Archive | October 5, 2015

Contract Negotiations – Seattle Seahawks and Kam Chancellor

October 5, 2015

0 Comments

By Salman Karim – Thompson Rivers University 2L JD Student

This September Kam Chancellor, strong safety for the National Football League’s Seattle Seahawks, did something that the league’s players have very rarely done in the past. He extended his holdout into the NFL’s regular season and lost significant game cheques for the first two games of the Seahawks regular season.

Chancellor, who has three years remaining on his five-year deal signed in 2013, expressed his displeasure in his contract by sitting out for all of training camp. The Seahawks organizational policy is to not re-negotiate contracts with more than two years remaining.

Kam Chancellor and agent Alvin Keels demanded additional monetary guarantees in the contract, partly due to the compensation Chancellor’s other successful teammates had received. He felt underpaid in comparison to other lynchpins of the vaunted Seahawks defence, such as Earl Thomas, Richard Sherman and Bobby Wagner. His positon is understandable given the significant risk of injury and the typical short length of an NFL player’s career. Unlike contracts in other professional sports leagues such as the NHL, NFL contracts are not fully guaranteed and thus a player can be cut well before his contract expires and never see a large amount of that money they signed for.

Considering their salary cap structure, the Seahawks were forced to set a strong precedent in this dispute. As a team loaded with young talent, Seattle’s salary cap situation is a very tricky one to manage. By the nature of the business, good players will come and go, but the idea is to keep the core of great players together. Chancellor’s leverage to re-negotiate was weakened due to his 2013 contract compensating him as a top two player at his strong safety position already. Re-negotiating Chancellor’s deal this early would create discontent with other players, such as defensive end Michael Bennett, who also feel that they are worth more. Having signed a four-year deal last summer, the Seahawks management took a firm stance against this and Bennett decided holding out was not beneficial to his position. Although dissatisfied, he attended all of training camp and is honoring his contract.

As the NFL regular season was set to begin, the Seahawks chose to negotiate with Chancellor and proposed shifting $3 million salary from 2017 to 2016, bringing his salary to $8.1 million from the originally scheduled $5.1 million. This would then reduce the 2017 salary from $6.8 million to $3.8 million. Chancellor declined and his camp termed it as “a bandage solution”. As days wore on, the sides got as close as $900,000 apart but could not reach a resolution. It was reported that Chancellor’s camp had called the Seahawks “petty” over this small discrepancy. The owner of the Seahawks, Paul Allen, then publicly stated that they would not give anything more in the negotiations. This was serious given that Paul Allen rarely comments on team issues. It appeared that this holdout was headed for the regular season.

Chancellor missed the first two games of the Seahawk’s season; both losses where his absence was felt. In week 1 against the St. Louis Rams, Chancellor’s replacement Dion Bailey slipped and fell allowing Rams tight end Lance Kendricks to catch the game-tying touchdown in the fourth quarter. This sent the game to overtime where the Seahawks lost 34-31. After their 27-17 loss to the Green Bay Packers in week 2, pressure appeared to be mounting. However, two days after that loss, Chancellor announced he would return to the team.

Chancellor accrued more than $2 million in fines from his holdout and returned without any changes to his contract. Some of the fines will be rescinded by the Seahawks, but how much is to remain confidential. Chancellor has made it clear that he would like to re-address this issue next summer when he has two years remaining on his deal. Precedent for this was set last summer when the Seahawks shifted some money around for running back Marshawn Lynch whose contract had two years remaining. It appears as though Chancellor would have been better off playing through this season and attempting to re-negotiate next year rather than holding out with little leverage. His motivation is understandable but Seahawks policy made the situation a very difficult one. Caving in a situation like this could have been disastrous for the team’s competitive future. In the end, the Seahawks stood firm and set a strong precedent for upcoming contract negotiations.

Advertisements
Continue reading...

