involved in the decisions of private organizations such as leagues and associations. Even if the courts were the right venue to address and vent about playing time, what are the remedies available to them?

The volleyball player’s case resulted in the court noting that it is a pity the athlete wasn’t able to play for a season, but that the law does not stipulate for judicial interference in such cases, while the Munck case reached a settlement in which the Dallas Lacrosse Academy agreed to a number of conditions including not to influence or interfere with the athlete’s playing time and scholarship opportunities. In the volleyball case it even threatened to shut down the whole league as it feared this case might open the floodgates to more parents suing.

Courts exist to adjudicate serious sporting disputes when teams or leagues may not be equipped to deal with such as discrimination against players of a specific ethnicity or gender. However, the volleyball and lacrosse cases were not about playing time being illegally restricted due to race or sex but was instead determined on factors such as skill, development and commitment.

Lawsuits like the ones Munck and Dimitrew produced threaten the existence of leagues and thus general access to sports for youth. It might be time to remember that sport is “played” and participants should have fun and that only a very small percentage of varsity or collegiate athletes will receive scholarships.

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Fantasy Sports Leagues versus Sports Gambling in the United States: The Blurred Line Between Chance and Skill

October 18, 2015

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By Talina Handel – Thompson Rivers University 2L JD Student

The recent and rapid growth of fantasy sports leagues into a multi-billion dollar internet industry has many people questioning the legality of the activity: how are online fantasy sports games legal while the entire act of sports gambling is rendered illegal in the United States? The simple answer is that the passing of the Unlawful Internet Gambling and Enforcement Act (UIGEA) by the United States Congress in 2006 expressly made fantasy sports gaming a legal activity. Section 5362(1)(E)(ix) of the Act specifically exempts “participation in any fantasy or simulation sports game” from the definition of gambling, betting or waging, so long as the prizes and awards are known to participants before the contest commences and their value does not change with the number of participants. It also holds that the winning outcome cannot be based on any specific player’s performance or on any specific real-world game. In short, the Act carved out a special statutory niche for fantasy sports leagues and business has been booming ever since.

Regardless of the UIGEA, the government’s statutory exemption of fantasy sports leagues from the gambling world has many people scratching their heads in bewilderment. Federal and state legislation consistently define gambling activities as those in which the “opportunity to win is predominantly subject to chance.” Thus, much of the debate surrounding the legality of fantasy sports leagues is anchored in the argument that one of the key ingredients of fantasy sports games is skill; whereas sports betting is entirely dependent on chance. Participants in fantasy sports games use their discretion and knowledge to select players and ultimately build their ‘dream team’, the performance of which translates into winnings.

Although this argument is one of the main lines of reasoning advanced in favour of the legality of fantasy sports leagues, it might not be able to withstand a closer look. First, the amount of skill required on behalf of a fantasy sports game participant is very minimal. Before technology took over, participants engaged in a manual tracking and compilation of player statistics in order to build their ‘dream team’. Now, the technology of big-box fantasy sports leagues provides automatic statistical updates and access to expert fantasy sports analysis to its online participants. Thus discretion, rather than skill, is likely the more accurate word to describe a fantasy sports participant’s cognitive involvement in the activity.

Second, even if one concedes the very weak reasoning that there is in fact an element of skill involved in the selection of players in a fantasy sports game, this does not vitiate the presence of chance involved in the outcome of the fantasy game. There is an abundance of factors that can and do change an athlete’s performance each and every game; athletes are not robots after all. Wagering on a player’s performance by selecting them for one’s fantasy team based on automatically compiled statistical data is taking a chance on that player’s performance. Thus, chance is undeniably present in the outcome of a fantasy sports game and the level of ‘skill’ involved does not mitigate this fact.

The blurring of the line between skill and chance may very well be the strongest point of argument for rendering fantasy sports another form of sports betting. The United States courts have not yet decided on this issue. In 2007 Humphrey v Viacom Inc. presented the New Jersey District Court with the opportunity to delve into the difficult analysis of skill versus chance involved in fantasy sports leagues. While the court briefly hinted that skill may be the predominant factor in fantasy sports games, it declined to conduct the necessary legal analysis required to make a definitive decision and instead dismissed the case on an unrelated federal court rule.

There is ample opportunity to present a strong argument to a United States court that fantasy sports gaming is in fact an activity where the outcome is predominantly determined by chance. When this chance arises, it is likely that fantasy sports leagues will fall into the category of sports gambling and be consequently illegal under United States federal law.

 

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Will Cheers From The South Motivate CFL Cheerleaders To Take Action?

