 So we'll get started everyone. Good evening and thank you for waiting the whole night to be here. It's great to see you. My name is Lindsay Lumer and as the communications officer at the school, I'm delighted to welcome you to the School of Law and to tonight's main law school session. We are very pleased to offer this series of public lectures and we hope that you'll join us. We have three more coming up this term. The next one will be February 20th and features Professor Diane again. She's going to be talking about religious freedom in Canada. What does that mean? What are the issues involved and what are the limits around religious freedoms? So hope you'll join us. There are details about the cookies and if you haven't already had a chance to get some cookies or coffee, please do so and hope yourself. And also you'll see there are some comment sheets on the tables around you and I invite you to just take a minute to fill it out. We really value your feedback. We want to build a series around things that you're interested in talking about and I'm hearing about so please just do take a minute. Thank you. Before we begin tonight's lecture, there are a couple things I think that you should know about Professor Brad Cotter that will give you an indication of just how fortunate we are to have him with us here this year as our inaugural Shulep Distinguished Visiting Scholar and also as our speaker tonight. Professor Cotter brings to us an impressive record of scholarly achievement and public service and I'll just be scratching the surface to tell you about a few of them here. He is a professor at the College of Law University of Saskatchewan where he served as dean from 2004 to 2010. He is an internationally recognized authority in legal ethics and professional responsibility and also in employment law. He is the author and co-author of a number of works including the leading Canadian casebook in legal ethics, Lawyer's Ethics and Professional Regulation in its second edition. It's, as I say, the leading Canadian casebook in that area. And he authored a major report that led to the adoption of legal ethics as a requirement for admission to the practice of law in New Zealand. And Professor Cotter together with professors Devlin and Downey here at the Law School has been awarded this year's Chief Justice of Ontario Fellowship in legal ethics and professionals in research. Professor Cotter served in provincial government for the province of Saskatchewan as Deputy Minister of Justice, Deputy Attorney General, Deputy Minister of Intergovernmental and Aboriginal Affairs and Deputy Provincial Secretary. And he has served on the advisory committee for Supreme Court appointments. Professor Cotter is a member of the Bars of Saskatchewan in Nova Scotia. He was appointed to Queen's Council in 1993 and has been a venture of the Law Society of Saskatchewan since 2004. He is the recipient of Saskatchewan Centennial Medal, the Saskatchewan Branch of the Canadian Bar Association's Distinguished Service Award and the Law Students Association Award for Teaching Excellence. Less well known is that he was also a representative for Nova Scotia in the 1981 bribe. Up close by saying that Professor Brent Cotter is no stranger to the Law School. We are proud to have him as an alumnus twice over and he is well known to many here as a beloved professor, as a former associate dean of the Law School and as a one-time executive director of the Dalhousie Legal Aid Service. As our distinguished visiting scholar this year, he is teaching a special topic in Topic Course in Sports Law and that leads me back to the reason we are here tonight. So with that more, it is my very great pleasure to introduce you to Professor Brent Cotter. It's a daunting introduction and I'm confident I won't live up to it. Let me just say at the outset it's a great pleasure to be back at what used to be called Dalhousie Law School and to be able to spend a semester here at the school and renew acquaintances with old friends and have a chance to teach and hang around. Tonight's talk is sort of entitled Sports and Identity Sport in the Law and one of the things that I'm going to sneak in here a little bit is a comment or two about sport as escape. You'll see that make its appearance shortly. The main exercise here tonight I think is to invite you to be reflective about and I hope find some enjoyment in the kind of reflection on the place that sport plays in our society and to some extent the ways in which it has shaped the law or has been shaped by the laws in Canada, North America and to some extent influenced internationally, most notably by the Olympics. What I'm going to do then is work my way through the presentation with a series of PowerPoint slides and a few videos. Some of you got a little bit of a preview when you were watching to see if we could find sound. Some of it I hope you'll find moderately enjoyable and fun. Before we start though I want to do one little exercise and here you won't be accountable for how you answer this question but I'm interested in some suggestions and we'll see whether they make their appearance or have some relevance to the talk I'm going to give. I'm going to pose a question for you in a minute but I also want to say as I work my way through the presentation if there are things that you noticeably don't agree with or have an observation about or a question about stop me and shout them out. It's not a magical formal presentation. It's supposed to be interesting and hopefully informative for you and if you need that information or for it to be a bit more informative at a particular time I'd welcome those kind of... I won't even call them interruptions, let's call them interventions. So my question to you and I want you to actually just call out your thoughts. The question is what was the greatest moment in sports history in your opinion? The greatest moment in sports history? We'll take six or eight volunteers and I'm going to write them down on this older style way of teaching on the board. So that's 1972 Canada USSR at the time I guess. For the younger members of the audience a significant goal in the Team Canada Soviet Union series, right? Okay, there's