Thursday, March 21, 2013

Former Chelsea Football Club Sports Psychologist sues Vancouver Canucks over work permit dispute

An Italian sports psychologist has filed a claim with the British Columbia Supreme Court, claiming that the Vancouver Canucks are responsible for damages relating to wrongful dismissal and mental distress.

The psychologist, Mr. Demichelis, claims that the Vancouver Canucks and co-owner Mr. Aquilini induced him to leave his employment with the Chelsea Football Club in the United Kingdom and to work for the Vancouver Canucks in Vancouver.

Mr. Demichelis claims that he initially declined the Canucks offer of employment but that he later accepted it after sustained efforts on the part of Mr. Aquilini and the team. Mr. Demichelis specifically states that the Vancouver Canucks stated to him that he was the person the Canucks needed to improve the players' physical and psychological well-being. Mr. Demichelis also claims that he was told that his expertise was essential to winning the Stanley Cup.

Mr. Demichelis further alleges that he agreed to a two year contract with the Canucks starting July 2012 for a salary of $700,000, along with a signing bonus of $400,000. He also states that the Canucks agreed to market Mr. Demichelis' expertise to other professional clubs in North America.

Mr. Demichelis was told in December 2012 that his employment would end at the end of January 2013. He claims that the club explained to him that, as part of the process of trying to secure him a work permit, they found Canadians that were able to fulfill the requirements of his role.

Mr. Demichelis claims that he has suffered significant damages in part because he gave up his employment in the United Kingdom and moved his family to Vancouver.

The Vancouver Canucks have yet to file a Statement of Defence.

What does this mean for employers?

This case demonstrates the potential pitfalls in the employment of foreigners. In particular, employers can face significant liability when disputes arise from the hiring and/or employment of temporary foreign workers. This issue is becoming increasing commonplace in large part because of the exponential growth in the number of temporary foreign workers in Canada. There are now approximately 250,000 individuals entering Canada on an annual basis under a temporary work permit, and 500,000 temporary foreign workers in the country at any given time.

Employers should accordingly ensure that they receive adequate employment and immigration advice to ensure that all matters relating to the hiring of foreign workers are addressed adequately and in a seamless fashion. This can help to ensure that employers are in the best position to defend against claims should disputes arise.

Sharaf Sultan
Associate
Heenan Blaikie LLP
ssultan@heenan.ca

This article was originally published on the Heenan Blaikie website here


Wednesday, March 20, 2013

Newcastle could appeal to FIFA against FA’s decision not to sanction McManaman

 A summer agreement between football’s stakeholders prevented retrospective action from being taken against Wigan Athletic’s Callum McManaman, following a horror tackle on Newcastle United’s Massadio Haidara on 17 March. This is despite the FA’s own regulations allowing retrospective action to be taken. However Newcastle United, which called the FA’s disciplinary procedures ‘not fit for purpose’ in a 19 March statement, may have a case to appeal to FIFA.

 

‘Following consultation with the game’s stakeholders (the Premier League, the Football League, the Professional Footballers’ Association, the League Managers’ Association, Professional Game Match Officials Limited and the National Game) in the summer, it was agreed that retrospective action should only be taken in respect of incidents which have not been seen by the match officials’, read a 19 March statement from the Football Association (FA).

 

However, the FA’s rules do allow retrospective action to be taken. Section A, Regulation 8(j) (Rule E3) of the FA’s Disciplinary Handbook states: ‘A charge of Misconduct…may be brought against a Player in relation to an incident whether or not the same incident has been dealt with by the referee’.

 

FIFA regulations would allow a Newcastle appeal. Although Article 72 of the FIFA Disciplinary Code mandates that the referee’s decision is final, it also provides that ‘in certain circumstances, the jurisdiction of judicial bodies [Disciplinary Committee, Appeal Committee & Ethics Committee] may apply’. These ‘certain circumstances’ are defined in Article 77 as ‘sanctioning serious infringements which have escaped the match officials’ attention’ and ‘rectifying obvious errors in the referee’s disciplinary decisions’. Newcastle may have a case here.

