Archive | November, 2015

Ambush Marketing Strikes Again at Rugby World Cup

November 23, 2015


By Emily Raven – Thompson Rivers University 2L JD Student

One of the largest sporting events in the world had its final match a few weeks ago. With over two million people in attendance and many more at home, it is safe to say that the 2015 Rugby World Cup provides very lucrative marketing opportunities to its official sponsors. This year corporate giants such as Heineken, Coca Cola and MasterCard were among the event’s official sponsors. But what about other companies hoping to get a piece of the action without the price tag?

Ambush marketing is a term used when a rival company tries to associate itself and its products either directly or indirectly with an event that it does not officially sponsor. This marketing strategy is very commonly used at large sports events. As you can imagine, this style of marketing is quite controversial and can be very frustrating for organizers and paying official sponsors of these events. Some events such as the 2012 London Olympics and the 2014 Commonwealth Games in Scotland passed bespoke legislation to protect its sponsors from ambush marketing. However, the Rugby World Cup did not, relying on existing laws and regulations to prevent ambushes.

One of the methods used by the organizers of the Rugby World Cup to protect against ambush marketers involves intellectual property rights. The event organizers held a number of copyrights in relation to the Rugby World Cup including: Rugby World Cup, RWC 2015, Rugby World Cup 2015, England 2015 and many others. Non-official corporations attempting to use these registered trademarks could face an infringement suit. Logos, photographs and event footage also fall under copyright protection, which could be relied on in a lawsuit.

Apart from trademark or copyright infringement, event organizers could also attempt to bring a claim under the tort of passing off. A successful claim would have to prove that: a) the Rugby World Cup has an established reputation, b) the non-official company made a misrepresentation that it is related to the Rugby World Cup, which caused confusion amongst the public, and c) the event organisers suffered damages.

Despite these measures, the Rugby World Cup still saw a few attempts at ambush marketing. O2 gave away 50,000 branded t-shirts to fans to wear while cheering on England in their “wear the rose” campaign. UK power company SSE also attempted to hand out branded megaphones outside of the stadium, but all megaphones were confiscated by security. Samsung, another non-sponsor, also grabbed attention with its “School of Rugby” campaign which featured British celebrities and former England rugby team players in humorous videos about rugby. Beats by Dr Dre also got in on the action by running an ad titled “the game starts here” starring the New Zealand All Blacks captain Richie McCaw.

One company that had a unique position to ambush market the event was Guinness. The brand already has a history of sponsoring rugby events and is often associated with rugby in the minds of consumers. There is really nothing that the Rugby World Cup organizers or official sponsors can do to prevent Guinness from maintaining this connection from previous sponsorship. Guinness did this with a direct marketing strategy aimed at pubs featuring ads of real life stories of rugby legends.

Guiness ambush tweetsA marketing report released at the end of the tournament examined the number of times a brand was mentioned in a tweet with the hashtag #RWC2015. The report found that Guinness was tagged more times than Heineken throughout the tournament. This shows that sponsorship does not end when the contract terminates. Having a previous sponsorship relationship with an event connects a brand to the sport giving it a strong opportunity to ambush market in the future.

Above are a few of the tweets about Guinness and the Rugby World Cup. Overall, the ambush marketing at the World Cup was rather modest in comparison to previous sporting events of its size. Although being criticized for its lack of legislative bite, in the end managers of the RWC succeeded in protecting their sponsor’s exclusive rights.

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NHL Geographical Expansion – Does Relocation Require Unanimous Consent?

November 23, 2015


By Aasim Hirji – Thompson Rivers University 3L JD Student

On June 24, 2015, Commissioner Gary Bettman announced that the NHL is officially exploring expansion plans. The window for applications was to be between July 6 and August 10 with the application fee being $10 million, $2 million of which was non-refundable. At the time, Bettman noted that the expansion fees would be at least $500 million.

The Board of Governors of the NHL control the expansion process in the NHL, as governed by the Constitution and ByLaws of the NHL. Article 3.3 of the Constitution states that there must be a vote of 3/4 of the Board of Governors in order to allow a new member into the NHL.

Only two markets sufficiently followed the NHL protocol to continue on to the next expansion phase, Quebec City and Las Vegas. Surprisingly, no expansion team was bid on in the Greater Toronto Area.