one, others? Jesse Owens. Jesse Owens. Now hardly any of us were there at that time so do you want to say a little bit more about Jesse Owens? Who did extremely well and the Olympics were in Germany and he embarrassed Hitler and Hitler's ideology. Others, any of you care in the least about sports? I'm guessing you do otherwise you wouldn't be here. Other thoughts about great moments, maybe not the very greatest maybe the greatest has been taken other great moments in sports. So that was the 2010 Olympics. I posed this question to the students in the Sports and the Law Center and one of them said the return of the Winnipeg Jets to Winnipeg meant a lot to him. So in some ways it can be things that mean a lot to you. They may not be quite as grand. Other thoughts? That was forgotten in the year 92 or 93. A great moment especially. Wayne Gretzky pretty much near the top of his game or maybe top of the latter part of his career sold to the Los Angeles Kings by the owner of the Edmonton Oilers Hockey franchise. Recently I think indicted for fraud in Phoenix but that's another story. Paralympics. Except for maybe a passing observation concerning Gretzky a number of these I think will make their way into the presentation so let's take a stab at it. My kind of working thesis is that a sport is engages not every single person in the society but engages us more than one might think. Presidents of the United States have observed and Chief Justices of the Supreme Court have observed that they read the sports pages first often because they tend to be more uplifting than the front page can be. And so part of the conversation is the way in which sport kind of lives in our society and in our identity. What I'm not going to talk about I'm just going to try to angle this a little bit so that this isn't too problematic. What I'm not going to talk about is the definition of what is a sport. You could imagine lots of unbelievable debates about what are the boundaries of sports versus games and I've probably participated in many of those particularly along these lines. This is a quote from Christy Blatch for not too long ago. Some of you will know that I have as you heard an affinity for curling and Lindsay mentioned that in the introduction. I should just say as a disclaimer that the 1981 Briar was held in Halifax. I was part of the Nova Scotia team so we were the home team. The Briar is played by a round robin competition and then playoffs so you play each of the other eleven teams once. After eight games we had zero wins and eight losses. So I think it's important to put the level of my quality of a curler in context. Anyway, so this is not going to be the subject of a debate. The reason why she said this is because of this guy. This is a guy named Ed Wernich. When he was competing to represent Canada in the Olympics he looked pretty much like that and there was a big effort to try to get the curlers to slim down and look a little bit more like athletes. Mr. Wernich refused to do so and Ms. Blatch thought she should write a comment or two about whether there were any athletes in curling. In my own view she was right. When athletes made their way into curling that drove people like me right out of the sport. So how deep is sports in our culture? This is from, I didn't reproduce the video of this but you can see the nature of the exchange here from Seinfeld about no matter what I could read the sports section and Jerry says he could read the sports section if his hair was on fire. How deep that is, I don't know. I'm not a big fan of Seinfeld. I gather that his comedy series was I'm told about nothing and maybe that's the point of this one. But in any event you can see its place. A prominent author about sports and the law described the fantasmagorical pull of sports that it somehow latches on to so many of us in society in various ways as spectators, as participants, as fans, as people pulling for our children. How deep is it in the Canadian psyche? This book, if I understand it correctly, last year a book 20 years old was chosen as Canada's nonfiction book of the year by that Canada Reads program on CBC. This is Ken Dryden, the goaltender for the Montreal Canadians, to think that the best book of the year would be a hockey book 20 years old says something about Canadian identity I think. Maybe not good things. I'm acquaintance of and a big admirer of Mr. Dryden. I don't want to be hard on his book and his place in Canadian society. This book is described as the best book about hockey ever written, but nevertheless it's a book about hockey. In the Canadian context, when I think the CBC ran a competition to try to determine what the people thought was Canada's greatest Canadian in history, the winner was Tommy Douglas, a Premier from Saskatchewan, from the 40s, 50s and 60s and at least in the Saskatchewan context he was the father of Medicare in Saskatchewan and Canada and not a bad choice. But two of the top ten were Wayne Gretzky and Don Cherry, so also you need to keep this in context. By comparison, the United States did a much larger exercise about who was the greatest American. It came out as pretty much a tie between Abraham Lincoln and Ronald Reagan. But when you think about how did the sports folks do in this American poll of millions of Americans, only two athletes. And I mentioned the athletes were Jackie Robinson who could have been on this list, I think, in terms of breaking the color barrier in baseball, a courageous baseball player. And the second name, and he was 35th on the list and 75th on the list was Babe Ruth who hit a lot of home runs and drank a lot of beer back in the 20s and 30s. But you can see at least the Americans have, while they might love their sports, at least they've got it a little bit more properly placed in their society in terms of its importance. Not everybody, even those who have made a lot of money involved in the sports industry are complimentary about it. This is, you may recognize this guy. He was a prominent sports commentator in the 60s and 70s. This is what he had to say about sports. He was probably the leading commentator in sports. Sport is only the toy department of human life. A little bit uncharitable. And