sports law Archives - LawNow Magazine

Bench Press – Vol 40-3 Autism, Homeopathy and Custody

January 5, 2016 By Teresa Mitchell

Two small boys with severe and profound autism spectrum disorder were at the centre of a custody dispute between their parents. The children have seen a myriad of medical and health care professionals. The father began giving the boys a series of homeopathic treatments after consulting with homeopathic practitioners. In addition, he took the children to a podiatrist, osteopath, and wanted to pursue speech therapy and listening therapy. The mother testified that these treatments seemed to be making the boys worse, and testified that she believed he was seeking a cure for autism rather than finding a method to manage it. The judge commented: “The father’s behaviour and attitude are unfortunate as it is clear that he loves the children and the children love him….Although it is understandable that the father wishes to investigate services and possible therapies for the children, such services need to be discussed and co-ordinated with the children’s teacher, medical doctors and other professionals involved in the children’s lives and of course discussed with the mother. The father…has not done so and has no insight that he should do so”. Justice Zisman ordered sole custody for the mother, with access for the father, but under strict conditions. Among other restrictions, she ordered that he not give the children any homeopathic remedies without the mother’s prior written consent, or take the children for any treatment, therapy, appointment or consultation with any person providing any type of medical, homeopathy, naturopathy, osteopathy, podiatry, occupational therapy, speech therapy or any other type of therapy with out the prior written consent of the mother.

Ciutcu v Dragan, 2015 ONCJ 659 (CanLII)

http://www.canlii.org/en/on/oncj/doc/2015/2015oncj659/2015oncj659.html

Well-drafted Waivers

Robbie Levita suffered a severe break to his leg while playing hockey in an adult recreational, non-contact league. He sued the league and the player who hit him during the game. The judge found both the defendant player and the league not liable for the plaintiff’s injuries. Interestingly, he ruled that even if the league had been found negligent for not providing a safe environment for play, its waiver was a complete defence to claims against it. He found that the waiver was unambiguous about risk and specifically listed the risks and dangers it covered, such as collision with the boards, being struck by sticks or pucks, or physical contact with other participants, resulting in injuries. Justice Firestone also concluded: “The plaintiff’s argument that the waiver was not explained to him is not sufficient to dispose of the waiver’s effect. The plaintiff understands the legal significance of signing a waiver document. If he was unclear about the waiver’s meaning or felt he did not have sufficient time to read the waiver, it was, with respect, open to him to take the necessary steps to satisfy himself that he understood the contents of the document before he signed it. Based on the factual background in this case he cannot retrospectively void the waiver’s effect by arguing he voluntarily signed something he did not read.”

Levita v Alan Crew et al, 2015 ONSC 5316 (CanLII)

http://www.canlii.org/en/on/onsc/doc/2015/2025onsc5316/2015

A Traffic Ticket Odyssey

After ten years, four levels of court, and numerous interveners, including the Alberta Catholic School Trustees Association and the Commissioner of Official Languages in Canada, two Alberta men have lost their battle to fight their traffic tickets because the Alberta Traffic Safety Act and Regulations were not published in both English and French. They claimed that there was a constitutional obligation on the part of Alberta to enact, print and publish its laws in official languages. This launched a sweeping review of Western Canadian history going back to 1870 when huge swaths of land owned by the Hudson’s Bay Company became part of Canada. The Supreme Court of Canada rejected the men’s argument in a six to three split decision. The majority ruled that the 1870 Rupert’s Land and North-West Territory Order (the 1870 Order), which covered the territory that eventually became Alberta, did not expressly provide for legislative bilingualism, unlike the 1870 Manitoba Act, creating that province, which expressly did. The Court rather tartly commented: “The Canadian Parliament knew how to entrench language rights and did so in the Constitution Act, 1867 and the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1867 Address or 1870 Order counts heavily against [the appellants]…” As a result, the Court ruled that Alberta is not constitutionally obligated to enact, print and publish its laws and regulations in both French and English.

Three Supreme Court judges dissented, including two from Quebec. They wrote: “…this historical context shows that by the time the 1870 Order annexed the territories to Canada, the Canadian government had come to accept that legislative bilingualism was among the rights of the territories’ inhabitants.”