Drug Abuse in Auto Racing

October 5, 2015

0 Comments

By Brian Howarth – Thompson Rivers University 2L JD Student

Doping and drug abuse are well-known issues in the sporting realm. The headlines are dominated by major scandals, such as Lance Armstrong and Alex Rodriguez. North American doping and drug abuse scandals are mostly discussed in the context of major sporting arenas, like the National Football League or Major League Baseball. However, doping and drug abuse are prevalent concerns in other, perhaps less publicized, areas of sport, such as auto racing. The Federation Internationale de L’Automobile (FIA) governs some of the largest auto racing leagues in the world, namely Formula One and the World Rally Championship.

There are key pieces of anti-doping regulations within the (FIA) regulations. There is a prohibited list, international standards for therapeutic use exceptions, international standards for testing and investigation, international standards for the protection of privacy and personal information, and international standards for laboratories.

The FIA, interestingly, does not govern some of the popular North American auto racing leagues like, IndyCar Racing League or the National Association for Stock Car Auto Racing (NASCAR). IndyCar has a substance abuse policy that outlines, among other things, a ban on performance enhancing drugs, which according to section XIII(A)(2)(a) of the IndyCar Substance Abuse Policy, comes with a penalty of a year’s suspension on first violation. This is compared to only a 60 day suspension for non-performance enhancing drugs. Although NASCAR’s rulebook is not as public as that of IndyCar’s or the FIA’s, it has a similar substance abuse policy. NASCAR has had to rely on its use several times, mostly for simple drug infractions, though there has been a case of performance enhancing drugs.

AJ Allmendinger, a race car driver that has struggled to find a solid and successful home, causing him to jump around numerous leagues over his years, was amongst the first high profile drivers to fail a drug test. When in NASCAR’s Sprint Cup Series, while on contract with Penske Racing, he was randomly tested pursuant to the substance abuse policy. In both his sample A and B of the test he was found to have amphetamines in his system, which is included as a banned substance on NASCAR’s prohibited substance list. In July 2012, on the eve of the Daytona race, Allmendinger was suspended indefinitely.

This highlights that no sport is immune from doping scandals. NASCAR would not release the specific substance; still Allmendinger claims it was just a mistaken consumption of Adderall. Luckily, Allmendinger was admitted into the “Road to Recovery” program for substance abuse offenders in NASCAR. After completion, Penske Racing was helpful in securing him rides, and in August 2013 JTG Daughtery signed him to a three year deal. Allmendinger may have been a victim of poor timing, but the quick response and harsh punishment handed down by NASCAR illustrates the seriousness of the offence.

This wasn’t the first time NASCAR had to deal with a drug scandal, in 2009 Jeremy Mayfield tested positive for methamphetamines. Mayfield immediately brought an action against NASCAR in the State of North Carolina “asserting claims for defamation, violation of the North Carolina Persons with Disabilities Protection Act, unfair and deceptive trade practices, breach of contract, and negligence”. However, Mayfield was not successful in either the Superior Court or the Court of Appeal. This case prompted a massive overhaul of NASCAR’s substance abuse policy.

NASCAR’s 2009 Substance Abuse Policy did not specify any prohibited drugs but did craft a memo in 2008 in which methamphetamines were listed as banned substances. The pre-2009 rulebook covering substance abuse was only a couple of sentences long. The 2012 version has expanded it to at least nine pages; similar to IndyCar, NASCAR uses Aegis Sciences Corp to handle the testing and transportation of samples.

Although not all drug abuse is necessarily performance enhancing, the cases mentioned above highlight the need for important change regarding the regulation of drug abuse and performance enhancing drugs. Mayfield’s case brought to light the growing concerns of drug use in auto racing. Although the anti-doping policies have not been frequently tested, with the growing number of cases in other sports it is quite likely that auto racing will follow suit.

Continue reading...

March Madness or March Sadness

October 5, 2015

0 Comments

By Christine Purewal – Thompson Rivers University 2L JD Student

One of the most sacred annual traditions in US sport occurs as winter wanes and spring looms on the horizon – March Madness. March Madness 2015 is a near-month long collegiate basketball championship tournament that brought in over 10 million views worldwide and more than $1 billion dollars in revenue.

Athletes participating in National Collegiate Athletic Association (NCAA) sports are not considered professional athletes. The 440 page NCAA manual refers to these student athletes as amateurs. Despite such a contentious characterization, March Madness brings in more revenue than the Super Bowl. Such high revenue and viewership is made possible because every aspect of the tournament is branded.