now we're going to come a little bit to some of the identity themes that I'm going to try for here. And I've suggested them in these kind of growing categories. How we identify through sports as individuals, sometimes as members of a sports community or club, members of a town or city, citizens of a province, citizens of a nation. And sports, I think, revolves around a lot of these features of identity, more so than when I had begun, initially began thinking about it. If you think about us as individuals, often we would measure ourselves through our own sports achievements. Sometimes we set goals and achieve them and that's a positive feedback to us. Some people, athletes in particular, often end up measuring who they are by how well or poorly they do in the sports world. I curled with a guy in Nova Scotia who was a very fine curler. He had nothing else going on in his life. He measured who he was by how well we did in curling. He's a good friend, but that seemed to me a kind of a limiting articulation of one's life. We also, I think, in a certain way identify ourselves through sports as vicarious achievers. How well our children perform in sports is often in some way reflected glory on ourselves. There are progeny, maybe we could have been that good if we had the time or the money or put the effort in. In a lot of ways, for people who are engaged in athletics, it's partly about their own personal identity or self-constructed identity. Another way, I think, is through being members of a sports community. How well our canoe club or our curling club did or how well my daughter's swim team did. A kind of an ownership in an enterprise that gives you enormous amounts of pride or sometimes disappointment. But we are often connected to and we build our communities in certain ways around sports enterprises at a local level. Often we identify ourselves as members of a town or residents of a town or city in the ways in which we attach ourselves to sports teams. One small example, I think, is the way in which this is the symbol for the Halifax Moussez hockey team. I lived in Nova Scotia for about 20 years. This year, as I understand it, this hockey team is doing fabulously well. And I hear it talked about all over the city in ways that I never heard those kinds of conversations when I lived here before. It's a statement about the way in which Haligonians identify with a successful sports team and adopt it as their own. It's also a little bit of a sad statement about the way in which we tend to do that when teams are doing well and we are not so keen on that identity if they're crappy teams. It's not limited to towns. Sometimes we identify ourselves through sports as citizens of a province and sometimes sports enterprises are organized in that way. This is a small example and eventually the curling references will run out. This is a picture of the Nova Scotia curling team that won the national championship in 2004, the Briar held in Saskatoon and probably the most dramatic finish to the Briar that has ever occurred in the history of Canadian men's sports. Martin Dacey on the left-hand end, the skip happens to be from Saskatoon originally. But the way in which the Briar operates I think I mentioned and I think the way Lindsay introduced it is by provinces that people compete on behalf of their provinces. The fans identify with the teams representing their provinces. If you ever went to the Briar you would see a lot of semi-crazy people cheering for their teams shamelessly. It's a wonderful, wild somewhat wacky but very province-aligned respectfully but a very province-aligned way that spectators in connection with curling identify through their province's teams. And you would expect me to show you this. This is the Saskatchewan Rough Riders fan base not all that good of a picture and then this is a picture of them in their proper regalia which is essentially watermelon helmets. This one could easily be my sister but I'm not entirely sure. The way in which in this context the so-called Rider Nation identifies with the team is quite unbelievable. These are grown men and women in most other aspects of their life quite mature and generally responsible but here they are and I to be perfectly honest they didn't have any pictures of me but there could have been pictures of me dressed pretty much like that. Celebrating our bond with a sports team that's grounded in a particular province. I put this picture in because it also shows not only the watermelon helmets of Saskatchewan Rough Rider fans but the annual malaise that overtakes the fans at the end of nearly every football season when they don't make the playoffs or get eliminated. This unfortunately is sort of a classical kind of picture of the representation of how well our team does. We also identify through sports as citizens of a nation. Let me just back up and say that for example, if you think about the Joe Carter situation we identified that as fans of a particular sports team but maybe in certain ways represented the country because there were only two Canadian teams in baseball at the time so that has a simple statement there about that identity with a particular enterprise that often if it wins in dramatic fashion it's almost like a drug. We also though in this context identify through sports as citizens of a nation. I don't quite know why but the Dallas Cowboys football team is described and referred to as America's team that has some great resonance, yeah. But they got the name of America's team in 1978 because it was NFL and decided to be at Cowboys. They decided on their own but they embraced it. I'll bet. They sold a lot more today. This is a fabulous marketing device for the Dallas Cowboys exactly and quite frankly some dimensions of that Saskatchewan Roughrider nation have tapped into not only the emotional but the economic benefits as well. I don't actually have much time for this team but I thought it's an interesting way of understanding a team. Here's a little bit more directed one with respect to identity in terms of a nation. This is the Canadian Olympic team marching into the stadium I think at the London Olympics and it's just a reminder that when it comes to Olympics