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

January 5, 2016

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By Samantha Sayn-Wittgenstein – Thompson Rivers University JD Candidate

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

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

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

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

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

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

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

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

 

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

January 5, 2016

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By Or Regev – Thompson Rivers University JD Candidate

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

On the Docket

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

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

Cross-State Analogizing?

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

The MLB’s Past and Future for Fan Safety

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

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Have the St. Louis Rams Already Left?

January 5, 2016

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By Alexander Paterson – Thompson Rivers University JD Candidate

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

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

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

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

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

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

January 5, 2016

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By Cole Rodocker – Thompson Rivers University JD Candidate

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

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

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

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

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

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Should Collegiate Athletes be Compensated?

January 4, 2016

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By Brian Howarth – Thompson Rivers University JD Candidate

The National Collegiate Athletic Association (NCAA) is the governing body of university/college sports in the United States, and Canadian Interuniversity Sport (CIS) is their Canadian equivalent. Both of these organizations do not compensate their athletes in a monetary fashion, yet many elite Canadian athletes still flock to the United States to compete in their sporting system. Approximately 3,500 Canadian athletes are enrolled in U.S. NCAA programs, which includes roughly 2,000 athletes that could be in comparable programs offered within the CIS. One of the most notable illustrations of this trend can be seen in women’s hockey, where 460 Canadian players were playing at U.S. universities in 2012.

The compensation issue dwells down to the classification of these athletes. They are classified as students and amateur athletes; therefore their education is their compensation. David Church, head of the Canadian seniors women’s national hockey team and the York University Lions commented on the situation, stating that the CIS might be more alluring with better financial support, but that the current scholarship model being tied to academics is important. Church is quoted saying, “I believe strongly in the CIS model, in that we’re student athletes first”.

Where this issue really comes to light is within the NCAA. The United States court system has recently provided jurisprudence on this matter, namely in the case of Edward C O’Bannon, Jr. O’Bannon challenged the provisions within the NCAA that do not allow for student-athletes to be paid for the use of their names, images, and likeness, as being contrary to section 1 of the Sherman Antitrust Act of 1890, 15 U.S.C. § 1, [which] prohibits “[e]very contract, combination …, or conspiracy, in restraint of trade or commerce”. Unfortunately, after an appeal, the court vacated the injunction to pay $5,000 of deferred payments per year to athletes. They did, however, uphold the ability for an increase in the “grant-in-aid”, which allows for the coverage of full costs of student attendance. Additionally, though the National Labour Relations Board ruled against such unionization, the Northwestern University football team attempted to create a union, on the basis of being school employees rather than student-athletes, all in a plight to more fairly compensated.

The major factor here, that seems to be in the background, is the sheer economic power the NCAA wields. The NCAA generated $989 million dollars in its 2014 fiscal year. In 2010 it signed a 14 year $10.8 billion contract with CBS and Turner Broadcasting to televise its men’s basketball tournament and in 2012 signed a 12 year $5.64 billion contract with ESPN to broadcast football playoff and bowl games.

Although, much of this money is distributed to schools, athletes aren’t seeing any of it. Schools are also paying coaches an exorbitant amount of money. Consider Nick Soban, currently the highest paid coach in the NCAA, coach of the Alabama Crimson Tide football team, makes over $7 million a year, with a bonus structure to reflect strong performance of the team. USA Today reports that over 100 coaches in the NCAA make over $500,000 annually.

In Canada, data from 2012-2013 reveals Canadian universities provide nearly $15 million in scholarships to athletes within the CIS. However, only “40% of all CIS student-athlete receive an athletic scholarship which, on average, covers 51% of their tuition and compulsory fees.” Although this can be coupled with academic scholarships as 23% of athletes maintained an academic average above 80%, it is simply not enough.

The CIS is just not in the same league as the NCAA, economically or financially, but the principles remain the same. These athletes are putting the future sporting careers on the line to participate in these programs. Gone are the times when collegiate athletes were in the shadow of professional sports. With such a large influence over these programs and incredible revenue stemming from their popularity, athletes should be given a means of compensation. It should be an issue revisited on both sides of the border, because if one organization implements compensation protocols, one can be sure that the athletes will congregate to participate there.

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Fantasy Sports, Reality’s Problems

January 4, 2016

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By Harmandeep Toor – Thompson Rivers University JD Candidate

Fantasy sports have become a multi billion-dollar industry generating between $40-70 billion dollars of revenue per year. Due to the money flowing through fantasy sports, numerous parties have tried to break into the industry and have attempted to offer different products to capture market share. These unique perspectives on fantasy sports have not been more evident than through the influx of daily fantasy leagues. These leagues allow individuals to create a team, wager money and play against thousands with the hopes of large cash payouts. The two largest players that have arisen through this influx have been DraftKings and FanDuel.

As these leagues gained more prominence so did the voice of detractors. Many have claimed the games are rigged, with an October insider trading scandal leading credence to this theory. However, while these detractions have done little to damage the growth of daily fantasy leagues, a major setback arose on November 10th, when the New York state attorney general ordered DraftKings and FanDuel to stop accepting bets. The state attorney stated daily fantasy leagues constituted illegal gambling under state law. This begs the question as to whether the illegality of daily fantasy in one of the world’s largest market is its final curtain call or just another minor road bump.