Despite such limitless branding, NCAA President Mark Emmert maintains that the NCAA is not a moneymaking industry. It is directly stated on the NCAA official website that “the association’s belief in student-athletes as students first is a foundational principle”. This principle has formed the basis of President Mark Emmert’s argument that amateur athletes should not be compensated for their participation in NCAA sporting events or tournaments. During his testimony for Wilkins v NCAA, President Mark Emmert stated that student athletes are not employees and to pay them would change the very nature of the game.

President Mark Emmert’s contention regarding the compensation of student athletes came under scrutiny when Ed O’Bannon filed a lawsuit against the NCAA for the use of images of its former student athletes for commercial purposes. District Judge Claudia Wilken ruled in favor of Ed O’Bannon and made several findings that would impact the future of the NCAA and its athletes. Firstly, she held that NCAA rules regarding restraint of trade were unreasonable and violated antitrust law. Secondly, she ordered that NCAA scholarships should be structured to include cost-of-living expenses, which were currently excluded. Finally, District Judge Claudio Wilken held that colleges should be permitted to put up to $5,000 in a trust for its athletes during each year of eligibility. The NCAA appealed Wilken’s ruling to the 9th U.S. Circuit Court of Appeals in San Francisco. No decision has been reached in the appeal.

Since the O’Bannon ruling we have seen a changing climate in the courtroom, whereby judges are increasingly questioning the NCAA’s stance and allowing more scholarship cases to be heard.
Most recently, in June 2015 Martin Jenkins, Nigel Hayes and Alec James filed a lawsuit against the NCAA and five major conferences. The injunction sought by the plaintiffs would allow a true free market for college athletes. However, in order to succeed the plaintiffs must challenge the NCAA’s argument that they comply with antitrust laws because they are functioning as a non-commercial entity with an educationally driven mission.

The NCAA’s declaration of being “educationally driven” began to unravel in 2015 when Rashanda McCants filed a class action lawsuit against the NCAA and the University North Carolina Chapel Hill. The lawsuit brings to light the decades-long academic scandal at UNC surrounding “paper classes”. McCants contends that student-athletes were directed towards programs and courses with little rigor in attempt to free their schedules for athletic commitments. In some instances, student athletes were enrolled in non-existent classes within the department of African and Afro-American studies. It is a combination of these factors which McCants claims deprived her of a meaningful education; a meaningful education being of the upmost importance since less than 2% of NCAA student athletes goes on to play professionally.

Given the emergence of these more recent cases, it appears that the climate for student-athletes has not completely changed following the O’Bannon ruling. Although there is a wider acceptance to hear cases regarding the NCAA and possible antitrust law violations, any substantial change to the structure of the NCAA will be a slow process. This is in part due to the flawed system in which the NCAA operates. The system is structured in such a way to maximize revenue through extensive branding and the exploitation of its athletes. It is a combination of these factors which have turned the NCAA into a moneymaking industry.

Continue reading...

Legalized Sports Betting: A Threat To Profits Or The Integrity Of The Game?

October 5, 2015

0 Comments

By Alexander Paterson – Thompson Rivers University 2L JD Student

On August 25th, 2015, the 3rd Circuit Court of Appeal upheld the lower court verdict in NCAA v Christie, voiding New Jersey state legislation on sports betting. In the 2-1 decision by the Appeals Court, it was determined that allowing casinos and racetracks to take bets on sport events violated the Professional and Amateur Sports Protection Act (PASPA). The decision was the latest event in a three-year legal battle between the state of New Jersey and national sports organizations including the National Basketball League (NBA), the National Football League (NFL), the National Hockey League (NHL), Major League Baseball (MLB), and the National Collegiate Athletic Association (NCAA).

All of the national sports organizations opposed the legalization of sports betting on the grounds that “the sponsorship, operation, advertising, promotion, licensure and authorization of sports gambling … would irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games may have been influenced by factors other than honest athletic competition.” While those fears may have merit, New Jersey legislators pointed out the hypocrisy of the national sports organizations in opposing the legalization of sports betting while they simultaneously advertised and profited from fantasy sports.