we identify teams through their nations. They show up representing their nation sometimes a bit debatable about who should be allowed to be on a nation's team but we think about it only through that process. You can only participate in the Olympics under the auspices of your nation. And I think those of you who watched the Olympics this past summer or previously know how much you expect the national television folks to provide you coverage of your team's performance, your athlete's performance sometimes if you get stuck on some American channel you get sick and tired of the focus on the American athletes that's because you're busy identifying with the teams of another country you are identifying with your own nation and in that context of identifying nationally Even the gold tender came up thanks to congratulate them all If you were an adult and saw this game when it actually took place and get to see it again and you're a sports fan it's thrilling just to see it again I think. I don't know what your perspective is but you named it and you got it Yeah Probably in the history of sport it's not the greatest thing that ever happened but if you're a Canadian it's pretty close to that if you have a good memory of it and that's partly because of the way in which we identify so much with our country in these big kinds of events I've now switched to another theme which is sport and the battle between good and evil or sometimes the way in which religion presents itself in sport and in a certain way Team Canada 1972 captures that point If you weren't around or attentive at the time or were too young to know and hear about this there was enormous amount of attention to the idea that this was a test between two different systems of government the free enterprise capitalist system represented by Canada and the communist socialist collectivist system represented by the Soviet Union and that who would win this series would determine which system was better it's a bit like back in the olden olden olden days people send out one warrior to fight to decide which side was better well what a bizarre kind of conception but it had reached that kind of a stage of the way in which the battle between good and evil between two different profoundly different systems were being fought out on the ice and the difference was one goal in one minute at the end of one hockey game like bizarre and completely unsustainable and unjustifiable nevertheless true of good and evil being fought out through sports there's also maybe not the battle of good and evil but the way in which religion makes its appearance in sports in ways that get enormously profiled this is a football player from the united states Tim Tebow who's become famous in a variety of ways one for not being that good of a football quarterback but the other is for this was when he was playing professional football wearing in the black eye black that athletes often wear passages from the bible essentially on his cheeks in order to make a statement about his commitment to his religion and also to probably send messages to others either favorably or unfavorably but the use of sport to profile religious beliefs is sort of profound around the person the personality of Mr. Tebow in the battle between good and evil and I think this is the end of the curling references you'll be pleased to know choose this one as a useful example this is a short novel turned into a play written by a famous Canadian author W.O. Mitchell all around a story of the devil making a deal with Woolly McCrimmon for Woolly's soul this is not the first time it's ever been used as a story in exchange for which the devil promises that Woolly McCrimmon will win the brier and essentially it's a kind of I guess some form of allegory but using sport to make that point I can't remember how but Woolly McCrimmon manages to get out of the bargain and still win the brier well if you ready do the play do the play do the play do the play do the play do the play do the play do the play do the play do the play do the play anyway you get the idea in certain ways it sort of suggests that a lot of what we kind of enthusiastically believe in value is pretty darn shallow and I think one needs to keep the whole subject matter in context but it has a rich emotional connection this is a passage from the funeral of Mickey Mantle a famous much-loved flawed personality of a baseball player from the 1950s 50s and 60s and Bob Costas a prominent American sports journalist said this at Mantle's funeral it's been said that the truth is never pure and rarely simple but the emotional truths of childhood here he's talking about the connection to sports as a young person have a power that transcends objective fact I think I typed this so there are sure to be mistakes they stay with us through all the years not withstanding the ambivalence that often accompanies the experience of adults in some ways Mickey Mantle and all of those reminiscences and recollections draw people back to memories nostalgic memories of a quiet or safe or pure time is kind of a rich feeling about it my father used to say that nostalgia isn't what it used to be but in this context it's sort of a nice nostalgic memory for those who remember what seemed like better, quieter, more peaceful, purer times sport does a lot of that it also in somewhat more serious way provides escape from poverty and marginalization insignificant numbers of athletes have made a route to economic success and hopefully personal success in their lives through success in sports particularly professional sports the numbers of african-american athletes in North America who have made their way to out of poverty and marginalization in society through sports is not insignificant sometimes it comes with some of the bad problems of not being able to manage those kinds of opportunities and sometimes it comes with injury and post-athletic career consequences both psychological and physical that are desperately in need of being addressed but it is also not an insignificant escape from poverty and marginalization sports has also got some dimensions of it and we're going to move into this in a few minutes of the way in which sport escapes