On November 10th, the New York state attorney banned DraftKings and FanDuel from taking bets in New York City. Attorney General, Eric T. Schneiderman stated that these two parties were the leaders in a multibillion dollar industry intended to evade the law and fleece sports fans across the country. This decision is expected to have major ramifications for DraftKings and FanDuel in other states as Schneiderman has had a long history of being a consumer-protection advocate.

Fantasy sport companies have consistently stated that their games require more skill than luck thus it should not be considered gambling. This point was affirmed when in 2006 a federal law sanctioned fantasy sports and exempted them from a prohibition against processing online financial wagering. Both companies have stated that they tend to challenge this decision in court and it is up to the state to prove that chance or luck is a material factor in fantasy sports, and thus would make it gambling.

The legal ramifications if found in favour of the state could be wide reaching. However, many have argued that while New York is a major market with over 500,000 daily fantasy players according to a spokeswoman for DraftKings, this decision is unlikely to be a fatal blow for these two companies and daily fantasy as a whole. As previously stated fantasy sports were sanctioned by a federal law in 2006. The Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) created an exception for fantasy sports, stating it was not to be considered betting or wagering. For fantasy sports to fall under this exemption it has to be shown that winning outcome is reflected in the skill of participants.

While the implementation of this law is left up the states, only New York has constituted fantasy sports as gambling. Thus, if the decision of the state attorney is upheld, other states will not be obligated to follow the ruling. But, if they do decide to go down a similar route as New York, there will be precedent in their favour. However, Schneiderman’s argument that the majority of winnings is concentrated within 1 percent of players accidentally opposes his point that fantasy sports is luck based and may lead to his decision being overturned.

On November 25th 2015, the first hearing was held to determine the legality of daily fantasy sports. Prior to the decision being rendered, the New York State Attorney is seeking an injunction to prevent FanDuel and DraftKings from continuing to operate. At the same time, FanDuel and DraftKings are both seeking court orders that would allow them to continue to operate while a decision is being rendered without facing additional liability.

While as previously stated a decision in favour of the state attorney will have little implications for other states, it does open the discussion as to whether fantasy sports is operating in a legal grey area. With the mounting controversy surrounding fantasy sports including the revelation that individuals were using insider information to not only gain an edge but to win, regulations similar to those of traditional gambling may need to be put in place or the exception granted to fantasy sports may need to be revoked in whole.

But currently, unless numerous changes are made at a state and federal level, this decision will do little to hurt daily fantasy sports and in particular, DraftKings and FanDuel. Fantasy sports will continue to grow, flourish and individuals will continue to partake, whether those individuals include the inhabitants of New York State or not.

 

 

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BASE Jumping – The link between rules and risk

December 15, 2015

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By Deanna Campbell – Thompson Rivers University JD Student

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

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

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

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

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

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

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

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

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

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

 

 

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Reyes & the MLB Joint Domestic Violence, Sexual Assault and Child Abuse Policy

December 13, 2015

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By Alexandra Del Vecchio – Thompson Rivers University JD Student

In August 2015 Major League Baseball (MLB) and the MLB Players Association proudly introduced their Joint Domestic Violence, Sexual Assault and Child Abuse Policy. The policy provides avenues for the MLB to deal with instances and accusations of domestic violence, sexual assault, and child abuse by its players. It has been widely reported that discussions with respect to this new policy began, and were treated as a priority, in light of the various issues faced by the National Football League in recent years. In particular, the Ray Rice incident and the league’s handling of that situation is said to have accelerated MLB’s discussions of the policy.

The new joint policy has many interesting aspects. The MLB commissioner is granted considerable authority under the policy; he is responsible for investigating accusations of this nature, has the ability to put the player on paid administrative leave during the investigation, and the task of setting an appropriate penalty where warranted.

Notably, the commissioner’s imposition of a penalty is not governed by limitations, penalties are not dependent on criminal conviction, and the player’s team is not involved in penalty decisions unless asked. The policy also purports to take a comprehensive approach to addressing these accusations; the MLB has noted that the policy protects the legal rights of players, treats violations seriously, holds players accountable with appropriate means and perhaps most importantly, provides resources, such as a 24-hour helpline, for the intervention and care of victims, families and the players.

While the policy has encountered some criticism, its announcement has generally been met with a great deal of positivity and optimism. The MLB and MLBPA have also been applauded for both their collaboration and proactivity. It cannot be denied that the introduction of this policy is, at minimum, an important step in addressing these issues. It certainly seems as though the MLB is at least prepared to take a strong stance on these matters. That said, thus far the utility of the new policy has remained untested.

On October 31st, Jose Reyes was arrested in the state of Hawaii. It has been reported that Reyes is charged with abuse of a family or household member; he is alleged to have assaulted his wife while the couple was on vacation. Reyes is a shortstop for the Colorado Rockies. And so, we will now see the new measures in action; Reyes will be the first MLB player dealt with under the new joint policy. In reference to this matter, the MLB has commented that it understands the seriousness of the issues and harms of domestic violence, as evidenced by its policy. The MLB’s current commissioner Rob Manfred has indicated that an investigation, pursuant to the policy, is now underway. He has also acknowledged that this will be the policy’s first test and expressed his confidence that it will withstand that test.

