Archive | October 13, 2015

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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