 

Further salt has been rubbed into the wound with the news that the FA is to charge Newcastle’s Assistant Manager John Carver with misconduct in relation to the match against Wigan. The club is understandably upset. ‘Newcastle United, along with other clubs, have had players suspended for incidents reviewed after the game’, read its 19 March statement. ‘Whilst not trivialising these incidents, they were not, in our opinion, of the seriousness of Callum McManaman's tackle on Haidara. Whilst we understand that the current procedures give the FA limited options, it cannot be correct that the most serious offences - those which have the potential to cause another player serious harm - can go unpunished, even if the original incident was seen by match officials. We will now be making a strong representation to the FA and the Premier League to see how a more appropriate, fair and even-handed disciplinary process can be introduced at the earliest opportunity to prevent incidents of this nature going unpunished in the future.’

 

If that doesn’t work, a FIFA appeal may be the next option.

 

Andy Brown


Friday, March 15, 2013

Education and Intervention Key To Tackling Doping in Sport

 

Sport should focus more on education and intervention rather than increased testing to combat doping, heard delegates at Twickenham Stadium for the sixth edition of Tackling Doping in Sport. The 250 delegates present also heard that while international sporting federations are doing more than ever before to take anti-doping efforts to remote jurisdictions, the system needs to punish those who do not correctly implement the World Anti-Doping Code.

 

“WADA needs to evolve with the Code”, said Andy Parkinson, Chief Executive of UK Anti-Doping in his opening address. “Should WADA have investigative powers? Yes, but it should investigate uninvited countries and sports that are not correctly implementing the Code. We want WADA to be more than just a service provider.”

 

Rob Koehler, Director of Education and Program Development at the World Anti-Doping Agency (WADA), highlighted that while the Code places emphasis on testing, very few anti-doping organisations are carrying out education programmes. He revealed that WADA will attend a May meeting with the International Olympic Committee (IOC), international federations, UNESCO, International Fair Play and more on educating young people about anti-doping. This problem was further highlighted by Stephen Watkins of the Rugby Football Union, who raised significant issues regarding supplement use amongst young rugby union players.

 

Speakers also highlighted difficulties with the current testing-focussed regime and how they are being overcome. Thomas Capdevielle of the International Association of Athletics Federations pointed out that WADA's requirement for sample collection under the Athlete Biological Passport to be analysed in 36 hours by an accredited laboratory can be problematic in certain jurisdictions. The IAAF is launching a satellite laboratory in Eldoret, Kenya, using staff from the accredited Lausanne laboratory.

 

Hannah McLean of UK Anti-Doping gave a fascinating example of how cooperation with law enforcement worked to combat doping in the case of an athlete and coach whose house had been raided to find 60,000 steroid pills. The case revealed that if anti-doping authorities can prove that an athlete intended to cheat by taking what they believe to be a prohibited substance, then analytical evidence showing that a substance had prohibited drugs in it is not essential. She also revealed that an athlete can renounce possession if they make a mistake and buy a prohibited substance by immediately informing the national anti-doping authority concerned.

 

Anti-doping authorities also face a challenge presented by the European Union's revision of its data protection laws. Lars Mortsiefer, Head of Legal at the Nationale Anti-Doping Agentur Deutschland, said that WADA's requirements “cannot be reconciled” with the wishes of the Article 29 Working Party of data protection regulators.As reported in World Sports Law Report, the Art. 29 WP wrote to WADA last week with a 13-page list of issues with the Code. Dan Cooper, WADA's External Privacy Counsel, said that international transfer of data could “prove problematic” and that blood profiling would be “impossible” if current issues were not resolved.

 

Other issues raised included;

• Interpretation of Article 10.4 of the Code by administrators at the Court of Arbitration for Sport (CAS) can be problematic;

• The 2015 Code needs to clarify whether CAS Arbitrators can still work for sporting organisations, or if they need to be truly independent;

• The US Equestrian Federation is using polygraph (lie detector) tests in anti-doping cases already;

• Clarification is needed as to what constitutes 'substantial assistance' to reduce an athlete sanction under Article 10.5.3 of the Code.

 

Tackling Doping in Sport is organised by World Sports Law Report, Squire Sanders (UK) LLP and UK Anti-Doping.


