Archive | January 5, 2016

The Soccer World Cup 2006 in Germany: A possible corruption scandal unfolding nearly a decade later

January 5, 2016

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By Samantha Sayn-Wittgenstein – Thompson Rivers University JD Candidate

The soccer world cup is one of the biggest events in the world. It takes place every four years, has over 750 million viewers and is broadcasted to more than 200 countries. Germany gained international respect, reinvented patriotism and boosted the economy as hosts of the 2006 world cup. The so called “summer fairy tale” was a glowing success. In recent months, the memories of the fairy tale have turned into a nightmare made up of corruption, bribery and embezzlement allegations.

On October 16th 2015, a major news agency published reports of payments in the sum of 6.7 million Euros (9.5 million CAD) made by the DFB (German Football Association) to FIFA during the bidding for the 2006 World Cup. Shortly thereafter, the Germans admitted to inconsistencies in payments surrounding the bidding. Allegations about bribery center around Franz Beckenbauer, one of Germany’s most popular soccer players and the driving force behind Germany’s bid.

In 2000, FIFA’s executive committee, composed of 24 members from all over the world, was faced with the question, whether Germany or South Africa will be hosting the 2006 World Cup. At that time, there were seven European members, implying that Germany needed to sway at least five non-European members to vote in their favour. In the end, Germany prevailed with 12 votes over South Africa’s eleven. Committee member Charles Dempsey of New Zealand abstained from voting. Following the vote, Dempsey complained about pressure from influential European interest groups, however, vehemently rejected corruption allegations. Subsequently the question remains: What were the 6.7 million Euros for, if not to bribe FIFA officials?

Lawyer Christian Schertz, hired by the DFB, stated the millions were paid by former Adidas CEO Robert Louis-Dreyfus to fund a cultural project during the World Cup. The obvious problem is that this project never happened, which leaves the DFB to explain why the millions have never been repaid to Louis-Dreyfus or even appeared in FIFA or DFB accounts until 2005?

The main evidence presented in the news article is a handwritten note by Wolfgang Niersbach, Vice president in 2005, describing the payment of 6.7 million Euros as well as a borrower’s note signed by Beckenbauer. This was sufficient for the prosecution to announce that a so called “initial suspicion” as well as a “monitoring process” relating to fraud, embezzlement and corruption have been initialized, even though the DFB produced a handwriting expert, who publicly raised doubt about the signature on the document actually being Niersbach’s.

On November 3rd, multiple raids of the homes of DFB officials were carried out, seizing documents and hard drives. Just days later, Niersbach resigned as current president of the DFB and Beckenbauer continuously rejected any claims of payments to former FIFA vice president Jack Warner, who has been banned for life by FIFA on grounds of extensive corruption. Yet, on November 11th, a signed contract surfaced, which promises Warner’s confederation “miscellaneous benefits” and is dated just four days prior to the vote for the 2006 winning bid. Beckenbauer told a newspaper that he had no recollection of this document, but reassured that the benefits were of no monetary value and came in form of support with ticket sales.

If the payments are legally explainable, why did the DFB not open their accounts the day the allegations were made public and did so? Maybe because the burden of proof lies with the prosecutors and the DFB is relying on former officials claims of a clean slate. Or because the legal background of the published story seems rather fragile at this point in time. Most of what has been presented is simply a chain of indications. In an interview the author of the original report, Jens Weinreich, admits to not verifying each and every aspect of his article. Further, some of the mentioned offences fall under the five-year statute of limitations, except the allegation of serious embezzlement according to section 263 of the German Criminal Code, which carries a ten-year statute of limitations. Additionally, various corruption related offences have a 15-year statute of limitations in Switzerland, where FIFA has its headquarters, which potentially would allow for prosecution there. For what it is worth, FIFA’s Ethics Commission vowed to investigate the case as well amongst their own wave of corruption allegations.

Whatever will be revealed during these investigations, the DFB will suffer a significant loss of respect and a massive damage to their image, while the corruption allegations in the world of soccer just do not seem to end.

 

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Get Out of the Way or Forever Hold Your Peace: Revisiting the Baseball Rule

January 5, 2016

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By Or Regev – Thompson Rivers University JD Candidate

“It is absolutely clear that there will be changes…” These words uttered by the Commissioner of Major League Baseball (MLB), Robert Manfred, did not fall on deaf ears. At the November 19th news conference, Manfred was referring to changes to fan safety in ballparks, an increasingly urgent matter that has taken centre stage in his relatively young tenure as Commissioner. According to a Bloomberg News report roughly 1,750 spectators get hurt each year by batted balls, most of which are foul balls. The issue of batted balls injuring fans is not a new phenomenon. Despite this, the MLB has done little in the way of improving fan safety, choosing to rely on the defense of the “Baseball Rule” instead. The Baseball Rule holds that where a proprietor of a ball park erects a net or screen behind home plate, and it is sufficient to provide adequate protection, the proprietor has fulfilled his duty and cannot be liable in negligence. In light of increasing injuries, it is time to revisit the Baseball Rule, which undermines the legitimacy of these types of fan injuries.