Caron v. Alberta, 2015 SCC 56 (CanLII)

http://www.canlii.org/en/ca/scc/doc/2015/2015scc56/2015scc56.html

Names in Japan

In December, the Supreme Court of Japan ruled that spouses must use the same surname. Five plaintiffs had challenged the law, claiming that it was unconstitutional and violated their human rights. However, the Court said: “It is only reasonable for family members to have the same name.” Presiding Judge Itsuro Terada stated that changing one’s name after marriage did not harm “individual dignity and equality between men and women” and noted that maiden names can still be used informally. The law in Japan does not say which surname a married couple must use, so it is possible that families could choose to use the wife’s name. However, apparently 96% of Japanese families adopt the husband’s surname.

Five Judges, including all three female judges on the 15-judge bench, dissented.

Citation not available.

Sports Teams and Scandals

September 3, 2015 By Jessica Geense

For as long as organized sport has been around, athletes have appeared to occupy a social class of their own. Held in the highest regard by their fans and with the ability to flaunt their ‘jock’ status, athletes have often been accused of not only receiving special treatment, but of acting entitled to that special treatment. Up until recently, this attitude had been shrugged off as the status quo, but as a new generation of athletes has emerged, it seems things have gone too far. Many critics are now citing a trend of what they call “sexual entitlement” among athletes, following several high profile episodes of sexual assaults involving athletes at the amateur, college, and professional level.

Newly familiar to this arena is the University of Ottawa, courtesy of their men’s varsity hockey team. In early February of 2014, the team travelled to Thunder Bay to face the Lakehead University Thunderwolves in a weekend double-header. During their stay, two of Ottawa’s players allegedly raped a 21-year-old woman in a Thunder Bay hotel room. While all of the players and coaching staff became aware of the incident within hours of its occurrence, no action was taken in the situation until University of Ottawa administration was informed almost three weeks later by a friend of the alleged victim. The University immediately contacted the police, and a week later, announced its decision to suspend the men’s hockey program for the balance of the season and to launch an internal investigation into the matter.

Upon completion of the investigation in late June of 2014, the University announced that the suspension would remain in place for the following competitive season. For readers unfamiliar with school-based sports, a suspension of just one season can be a death sentence for a team, as current players flee to other schools who are able to give them playing time, and its ability to recruit future players is seriously compromised.For readers unfamiliar with school-based sports, a suspension of just one season can be a death sentence for a team, as current players flee to other schools who are able to give them playing time, and its ability to recruit future players is seriously compromised. It can take a college program many years to recover from the impact of a single season suspension.

Some have criticized the University of Ottawa for disciplining the entire team for the actions of but a few – at least so harshly – in what is a criminal matter. This begs the question of jurisdiction in situations where athletes not only defy standards of decent conduct, but also cross the legal line. What are an institution’s responsibilities in handling cases such as this?

The University of Ottawa found itself in an extremely difficult place. Their ultimate decision to suspend the entire team has provoked a defamation lawsuit of $6M by the non-implicated players, but the risk of doing nothing and appearing nonchalant towards victims of alleged sexual assault in today’s climate might have had even more severe consequences for the University.

Over the past few years, allegations of sexual assault against university athletes have been reported in a steady stream, and in some cases, the accused are walking away unscathed. In a case against three members of McGill University’s football team in 2012, for example, the players in question were allowed to remain on the team and play while they awaited trial for their rape charges of a female student. A similar situation at Boston University in 2009 saw multiple players get away with non-consensual sexual acts because the university didn’t have proper policies in place to reprimand the team and not enough evidence to take the case to the police.

Disturbingly enough, this behaviour and sense of “sexual entitlement” has even trickled down to the high school level. Disturbingly enough, this behaviour and sense of “sexual entitlement” has even trickled down to the high school level. A 2012 case in Steubenville, Ohio saw multiple high school football players go to trial for the sexual assault of a female minor, who had been drugged, and the distribution of photos and video footage of the incident. Many of the athletes involved in this incident and later convicted by the courts were as young as 16. Chillingly, many residents of this small town supported these athletes through the trial, even though clear evidence of their crime was there for all to see.

Edmund Burke’s famous call to action states, “All that is necessary for the triumph of evil is for good men to do nothing”. Sometimes, doing nothing seems to be the natural reaction of those in authority over these athletes. The University of Ottawa took the road less travelled by taking a firm stand against this culture. The University of Ottawa took the road less travelled by taking a firm stand against this culture. Perhaps it was not an absolutely perfect solution, but it was significant because it is the closest that an institution has come thus far to addressing head on the culture of sexual entitlement among athletes. The University’s situation was made more difficult by the lack of policies in place for dealing with such crises. However, the administration has taken note and has begun to develop more specialized internal conduct codes for players who venture over the line into law-breaking territory.