from the normal application of law I'm going to try and show you a couple of examples of that or the ways in which the laws have in some cases been shaped to accommodate sport and some of them I confess before I started teaching this area a few years ago I was unaware of I was oblivious to and I'm going to try and show you a couple of them that are interesting and I think you might find surprising I want to say a little bit about sport and the economy because a lot of the law-based issues are driven by economics and some of them have had a not insignificant influence on the law so let me tell you a short and somewhat selective history of baseball part of this will inform something I want to say in just a few minutes time so just bear with me the story isn't entirely about the history of baseball but about the history of baseball as conceived in the American myth baseball came together in all kinds of lumpy little ways of people developing some rules here and others developing some rules there and eventually in the late 1850s and 1860s some of these leagues got together and tried to formulate a standard way of playing the game of baseball and they had to negotiate what rules would be and then the game evolved after that historically if you know very much about baseball running from one base to another stealing bases wasn't part of the rules and one day one guy ran from first base to second base and there was a big argument about what he was doing and he said it's not against the rules that's how base stealing made its way into baseball how you used to get runners out running from base to base was that you threw the ball at them and hit them like you could imagine dodge ball when the baseball got quite hard because people were getting injured by getting bonked by the ball that's not the main part of the story the main part of the story that I wanted to share with you is along these lines one of the people who was influential in the original history of baseball was a guy named Al Spalding you probably heard of Spalding sports equipment Mr. Spalding he's dead now he was a baseball player in the 1850s and 60s then he became a manager and owner of a baseball team and then it dawned on him that there was a lot more money to be made making equipment that you could sell than just playing baseball or owning one of these little baseball teams that was putzing around outside of New York or Chicago or whatever so that was what he did he began to get quite wealthy and one of the things that he wanted to do both out of a patriotic desire and also to I think help the financial franchise of Spalding sports equipment particularly baseball equipment was to establish that the true origins of baseball were in the United States so this is what he did he commissioned a commission to look into the true history of baseball the true invention of baseball and he kind of stacked this commission with friends and he had an executive secretary in his business who became the secretary to this commission and filtered all the information that came in and this guy's job was to mainly filter out any suggestions that it was based on English history of rounders or cricket and mainly to focus on American stuff turns out a guy saw an ad about this commission in I think Cincinnati, Ohio the guy was in his 70s this was all taking place in 1905 and this guy writes a letter of commission and this letter says you're looking to try to discover the history of baseball I can tell you when I was 7 years old he writes I was in Cooperstown, New York and Abner Doubleday invented baseball one day in May in 1841 in Cooperstown, New York shortly after they got that letter the guy who was the head of this commission probably getting tired of the job wrote up a report about the relative origins of baseball Abner Doubleday May the 7th, 1841 Cooperstown, New York I'm going to show you a couple of places where that has resonance but if you know anything about baseball the baseball hall of fame is in a little dinky little town Cooperstown, New York American baseball bought into the story that this is where baseball got started and by whom the fact of the matter is Abner Doubleday became famous but only famous because he was a general in the union army that ordered the first shots fired by the union army in the U.S. Civil War at Fort Sumter in all of his writings from 1841 through the rest of his life he never mentioned the word baseball once and historians have established that Abner Doubleday did not set foot in Cooperstown, New York in 1841 or 1842 this story is a by the official historian of baseball who published a book on these kinds of questions a couple of years ago is a complete myth but it's a fabulous myth for Mr. Spalding because he's now this American entrepreneur selling sports gear now how does this make its way into questions about law in some of you will be familiar with this and I'm going to loop back to this because the world of competition law and labor law is a big story about the American North American professional sports but let me just truncate that in one part and tell you a bit of a story about a case in the U.S. Supreme Court called Flood vs. Coon if you know much about the history of baseball you will know a little bit about Kurt Flood he was a baseball player for the St. Louis Cardinals baseball team in the 1950's and particularly 1960's he was an outstanding baseball player he played for and helped the St. Louis Cardinals win back to back World Series in 1967 and 1968 and in 1968 the St. Louis Cardinals traded him to Philadelphia he didn't want to go Philadelphia offered him more money he said no and what he did was he launched what's called in U.S. law an antitrust lawsuit against Major League Baseball because essentially the St. Louis Cardinals owned him and nobody else could acquire his services except if the St. Louis Cardinals blessed it there was what was called a reserve clause in baseball and whatever happened to Mr. Flood a young talented black guy and this kind of resonates a bit to the world of slavery in the U.S. was up to the St. Louis Cardinals he could be bought or sold the property that's the language that's used the property of the St. Louis