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The NFL: True Stand Against Domestic Violence or a Quick Attempt to Save Face?

December 18, 2015

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By Talina Handel – Thompson Rivers University JD Student

On February 15, 2014 the prized running back for the Baltimore Ravens, Ray Rice, was arrested for assaulting his wife, Janay Palmer, at a casino in Atlantic City. Four days later video footage surfaced of Rice dragging his wife’s unconscious body from an elevator at the casino. During this time the NFL declined to comment on what, if any, sanctions they would place on Rice.

On March 27, 2014 Rice’s charges were increased to aggravated assault, which carries a maximum sentence of five years in prison. In an arguably delayed response to the now very severe domestic violence charges, the NFL imposed a two game suspension on Rice in July 2014, four months after Rice was criminally charged. In August 2014 the NFL showed its first of what would be many inconsistencies in the months to come, and publicly stated that they “didn’t get it right” with the two game suspension. They then proceeded to issue a domestic violence policy for the entire NFL league.

Curiously, eleven days after the NFL issued their new domestic violence policy the full video footage of the incident between Rice and his wife went public and the brutal reality of what actually transpired in the elevator that evening was on display for the world to see: Rice punched his wife directly in the face causing her to fall to the ground unconscious. On the same day this video was released the Baltimore Ravens announced they were releasing Rice from his contract and the NFL subsequently announced that Rice would be suspended from the league indefinitely, a major shift from the initial two game suspension imposed on Rice.

The precarious conduct of the NFL draws the league’s motives into question. Was the domestic violence policy and Rice’s indefinite suspension issued as a true stand against domestic violence and an assertion that the Rice incident was both “violent and horrifying”? Or, was it an attempt to save face in the public eye? This begs the more specific question: did they really not see the video until the public saw it? Or did they in fact see the video, bank on the hope that it would never be released to the public and issued their new domestic violence policy in a meek attempt to cover their bases in the event that the video was leaked?

The possibility that Rice would be playing in the NFL today had the full video not been made public is a very real one. The timing of the NFL’s decision to implement a domestic violence policy is questionable. The policy was an arguably delayed response to the event which triggered it, coming six months after Rice’s arrest but curiously, only eight days before the full video was made public. Rumors swirled that the NFL had in fact seen the full video, with an unnamed law official reporting to the Associated Press that he had a twelve second voicemail from an NFL office number confirming that they had received the full video, a report that the NFL has vehemently denied.

It is highly probable that the NFL likely saw the video before the public did. They were in full cooperation with the police throughout the incident, a fact they asserted in the first six months of Rice’s investigation and then recanted when the video went public. They likely suspended Rice indefinitely simply because they had to. The public was already critical of the weak two game suspension and not imposing a stricter sentence in light of what the video depicted was simply not an option. The NFL needed to save face. And in their attempt at doing so they muddled the waters even more around their stance against domestic violence. Eyebrows were raised in response to the league’s inconsistent conduct and whispers of the NFL’s fumbling are still present today, almost two years after Rice’s arrest.

 

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Can Weapons be Introduced into MMA Style Fighting Leagues?

December 1, 2015

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By Marshall Putnam – Thompson Rivers University 3L JD Student

Back in April 2015, a strange development occurred in the Russian M-1 Mixed Martial Arts (“MMA”) league. The league, in an effort to test audience reception, introduced medieval style fighting into the MMA arena. Rather than your typical MMA fight where two shirtless combatants pummel each other using punches and kicks, the combatants in this arena wore full body armor equipped with blunted swords and shields. The result: a gladiatorial battle between two knights reminiscent of Game of Thrones.

russian-fighting-swords-mma-628

The audience loved it, spurring the M-1 president to state they would pursue developing it into a full league with separate weight categories, provided they find enough fighters. Although this can be dismissed as a mere publicity stunt, it does pose a serious legal question: can weapons be added into MMA fighting leagues?

In some ways, the addition of weapons seems like a natural development in MMA leagues. After all, martial arts has a rich history of incorporating weapons. For example, the Eskrima style of martial arts is the national sport of the Philippines, and is known for emphasizing weapons-based fighting styles with weapons such as sticks, chained-sticks, knives, and daggers. The obvious issue presented by weapons, even blunted weapons, is the substantially increased likelihood of combatants causing serious bodily harm to each other.

The legality of combatants attacking each other with weapons may appear trivial in some regards. The obvious argument is that the fighters have already consented to engage in a fight, and with or without weapons, there is a risk of either fighter causing bodily harm to the other. The law has already contemplated this possibility, and deemed it legal in the circumstances. From this perspective, the legality itself of engaging in an organized fight has not changed. The only tangible difference is the manner in which combatants are permitted to harm each other; before they were limited to the natural extensions of their body (fists and feet), and now they would be permitted an unnatural extension of their body, i.e. a weapon.

The legal issue arises in the fact that the criminality behind inflicting an assault is increased when a weapon is added. Proof of this claim is found Canada’s Criminal Code, as there is a provision for basic assault (section 266) and another provision altogether for assault with a weapon causing bodily harm (section 267). The difference between the two provisions is that assault with a weapon bears a substantially higher period of incarceration of up to ten years. As it stands in Canada, inflicting an assault using a weapon outside the organized sport arena is treated markedly more severe.

If the MMA arena of sport functions as a shield protecting the combatants from criminal liability when assaulting each other without the use of a weapon, can this shield be extended to protect against criminal liability arising from assault with a weapon? There is evidence supporting the conclusion that it just might.

Consider fencing for instance. Fencing is a recognized sport where the combatants use swords against each other. A fencing sword is modified with the addition of a circular tip to prevent it from inflicting serious bodily harm, and is considerably light-weight. The combatants also wear protective gear, notably around their face, as an added precaution against receiving serious bodily harm. This suggests that combatants may use weapons against each other in an organized fight provided adequate precaution has been taken.