In the NHL Constitution, in Article 4.3, there is a “veto” right to member teams. “No franchise shall be granted for a home territory within the home territory of a member, without the written consent of such member.” The implications of this clause are very important. It would mean to infringe on the Toronto Maple Leafs’ rights, it would require the Maple Leafs consent for another team to come in that region. Article 4.1 defined the territorial rights as being within fifty miles of that city’s corporate limits.

In Re Dewy Ranch Hockey LLC, where Jim Balsille attempted to sidestep the process, Article 4.3 was challenged as a potential antitrust issue. Gary Bettman, Commissioner of the NHL stated that they are not enforcing that provision, rather relying on bylaw 36, which states that approval of 3/4 of the Board of Governors would ratify a transfer. Bettman also stated that there have been no objections to the league not enforcing Article 4.3, despite a letter dated November 29, 2006 from the Maple Leafs to the NHL stating that they believe a unanimous vote would be required, thus giving the Maple Leafs a veto.

The Canadian Competition Bureau (CCB) analyzed the NHL’s policies in 2008 regarding potential antitrust issues with the relocation policies. The Competition Bureau aimed to determine if the 50-mile home territory rule was an undue restriction of competition. The CCB believed that the veto rule has not been in effect since 1993, precisely what Gary Bettman had stated in Dewy Ranch. Without the veto rule, the CCB determined that there is no legal issue with needing 3/4 of approval from the Board of Governors.

The NHL has not been tested on enforcing Article 4.3 should 3/4 of the Board of Governors agree to relocate a franchise within the territorial rights of another. Relocation and expansion fees can be as high as $500 million, which gets distributed amongst the member teams. As a team in the Toronto region would be incredibly valuable, the fee could even be higher. There may be incentive for certain markets to vote in the affirmative due to receiving a share of the expansion or relocation fee (a 1/30th share).

In the United States, in LA Coliseum 1, the NFL was found to be violating the Sherman Antitrust Act by preventing the Raiders from moving to LA from Oakland. On appeal, the court vacated the damages and offered clarification on the result from Coliseum 1. The court stated that due to the unique nature of professional athletic leagues, territorial restrictions may be required. The court further stated that “objective factors such as population, economic projections and the like would be more likely to pass antitrust scrutiny”. These factors were included in the NBA franchise relocation rules after the San Diego Clippers moved to Los Angeles.

It is clear that infringement of territorial limits would likely lead to long and complex legal cases, whether it be for the Leafs or any other franchise. Since the 2006 letter, the Leafs have unequivocally stated that they believe infringing on territorial limits requires unanimous approval, thus giving every team a veto.

Should a franchise attempt to move into the Toronto area, based on precedent, the Leafs are unlikely to be pleased with the result. There is a significant benefit for other owners to allow a team into the GTA, as there is revenue sharing in the NHL. It is unlikely that the courts would allow the Leafs to exercise a veto, based on the US cases of Coliseum and San Diego Clippers. Even when looking at objective measures outlined in these cases, there is sufficient population, and strong economic projections to launch another team in the GTA.



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Child Labour or a Privilege to Play? The CHL’s Class Action and Washington’s Legislated Exception

November 22, 2015


By Richard Wong – Thompson Rivers University 2L JD Student

In October 2014, class actions were commenced against the leagues and teams that form the Canadian Hockey League (CHL). Players who entered into contracts with teams in the Western Hockey League (WHL), Ontario Hockey League (OHL) and Quebec Major Junior Hockey League (QMJHL) seek to recover back wages, vacation pay, holiday pay and overtime pay in accordance with applicable employment standards legislation. The plaintiffs allege that the standard form contracts signed by all players are employment contracts that contravene minimum wage standards within their respective jurisdictions. The Statement of Claim alleges that the average player only earns $35 – $50 per week for 35 – 40 hours of work.

In August 2015, Engrossed Senate Bill 5893 (the “Bill”) was passed in the state of Washington – home of the Seattle Thunderbirds, Everett Silvertips, Tri-City Americans and Spokane Chiefs of the WHL. Section 3(p) of the Bill explicitly excludes from the definition of employees: individuals between the ages of 16 – 20 “in his or her capacity as a player for a junior ice hockey team.” The Bill states the legislature clarified that junior ice hockey players are not employees in order to “assist the financial stability of public facilities districts and ensure the viability of junior hockey in the state.” The Bill also states that the legislators recognize that junior ice hockey teams provide “significant benefits to their players by teaching them valuable athletic skills and interpersonal life skills,” in addition to providing “significant financial support to their communities as tenants of arenas owned, operated, or managed by public facilities districts.”