Tacking Doping in Sport Day 2: Code Revisions Need Closer Examination

  Planned revisions to the World Anti-Doping Code need closer examination before the 2015 version is published, heard delegates at day two of Tackling Doping in Sport 2013, which took place 13-14 March at Twickenham Stadium. The 250 delegates from over 30 countries held a lively round-table discussion on contentious areas of the new version of the Code, with suggestions to be submitted to the World Anti-Doping Agency as part of its Code Review process next week. 

 

Joseph de Pencier, CEO of the Institute of National Anti-Doping Organisations kicked off the day by highlighting seven main areas of change in the 2015 Code. The audience was split over whether the standard two-year ban for a first time offence should be increased to four years, as proposed in the 2015 Code. Under the 2009 Code, sporting organisations wishing to prosecute an athlete who has intended to cheat for longer must push for 'aggravated circumstances' under Article 10.6 to scale a first time offence ban up from two years to a maximum of four. However, UK Anti-Doping (UKAD) pointed out that they are often curtailed from doing this by a caveat to Article 10.6, which allows an athlete to 'avoid the application of this Article by admitting the anti-doping rule violation'.  

 

Under the current 2009 Code, the onus is on the international federation (IF) to 'scale up' the ban under Article 10.6. Under the 2015 Code, the onus is on the athlete to scale the standard four-year ban down. There was much debate over whether it is right to place the onus on the athlete to reduce the ban, especially now that athletes face having to pay costs at the Court of Arbitration for Sport should they lose a case, if the IF delegates sanctioning to the national association concerned. “I must now advise athletes that they could face having to pay CAS costs as well as legal costs”, said Antonio Rigozzi, Partner, Levy Kauffmann-Kohler. 

 

Concerns were raised that this could deter appeals from athletes who had inadvertently ingested prohibited substances with no intent to cheat and, conversely, that a four-year ban was so lengthy that it would result in endless appeals from athletes keen to avoid the end of their career. John Ruger, Athlete Ombudsman for the US Olympic Committee, highlighted that between 40% and 60% of US doping cases are inadvertent. “Most athletes have made silly mistakes and for those that have not, penalties can be upscaled”, said Athlete Lawyer Howard Jacobs. “A four year default ban places the burden on the athlete to prove they are not an intentional doper rather than on the IF to prove intentional doping”.  

 

“In cases of inadvertent doping, rank injustice should not be allowed”, said Adam Lewis QC, of Blackstone Chambers. “Where everybody accepts that there has been no intention to cheat, the Code should provide for this”. 

 

It was also pointed out that the 2015 Code doubles the initial doping sanction for competing while banned. Ruger pointed out that if a four-year standard is used, this could result in some athletes facing an eight-year ban for competing in a competition they did not realise they were banned from taking part in. 

 

Issues were also raised around the drafting of certain changes within the 2015 Code. De Pencier pointed out that Article 8.1 of the 2015 Code entitled athletes to a 'fair hearing as set forth in Article 6.1 of the European Convention on Human Rights and comparable principles generally accepted in international law' and clarification is needed as to what this means in practice. He also said that provisions in Article 10.4.2 on contaminated products need clearer definition. Athlete lawyer Howard Jacobs pointed out that the definition of 'contaminated product' in the Code as 'A product which an Athlete or other Person could not have known contained a Prohibited Substance' has the potential to undermine the whole purpose of the contaminated products rule. 

 

Practical issues were also highlighted, such as those involving regulation of drugs for 'therapeutic use' (therapeutic use exemption - TuE. It was pointed out that if an IF doesn't recognise a National Association's TuE, then that can cause issues for the athlete who qualifies for international competition when competing at the national level, as they may find they fail to qualify again due to competing against NA athletes who have that TuE. 

 

Away from the Code revision debate, a fascinating insight into how the media can work with anti-doping authorities was presented by freelance journalist Hajo Seoppelt, who has been carrying out an investigation into doping in Kenya for German state broadcaster ARD. The International Association of Athletics Federations (IAAF) had highlighted how this problem is being resolved through the use of mobile doping units in areas such as Kenya on day one of the conference. 

 

Brett Clothier of the Australian Football League showed that while the Australian Crime Commission's report into doping in Australian sport had highlighted the involvement of organised crime in doping, it has also revealed a number of other issues. These involved the role of anti-ageing parlours in the supply of drugs into the Australian market; and how Australian sport has been using drugs not regulated under the Code, such as drugs not yet tested on humans. 