It follows that the legality of introducing weapons into MMA leagues likely hinges on the ability for the coordinators to prevent the likelihood of combatants inflicting and suffering serious bodily harm. In the Russian M-1 league the combatants used heavy-weight blunted swords. In an effort to nullify the increased likelihood of inflicting serious bodily-harm, the fighters wore full armor plating. There is a balancing act of ensuring the increased probability of inflicting serious bodily harm is countered by incorporating equally serious preventative measures.

Ultimately, the legality of introducing weapons into MMA leagues would likely come down to the ability of organizers to convince the courts that the safety precautions taken adequately address the increased ability for combatants to inflict serious bodily harm. Time will tell if MMA leagues opt to introduce weapon-based martial arts, likely following a profit versus risk-assessment. In the end, the fights themselves would surely be as entertaining as any legal battle that may ensue.

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Doping Infractions Have No Place In Canada’s Courtrooms

November 15, 2015

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By Geoffrey Hamilton – Thompson Rivers University 2L JD Student

Doping in sport is now characterized as one of the most morally bankrupt acts that athletes can partake in. It has gotten to a point where countries are choosing to enact sports specific criminal legislation to prosecute those who have violated sections of the WADA code. Countries that have opted for this regime include Austria, Italy, and France. Austria’s sports specific legislation asserts that anyone who commits fraud by using any substance or method prohibited under the European Anti-Doping Convention faces up to 3 years in prison. This sentence can be increased up to 10 years if the ‘damage’ equates to more than 50,000 euros.

While Austria’s criminalization on the use of banned substances is extreme, many other countries have enacted legislation that criminalizes the trafficking of WADA prohibited substances. So while an athlete’s use of these substances may not result in a criminal sanction, more countries are becoming comfortable with associating doping control issues with criminal penalties.

Criminally charging athletes who violate the WADA code will likely not be permitted in Canada. Any sentence ordered under this hypothetical regime would undermine the fundamental principle of sentencing found in our Criminal Code which states that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

This can be broken down into two parts: the proportionality to the gravity of the offence, and the degree of responsibility of the offender. In regards to proportionality, an athlete who fails a doping test for the first time can face up to a 4 year ban. This not only amounts to a death sentence for most athletes’ careers, it also can cost professional athletes millions of dollars in earnings, sponsorships, and other sports related incomes.

The findings of all doping violations are made public. Seeing as how the public views these individuals’ actions as detestable, these former athletes could find it very difficult to attain some form of recovery by way of meaningful post-athletic employment. To add an additional fine or prison sentence to this reality would be irresponsibly punitive and would not amount to a proportionate sentence. Further, the additional burden of a permanent criminal record placed on these disgraced former athletes would all but eliminate any chance at allowing them to move on and perhaps one day make up for their mistake by becoming a productive member of society.

In regards to the degree of responsibility of the offender, athletes found to have banned substances in their systems are tried under the principle of strict liability. There is no defence; anything found in your system is your own responsibility. This seems irreconcilable with a criminal justice system that requires a burden of proof beyond a reasonable doubt. While there are some strict liability summary offences in Canada, none of them reflect the stigma or penalties associated with Austria’s sport specific fraud.

The only somewhat rational response to this difference would be for athletes who have failed drug tests to have a completely separate criminal trial where perhaps they could actually formulate a defence for why the substance was in their system. This would often result in long, convoluted trials that are associated with fraud in our Criminal Justice system. It would be a completely unnecessary burden on an already overburdened system for a non-violent offence that has no business in the criminal courtroom. These are just a few of the reasons why this type of legislation should not be enacted in Canada.

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FIFA: Corruption, Scandal, and Sponsorship: A New Hope

October 12, 2015

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By Tariq Salloum – Thompson Rivers University 2L JD Student

The Fédération Internationale de Football Association (FIFA) is the universe’s largest spanning sporting organization with six confederations and 209 national associations, indeed the FIFA Empire stretches nearly across every corner of the globe and there is no sight of its overwhelming success slowing down anytime soon. However, not all is well in the empire, with charges pending against multiple senior level FIFA level officials for corruption in the United States and the five-time elected President Sepp Blatter facing corruptions charges in Switzerland, and the FIFA ethics board internally investigating its top members – it seems the sponsors have had enough.

As FIFA’s top officials find themselves strife with corruption allegations, major sponsors such as Coca Cola, McDonalds, Budweiser and Visa are done with their wait-and-see approach with FIFA’s top officials, each issuing statements within hours of each other voicing their disdain with FIFA’s top officials including the president, Darth Vade …err – Sepp Blatter. So the question becomes, can our world’s top capitalists do what our world’s top governments can’t do, mainly remove Seth Blatter and his inner circle from the helm of the world’s most beautiful game.

FIFA is estimated to make $177 million a year in marketing deals from top tier sponsors such as Visa, Adidas, Hyundai and Coca-Cola, all of which have recently signed eight year deals worth a cumulative total of $993 million just between these four global corporations. In 2014, a World Cup year, FIFA is estimated to have made $2.1 billion dollars in revenue. Indeed, with all the corporate money that FIFA may lose if its top sponsors live up to their threats and were to withdraw its sponsorship and support if Sepp Blatter was to stay in power is considerable. One would suspect that Sepp Blatter’s fate with FIFA had been sealed.

In the most recent developments, it seems as the arm twisting by the sponsors has worked at least in the interim. As FIFA’s ethics committee has decided to suspend President Seth Blatter and those in his inner circle for at least 90 days, with no details being released until their investigation is finalized due to Articles 41 and 42 of the FIFA code of ethics.