Concerning this passing of legislation, it has been reported that a memo written by Assistant Attorney General of the state advised an investigator with the Labour and Industries Department that junior hockey players should be considered employees and be protected under minimum wage law. These views were considered by the investigator and reiterated in a report that advised colleagues that “players should be considered employees instead of trainees” because teams are receiving immediate benefits from their players. In addition, it was reported that players from outside the US obtain P-1 Visas which are required for internationally recognized athletes to “work.” The investigator used this as another example to support her recommendation that WHL players should be treated as employees and protected under child labour laws.

Considering the passing of the Bill, even against the recommendations of investigators and the Assistant Attorney General, it appears the legislators favoured the financial and social value these Washington teams bring to the state – over the interests of the athletes providing their services. Although I acknowledge that playing major junior hockey is a privilege, and agree that these teams provide their players with valuable skills, I cannot comprehend how these factors justify overriding child labour laws.

The justification as stated in the Bill is blatantly prejudicial. It seems to mean that even though there are child labour laws in place, and even though these athletes would otherwise be defined as employees in law, they should nonetheless be deprived of protection in order to sustain the financial viability of arena districts. This means that no matter how many hours these players are required to provide their services (because they have no choice to – either they agree to or do not play), they should be deprived of the legislated minimum wage because their services generate money for the state.

Passing of this Bill leaves one to wonder at what expense does the social or financial value of sport override the rights and interests of those who participate? Will legislatures from other states and provinces that have teams in the WHL, OHL or QMJHL follow Washington’s justification for making major junior hockey players the exception? Or will these jurisdictions recognize the backlash that this decision will bring and that minimum wages for these particular athletes is a cost that teams should pay? It will be interesting to see the developments in these class actions and if child labour rights continue to be recognized at law in this context. This will require careful deliberation of lawmakers in these jurisdictions. If the legislatures choose not to involve themselves in such a decision, it will be up to the judiciary to weigh the value of sport against the rights of its participants.


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Do NBA cheerleaders deserve to be paid?

November 22, 2015


By Afras Khattak – Thompson Rivers University 2L JD Student

The Milwaukee Bucks of the National Basketball Association (NBA) are purported to have been engaged in unlawful pay practices for their cheerleaders for allegedly failing to comply with the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”). I posit that the Bucks will likely follow the recent stream of NFL cheerleader pay practices case law, and settle out of court even if they can establish an exemption under the FLSA.

This case materialized when Lauren Herington, former cheerleader of the NBA’s Milwaukee Bucks, filed a lawsuit alleging that the team failed to pay her in accordance with federal and state minimum wage laws. Ms. Herington contends that the team required its cheerleaders to spend upwards of thirty hours per week in mandatory practice and workout sessions, in addition to their game-day duties. Because these workout sessions (as well as mandatory salon visits) were unpaid, the complaint was brought forward to substantiate Ms. Herington’s claim that the Milwaukee Bucks not only failed to pay their cheerleaders the minimum wage, but often neglected to pay them overtime as well.

The Bucks could argue that the team is exempt from at least the federal minimum wage and overtime requirements under s. 213(a)(3) of the FLSA, a statutory provision covering seasonal amusement and recreational establishments. Under this exception any amusement or recreational establishment may pay its employees a sub-minimum wage (without overtime) so long as one of the following two conditions are met: either (A) the establishment does not operate for more than seven months in any calendar year, or (B) the establishment’s revenue in its six lowest revenue months in the previous year was no more than 33 1/3% of its revenue received in its six highest revenue months.
One major factor that could bolster this argument is that because the Bucks were eliminated in the first round of the NBA playoffs this past season, the team’s entire 2014-15 pre-season, regular season, and post-season only spanned seven months in its entirety (from October through April). The Bucks could very well likely argue that this qualifies it as a seasonal establishment under s. 213(a)(3)(A), and therefore that the team is not required to pay its cheerleaders in accordance with the FLSA.

NBA teams can credibly contend that they qualify for the s. 213(a)(3) exemption in at least some portions of their operations given the existing statutory language and accompanying regulations. Nevertheless, despite this potential defense, it would not be surprising if the Bucks ultimately chose to settle the suit before impending litigation commences. This would seem analogous to the path several National Football League (NFL) teams have chosen. NFL cheerleader lawsuits often settle the claims even though they arguably have an even stronger argument for exempt status under s. 213(a)(3) given the shorter length of their playing season.

