Tag Archives: NHL

More Clarity is Needed Regarding Substance Abuse in the NHL

December 9, 2015

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By Nathan MacDermott – Thompson Rivers University 2L JD Student

In early October the NHL and the NHLPA acknowledged that there is a cocaine problem among NHL players. With NHL drug arrests on the rise, the league has asked the NHLPA to allow cocaine to be added to the list of substances regularly monitored within the league’s testing program under the current Collective Bargaining Agreement (CBA).
If it is truly on the rise, what effects may it have on the league and its players?

Given the nature of the drug, one could argue that it is a performance-enhancing drug in a sport like hockey where aggressive play is an asset. But the true implications could be more to do with the image of the players, teams and the league as a whole.

There is a need for clarification within the CBA as to what impacts substance abuse will have on players and their contracts. Currently the substance abuse program is the place for players who are found to have a problem, but the recent case of Mike Richards may have changed that somewhat. The Los Angeles Kings recently terminated his contract after a drug related arrest, and eventually the parties reached a settlement. On its face it appeared that he should have been placed into the leagues substance abuse program before the Kings took any action regarding his contract. The Kings however stated that they terminated his deal because he did not tell them of the arrest, and not because of his drug use or the arrest itself. This shows that more clarity is needed within the CBA to protect players from similar outcomes.

If the league’s policy is to attempt to assist players with their addictions quietly before further action is taken, then there should be further clauses within the CBA to limit team action around such cases. Page 2 of the Standard Player Contract (SPC) states that the player agrees “to conduct himself on and off the rink according to the highest standards of honesty, morality, fair play and sportsmanship, and to refrain from conduct detrimental to the best interest of the Club, the League or professional hockey generally.”

This leaves the door open for clubs to penalize players or even terminate contracts for a myriad of reasons, and it appears that this could include drug use if any of the criteria in the SPC are met. A drug related arrest or simply being found in possession of an illicit substance could violate the contract and leave the player open to reprimand if pursued under the guise of another violation.

The NHL and the NHLPA need to get together to amend the language to avoid conflicts in these situations. If they left substance abuse related incidents outside the realm of ‘conduct detrimental’ etc., then players would truly have more security when dealing with substance abuse. The league may even find that players would be more willing to come forward and enter the program of their own volition, knowing that the contract repercussions were limited in this regard. As the setting in which these contracts function changes, so should the terms within the CBA and the SPC to better reflect the current state of affairs within the NHL.

 

 

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For Whom the Bell Tolls – Death of the NHL Enforcer

December 4, 2015

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By Dan Hutchinson – Thompson Rivers University 3L JD Student

The death bell of the NHL tough guy has been sounding for years and now that breed of player is all but extinct. Names such as Probert, Domi and Twist are long gone from the game and even more recent names such as McGrattan, Orr and Parros have been unable to find employment in the NHL either having to settle for minor league deals or retire The league simply phased these players out of the game with rule changes that make the game faster, with more emphasis on speed instead of toughness.

According to hockeyfights.com, after 227 games in the NHL this season there have been 53 fights corresponding to 20.3% of games played with a fight. The percentage of games with a fight is down nearly 7% from last season and has dropped significantly each season since 2010 when the number of games with a fight was 40.1%. This number has dropped significantly due to the NHL taking steps to limit fighting including stiffer punishment for players engaging in a fight and instructing linesmen to break up fights before they are able to start.

The drop in fighting has also resulted from a philosophical shift in the league towards speed and skill and away from toughness and grit. Teams want players that can play at least 10 minutes a game and contribute more than their fists. “You’re already seeing a lot of that,” said Carolina GM Ron Francis. “Now you get teams that have scoring on all four lines. The way the game is played and the pace it is played at, teams that have success are the ones that have 12 forwards who can give you minutes.”

While this philosophical change has played a part in the death of the enforcer it is not the only reason the tough guy is no longer part of the game. Significant changes in rules in hopes of protecting players has seen the league take matters into their own hands further pushing the enforcer out of the game.

With concussions being an issue on everyone’s mind, especially with the current lawsuit against the NHL launched by former players dealing with issues relating to head injuries sustained during their playing career, the NHL has started to give out lengthy suspensions and fines for players laying dirty hits on opponents. The most recent long term suspension was given to Raffi Torres for a shot to the head of Jakob Silfverberg. Torres was suspended for 41 games on the play.