However, Blatter issued a statement through his lawyers saying he was “disappointed” the ethics committee had not followed its own code in allowing him an opportunity to be heard, and claimed the suspension was based on “a misunderstanding of the actions of the attorney general in Switzerland.”

Amidst the united global alliance demanding the resignation of the 79 year old, Blatter still remains defiant and why wouldn’t he be? Up until now he has faced no real consequences for his alleged corruption. In fact, soccer/football and FIFA continue to grow in popularity worldwide year in and year out with no end in sight. No matter what, it seems that the heads of FIFA and the law are going to collide sooner rather than later. Whether it be business law, criminal law, international law, or internal regulations; it’s all sports law at this point and fittingly it seems that the scandals surrounding FIFA are only going to be settled in an adverse arena – albeit a legal arena – nonetheless the score will be settled once and for all … eventually.

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“An injury is much sooner forgotten than an insult”: An analysis of the John Terry Criminal and Regulatory cases

October 10, 2012

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  • The judgment of the criminal case at Westminster Magistrates’ Court (Mr Howard Riddle presiding) between – R v. John Terry (13 July 2012) will be referred to as [WMC].
  • The ruling of the regulatory commission hearing between the Football Association v. John Terry (24th-27th September 2012) will be referred to as [RegComm].

The incident between Chelsea defender, John Terry (JT) and QPR defender, Anton Ferdinand (AF) occurred during the course of an FA Premier League match between Chelsea FC and Queens Park Rangers (QPR) on 23rd October 2011. From an initial altercation, both players attempted to wind each other up through the exchange of a number of ‘industrial’ phrases. JT suggested that AF’s breath smelt, while AF responded with a slow fist pump gesture and made abusive allegations about JT sleeping with his “team mate’s missus”. It was following this latter gesture, that JT made the now infamous statement:

“F*** off, F*** off…[missing disputed words]… f***ing black c**t, f***ing knob-head.”[RegComm: 1.5]

On 22nd December 2011, after an unidentified member of the public lodged a formal complaint, JT was charged with a racially aggravated public order offence:

“using threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress and the offence was racially aggravated in accordance with Section 28 of the Crime and Disorder Act 1998, contrary to Section 5 of the Public Order Act 1986 and Section 31(1)(c) and (5) of the Crime and Disorder Act 1998.”

As the criminal case, took priority, the FA disciplinary proceedings were stayed until the conclusion of the criminal case (itself temporarily delayed due to a Chelsea FC request to have it heard after the European Football Championships). It was therefore not until the 27th July 2012 that The FA charged JT with:

“Misconduct pursuant to Rule E.3(1) of it rules and regulations which included a reference to the ethnic origin and/or colour and/or race of Mr Ferdinand within the meaning of Rule E.3(2).”

Although AF admitted that he used abusive and insulting words and behaviour towards JT contrary to FA Rule E.3(1), he was not charged alongside JT as the FA Policy is to only apply on-field sanctions to breaches of E.3(1) rather than take retrospective action, unless the conduct is directed at a match official or third party (spectator) [RegComm: 3.5].

 

When is a question a question?

While all parties agree that JT spoke those words, the crux of both the civil and criminal cases hinged on the disputed words in the middle of the sentence. JT argued that AF had accused him of racial abuse first, and therefore his statement should merely be seen as a forceful rebuttal to AF’s initial comments rather than any new insult [RegComm: 3.4 / 6.2]

JT’s account was corroborated by Ashley Cole (AC), indeed JT even went as far as saying that AF was “not telling the truth in denying that he had used the words first” [RegComm: 6.2]

By contrast, both The FA and the Crown argued that JT had spoken the words to insult or abuse AF.

Unfortunately, despite expert analysis from lip-readers in the criminal trial, it was not possible to definitively identify the exact words used in this middle part as although the match was televised live (and clips subsequently uploaded on the internet), two Chelsea players (John Obi Mikel and Ashley Cole) obscured JT’s face during the disputed part of the sentence. There was similarly no clear camera view of what AF had said immediately prior to JT’s statement.

Interestingly, JT was acquitted in the criminal case, but was subsequently found guilty by the FA Regulatory Commission and received both a four match ban and an index-linked financial penalty of £220,000 plus costs.

So why were there different results on what were ostensibly the same facts?

 

The Criminal Case

While the Chief Magistrate (Mr Riddle) made it clear that he felt that:

  • the prosecution had a ‘strong case’
  • there was enough evidence for the case to go to trial [WMC: Page 7]
  • that JT’s explanation was ‘unlikely’ [WMC: Page 6]
  • and that it was unlikely that AF accused JT on the pitch of calling him a ‘black c**t’ [WMC: Page 14]

ultimately he accepted that “it was possible that Mr Terry believed at the time, and believes now, that such an accusation was made” [WMC: Page 14] and given the lack of hard evidence to rebut this view, this doubt was enough to militate a not guilty verdict.

Had this case been brought in Scotland, this may have been a Not Proven verdict, as Mr Riddle’s comments do not exactly represent a glowing endorsement of either JT or AC’s evidence. Indeed, the Regulatory Commission perceptively note at [RegComm: 6.7] that the Chief magistrate’s analysis was couched in terms of “possible” rather than “probable”.

That said, Mr Riddle does also point to inconsistencies and discrepancies in AF’s evidence [WMC: Page 5] and makes the suggestion that despite his evidence to the contrary, it was possible that AF could have been aware of what JT said at the time “but found it easier to say that he wasn’t” [WMC: Page 6] and when AF went to away team dressing room to meet JT & AC, it could have simply been to put the incident behind him.