Most notably, the Oakland Raiders agreed to pay its former cheerleaders $1.25 million to settle their minimum wage claims even though the U.S. Department of Labor had issued an opinion earlier that same year concluding that the team was not subject to the FLSA due to s. 213(a)(3) (Caitlyn Y and Jenny C, et al. v. NFL and the Oakland Raiders, et al.).

It would also not be surprising if this case motivates other NBA cheerleaders to file separate lawsuits against their teams. For the NFL, five additional teams quickly faced their own cheerleader lawsuits within a period of just a few months after the league’s first case was filed. The NBA is likely hoping that its teams do not face a similar outbreak of cheerleader minimum-wage litigation. At a minimum though, this case shows that the allegedly unlawful pay practices of professional sports teams still remain a pressing issue for the sports industry, and it may get worse for the NBA in the foreseeable future.

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Extreme Weight Cutting within the UFC

November 22, 2015


By Azadeh Taghizadeh – Thompson Rivers University 2L JD Student

There has always been an issue within the sport of fighting that is so widespread that it is seen as part of the sport. It is the issue of weight cutting, and over the years athletes have gone to extreme and dangerous lengths to cut large amounts of weight in a short period of time. Many people have had serious complications from it, and some even have died. Given the seriousness of this issue, should there be any regulations against extreme weight cutting?

The World Anti-Doping Code offers some insight to an approach which may be analogous to the case at hand. WADA prohibits substances that fall within at least two of the three requirements: (1) Medical or other scientific evidence, pharmacological effect or experience that the substance or method alone or in combination with other substances or methods, has the potential to enhance or enhances sport performance; (2)…represents an actual or potential health risk to the Athlete; (3) … violates the spirit of sport. Weight cutting could be classified under the first two requirements.

Firstly, extreme weight cutting can enhance sport performance since those who cut weight end up being in weight classes that are much lower than their actual weight, which inevitably gives them an unfair advantage on actual fight day when they have gained their weight back, while the other opponent may be much closer naturally to that weight class. For example, Chris Weidman, a UFC fighter who fights at 185 pounds (lbs) under the middleweight division, is naturally 205 lbs, which should classify him for the heavyweight division.

Heavyweight class has one of the largest weight differences. It runs from 205-265 lbs. Most fighters who are at 225 lbs cut weight to make the light heavyweight class. Unfortunately for those who are around 235 lbs, it may be harder to cut enough weight to be in the light heavyweight division and they may potentially end up fighting someone who weighs 265 lbs. Those who are at 265 lbs may actually be 285 lbs and cut enough weight to be eligible for the heavyweight division.

Not only can this large gap be an advantage for the heavier opponent, but can also be a violation of the second WADA Code requirement that the method not represent an actual or potential health risk to the Athlete. Cutting such as large amount of weight in a short period of time can have ill effects on the athletes body, both psychological such as mood swings, hormonal imbalances and eating disorders, as well as physical such as dehydration and in extreme cases, death, due to a heart attack, stroke or kidney failure.

In 2013, 26-year old Leandro “Feijao” Souza, a Brazilian MMA fighter, died due to a stroke right before his weigh-in for a scheduled fight in Rio de Janeiro. He was to lose 33 pounds in one week, and according to, Souza was taking Lasix, a diuretic pill, which is prohibited under the WADA Code.

Recently, Johny Hendrick was hospitalized due to his weight cutting issues. He had kidney stones and intestinal blockage. He weighs around 200-215 lbs and was to cut down to 170 lbs for his fight.

Given the commonality and dire effects of weight cutting, steps are now being taken to start to control weight cutting within the UCF and other amateur fighting sports. The United States Anti-Doping Agency (USADA) has announced that fighters will no longer be able to rehydrate using intravenous (IV) methods. Also, within the amateur arena, Arkansas has been the first state or province within North America to enact weight-cutting rules. Arkansas State Athletics Commission has now stated in Chapter 1 of the Rules and Regulations of Extreme Rule to Reduce Weight Cutting in the Amateur Class of Combative Sports: “Any Amateur Combative Sports fighter shall not gain more than .075 (7.5%) of his advance weigh-in body weight, and in no case, shall any fighter be allowed to gain weight sufficient to move up more than ONE published weight class for his specific sport.”