While criminal acts are dealt with by the courts, a university or sport organization has every right to protect its name and reputation by ceasing the operation of a program in which its employees – or in this case, players – are engaged in conduct that does not fulfill the values or personal expectations outlined by the organization. In order to avoid future confusion, however, all Canadian colleges and universities should re-evaluate the terms of the written agreement used with players, and where needed, clarify behaviour expectations and the policies outlining disciplinary action. It may be valuable as well to establish connections with local police authorities or legal counsel so that they may be able to help advise in the development of these new policies.

In a serious situation of athlete misconduct, it is important to allow the proper authorities to do their job where needed, but it is also important for institutions to respond on their own, keeping in mind that every decision is a message to both athletes and to the public. Think: What kind of statement does this make about the institution’s values and priorities? The lines can be blurry, but implementing new policies in preparation for the storms ahead can provide much clarity.

For the record, as an avid lover of all sports and a former competitor myself, I recognize that jocks often get a bad rap. I also recognize, however, that athletes often end up in a social class all their own as a result of their athletic abilities and this is where entitlement often starts. There is a serious cultural problem with the idea that stickhandling or swinging a bat or [insert athletic ability here] justifies a ‘get out of jail free’ card.

Universities must do their part to hold athletes accountable to a publicly acceptable standard. This means implementing specific conduct policies, addressing problems proactively, and most importantly, refusing to do nothing.

The CFL, Concussions, and a $200 Million Court Case

September 3, 2015 By Jon Heshka

It was only a matter of time before the Canadian Football League (CFL) would be named in a concussion class action lawsuit. On the heels of the first CFL concussion lawsuit filed last year in The Supreme Court of British Columbia, a class action suit being filed last year against the National Hockey League over Canada’s national winter sport, and no doubt emboldened by the $1 billion NFL settlement, two former players have filed a claim against the CFL for $200 million.

On May 29, 2015 Korey Banks and Eric Allen filed a statement of claim on behalf of all retired CFL football players since 1952 with the Ontario Superior Court. Banks is a former Mississippi State standout and played in the CFL from 2004 to 2014. He won the league championship Grey Cup twice and was named CFL All-Star four times.

Allen was a star running back at Michigan State and played for the Toronto Argonauts from 1972 to 1975. The lawsuit names Mark Cohon, the commissioner of the Canadian Football League, the CFL, all nine teams in the CFL, an internationally renowned doctor who specializes in sports concussions, and a medical centre which employs the doctor. The claim states that the defendants caused or contributed Banks and Allen to suffer brain injuries due to multiple sub-concussive and concussive blows On May 29, 2015, Korey Banks and Eric Allen filed a statement of claim on behalf of all retired CFL football players since 1952 with the Ontario Superior Court. and that the brain injuries have and will continue to cause suffering. The lawsuit alleges negligence and negligent misrepresentation. Tearing a page from the NFL class action lawsuit, Banks and Allen claim that the CFL profits from the glorification of the brutality and ferocity of the game and has taken insufficient steps to make football safer.

Banks and Allen claim that:

the CFL denied a scientifically proven link between repetitive traumatic head impacts and later-in-life cognitive brain injury including Chronic Traumatic Encephalopathy (CTE);
that the CFL misled, downplayed, and obfuscated the true and serious risks of these hits;
that the CFL failed to warn them of the long-term medical risks associated with repetitive head impacts; and
they relied upon these statements in playing professional football.

Banks and Allen claim that the CFL profits from the glorification of the brutality and ferocity of the game and has taken insufficient steps to make football safer.They similarly allege that Dr. Charles Tator, whom the CFL partnered with as part of its Canadian Sports Concussion Project at the Krembil Neuroscience Centre, is negligent for an article entitled “Absence of chronic traumatic encephalopathy in retired football players with multiple concussions and neurological symptomatology” published in Frontier in Human Neuroscience. Banks and Allen claim that the findings in the article were false or misleading and that CFL players relied upon these misrepresentations.

Citing the Journal of the American Medical Association (JAMA), the New England Journal of Medicine, Neurology and The Lancet, the suit makes a number of claims, including that medical studies have collectively established that “football players should cease to play football after receiving their third concussion,” in effect a “three strikes and you’re out” approach to multiple concussion management. Banks and Allen claim that the CFL is negligent for failing to impose rules to protect them from brain injuries and for not promulgating such a “three strikes and you’re out” rule. They also claim that Dr. Tator is negligent for failing to acknowledge such a rule and for not warning about the risks of multiple sub-concussive and concussive blows to the head. No specific sources are cited to support these claims.

