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Ambush Marketing Strikes Again at Rugby World Cup

November 23, 2015


By Emily Raven – Thompson Rivers University 2L JD Student

One of the largest sporting events in the world had its final match a few weeks ago. With over two million people in attendance and many more at home, it is safe to say that the 2015 Rugby World Cup provides very lucrative marketing opportunities to its official sponsors. This year corporate giants such as Heineken, Coca Cola and MasterCard were among the event’s official sponsors. But what about other companies hoping to get a piece of the action without the price tag?

Ambush marketing is a term used when a rival company tries to associate itself and its products either directly or indirectly with an event that it does not officially sponsor. This marketing strategy is very commonly used at large sports events. As you can imagine, this style of marketing is quite controversial and can be very frustrating for organizers and paying official sponsors of these events. Some events such as the 2012 London Olympics and the 2014 Commonwealth Games in Scotland passed bespoke legislation to protect its sponsors from ambush marketing. However, the Rugby World Cup did not, relying on existing laws and regulations to prevent ambushes.

One of the methods used by the organizers of the Rugby World Cup to protect against ambush marketers involves intellectual property rights. The event organizers held a number of copyrights in relation to the Rugby World Cup including: Rugby World Cup, RWC 2015, Rugby World Cup 2015, England 2015 and many others. Non-official corporations attempting to use these registered trademarks could face an infringement suit. Logos, photographs and event footage also fall under copyright protection, which could be relied on in a lawsuit.

Apart from trademark or copyright infringement, event organizers could also attempt to bring a claim under the tort of passing off. A successful claim would have to prove that: a) the Rugby World Cup has an established reputation, b) the non-official company made a misrepresentation that it is related to the Rugby World Cup, which caused confusion amongst the public, and c) the event organisers suffered damages.

Despite these measures, the Rugby World Cup still saw a few attempts at ambush marketing. O2 gave away 50,000 branded t-shirts to fans to wear while cheering on England in their “wear the rose” campaign. UK power company SSE also attempted to hand out branded megaphones outside of the stadium, but all megaphones were confiscated by security. Samsung, another non-sponsor, also grabbed attention with its “School of Rugby” campaign which featured British celebrities and former England rugby team players in humorous videos about rugby. Beats by Dr Dre also got in on the action by running an ad titled “the game starts here” starring the New Zealand All Blacks captain Richie McCaw.

One company that had a unique position to ambush market the event was Guinness. The brand already has a history of sponsoring rugby events and is often associated with rugby in the minds of consumers. There is really nothing that the Rugby World Cup organizers or official sponsors can do to prevent Guinness from maintaining this connection from previous sponsorship. Guinness did this with a direct marketing strategy aimed at pubs featuring ads of real life stories of rugby legends.

Guiness ambush tweetsA marketing report released at the end of the tournament examined the number of times a brand was mentioned in a tweet with the hashtag #RWC2015. The report found that Guinness was tagged more times than Heineken throughout the tournament. This shows that sponsorship does not end when the contract terminates. Having a previous sponsorship relationship with an event connects a brand to the sport giving it a strong opportunity to ambush market in the future.

Above are a few of the tweets about Guinness and the Rugby World Cup. Overall, the ambush marketing at the World Cup was rather modest in comparison to previous sporting events of its size. Although being criticized for its lack of legislative bite, in the end managers of the RWC succeeded in protecting their sponsor’s exclusive rights.

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Age Restrictions in Professional Leagues

November 22, 2015


By Stephen Kroeger – Thompson Rivers University 2L JD Student

The National Football League (NFL) requires draft picks to attend college for three years before they can enter the draft and turn pro. The National Basketball Association (NBA) mandates that their players be one year out of high school, effectively requiring one year of college, and the National Hockey League (NHL) requires players to be 18 years old before they are drafted. Each league has a different approach and age threshold to permitting athletes becoming professional amongst their ranks which raises the question why have a minimum age requirement at all?

