Archive | December, 2015

‘Comfortable Satisfaction’ – The Issues Inherent in a Middle-Ground Evidentiary Burden

December 13, 2015

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By Callan MacKinlay – Thompson Rivers University JD Student

The World Anti-Doping Code (WADC) has outlined within it many articles on how to make out a doping infraction. Article 3.1 states that the burden of proof on the tribunal for making out an anti-doping rule violation is that it must be satisfied to the ‘comfortable satisfaction’ of the tribunal. This is claimed to be greater in all cases than a ‘balance of probabilities’ but less than ‘beyond a reasonable doubt’. I would argue that while this burden might seem fairer at first glance than a balance of probabilities, it is really just masquerading as a more stringent burden when in practice it operates exactly the same as a balance of probabilities.

Canada has had issues in the past with using different burdens of proof in civil cases. In Sylvan Lake Golf & Tennis Club v. Performance Industries ABQB 1999 479 (CanLii), the court stated that in order for rectification of mistake to be made out, the party claiming it had to establish their evidence by a proof of ‘beyond a fair and reasonable doubt’. This was stated to be above ‘a balance of probabilities’ but below ‘beyond a reasonable doubt’.

However, this was later thrown out in the case of FH v McDougall [2008] 3 SCR 41, where the Supreme Court ruled that there is only one standard of proof in the civil context: ‘a balance of probabilities’. This is likely because other standards or ‘shifting standards’ are uncertain and make the law less clear. The evidence must simply be sufficient to make it more likely than not and the test is made out.

For the WADC, the ‘comfortable satisfaction’ burden is just as uncertain as any other standard that claims to be a middle ground between the civil and the criminal standard. For example, if you are leaving your house and you think that it might rain, what standard do you use to determine if you should take your umbrella? Do you use beyond a reasonable doubt? Unlikely, because, depending on the local climate, you could always have a reasonable doubt that it might rain, thus you would always take your umbrella with you. Do you use a balance of probabilities? It is much more likely that this is the standard the average person uses in their everyday lives. If you check the traffic and it says that there is a 51% chance that your usual route will be slower, you will take your backup route. If it says 30% or 20%, then you probably won’t take your backup route. Where does comfortable satisfaction lie? Do you take your backup route if you are comfortably satisfied that it will be slower during your commute? How is that different from a balance of probabilities? If the traffic report says there is a 51% chance of traffic on your usual route, I could easily take my backup route with the justification that I am comfortably satisfied that it will be faster than my usual. If the report says it has a 20% or 30% chance of being slower, could I still claim to take my backup route with comfortable satisfaction?

In summary, ‘comfortable satisfaction’ is a problematic burden to use. While the WADC claims that the burden is higher than ‘a balance of probabilities’ I am not sure that its plain usage really fits that description or that the case law makes it out. If anything can be shown from the case law, especially for those cases involving innocent anti-doping violations, ‘comfortable satisfaction’ is not much different from a balance of probabilities in the ease with which the WADC can make out the violation. Unless the World Anti-Doping Association wants to change its burden to the criminal standard of ‘beyond a reasonable doubt’ I suggest they stick with the well-established civil standard and not make up new ones.

 

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The Death-Sentence of Amateurism in the NCAA?

December 13, 2015

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By Kyle Sandulescu – Thompson Rivers University JD Student

When the NCAA was established in 1906, it was designed to entrench the principal of “a sound mind in a sound body” at institutions of higher learning in America. The bargain was that NCAA agreed to protect the health and well-being of its student-athletes, on the agreement that the student-athletes withdraw their right to profit from their athletic endeavours in any way. In short, the NCAA was established under the belief that men and women could enrich their lives through the amateur student-athlete experience.

Over 100 years later, the NCAA has become an oft-criticized figure of manipulation and a far-cry from an ambassador of amateurism in sport. The NCAA is an apparent hoax; a regulatory body designed to protect student-athletes while dealing at arm’s length with commercial enterprises who profit from their marketability.

The late Myles Brand, director of the NCAA from 2002-2009, defended the economics of college sports by claiming that they were simply the result of a smoothly functioning free market. However, the market is not free because there is unequal bargaining power between the NCAA and the athletes who provide the NCAA with its product.