It is interesting, though, that a 2007 New England Journal of Medicine article simply entitled “Concussion” stated that, “There are scant data to guide decisions about the timing of a return to sports after concussion.” The same article cited a 2003 JAMA article which said that, “Given our finding of a 3-fold greater risk of future concussions following 3 concussions vs no concussions, At first blush, there appears to be no authority behind the claim of a “three strikes and you’re out” approach to multiple concussion management on the gridiron.athletes with a high cumulative history should be more informed about the increased risk of repeat concussions when continuing to play contact sports such as football.” Further, A report of the American Academy of Neurology entitled “Summary of evidence-based guideline update: Evaluation and management of concussion in sports” published in Neurology in 2013 states that licenced health care providers might (emphasis mine) refer professional athletes with a history of multiple concussions and subjective persistent neurobehavioral impairments for neurologic and neuropsychological assessment.” At first blush, there appears to be no authority behind the claim of a “three strikes and you’re out” approach to multiple concussion management on the gridiron.

The lawsuit claims that, “Since at least 2007, Commissioner Cohon knew of the long-term harmful effects of multiple sub-concussions and concussions on the plaintiffs’ and other class members’ brains [and that ] in spite of that knowledge, Commissioner Cohon actively concealed and/or systematically failed to disseminate those facts to the plaintiffs and the other class members.”

To wit, at the CFL Players Association AGM in 2011, players learned – for the first time – according to Winnipeg Blue Bombers defensive tackle Doug Brown who was present and wrote the following in the Winnipeg Free Press:

“According to information from a UNC study we were shown, ‘Repeatedly concussed NFL players had five times the rate of mild cognitive impairment (pre-Alzheimers) than the average population.’ The same study also showed that, ‘retired NFL football players suffer from Alzheimer’s disease at a 37 per cent higher rate than average.’ Going into this conference we were all somewhat familiar with the long-term consequences of playing football, but not to the depth that was introduced at our meetings. Next we were shown that Time Magazine had produced a story about football called The Most Dangerous Game, and the author, Sean Gregory, concluded that, ‘Men between the ages of 30 and 49 have a one in a thousand chance of being diagnosed with dementia, Alzheimers, or another memory related disease. An NFL retiree has a one in fifty-three chance of receiving the same diagnosis.’ This was around the moment in Las Vegas where a collective ‘thunk’ was heard as all of our jaws hit the floor. These are not CFL statistics, but you would have to be pretty naive to think that these facts do not apply to our game as well.”

While the CFL and Dr. Tator have yet to respond to the Banks and Allen lawsuit, their defences will no doubt be similar to those of the Bruce CFL concussion case. Just as with the NFL’s initial stance, the CFL has filed a Weber motion with the Supreme Court of British Columbia to the effect that this matter should be subject to the grievance and arbitration procedure of the Collective Agreement. In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the Supreme Court of Canada held that an exclusive jurisdiction model to labour disputes should be adopted and that, “Under this approach, if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.”

The Supreme Court of Canada subsequently clarified the principle of arbitral jurisdiction in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 SCR 185, 2004 SCC 39 General) holding that: “Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.” The Supreme Court of British Columbia has yet to decide in the Bruce case if it should fall within the ambit of the collective agreement or not.

Dr. Tator’s defence in Bruce deserves some exploration in that it is unique that a leading neurologist be named in a concussion lawsuit. Dr. Tator’s position is three-pronged:

that the claims are subject to the grievance and arbitration procedures of the collective agreement;
if they are not subject to grievance and arbitration, then Dr. Tator denies that a duty of care was owed, or if a duty was owed that it was not breached and that he was in no way negligent and;
that Bruce was contributorily negligent for failing to take all reasonable steps to minimize or avoid injury.

The creation of a duty of care from a physician to a professional football player through research findings published in a medical journal would, at the very least, be novel.

Another question will be to what extent head shots are risks that are inherent to professional football and whether or not players consent to, or voluntarily assume the risks associated with such contact. Indeed, the lawsuit is critical of the CFL’s failure to implement policies and protocols or to make the necessary changes to its existing rules to protect players from concussions and other head injuries. The leading Canadian authority on the extent to which violent contact can be consented to and considered part of the game is the hockey case of Agar v. Canning where the court said: “Since it is common knowledge that such injuries are not infrequent, this supports the conclusion that in the past those engaged in this sport have accepted the risk of injury as a condition of participating.” The plaintiffs will have to show that such knowledge was not common and prove that the CFL actively concealed it from its players.Another question will be to what extent head shots are risks that are inherent to professional football and whether or not players consent to, or voluntarily assume the risks associated with such contact.