Fantasy sports have often been referred to as sports betting, although they were specifically exempted from the PASPA in 2006 through the Unlawful Internet Gambling Enforcement Act (UIGEA). However, the recent rise of daily fantasy sports (DFS) competitions has led to questions of whether DFS fall within the exemption granted by the UIGEA. While traditional fantasy sports competitions involved season or playoff long undertakings, DFS competitions are focused on single day or weekend competitions. Furthermore, fantasy sport companies are now acting as facilitators by accepting entry money for fantasy competitions, then distributing it to the winners. The acceptance of money and its subsequent distribution is a large departure from traditional fantasy sport companies who merely facilitated the choosing of fantasy sports teams and players. The intake and distribution of money strongly resembles the actions of a casino, which is likely one of the reasons that both the Massachusetts Attorney General and Nevada Gaming Control Board have taken preliminary steps to assess the legal standing of DFS.

The first weekend of the NFL season featured a reported $31 million in expenditures on 9000 advertising slots by FanDuel and Draftkings, two fantasy sports companies who have each surpassed $1 billion in estimated value. Perhaps it is not surprising then that FanDuel and Draftkings investors currently include the NHL, MLB, NBA, and the National Football League Players Association (NFLPA). As mentioned, those leagues were all party to the lawsuit against the legalization of sports gambling, yet they are all currently involved, either directly through ownership stakes or indirectly through advertisement payments, with a practice that bears a strong resemblance to the sports betting they opposed.

In November 2014, Adam Silver, the Commissioner of the NBA, wrote an op-ed article in which he endorsed the legalization of sports betting in the United States through federal, as opposed to state, legislation. In 2007, the NFL played its first regular season game (of many) in London, England, where sports betting is a legal, commonly accepted form of entertainment. Similarly, the NHL is also strongly considering the possibility of granting an expansion team to Las Vegas, Nevada, where sports betting is currently legal as well. If national sports leagues are so concerned with the impact of legalized sports betting on the integrity of the game, actively looking to expand to locations where sports betting is already legal appears nonsensical.

Looking at the surrounding factors and events, the opposition of national sport organizations to the legalization of sports betting appears to be one based not on the integrity of the game, but on the ability to profit from the current system. Fantasy sports are surging in popularity, and the exposure provided by fantasy sports competitions, along with the money to be made through ownership stakes and advertising revenue, seem to be the primary drivers of their stance on sports betting. State regulation of sports betting in casinos and racetracks does not offer the same opportunity for investment and profits, so it appears to be in the national sports leagues’ best interests to oppose its legalization for the time being, and until federal regulation materializes, ride the wave of profits produced by fantasy sports.

Continue reading...

Non-Guaranteed Contracts, Guaranteed Injuries

October 5, 2015

0 Comments

By Harman Toor – Thompson Rivers University 2L JD Student

Football is inherently dangerous. The term contact sport doesn’t apply to football, collision sport does. While those playing football know the risks, there are certain injures and concerns that have recently garnered considerable attention. Concussions and how to combat player injuries has become a highly dividing topic. Recently, the NFL reached a settlement with more than 5,000 retired players who accused the NFL of not warning players and hiding the damages of brain injuries. This settlement, numerous medical studies and the fear of North America’s most profitable sport eventually failing have led to numerous changes in an attempt to make football safer. However, the one item that is undermining any progress made when it comes to player safety is non-guaranteed contracts.

In 2013, the NFL implemented a concussion protocol in which independent doctors and neuro-trauma specialists examined players who were believed to have suffered a concussion. This was a welcomed change from years past where team physicians would administer tests and decide whether a player was fit to return to action, having to choose between the needs of the team and the wellbeing of a player.