Cardinals and all of the owners had basically agreed on this system of controlling and owning players contrary to all kinds of free enterprise free market principles he brought a challenge to this whole system and in American antitrust law if you're found to have been guilty of one of these anti competitive practices damages are awarded to you and then by law the amount of damages is tripled what's known as the triple damages consequences of antitrust violations and Mr. Flood back by the baseball players association launched this case there was a case in the United States that had addressed the question of whether baseball was in violation of these anti competition laws and in 1927 the United States Supreme Court had decided that baseball was not in violation of these rules one of the requirements is that if you're going to be in violation of these anti of these competition laws you have to be doing it in the context of what's called interstate trade and commerce it's sort of like when you watch those TVs shows on the FBI the only time the FBI can get involved is because it's across the state lines well that's a requirement of the anti competition laws in the United States and a very distinguished judge Oliver Wendell Holmes in 1927 that when the Detroit Tigers in Michigan went to Cleveland Ohio to play baseball it's true they cross state lines but it was just a bunch of fellas going to have a little exhibition baseball game it wasn't believable then it certainly wasn't believable in 1972 when the flood case got decided anyway so the case comes to the United States Supreme Court this is the biggest court in the United States a very serious operation you get an idea of what Mr. Flood's chances are when you hear the first two pages of the judgment I'm not going to read them all but you'll get an idea of the flavors I read two passages and you can credit one of these I think with the work that Al Spaulding did in establishing how important Abner Doubleday was and baseball rooted in American society this is how the judgment of the United States Supreme Court begins it is a century and a quarter since the New York Nine defeated the Knickerbockers 23-1 on Hoboken's Elysian Fields June 19th, 1846 and goes on from there it is a romantic peon to the wonders of baseball in America the ensuing colorful days are well known the ardent follower and the student of baseball known as General Abner Doubleday the formation of these leagues under the leadership of Al Spaulding and others the judges have bought into that story the myth of baseball as well that's the first page second page of the judgment then there are the many names celebrated for one reason or another that have sparked the diamond and its environs and that have provided tinder for recaptured thrills for reminiscence and comparisons for conversation and anticipation in season and off season a bit kind of the stuff that I was loosely trying to talk about already and then a list of 100 people that this Supreme Court judge thought were the greatest baseball players in history that's how the judgment begins it's connected to the nostalgia of baseball every bit as much as I sort of describe sports lives in our lives what that I think was a message to anybody reading the judgment is this judge is so much in love with baseball I don't think you're with it at all and the court concluded that every single requirement for this to being an anti-competitive organization is met the decision in 1927 was wrong then and it is wrong now and they won't give but they won't hold baseball to account for anti-competitive behaviors and baseball got a free pass it has been known in US law as baseball's exemption from anti-competitive laws in the United States and just about the only organization in all of the free enterprise system of the United States that got that free pass a lot of it I think based on this place of baseball in the culture and myth of America a second example I think of the significance of sport and the economy is a bit around the history of the Stanley Cup and some of you probably will know this history better than me historically the Stanley Cup was established by Lord Stanley then Governor General of Canada but it was played among amateur teams and played in all kinds of different ways than one would imagine my grandfather competed for the Stanley Cup in 1904 for the very famous I'm sure you've heard of them the Canora Thistles in fact the Canora Thistles was the smallest community that ever won the Stanley Cup but they only kept it for three months anyway eventually the Stanley Cup came to be appropriated by the National Hockey League in fact if I say Stanley Cup you probably think National Hockey League if we did one of those psychiatrist word association things and then you might if you're not happy with the National Hockey League you might spit on the floor it would be very valuable for the National Hockey League in fact it helps the platform of promotion of the league and I think helps in its marketing enterprises indeed as you may recall there was a big spat in the 2004-2005 hockey season that wasn't about what should happen to the Stanley Cup and by golly the National Hockey League was not planning to give it up even though it was not ever initially intended for them it wasn't brought against the National Hockey League by people who were referred to as the Saturday Nighters who still I don't want to be uncharitable kind of wallowed in the lore of a pure kind of a game of hockey but the end result was that the National Hockey League in order to settle and be able to hang onto the cup agreed to pay into certain charitable funds a thousand, a hundred thousand dollars a year for ten years in order to be able to hang onto the cup and the Saturday Nighters own the cup is just that the National Hockey League did not want to give it up you see that as well I think in the evolution of the Olympics I may say if there's time a few words about that the Olympics started as a relatively small inspired movement in the 1890s and has grown to a multi-billion dollar business and the ways now in which the Olympics dictates laws to countries that want to host dictates all kinds of rules and regulations