Hopefully these regulations will be the start of controlling this transparent issue of weight cutting within the sport of fighting and the widespread habit will become controlled and less extreme.


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The Last Great Unknown: Mitigating Legal Liability and Maximizing Player Safety with Regard to Concussions

November 22, 2015


By Ryan Hamilton – Thompson Rivers University 2L JD Student

Sports concussions have received a lot of attention over the past decade and are the last great unknown in sports medicine. Legal liability has acted as a sort of catalyst with respect to the amount of research and exposure that concussion related injuries have received. The solution to the problem of sports-related brain injuries is multi-headed and includes prevention, education, recognition, rule changes, and rehabilitation.

The truth is, there is really no way to eliminate head injuries from contact sports where players are getting bigger, stronger, and faster, at least without dramatically changing how these games are played. However, there are two strategies that should be employed and advanced upon to ensure that the games we love can continue to emulate a high level of ethical and legal standards.

These strategies can be referred to as recognition and education. Both of these can be highlighted in World Rugby’s Concussion Guidance Protocols. Their “Recognize and Remove” campaign highlights the necessity of recognizing the symptoms of concussion and removing players from the field to be properly screened.

Education as to what exactly constitutes “symptoms” in such a physical game is imperative to ensuring adequate safety standards. These educational programs should be mandatory for players of all ages and skill levels. As the understanding of concussions improves, the standard of education to athletes must improve as well. In doing so, organizations can protect themselves and reduce their liability by ensuring that participating athletes are aware and accepting of all the inherent risks associated with their sport.

The second important strategy is concussion recognition. A prominent example of the increased focus of recognition can be found in World Rugby’s Law 3.11: Temporary Replacement-Head Injury Assessment (HIA). The law came into effect on August 1st, 2015. Law 3.11 dictates that players in elite level matches who are suspected of having received a concussion are to be immediately removed from the field of play and assessed. The recognition of symptoms is not limited to the player, and also allows for medical staff to request a player be removed.

World Rugby Law 3.9 also allows the referee to order a player who he or she views as being injured to leave the field for assessment. Following the assessment, the doctors and medical staff make a determination as to whether the player can return to the field of play or is removed permanently. This is quite significant rule change, as normally any player who is substituted off, or leaves the field due to injury cannot return (with the minor exception of a “blood injury”).

The new rule allows for accredited medical professionals to make these assessments immediately following a suspected head injury. It also takes the decision largely out of the player’s hands, which is paramount to ensuring safety and reducing long-term injury. Concussions are a very unique injury. You don’t wear a cast, you aren’t in a sling, and there are no scars. As an athlete it can be tremendously difficult to pull yourself out of games based on symptoms that you haven’t been formally trained to recognize.

While educational programs can mitigate a lack of recognition, even the most informed player could have trouble diagnosing the symptoms of concussion after receiving an impact to the head. Keep in mind that an athlete doesn’t have to lose consciousness to receive a concussion, often times they don’t. Add to that the old school attitudes and mantra of a game built on toughness and you’re putting an unfair choice on an elite level player, especially on those international athletes who have worked their whole lives to represent their country, and would do just about anything to remain on the field regardless of consequence. While these attitudes are changing with the help of World Rugby’s campaigns, the choice to remove oneself from the field should never be left solely with the athlete.

An example of Law 3.11 working was during the recent Rugby World Cup match between Scotland and South Africa where the Scotland medical staff recognized that hooker Ross Ford was displaying concussion like symptoms. Staff promptly contacted the referee and had Ford removed for an HIA assessment. Ford failed the subsequent head injury assessment and was not allowed to return to the field.

According the British Journal of Sport Medicine, prior to the HIA protocols, 56% of players with a confirmed concussion remained on the field following their injury. That number has dropped to 12% since the HIA. This decrease is a huge success, and highlights World Rugby’s commitment to increased concussion awareness and emphasis on player safety; both of which are paramount to not only maintaining a high ethical standard, but also in protection from tortious liability as well.



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Age Restrictions in Professional Leagues

November 22, 2015


By Stephen Kroeger – Thompson Rivers University 2L JD Student

The National Football League (NFL) requires draft picks to attend college for three years before they can enter the draft and turn pro. The National Basketball Association (NBA) mandates that their players be one year out of high school, effectively requiring one year of college, and the National Hockey League (NHL) requires players to be 18 years old before they are drafted. Each league has a different approach and age threshold to permitting athletes becoming professional amongst their ranks which raises the question why have a minimum age requirement at all?

