Archive | December 15, 2015

Who is Policing Gender Discrimination for International Sport?

December 15, 2015

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By Cassandra Milne – Thompson Rivers University JD Student

In Alberta v Hutterian Brethren of Wilson Colony, the Supreme Court of Canada noted that obtaining a drivers licence is a privilege and not a right. Yet, what happens when a licence takes away a right? Two years ago, Kristen Worley, a transgendered Canadian cyclist, found herself in this exact predicament. When applying for her UCI Licence she came across the following section in her athlete licence agreement:

I shall submit to disciplinary measures taken against me and shall take any appeals and litigation before the authorities provided for in the regulations. I accept the Court of Arbitration for Sport (CAS) as the sole competent body for appeals in such cases and under the conditions set out in the regulations.

Refusing to accept these terms of the agreement, Kristen Worley declined to sign the agreement. Her refusal to sign the agreement stemmed from her desire to seek refuge in the Canadian legal system to express her adamant aversion to the polices on gender verification and anti-doping. If Ms. Worley had signed the UCI agreement, the only avenue by which she could express her concerns would be in the Court of Arbitration for Sport.

Thanks to her refusal to sign the agreement, Ms. Worley brought forward an application to the Ontario Human Rights Tribunal this summer. In her application, Ms. Worley alleges that she is being discriminated against by the policies of the Ontario Cycling Association (OCA) and Cycling Canada Cyclisme (CCC). These policies are based on the UCI’s policies which are, in turn, based on the IOC’s policies.

According to Ms. Worley, the UCI’s gender polices require her to maintain androgen levels within a defined range in order to compete. As a transgendered athlete, these defined levels pushed her body into an extreme post-menopausal state negatively impacting her ability to participate in high performance sport.

The IOC attempted to deny Ms. Worley’ s application by stating that her application was not validly served in accordance with the procedures set out in The Hague Convention. Moreover, the IOC advised the Human Rights Tribunal that they intended to bring an application to the Superior Court of Justice for an order prohibiting the Tribunal from asserting jurisdiction over the IOC and for a declaration that the IOC has not been validly served.

Jo-Anne Pickel, adjudicator of the Ontario Human Rights Tribunal, accepted Ms. Worley’s application and acknowledged that both the UCI and IOC had effective legal notice of the proceedings. Citing Wambach, Ms. Pickel noted that the Human Rights Tribunal is not legally obligated to follow The Hague Convention. Moreover, Ms. Pickel denied the UCI’s request for Ms. Worley’s medical history stating, “I do not consider it necessary to order such early disclosure in this case. In my view, there is sufficient detail in the Application for the respondents to discern the nature of the alleged infringements of the Code and the legal issues that need to be answered.”

Seeking legal answers to alleged gender discrimination in professional sports is not always straightforward and simple. As Canadians we assume that our Charter Rights and access to Human Rights Tribunals is automatic and fluid. Yet, this is not always the case in an international sporting context.

In Sagen v Vancover Organizing Committee for the 2010 Olympic and Paralympic Games, the court held that the Charter did not apply because the IOC was not a Canadian government body. Moreover, in Martin v IOC, the IOC was also accused of gender discrimination for excluding 5,000 and 10,000 meter track events for women in the 1984 Los Angeles Olympics. The United States Ninth Circuit Court majority ultimately denied the claim stating, “We find persuasive the argument that a court should be wary of applying a state statute to alter the content of the Olympic Games. The Olympic Games are organized and conducted under the terms of an international agreement — the Olympic Charter. We are extremely hesitant to undertake the application of one state’s statute to alter an event that is staged with competitors from the entire world under the terms of that agreement.”

The Olympic Charter states, “The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.”

Yet, in Sagen and Martin, women were denied the right to safely practice sport. If the Olympic Charter will not protect female professional athletes’ right to compete, what is their legal recourse to uphold their legal rights?

Hopefully Ms. Worley’s case before the Ontario Human Rights Tribunal will shed some light into this hitherto shadowed area of sports law.

 

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BASE Jumping – The link between rules and risk

December 15, 2015

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By Deanna Campbell – Thompson Rivers University JD Student

The recent deaths of BASE jumper and pioneer rock climber Dean Potter along with his friend Graham Hunt this past spring in Yosemite National Park, have renewed the call to legalize BASE jumping particularly in U.S national parks which provide access to some of the best and arguably safest spots.

Base JUMPING is parachuting or wing suit flying from a fixed structure or in most cases, a cliff.

The sport of base jumping in North America operates in a legal grey zone. Base jumping is actually not illegal but some of the actions required to execute it are. Rather than the act or sport itself being outlawed, other laws and by-laws are relied on instead. Possible charges include breaking and entering, reckless endangerment, vandalism and trespassing.