in relation to the delivery of the Olympics is driven I think almost entirely by the economic power that comes with the Olympic events you will have seen from time to time the listing of the value of sports franchises which have escalated dramatically that influence on the economy and it has led to all kinds of legal battles mostly in the United States over the locations of the franchises that's been true as well with respect to the financing of stadiums the issues the size of these stadiums their cost, the expectations or not of public dollars being made available the issues about whether that's of economic value or not are powerful economic influences and as a consequence have legal consequences as well there are a number of court cases about teams moving debates about stadiums being built like player salaries have skyrocketed over the last 25 years and have made the players economic players in fact to the point where a number of them in different major professional sports have begun to buy sports teams adding to another layer of legal debate and dilemma broadcast rights which have significantly added to the value of sports franchises are staggering in the billions of dollars for major sports baseball and football in particular the availability of paraphernalia I learned how to spell that just today is staggering and I brought a little exhibit of that I don't really know how much the Saskatchewan Ruff Riders get from paraphernalia but this is one piece of paraphernalia and it links into that identity point at least for the team that I'm fond of the Saskatchewan Ruff Riders there are eight teams in the Canadian Football League one of the ways in which the Saskatchewan Ruff Riders have managed to work their way out of poverty and now are actually quite wealthy as a sports franchise in a dinky little city like Regina is through the sale of their paraphernalia of those eight teams have I insulted anybody from Regina here? No of those eight teams the Saskatchewan Ruff Riders sell 54% of the leagues merchandise and clothing and the like 54% and most like there's a kind of revenue sharing deal but the Saskatchewan Ruff Riders do very well by that I used to work in the government as Lindsay mentioned in Saskatchewan every year in the 1990s the Saskatchewan Ruff Riders would come to the government and ask for their loan guarantee to be increased by another million dollars feels a little bit like what happens in the US Congress these days and what could the government do this is kind of the rider nation you didn't keep them afloat you'd probably be defeated as a government these days adding to the question of identity these days the Saskatchewan Ruff Riders make millions of dollars every year they are the most viable franchise in the Canadian football league and I contributed maybe 25 bucks to it right there it's bigger in other locations and the legal disputes over of the kind of intellectual assets that swirl around jerseys and visages and all the rest of it is staggering and that pales probably in comparison to the kind of investments we make in our children to participate in sports franchises some of you will know how much money has gone out of your pockets so that your kids could play different kinds of sports sometimes at a recreational level sometimes they or maybe you have an aspiration that they will be great and you will be generous in the commitment of resources so that they have a shot at some form of greatness billions of dollars invested in this one category here every year in support of our children healthy in lots of ways but we are pretty significantly connected to the economy through our investment in sports I wanted to turn and talk a little bit about some aspects of law more precisely and then I had in mind these five we might shorten the list a little bit because I do want you to feel like you have a chance to raise some specific issues that I could try to respond to I gave you a little bit of a flavor with respect to baseball and I want to say just a little bit more about an interesting and almost counter-intuitive aspect of some of the law that applies to professional sports leagues in South America particularly the big four leagues in basketball, hockey, baseball and football say a little bit about the Olympics including the legal issues around the Olympic brand and the way in which that gets enforced some things about performance enhancing drugs a bit on the right to play and the application of sport and the criminal law which is I think a highly debatable issue about the degree to which if not quite a free pass it gets a pretty wide soft cut for it when you think about what happens particularly in hockey that would not be tolerable in any other aspect of life so I'll go for a little while and if you get bored or I'm kind of losing focus I'll shut up and we'll talk generally this is a long list of things but I mainly wanted to zero in on I'm not going to take us back to history and organization and structure but zero in on a little bit on the intersection of sports competition law and labor law largely the major North American sports leagues began as a series of private owners getting together entering into agreements with individual players but the deal among the owners was that those contracts would look a lot alike and they would not interfere with other teams ownership arrangements with their players they would intentionally avoid there being a free market for the players to trade their services around and indeed they all agreed to introduce contract provisions somewhat like our friend Kurt Flood faced in the 1960s that kept the players under a significant degree of control at this time the players were not making an awful lot of money and the owners were not making an awful lot of money either so the leagues tended to be structured as private leagues along those lines as sports became more popular and they were spending money on it in variety ways including more and more broadcast revenue coming in these issues began to arise to a more significant level one of the things that if you think about sports franchises I've used this example with my law students let me share it with you imagine this kind of a way