The argument to be made is that the NCAA has clearly been overcome by the commercial forces that surround college sports to the detriment of the student-athlete. Lawsuits have exploited the NCAA’s unwillingness to protect student-athletes who suffer from long term injury, while the NCAA throws its rulebook at its athletes for even the most minor infractions resulting in a “profit” from their college athletic careers. Evidently, the NCAA has balked on protecting athletes from commercial exploitation because they are afraid to bite the hand that is their sole source of authority – the member institutions.

Section 2.9 of the Division I Manual of the NCAA states the principle of amateurism rather amiably: “student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” However, it is hard to understand the rationale for the principal of amateurism when the NCAA signs mega-broadcasting deals worth over half a billion dollars for NCAA football and basketball while major sponsors hammer on the doors of member institutions to ensure that the top programs and players are hyping their brand.

The outspoken Taylor Branch once said in his now infamous article, The Shame of College Sports: “The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.”
Adopting Branch’s position, it is hard to make a straight-faced argument that the principal of amateurism is being abused to serve a commercial purpose. In recent memory the courts have been more willing to confront this issue head on. The US Court of Appeals for the Ninth Circuit in O’Bannon v NCAA upheld a district court’s decision that NCAA amateurism rules violate antitrust laws saying that “the NCAA’s rules had significant anti-competitive effects within the college education market.”

O’Bannon makes it clear that the NCAA’s principle of amateurism is being used to regulate a commercial activity, while the NCAA has continued to rely on the decision in NCAA v Board of Regents of the University of Oklahoma, which stated that “to preserve the character and quality of the product, athletes must not be paid.”

Criticizing the NCAA’s principal of amateurism should make us uneasy because it largely epitomizes a departure from the ideal that the outcome of the sport was determined by the skill of players and not the cheque books of their institutions. Given the evolution of college sports into the mega-industry it is today, the NCAA would be wise to take advantage of the opportunity to legitimize the concept of amateurism in the wake of commercial realities.

At stake for the NCAA are billions of dollars in revenues and licensing fees if the NCAA cannot demonstrate that it is capable and willing to protect the health and well-being of student athletes. The principal of amateurism can therefore be re-tooled to reflect the need to protect athlete’s from injury, perhaps deflecting the accusations that the NCAA has essentially sold out the health of their athletes for the commercial interests of member institutions.

 

 

 

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When a Name Taints the Game

December 10, 2015

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By Brianna Meyer – Thompson Rivers University JD Student

Whether it is the NHL, CFL or beyond – few things in this world can rival the energy that radiates throughout athletic stadiums as fans cheer. Thousands of people of all ages stand united under a single umbrella of passion to push their teams hopefully through the next period, quarter or inning. Faces are painted, jerseys are adorned and the chants are deafening. Go Blackhawks. Go Eskimos. Go Redskins.

For some, however, a darker meaning lurks behind these cheers. For Ottawa native Ian Campeau, an Anishnabe (Ojibway) of the Nipissing First Nation, the use of symbols and imagery associated with his Indigenous heritage by both amateur and professional sports teams is viewed as disrespectful to his culture and a catalyst to breeding racism in a public arena. He argues that “[racist team names] are the most in-your-face socially acceptable systemic oppression within our society and yet it’s used by children’s football teams. It’s not even a gateway drug for racism, it is racism.”

Campeau has attained some success at a local level – where he has convinced grassroots teams to change their names. He admits, however, that convincing professional franchises such as the Edmonton Eskimos to follow suit is an entirely different battle. Turning to our American neighbours, a similar gap exists between amateur and professional sports team support. The National Congress of American Indians stated in 2013 that tribal advocates have obtained some success in eliminating over two-thirds of derogatory Indian sports mascots and logos over the past 50 years.

In 2005, the American Psychological Association addressed this issue by recommending “the immediate retirement of all American Indian mascots, symbols, images and personalities by schools, colleges, universities, athletic teams and organizations…. Research has shown that [it] has a negative effect on not only American Indian students but all students.”

This call to action was picked up sportswear giant Adidas last month. Adidas announced that it would offer free design resources and financial assistance to any high school that wants to change their logo or mascot from Native American imagery or symbolism. Approximately 2000 high schools in the United States continue to use names that “cause concern for many tribal communities.”