The question now is whether these suspensions and fines are enough of a detriment for players to avoid dangerous hits and result in an actual increase in player safety. Or were players safer with their own personal policemen roaming the ice? Many believe that the threat of having to “face the music” as a result of a dirty play to be more of a detriment than a fine or suspension. With the way the NHL is going, the threat of an enforcer coming after a player due to a dirty hit or even a fight as retribution is becoming a non-factor, a path which many feel is wrong.
“I would hate to see the unintended side effects of where hockey would go without fighting, without that threat of retribution. It’s a fast, violent game where we’re wearing weapons on our feet and essentially carrying a club. So while a two- or five- minute penalty is a bad thing, it’s not going to knock somebody off their path of destruction as much as somebody grabbing them and punching them in the face,” claims ex-NHLer Kevin Westgarth.

It’s hard to know whether the NHL would be a safer place without fighting and the threat of a suspension being the only thing to stop players from dirty plays but looking at two high profile instances where headshots have been delivered, no enforcer was in the lineup for the team that sustained the hit. In the 2011 Winter Classic where Sidney Crosby was taken out with a blatant headshot, Pittsburgh hadn’t dressed their enforcer Eric Godard and neither did Anaheim when Torres nearly took off Silfverberg’s head. This would never have happened to Gretzky when McSorley was in the lineup. It’s impossible to say whether or not these hits would have occurred had an enforcer been dressed but it is something worth noting.

Additionally, in the NCAA fighting is banned and is arguably more dangerous as a result. “They drop the puck and you try to kill guys in the corner. I don’t know if it’s because there’s no fighting or because of the build-up, but there’s a lot of crash-and-bang, not much finesse out there,” says ex-NCAA and current NHLer Corey Tropp. So while the NHL is doing its best to phase fighting and the enforcer out of the game in an effort to maintain player safety, they may be doing more harm than good.

It may be best for the NHL to leave fighting alone rather than push it completely out of the game. It certainly seems like the players want fighting to stay a part of the game after a recent NHL Players Association survey revealed that 98% of players support fighting in hockey. The NHL is slowly working to eliminate fighting in an effort to increase player safety and decrease the number of concussions. However, the best option may simply be to let the fights and enforcers stay a part of the game.

 

 

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The Hostage Cup

December 1, 2015

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By Nawel Benrabah – Thompson Rivers University 2L JD Student

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

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

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

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

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

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

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

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

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

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

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

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

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

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NHL Geographical Expansion – Does Relocation Require Unanimous Consent?

November 23, 2015

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By Aasim Hirji – Thompson Rivers University 3L JD Student

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

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

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

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

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

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

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

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

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

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

 

 

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Getting Back in the Game: Treating Injuries with Human Growth Hormone

November 14, 2015

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By Stephen Kroeger – Thompson Rivers University 2L JD Student

In every sport there are athletes that try to get ahead by cheating the system. In the current environment, many players are using illegal steroids and human growth hormone (HGH) to improve their competitive advantage. These steroids give athletes an unfair advantage on their competition, leading to an uneven playing field. A common response when players are asked why they used steroids is that they had injuries they wanted to heal quickly and steroids or HGH was the fastest way to get off the training table and back in the game.

When athletes are injured (particularly high profile athletes), they can lose out on a huge amount of money. Moreover, their sponsors and teams can be at risk of losing and/or wasting potentially millions of dollars. A major knee ligament tear requiring surgery or a Tommy John elbow injury requiring surgery can take between 8-12 months of recovery time in order to get back in the game.

Derrick Rose is a NBA MVP player who has been in the news over the past few years suffering from various major injuries. According to Forbes, in 2014 he was ranked the 9th highest paid athlete in the world with a combined income (salary and endorsements) of just over $34 million, yet he missed 103 games in that season and the one preceding it. Owners and sponsors are not getting value and a return on their investment on players sitting in the press box, while fans of the teams pay a great deal of money to go to the games and are often unable to see their favourite players. This leads to fan apathy and can be devastating to the bottom line.

The 2015 version of the World Anti-Doping Agency (WADA) makes it illegal to treat injuries with banned substances, notwithstanding Therapeutic Use Exemptions. But why shouldn’t athletes be allowed to use HGH and other currently illegal therapeutic methods to recover quickly from a devastating injury? According to the Institute of Sociological research, “HGH can increase your recovery overall and … recovery speed. (HGH) is highly recommendable if prescribed by a professional … it can extend careers in every sport.”