On the Docket

It appears that the timing of Manfred’s address to improve fan safety may have been prompted by a lawsuit currently waiting to be tried in the U.S. District Court for the Northern District of California. On July 13th, 2015, a group of MLB ticket holders filed a class-action lawsuit against Rob Manfred and the Commissioner’s office, alleging that Manfred has failed to uphold his duties to enact sufficient safety measures for fans. The claim argues that Manfred has engaged in a widespread pattern of negligence, misrepresentations and omissions toward baseball fans at games. While the outcome of this case remains to be seen, some fans may want to consider alternate measures.

Stephanie Taubin is one of these people. In August 2015, Taubin filed a lawsuit claiming negligence, but this suit was against the Boston Red Sox principal owner, John Henry, not the MLB. Taubin was sitting in an area above home plate where protective glass had been removed for renovations. She was struck by a foul ball and suffered facial fractures and neurological damage, costing her money in medical expenses, lost wages and diminished earning capacity. Whether Taubin’s cause will be fruitful also remains to be seen, but if the Massachusetts court draws on any parallels from a 2013 NHL settlement, her case may be successful.

Cross-State Analogizing?

In April 2002, Elizabeth Hahn sued the NHL, Chicago Blackhawks, and the United Center after being hit by a hockey puck and requiring emergency brain surgery. In the suit, Hahn claimed that the Blackhawks, NHL and United Center officials knew for years that flying pucks were dangerous, but chose not to increase safety measures. Hahn was successful in reaching a settlement, which was the first case ever to establish a link between the NHL and fans injured at individual team-owned facilities. Following this settlement – as well as the unfortunate death of a 13-year-old Columbus fan who got struck in the temple by a flying puck – the NHL required all its rinks to install protective nets for the subsequent season.

The MLB’s Past and Future for Fan Safety

Frankly, MLB team owners should count their blessings. The NHL instated protective nets almost 13 years ago in response to a few injuries and a tragic death. For clarity, let’s not confuse the fact that the MLB already has netting. The fact of the matter is, the NHL had ten feet tall glass prior to installing nets. The MLB had nothing. The netting that some MLB fans are advocating for now are in addition to the existing nets; the idea is to extend them to each foul pole or a point nearby. As an MLB team owner I would be pressuring Rob Manfred to increase fan safety now, and I would have pressured Bud Selig to increase fan safety thirteen years ago after Elizabeth Hahn successfully settled with the Chicago Blackhawks. It is a miracle that teams around the MLB haven’t ceded to lawsuit after lawsuit, but perhaps this is why the pressure on Bud Selig wasn’t so overwhelming. It is time to stop hiding behind the exclusion of liability prose on the back of MLB admission tickets and start effecting meaningful changes to enhance fan safety.

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Have the St. Louis Rams Already Left?

January 5, 2016

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By Alexander Paterson – Thompson Rivers University JD Candidate

On January 5th 2015, a development group that included a company controlled by Stan Kroenke, owner of the St. Louis Rams of the National Football League (“NFL”), announced plans to build a new 80,000-seat stadium in Inglewood, California, a suburb of Los Angeles. At the time of the announcement, negotiations between the city of St. Louis and the Rams over funding for a new stadium had not been going well. Consequently, the announcement seemed like an implied threat to the city of St. Louis that the team would relocate if they did not agree to the Ram’s desired terms for stadium funding. Despite the reaction to the announcement, the NFL has been steadfast in their assurance that no team will move to Los Angeles without the NFL owners’ approval. However, the by-laws relied on by the NFL, requiring that three fourths of the owners support any relocation request, will likely be little re-assurance to St. Louis Ram’s fans based on past decisions of the courts regarding the relocation of NFL teams. As noted by Dallas Cowboys owner Jerry Jones, in the past “…teams have moved without the permission of the league…” because “…there are just certain things that clubs can do.”

Historically, (US) antitrust considerations for professional sports were first considered in the context of baseball, where, in Federal Baseball Clubs, Inc. v National League of Professional Baseball Clubs (1922), the US supreme court held that baseball activities were not inter-state commerce, and thus were not subject to federal antitrust laws (i.e. The Sherman Act). This decision was revisited in Flood v Kuhn (1972), where the Supreme Court declared that the antitrust exemption given to baseball was an exception, not the rule, and did not extend to other professional sports leagues. As a result, the stage was set for an antitrust challenge of Rule 4.3 of Article IV in the NFL constitution, which stated: “no NFL member club can relocate without the approval of three-fourths of existing league member clubs.”

Such a challenge commenced in 1980 with L.A. Memorial Coliseum Commission v NFL (“Raiders I”), where the Oakland Raiders and Los Angeles Coliseum alleged a breach of antitrust law following a 22-0 vote by NFL owners against allowing the Raiders to move to Los Angeles. Raiders I was decided on the basis of the Sherman Act, which prohibited “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among several states or with foreign nations.” To determine whether the NFL had engaged in such prohibited activity, the Court conducted a “rule of reason” analysis. The analysis required the court to determine unreasonableness based on (1) the nature or character of the contracts, or (2) on surrounding circumstances giving rise to the interference or presumption that they were intended to restrain trade and enhance prices.