  

The Regulatory Commission of the FA

Although the Regulatory Commission case adopts a very similar approach, it is worth highlighting a number of important issues.

Double Jeopardy?

JT not only denied the substance of the charge, but challenged the very validity of the charge letter and the jurisdiction of the FA suggesting that the case was an abuse of process and procedurally barred under Regulation 6.8 of the FA Disciplinary Regulations [RegComm: 3.2]

This argument was however rightly dismissed by the Commission. In doing so, they made an important clarification that this was not the FA having a second bite of the cherry, but rather its first bite since “the purpose of the criminal proceedings that were brought by the Crown was not to regulate football” [RegComm: 5.16].

In practical terms, this meant that the Commission was not bound by any of the findings of the Chief Magistrate and could revisit the existing evidence, or consider new evidence in light of the lower civil standard of ‘balance of probabilities’ rather than the stricter criminal test of ‘beyond all reasonable doubt’. This is a longstanding convention, and has been applied worldwide to cases as diverse as OJ Simpson to doping and hooliganism. In this case however, the Commission laid out 4 potential scenarios for sports regulators who considering bringing a disciplinary case after a civil or criminal action [RegComm: 5.14]. For ease of understanding, I have converted these scenarios into a matrix:

The FA could therefore simply resubmit identical evidence from the criminal trial to be considered by the Regulatory Commission. Ironically, the high-profile nature of JT actually counted against him in this regard, as usually the only clearly known facts that are discernible from a criminal case are the acquittal or conviction, unlike the full narrative verdict given in a civil case. In JT’s criminal trial however, the Chief Magistrate prepared a 15 page written verdict which provided a number of material findings.

For me, this provided one of the undoubted highlights of the Disciplinary Panel ruling at [RegComm: 5.8] where the Panel noted that:

“Mr Carter-Stephenson [JT’s counsel] argued that the only “facts and matters” in the judgment that are relevant to the result are those that favoured Mr Terry in the decision that was reached and not those that were adverse to him” – bonus points for effort I suppose!

 

Evidence

Perhaps the biggest difference between the criminal and civil (disciplinary) approaches was in relation to the evidence.

For example, the Regulatory Commission allowed newspaper and video evidence of a match against Barcelona in order to rebut evidence given in the criminal trial that JT had “unusual qualities of self-control and leadership” [WMC: Page 8]. In doing so, the Regulatory Commission treated hearsay evidence as: 

“being inclusionary and can be given such weight as the court thinks fit, unless and until any other issue as to its admissibility is raised which might limit its exclusion.” [RegComm: 7.15]

In this particular case, the video evidence showed “matters that are relevant to our overall assessment of disposition, demeanour and conduct during the critical phase of the match against QPR.” [RegComm: 7.18] by undermining JT’s credibility and character.

This was very much a theme throughout the disciplinary hearing as the Regulatory Commission took a much more hostile view of the witness testimony, and in particular JT’s decision not to give evidence. While the Panel was at pains to stress that it did not make adverse findings against him for not giving evidence, by allowing inconsistencies and criticism to go unchallenged, this is essentially what happened.

The Commission also effectively all but accused JT, AC and the Chelsea Club Secretary, David Barnard (DB) of lying:

  • “…we are driven to conclude not just that it is ‘highly unlikely’ that Mr Ferdinand accused Mr Terry on the pitch of calling him a ‘black c**t’, but that he did not.” [RegComm: 7.7(i)]
  • “That Mr Terry did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’, or any word(s) that might have suggested that he was accusing Mr Terry of racially abusing him” [RegComm: 7.7(ii)]
  • “That Mr Cole did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’ or any other word beginning with the word ‘B’ that had any reference to, or context with skin colour, race or ethnicity…” [RegComm: 7.7(iii)
  • “There are then further aspects of Mr Terry’s defence that the Commission finds improbable, implausible and contrived…” [RegComm: 7.8]
  • “All of this causes the Commission to have very real concerns about the accuracy of Mr Barnard’s recollections and the motivation for the assertions that he makes in his witness statement about what Mr Cole said in during the FA interview” [RegComm: 7.37]
  •  “….shows Mr Barnard’s recollections to be materially defective.” [RegComm: 7.38]

 

 Learning Points for the FA

Of possible note for the FA disciplinary team is that the Commission report highlights two learning points. The first is that the debate over whether AC’s evidence had ‘evolved’ or had been misquoted by the FA investigators could have been avoided had the interview been taped and transcribed and this is something the FA may wish to consider for future investigations.

The second relates to concerns about the inadequacy of the disclosure of FA evidence [RegComm: 8.1]. In particular, the Commission was scathing about the lack of “any kind of established system, procedure or protocol for dealing with the type of disclosure order that was made in this case.” [RegComm: 8.2]. Although the Commission did note that it was reasonably satisfied that the FA had complied with its disclosure obligations, this may be something the FA may wish to revisit to avoid any difficulties in future cases.

  

What constitutes Racism?

Finally, at times both the Magistrates Court and Regulatory Commission seemed to perform linguistic somersaults and contortions worthy of a place on an Olympic Gymnastics team:

“It is not the FA’s case that JT is a racist” [RegComm: 3.4]

And similarly at [WMC: Page 2]: “The issue for this Court to decide is not whether Mr Terry is a racist, in the broadest sense of the word. I have received a substantial volume of unchallenged evidence from witnesses, both in person and in writing, to confirm that he is not…..the issue between the defendant and the Crown is whether Mr Terry uttered the words “f***ing black c**t” by way of insult. If he did then the offence is made out, regardless of what may have motivated him.”

Readers may remember that this was very much a theme that arose in the earlier Suarez incident. It is perhaps worth considering going forward that if using racially aggravated words does not constitute racism, what exactly does? Can one incident be excused or is once one time too many?