Before we rebrand consumer loyalty from Nike to Adidas however, it begs mentioning that Adidas is still making hundreds of millions of dollars selling uniforms to the Chicago Blackhawks, Atlanta Braves, Cleveland Indians and the list goes on. This hypocrisy has not gone undetected by critics of name changes at the professional level. The power of shareholders, team fans or partner organizations to resist such change is still an ongoing issue.

Straight from the mouth of Adidas – “sports have the power to change lives. Young athletes have hope, they have desire and they will have a will to win. Importantly, sports must be inclusive. Today we are harnessing the influence of sports in our culture to lead change to our communities.”

Are double standards for schools and professional teams a way to facilitate this inclusion? Is it a necessary compromise? Should we ever compromise on issues as systemic as racism?

These questions remain unanswered but this issue will not disappear until the offensive names do. Like Adidas says, “sports have the power to change lives.” It is up to us to decide that when the game ends, when the cheers are silent, when we all go home – if that change is ultimately for the better.

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Taking Another Look: Rugby’s Video Refereeing Problem

December 9, 2015

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By Christopher Gall – Thompson Rivers University JD Student

Rugby is a sport on the rise. It has benefited immensely from rejoining the Olympic Games after a 92-year absence. This has provided the sport additional funding from the International Olympic Committee (IOC) and improved its credibility with government agencies. Further, Rugby is reaching out to build its fan base beyond its core markets. An excellent example is that the 2019 Rugby World Cup will be hosted by Japan.

One serious problem the sport faces currently, centers around video refereeing. Back in 2013 the administrative body World Rugby expanded the domain of the Television Match Officials (the fancy title given to instant replay staff) to include defensive infringements and serious fouls which is a significant move beyond disputable tries. While the policy has had the positive outcome of bringing more accurate calls on to the field, it comes at a steep cost—further inhibiting the sluggish pace of the game.

To break down the actual numbers, reviews used to average 85 seconds with 0.75 plays reviewed per match. So far this year that figure has more than tripled to 2.41. No other team sport outside of the competing rugby league (known as rugby league) comes anywhere close. The opening match of the World Cup on 18 September 2015 utilized six referrals and paused play for close to ten minutes while decisions were contemplated. As a result, the league faced significant criticism and issued an official statement on September 21st defending the replay policy.

Rugby 1Fast forward a little over a month, and the discussion is heating up again—this time with a push in the opposite direction. Senior officials are in an uproar, crying for increased video review.

To set the stage: During a quarterfinal match where Australia knocked Scotland out with a provocative penalty kick. The official, Craig Joubert, awarded the penalty after witnessing a Scottish player fumble the ball forwards into the open arms of a teammate. Unfortunately, what he missed in that fraction of a second was a deflection off an opposing player—which should have resulted in a scrum. The ref was prohibited from consulting with Television Match Officials as no foul play was involved. Unfortunately, the 80,000 fans in attendance and Mr. Joubert had to watch his mistake in slow motion as it was broadcast on the jumbotron.

Employing human referees always will result in a margin of error with the officiating. Rugby would do well to take note of other governing bodies who have banned the showing of replays on contentious calls inside the stadium—especially if the official has not had the benefit of viewing the footage themselves. There is an important balance to be struck between transparency and maintaining fair play. Officials can often feel pressure to provide a makeup call to the team who was slighted by the initial bad call thereby only compounding the issue.

Rugby 2

Rugby could benefit from a single replay center as is found in many North American sport leagues and has been adopted by Australasia’s National Rugby League (which has been able to halve its review time). Maintaining the flow of play is critically important. One way to do this that has been successfully utilized elsewhere is to employ challenges where a captain can request a second opinion until the decision is upheld upon review, whereby the right to further challenges is then forfeited.

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Hope for Russia in 2016 Olympic Games: ‘The greatest investigation in the history of WADA’

December 9, 2015

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By Jasmine Dhillon – Thompson Rivers University JD Student
An unprecedented sanction in Olympic movement has befallen. The International Association of Athletics Federation (IAAF) voted 22-1 in favour of suspending the Russian Athletics Federation for alleged ‘state-sponsored doping’. The 323-page WADA Independent Commission report outlined several accusations, which include the Russian doping lab destroying more than 1400 blood and urine samples, and taking money to cover up positive tests.