Auston Matthews, a 17 year old hockey player, recently chose to move to Switzerland in order to turn pro a year before he is eligible to be drafted by the NHL. The annual salary range in Switzerland is from $80,000 to $450,000. In contrast, he would have played in the Ontario Hockey League (OHL), where there is no salary, only a weekly stipend of $150. With 17 points in his first 14 games in the top division in Switzerland, Matthews has proven that he can play at a professional level, albeit it is Switzerland, while some in his corner argue that he even could play in the NHL making even more money despite his young age.

The NBA requires players to be at least one year out of high school in order to be eligible for the draft. OJ Mayo, now a professional in the NBA was 19 years old when he graduated high school, yet still was forced to play a year in college at USC. In some instances the best college players stay one year and exit early to the draft. This so called ‘one and done’ culture among college basketball players is due to the idea that, in their minds, they are wasting a year and would be better served developing and playing professionally with the most talented coaches and athletes available.
In the past, players like Lebron James and Kobe Bryant were able to enter the league directly out of high school simply because they were good enough. Professional teams employ armies of scouts to evaluate talent and determine when the athlete is game ready. If a player is deemed talented enough to play, why should leagues block them?

Recently a case has begun in an attempt to bypass the strict rules of the NFL CBA. If successful, it could open the door to anti-trust law challenges in other leagues.

Leonard Fournette is a sophomore running back for the Louisiana State University football team. He is considering suing the NFL to enter the draft early. Currently, he is not eligible to be drafted until 2017, and with 1404 rushing yards and 15 rushing touchdowns in his first seven games this season, it is reasonable to assume that he is NFL ready. If filed, his case would attempt to overturn the decision made twelve years ago involving former Ohio State running back Maurice Clarett, where the appeals court held that, “because the NFL’s age requirement was collectively bargained with the players association and not unilaterally implemented, the rule was exempt from anti-trust law.”

According to some legal experts, Fournette’s case is not unreasonable. They argue that he could sue in a sympathetic court such as the district court in Minnesota which has traditionally held that the non-statutory labor exemption to antitrust law cannot apply where the rule primarily affect members of the collective bargaining relationship.

Should his challenge eventually make it to the courts and end up in his favour, a precedent would be set for players to sue other United States based leagues (ie. NHL and NBA) to gain entry into the league they have dreamed of playing in their entire lives. Instead of risking injury playing for a scholarship or a slavishly low weekly stipend, players who have the talent to elevate their game to the professional game should be eligible regardless of their age.

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The “Sport of Kings” Adopts Cloning to Prolong the Polo Pony Dynasty

November 18, 2015


By Danielle Oliver – Thompson Rivers University 3L JD Student

In Canada and the United States you don’t have to be a sports fanatic to know the hot topics making their way around in the media. Discussions of “Deflategate” and murmurs of “McJesus” have reached anyone with Twitter, Facebook, cable, radio access, or a set of ears.

However, there are contentious sports stories falling under the radar. One that caught my attention pertains to the equestrian sport of polo, particularly the introduction of genetically cloning the finest horses in hopes to replicate their peak performance on the field.

Knowing little about the sport (and after shuffling through the overwhelming amount of Ralph Lauren search results), I found some perspective on the mysterious sport of polo and the implications around cloning prized ponies. The implementation of this technology is young but the concerns were well forecasted going back as early as 2006, many of which are analogous to that of the controversy over doping in sports.

Polo players are rightly concerned that in order to stay competitive in the sport, they must resort to cloning. So far, 85% of clones have performed just as, if not better, than the originals when reared in similar environments. This development will remove a portion of the uncertainty that comes with breeding. Furthermore, players believe that this technology will skew the sport in favour of the rich (as if polo isn’t already extremely skewed in favour of the rich). But when considering that the first clone of Cuartetero – a once prized polo mare – sold for $800,000, it is feasible that cloning will create a disparity of access even among the ridiculously wealthy.

Similarly, in the debate against doping, players don’t want to be forced to dope in order to compete at a high level. Additionally, it has been argued that permitting the use of designer drugs in sports will create a greater advantage for the rich. One may argue that because it’s not the actual athletes who are being tampered with, cloning horses isn’t comparable with doping.