Auston Matthews, a 17 year old hockey player, recently chose to move to Switzerland in order to turn pro a year before he is eligible to be drafted by the NHL. The annual salary range in Switzerland is from $80,000 to $450,000. In contrast, he would have played in the Ontario Hockey League (OHL), where there is no salary, only a weekly stipend of $150. With 17 points in his first 14 games in the top division in Switzerland, Matthews has proven that he can play at a professional level, albeit it is Switzerland, while some in his corner argue that he even could play in the NHL making even more money despite his young age.

The NBA requires players to be at least one year out of high school in order to be eligible for the draft. OJ Mayo, now a professional in the NBA was 19 years old when he graduated high school, yet still was forced to play a year in college at USC. In some instances the best college players stay one year and exit early to the draft. This so called ‘one and done’ culture among college basketball players is due to the idea that, in their minds, they are wasting a year and would be better served developing and playing professionally with the most talented coaches and athletes available.
In the past, players like Lebron James and Kobe Bryant were able to enter the league directly out of high school simply because they were good enough. Professional teams employ armies of scouts to evaluate talent and determine when the athlete is game ready. If a player is deemed talented enough to play, why should leagues block them?

Recently a case has begun in an attempt to bypass the strict rules of the NFL CBA. If successful, it could open the door to anti-trust law challenges in other leagues.

Leonard Fournette is a sophomore running back for the Louisiana State University football team. He is considering suing the NFL to enter the draft early. Currently, he is not eligible to be drafted until 2017, and with 1404 rushing yards and 15 rushing touchdowns in his first seven games this season, it is reasonable to assume that he is NFL ready. If filed, his case would attempt to overturn the decision made twelve years ago involving former Ohio State running back Maurice Clarett, where the appeals court held that, “because the NFL’s age requirement was collectively bargained with the players association and not unilaterally implemented, the rule was exempt from anti-trust law.”

According to some legal experts, Fournette’s case is not unreasonable. They argue that he could sue in a sympathetic court such as the district court in Minnesota which has traditionally held that the non-statutory labor exemption to antitrust law cannot apply where the rule primarily affect members of the collective bargaining relationship.

Should his challenge eventually make it to the courts and end up in his favour, a precedent would be set for players to sue other United States based leagues (ie. NHL and NBA) to gain entry into the league they have dreamed of playing in their entire lives. Instead of risking injury playing for a scholarship or a slavishly low weekly stipend, players who have the talent to elevate their game to the professional game should be eligible regardless of their age.

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Because It’s 2015

November 18, 2015


By Breanna Morrow – Thompson Rivers University 3L JD Student

When it comes to gender equality, it seems as though we have made significant strides from the backwards views of yesteryear. Earlier this month, Canada’s Parliamentary cabinet was announced to include an equal number of men and women. This is important for a myriad of reasons, but as our Prime Minister most succinctly stated it simply matters “because it’s 2015.” Society seems to finally be embracing the ideals of gender equality. Unfortunately not all aspects of society can be said to be so inclusive. What government seems to have at long last grasped, sport still does not seem to get.

On November 3rd, 2015 Michelle Payne became the first female jockey to ever win the Melbourne Cup. What should be viewed as an incredible achievement and victory for women in a heavily male dominated sport is instead ruffling feathers. After her win Payne did not hold back, acknowledging the sexism that is prevalent in horse racing and even labelling it as a “chauvinistic sport”. Rather than celebrating her success, people in the industry, as well as those outside it, are condemning her words. There is disapproval of the fact that she spoke out strongly and told her critics to “get stuffed”. That disapproval is exactly what she is trying to fight against. Her hope is that her victory can have a positive effect for fellow female jockeys. She is attempting to draw attention to the very real gender imbalance in the hope that she can help fix it for others. It is a highly commendable pursuit and the backlash she is facing only highlights how common gender discrimination and inequality still are in sports.

Certainly horse racing is not the only sport that has recently had gender equality issues. It would seem plausible to venture a guess that some form of gender inequity crops up daily around the country from the smallest rec leagues all the way up to the highest levels of sport. Sometimes these issues reach such a vexing level that they find their way into the courts and tribunals looking for justice.