October 18, 2015

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By Cassandra Milne – Thompson Rivers University 3L JD Student

South of the Canadian border, professional cheerleaders in the National Football League (NFL) have been raising their pom-poms not only in support of their teams, but also in support of basic employee rights.

In January 2014, two former Raiderettes turned their pom-poms against the NFL Raiders by filing a class action lawsuit. The lawsuit claimed that the Oakland Raiders paid their cheerleaders less than minimum wage, withheld their paychecks until the end of the season, and failed to reimburse cheerleaders for business expenses. The Raiders initially defended their actions by claiming the cheerleaders were independent contractors but eventually opted to settle out of court in September 2014. The Raiders tripled the pay to their new cheerleading squad and paid out a total of $1.25 million to 90 women who cheered between 2010 and 2013. In addition, Raiderettes now receive a ten minute break during NFL games and will no longer be subjected to illegally deducted wages for minor rule infractions such as showing up a few minutes late to rehearsals, wearing the wrong color nail polish, or failing to bring the correct pom-poms to practice. Since the Raiderettes’ class action suit, four other NFL cheer teams have brought forward similar actions.

Eighteen politicians from eight states across the United States have written the NFL commissioner, Roger Goodell, requesting that he “correct this economic injustice” by requiring all teams to pay their cheerleaders minimum wage. The National Football League has maintained that cheerleader pay is a team issue and adamantly supports fair employment practices that comply with federal and state law.

Politicians have since taken action by working to enact and implement new legislation. New York state is currently tabling the Cheerleader’s Fair Pay Act and in January 2016 a California state law will come into force demanding professional sports teams to provide their cheerleaders with basic employee rights such as minimum wage pay and sick leave.

The implications and actions taken by cheerleaders in the United States have yet to trickle up into the Canadian Football League. Currently, many Canadian cheerleaders are occupying what are deemed to be volunteer positions. The Edmonton Eskimos boast that their cheer team is composed of “ultimate volunteers with the hundreds of service hours they give to the community.”

The BC Lions Cheerleaders, the Felions, are paid per game and for appearances. Besides attending the games, Felions are expected to attend weekly practices for nine months and are not paid for their time. In addition, Felions are required to sell the team calendars. However, they are compensated with two season tickets and sponsored services such as gym memberships, tanning, clothing discounts, and hair styling. Despite these advantages, are CFL cheerleaders being fairly compensated?

Section 16(1) of the Employment Standards Act of British Columbia states that, “An employer must pay an employee at least the minimum wage as prescribed in the regulations.” An employee is defined in section 1(c) “as a person being trained by an employer for the employer’s business.” It is arguable that the Felions are trained at rehearsals for the BC Lion’s games and, therefore, fall within the definition of an employee. Furthermore, the British Columbia Supreme Court in HMTQ et al v. Emergency Health Services Commission et al, stated that, “… courts and tribunals have stretched the meaning of “employment” to ensure that the purposes of human rights legislation are not thwarted in the sense that the targets of discrimination are not left without any remedy.”

It is estimated that cheerleaders are worth $8,250,000 USD each game day to the NFL. Despite promoting the NFL brand, cheerleaders are just starting to earn minimum wage. The desirability of becoming an NFL or CFL cheerleader allows team franchises to negotiate low wages. Logically, this too should apply to male football players, as the desirability of playing football in a professional setting is extremely high.

Football players are able to avoid this supply-demand phenomena by continually bargaining for higher compensation. For example, the share of its revenue that National Football League paid to its players increased from 17% in 1956 to 53% in 2012. Cheerleading, a predominately female field, has been left out of these negotiations.

Society has allowed professional sports organizations to underpay their cheerleaders based on the notion that they love their job. But, by that logic, many professional athletes should be underpaid for their job. Worker compensation has nothing to do with how much one likes or dislikes their job; at the very minimum it should meet the requirements required by law.

 

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Low Pay, High Risks, Extreme Glory

October 18, 2015

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By Deanna Campbell – Thompson Rivers University 3L JD Student

In the weeks leading up to the one of the biggest mountain biking events of the year, the risk versus reward debate has arisen in a sport not unfamiliar with the discussion. This October marks the 10th edition of Red Bull Rampage, an extreme mountain bike event that sees some of the world’s best big mountain riders take freeriding to the next level in unforgiving terrain outside of Zion National Park in Utah, USA.

Many competitors and commentators take issue with the small amount of prize money awarded to athletes given the dangers and risk involved. The Freeride Mountain Bike Association (FMBA) regulations set out the minimum prize money amount to be awarded ($35,000 USD) but it is up to the event organizer (in this case Red Bull) to determine the actual payout. Only the top five riders ride away with paycheques and placing anything less than 1st can award you with as little as several thousand dollars. And what about those who do not place? Should all athletes participating in Red Bull Rampage be compensated?