Takings steps to identify concussions as well as changing rules is ignoring a much larger issue; the requirement of players to play through injuries to avoid a loss of wages. Darnell Docket, former player for the Arizona Cardinals stated, “…we know if we don’t play hurt and injured, we’ll be released just the same…the NFL says it wants us to report concussions, but its actions say differently.”
Of the four major North American sports leagues, the NFL is the only one where the contracts of players are not fully guaranteed. This means that when players sign a contract they are only guaranteed a portion of their salary, and may be released without receiving the total amount they signed for. For example, Aaron Rodgers, a Super Bowl winning quarterback recently signed a contract for $110,000,000 of which $54,000,000 is guaranteed. In comparison, Wes Matthews who suffered a major ACL tear, signed a $70,000,000 deal with the National Basketball Association’s Dallas Mavericks that is completely guaranteed. Many football players know that they will not see the entirety of their contract fulfilled, thus they try to negotiate as much guaranteed money upfront as possible.

For the majority of NFL players who are not considered “franchise players”, their leverage for guaranteed money is greatly reduced. Thus, those that know that the fulfillment of their contract hinges on their ability to play are far more likely to ignore their own personal safety in the hopes of continuing to collect a paycheque. Retired linebacker Ted Johnson recalled in The Concussion Crisis: Anatomy of a Silent Epidemic suffering a concussion in a 2002 preseason game. In fear of losing his roster spot and non-guaranteed Johnson partook in a contact drill at practice and suffered a second concussion.

This season Kam Chancellor, starting safety for the 2014 Super Bowl Champion Seattle Seahawks held out in the hopes of restructuring his contract. Numerous outlets have heralded him as greedy and not fulfilling his contractual obligation. However, while owners, fans and the media firmly believe a player owes loyalty to his team, due to the nature of the profession, rarely does a team show loyalty to their players. Prior to the 2015 NFL season numerous players had their team options declined, contracts restructured or were released outright by their team, never making it to the end of their contracts. This batch of players included Vince Wilfork, Andre Johnson and Troy Polamalu, all staples of their organizations.

In data released by the NFL, diagnosed brain injuries from 1996 to 2007 showed a significant decrease in the last five years of the sample. However, tight ends, linebackers and defensive backs (also known as safeties) have seen an increase in the rate of injury with defensive backs experiencing 291 documented brain injuries, more than any other position. Another study recently conducted by the Department of Veteran Affairs and Boston University found that 96% of former NFL players tested positive for chronic traumatic encephalopathy, a degenerative brain disease. As more studies reach similar conclusions, the idea of player holding out in the hopes of securing a more lucrative contract is seen less as disloyal and more as a smart business decision, especially without the assurances of a guaranteed contract.

The NFL has made great strides in attempting to make football safe. However, taking one step forward followed by taking two steps back can only get you so far. If players were able to sign guaranteed contracts, there would be less incentive to put your current and future health in harm’s way. The move towards guaranteed contracts would not eradicate the risks associated with football but would alleviate some of the issues. If the NFL’s goal is to improve player safety, then a move towards guaranteed contracts is long overdue. If the goal of the NFL is to avoid future legal battles for putting their players at risk, this move may be the difference between leaving it all on the field or leaving it all in the courtroom.

Continue reading...

1, 2 3 Bites You’re Out: The Possibility of Liability Stemming from Baseballs Contribution to America’s Obesity Epidemic

October 5, 2015

0 Comments

By Cole Rodocker – Thompson Rivers University 3L JD Student

Mom, Apple Pie and Baseball. All quintessentially American, all extremely bad for your health. With governments across the world encouraging participation in sport as a way of battling obesity, it should come as no surprise that many would push their aspiring Ryan’s and Ruth’s towards baseball, a sport more wholesome than most, cheaper than most, and far less susceptible to traumatic brain injury.

Unfortunately, the great American past time may in fact be doing more harm than good to the spectators it entertains and the children playing the sport itself. The result of a mostly sedentary sport and food provided at baseball games may beg the question as to whether more should be done by the MLB in order to facilitate the health of its players and fans. If a football player can sue for inevitable head trauma, why can’t a baseball player or fan sue for a concentrated push towards obesity? The MLB has been sued on numerous occasions over other health related safety concerns, claims that baseball has made someone fat may be right around the corner.