In 2010, women ski jumpers turned to the courts arguing that their inability to compete in the Vancouver Olympics, while men in the same sport were able to do so, was a violation of their Charter rights. In 2014, a group of the top female soccer players filed a complaint with the Ontario Human Rights Tribunal because they were expected to play on artificial turf while their male counterparts would never be required to play on anything but real grass. While neither of these cases achieved the result they sought (the former failed due to lack of Charter applicability and the latter was dropped by the players), they still had the important effect of bringing gender inequality to the public’s attention. These cases made headlines and made the world more aware of the issues that women face when competing in sport.

While these cases and others like them are laudable for the attention that they bring to what is often an overlooked area, it is exasperating that they even need to go the courts to begin with. It should not have to be up to the justice system to fix what is systemically wrong with society. It is time for society to realize what is happening and be proactive. It is time that we stopped treating female athletes and sports as lesser. It is time that we listen to the advocates when they bravely speak out. After all, it is time for gender equality in sports. Why? Because it’s 2015.


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FIFA and IOC suspend Kuwait sport for passing domestic law

November 16, 2015


By Nickolas Rogic – Thompson Rivers University 2L JD Student

FIFA and the IOC have taken reactionary measures against the Kuwaiti Football Association (KFA) and the Kuwaiti Olympic Association (KOC), respectively. Both organizations have been suspended from international participation. Both actions were undertaken as a response to the Kuwaiti government implementing a new “Sports Law” that, as the world governing bodies state, interfere with the autonomy of the KFA and the KOC. Prohibitions against government interference in a nation’s sporting agencies are included in the Olympic Charter. An observer stated that, if the sports law is not amended, the KFA and the KOC would, in effect, be rendered unable to comply with crucial elements of the Court of Arbitration for Sport and the World Anti-Doping Agency.

Sporting organizations within a country are required to be autonomous from the government. The principle of autonomy when it comes to sporting agencies can trace its way back to the 1894 when Pierre de Coubertin, widely regarded to be the father of the IOC, said that the state would be an unwelcome intruder in what he saw as the pure world of sport, a world where people celebrated their humanity through athletics, away from the “dangerous and imprecise figure” of the state. The principle of autonomy took on new life after World War II, when the IOC and Western nations were loath to see the interference of Communist governments into their sporting organizations. It should be added that the threat of doping figured prominently in the reluctance of the IOC to endorse direct state involvement in sport.

It should also be noted that this is not the first time that the Kuwaiti’s have been suspended from participating in international sport. The Kuwaiti Olympic Committee had been suspended in 2010 but the suspension was lifted in 2012 when Kuwait’s ruler, Sheik Sabah Al Ahmad Al Sabah pledged autonomy for the Committee. In response to the question of why the ruler of the small Gulf state would “go back” on his earlier promise, Sheikh Ahmad Al Fahad Al Sabah, himself a Kuwaiti who heads the global association of national Olympic committees, stated that it was likely due to internal politics, as “the sports minister has lost an election to the president of shooting”.

The fact that the organization of sport can be so tenuous and arbitrary in a country gives credence to the reason that sports authorities require autonomy. Indeed, it is speculated that for many countries without a long history of formal civil society, the danger is that sports organizations may serve as at the personal whim of members of government.
The principle of autonomy of sport then can be seen as a lynchpin of the broader principle against corruption.

Against the backdrop of FIFA’s recent troubles, it may be asked to what extent they have the moral right to levy suspensions against nations for failing to comply with rules. Some have called for an overhaul of the international sporting legal regime in order to combat corruption that is most prevalent in developing countries. Have we drifted too far from de Coubertin’s philosophy of international sport? The case of Kuwait can be seen as a microcosm of the principles under pressure all over the international sporting world.


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A Crucial Catch, er, Drop

November 14, 2015


By Tajinder Rathor – Thompson Rivers University 2L JD Student

Every October, the National Football League (NFL) takes part in Breast Cancer Awareness Month. The NFL, along with its owners, players, and the NFL Players Association teams up with the American Cancer Society to run a campaign called “A Crucial Catch.” The campaign is “committed to saving lives from breast cancer and addressing the unequal burden of cancer in underserved communities.”

Many associate the colour pink with breast cancer, and the NFL and the American Cancer Society use this association to raise breast cancer awareness. Throughout the month of October, all players, coaches, and officials take part in the campaign by wearing pink apparel – pink cleats, pink hats, pink gloves, pink finer tape, pink socks etc. – at NFL games. Teams also support the cause by having additional branding on the field and within the stadium. Fans have the opportunity to support the cause by purchasing branded merchandise. The NFL donates 100% of the proceeds to the American Cancer Society.