But as polo players will tell you, these ponies have a significant impact on the outcome of the game. Despite the commonality in arguments against doping in sport and cloning in polo, the former remains banned while the latter is permitted. Furthermore cloning is completely unregulated. The International Federation for Equestrian Sports (IFES) governs and enforces a code of conduct that protects the horses from physical abuse and doping but has remained silent on the issue of cloning. The lack of regulation is peculiar, as it seems that the IFES code of conduct exists to ensure animal welfare and the risks of mutation, disease, and suffering associated with cloning are still unknown. There are currently no protections against these potential risks. Furthermore, without regulation, what is stopping the lab techs from further modifying the genetic make-up of these animals to create an unfair advantage?

Some countries that participate in the sport have recognized these issues. The European Union is talking about banning cloning in sport polo but they have no jurisdiction over the teams coming out of Latin America, India, China, and the Middle East. This means the ban would have little to no effect on the cloning phenomenon that appears to be taking over the “sport of kings”.
Other than the IFES, no other regulatory body can regulate this technology in a uniform manner. As it stands, cloning has gained widespread popularity and, without a ban, will likely take over the sport in the next 5-10 years, regulated or not. Who knows, maybe the introduction of cloning is just what sport polo needs to place the term “Game of Clones” up with the rest of taglines in sports media.

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Because It’s 2015

November 18, 2015


By Breanna Morrow – Thompson Rivers University 3L JD Student

When it comes to gender equality, it seems as though we have made significant strides from the backwards views of yesteryear. Earlier this month, Canada’s Parliamentary cabinet was announced to include an equal number of men and women. This is important for a myriad of reasons, but as our Prime Minister most succinctly stated it simply matters “because it’s 2015.” Society seems to finally be embracing the ideals of gender equality. Unfortunately not all aspects of society can be said to be so inclusive. What government seems to have at long last grasped, sport still does not seem to get.

On November 3rd, 2015 Michelle Payne became the first female jockey to ever win the Melbourne Cup. What should be viewed as an incredible achievement and victory for women in a heavily male dominated sport is instead ruffling feathers. After her win Payne did not hold back, acknowledging the sexism that is prevalent in horse racing and even labelling it as a “chauvinistic sport”. Rather than celebrating her success, people in the industry, as well as those outside it, are condemning her words. There is disapproval of the fact that she spoke out strongly and told her critics to “get stuffed”. That disapproval is exactly what she is trying to fight against. Her hope is that her victory can have a positive effect for fellow female jockeys. She is attempting to draw attention to the very real gender imbalance in the hope that she can help fix it for others. It is a highly commendable pursuit and the backlash she is facing only highlights how common gender discrimination and inequality still are in sports.

Certainly horse racing is not the only sport that has recently had gender equality issues. It would seem plausible to venture a guess that some form of gender inequity crops up daily around the country from the smallest rec leagues all the way up to the highest levels of sport. Sometimes these issues reach such a vexing level that they find their way into the courts and tribunals looking for justice.

In 2010, women ski jumpers turned to the courts arguing that their inability to compete in the Vancouver Olympics, while men in the same sport were able to do so, was a violation of their Charter rights. In 2014, a group of the top female soccer players filed a complaint with the Ontario Human Rights Tribunal because they were expected to play on artificial turf while their male counterparts would never be required to play on anything but real grass. While neither of these cases achieved the result they sought (the former failed due to lack of Charter applicability and the latter was dropped by the players), they still had the important effect of bringing gender inequality to the public’s attention. These cases made headlines and made the world more aware of the issues that women face when competing in sport.

While these cases and others like them are laudable for the attention that they bring to what is often an overlooked area, it is exasperating that they even need to go the courts to begin with. It should not have to be up to the justice system to fix what is systemically wrong with society. It is time for society to realize what is happening and be proactive. It is time that we stopped treating female athletes and sports as lesser. It is time that we listen to the advocates when they bravely speak out. After all, it is time for gender equality in sports. Why? Because it’s 2015.


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Circumventing the Salary Cap

November 16, 2015


By Aasim Hirji – Thompson Rivers University 3L JD Student

The NHL Salary Cap currently has a ceiling of 71.4 million, with a floor of 52.8 million. This means that every NHL team must spend at least 52.8 million, and at most spend 71.4 million on player salaries. The issue with a firm salary cap is team’s will always attempt to circumvent the cap to help them out of situations. Cap circumvention is ruining the equitable arrangement of the salary cap, which is already hinged in favour of rich teams willing to spend to the cap. A prime example is the Mike Richards case with the Los Angeles Kings. In the 2013-2014 season, the LA Kings had a chance to use a compliance buyout on Mike Richards. This means that any buyout would only affect them financially, and would not go against their salary cap.