In the end, given their choice of profession, its occupational hazards and inherent risks, and the recent history of concussion litigation with the NFL, Banks and Allen have a steep hill to climb in having the claim go to court, getting the class action certified, proving the CFL and Dr. Tator were negligent, and that they were unaware of the risks of brain injuries in professional football.

You Can’t Do or Say That: Constraining individual conduct in a public and commercial world

March 6, 2014 By Hilary Findlay

Greek triple-jumper, Voula Papachristou, was expelled from the 2012 London Olympic Games because of a disparaging and racist tweet she broadcast days before the Games. European soccer players making negative comments about officials on or off the field now face suspension. An 18-year-old Canadian junior water polo athlete received a two-year suspension from the national sport organization for his role in the 2011 Stanley Cup riots in Vancouver. According to Water Polo Canada, “The message [of the suspension] is, you’re an athlete and you’re representing Canada all the time, whether you’re on the field of play or you’re out at a restaurant or in the general public.” (Canadian water polo player suspended two years for role in Stanley Cup riot, Sep.27, 2011) These examples reflect a seeming increase in measures aimed at censoring the conduct of athletes, on the field and off. Indeed, this trend affects not just athletes, and other celebrities, but can be seen increasingly in employment relationships. A number of factors can be identified as influencing this pattern, but perhaps most important is the exponential growth of social media and its instantaneous communication and global reach.

Public focus on morality clauses is a relatively recent phenomenon, even though they have been in use for some time.

Control over peoples’ conduct is typically done through the use of what are referred to as morals, or morality clauses – a contractual provision prohibiting a person’s immoral, illegal or otherwise disparaging conduct. These clauses commonly appear in endorsement-type contracts of athletes, performers, and other famous personalities, but actually go beyond this sphere. Companies and organizations typically insist on morality clauses to protect their reputation and interests from being affected by the improvident conduct of people with whom they have contracted.

First, a little history

Public focus on morality clauses is a relatively recent phenomenon, even though they have been in use for some time. They had their origin in the movie industry of the 1920s as a response to the scandalous and often excessive behavior of some of the most famous movie stars of the time. At about the same time, Major League Baseball went through the aftermath of the Black Sox scandal. Eight White Sox players were accused of intentionally losing games in exchange for money from gamblers when the Chicago White Sox lost the 1919 World Series to the Cincinnati Reds. All were subsequently banned for life from organized baseball.

The use of morality clauses spread beyond the sports and movie industries when companies discovered the concept of “branding”.

Both groups were faced with having to stem increasing public criticism of seemingly lascivious and scandalous behaviour and threats by the U.S. Congress of censorship and greater regulatory control over their activities. Inserting strongly worded morality clauses into contracts, with the ability to terminate the contracts if the clauses were breached, was a way for these industries to start to control the conduct of these personalities.

Morality clauses again came to public attention in the movie industry in the late 1940s during the so-called McCarthy era. The U.S. Congress was holding hearings into “un-American activities”, generating huge public outcry and front-page editorials exclaiming a communist “infestation” of the movie industry. Studios once again used morality clauses, by then a mainstay in talent agreements, to terminate and disassociate themselves from scandalized actors, producers and other ‘undesirables’ within the industry.

The use of morality clauses spread beyond the sports and movie industries when companies discovered the concept of “branding”. Proctor & Gambling (P&G), with its Ivory Soap product, first pioneered this concept promoting the idea that there were differences in similar products produced by different companies. They also quickly learned that using a celebrity to promote their brand could be a double-edged sword. In the early 1970s, P&G hired model Marilyn Briggs to be the “Ivory Soap girl” on boxes of Ivory soap, posing as a mother holding a baby under the tag line “99 & 44/100% pure”. Millions of boxes of the soap with her picture on them hit store shelves the same week her X-rated film was released. The effect was catastrophic for P&G. Ivory’s association with ‘purity’ and ‘home values’ was disastrously undermined.

Morality clauses saw a third public resurgence in the early 2000s, when social networking really exploded. Indiscreet or disparaging comments could be broadcast to millions of recipients by the tap of a finger and a tweet or video could go viral in a flashThe primary concern for both parties drafting a morality clause is in describing the language around unacceptable conduct; that is, conduct that could lead to the termination of a contract.. At the same time, the value of endorsement deals skyrocketed and the exposure of companies and organizations in terms of reputation and brand value increased exponentially. For example, it is estimated Tiger Woods’ marital scandal cost the three sports-related companies (Tiger Woods PGA Tour Golf, Gatorade, and Nike) a 4.3-percent drop in stock value, equivalent to about $6 billion (Tiger Woods Scandal Cost Shareholders up to $12 Billion, Dec. 29, 2009). Companies and organizations responded by seeking greater protection from such unintended exposure. Indeed, the drafting of morality clauses has now become an important and increasingly sticky part of contract negotiations.