According to Travis Tygart, CEO of US Anti-Doping Agency (USADA), it’s the greatest investigation in the history of the World Anti-Doping Agency, which formed in 1999. He stated to BBC Sport, “are we going to end up regulating ourselves to be a toothless bureaucracy or are we going to roll up our sleeves and get into the field of play and win this fight for clean athletes? The eyes of the clean athletes are watching.”

Tygart’s concern is for the athletes who may not get the chance they deserve to compete in the 2016 Olympic Games in Brazil. “All my victories are honest, ‘clean’ and deserved,” says Yelena Isinbayeva, the world-record holder in the women’s pole vault and a two-time Olympic champion. “I have always followed and am following all the anti-doping rules precisely. To ban innocent and not connected to that doping scandal athletes from competing in international events and Olympic Games in Rio is not fair.” Athletes like Yelena and dedicated fans across the nation are hopeful that the situation will be resolved in time to see Russia compete in Rio.

But why has the world focused its eyes on Russia alone? Several other countries were found to be ‘non-compliant’ of the WADA code and are also currently suspended from international competition. Argentina, Ukraine and Bolivia were all found to be using non-accredited laboratories and Andorra and Israel lacked having correct rules in place.
Perhaps it’s because Russia is and has always been a major player in sport. Or maybe, to paraphrase Russian President Vladimir Putin, it’s America’s attempt to subdue Russia. The main reason however is due to a German documentary titled “Top-secret Doping: How Russia makes its Winners” that was made public last year. It laid out the institutionalized nature of doping in the country compelling WADA to investigate.

Russia’s Olympic committee pledged to collaborate with IOC, WADA and other national Olympic committees in the drive to “eradicate doping.” Russia’s Sports Minister, Vitaly Mutko said Russian athletics will cooperate in “any way” to prove it’s clean. He is determined to comply with the IAAF rules and states, “we are ready to rebuild our whole anti-doping system.” IOC President Thomas Bach said Russia’s track and field athletes would be eligible for the Olympics only if the country falls into line with all global anti-doping rules and the reforms are verifiable. “The goal has to be Russia being compliant again with all the international anti-doping regulations. That is the important thing, so that we have an even playing field for all the athletes.” Although the IAAF and IOC have cracked down on Russia specifically, who is to say athletes from other countries aren’t doping? The hopes for an even playing field may remain uneven and ironically enough pose a disadvantage to Russian athletes.

If the suspension is not lifted in time for Brazil, there is still hope for clean athletes to participate under the Olympic flag as opposed to the Russian flag. This was an option provided to Indian athletes in last year’s Winter Olympics after their national Olympic committee was suspended for government interference.

Sadly, Bach quashes this hope by stating, “This is mere speculation. I cannot see this situation at the moment.” Even then, would an athlete really want to participate alone? Is the same sensation to win without your country’s flag wrapped warmly around your shoulders? The Olympic Games are unlike any other sporting event. It’s a patriotic phenomenon. In a quest to win an Olympic medal, to fulfill the hopes and dreams of a nation, athletes are put under tremendous pressure to perform, which often leads to succumbing to the use of performing enhancing drugs. In a regime such as Russia, I can only imagine the potential consequences of failing to meet these aspirations.

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Antitrust in Mixed Martial Arts

December 9, 2015

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By Edward Hulshof – Thompson Rivers University JD Student

The UFC’s legal woes continue as the Le et al v. Zuffa antitrust lawsuit enters discovery. Zuffa, LLC (“Zuffa”), the corporate entity who owns the Ultimate Fighting Championship brand, has been the subject of staunch criticism for anticompetitive practices and the use of coercive adhesion contracts for several years. Zuffa recently lost a motion to stay document discovery proceedings – the document production obligations a part of the normal course of litigation – and with it, potentially, the shroud of mystery ensconcing its promotional and venue agreements with fighters and event hosts. If the antitrust lawsuit is successful, Zuffa could see fundamental reforms to its UFC brand and increased competition from market competitors such as Bellator MMA, a competing MMA promoter.

At issue is whether or not Zuffa’s business practices amount to “anticompetitive, illicit, and exclusionary acts,” which illegally acquire, enhance and maintain its dominant position in the market for promoting elite level professional MMA bouts as well as its control of MMA fighters. The Antitrust Class Action Complaint, filed December 16, 2014, (the “Complaint”) hinges on economic considerations, namely Zuffa’s control of “output markets,” that is, promoting MMA events, and “input markets,” fighter contracts.