Base jumping is however illegal in US national parks under “aerial delivery” laws that prohibit some forms of aerial activity in particular areas. If you are caught, you can be fined up to $2,000, have your gear confiscated and incur the costs of any required rescue.

Base jumping has not seen the same popularity in Canada; however, there are versions of it such as the new sport of speed-flying. It is also not without risk and death. A speed flyer died this past July jumping off the Stawamus Chief in Squamish, BC. Speed flying or any other aerial activity for that matter is not illegal in BC Parks. It is also not regulated or supported given the high risk associated with it. Rather, governmental officials have taken the “we do not condone or promote it” approach.

BASE jumpers argue that the enforcement of policies which outlaw BASE jumping increase the danger of it. For example, it forces flyers to jump in non-optimal conditions to avoid detection by park rangers, i.e., in low light. The threat of arrest adds an unnecessary distraction in a situation that demands full concentration and calculation. Many jumpers choose to not use their best equipment, knowing that if they are caught their gear will be confiscated.
The logic is simple: If you remove the criminal sanction, you decrease the risks and make the conditions within which the sport operates safer.

But is it really that simple? BASE jumping is an inherently dangerous sport with or without safeguards. It is estimated that between 5 and 15 people die each year from it. For a sport that sees a significant number of deaths even in a legalized environment (an average of six jumpers die a year in Switzerland where it is legal), and participants who openly acknowledge that despite the skill required, “you have to accept you might die doing it,” it is not entirely unreasonable that officials are hesitant to legalize or condone it, especially in an environment like a National Park that sees a number of tourists who are not there to take in the sight of someone potentially falling to their death.

Then again, all extreme sports see injuries and deaths. If there is a way to minimize those deaths then it is not really any different from other regulated high risk activities. But this would also open up the potential for liability on the part of park and government officials. One way to deal with that however is to require jumpers to have liability and rescue insurance similar to what Switzerland does.

BASE jumping is legal in many other areas and countries like Switzerland and Norway. The small Swiss town of Lauterbrunnen allows BASE jumpers free reign, letting them jump off the Alps and land in fields below. The Swiss BASE Association also has a jumper’s code of ethics and landing cards authorizing landing only in those designated areas.

A similar system could possibly work in the U.S. and Canada. Flyers/jumpers would be required to prove they have sufficient experience including safety training, and then remote cliffs and areas could be opened up to the sport.
Despite these potential regulatory schemes, BASE jumpers still have a great deal more work to do to find legal legitimacy in their sport, as the tragic death of Potter and many others may only serve as further rationale to keep the sport where it is, operating in the shadows and on the fringes.

 

 

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Fair Use, GIF’s, and the NFL

December 15, 2015

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By Kelly Melnyk – Thompson Rivers University JD Student

Reproduction of a broadcast in a private dwelling is not seen to infringe copyright. However, when the broadcast is seen to be made to the public, an infringement of copyright occurs. The problem facing the sports arena is the increased use of GIF’s, images and short clips pulled from a game that is shared among Internet users. These images can then be edited to be used for other purposes. For the NFL, use of GIF’s by other media outlets has created a challenge to fair use in copyright.

The American framework for fair use, 17 US Code § 107, is similar to that of the Canadian Copyright Act, RSC 1985, c C-42, s 29, fair dealing exception to copyright. Both pieces of legislation allow for copyrighted work to be reproduced for the purposes of criticism, news reporting, research, education, or parody and satire. In theory, a person could take a clip from a TV show and reproduce it without infringing copyright so long as the use is for one of the allowed purposes under the respective countries legislation.

The use of NFL GIF’s by Deadspin and SBNation demonstrates the challenge that new technology is creating for the realm of fair use in America. The GIF’s are small clips of a play from a league game and have been posted under the fair use policy, potentially falling under the category of news reporting. The NFL did not agree and requested that the Twitter accounts be closed and material taken down.

While this matter is still being decided, it raises an interesting question. If a two second GIF or 20 second vine highlighting a play is not considered to be fair use, then should not every sports reporter using a clip of the game also be receiving a take-down notice? There appears to be an arbitrary line being drawn between the use of a clip on a news broadcast and a GIF highlighting the same play.

The amount of revenue generated by broadcasting licenses is huge and obviously the NFL is not unaware of this. However, the use of copyrighted work for one of the purposes outlined in the legislation does not infringe copyright and showcasing an amazing play could easily find itself in the news reporting category of the American statute.