Admittedly allowing HGH to treat injuries is a very difficult policy to implement in individual sports. However, in a team sport, which involves a league and a players union, there is the possibility of both parties agreeing to create language in a collective bargaining agreement (CBA) that would allow this process to be accepted. According to WADA, “If the medication an athlete is required to take to treat an illness or condition happens to fall under the Prohibited List, a therapeutic use exemption (TUE) may give that athlete the authorization to take the needed medicine.”

Instead of trying to sneak HGH past the drug testers, if it were codified as a TUE in the collective bargaining agreements to be used following major injury, HGH could be administered and monitored by a doctor who is aware of the risks associated with the drugs and able to effectively explain them to the player. Additionally, the players would be able to get quality drugs that are not illegally trafficked, cut with potentially dangerous substances, or may not be the drugs that the player thought they were taking. This would create a safer environment for the athlete to take the drugs and heal.

For example, in the National Hockey League (NHL) the penalty for HGH use is non-existent. It is very possible for players to use the drug to get an advantage with zero repercussions. Bill Daly, deputy commissioner of the NHL says that the league is committed to implementing testing for it, however that has been delayed. Should the league implement the test, as well as regulated use, it could create a safer league, limiting the ability of players to abuse the drug. If it was allowed following major surgery, under the guidance of a doctor the risks would be minimized, and the doctors would be able to safely administer the drug only if it was medically necessary. According to section 47.2(g) of the NHL CBA, the TUE process is to be consistent with past practice, “unless otherwise agreed to by the parties.” It is clear that both parties want the players to succeed on the ice so an agreement benefitting both parties should be obvious.

Leagues succeed because of players, and if they aren’t able to be out in the field of play, everyone loses.

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NHL Contract Termination – Inconsistencies Based on Player Value

November 12, 2015

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By Casey Goodrich – Thompson Rivers University 2L JD Student

A relatively recent phenomenon in the National Hockey League has been to grant star players exceptionally long term contracts, which front-load most of the payout in the early years of the contract. This is done to circumvent the salary cap limit, in effect lowering the player’s annual average cap hit, providing a great benefit to a team that is spending to the salary cap imposed by the league.

On the contrary, this type of contract can also be detrimental as it commits a team to a player for a very long period of time, which has obvious downsides regarding the player’s potential regression, which may include injuries, old age, and inconsistencies in their play. While this type of contract has largely become a thing of the past due to the new CBA provisions enacted, there are still quite a few active players that are currently signed to these long-term deals.

The reason that I mention this type of contract is that it has triggered some controversy based on how teams handle players that are signed long-term and are no longer valued as contributors to the team. A recent example of this was the Los Angeles Kings terminating Mike Richards’ contract in June, after he was charged with having possession of a controlled substance (oxycodone) at the Canadian border. The organization justified the termination by stating that there was “a material breach of the requirements of his Standard Players Contract”.

Richards had five years remaining on his contract, with an average salary (cap hit) of $5.75 million. The timing of the termination seems rather convenient, as the team had been attempting to trade him last season and ended up placing him on waivers in January due to his lack of production (resulting in the team saving $925,000 in salary cap relief). After the termination transpired, Richards filed a grievance with the NHL Players’ Association.

What really stands out here is the seemingly arbitrary decision that a team can make when a player is guilty of unlawful off-ice behaviour. There are currently stark inconsistencies with how teams manage contracts for players that are caught in illegal conduct. To illustrate this point, there have been other recent incidents that were handled in completely different ways than that of Richards. Zack Kassian of the Montreal Canadiens was recently suspended without pay and ordered to rehab (stage two of the NHL/NHLPA Substance Abuse and Behavioral Health Program) after he was involved in a car accident that left him with a broken foot and nose. This is a much fairer and equitable resolution, since Kassian can return to the team once doctors determine that he is well enough to play.

However, it does raise the question of the motives of a team. While it is entirely possible that Montreal was only doing what was in Kassian’s best interest, it is also important to note that Kassian is viewed as a young player with high potential (as evidenced by his draft position – 13th overall) and is currently on a very cost-controlled contract ($1.75 million for one year), which makes him a low risk, high reward player for the organization.

Another recent, more analogous example involved Ryan O’Reilly of the Buffalo Sabres, who was charged with impaired driving and fleeing the scene after he crashed his truck into a Tim Horton’s coffee shop. As of now, the team has honoured his contract without any publicized discipline. Notable factors behind this decision include Buffalo recently signing O’Reilly to a seven-year contract extension worth $52.5 million, after having traded for him in exchange for three players and a second round draft pick. It is also important to note that O’Reilly is 24 years old, so he is only just beginning to enter his prime. What is evident here is that the organization, after having given up a hefty package of assets to acquire O’Reilly, refrained from any discipline or contract termination based on the perceived value that he brings to the team. This is the opposite to how the Kings handled Richards due to the value of each player to their respective team.