Some argue that in the interest of fairness, every competitor who qualifies should be amply compensated as a professional performer for participating in Red Bull Rampage or any FMBA event. Every rider lays down their lives for the competition. To be sure, one need only watch footage or view photos of some of the horrific crashes and close calls at Red Bull Rampage over the years. It is surprising that there have not been any fatalities yet. Proponents of compensation for all liken the athletes to performers in a show. Win or lose they are putting on a spectacular performance, one the promoters cash in on regardless of where the athletes place. Crashes are just as much a part of the competition, they add excitement and drama to the event and set the bar for which all competitors can be judged.

And Red Bull Rampage is costly for the riders. Mountain bike athletes rely primarily on income through support from sponsorships, and prize money from competitions. Unless financial incentives and support from sponsors are provided, athletes pay their own way to Rampage. The FMBA requires all athletes to purchase and have medical insurance and sports liability coverage. This can be expensive and in some cases insufficient. Mark Matthews, an athlete who competed in Red Bull Rampage 2013, suffered a serious injury during his run and required surgery. His insurance provider refused to pay citing his professional sports activities as “too dangerous.” He was left with $40,000 in medical bills. Examples like this leave many arguing that given the little amount of money competitors already receive in contrast to the large revenue generated from the competition, Red Bull should at least provide and cover the cost of health insurance for the competitors.

The riders also have little to no recourse if they get injured or die. The disclaimer that Red Bull has athletes sign absolves Red Bull and any third parties of any and all liability even in the event of Red Bull’s own negligence. Riders voluntarily assume all and any risks releasing everyone from liability except themselves.

While all this seems unfair, it doesn’t equate to any obligation, legal or otherwise, for Red Bull to compensate all athletes. To do so would change the nature of the competition and the nature of the relationship Red Bull has with the competitors. Red Bull is the promoter and Rampage is a contest, not an exhibition. There are some events/venues that pay athletes directly for appearance fees (i.e. golf, tennis) but this is freeride mountain biking, where competitions are traditionally a winner takes all format. You only get compensated if you place. This makes good sense – it would take away from the spirit and tradition of the sport to reward everyone for just being there and taking risks. Competitors are well aware of the inherent dangers in their sport and accept that risk when they compete. There are, so the argument goes, winners and losers and winners are the parties who ought to be rewarded.

As for the “losers” the risk does not go without any reward. Just competing in Rampage comes with mass exposure, possible sponsorships deals, and a huge sense of athletic achievement. Not to mention glory. You would be hard pressed to find a mountain biker who said he or she was in it for the money and not the glory.

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Lessons Learned for Maintaining a Lengthy Relationship

October 13, 2015

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By Kelly Melnyk – Thompson Rivers University 3L JD Student

Earlier this year, it was announced that the Canadian Football League Players Association (CFLPA) had severed its relationship with Edmonton lawyer, Ed Molstad, after nearly 40 years. The change came after a round of negotiations in 2014 that left some players questioning the abilities of Mr. Molstad. It had also been alleged that Mr. Molstad had been overcharging the Union for services during his tenure as counsel, although that complaint was dismissed by the Law Society of Alberta.

The move by the CFLPA is one that should draw the attention of both Players Associations and young lawyers seeking to break into the field of sports law. These two sides are interrelated in that there is a certain level of responsibility that each party needs to accept. The elected representatives of the CFLPA and counsel both owe a duty to the members of the Union and so it becomes a matter of ensuring that the relationship best embodies this principle.

As a lawyer, being criticized for ones abilities and having their ethics questioned publicly by their own client can shake the willingness to represent said client to the best of their ability. However, representing your client’s interests even when they misbehave is an essential skill to maintain or restore the relationship, a skill that many young lawyers aspiring for work in the CFL should develop.

In a relationship that had lasted longer than many marriages, the CFLPA and Mr. Molstad found themselves in a situation that revolved around the question, “What happens when the relationship appears unable to sustain the duty?” The questions concerned Mr. Molstad’s abilities but also perceptions of overcharging appeared to have destroyed the trust in the relationship between counsel and client, making it impossible to continue on. Despite the concerns over performance and costs, the CFLPA issued a warm statement over Mr. Molstad’s contribution to the sport and the CFLPA over the last 40 years.

One cannot help but wonder if nearly 40 years of working together brought a level of complacency on both sides. In the complaint to the Law Society, the practice of charging a flat fee of $400,000 to the Union, plus a further $200,000 was found to be exorbitant by the complainant players. Mr. Molstad demonstrated that the hourly fee for his services would have amounted to nearly $1 million for that same year. This seemed to further enflame the complainants, demanding an explanation to some of the line items in the billings.

