December 15, 2015

0 Comments

Who is Policing Gender Discrimination for International Sport?

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.

 

December 15, 2015

0 Comments

BASE Jumping – The link between rules and risk

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.

 

 

December 15, 2015

0 Comments

Fair Use, GIF’s, and the NFL

By Kelly Melnyk – Thompson Rivers University JD Student

Reproduction of a broadcast in a private dwelling is not seen to infringe copyright. However, when the broadcast is seen to be made to the public, an infringement of copyright occurs. The problem facing the sports arena is the increased use of GIF’s, images and short clips pulled from a game that is shared among Internet users. These images can then be edited to be used for other purposes. For the NFL, use of GIF’s by other media outlets has created a challenge to fair use in copyright.

The American framework for fair use, 17 US Code § 107, is similar to that of the Canadian Copyright Act, RSC 1985, c C-42, s 29, fair dealing exception to copyright. Both pieces of legislation allow for copyrighted work to be reproduced for the purposes of criticism, news reporting, research, education, or parody and satire. In theory, a person could take a clip from a TV show and reproduce it without infringing copyright so long as the use is for one of the allowed purposes under the respective countries legislation.

The use of NFL GIF’s by Deadspin and SBNation demonstrates the challenge that new technology is creating for the realm of fair use in America. The GIF’s are small clips of a play from a league game and have been posted under the fair use policy, potentially falling under the category of news reporting. The NFL did not agree and requested that the Twitter accounts be closed and material taken down.

While this matter is still being decided, it raises an interesting question. If a two second GIF or 20 second vine highlighting a play is not considered to be fair use, then should not every sports reporter using a clip of the game also be receiving a take-down notice? There appears to be an arbitrary line being drawn between the use of a clip on a news broadcast and a GIF highlighting the same play.

The amount of revenue generated by broadcasting licenses is huge and obviously the NFL is not unaware of this. However, the use of copyrighted work for one of the purposes outlined in the legislation does not infringe copyright and showcasing an amazing play could easily find itself in the news reporting category of the American statute.

As the mediums used to deliver broadcasts increasingly diversify, the method in which news of plays, injuries, trades, or incidents on the field will also expand. It has become easier and much more commonplace for the average fan to take clips and images and disseminate them with rapid speed, just as Deadspin and SBNation have. Creating a “meme” or GIF from an exciting clip or image can be done by anyone with access to a computer, potentially making themselves a target of organizations like the NFL.

The highly public nature of professional sports has been greatly regulated by the private industry for the majority of the history of sport. However, as noted above, technology has been breaking down the walls that the private industry has built. The possibility of fans and alternative media outlets accessing the exclusive content is very much a reality, challenging the formal agreements for rights to broadcast or control the images. The use and dissemination of GIF’s by Deadspin and SBNation highlight the gap that the NFL thought they had filled by maintaining an official NFL Twitter account to control the use of GIF’s.

Shan Wang noted in her October 13 2015 article, “Fair use or copyright infringement? Deadspin and SB Nation get tossed off Twitter for NFL GIFs” that the NFL should look to the benefits created by further dissemination of a great play by other accounts and I would agree.

Creating greater awareness of something amazing that happened in the game last night through Deadspin could easily drive fans to find the full story through the traditional media sources that hold those exclusive rights. Fair-weather viewers may find themselves wanting to watch games more regularly to avoid missing the next great play. Rather than shutting down the site, organizations should build on the publicity being built and encourage a cooperative relationship with the alternative source. By working collaboratively, the NFL could benefit from reproductions and increase their audience from the followers of Deadspin and SBNation.

 

December 15, 2015

0 Comments

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

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.

 

 

December 13, 2015

0 Comments

Doping and CAS

By Mario Checchia – Thompson Rivers University JD Student

The World Anti Doping Agency (WADA) Code (the “Code”) provides the Court of Arbitration for Sport (CAS) Appeals division exclusive jurisdiction over doping related appeals. Unless changes are made which remedy the concerns raised in this article, it is the opinion of this author that the CAS is not the appropriate forum for doping related matter. Olympic athletes and other athletes who are members of sport federations that submit themselves to the authority of CAS, such as FIFA, do not have a choice in whether or not to adhere to the jurisdiction of the CAS since the mandatory arbitration clauses are within their contracts. If they refuse to sign they are not permitted to compete.

The mandatory submission of these sports federations to the authority of the CAS and the implications of a finding of the use of a banned substance by the CAS is why the appropriateness of this arbitration body must be addressed. As Maureen Weston has said in her journal article “Doping Control, Mandatory Arbitration and Process Dangers for Accused Athletes in International Sports”, doping violations can impact an athlete’s career and long term reputation. Take for example, the women’s 100m breaststroke world record holder in 2008, Jessica Hardy. Hardy had actively worked to ensure that her supplements did not contain any banned substances by going as far as having a dialogue with the manufacturer along with consulting her coaches. In an unfortunate turn of events, lab technicians claimed Jessica’s nutritional supplements contained clenbuterol without her actually failing a drug test, just weeks before the Olympic Games in Beijing which forced her to withdraw. The CAS would go on to reduce Hardy’s suspension to one year down from two years; however, Hardy was still unable to compete in the 2008 Olympic Games and her reputation will be scarred with that adverse finding against her.

The CAS is not the ideal court for handling doping related charges for a few reasons. These include the CAS’s burden of proof, the rules of evidence, and the unbalanced playing field.