The Complaint specifically alleges that “[t]he UFC has used the ill-gotten monopoly and monopsony power it has obtained and maintained…to suppress compensation for UFC Fighters in the Bout Class artificially and to expropriate UFC Fighters’ identities and likeness inappropriately.” This isn’t the first time Zuffa has been called to answer for its use of career suffocating fighter contracts.
Indeed, in 2008, well-renowned UFC fighter Ken Shamrock sued Zuffa for breach of contract when, it is alleged, Zuffa refused to extend Shamrock’s contract when he returned from retirement. (The court ruled against Shamrock, interpreting a key provision in the contract as providing Zuffa with the right to suspend and terminate the contract.)

More recently, Zuffa underwent intense media scrutiny when its confidential fighter contract with Eddie Alveraz was produced in a New Jersey lawsuit. The contract provided for extensive ancillary rights to Zuffa for the purposes of promoting the UFC brand and bouts. Additionally, and more troublingly, the contract granted Zuffa certain exclusive rights in perpetuity for promotional purposes, closing the door on Alvarez’s right to exploit and promote his own image outside the octagon and with other MMA promoters. Zuffa’s fighter contracts, it appears, choke the supply of inputs into competing MMA promoters.

It should come as no surprise then that MMA fighters are contemplating unionizing in an effort to strengthen their bargaining position with Zuffa and the UFC. The movement is a reflection of the repetitions of history, being reminiscent of the movement in boxing in the 90s which ushered in the Mohammed Ali Boxing Reform Act, legislation designed to rectify anticompetitive practices and coercive contracts between boxers and promoters. With Zuffa as the most powerful MMA promoter with a collection of fighters signing contracts with renewal options in favour of Zuffa, it is not surprising that many fighters are seeking to regain control of their careers. Zuffa, it appears, likes control. Even if the antitrust lawsuit is unsuccessful, it should serve as a signal to Zuffa to reform its contract practices and marketplace strategies ahead of the shifting balance in power that has been the source of tension between promoters and athletes for years.

 

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More Clarity is Needed Regarding Substance Abuse in the NHL

December 9, 2015

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By Nathan MacDermott – Thompson Rivers University 2L JD Student

In early October the NHL and the NHLPA acknowledged that there is a cocaine problem among NHL players. With NHL drug arrests on the rise, the league has asked the NHLPA to allow cocaine to be added to the list of substances regularly monitored within the league’s testing program under the current Collective Bargaining Agreement (CBA).
If it is truly on the rise, what effects may it have on the league and its players?

Given the nature of the drug, one could argue that it is a performance-enhancing drug in a sport like hockey where aggressive play is an asset. But the true implications could be more to do with the image of the players, teams and the league as a whole.

There is a need for clarification within the CBA as to what impacts substance abuse will have on players and their contracts. Currently the substance abuse program is the place for players who are found to have a problem, but the recent case of Mike Richards may have changed that somewhat. The Los Angeles Kings recently terminated his contract after a drug related arrest, and eventually the parties reached a settlement. On its face it appeared that he should have been placed into the leagues substance abuse program before the Kings took any action regarding his contract. The Kings however stated that they terminated his deal because he did not tell them of the arrest, and not because of his drug use or the arrest itself. This shows that more clarity is needed within the CBA to protect players from similar outcomes.

If the league’s policy is to attempt to assist players with their addictions quietly before further action is taken, then there should be further clauses within the CBA to limit team action around such cases. Page 2 of the Standard Player Contract (SPC) states that the player agrees “to conduct himself on and off the rink according to the highest standards of honesty, morality, fair play and sportsmanship, and to refrain from conduct detrimental to the best interest of the Club, the League or professional hockey generally.”

This leaves the door open for clubs to penalize players or even terminate contracts for a myriad of reasons, and it appears that this could include drug use if any of the criteria in the SPC are met. A drug related arrest or simply being found in possession of an illicit substance could violate the contract and leave the player open to reprimand if pursued under the guise of another violation.