Based on these examples, it becomes clear that there is currently an inconsistency with how teams enforce or terminate contracts depending on how beneficial or detrimental a player is to the team. While a team should have the right to discipline its players for unacceptable off-ice behaviour, especially in extreme circumstances such as drug abuse, it leaves some uncertainty for the players involved. With the current cap era in the NHL, it is understandable why some teams are driven to terminate contracts, but the ambiguity that this creates can be problematic for the players.

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The Implications of the Mike Richards Settlement

November 11, 2015

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By Nathan MacDermott – Thompson Rivers University 2L JD Student

After the Los Angeles Kings of the National Hockey League terminated his contract and his grievance was filed via the NHL Players Association, Mike Richards and the team entered into a settlement agreement on October 9, 2015. This settlement is the first of its kind, and will likely have significant ramifications going forward.

It appears that this agreement, although unique, complies with the NHL CBA and therefore all parties approved the settlement. But because it is the first of its kind, it appears that a number of owners are upset by it, as it has significant salary cap implications for the Kings going forward. Some might even suggest that it is a circumvention of the league’s salary cap although all parties, including the NHL and Kings’ President and General Manager Dean Lombardi deny this.

The original cap hit attached to Richards’ deal was $5.75 million for each of the next five seasons (totaling $28.75 million). Had they used a compliance buyout, as the team had planned to prior to the termination of his contract, the cap hit would have spread approximately $21.5 million unevenly over the next ten seasons (averaging $2.15 per season). The settlement extends the cap hit unevenly over 17 seasons and totals $17.1 million.

What about this deal is not a circumvention of the NHL salary cap? The Kings now gain approximately $4.4 million in cap space over the payout period (versus the compliance buyout), and they also get to do so over an additional 7 seasons. It is not surprising that this has upset a number of general managers around the league, but it may have also forced them to think long and hard. Although this appears to have been an option available to all GMs under the current CBA, this settlement may have given them all a new perspective on how to get out of ‘bad contracts.’ Yes the NHL and all parties involved have said that this is not a precedent, but is that really a possibility? If another team terminates a player in similar circumstances will the league not have to follow this same path? Some teams may be salivating at the idea of getting out of these ‘bad contracts’ by merely catching their players in a compromising situation.

If I were in the shoes of some of these players, and they certainly know who they are, I might find myself looking over my shoulder a little more often or maybe taking steps to be more cautious when off the ice. Due to the large scale of these contracts and the big business of sports, what is to stop a team from hiring individuals to follow these players? Say a team is looking to find a few million dollars in cap room and possesses one of these bad contracts, would it not make good business sense to keep a much closer eye on that player in hopes that he trips up and falls? There may be moral implications to this, but with the amount of money at stake for all involved those morals may just take a back seat.

In light of this the NHLPA will likely want to get to work as soon as possible to try and alter the language of the current CBA in an effort to better protect players. The NHL teams already seem to have the upper hand when negotiating player contracts, especially with the influx of young, talented players into the league. If these GMs are truly upset at the moment, now may be the best time for the NHLPA to approach them regarding possible changes to the language of the CBA. On the other hand, if these GMs are just showing their angry faces to the media while secretly scheming in the background, there may be an ugly road ahead.

I know this may all seem a bit ‘cloak and dagger’ for a professional sports league, but in case you have not seen any of the NFL’s behaviour over the years, be sure to take a look. It will be interesting to see how this all plays out in the days ahead.

 

 

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Heads Up: Concussions, Class-Actions and the National Hockey League

October 22, 2015

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By Brianna Meyer – Thompson Rivers University 2L JD Student

The Stanley Cup. Sidney Crosby. Wayne Gretzky. These buzzwords ignite dreams of aspiring elite hockey players across Canada as children of all ages commence the journey to the National Hockey League (NHL). For those that make it, the NHL provides the ultimate platform of hockey excellence. A dream come true. But at what cost?

For over 200 former NHL players, the lasting effects of head injuries sustained during their professional hockey careers have motivated a class action lawsuit against the NHL. The players allege that the league was wilfully withholding information about the long term health effects of repeated head trauma and was actively encouraging dangerous behaviour.