The WADA Code’s burden of proof is termed as ‘comfortable satisfaction” – greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The exact meaning of this standard is still unclear. Although it is WADA that outlines the standard, it was the CAS which developed it and it will be the CAS that will refine it, according to Michael Straubel in “Enhancing the Performance of the Doping Court”.

One may argue that because of the seriousness of the charges of a doping related offence and because the state also punishes this conduct, doping matters should be classified as criminal, and in turn the standard should be that of criminal proceedings. The similarity in penal approach between criminal proceedings and sport doping matters was acknowledged in Demetis v Federation Internationale de Natation (27 May 2003) CAS 2002/A/432; however, the standard in sport doping matters is not ‘proof beyond a reasonable doubt’. This is further evidenced in the case of Pechstein v International Skating Union (25 November 2009) CAS 2009/A/1912 [55] which involved a 2 year ban on the 5 time skating champion. The ISU, without a positive drug test, imposed a ban based on blood passport values that were abnormal. Pechstein argued on appeal that because of the seriousness of the offence the standard should be very close to proof beyond a reasonable doubt, however, the court went with the ‘comfortable satisfaction’ standard.

There are problems with an arbitration body hearing matters which deal with matters that ought to have criminal procedures in force. Arbitration was created in the commercial realm to solve civil type disputes and therefore do not typically hold satisfactory rules of evidence, and the CAS is not an exception to this. The rules of evidence in CAS in relation to adverse findings in the absence of a positive drug test should itself be sufficient to discredit the CAS as the proper appeal body for doping related charges.

Additionally, there are foundational concerns with the CAS handling doping related matters. The structure of arbitration assumes the parties are on a level playing field but this would not be the case in most doping related disputes as the athletes tend not to have access to the level of advocacy or scientific experts as the sports authority.
When the CAS remedies these concerns only then should the arbitration body be considered as the authority for appeals regarding doping related matters.

December 13, 2015

0 Comments

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

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.

 

December 13, 2015

0 Comments

‘Comfortable Satisfaction’ – The Issues Inherent in a Middle-Ground Evidentiary Burden

By Callan MacKinlay – Thompson Rivers University JD Student

The World Anti-Doping Code (WADC) has outlined within it many articles on how to make out a doping infraction. Article 3.1 states that the burden of proof on the tribunal for making out an anti-doping rule violation is that it must be satisfied to the ‘comfortable satisfaction’ of the tribunal. This is claimed to be greater in all cases than a ‘balance of probabilities’ but less than ‘beyond a reasonable doubt’. I would argue that while this burden might seem fairer at first glance than a balance of probabilities, it is really just masquerading as a more stringent burden when in practice it operates exactly the same as a balance of probabilities.

Canada has had issues in the past with using different burdens of proof in civil cases. In Sylvan Lake Golf & Tennis Club v. Performance Industries ABQB 1999 479 (CanLii), the court stated that in order for rectification of mistake to be made out, the party claiming it had to establish their evidence by a proof of ‘beyond a fair and reasonable doubt’. This was stated to be above ‘a balance of probabilities’ but below ‘beyond a reasonable doubt’.

However, this was later thrown out in the case of FH v McDougall [2008] 3 SCR 41, where the Supreme Court ruled that there is only one standard of proof in the civil context: ‘a balance of probabilities’. This is likely because other standards or ‘shifting standards’ are uncertain and make the law less clear. The evidence must simply be sufficient to make it more likely than not and the test is made out.

For the WADC, the ‘comfortable satisfaction’ burden is just as uncertain as any other standard that claims to be a middle ground between the civil and the criminal standard. For example, if you are leaving your house and you think that it might rain, what standard do you use to determine if you should take your umbrella? Do you use beyond a reasonable doubt? Unlikely, because, depending on the local climate, you could always have a reasonable doubt that it might rain, thus you would always take your umbrella with you. Do you use a balance of probabilities? It is much more likely that this is the standard the average person uses in their everyday lives. If you check the traffic and it says that there is a 51% chance that your usual route will be slower, you will take your backup route. If it says 30% or 20%, then you probably won’t take your backup route. Where does comfortable satisfaction lie? Do you take your backup route if you are comfortably satisfied that it will be slower during your commute? How is that different from a balance of probabilities? If the traffic report says there is a 51% chance of traffic on your usual route, I could easily take my backup route with the justification that I am comfortably satisfied that it will be faster than my usual. If the report says it has a 20% or 30% chance of being slower, could I still claim to take my backup route with comfortable satisfaction?

In summary, ‘comfortable satisfaction’ is a problematic burden to use. While the WADC claims that the burden is higher than ‘a balance of probabilities’ I am not sure that its plain usage really fits that description or that the case law makes it out. If anything can be shown from the case law, especially for those cases involving innocent anti-doping violations, ‘comfortable satisfaction’ is not much different from a balance of probabilities in the ease with which the WADC can make out the violation. Unless the World Anti-Doping Association wants to change its burden to the criminal standard of ‘beyond a reasonable doubt’ I suggest they stick with the well-established civil standard and not make up new ones.

 

December 13, 2015

0 Comments

The Death-Sentence of Amateurism in the NCAA?

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.

 

 

 

December 10, 2015

0 Comments

When a Name Taints the Game

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.

December 9, 2015

0 Comments

Taking Another Look: Rugby’s Video Refereeing Problem

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.