For all the media hype surrounding the perceived witch-hunt of John Terry, this case is notable for the confirmation that sport is not above the law, but rather that difficulties in establishing the quality of evidence may mean that internal sporting bodies are better placed to robustly deal with disputes, it is just a shame that on this occasion it has taken so long to do it.

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Hockey coach sentenced to 2 years for multiple sexual assaults to minors

March 23, 2012

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In a case whose perpetrator’s actions span three decades and has attracted a considerable amount of attention, former hockey coach Graham James was sentenced three days ago to two years in prison for sexual assault. James plead guilty to sexually assaulting two teenage boys hundreds of times while they were players on teams he coached.

James is a former Western Hockey League Coach of the Year and 1989 Hockey News Man of the Year. James had been previously convicted of a sexual assault in 1971 and was also sentenced to three-and-a-half years in 1997 for sexually assaulting two other boys, including former National Hockey League (NHL) player Sheldon Kennedy.

The sentencing for his most recent conviction has properly generated wide-spread criticism.

Provincial Court Judge Catherine Carlson accounted for the abuse of trust, the degrading and humiliating nature of the sexual assaults – repeated hundreds of times to victims under the age of 18 – and whose cumulative effect has been significant and devastating to victims Todd Holt and Theoren Fleury.

However, Carlson J. also pointed out that Mr. James expressed remorse, apologized to his victims and has experienced what she called ‘an extreme degree of humiliation’ – factors that warranted a reduction in his sentence from a possible maximum of 10 years to the two year sentence handed down.

A Globe and Mail editorial (click here to read) entitled ‘Judge didn’t grasp magnitude of James’s crimes’ accurately, in my view, captures the criticism: ‘There is something annihilationist about what he did. It was an obliterating violence he committed on their sense of personhood, repeated over and over and over and over. These crimes need a sentencing approach that recognizes the difference between one or two sexual assaults and the hundreds that Mr. Holt and Mr. Fleury endured. Not a single one of those assaults should receive a sentencing discount …. [H]is behaviour needs to be denounced to express society’s revulsion and pain at the victimization of the vulnerable, and at the abuse of trust. Provincial Court Judge Catherine Carlson spoke of that abuse, of degradation, of the total control exercised by Mr. James, but then gave him credit for an expression of remorse, an apology, the “extreme degree of humiliation” he experienced and his willingness to come back from Mexico without an extradition hearing. He deserved no such credit.’

A two year prison sentence for savage predation upon two vulnerable and trusting human beings is not enough.

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Ice Hockey – bizarre assault lawsuit dismissed plus the role of consent in hazing rituals

November 2, 2011

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Dante would be proud. Whilst it is comforting not to report on concussion or fighting, hockey has descended to a new and – in a sense – bizarre depth. A case was settled in Connecticut last month in which the mother of a seven year old son sued the mother of another player, claiming that she was assaulted, albeit after allegedly assaulting the defendant’s son. Plus the Royal Canadian Mounted Police have launched an investigation into a hazing incident which allegedly involves a teenage boy walking naked in a locker room with water bottles tied to his genitals.

To begin, Judge Theodore Tyma of Connecticut Superior Court dismissed the lawsuit filed by Madeline Fromageot (click here for the story) which alleged Joan Bennett assaulted her (the extent of the alleged assault was that Fromageot’s headband was knocked from her head during a confrontation) after Bennett came to the defence of her son whose head was being banged against a wall by the plaintiff. Fromageot was apparently exacting retribution for what she perceived as an unfair hit by Bennett’s 10 year old son against her son. In the spirit of an eye for an eye, Fromageot walked over to the players’ bench, grabbed the boy’s helmeted head and began banging it against the Plexiglass wall, yelling ‘don’t hit my son.’ It was after witnessing her son’s head bouncing off the wall that Bennett intervened when the alleged assault took place. Judge Tyma wryly stated that, ‘This case arises from two mothers dispensing with the time-honored notion of playground justice and taking matters between their sons into their own hands.’ The defendant’s lawyer called the decision a ‘vindication of common sense and our system of justice’ and summed it best: ‘The plaintiff’s case didn’t belong in the witness box, it belonged in the penalty box.’

Lastly, The RCMP are investigating an incident in which it is alleged a 15 year old hockey player with the Neepewa Natives of the Manitoba Junior Hockey League (MJHL) boy was forced to walk naked with water bottles tied to his scrotum as part of a hazing ritual. Five players were victimized during the rookie hazing. The MJHL has fined the team $5000, suspended assistant coach Brad Biggers five games, captain Danil Kalashnikov five games, assistant captains Richard Olson, Tyler Gaudry and Shane Harrington were suspended three games each and another 12 players were suspended one game each.

The legal system may once again be tested to determine where the line lies between the culture of a sport which permits behavior within and outwith the rules on the playing surface as well as behind the scenes. In a take on the Las Vegas expression, ‘What happens in Vegas, stays in Vegas,’ hockey traditionalists believe that what happens on the ice, or by extension in the locker rooms, should stay there. Generally speaking, the courts have historically taken an similarly accommodating view to the extent that it approves not only intentional and inadvertent legal contact such as open ice hits or checks but illegal conduct such as fighting, boarding or blindside hits. Indeed, such infractions are contemplated in the rule books and are presumed to be understood and consented by all those who participate.

The custom of hazing or inducting a rookie player onto the team involves subjecting the player to demeaning or degrading acts – often involving alcohol – and upon completion of said humiliating acts the player will have passed the test and is accepted onto the team. The role of consent in these rituals in less clear.