Issues facing morality clauses

The primary concern for both parties drafting a morality clause is in describing the language around unacceptable conduct; that is, conduct that could lead to the termination of a contract. The company or organization wants to have the greatest flexibility to determine inappropriate conduct so as to deal with even a whiff of a scandal. The endorsee (i.e., the athlete, personality or employee), on the other hand, wants to have as strict and narrow a definition of (mis) conduct as possible. The company or organization would favour language in the clause making it the sole judge of whether conduct violates the language of the morality clause. For example, the company or organization would be more likely to use language allowing it (but not necessarily requiring it) to take action should the endorsee bring him or herself into public disrepute, contempt, scandal or ridicule, or bring the company or organization into disrepute. The endorsee, however, would argue for wording requiring a much more serious degree of misconduct, such as a criminal conviction (as opposed to simply being charged with a criminal offence), before any action could be taken to terminate the agreement. He or she would also argue for more objective (and interpretable) language. What constitutes ‘disrepute’ or a ‘disparaging’ comment? This is definitely a debatable circumstance.

The bargaining strength, or leverage, of each party significantly influences the balance of the clause. The greater the apparent leverage of the endorsee, the more weak or lenient the morality clause. For example, Lance Armstrong, in spite of his past liabilities stemming from repeated allegations of doping, commanded a powerful position until his self-admission of doping in 2013, because of his ability to sell products through his image. For example, sales of Trek road bikes rose 143% from 2000 to 2005 largely, if not almost exclusively, due to the performance of Lance Armstrong, a key endorsee (Albergotti, R. & O’Connell, V.; Wheelmen, Gotham Books, 2013).

The wording of the morality clause raises a related issue: who decides, for example, when a comment is disparaging and when it is not? What is the test, if there is one? Would political comments be considered offside? What about comments or commentary directed at the business or organization itself, or its sponsors? The company or organization would favour language in the clause making it the sole judge of whether conduct violates the language of the morality clause. This certainly would disadvantage the endorsee, increasing with the vagueness of the language (i.e., what constitutes public disrepute?). The endorsee would likely attempt to negotiate an arbitration clause whereby an independent third party would interpret the conduct in question in light of the language of the morality clause.

Variations in morality clauses

The wording of the morality clause raises a related issue: who decides, for example, when a comment is disparaging and when it is not?

Some morality clauses are drafted specifically to the individual. The Callaway Golf Company included a clause in an endorsement agreement with John Daly, a professional golfer, allowing it to terminate their agreement if he engaged in any gambling or drinking activities. This was no doubt done in light of Daly’s previous public conduct. In fact, Calloway did subsequently terminate its contract with Daly, relying on that particular clause.

Since the 1980s, it has become fairly commonplace to see reciprocal, or two-way, morality clauses, which allow the endorsee to terminate an endorsement agreement if the company or organization engages in fraud or some other criminal activity. Indeed, corporate malfeasance has meant endorsees have had to increasingly protect their own reputations and brands. For example, in 2008, the Houston Astros had no reverse morals clause in its endorsement agreement with the corrupt and bankrupt energy and financial trading company Enron Corp., which, at that time, was the seventh largest corporation in the United States. The Astros, faced with a huge public relations backlash, was forced to pay $2.1 million to the company’s creditors in order to sever its relations with the company.

Following alleged bribery and other improprieties by members of the International Olympic Committee (IOC) in 1999, a number of sponsors threatened to pull major sponsorship commitments for the 2002, and subsequent Games, unless the IOC agreed to include detailed reverse morality clauses in their sponsorship contracts.

Similar stories can be found with individual, as opposed to corporate, endorsees. Professional golfers, Vijay Singh, Camilo Villegas, David Toms and Morgan Pressel all wore the logo of the Stanford Financial Group on their clothing. In 2009, Stanford Financial Group and its principle, Allen Stanford, were alleged to have led a $7 billion fraud scheme. Without a reverse morality clause, none of the golfers could have removed the logo from their clothing and disassociated themselves from the disreputable company. Most endorsement agreements now contain some form of reverse morality clause, albeit not necessarily a mirror image clause, which would depend upon the leverage, or negotiating power, of each party.