The NHL and the NHLPA need to get together to amend the language to avoid conflicts in these situations. If they left substance abuse related incidents outside the realm of ‘conduct detrimental’ etc., then players would truly have more security when dealing with substance abuse. The league may even find that players would be more willing to come forward and enter the program of their own volition, knowing that the contract repercussions were limited in this regard. As the setting in which these contracts function changes, so should the terms within the CBA and the SPC to better reflect the current state of affairs within the NHL.

 

 

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What the global ban on Third Party Ownership (TPO) means for football?

December 8, 2015

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By Joe Nelson – Staffordshire University, BA Sports Journalism Student

Following FIFA’s worldwide ban of Third Party Ownership (TPO) on professional footballer’s contracts earlier this year, it is hoped that football clubs across the globe will now be urged to invest more time into their players, nurturing their well-being and talents to procure better deals for all parties involved.

The new law, introduced in May 2015 by FIFA, put forward by FIFPRO (The Professional Football Players Union) received huge backing, including the likes of Michel Platini, who had likened TPO to ‘slavery’.   Although currently suspended from footballing activity, at the time, Platini explained in a UEFA statement how young players are vulnerable and could be exploited using TPO: “UEFA and FIFPRO therefore call on the European Commission to investigate the practice of third-party ownership and to fully endorse FIFA’s decision to prohibit such arrangements.”

A study in 2014 by KPMG showed that 90% of player’s economic rights in South America were partly owned by third party investors. TPO gained mass coverage when it was announced that Santos, a Brazilian football club would only receive €17.1 Million from the superstar, Neymar’s transfer to Barcelona, where €40 went to N&N, a company owned by Neymar’s parents.

It was also found by audit firm, KPMG, that investors and ‘third parties’ owned stakes in the contracts of up to 1100 professional footballers in Europe. For example, world class talent such as Radamel Falcao has been in the spotlight over the dealings, as two of his previous clubs (Atletico Madrid and Porto) have been found guilty of selling a percentage of their player’s contracts to raise funds. Porto, the Portuguese giants had previously been linked with other TPO dealings, and another recent study showed that as much as 36% of professional football players in Portugal were co-owned by third-party. Most recently publicised was Sporting Lisbon’s William Carvalho, whose transfer to Arsenal was said to have broken down due to the ownership problems.

The first breach in the new law was made by second division Belgian club, Seraing United, who failed in their appeal to FIFA’s ban in court in July 2015. The club have been banned from signing players for two years and fined 150,000 Swiss francs after agreeing to third-party ownership deals. FIFA welcomed this legal win as they stated it was “Indispensable for preserving clubs.” FIFA’s executive committee agreed to the ban in May following the campaign by UEFA and FIFPRO.

FIFA have agreed, due to the vast quantity of players involved in third-party ownership that they cannot prosecute each club, as there will be a natural ‘transitional period’, which may cause unrest within numerous leagues due to the nature of the proposal. Where one team may be severely punished, another club from the same league may not be investigated as deeply, which could cause unrest and numerous cases being appealed. For instance, if FIFA had simply cut all ties, expressing that all third party owners must be bought out immediately, it would have made for a far more straightforward command and consequence: You buy out the third parties, or pay a severe fine and be given a transfer embargo.

FIFA have announced that any deals made before 2015 will be allowed to expire under the current circumstances, and any made between January 1st and April 30th will be subject to a maximum one year time limit.

However, any new TPO deals agreed will be punished immediately, which is explained in more depth here. This ‘transitional period’ means that numerous transfers will still require buying out a ‘third party’ in the coming months due to the clauses still within the contracts. For example, recent Premier League acquisitions such as Eliaquim Mangala, Lazar Markovic and Marcus Rojo all involved an external source receiving funds for the transfers, along with the players’ previous clubs.

Inquisitions into TPO in English football is not a new concept. The Kia Joorabchian case brought a lot of light to the situation nearly ten years ago. In that instance, the  problem arose after Joorabchian was said to have represented four separate companies who owned shares in the Argentinian stars, Carlos Tevez and Javier Mascherano during their moves to West Ham United from Corinthians in 2006 (although Joorabchian has publicly declined to discuss the details of Tevez’s ownership and his buying, loaning and selling of the player, citing confidentiality agreements). The Premier League did however fine West Ham a record £5.5 million, and took steps to outlaw TPO in England in 2008.