 

In wrapping up the conference, Mike Morgan of Squire Sanders (UK) LLP said that the event had provided a “balanced discussion” between those arguing for longer sanctions for doping and those arguing for redemption. “Everyone has different ideas about policing integrity, and that's why this conference is worthwhile”, he said. 

 

The conference was covered by media organisations including The Independent, Reuters, The Guardian, the Washington Post and more. Tackling Doping in Sport is an annual event organised by World Sports Law Report, Squire Sanders (UK) LLP and UK Anti-Doping. World Sports Law Report also organises conferences on Betting in Sport and Player Contracts. For more information, visit www.CecileParkConferences.com 


Tuesday, March 12, 2013

February WSLR Editorial: Silo-busting: integrity's new frontier

There have been a number of significant developments in the ongoing battle against match-fixing this month. However, what is interesting about them is how well they illustrate the lack of a coordinated approach to tackling match-fixing. All the different bodies involved are operating in silos, rather than talking to each other.

Europol revealed details of a large-scale investigation into match-fixing. FIFA pointed out that many of the cases revealed by Europol have been dealt with - it has its Early Warning System GmbH to help with this - and launched a website for whistleblowers with information on corruption. Interpol held a conference on match-fixing that illustrated how law enforcement needs to cooperate to tackle match-fixing, yet has made no concrete moves towards this itself. Legislators drew up new plans to regulate operators on the premise of protecting consumers from corruption. Gambling operators bemoaned attempts to further regulate them, yet also complained about lack of consultation with regards to attempts to tackle match-fixing.

This may sound strange coming from the Editor of World Sports Law Report, but sport is unique as a legal discipline in that a debate exists as to whether 'sports law' exists at all, or whether sport is simply governed under a number of established legal disciplines. As with all legal disciplines, sport is regulated through criminal and civil law, but also through the various rules of international federations and national associations that govern different sports. Tradition dictates that sports organisations regulate on a national level with loose international governance. The European Commission has even recognised that sport regulations can have 'special characteristics' which might fall outside of normal law in its White Paper on Sport.

The number of bodies involved in regulating sport is therefore huge. As there is nothing connecting them, they all operate under their own codes and traditions. They are also interact with civil and criminal law, and the bodies involved with policing that area. This situation might be described as a 'lacuna', and goes some way to explaining why sport has failed to get to grips with tackling match-fixing.

This is why initiatives such as the International Olympic Committee and Council of Europe initiatives against match-fixing are so important. Somebody needs to take control of the process and set guidelines as to how all the bodies involved should interact together to regulate an international problem such as match-fixing. As pointed out by the European Sports Security Association in this edition, if sport wants to continue to exist in parallel with the normal rules of law, then it needs to get its house in order before somebody else does it for them.

Andy Brown


Tuesday, February 26, 2013

FIFA Licenses Goal-Line Technology Companies

Cairos Technologies AG today became the third company licensed by FIFA as a Goal-Line Technology (GLT) provider, after agreements were signed with Hawk-Eye and GoalRef in November last year. FIFA has also launched a tender for these three companies to bid to become official GLT provider for the FIFA Confederations Cup 2013 and 2014 FIFA World Cup, both of which will be held in Brazil.

FIFA was initially opposed to GLT, however changed its tune in Summer 2010. It was widely reported as a u-turn by football's governing body, however as regular readers of this blog will know, I believe that FIFA has played a far cleverer game. When announcing its approval for the Hawk-Eye and GoalRef systems, the International Football Association Board (IFAB) 'was keen to stress that technology will only be utilised for the goal-line and no other areas of the game'. This statement kills any other attempts to use technology to make football fairer stone dead.

FIFA could have utilised the big screens now present in nearly every professional stadium for referees to instantly review any goal-line situation, as fans watching on TV do. This would have been a cheaper solution to the problem, but one that FIFA chose not to use. Why? Because FIFA can't generate money from technology that already exists in football, but companies providing new technology will be happy to pay FIFA.