Recent incidents in Canada (note that Canada is not unique in this regard), for example, include St. Thomas University (Fredericton, New Brunswick) rookie volleyball player Andrew Bartlett, 21, who was found dead in November 2010 after attending a team party where rookie players were allegedly urged to drink voluminous amounts of alcohol and participate in degrading acts, the Carleton University (Ottawa, Ontario) women’s soccer team was suspended for two games in September 2009 after holding a rookie initiation that involved what the university called ‘serious alcohol abuse’ and inappropriate and irresponsible behavior, McGill University (Montreal, Quebec) cancelled its football season in October 2005 after a university investigation revealed that the hazing involved ‘nudity, degrading positions and behaviors, gagging, touching in inappropriate manners with a broomstick [the 18 year old complainant alleged he was sexually assaulted with a broomstick by an upperclassman as teammates cheered him on] as well as verbal and physical intimidation of rookies by a large portion of the team’ and, finally, the Windsor Spitfires hockey team was fined $35,000 and general manager / coach Moe Mantha suspended one year as manager and 40 games as coach for a hazing incident which involved a small number of players being told to stand naked in the washroom, with the heat turned up, at the back of the bus by other players following an exhibition game (one player, Akim Aliu, who refused to take part was afterwards hit during a practice by teammate Steve Downie with a blindside crosscheck to the mouth knocking out three teeth but that’s another story).

Such initiation rituals were historically regarded as team building exercises and, if they crossed the line of civility, as an unfortunate but essential byproduct of the hockey culture. Former professional player Ryan Johnston states that ‘Hazing is like fighting — part of the game. Part of the game that people who haven’t played it just wouldn’t understand’ (click here for story).

It is interesting that the legal system up until now has not really looked at such incidents. In any other setting, it would surely constitute assault. It would be a stretch to say that the victims consented by their own free will to these acts or that they were not coerced into participating.

Back to the Neepewa Natives. Only after relentless reporting by the Winnipeg Free Press and the national attention given to the story did the RCMP open up an investigation into the alleged incident. Surely there will come a time when incidents such as those listed above will be appreciated by the legal system that they are not part of the game but are symptomatic of a sport gone sideways in need of help to get it back on track and on its proper path.

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Police recommend assault charges in lacrosse head stomping incident

October 20, 2011

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The Canary reported in June 2011 that the Royal Canadian Mounted Police (RCMP) were investigating an incident in which 15 year old Blake Rose was felled by two cross-checks (which if properly administered are permissible) but then had his head stomped on in the waning minutes of a lacrosse game between the Kamloops Rattlers and Kelowna Kodiaks. The RCMP has just recommended to the Crown that a charge of simple assault be laid (click here for Kamloops Daily News article).

At the time of the incident, RCMP spokesman Staff Sgt. Grant Learned correctly noted that the investigation will hinge on whether ‘the nature of that contact [the cross-check and stomp] was so outside the boundaries of acceptable contact that the nature of misconduct was egregious and bordering into that realm of criminality?’

The courts in BC are not unique in their inconsistent approach to adjudicating sports violence. At its core, the courts struggle with how to accommodate the role of violence in sport and the extent to which participants consent to injurious force which is prohibited by the rules but may be permitted within the culture of the game. For example, in the rugby case of R v. TNB (BCPC 0117) in 2009, Honourable Judge S.D. Frame ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game. Cognizant of the playing culture of the game, Frame J. stated that the ‘amalgam of rules includes the legitimate strategy of intimidation of the opposite team by head-butting, eye gouging, elbowing, raking and punching’ and noted that ‘none of these infractions is permitted by the written rules but it is accepted by the unwritten code of conduct at this level of play in the game of rugby.’ The defendant was found not guilty on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.

With respect to J. Frame’s judgment in R v. TNB, if the lacrosse head stomping allegations are proven true, it is hoped that the court will make a bright line distinction that such conduct is criminal – period – irrespective of any fantasies relating to the ‘unwritten code’ or playing culture of the game, and that the proper means of penalizing such behaviour is not by a referee but through the courts.

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Double Jeopardy: CAS 2011/0/2422 USOC v. IOC

October 17, 2011

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Read the CAS verdictIOC rules; WADA Code

The case of the United States Olympic Committee (USOC) v. International Olympic Committee (IOC) (CAS 2011/O/2422) concerned the validity and enforceability of a particular IOC regulation prohibiting drug violators from competing in the next edition of the Olympic Games following their period of suspension.

The IOC rule was known as the “Osaka rule” and was enacted in Japan on 27 June 2008:

“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

  1. Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
  2. These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.“

While this rule applied to all Olympic athletes, in practice only a certain sub-set of athletes were affected:

  • Athletes not guilty of a doping violation – rule does not apply
  • Athletes guilty of a doping violation (with less than 6 months suspension) – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension) who wish to compete in non-Olympic competitions  – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension), but not selected by their National Olympic Committee (NOC) – rule does not apply
  • Athlete guilty of a doping violation, still serving their suspension – rule has no immediate effect
  • Athlete guilty of a doping violation at an Olympic Games  – rule has no immediate effect
  • Athlete guilty of a doping violation (over 6 months suspension), and selected by their National Olympic Committee (NOC) – RULE APPLIES

The case was brought against the IOC because one of those affected athletes, LaShawn Merritt was prevented by the rule from representing the USA at London 2012. Merritt had previously tested positive in an out-of-competition test for ExtenZe (a ‘male performance’ product containing the banned substance DHEA); and while the doping panel accepted that the substance was used inadvertently and that there was no intention to dope, Merritt still received a ban from competitions.