Under that analysis, the key to determining if there had been a restraint of trade was the relevant market in question. In this case the relevant market accepted by the jury was Southern California, not the entire US, and it was concluded that no alternative forms of entertainment could adequately substitute for an NFL game. Consequently, the NFL was found in breach of antitrust law, and hugely onerous “treble damages” (triple times the allotted damages) were initially assessed against the NFL to the tune of over $50 million. Not surprisingly, NFL owners have subsequently been extremely hesitant to expose themselves to treble damages once again through attempts to prevent franchises from relocating.

The current situation involving the Rams, like Raiders I, involves a team owner wishing to move his team to Los Angeles because their current host city was unreceptive to their desires for a publically funded new stadium. Due to the striking parallels between Raiders I and the Rams’ current predicament, a legal battle between the NFL and Stan Kroenke seems likely to have the same result. So while the NFL continues to assert their control over any potential franchise relocations, Jerry Jones and St. Louis Rams fans know that, barring a sudden reversal of judicial opinion, it is powerless to stop the Rams from leaving St. Louis if Stan Kroenke truly wishes to. Which leaves the city of St. Louis with two distasteful options: agree to publically fund a new stadium the city probably can’t afford, or watch a team they have loyally supported for the last 20 years walk away for a better offer.

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Un-fouled Balls: The MLB’s Attempt to Prevent its own “Deflategate”

January 5, 2016

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By Cole Rodocker – Thompson Rivers University JD Candidate

Baseball is not a sport unaccustomed to controversy. In the wake of the early 2000’s steroid scandals and congressional tongue lashings, Baseball seemingly wised up and, at least partially by dint of keeping out of the more scandalous headlines, has seen a resurgence in popularity. While doping and player enhancing substances are the current topic de jour, “Deflategate” has increased the scrutiny surrounding equipment violations. Corked baseball bats (whose supposed benefits may be entirely psychological) have long since gone the way of the dodo; this brings us inevitably to the ball itself. An examination of the eponymous baseball shows just how thorough the MLB is, and must continue to be, in order to avoid a challenge to the legitimacy of their sport.

Given the nature of a baseball, it would seem that there is little that could be done to modify it. This, however, could not be further from the truth. Unbeknownst to many, baseballs are “rubbed up” with a special mud in order to remove the gloss from the ball and give the pitcher more control over a ball with a now slightly grainier texture. This process is even enshrined as rule 3.01c in the MLB rule book. This was largely a response to a player being killed by an errant pitch in the 1920’s, the first and only recorded incident of a player being killed by a pitch. Baseballs are fastidiously checked by umpires upon being struck, as the scuffs and dings that the ball may have suffered can lead to an unfair advantage to the pitcher who can gain more control over the ball by virtue of the damage.

Pine tar, emery boards, nail files, chewing tobacco and many other items have been used to try and modify the characteristic of the balls during play. As a result of Deflategate, the MLB has put new supervisory practices into place with which to monitor and protect the balls before they even enter a pitcher’s glove. Not only are MLB representatives accompanying balls from the back rooms to the back stop, they have also supplanted the roles of ball girls and ball boys who formerly fetched more balls for the umpire upon running out in order to prevent any tampering in transit. This monitoring helps to avoid legal issues surrounding agency, as, if a case were ever brought before a court, it would no doubt be a quagmire of half truths and outright lies in trying to frame a players cheating as being directly guided by the management on its behalf such that the corporate veil might be pierced and a lawsuit levied directly against the heads of an MLB team. Less dramatically, it also makes teams and players less likely to be subject to fines, the perennial black eyes dished out by every major sporting league.

In addition, the MLB recently sent out a communique to all 30 teams informing them of how they must store their baseballs prior to game time. This comes in the wake of the Colorado Rockies long used technique of storing balls in a humidor in order to combat the effects of Colorado’s natural air quality and elevation which, if untreated, will see more balls turned into homeruns based on the simple physics of the ball becoming more dense and thus, springing off the bat in a more lively fashion. Were one team to find another attempting to gain a concrete advantage in this day and age, the legal options available to it may be limited, as even if they were to sue for tortuous interference with business, the proceeding embarrassment to the league would do irreparable damage to all teams, not just the ones involved. There is no doubt that Robert Manfred, the current commissioner of the MLB, is not interested in participating in the kind of legal wrangling that Roger Goodell partook of, given that the dispute resolution mechanisms in baseball are not terribly dissimilar from those used by the NFL.

Ultimately, all of these issues speak to both the desire to have a level playing field, as well as to have fair play while on it. Only the most naïve would think that players will not continue to gain a competitive advantage. Baseball even seemingly allows some forms of cheating such as sign stealing and analysis as a kind of necessary conceit. Teams and players agree to have a uniform set of rules and code of ethics based on rules that have remained largely unchanged for a century. Attempting to circumvent these rules not only hurts the integrity of the game, but may bring up legal questions that should not be dealt with by a multi-billion dollar empire trying to stay above the fray.

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