This financial motive is underlined by page 3 of FIFA's 'Application as a Licensee for GLT' document, which reads: 'The FIFA licensing scheme for goal-line technology offers two options to licensees: a non-commercial option containing the authorisation to install licensee's goal-line-technology systems worldwide which can be used in official matches, and a commercial option which additionally provides the licensee with certain marketing rights in relation to the FIFA quality programme for goal line technology to communicate its status globally as an official FIFA licensee for goal-line technology. Both options are presented by FIFA to the applicant at the initial meeting. An administration fee is payable by all licensees which contributes to the expenses incurred for the licensing/certification and registration of goal-line technology systems and installations. In addition, where the commercial option is taken, a licence fee will also be due.'

This is why I am sceptical of suggestions that FIFA has 'seen the light' regarding GLT use in football. FIFA is a shrewd commercial operator and I believe that its so-called 'u-turn' on GLT is a licensing exercise to make money. As I have stated before, GLT will only make football marginally fairer. During the 2010/11 FA Premier League season, just four incorrect goal-line decisions were logged, compared to 151 incorrect decisions on goals related to the offside rule. The evidence for this is here.

If the introduction of technology into football was about making football fairer, a better solution would be to use TV replays. Both rugby codes manage this without ruining the flow of the game, however if the football authorities are worried about this, perhaps a system similar to that used in cricket - where players are allowed to seek reviews of a decision - could be used. Football is faster flowing than cricket, so I would advocate a system where the Captain of each team is allowed to refer three decisions per game to the video referee. This would be a better solution than GLT and would also be cheaper. However it won't make money for football, so FIFA and the IFAB have ensured it will never be introduced.

Andy Brown


Friday, February 22, 2013

Media circus

The jury is still out on whether Lance Armstrong is playing a clever game. As was pointed out by Anti-Doping Denmark following Michael Rasmussen's subsequent confession to doping, Armstrong decided against confessing to anti-doping authorities, instead choosing the medium of a TV interview. In terms of the way that the anti-doping community normally operates, he has yet to 'confess' to doping.

Armstrong chose not to contest USADA's evidence against him in an arbitration hearing, after a Texas Court granted USADA's motion to dismiss his appeal against the charges. This was despite the judgment stating that arbitration is the correct forum for the issues around USADA's evidence relying on witness testimony to be discussed. 'The deficiency of USADA's charging document is of serious constitutional concern', reads the judgment. 'It appears USADA's evidence will revolve more around eyewitness testimony than lab results. The Court must presume the arbitration panel will discount the weight of those results to the extent it finds them unreliable or unpersuasive. Armstrong will be able to call into question the reliability of any witness testimony, by affidavit or otherwise, that was not subject to cross-examination'.

Yet despite this, Armstrong chose a TV interview over arbitration and did not call the evidence into question. Unsurprisingly, Oprah Winfrey did not press Armstrong on this crucial issue.

As pointed out by Kris Lines and Jon Heshka in this issue of World Sports Law Report, USADA has acted as 'judge, jury and executioner' so far in the Armstrong case. The evidence against him has not been independently examined by any authority, let alone a court of law. He has not even confessed, as such. All we have is that he says he doped in winning his seven Tour de France titles, but "the last time I crossed that line" was in 2005.

It is important that Armstrong has put a time limit on his doping activities, despite USADA's evidence suggesting he was doping as late as 2010. He has publicly stated that he wants his lifetime ban reduced to eight years, which means he would be free to compete - at the latest - in 2014.

Armstrong has rejected approaches from USADA to cooperate and has focussed instead on giving evidence to a WADA and UCI-led truth and reconciliation commission for cycling. This now looks unlikely to happen, due to ongoing arguments between the two bodies over who should establish and fund such a commission.

Armstrong also faces lawsuits from a number of individuals and companies keen to recoup money. As he hasn't confessed and USADA's evidence has been criticised by a court of law, these lawsuits may prove difficult to pin down. The most important of these is a lawsuit brought by Floyd Landis under the Federal False Claims Act, which alleges that by accepting sponsorship money from the government, the US Postal Service Cycling team was defrauding the government.

However, the lawsuit asks for trial by jury. Armstrong's advisors could argue that the jury has been prejudiced by the media circus that ensued around his Oprah interviews.

Is Armstrong playing a clever game? It appears so, but only time will tell.

Andy Brown