The crux of the case can be seen from Merritt’s current position. His ban ended earlier this year on 27 July 2011, however despite his eligibility to compete in any other competition, Merritt was still prevented from competing in next summer’s 2012 Olympics Games. He and USOC argue that this additional ban is unfair for two main reasons, because it violated the principle of double jeopardy (ne bis in idem) [7.2] and that the imposition of an additional doping sanction was in contravention of the WADA Code (article 23.2.2). USOC also argued that the rule resulted in unjustifiable discrimination between athletes and that the IOC rule should be “cancelled and declared null and void, or alternatively, that a mechanism be allowed for a case by case review of the appropriateness of the applicability of the Decision to each specific athlete” [2.9]

By contrast, the IOC argued that the rule constituted an eligibility rule [7.4] as to who could qualify as a competitor in the Olympics under Rule 45.2 of the Olympic Charter rather than as an additional sanction, that the rule protected the values of the Olympic Movement from the “scourge of doping” [7.5], that athletes had no automatic right to participate in an Olympic event [7.8] and that the rule did not conflict with double jeopardy (ne bis in idem), as it pursued a wholly different purpose than an anti-doping ineligibility sanction [7.8].

 

THE CAS RULING

All parties recognised that uncertainty surrounding the application of the decision was unhelpful, particularly since CAS had previously provided two Advisory Opinions in this area, one requested by the IOC had concluded that Rule 45.2 was an eligibility rule [8.7], while a Confidential Opinion to an unnamed International Sporting Federation (ISF) held that the application of a similar rule by an ISF was intended to be penal in nature and therefore could not constitute an eligibility rule [8.8].

It was therefore agreed that CAS had the ability to definitively settle the dispute (R27 of the CAS Code) and three arbitrators were chosen to hear the case: Professor Richard H McLaren (Canada), Me. Michele Bernasconi (Switzerland), and David w. Rivkin, Esq. (USA).

Both parties agreed that the applicable regulations of the arbitration (R58 of the CAS Code) should be:

  • Swiss Law (including fundamental principles)
  • the Olympic Charter (OC), in particular, rules 41 (eligibility), 44 (applicability of WADA Code) & 45 (Olympic participation)
  • and the WADA Code, in particular, s.10.2 (sanctions for 1st violation), s20.1.1 (IOC implementation of Code), 23.2.2 (prohibition against substantive changes to the Code) and appendix 1 (definition of ineligibility)

WADA also independently submitted an amicus curiae brief on 13 July 2011 to ensure that the arbitration panel would have as comprehensive a view as possible of the potential issues surrounding the IOC regulation, particularly since there was a suspicion that tribunal doping sanctions were being manipulated to stay under 6 months to avoid being caught by this rule [3.11].

 

ELIGIBILITY RULES

Previous CAS Jurisprudence (RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381 [76]) suggested that: “qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability for the type of competition in question.” [8.9]. In particular it was noted that qualifying (eligibility) rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.

Because IOC Rule 44 expressly incorporated the WADA Code as underpinning the Olympic Games, the IOC were bound by WADA’s definition of ineligibility. Unfortunately for them, under Article 10 of the WADA Code, ineligibility was held to be a sanction. In making this decision, the Panel held that the fact that an athlete could participate at other International competitions was irrelevant [8.16].

From this conclusion, the IOC was always going to lose as under Article 23.2.2 of the WADA Code, signatories of the Code could not add any additional provisions “which change the effect of […] the periods of eligibility provided for in Article 10 of the WADA Code.”

Because Rule 44 increased the period of ineligibility from the original doping violation (between 6months to 2 years) to the number of days until the next Olympics Games, the IOC regulation was not in compliance with the WADA Code and as such had to be struck out as invalid [8.44].

The Panel did not state that such an additional sanction could never occur, simply that such a rule needed to be incorporated within Article 10 of the WADA Code when the Code was next reviewed. To satisfy any proportionality requirements, the Panel also recommended that a first instance adjudicatory body should review any appeals [8.27].

 

The British Olympic Association (BOA) By-law

Much of the talk this week has been over whether the BOA by-law is legitimate in the wake of this ruling, and what implications this might have for Dwayne Chambers and David Millar. BOA Bylaw 25 sets out that:

“any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic team”.

Importantly, the bye-law also gives individuals the right to appeal (something that distinguishes the BOA Bye-Law from that of other NOCs).

Taken at face value though, the same issues from the USOC case apply, in that any athlete guilty of a doping violation is ineligible for selection on a British Olympic team. If this USOC decision was extended to the BOA, then it is strongly arguable that this requirement also constitutes a sanction attributable to the same behaviour and resulting in the same consequence (ineligibility from competition) [8.36]. Or more colloquially, If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!

Again, taken at face value, the only significant difference between the two rules would seem to be that the BOA by-law has an inherent appeals process, which would negate any proportionality requirement.

Is this enough though, arguably no.

There is one alternative argument though that may solve the BOA problem. At footnote 11 of the USOC decision, the CAS Panel noted that:

“If the IOC issued a rule that persons convicted of a violent felony were not eligible to participate in the Olympic Games, such a rule would likely not violate the principle of ne bis in idem, because the effective purpose of that sanction would be different from the purpose of the criminal penalty associated with that violent felony.”

Therein might lie a possible defence for the BOA. If the BOA rule was based around a different purpose than simply a sanction associated with taking drugs, but was linked to eligibility, for example an athlete’s role as an ambassador representing their country, then following footnote 11, it could be argued that the by-law had a different purpose and was therefore valid and enforceable. Such a stance echoes the comments of Colin Jackson, interviewed immediately after the judgment by the BBC:

http://news.bbc.co.uk/sport1/hi/olympics/15199159.stm

If the BOA by-law was interpreted as a ‘moral / ethical behaviour clause’, should it be limited to just drugs and doping violations though? Do we want athletes representing our country who were guilty of criminal offences? If the by-law was extended this would also help in removing the WADA ‘consistency’ argument, as different jurisdictions around the world impose different criminal sanctions and offences.