Conduct policies as an alternative

… professional and Olympic athletes’ conduct, and other employees’ conduct, can be narrowly controlled through conduct policies using language similar to that found in morality clauses…

So far, we have focused on morality clauses in endorsement contracts. Morality clauses are also found in employment contracts and other types of contracts such as, athlete agreements used by Olympic, and other sport organizations, and contracts for other professional services. But more particularly and typically, conduct in employment situations is regulated by way of a conduct policy. In such circumstances the company or organization has significant authority over the content of the policy. Note, however, that the British Olympic Committee was forced to retract a provision in its athletes’ agreement prohibiting athletes from commenting on human rights matters leading up to and during the Beijing 2008 Summer Olympic Games in the face of a ferocious athlete and public outcry. Nonetheless, professional and Olympic athletes’ conduct, and other employees’ conduct, can be narrowly controlled through conduct policies using language similar to that found in morality clauses not to bring the company or organization into disrepute (which is often vague and ill-defined and thus weak from a legal perspective).

Apart from athlete agreements and organizations’ conduct policies, the speech of Olympic athletes is further curtailed by way of Rule 50 of the Olympic Charter, which states, “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.” This rule could well be used to stop any athlete from supporting LGBT Russians at the 2014 Sochi Winter Olympic Games or speaking out against Russian anti-gay legislation at the Games.

Conclusions

The face of businesses and organizations is often portrayed by others hired to do the job, whether athlete, celebrity or employee. Their conduct can reflect upon the company or organization – and vice versa. It is understandable that parties would want to protect their reputation and brands. However, restrictions on conduct and freedom of speech can be onerous and overly controlling where they impinge on issues of ethical and social belief. Determining the bounds of control is a matter of negotiating leverage and reasonable accommodation, but must also be informed by principles of individual belief and human rights.

Which Passport Should I Take to the Olympic Games?

July 1, 2012 By Hilary Findlay

The 2012 London Olympic Games are going to see a whole new level of anti-doping activity. The centrepiece of this activity is what is known as the Athlete Biological Passport (ABP). It has been in the works for some time and has already been used extensively in the sports of cycling and athletics.

The Canadian Centre for Ethics in Sport (CCES), the organization in Canada charged with delivering Canada’s anti-doping program, is the first national anti-doping organization in the world to implement use of the ABP.¹ The ABP is not a panacea for the detection of doping, but it does represent a paradigm shift in drug-testing practices. The difference is this: previously, anti-doping efforts focused on testing for the presence of a prohibited substance in an athlete’s system. In contrast, the ABP looks for indirect indicators of doping. In other words, with the ABP, a doping finding is based on circumstantial evidence, not direct evidence of use. This change also gives rise to a change in the potential defences to allegations of a doping infraction.

Anti-doping rules in sport identify two main categories of doping:

the use of prohibited substances (such as steroids or amphetamines); and
the use of prohibited methods, such as blood doping (this is the extraction and reinfusion of blood to the body) and use of erythropoietin (EPO).²

Both these methods have the effect of increasing the capacity of the blood to carry oxygen, and can boost performance in endurance sports.

It is this latter category of doping (that is, blood transfusions and EPO), that is the current focus of the ABP. Basically, here is how it works…

Blood transfusions leave tell-tale signs in an athlete’s body that the ABP can pick up. There are three main characters in play: reticulocytes (baby blood cells), hemoglobin (an oxygen-carrying molecule in red blood cells) and the ratio between these two variables, known as “off-scores”. Reticulocytes and hemoglobin respond in predictable ways to blood doping:

Reticulocytes: When blood is withdrawn, the body recognizes that the red blood cells have been depleted and thus stimulates the bone marrow to produce more with the result that the young red blood cells are evident in the blood system in greater numbers than usual.³ When blood is re-infused into the body so as to increase the number of red blood cells, and thus the oxygen-carrying capacity of the blood, the body recognizes this increase in red blood cells and decreases the production of reticulocytes, resulting in a decrease in their number in the blood.

Hemoglobin: Hemoglobin reflects the amount of total red blood cells in circulation. With blood doping, it responds in exactly the opposite direction to reticulocytes. The withdrawal of blood is characterized by a fall in hemoglobin concentration levels, while the re-infusion of blood dramatically increases its levels.