Baseball is well known for its feats of agility and raw power. Baseball is also known as being an extremely slow game for fans and players alike. With television viewership tanking, the MLB has implemented new procedural rules in order to eliminate some of the downtime, thereby speeding up the game without changing any of the fundamental rules. That being said, sitting down is inevitable; this goes for the players as well. During a game with a low score line, players in the outfield might languish until their turn at bat arrives, only to be quickly struck out and find themselves on the pine until they are forced into the field again. Recent studies have shown the catastrophic effects of sitting for more than 8-12 hours on the human body, an effect that in many instances is not even mitigated by regular exercise. The 7th inning stretch may need to be augmented by a 3rd, 5th, and even 9th inning stretch in order to combat the perils of sitting too long.

Even if one trains and strives to be the best they can be physically, baseball stadiums themselves may be a significantly to the increasing waistlines of North Americans. No one has ever asked to have a salad bought for them in lieu of peanuts and crackerjacks. Local sport concessions are predominantly full of less perishable foodstuffs such as soda, candy, hot dogs, etc, which are terrible for players and fans alike. Larger MLB stadiums have begun to diversify their food offerings, yet many of them are known for colossally calorific creations that might make skinnier fans shake their heads in disbelief. The Arizona Diamondbacks are known for the “D-Bat Dog”, a monstrous 18 inch long corn dog stuff with peppers, bacon and cheese, while the Tampa Bay Rays are known for a 4 pound burger which weighs in at over 8000 calories. For those with a sweet tooth, the Texas Rangers have you covered with the “Fried S’mOreo” which, unfortunately, requires little explanation.

As a corpus of law, “obesity litigation” has been generally unsuccessful, especially now that legislation is in place across more than half of the United States that prevents chain restaurants from being sued precisely because they made someone fat. Proving that a customer was duped into thinking something was healthy when it is in fact not has been successful in multiple instances, not the least of which was a recent class action lawsuit against Nutella. Baseball stadiums would be wise not to misjudge the perceptions surrounding the food they sell.

Thankfully, many stadiums also contain healthier options, not the least of which is the widely acclaimed “Veggie Cheesesteak” served up by the Philadelphia Phillies. The MLB is also a major partner in President Obama’s “Let’s Move” campaign aimed at engendering better health for children through sport and improved diet. This will hopefully have its desired effect, but it should come as no surprise that the MLB would be so keen to partner in such an initiative. The sport itself and its various trappings create fertile ground for lawsuits concerning baseballs effect on obesity, especially in children participating in programs such as Let’s Move. While the MLB is not solely to blame for the obesity epidemic, it should certainly consider doing more at the grass roots level to both save itself from future litigation, as well as truly enhance the lives of its players and fans.

Continue reading...

TRU Law is Back

October 5, 2015

0 Comments

The road to hell is paved with good intentions. This expression is just as appropriate now as it was when coined by – depending on whom you believe – either Samuel Johnson (1709-1784) or Saint Bernard of Clairvaux (1091-1153).

It seems that despite the best of intentions, our pseudo-journalistic responsibilities have suffered due to our academic duties at our respective universities (just think of the time we would have if we could teach without prepping, evaluate without marking, write without researching, and administrate without pushing paper), our coaching responsibilities (Kris to his gymnastics and trampoline teams and Jon to his kids’ soccer/football and volleyball teams) plus the realities of our work lives (Kris as Associate Professor and coordinator of LLM and PhD programmes at Staffordshire Law and Jon as Associate Dean of Law at Thompson Rivers University).

Whilst our intent has been to offer educational or informational commentary in response to contemporary events in sports law, we haven’t posted as much as we would have liked but hope to remedy the situation by increased vigilance and through posts written by our JD or LLB students.

Momentum has picked up in the sports law programme at Thompson Rivers University with approximately 40 students enrolled in Jon’s Sports Law I course. These ambitious and talented students will be earnestly contributing to the Canary.

We’ll begin with a light hearted but thought provoking post about baseball, followed by a piece entitled “Non-Guaranteed Contracts, Guaranteed Injuries” concerning NFL football and brain injuries, and many more.

With apologies to Arnold Schwarznegger and Terminator fans, we’re back.

Continue reading...