Or should we just fall into line with WADA and the rest of the world and reduce our rules to the lowest common denominator?

http://news.bbc.co.uk/sport1/hi/olympics/15159569.stm

 

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2011 Public Inquiry into McRae Helicopter Crash

September 14, 2011

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The 2011 public inquiry into the deaths of former rally world champion Colin McRae (and three others) in a 2007 helicopter accident has now been concluded. The Inquiry was instituted by the Lord Advocate under the discretionary provisions of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 and was conducted at Lanark Sheriff Court by Sheriff Nikola Stewart between January and August this year. The full determination can be downloaded here: http://www.scotcourts.gov.uk/opinions/FAI41.html

More details of the case can be also found in our original blog post about the 2009 Air Accidents Investigation Branch Report (AAIB): https://sportslawnews.wordpress.com/2009/02/12/mccrae-flying-licence-expired/

Essentially, while both the AAIB Report and the Inquiry determination were unable to conclusively determine the exact cause(s) of the crash, both reports conclude that McRae was ultimately at fault.

 

HOW THIS CONCLUSION WAS REACHED

Although a ‘black box’ style flight recorder was not fitted to the helicopter (it is not compulsory to do so for private helicopters), and there were no witnesses to the crash (although multiple witnesses did view aspects of the flight), it is possible to piece together all but the last few seconds of the flight from contemporaneous video filmed by one of the passengers.

Weather conditions were generally favourable with good visibility [9], the flight was only a short (6 minute, 8 nautical miles) return trip from a friend’s farm nearby, and the G-CBHL helicopter in question had been regularly serviced.

This effectively left five probable causes for the accident:

  • Sudden onset technical malfunction (no evidence of this despite a scrupulous investigation by AAIB)
  • Accidental interference by the passenger with the dual-flying controls (cannot be ruled out)
  • A Bird strike (no evidence)
  • Pilot disorientation or misjudgment as a result of low flying at speed in difficult terrain
  • Servo transparency failure of the helicopter leading to or contributing to deviation

 The problem for McRae is that the inquiry held that any / all of the above possibilities could have been avoided or mitigated had McRae given himself a greater margin of error by flying higher or at a lower speed [29].  

Particularly damning for McRae was the finding that: The episodes of extremely low level flying and the excessive manoeuvre parameters, particularly the descent into the [Mouse] valley by Larkhall, all as captured on the video recording, are indicative of an aircraft being flown imprudently, without due regard to the principles of good airmanship, and in such a way that normal safety margins would be reduced.[26]

McRae also repeatedly breached the Rules of the Air Regulations 1996 (1) Rule 5 (2)(b) by unnecessarily flying below the minimum 500 feet clearance requirement on multiple occasions in order to create significant g-loading for the enjoyment of his passengers [24], indeed on one occasion the helicopter deviated from its intended route to manoeuvre over a farm building at only 205ft! [49] 

 

McRAE’S INVALID PILOT LICENCE

The previous findings against McRae’s conduct are further exacerbated by McRae’s failure to hold a valid pilot licence at the time of the accident, in breach of Art.26 of the Air Navigation Order 2005 which required all pilots to hold a:

  • pilot’s licence (McRae’s had expired on 14 February 2005 and had not been renewed)
  • validated with the type of aircraft to be flown (his AS35OBS type rating had expired 16 November 2004)
  • through an annual Licence Proficiency Check (“LPC”) (expired March 21 2007 – six months before the accident)
  • a valid relevant medical certificate (which McRae did possess, [31]).

At the inquiry, evidence showed that non-compliance with this licensing system was not an isolated occasion, as McRae had previously allowed both his type rating and medical certificate to expire on several occasions, despite his continuing to fly the helicopter during these periods of invalidity [33].

While there is no evidence to suggest that he was medically unfit, or incompetent to fly either during these times or on the day of the accident, the Sheriff Stewart found that these lapses indicated a “cavalier attitude to the safety regime imposed by the Civil Aviation Authority (CAA)” [64] and could invalidate his insurance.

Further safety issues were also highlighted by an out-of-date flight manual, which failed to contain updated guidance on maintenance issues, particularly in relation to servo failures. While there is no evidence to suggest that McRae knew that this advice was out-of-date or that updates were available, the responsibility for ensuring that the manual was still current lay with McRae (as owner and pilot) [89].

 

PARENTAL CONSENT

The final issue in the case, which also has wider implications beyond the immediate families, was the lack of parental consent for Ben Porcelli (6yrs old) to be carried as a passenger in the helicopter. Ben was a friend of Colin’s’ son, Johnny McRae (5yrs old) and the two boys had been playing together on the farm until the helicopter ride.

The key point here is that McRae did not take any steps to ask either of the Porcelli’s for consent for Ben to be a passenger during the unplanned trip. While the inquiry ultimately held that there was insufficient evidence to determine whether Ben would have been granted or refused parental permission to ride in the helicopter, McRae’s failure to consult on such a deviation from the original plan resulted in considerable pain for the Porcelli family, but ultimately no legal culpability [134].

This begs the question, to what extent do parents have a right to be consulted on issues like this, or is parental consent implied by the generic loco parentis during the supervision, and consenting to deviations is merely a social expectation rather than a legal obligation? Although this issue was touched on previously by the Court of Appeal in Harris v. Perry [2008] EWCA Civ 907 (in relation to a failure to consult with the parents of two young boys before allowing them on a bouncy castle), it seems we are still not clear on to whether such a consultation duty exists….

See also: http://www.bbc.co.uk/news/uk-scotland-glasgow-west-14803595  

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