This is a great cause, but the NFL has recently come under fire for a decision made by league executives. DeAngelo Williams, a running back for the Pittsburgh Steelers, lost his mother to breast cancer in 2014. To support the campaign, Williams requested that he be able to wear pink throughout the entire season. This request was denied by the NFL. The league went on to say that Section 4 of Rule 5 of the 2015 Official Playing Rules of the National Football League would not allow a player to wear “non-team colours” during a football game. The league also informed Williams that he would be subject to a monetary fine if he were to disregard the league’s equipment rules.

Such a decision seems counter-intuitive to the goal of the campaign. As already mentioned, and explicitly stated on the NFL website, the league claims to be “committed to saving lives from breast cancer and addressing the unequal burden of cancer in underserved communities.” While the league ought to be commended for its “A Crucial Catch” campaign, it arguably does come across a little petty to prohibit a player from showing his commitment to fighting breast cancer throughout the entire season.

Instead, executives decided to strictly abide by the equipment rules and force Williams to wear his team colours. Some even argue that the decision was made because it would not fit with the image and brand of the NFL. Millions of people watch NFL games every week. Who would want to see one player on the field standing out from the rest of his team in pink cleats or pink socks; a colour coordinated team looks much better.

Williams has taken this decision in stride. Instead of trying to fight the NFL on this issue, he has come up with creative ways to get around the rules. He will be dying the tips of his dreadlocks pink and may resort to painting his nails pink. There are no “equipment” rules that stipulate the colour of a player’s hair and/or nails. He will also be paying for 53 mammograms – in memory of his mother, who was 53 years old when she passed away.


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The Fair Use of Sports Media and the Value of a “Highlight”

November 11, 2015


By Marshall Putnam – Thompson Rivers University 3L JD Student

On October 12th Twitter suspended two accounts associated with well-known sports blogs: Deadspin and SB Nation. These accounts, known for posting brief videos containing sports “highlights”, were suspended after Twitter received takedown notices from two notable parties: the NFL and XOS Digital. The notices stated the accounts were engaged in copyright infringement under the Digital Millennium Copyright Act for posting gif files and vines containing content from broadcasts of which the NFL and XOS Digital are rights holders.

Of course, copyright infringing behaviour of this nature is permissible should it fall within the scope of the “fair use” exception. Basically, the “fair use” exception permits the reproduction of copyright protected material in certain instances, such as criticism, education, commentary, or when the reproduction is considered “new”. In fact, the United-States Supreme Court has previously held that “fair use” justifies the reproduction of broadcasted material through the use of a VHS recording device, in what is known as the “Betamax” case (Sony Corp. of America v. Universal City Studios, Inc, 464 US 417 (1984)).

The value of referencing the Betamax case lies in the fact that it establishes a precedent whereby the United-States Supreme Court held the reproduction of an entire broadcast is permissible. Bearing this consideration in mind, one must wonder why the NFL/XOS Digital would argue the reproduction of a five second “highlight” on Twitter constitutes copyright infringing behaviour outside the scope of “fair use”, when it has been established it is lawful to record the entire sporting event. The answer I believe lies outside the realm of intellectual property rights, and entirely in the function and use of a “highlight”.

Sporting events are one of the few televised events to remain profitable in their ability to draw a “live” commercial audience. This is likely due to the fact that a sporting event cannot be pre-determined, and audience members often have a vested interest in the outcome. But it cannot be denied that the most exciting parts of a sporting event often occur in only a handful of moments. These moments have become known as the “highlights” of the event; the moments where a player behaves exceptionally, or the outcome of the game changes. “Highlights” function as a condensed version of the entire sporting event, with a unique marketing purpose.

Now consider how “highlights” are used in the larger commercial context. They are shown in a myriad of commercial broadcasts, such as news broadcasts as well as other sports commentary broadcasts. Further, they are later uploaded by the rights holders themselves onto their own Twitter accounts/other digital media platforms. In each of these examples the original rights holders likely profit off these uses of the “highlights”; they contract the rights for the news/sports commentary to use the “highlights”, and will draw viewers to their other digital media platforms thereby increasing advertisement revenue. This is largely because “highlights” capture a secondary audience of individuals who did not previously view the sporting event.

