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Who is Policing Gender Discrimination for International Sport?

December 15, 2015

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By Cassandra Milne – Thompson Rivers University JD Student

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

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

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

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

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

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

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

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

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

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

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

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

 

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

December 15, 2015

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By Ian Walker – Thompson Rivers University JD Student

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

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

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

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

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

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

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

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

 

 

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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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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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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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Prosthetics in the Olympics: Equal Footing or a Carbon Fibre Advantage?

December 4, 2015

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By Emma Harvey – Thompson Rivers University 2L JD Student

Oscar Pistorius, otherwise known as the Blade Runner, made history by being the first amputee athlete to ever compete in the Olympic games. The International Association of Athletic Foundation’s (IAAF) ground breaking decision to allow Pistorius to run on his carbon fibre prosthetics didn’t come without its trials and tribulations, and as the German long jumper, Markus Rehm is learning, there is still a lot more ground to be broken.

Markus Rehm, a single-leg amputee and long jumper, recently broke his own long jump world record to win gold at the 2015 International Paralympic Committee Athletics World Championships. Rehm jumped 8.40m, breaking his previous record by 11cm. However, what is of particular noteworthiness is that his 2015 jump also beat the 2012 Olympic gold by 9cm. In 2012, Rehm was denied the chance to compete in the Olympics by the IAAF and had to make due with competing and winning gold at the Paralympic games instead. Rehm hopes to represent Germany and compete in the 2016 Olympics in Rio, though he has yet to be granted permission by the IAAF. This raises the question of whether his prosthetic carbon fibre blade gives him an unfair advantage.

Rehm’s prosthetic leg is the same carbon fibre Cheetah flex brand as worn by Pistorius, and the blade providing an unfair advantage was the same excuse that was initially used to prevent Pistorius from competing against able-bodied athletes, so wherein lies the difference? Firstly, they are competing in different sports; Pistorius being a sprinter and Rehm a long jumper. Secondly, they are both leg amputees, but are distinguishable by the fact that Pistorius is a double-leg amputee and Rehm a single-leg amputee. The advanced studies conducted on Pistorius to test his oxygen consumption, leg movements, force exertion on the ground, leg-repositioning time, and endurance were all conducted, factoring in that he has two prosthetic legs in comparison to able bodied sprinters.

The arguments against Rehm participating in the Olympics are that he would have an advantage in the long jump both during his sprint down the track and the take off into the jump. Consequently, studying Pistorius with regards to his sprinting is of no relevance as we can’t confer the findings onto Rehm based on the differences in their amputations. Moreover, the study of Pistorius didn’t examine jumping with carbon fibre blades, which is an important aspect to consider, for many believe the blade gives Rehm an unfair spring-like or catapult effect as he plants his prosthetic leg before his jump. This highlights the evident need for more information regarding how a prosthetic blade compares to a natural joint in the movement of jumping.

So what is being done about disabled athletes who want to compete against able-bodied athletes? Not much. The IAAF’s stance is to handle situations on a case-by-case basis. The German Athletics Association (DLV) showed an interest in doing a thorough study and analysis of Rehm’s prosthetics but found the costs to be so high that it wasn’t economically affordable. Instead the DLV has taken the approach of studying the data of the jumps recorded during Rehm’s competitions to see if his blade gives him an unfair advantage. Officials in the past have found the data to be inconclusive and have therefore opted to leave Rehm out of able-bodied competitions for they can’t be sure that Rehm’s prosthetic blade doesn’t give him an advantage. Without any new studies, I find it highly doubtful that the IAAF and DLV will change their positions.

Unlike Pistorius, Rehm has taken the position that he doesn’t want to spend time and money on drawn-out legal battles and scientific studies to appeal and argue the various athletic governing bodies decisions. Rather, he hopes to work in cooperation with the various governing bodies, and if deemed necessary make modifications to his blade in order to ensure the fairness standard required to allow him to compete in the Olympics.

I contend that officials need to reconsider the line between able-bodied sprinters and disabled athletes. If the blade allows Rehm to jump as far as he would, if he still had both legs and with no advantage, then why not allow him to compete in the Olympics? Various athletic bodies currently regulate what drugs may or may not be taken so the same could be done with prosthetics. With the advancements of science, it is my belief that the IAAF and other various governing bodies owe it to Rehm and others to do more to ensure a level playing field for competition in sport. It follows that conducting comprehensive in-depth studies of prosthetics rather than data analysis would be the starting step.

 

 

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NHL Geographical Expansion – Does Relocation Require Unanimous Consent?

November 23, 2015

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By Aasim Hirji – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

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

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

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

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

 

 

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Extreme Weight Cutting within the UFC

November 22, 2015

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By Azadeh Taghizadeh – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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

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

 

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

November 18, 2015

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By Danielle Oliver – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

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

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