Tag Archives: Jon Heshka

Match-Fixing: a Crime Worthy of a Life Sentence?

December 18, 2015

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By Vivian Wilson – Thompson Rivers University JD Student

In Nepal, five soccer players have been charged with treason over allegedly participating in match-fixing several soccer games, including the 2011 World Cup qualifiers. The accused players include Nepal team captain, Sagar Thapa, goalkeeper, Ritesh Thapa, along with Sandip Rai, Bikash Singh, and coach Anjan K.C.. A sixth accused, the team’s physiotherapist, who was not arrested is now deemed to be a fugitive. They are accused of taking money from bookmakers in Singapore and Malaysia in exchange for losing games. The players were found with large sums of money in their bank accounts, which authorities believe was provided by these bookmakers. The police have seized the players’ financial information as evidence.

The Nepal Government is seeking to impose a life sentence on the athletes as punishment under a 1989 act that states that anyone “unlawfully jeopardizing Nepal’s sovereignty, integrity, or national unity, shall be liable for life imprisonment.”

Is match-fixing a sufficiently serious offence as to warrant sentencing the accused to life in prison? In lieu of specific match-fixing laws, Nepal is dealing with this issue under the charge of treason. The magnitude of the offense in Nepal is striking when compared with North American countries, some of which also lack laws that explicitly deal with match-fixing.

According to an International Olympic Committee study, Canada does not have specific match-fixing laws, but match-fixing is most likely to be dealt with under the Criminal Code s. 380 fraud, or s. 209 cheating at play. The International Olympic Committee (IOC) and United Nations Office on Drugs and Crime (UNODC) suggest, in their 2013 comparative study on the applicability of criminal law provisions concerning match-fixing and illegal betting, that these criminal provisions carry quite low sanctions, as s. 380 of the Criminal Code imposes a term of imprisonment not more than fourteen years where the value of the subject matter of the offense exceeds five thousand dollars.

Match-fixing may also fall under s. 209 of the Criminal Code, Cheating at play. This offense covers people involved in defrauding others through cheating while playing a game, or holding the stakes for a game. This offense carries a sanction of imprisonment for a term not exceeding two years. Therefore, even though Canada does not have any offences specifically covering match-fixing, it will likely fall under Canadian criminal law. The sanctions however are very low compared to the life term sought by Nepali prosecutors.

The United States, however, does have specific offences for match-fixing. There are federal offense of Bribery in Sporting Contest, 18 U.S.C § 224, for which the sanctions are fine and/or imprisonment of not more than five years. There are also state offenses, such as Sports Bribing, and Sports Bribe Receiving under New York State’s Penal Law. The punishments for these state offenses are fine or imprisonment of not more than seven years, and imprisonment not more than four years, respectively.

Compared to the IOC and UNODC’s suggested most likely treatment of match-fixing under Canadian law and United States law, under which the highest sanction possible is fourteen years under Canada’s fraud provision, the Nepali life sentence for treason seems extreme. The North American countries’ laws suggest that match-fixing is not seen as sufficiently serious to warrant harsh punishments, suggesting a difference in the way North American and Nepali people perceive sports, and the disparate local perception of the seriousness of the impact of corruption in sport on the country’s sovereignty, integrity and national unity.

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

December 18, 2015

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By Talina Handel – Thompson Rivers University JD Student

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

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

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

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

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

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

 

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Is there a Place in the Octagon for Antitrust Laws?

December 18, 2015

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By Leah Seneviratne – Thompson Rivers University JD Student

If consumers are receiving the best product, is an alleged monopoly still harmful? American antitrust laws are in place to prohibit agreements that restrain trade and result in a monopoly. The intended result is the promotion of a competitive marketplace and protection of consumer welfare. However, monopolies in professional sports are rarely portrayed as harming consumer welfare. Rather, they have come to be expected of the most popular American sports leagues, evidenced in the domination enjoyed by the NBA, MLB and NFL. As a result, we are left with the question of whether antitrust laws should still have a place in professional sports businesses, if they still manage to produce the best possible product for consumers.

In a recent court decision, the Ultimate Fighting Championship’s parent company, Zuffa LLC, failed in their application to dismiss a class action lawsuit filed by various current and former fighters for allegedly anticompetitive business practices. The plaintiffs have brought their action under section 2 of The Sherman Act, and claim that Zuffa’s scheme has resulted in fighters being paid a fraction of what they would earn in a competitive Mixed Martial Arts market. As Dana White, the president of Zuffa, once stated, “There is no competition. We’re the NFL. There is no other guy”.

The alleged scheme of Zuffa was to directly acquire potential rival companies who were unable to compete profitably, as well as to impair competition by locking their professional MMA Fighters into lifetime exclusive contracts that bar them from working with up and coming MMA promotion companies. The scheme also included refusing to contract with any sponsor who agreed to work with an actual or potential MMA promotion rival, and requiring major physical venues to supply their services exclusively to the UFC. This greatly impedes the ability of potential UFC rivals to attract enough viewers and money to be profitable and avoid acquisition. The plaintiffs also allege that professional MMA fighters are deprived of an opportunity to make a comparable salary to those of boxers, or even NFL players, who at least have the benefit of multiple teams competing to acquire them.