Joorabchain later claimed that multiple other Premier League clubs use TPO and conceal their involvement in it. He also defended the use of TPO, expressing that it was: “a way of bringing outstanding players to clubs that would not be able to afford them ordinarily.” The Iranian believed it was a ‘South American model’ being used all over Europe.

These third party agreements are understandable, especially with the poorer clubs in the poorer leagues across the world, who need the revenue badly. However, the change means that football clubs should now become more invested in their sides, and not see their players simply as commodities and potential profits.

This process also means that, when the likes of Barcelona or Madrid come swooping in for the next showstopper from South America, they need not fret about complications in the contact and can focus solely on the player’s footballing ability and what he has to offer, along with paying his club 100% of the transfer price. Santos, in this scenario, would receive the full transfer sum for one of their prized assets, thereby giving them more money to invest in their club.

The ban on TPO now makes the game a fairer playing field for all involved, and will produce happier playing professionals across the world. There are still several cases to be sorted across South America and Europe, and we are bound to see numerous cases involving loopholes in the law crop up in the coming months, but it’s another big step towards making football clubs realise they’re still running a team, not a business.

 

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The Rules and Regulations of eSports Are Lagging Behind Its Exponential Growth

December 4, 2015

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By Casey Goodrich – Thompson Rivers University JD Student

Over the last few years there has been an enormous explosion in popularity for the eSports scene. The International – one of the biggest tournaments in the industry, featuring the game Defence of the Ancients 2 – is a fantastic example of the exponential growth that the industry has recently experienced. Last year, the International had over two million concurrent viewers and a prize pool of over $10 million. This year, the tournament had over 20 million people watching, with a prize pool of over $18 million. The winning team received $6.6 million, resulting in approximately $1.32 million for each player. With eSports becoming such a lucrative industry, it is truly puzzling how and why the rules and regulations are so poorly conceived.

A recent and perhaps unsurprising issue that has arisen is the use of performance enhancing drugs. In July, a professional Counter-Strike player publicly admitted in an interview that his entire team was using Adderall during tournaments. This prompted the Electronic Sports League (“ESL”) to implement drug tests for its competing players. It is disappointing that it took the ESL almost two decades to realize that drug testing was necessary for fair competition. Core skills for any professional gamer include possessing quick reflexes, swift reaction speed, and incredible concentration, all traits that are easily enhanced through over-the-counter medication, such as Ritalin and Adderall. Also factoring in that a large amount of the professional gamers are teenagers, who are vulnerable individuals that are still undergoing mental maturation, making the hands-off approach of the ESL even more alarming.

Another substantial issue that is prevalent in eSports is based on the contracts that professional players sign. A good proportion of the players are either teenagers or young adults; they are generally not advised to hire a lawyer, and there are very few agents looking out for players. The end result of this is that many players do not adequately review contracts and end up agreeing to inequitable deals, and are also not always paid what they are owed. Until eSports are run like a professional sport, there will be no resolution for this issue. The issue with eSports is that players don’t have the adequate representation and protection, so they sign their own contracts without the legal expertise necessary and frequently receive the short end of the stick.

An important distinction between eSports player contracts and other professional sports is that revenue is shared between players and teams in eSports, whereas it is a separate source of income for most other sports. The income comes from streaming, sponsor endorsements, and the developer of the game (which in turn can come from consumers who make purchases in the game that are contributed to the prize pool). So depending on the contract, a fixed salary and income is rarely guaranteed in eSports, whereas it is the norm for most other professional sports.

These issues garner the impression that the regulatory framework governing eSports lacks both competitive integrity and ethical obligations to the players involved. One would think that the professional players that are helping to generate interest, popularity, and subsequently more sales of these games would be treated more fairly. It is plausible that the root of these issues is the absence of any universal, overarching organization to regulate this emerging industry. While the ESL is a large and influential organization, it does not have full autonomy over eSports, but rather regulates specific game tournaments. For certain popular games, such as Defence of the Ancients 2, the competitions are managed by the developers of the respective games (in this instance – Valve Corporation).

Interestingly enough, there is also currently no Players’ Association to represent professional players in eSports. The lack of a true regulatory organization, and no representation for players, has led to an imbalance in power and protection for players when negotiating deals with teams. Hopefully the recent growth and popularity in eSports will prompt stronger regulation and a universal organization to rectify these painfully apparent issues.