As up and coming lawyers, we are taught to ensure that our clients know what we are billing for and to track our hours. Using vague descriptors, such as “review of files” as alleged in the complaint, do not aid in maintaining a trusting relationship with the client. A senior lawyer ought to have kept better records of for the file but does this constitute a breach of the ethical obligations? The law society did not seem to think so. When representing some 500 players, the accountability is to be there on both the part of the lawyer and the CFLPA executive.

Providing a detailed accounting of services rendered for a large sports organization that can justify the cost is just one skill that a lawyer should have in order to build and maintain the client relationship. The Union bears responsibility for reviewing the bill and agreeing with the charges before proceeding with payment for the services. This was supported by the law society and is the practice in many industries. Rather than having a few members launch a complaint with the law society against counsel, the CFLPA should have pursued the concerns internally so as to avoid the public concerns that arise out of such allegations.

In any relationship, whether as the lawyer or the client, it is necessary to ensure that the communication is open to avoid a total breakdown of the relationship. Lawyers looking to step into roles with players associations should view the outcome between the CFLPA and Mr. Molstad as a cautionary tale on the duty and obligations to the client. Seemingly simple steps such as clear billing and communication allow lawyers and player’s unions to build and maintain trust. Had these steps been followed by Mr.Molstad and the CFLPA the relationship could have been extended for another ten years or more.

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Taken out at the Ball Game: Spectator Safety and the Assumption of Risk Doctrine

October 13, 2015

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By Ian Walker – Thompson Rivers University 3L JD Student

A long-time Oakland Athletics fan is suiting Major League Baseball in a proposed class-action lawsuit. The suit claims the league does too little to protect fans from fast-moving balls and splintered bats, particularly along the first- and third-base lines.

The lead plaintiff and season ticket holder, Gail Payne, feels vulnerable because her seats are not protected by netting and a fan beside her was injured by a foul ball. The lawsuit cited a 2014 study by Bloomberg News that says that 1,750 spectators are injured annually at MLB games.

The suit claims a number of factors have increased the risk to spectators, including pitchers who throw harder, bats that splinter more easily, the league-wide initiative to increase the speed of the game, and modern distractions like video monitors, in-arena Wi-Fi, and interactive apps on smartphones.

The suit also claims that MLB’s failure to extend protective netting is “particularly egregious” since it installed netting in front of dugouts and required first- and third-base coaches to wear helmets, while spectators just as close to the action are left with no protection.

The case brings to light an important doctrine of sports-related negligence cases: the assumption of risk doctrine. According to legal historian J. Gordon Hylton, the doctrine’s application to baseball can be traced to the 1913 Missouri Court of Appeals decision in Crane v. Kansas City Baseball & Exhibition Co. The case decided that because Crane had chosen to sit in an unprotected seat, he had assumed the risk of his injury from a foul ball. The court held, however, that the operator of the ballpark was not completely free from a duty of care to its patrons. The court applied the business visitor rule, holding that the defendants “were not insurers of the safety of spectators; but, being engaged in the business of providing a public entertainment for profit, they were bound to exercise reasonable care, i.e., care commensurate to the circumstances of the situation, to protect their patrons against injury.” This care did not extend to providing entirely protected seating, but only required providing some protected seating for those who desired it.

Hylton explains that the decision in Crane, despite its origins in a fairly obscure court, has been followed in almost all subsequent foul ball injury cases and its principles continue to govern today. The decision seeks to obtain a balance between fan safety and fan entertainment. Because owners do not have a duty to protect all seating with protective netting or to warn spectators of the risks of foul balls, fans choosing to sit in unprotected areas in order to get closer to the action are held to have taken on the risk of any injury related to sitting in such seats. To most fans, the entertainment value has typically outweighed the (relatively small) risk of injury. This recent class action suit, however, seeks to modernize the issues and shift the entertainment-safety balance by expanding the park operator’s duty of care.

Many such cases have come forth and have been dismissed on the basis of the assumption of risk doctrine, and perhaps it is likely this latest one will suffer the same fate. However, the case raises the issue of whether an obscure decision from 1913 should continue to govern spectator injury cases in our modern world. The class action suit’s mention of modern realities – stronger players, faster gameplay, technological distractions – highlights legitimate and important differences between the fan experience now and what it would have been during Crane’s time. With such differences in mind, it may be an appropriate time to reconsider the doctrine of assumption of risk and its application to the modern spectator experience.

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