The ABP provides a longitudinal record of biological markers including reticulocytes and hemoglobin concentration, and their resulting off-scores. While there may be variation between individual athlete profiles, an athlete’s own personal profile is, in fact, very stable. By using the APB, anti-doping officials can search for unexplained deviations in the athlete’s own profile. Using a statistical modelling, it is possible to determine whether a variation has been caused by natural factors (e.g. illness, bleeding, no high-altitude training or recent intense training) or may have been caused by some other external factor, such as blood doping.

It is important to be clear here. The ABP does not prove a doping offence – notwithstanding all the rhetoric in the literature and press releases to the contrary. It simply indicates the probability that a deviant score is more likely to be a result of some external factor than a natural fluctuation in the athlete’s profile. Such a fluctuation may be explainable and there are many reported reasons in the literature why scores may fluctuate. Deviations are subsequently scrutinized by a three-person Expert Panel and the athlete has the opportunity to provide further explanation for the abnormal deviation in the profile.

From a legal perspective, defences of a doping allegation have typically been limited to questioning procedural errors in the testing process. The APB raises a number of other potential legal arguments. For example, what is the role of the ‘expert’ in an alleged APB-based infraction? In law, an expert can only provide an opinion, leaving the job of making the actual decision to a judge, jury or arbitrator. Expert statements in doping matters have sometimes been couched as conclusions, not opinions and, as such, prejudicially influence the actual decision-makers. Consider the following statement:

In my opinion, there is a strong probability that the variation in the athlete’s profile is due to blood doping.

This is an example of an opinion expressed as a probability for the truth of the proposition (that is, it speaks to the cause of the variation in the profile), as opposed to an opinion in relation to the probability of the evidence, given the proposition. The proposition is that the variation in the athlete’s profile results from blood doping. It is up to the decision-maker(s) to determine the likelihood of the truth of the proposition.

There is another error, closely related to the one above, that can also easily occur, known as the Prosecutor’s Fallacy. The fallacy involves an incorrectly calculated probability, or a probability being incorrectly presented.

The ABP is based on a statistical model that predicts the probability that a deviation in an athlete’s profile is abnormal. The model has a margin of error of 1 in 1000 instances (i.e., the model is statistically right 999 in 1000 times). It is then tempting to make the jump to say that 999 times out of 1000 an abnormal variation will be due to blood doping. This is the Prosecutor’s Fallacy.

In fact, the statistics, based on the model being applied to the athlete’s profile, say nothing about the cause of the abnormal variation, only that it is highly probable that the variation is not due to natural reasons, i.e., that it is outside the statistically acceptable limits of variation that can be considered normal. It is the responsibility of the Expert Panel to consider the probability that the abnormal outcome cannot reasonably be explained by any other circumstance. The ultimate decision-maker(s), using the results of the ABP and the opinion of the experts, must then be sure to reach a “comfortable satisfaction”⁴ that the abnormal deviation is as a result of the use of a prohibited method, and more specifically, blood doping. The Prosecutor’s Fallacy represents a subtle, yet significant, error in statistical logic and can lead to a false conclusion. The work of experts to exclude other alternatives to explain the deviation is imperative and necessary to any anti-doping conclusion.

A third interesting area for lawyers focuses on the science behind the ABP. What variables are included in the probability model used in the ABP and have deviations been properly represented? There is great complexity here. At least one sport scientist simply told athletes that they should “trust the science”. Interestingly, Michael Ashendon, a significant contributor to the development of the ABP, and one of the world’s foremost experts on blood doping, recently (March 2012) resigned as an expert panel member for the International Cycling Union (UIC) and refused to act as such for the International Association of Athletic Federation (IAAF) claiming an “over-exuberance in a lack of transparency” on the part of those sport organizations involving the ABP. He has accused the anti-doping movement of fostering a culture of omerta or “code of silence”.

The APB is a new and useful tool in the global anti-doping effort. The science is powerful. But we cannot ignore the legal aspects raised by this new anti-doping test. There is a delicate balance to be maintained between keeping competitive sport fair for all athletes and respecting the rights of individual athletes involved in sport.

Notes

1. CCES increases Sophistication of Anti-Doping with Athlete Biological Passport Program. (June 23, 2011).

Retrieved from: http://www.cces.ca/en/advisories-36-cces-increases-sophistication-of-anti-doping

2. EPO stimulates the production of red blood cells and is naturally found in the body. Synthetic, or

manufactured, EPO, known as rEPO, is externally administered to boost red cell production.

3. Reticulocytes mature within 24 hours, thus seriously hampering direct testing for blood doping.

4. The standard of proof in doping cases is that of a “comfortable satisfaction”, which is described as being

greater than a ‘balance of probabilities’ but less than ‘beyond a reasonable doubt’.