As the mediums used to deliver broadcasts increasingly diversify, the method in which news of plays, injuries, trades, or incidents on the field will also expand. It has become easier and much more commonplace for the average fan to take clips and images and disseminate them with rapid speed, just as Deadspin and SBNation have. Creating a “meme” or GIF from an exciting clip or image can be done by anyone with access to a computer, potentially making themselves a target of organizations like the NFL.

The highly public nature of professional sports has been greatly regulated by the private industry for the majority of the history of sport. However, as noted above, technology has been breaking down the walls that the private industry has built. The possibility of fans and alternative media outlets accessing the exclusive content is very much a reality, challenging the formal agreements for rights to broadcast or control the images. The use and dissemination of GIF’s by Deadspin and SBNation highlight the gap that the NFL thought they had filled by maintaining an official NFL Twitter account to control the use of GIF’s.

Shan Wang noted in her October 13 2015 article, “Fair use or copyright infringement? Deadspin and SB Nation get tossed off Twitter for NFL GIFs” that the NFL should look to the benefits created by further dissemination of a great play by other accounts and I would agree.

Creating greater awareness of something amazing that happened in the game last night through Deadspin could easily drive fans to find the full story through the traditional media sources that hold those exclusive rights. Fair-weather viewers may find themselves wanting to watch games more regularly to avoid missing the next great play. Rather than shutting down the site, organizations should build on the publicity being built and encourage a cooperative relationship with the alternative source. By working collaboratively, the NFL could benefit from reproductions and increase their audience from the followers of Deadspin and SBNation.

 

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Donald Sterling, Adam Silver, and the Ends Justifying the Means

December 15, 2015

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By Ian Walker – Thompson Rivers University JD Student

On November 16, former Los Angeles Clippers owner Donald Sterling lost his appeal to regain the team after his estranged wife sold it for $2 billion after he was banned from the NBA for life. The ban was part of a league-imposed penalty for racist remarks Sterling made to his girlfriend. The penalty also included a $2.5 million fine, the largest fine allowed under the NBA rules, and a threat from the league to seize and auction the team.

Sterling’s wife, Shelly, took control of the family trust that owned the team and sold it to former Microsoft CEO Steve Ballmer. Sterling sued his wife to block the sale, but a Los Angeles Superior Court ruled against him and approved the sale last summer. This recent appeal found that Shelly Sterling properly removed her husband from the trust, as she relied on the opinions of two doctors who found Sterling had signs of Alzheimer’s disease.

The court found that the sale to Ballmer prevented the trust from an “extraordinary loss”. The decision also relied on the fact that before Sterling refused to sign off on the sale, he had congratulated his wife on the price she had negotiated, which was $400 million higher than the next best offer. The appeal court held that Sterling failed to prove the lower court, in approving of the sale, made any legal errors.

This appeal decision appears to bring the Donald Sterling saga to an end. However, Sterling still has lawsuits pending against his wife, the doctors who examined him for Alzheimer’s disease, and the NBA. So while the sale of the Clippers appears to be final, this is likely not the last we will hear from Sterling. The case, however, has been interesting to follow for a number of reasons, and it involves many important issues and concerns surrounding professional sports.

The incident that led to Sterling’s forced departure from the NBA took place in private and away from the media. His comments were secretly recorded and were never meant to be public. This raises important privacy issues. When the news first broke, many commenters were surprised by the severe punishment for such a private act, despite the content of Sterling’s remarks.

The league justified its actions by charging Sterling with damaging the league and its teams by his remarks. The incident also appeared to be a kind of final straw, as Sterling’s unsavory behavior had a long history. Because of that history, few people felt sorry for Sterling. And yet, as uncomfortable as it may have been to think so, the penalty still struck many people as particularly severe.

The incident took place shortly after Adam Silver’s term as NBA commissioner began. Many people applauded Silver’s swift and strong actions. They were a stark contrast to Silver’s predecessor, David Stern, who had known of Sterling’s volatile behavior in the past and did little to deal with it. But Silver’s dealing with Sterling, and the severe punishment he imposed, serves as a strong reminder of the extensive influence and powers of professional sports league commissioners in today’s sports climate.

The loss of this appeal seems to have spelled the official end of Donald Sterling’s days with the NBA, and he would be hard pressed to find anyone who feels sorry for him or who will miss him. But this appears to be a case of the ends justifying the means. Everyone is glad he is gone, but there lingers for many an uncomfortable feeling that even though he may be despicable and what he said was despicable, his punishment seems severe for comments made entirely in private. There also seems to be a self-contradictory sentiment that Adam Silver’s swift use of his extensive commissioner power was quite harsh, and yet, should be applauded.

 

 

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