Compliance buyouts were a two-year measure brought in after the new Collective Bargaining Agreement that would allow each NHL team to buy out two players without any affect to their salary cap. The LA Kings were attempting to trade Mike Richards, with a few potential suitors, then some news came to their attention. Richards was held at the Canada-USA border for bringing oxycodone into Canada, thus giving the LA Kings potential to terminate his contract for “material breach”, despite no arrest at the time. The LA Kings used this to terminate his contract, unprecedented in the NHL. With the recent settlement between the Kings and Richards, it is clear that this is salary cap circumvention.

Elliotte Friedman, a Sportsnet report, stated: “If the Kings had bought out Richards last summer, he would have stayed on their payroll until the end of the 2024-25 season. The cap hit would move from approximately $1.2M this season to $1.7M next year, followed by $2.7M in 2017-18 and a two-season peak of $4.2M in 2018-19 and 2019-20.Then it would stay just under $1.5M for the final five seasons. With the agreement, Richards’ cash lasts until the end of 2030-31 campaign. As part of a pre-capture penalty due to decreasing dollar values towards the end of his contract, the Kings lose $1.32M from their cap this year — and the next four — with the settlement amount added to that total. Starting in 2020-21, the team’s only penalty is the settlement itself — and that’s not a high number, believed to be somewhere in the $550,000 per season range on average.”

Elliotte Friedman went on to say that other general managers are “screaming bloody murder and are threatening to make an issue about it at December’s Board of Governors’ meeting”. The LA Kings are not the only team guilty of such obvious cap circumvention. A much clearer example of cap circumvention was the trade between the Toronto Maple Leafs and the Columbus Blue Jackets. The trade was David Clarkson for Nathan Horton.

On its face, it appears to be a legitimate player-for-player swap. Nathan Horton’s contract had 5 of 7 years left on a $37 million contract. David Clarkson was on a $36.75 mil, 7-year contract. Similar contracts, however one major issue – Nathan Horton is likely permanently injured and the only reason he hasn’t retired is he is owed in excess of $25 million. David Clarkson was a potential buyout candidate, or alternatively, the Leafs would have an overpaid player on the cap. With this trade, Toronto can put Nathan Horton on Long Term Injury Reserve where his 5.28 million cap hit will not count towards the cap. TSN’s Bob McKenzie stated that other GM’s “get it”, but don’t like the fact that trades like this work.

The NHL has already addressed the method of circumventing the cap by burying players in the AHL, such as New York Rangers sending Wade Redden and his $6.5 million contract into the AHL. This rule was changed where teams do not receive full cap relief, rather the cap hit will be contract value- (minimum salary+$375000). Under these new rules, Wade Redden’s contract buried in 2015-2016 would have been 5.5 million instead of $6.5 million.

There were a few trades that raised some eyebrows in the NHL regarding salary cap relief from the use of long-term injury reserve. During the NHL draft, Philadelphia traded the rights to Chris Pronger to the Arizona Coyotes. Similarly, the Boston Bruins traded the rights of Marc Savard to Florida. Both of these players have career ending injuries and will not see another game in the NHL. Pronger’s deal had a cap hit of $4.9 million, with a salary of $575,000. Savard had a cap hit of $4 million, with a salary of 575,000. Prior to the Philadelphia trading Chris Pronger, there were thoughts that the Flyers did not want him to retire otherwise there would be a cap hit due to Pronger’s age. Instead, he stayed on long term injury reserve where the cap hit would not affect them. Once traded, Chris Pronger and Marc Savard were not placed on injury reserve, as the teams wanted their cap hits to count in order to get to the salary floor, thereby manipulating the entire purpose of the salary cap.

It is clear that salary cap circumvention goes against the spirit and purpose of the salary cap. The NHL must adopt measures to prevent this from happening. Changing the salary cap relief from burying players in the AHL is the first step. The NHL has also addressed contract lengths, used to bring down the cap hit of players in the recent Collective Bargaining Agreement. There must be careful monitoring of procedures, particularly in looking at the Mike Richards case, to prevent teams from circumventing the salary cap.

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