Is it outlandish to suggest the “highlights” of a sporting event have in-on-themselves a unique marketable value to the broadcast rights holders? The actions taken by the NFL and XOS Digital certainly suggest such a recognition. But the larger question remains: are SB Nation/Deadspin infringing copyrights by reproducing “highlights” on their Twitter accounts?

Ultimately, the answer likely lies in how the rights holders characterize the use of “highlights” by unauthorized parties. When SB Nation and Deadspin use their Twitter accounts to relay “highlights” to a larger audience, they are likely doing so for a commercial purpose. Consider the fact that SB Nation is owned by Vox Media, a company which (according to their website exists to distribute premium media content. Does not a news corporation exist to distribute media content, and is this not informed by an underlying commercial purpose? The comparison seems apt.

The “fair use” exception to copyright infringement will undoubtedly be used by SB Nation/Deadspin should the NFL/XOS Digital pursue a claim against them. But at the end of the day, these are all companies seeking to profit in the commercial world of sports through the use of “highlights”. I am unconvinced that SB Nation/Deadspin should benefit from the “fair use” exception to copyright infringement. The form of distribution and length of video should not detract from the commercial motive behind the Twitter publication of “highlights”.


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Attention NFL, NBA, & MLB: There’s A Big World Out There

November 7, 2015


By Douglas Cottier – Thompson Rivers University 2L JD Student

In the next fortnight, the World Series will culminate and Major League Baseball will have a new titleholder. When this happens, it will be yet another occurrence of an American-based league making an outrageously abhorrent claim which should be legally prohibited: the winner of MLB baseball will be anointed “World Champions”.

Along with the MLB, the NBA and the NFL are also guilty of this appalling claim. Throughout the history of these three leagues, the championship teams have hung banners in their stadiums and bejewelled their players with rings that read “World Champions” having only bettered competition from the United States of America (and one team from Canada in the case of the NBA and MLB).

The common justification for this fallacy is that the best athletes in the respective sports play in these leagues, therefore their champions are surely capable of defeating any external opposition. Whether or not this is true is absolutely irrelevant. You are either a champion of the world or you are not, there is no place for opinion or speculation. It is entirely a matter of fact and the undeniable certainty is that a team that only competes in approximately one two-hundredth of the geopolitical globe is not a world champion, and there is no explanation that makes it even remotely justifiable.

The best basketball players in the world play in the NBA, which for the sake of argument provides the highest level of basketball competition on the planet. Any basketball savant would agree and would likely also agree that the next best quality of basketball is played in Europe, in the Euroleague. In the past season across the Atlantic, twenty-four clubs from twelve different European countries (who have surpassed clubs from even more countries in qualifying rounds) competed for the Euroleague title. The victors were Real Madrid of Spain who are the current European Champions of club basketball. This title cannot be disputed as any worthy opponent from any European country had the opportunity to compete. Despite reigning supreme over an entire continent, the Euroleague has the humility to never even have the faintest notion of using the term “World Champions”. This is fundamentally due to its outright incorrectness, but more practically because roughly three-quarters of the world would be unrepresented.

The Golden State Warriors won the NBA Finals this past June, making them the best of twenty-nine American clubs (and one Canadian club), and will raise a “World Champions” banner at the commencement of the new NBA season. Less than two percent of the countries of the world are represented by the NBA. The incontestable reality is that the Warriors are NBA Champions, no more and no less. Not only is the use of the term “World Champions” factually wrong, it is shockingly arrogant and egotistic, and only these American leagues have the audacity to make such a disgraceful assertion. This is illustrated by the fact that this trend does not extend to the National Hockey League, a league which is 23% Canadian, whose titleholders are accurately designated “Stanley Cup Champions”.