This lawsuit follows the successful $765 million dollar settlement for players of the National Football League sustaining similar head injuries. Boston University researchers have diagnosed several deceased NHL players as victims of trauma-related brain disease. Although this area of research is novel and still advancing, Boston University has identified a link between chronic traumatic encephalopathy (CTE) and repeated blows to the head. CTE is a degenerative brain disease found in former deceased athletes often identified by the presence of hyperphosphorylated tau (an abnormal protein in brain cells).

This link is currently being questioned by the NHL who has since subpoenaed records from the Boston University researchers conducting these studies. NHL commissioner Gary Bettman has rejected the very notion that the link between CTE and sports-related concussions exists at all. Besides this league denial of a connection, there are other significant obstacles that stand in the way of former NHL players claiming damages from the NHL for their injuries. The majority of the claimants are retired, which raises questions as to the limitation period upon which this litigation is brought. In addition, we are talking about professional hockey players who grew up playing in minor and amateur hockey leagues. Isolating causation and liability specifically to the NHL will be a significant burden to prove.

Despite these impediments, this issue is not going away. In February 2015, Steve Montador died at the age of 35 from an undisclosed cause. He had been exhibiting signs of a brain disorder including depression, memory problems and erratic behaviour leading up to this death. An examination of his brain post-mortem revealed that he suffered from CTE. The scope of this class-action lawsuit demonstrates that Steve Montador is not alone.

Changes to the NHL official rules to prohibit illegal checks to the head were made in 2011. But is that enough? For players suffering from the long-term effects of traumatic brain injuries sustained while playing professional hockey the answer is clearly no. When elite athletes elect to participate in a sport there are always inherent risks. However, the core of this lawsuit alleges that the NHL withheld the very information players needed to know to make a rational, informed choice about taking such risks. The lawsuit emphasizes that the NHL has the capacity and the resources to better prevent head injury but failed to do so. Players can only consent to risks they are aware of. The NHL, it is alleged, blurs the lines of what players actually consent to.

CTE. Second-impact syndrome. Traumatic brain-injury. These words are killers of professional hockey dreams unless there are significant changes in the prevention, treatment and and return-to-play protocols of concussed players in the NHL. Legal accountability is one mechanism that can trigger this process. For the sake of aspiring hockey players across North America, I hope that the courts can force the NHL back into the reality of the game to deal with this issue head on.

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Battle of the Commissioners: Legalization and Regulation of Sports Betting

December 19, 2014

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By Sangin Safi – Thompson Rivers University 3L JD Student

In an op-ed published in the New York Times on November 13, 2014, NBA Commissioner, Adam Silver, argues for the legalization and regulation of sports betting. According to him, “despite legal restrictions, sports betting is widespread.” He points out that since there are only a few legal options available, those who wish to bet resort to illicit bookmaking operations and shady offshore websites. According to an estimate that he provides the underground industry is worth nearly $400 billion annually.

Mr. Silver argues that times have changed since the passage of the Professional and Amateur Sports Protection Act (PASPA), which generally prohibits states from authorizing sports betting. According to him, gambling has increasingly become a popular and accepted form of entertainment in the United States. He points to trends within the United States (i.e. New Jersey’s referendum demonstrating overwhelming support for legal sports betting) as well as international trends where sports betting is widely legal and subject to regulation. In light of these trends, Mr. Silver argues that Congress should adopt a federal framework for legalizing and regulating sports betting, subject to strict regulatory requirements and technological safeguards.

NHL Commissioner Gary Bettman disagrees. (As a hockey fan from Canada, I am not too surprised by Mr. Bettman’s cynical position!)

According to Mr. Bettman, “… some attention needs to be paid to what sport is going to represent to young people.” He further states, “[s]hould [sport] be viewed in the competitive, team-oriented sense that it is now? Or, does it become a vehicle for betting, which may in effect change the atmosphere in the stadiums and the arenas?” Mr. Bettman seems to be concerned that by legalizing sports betting, fans would be rooting for the spread instead of rooting for their favorite team.

However, Mr. Bettman seems to miss Mr. Silver’s point. By legalizing sports betting, Congress is not introducing sports betting. Sports betting already exists. By legalizing and strictly regulating it, the government would be bringing sports betting out of the underground and into the sunlight where it can be appropriately monitored and regulated, as Mr. Silver argues.

Furthermore, Mr. Bettman’s concern regarding how sports betting would affect young people as well as the atmosphere at sporting events seems to stem out of his moral judgment on the merits of gambling. However gambling is a form of entertainment just like sport is. As Mr. Silver points out, gambling has increasingly become a popular and accepted form of entertainment in the United States. Gambling and sport have co-existed without having a particular affect on young people or the atmosphere at sporting events. Therefore, it could hardly be argued that by legalizing and regulating what already exists, there would be a negative affect on young people and the atmosphere at sporting events.