It will undoubtedly be interesting and informative to watch this matter unfold. The MLB treatment of Reyes will provide a strong indicator of how seriously they intend to treat these types of issues and it will surely set the tone for its future application. Though the MLB & MLBPA have presented themselves as being serious about the issues and harms of domestic violence by implementing the policy, due to the vagueness of its investigation and penalty procedures there are some concerns.

While the policy and these aspects of it could allow the MLB to take a strong stance on Reyes actions, the opposite is also true. As the policy contains no guarantees or guidelines regarding the investigation, who is to say it will be sufficiently thorough or unbiased? Further, absent guidelines or limitations around penalties, should findings warranting a penalty be made, there is not guarantee it will be met with something truly meaningful.
But with any luck, these concerns will be proven unnecessary. As the Reyes investigation and the commissioner’s response to it unfold, hopefully the positivity regarding this policy will remain intact as the MLB proves it is as serious about these issues as their policy suggests.

 

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When a Name Taints the Game

December 10, 2015

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By Brianna Meyer – Thompson Rivers University JD Student

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

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

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

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

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

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

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

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

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

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The Hostage Cup

December 1, 2015

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By Nawel Benrabah – Thompson Rivers University 2L JD Student

In 1888, Lord Stanley was appointed Governor General of Canada and witnessed his first ever ice hockey game in Montreal. Soon after, Lord Stanley’s three sons began playing for the Ottawa Rideau Rebels, a team that toured all over Ontario with an aim to promote the “richness of the game.”

Lord Stanley was captivated by the game and had decided that the ice hockey teams of Canada needed a symbol for which they would compete. This idea was advanced and proposed in 1892 on behalf of Lord Stanley by Lord Kilcoursie. The idea was met with great approval and applause.

The Cup was purchased by Lord Stanley for the equivalent of $50 and was destined to be awarded annually to the best hockey team in Canada. Fast forward several years and Lord Stanley’s mug is under the effective control of the NHL. To be clear, the NHL does not own the trophy but rather uses it by an agreement with the Trustees of the Cup.

When Lord Stanley created the Dominion Hockey Challenge Cup, the trophy was to be held by two Trustees who would oversee the annual tournament and award the champions “The Stanley Cup.”

During the 2005 lockout, the second time in the history of the cup where no champions were crowned, a group of recreation league hockey players from Ontario, named the “Wednesday Nighters” hired Tim Gilberts of Gilberts LLP to challenge the NHL’s exclusive control of the Stanley Cup. The matter was settled before arriving to court and was accompanied by an extensive Confidentiality Agreement. The suit was deemed moot once the NHLPA and NHL had reached this agreement with the Wednesday Nighters. But why all the secrecy?

The NHL is a business cartel composed of owners and administrators who benefit from a multibillion dollar industry dependent upon a trophy that is not theirs to possess. Of course it is in their best (economic) interest to maintain control over the information surrounding any questioning of their “right” to control the cup. Perhaps there is a conflict of interest in that the Trustees of the Cup are former NHL players and Stanley Cup Champions?

In recent years, the Cup has been awarded to the most uncanny and unexpected teams in the league, which include Tampa Bay and Los Angeles. I ask, since when do Californians or Floridians care about hockey? Since their teams won the Stanley Cup!

In 2014, the NHL signed a $4 billion broadcasting agreement with Rogers Communications for the exclusive rights to regular season and some playoffs games. During a Skype guest lecture in the Spring of 2015 with NHL Deputy Commissioner Bill Daly, a student asked, “Why does the NHL continue to grow the hockey market in California?” He replied simply, “California, and especially Los Angeles is one of the largest broadcasting markets in the United States and there is a clear benefit for the league in pushing and growing the sport from the ground up.” Mr. Daly was referring to the San Jose Sharks recent addition of an American Hockey League team named the San Jose Barracuda, and the possible creation of a new western league.

The last Canadian team to be awarded the Stanley Cup was the Montreal Canadiens in 1993. Yes, that is 22 years ago! Montreal AAA 1893 First Stanley Cup Champions

[Right: Montreal AAA 1893, First “Stanley Cup” Champions.]

Hockey is an important historical, cultural and societal piece of Canadian identity, yet we are so passive when it comes to hockey’s most prized treasure.

The Cup contributes to the NHL’s financial growth annually all the while Canadians are not recompensed for their generosity in allowing the NHL to use their Cup. It is reported that NHL Commissioner Gary Bettman made $3.5 million during the 2004-05 lockout year and today his salary has tripled to approximately $7.9 million. Imagine if that kind of money was flowing through communities across Canada?

This post could very easily become a tangential dissertation about Executive Compensation however I will end by simply calling on all Canadians/Canadiens to raise their voices and demand that the NHL FREE STANLEY! LIBERER STANLEY!

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