The problem is that these leagues erroneously feel entitled to make a statement that is one-hundred percent incorrect, which generates a completely unsubstantiated superiority complex amongst impressionable followers. The detestably vain use of the term “World Champions” will perpetuate in American-based professional sports leagues until it is legally forbidden; perhaps foreign leagues could file an action in fraud or misrepresentation. A more probable resolution would be rational thinkers in the public eye like longtime San Antonio Spurs head coach Gregg Popovich (whose team is the only one to aptly hang “NBA Champions” banners) communicating its categorical incorrectness. Coach Popovich made the following statement in 2010:

“There are no World Champions in the NBA, so anybody that has the flag up that says world champions is not correct, it’s not appropriate. The world champions, I believe, are the Spanish team right now. USA is the Olympic champion. The Lakers are the NBA champion. It doesn’t make sense for an NBA team to call themselves world champions. I don’t remember anybody playing anybody outside our borders to get that tag. Isn’t that true? I keep waiting for somebody to tell me I’ve missed something. The world’s bigger than North America. I know sometimes we as arrogant Americans don’t respond to the rest of the world, but it’s true. There’s a big world out there.”

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When Athletes Take Violence Off the Field: How Do We Address It?

November 7, 2015


By Emily Raven – Thompson Rivers University 2L JD Student

It seems that almost every week there is a new article in the news discussing an athlete that has been charged with Domestic Violence. Last month it was Australian rugby legend Hazem El-Masri. El-Masri, an ambassador for the anti-violence “White Ribbon” campaign, was arrested on Monday October 19th in his home in Sydney after attacking his wife who is 15 years younger than him. These headlines come with a disappointing and depressing regularity.

In the past ten years, 29 out of 32 NFL teams have dealt with players who faced domestic violence charges. Since 2006, in the NFL alone, 56 players have been charged with domestic violence. Sports leagues, governments and viewers struggle to cope with the increasing number of these incidents. Some scholars believe that this issue stems from athletics, especially contact sports such as football or Mixed Martial Arts. These are “High Violence Occupations,” so the environment is highly aggressive and can be a potential accelerator for domestic violence. However, athletes charged with domestic violence are not bound by any particular sport or gender.

So, who is best to respond to this social issue? Should viewers stop watching in protest? Not likely, although some may. Is the problem that domestic violence laws are too weak or that athletes aren’t prosecuted as harshly? Possibly. An obvious example of this is Ray Rice’s admission into a pre-trial intervention program, saving him from any jail time, probation or criminal record as long as he did not commit another offence. This was his punishment for knocking his girlfriend unconscious on video. The program that Rice was accepted into has a 1% acceptance rate. The laws in New Jersey are similar to those in Canada which steer first time offenders towards counselling rather than incarceration, especially when the victim stays in the relationship or refuses to testify. This was the situation in the case of Rice, whose victim is now his wife. What happened to Rice is not uncommon.

Is part of the answer to the problem of violence off the field tougher laws for perpetrators of domestic violence and new laws to protect victims? In New Jersey there is currently a bill before the legislature to allow domestic violence victims to testify via closed circuit video if the victim is too scared to testify in front of the abuser. The Canadian Criminal Code already has provisions that give trial judges discretion to allow testimonial accommodations (including testifying via closed circuit video, or with the aid of a screen) for vulnerable persons. This is a significant issue when the abuser has a high public profile as the media will likely hound the victim as well as the abuser.
Some believe that the solution lies within the sports leagues themselves. Professional leagues such as the NBA, NHL, NFL and MLB aren’t guided by the rules of criminal justice system. Instead they create policies and determine disciplinary outcomes for players using a combination of factors including Collective Bargaining Agreements, commissioners and arbitration rulings. Most professional leagues have general conduct policies, but some leagues have taken a step further to develop policies specifically for domestic violence.

The latest league to do so in August 2015 was Major League Baseball (MLB), which created a policy to address domestic violence, sexual assault and child abuse cases. The policy gives the commissioner ultimate power to determine a player’s punishment with no minimum or maximum and no precedents affecting his decisions. MLB teams have no say in the decision unless asked and the commissioner has the power to put players on a paid administrative leave for up to seven days before the decision is made.

