Archive | October 18, 2015

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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