What is noteworthy is that despite being part of one of the fastest growing professional sports, the latest Forbes’ list of the, “Top 100 Highest- Paid Athletes in the World” revealed a complete lack of professional MMA fighters, while boxers and soccer players dominated the list. Forbes Magazine reports the annual revenue of the UFC to be from $350-450 million, while they estimate the median fight payout for a fighter to be between $17,000 and $23,000.

So to answer the question, should the same antitrust laws be applied when it comes to the area of professional sports, where Zuffa is allegedly taking actions that result in a monopoly? In the end, the answer lies in the nature of the business practices. Section 2 of the Sherman Act is violated where there is monopolization, an attempt to monopolize, or combination or conspiracy with another person to monopolize a part of trade or commerce. It is behaviour that amounts to an exclusion of an actual or potential rival that is prohibited by The Sherman Act. If the allegations of the plaintiffs are correct, then we have a market in which a company with massive power and resources willfully obstructs competition. This type of exclusionary behaviour has allegedly resulted in a substantially increased difficulty of survival for competitors, as well as reduced bargaining power for professional fighters in contract negotiations. If the legislation clearly values competition and preventing the restriction of business transactions, then antitrust laws need to be taken seriously in the area of professional sports, in order to prevent the anticompetitive tactics that undermine them. The allegations facing Zuffa emphasize the necessity of antitrust laws in professional sports, which include preventing harm to both the competitor and the player.

 

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Who is Policing Gender Discrimination for International Sport?

December 15, 2015

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By Cassandra Milne – Thompson Rivers University JD Student

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

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

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

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

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

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

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

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

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

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

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

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

 

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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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Fair Use, GIF’s, and the NFL

December 15, 2015

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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.

 

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

December 15, 2015

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By Ian Walker – Thompson Rivers University JD Student

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

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

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

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

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

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

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

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

 

 

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Doping and CAS

December 13, 2015

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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.

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

December 13, 2015

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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.

 

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The Death-Sentence of Amateurism in the NCAA?

December 13, 2015

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By Kyle Sandulescu – Thompson Rivers University JD Student

When the NCAA was established in 1906, it was designed to entrench the principal of “a sound mind in a sound body” at institutions of higher learning in America. The bargain was that NCAA agreed to protect the health and well-being of its student-athletes, on the agreement that the student-athletes withdraw their right to profit from their athletic endeavours in any way. In short, the NCAA was established under the belief that men and women could enrich their lives through the amateur student-athlete experience.

Over 100 years later, the NCAA has become an oft-criticized figure of manipulation and a far-cry from an ambassador of amateurism in sport. The NCAA is an apparent hoax; a regulatory body designed to protect student-athletes while dealing at arm’s length with commercial enterprises who profit from their marketability.

The late Myles Brand, director of the NCAA from 2002-2009, defended the economics of college sports by claiming that they were simply the result of a smoothly functioning free market. However, the market is not free because there is unequal bargaining power between the NCAA and the athletes who provide the NCAA with its product.

The argument to be made is that the NCAA has clearly been overcome by the commercial forces that surround college sports to the detriment of the student-athlete. Lawsuits have exploited the NCAA’s unwillingness to protect student-athletes who suffer from long term injury, while the NCAA throws its rulebook at its athletes for even the most minor infractions resulting in a “profit” from their college athletic careers. Evidently, the NCAA has balked on protecting athletes from commercial exploitation because they are afraid to bite the hand that is their sole source of authority – the member institutions.

Section 2.9 of the Division I Manual of the NCAA states the principle of amateurism rather amiably: “student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” However, it is hard to understand the rationale for the principal of amateurism when the NCAA signs mega-broadcasting deals worth over half a billion dollars for NCAA football and basketball while major sponsors hammer on the doors of member institutions to ensure that the top programs and players are hyping their brand.

The outspoken Taylor Branch once said in his now infamous article, The Shame of College Sports: “The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.”
Adopting Branch’s position, it is hard to make a straight-faced argument that the principal of amateurism is being abused to serve a commercial purpose. In recent memory the courts have been more willing to confront this issue head on. The US Court of Appeals for the Ninth Circuit in O’Bannon v NCAA upheld a district court’s decision that NCAA amateurism rules violate antitrust laws saying that “the NCAA’s rules had significant anti-competitive effects within the college education market.”

O’Bannon makes it clear that the NCAA’s principle of amateurism is being used to regulate a commercial activity, while the NCAA has continued to rely on the decision in NCAA v Board of Regents of the University of Oklahoma, which stated that “to preserve the character and quality of the product, athletes must not be paid.”

Criticizing the NCAA’s principal of amateurism should make us uneasy because it largely epitomizes a departure from the ideal that the outcome of the sport was determined by the skill of players and not the cheque books of their institutions. Given the evolution of college sports into the mega-industry it is today, the NCAA would be wise to take advantage of the opportunity to legitimize the concept of amateurism in the wake of commercial realities.

At stake for the NCAA are billions of dollars in revenues and licensing fees if the NCAA cannot demonstrate that it is capable and willing to protect the health and well-being of student athletes. The principal of amateurism can therefore be re-tooled to reflect the need to protect athlete’s from injury, perhaps deflecting the accusations that the NCAA has essentially sold out the health of their athletes for the commercial interests of member institutions.

 

 

 

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