Moreover, Mr. Bettman seems to suggest that rooting for the spread and rooting for your favorite team are mutually exclusive things. However, most sports fan are able to differentiate between the two and can partake in both activities without affecting their enthusiasm and loyalty to their favorite team. Indeed, it could be argued that sports betting might actually increase the level of interest ordinary citizens might have in sports and in attending sporting events.

In conclusion, while Mr. Silver’s offers a pragmatic opinion on the future of sports betting, Mr. Bettman seems to think that by legalizing and regulating an estimated $400 billion a year underground industry, society would be sending the wrong message to young people. In this battle, Mr. Silver is clearly leading 1-0.

 

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NHL Expansion in Toronto – is sharing caring?

December 19, 2014

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by Michael Truong – Thompson Rivers University 3L JD Student

As long as Canada remains the hockey mecca of the world, rumour and speculation over National Hockey League (“League”) expansion in Toronto will not subside. With the Toronto Maple Leafs being the most valuable franchise valued at over $1 billion, a second team in the Greater Toronto Area (GTA) seems inevitable. While many Canadians, and in particular those living in Hamilton, support League expansion in the GTA, the Toronto Maple Leafs have refused to endorse any such idea.

A second team in the GTA would be a contentious expansion destination, not because the market could not handle a second team, but because the Toronto Maple Leafs would undoubtedly fight to prevent any potential market dilution. A second team means splitting the corporate support and the fan base, which may reduce the value of the existing franchise. Thus, it seems only natural that the Toronto Maple Leafs would vigorously defend their territorial rights before ever conceding their hockey monopoly.

The Toronto Maple Leafs have defended their territorial rights once before. In 2009, Jim Balsillie, the former CEO of Research in Motion, attempted to purchase the former Phoenix Coyotes and move them to Hamilton. The Toronto Maple Leafs took the position that the relocation of a team into their home territory was not subject to a majority vote and that they held de facto veto over whether a new team could move into the region. Though a legal battle never materialized, the NHL Constitution seems to support the Maple Leaf’s case.

Under section 12.2 of the NHL Constitution, each member “accepts and agrees to abide by the … Constitution and each and every alteration, amendment and repeal.” Therefore, the Toronto Maple Leafs are bound by section 3.3, which provides that before any new teams are admitted to the League, the only requirement is a favourable vote of three-fourths of the Board of Governors.

More importantly, however, is the issue of territorial exclusivity. Section 4.3 of Article IV of the NHL Constitution states that each NHL team has exclusive control within its “home territory,” which means “exclusive territorial rights in the city in which it is located and within fifty miles of that city’s corporate limits.” The provision further states that “No franchise shall be granted a home territory within the home territory of a member, without the written consent of such member.” Section 4.3 appears to be the legal weapon with which the Toronto Maple Leafs could mount a defence against the League’s expansion into the GTA. So long as any expansion plans fall within the Leaf’s “home territory,” the League faces an uphill battle.

By virtue of Section 4.3, all NHL member teams seemingly hold a veto over the League if the expansion plan is in the respective team’s backyard. It seems odd that the League would leave a loophole open for teams to potentially handcuff them. Nevertheless, there are a few ways for the League to defend itself against a veto argument.

First, the “city’s corporate limits” in Section 4.3 is ambiguous enough that the NHL can argue for the most restrictive interpretation of territorial exclusivity so as to place them outside the scope of the Toronto Maple Leaf’s territorial rights as set out under Article IV. If successful, this would open up Southern Ontario as a potential destination.

The NHL may even argue that any potential expansion opportunity belongs solely to the League itself, an argument which has been successful in US courts (See, e.g., L.A. Mem’l Coliseum Comm’n v. NFL, 791 F.2d 1356 (9th Cir. 1986); NBA v. SDC Basketball Club, Inc., 815 F.2d 562 (9th Cir. 1987); St. Louis Convention & Visitors Comm’n v. NFL, 154 F.3d 851 (8th Cir. 1998).

If and when the Toronto Maple Leafs are faced with an expansion team in the GTA, any reservations regarding potential depreciation in the value of the franchise may be offset by the projected expansion fee of $1-1.5 billion. If Anaheim serves as an example, the Maple Leafs would stand to receive a sizable share of that expansion fee likely amounting to an influx of $500-750 million, a sum that would cause any owner to think twice.

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