Under this new policy, player and Player Association cooperation is mandatory. Players who wish to appeal their rulings must go before a three-person panel including an independent arbitrator. An interesting part of the policy is “Prior precedent and past practice of disciplining players for engaging in an act of domestic violence, sexual assault or child abuse may not be relied upon by a player to support a challenge to the severity of his discipline, but that all other disciplinary past practice and precedent will remain relevant.” In other words, a player can’t use the fact that these types of cases haven’t been fully prosecuted in the past as a defence.

The MLB’s policy has been criticized for being very similar to the inefficient NFL’s policy. However an important evolution to be noted in the new policy is that the MLB commissioner will not act as his own arbitrator; the MLB commissioner will have to defer all appeals to a three-person panel. This gives new meaning to the words “appeal” and “independent investigator” from the NFL policy. The MLB is also taking a step in the right direction from the NBA and NHL, both of which do not have policies specifically addressing domestic violence.

Is domestic violence perpetrated by professional athletes a societal problem that should be addressed with new and stricter laws or is it a problem best solved within the sports leagues? This is really a question of what governs a professional athlete’s conduct off the field – society’s laws or the professional leagues’ rules of conduct? Nobody, including a professional athlete is above the law. However, the MLB’s new policy may help to deter professional athletes from conduct that will bring them into conflict with the law. Only time will tell if this policy will help reduce the rate of domestic violence and other forms of abuse in the MLB.

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Revising The Arbitration of Sport System Sports Law

November 7, 2015


By Mario Checchia – Thompson Rivers University 3L JD Student

It is submitted that the structure of the arbitration system for professional sport and the standard of review by the Court of Arbitration for Sport (CAS) requires reform. The conclusion that regulation plays an important role in sport is not a difficult one to arrive at. Simply put, a sport is played as a means to determine superiority in that specific competition. A lack of regulation means the potential for unfair advantages and in turn a result which does not properly reflect the true superior competitor may exist.

It is for this reason that correct field of play decisions are important. The significance of getting the call right is why the NHL added a second referee to make it a four official system in the late 1990’s and started experimenting with goal judges in 2006. Fans would sooner see the right call be made, even after the fact – assuming it is the right call in fact – before they endure the suffering of an incorrect call. However, what recourse is available if the call or a final result stemming from an Olympic Marathon event, for example, is believed to be incorrect?

In the situation of an Olympic Marathon runner the individual would have to raise their concern within 30 minutes of the official announcement of the result of the race. This would need to be made orally to the referee by either the athlete himself or by someone permitted to act on the athlete’s behalf. The referee has the choice to make the call himself/herself or refer it to a Jury of Appeal. Subsequently, if the athlete is not pleased with the referee’s or the Jury of Appeal’s decision they can further appeal it to the CAS.

It is argued that below the CAS and above the referee and initial appeal body there should be sport specific review panels. Richard H. McLaren in his article The Court of Arbitration for Sport: An Independent Arena for The World’s Sports Disputes, argues that sport specific panels would fail because they do not have as much experience as the CAS so in turn would be more prone to erroneous conclusions. One can argue that hearings regarding contention over a referee’s on field call can properly be decided by those with expertise of the sport. The arbitrators appointed to the CAS, and in turn hearing the appeals, are not specifically trained in the expertise of every sport, hence why it would be favourable to have the sport specific review bodies. The cost to have sports play related decisions reviewed by the CAS would be higher than it would be to have a lower level arbitrator hear the matter as less arbitrators hearing each matter would be needed.

It is also argued that the standard of review for all field of competition decisions appealed to the CAS should be correctness. Currently, where there is a relevant procedure in place to resolve field of competition decisions, the CAS holds the decision reached by that procedure as final except where it can be shown that there has been arbitrariness or bad faith in arriving at this decision. This is too high of a standard that is rarely met. The justification is that this approach is in line with the doctrine that rules of the game should not be subject to the control of judges. It sounds as though it is feared that outside judges with no horse in the race, so to speak, would be making decisions. This justification is erroneous as the individuals hearing the appeals are arbitrators, and in the opinion of this author, are no different in their capacity than the initial review body for the purposes of hearing field of play appeals. Arbitrator selection is overseen by the International Council of Arbitration for Sport (ICAS). Arbitrators are chosen from within the sport circles and therefore the concern that decisions are being made by judges from an unconnected legal system is unreasonable.