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For Whom the Bell Tolls – Death of the NHL Enforcer

December 4, 2015

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By Dan Hutchinson – Thompson Rivers University 3L JD Student

The death bell of the NHL tough guy has been sounding for years and now that breed of player is all but extinct. Names such as Probert, Domi and Twist are long gone from the game and even more recent names such as McGrattan, Orr and Parros have been unable to find employment in the NHL either having to settle for minor league deals or retire The league simply phased these players out of the game with rule changes that make the game faster, with more emphasis on speed instead of toughness.

According to hockeyfights.com, after 227 games in the NHL this season there have been 53 fights corresponding to 20.3% of games played with a fight. The percentage of games with a fight is down nearly 7% from last season and has dropped significantly each season since 2010 when the number of games with a fight was 40.1%. This number has dropped significantly due to the NHL taking steps to limit fighting including stiffer punishment for players engaging in a fight and instructing linesmen to break up fights before they are able to start.

The drop in fighting has also resulted from a philosophical shift in the league towards speed and skill and away from toughness and grit. Teams want players that can play at least 10 minutes a game and contribute more than their fists. “You’re already seeing a lot of that,” said Carolina GM Ron Francis. “Now you get teams that have scoring on all four lines. The way the game is played and the pace it is played at, teams that have success are the ones that have 12 forwards who can give you minutes.”

While this philosophical change has played a part in the death of the enforcer it is not the only reason the tough guy is no longer part of the game. Significant changes in rules in hopes of protecting players has seen the league take matters into their own hands further pushing the enforcer out of the game.

With concussions being an issue on everyone’s mind, especially with the current lawsuit against the NHL launched by former players dealing with issues relating to head injuries sustained during their playing career, the NHL has started to give out lengthy suspensions and fines for players laying dirty hits on opponents. The most recent long term suspension was given to Raffi Torres for a shot to the head of Jakob Silfverberg. Torres was suspended for 41 games on the play.

The question now is whether these suspensions and fines are enough of a detriment for players to avoid dangerous hits and result in an actual increase in player safety. Or were players safer with their own personal policemen roaming the ice? Many believe that the threat of having to “face the music” as a result of a dirty play to be more of a detriment than a fine or suspension. With the way the NHL is going, the threat of an enforcer coming after a player due to a dirty hit or even a fight as retribution is becoming a non-factor, a path which many feel is wrong.
“I would hate to see the unintended side effects of where hockey would go without fighting, without that threat of retribution. It’s a fast, violent game where we’re wearing weapons on our feet and essentially carrying a club. So while a two- or five- minute penalty is a bad thing, it’s not going to knock somebody off their path of destruction as much as somebody grabbing them and punching them in the face,” claims ex-NHLer Kevin Westgarth.

It’s hard to know whether the NHL would be a safer place without fighting and the threat of a suspension being the only thing to stop players from dirty plays but looking at two high profile instances where headshots have been delivered, no enforcer was in the lineup for the team that sustained the hit. In the 2011 Winter Classic where Sidney Crosby was taken out with a blatant headshot, Pittsburgh hadn’t dressed their enforcer Eric Godard and neither did Anaheim when Torres nearly took off Silfverberg’s head. This would never have happened to Gretzky when McSorley was in the lineup. It’s impossible to say whether or not these hits would have occurred had an enforcer been dressed but it is something worth noting.

Additionally, in the NCAA fighting is banned and is arguably more dangerous as a result. “They drop the puck and you try to kill guys in the corner. I don’t know if it’s because there’s no fighting or because of the build-up, but there’s a lot of crash-and-bang, not much finesse out there,” says ex-NCAA and current NHLer Corey Tropp. So while the NHL is doing its best to phase fighting and the enforcer out of the game in an effort to maintain player safety, they may be doing more harm than good.

It may be best for the NHL to leave fighting alone rather than push it completely out of the game. It certainly seems like the players want fighting to stay a part of the game after a recent NHL Players Association survey revealed that 98% of players support fighting in hockey. The NHL is slowly working to eliminate fighting in an effort to increase player safety and decrease the number of concussions. However, the best option may simply be to let the fights and enforcers stay a part of the game.

 

 

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