As stated above, the purpose of a sporting competition is to determine the true victor through the rules of the sport. This is first and foremost the reason the standard of review of the CAS should be correctness, even when a procedure is in place. If the right call is made, regardless of whether it was on field or through an arbitrator at the CAS level, the primary reason we have competition – to determine the superior athlete or team – is protected.


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The NCAA & Academic Standards; Time to Recover The Fumble

November 7, 2015


By Alexandra Del Vecchio – Thompson Rivers University 2L JD Student

The National Collegiate Athletics Association (NCAA) is an organization that prides itself on encouraging academic success for its student athletes. Based on the strictly outlined academic requirements for its members, you might even be tempted to say the NCAA requires it. However as of late, it seems the organization may be fumbling.

Recent Academic Issues

The NCAA infractions committee recently determined that the men’s basketball program at Southern Methodist University (SMU), a Division I school, has committed multiple violations of the organizations rules. In a September 29th decision the committee found that the program had committed academic fraud, as well as unethical conduct and head coach control violations related to the fraud. As a result of these violations an array of penalties were imposed: probations, fines, a post-season ban, the vacation of past wins, a head coach suspension, scholarship reductions and recruiting restrictions.

Exactly what occurred? The team’s former assistant coach encouraged a student to enroll in an online course in order to meet the NCAA’s initial eligibility standards, permitting him to play for the team. Notably, the issue here is rooted in eligibility. Once the student enrolled, an administrative assistant completed their course work, facilitating receipt of fraudulent academic credit. When he became aware of these events, the team’s head coach didn’t report them as possible rule violations. Those involved also lied to NCAA enforcement staff when asked about the possible violation and encouraged the student to do the same.

Reading the stern decision and assortment of penalties it may seem that this is an isolated incident, properly reprimanded by the NCAA and not a real problem in college athletics. But browse just a few months back into the sports news archives and that perception may change. Just this past summer following an investigation the NCAA issued a series of significant allegations regarding violations of academic standards at the University of North Carolina (UNC). While that matter is still far from its conclusion, it certainly gives the impression that SMU is not alone in its plight.

NCAA Stance on Academic Standards & Requirements

And here is where the apparent fumble lies – the NCAA’s public stances on academic standards for their student-athletes seem to put them on opposite sides of the field, so to speak. On the one side we see an organization proud of its student-athletes, purportedly pushing for their academic success. Yet on the other side, we see an organization that takes a very hands-off approach to ensuring it.

The NCAA stresses and lauds the ‘student’ status of their student-athletes. The organization professes that academic success and achievement is equally important to athletic success, going so far as to call education a top priority, commitment and responsibility. Coupled with this position are the NCAA’s various academic requirements and standards. These standards vary between divisions, but they are thoroughly documented across the board and we see occasional non-compliance reprimands, like that of SMU.

Furthermore, in recent publications and media reports related to the O’Bannon litigation – which sought compensation for student-athletes via US antitrust law – the education afforded to NCAA athletes has been touted as a form of compensation. That is to say, the ‘top-priority’ education is said to serve as the organization’s means of remuneration for the student-athletes’ revenue generating athletic performances and related goods.

In contrast to all of this, the NCAA also seems to take the stance that ensuring education is not their responsibility. This is subtly suggested through its publications, which emphasize the role of the student-athletes’ schools in meeting the organization’s academic standards and requirements. More clearly, this has been articulated by the NCAA in response to legal allegations made against the organization, stemming from violations of academic standards at UNC. The organization’s position with respect to that litigation has been widely reported as a clear assertion that the NCAA is in no way responsible for the quality of education that its student-athletes receive, even where complaints over quality arise from enrolment in faux-classes.

These opposing viewpoints create quite the dichotomy. It seems the NCAA views the education of its student-athletes with high regard, so valuable that it serves as sufficient compensation for their revenue generating ‘work’ even. Yet despite all its other enforcement and compliance roles, the organization simultaneously refuses to take responsibility for ensuring their student-athletes receive quality education or ‘compensation’, as it’s framed in some discussions.

Perhaps it’s time for the NCAA to recover their fumble, take one for the team & truly stand up for their athletes’ education.

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