in which you enter the workforce you're a law student who's about to graduate all the law firms in Nova Scotia let's just use Nova Scotia for a minute get together on a Saturday maybe here at the law school and they select which law student they want to join their law firm or government and they select you some law firm in Port Hawkesbury chooses you and what that means is if you want to practice law in Nova Scotia it's the law firm in Port Hawkesbury or nobody and none of the other law firms will talk to you because you have been drafted by the Port Hawkesbury law firm that might be the last place in the world you ever wanted to go but unless you're a very special law student who's able to get these other law firms to reconfigure themselves so that you can go to Oxford where you really wanted to go you're you're hooked you're stuck with the firm in Port Hawkesbury well that's the model that essentially was operating with respect to sports leagues and still does and it is an absolute violation of the anti-competition laws of the United States and Canada it's just an unacceptable interference with your ability to bargain with your services and other dimensions of how this is structured are equally anti-competitive and what was happening in the 70s and 70s was the players especially now that there was so much money at state began challenging the right of the owners of these sports teams to impose these anti-competitive regimes on the players and from time to time they were winning they won in football they won in hockey they won in basketball they didn't win in baseball because of the love that the Supreme Court of the United States seemed to have for baseball this is problematic for the owners at the same time in terms of conditions of employment what happened was that the players began to organize into unions and hence this point about an intersection with labor law and this was to the advantage of the players in a variety of ways in terms of getting a better pension regime maybe minimum salaries for their players in the lake well here's a curious thing if you think about labor law for a minute an organized labor where the people at let me try and pick up the post office are unionized they have all agreed to work together and I don't want to say this in an uncharitable way and collude and conspire together and the employer has to deal with all the workers it's illegal under the Canadian law and US law for an employer in a unionized environment deal with individual employees of the union it's a form of anti competitive behavior that's been done in order to give employees with little bargaining power the chance to be able to bargain more effectively with their employer or group of employers and in Canadian and in US law that labor law regime that anti competitive arrangement on the side of employees is lawfully blessed it gets what's called an exemption from competition law so that employees can unionize when sports players began to unionize it had a very curious effect because the rule is not just that you get to work together as a union a bunch of employees working together as a union but when you make a deal with the employer or group of employers that agreement is also sanitized and exempted from the application of competition law so what then happened was that all kinds of these anti competitive behaviors on the part of owners if they were engaged in collective bargaining with the union of players if the bargaining was genuine those anti competitive behaviors by the owners became sanctioned because they could also shelter under what's called this labor law exemption so as a consequence and you'll see where this goes a little bit in hockey as a consequence the owners became very attracted they often didn't like the negotiations but they became very attracted to the fact that the players were unionized because it protected a variety of their practices now there's a lot more in this because those practices are often the ways in which leagues remain competitive if the rich teams can just buy anybody they want at any price sort of the New York Yankees of all these kinds of sports teams you end up with perhaps an uncompetitive environment in these sports and unlike other businesses one of the great values in sport is that the franchises be reasonably competitive with one another that's what makes sport exciting and unpredictable so there is some value in saying we need a regime that makes these teams competitive but most of the ways they were doing that through were competitive practices now protected because they were dealing with labor unions so what happened in football and in professional soccer was when some of this bargaining was going poorly what the national football league players did and what the national North American soccer league players did was they decertified and as a consequence they were no longer a union and then what you saw was the most amazing thing in both football and North American soccer the owners brought what's called an unfair labor practice because the union had stopped being a union it was an unfair labor practice in the owner's view to be no longer a union and in the world of management labor relations that's almost a dream come true for employers is to not have to be dealing with a union Wal-Mart across North America has fought unions since day one and so have lots of other companies in North American sports it's to the benefit of the owners that the workers are unionized because they get this fabulous exemption from labor law and let me give you an idea of how great it is at least in the US context national football league players negotiating with the national football league to try to get a collective agreement they're negotiating they're not getting anywhere they reach an impasse the owners all of them collectively collusively agree that from now on during sort of during this period what are called replacement players or people who are on a kind of a backup list if too many of your players get injured you haul one of these up they were being paid $64,000 a year all the owners agreed that they would cut those players' salaries by 75% every single one of them to exactly the same dollar collusive anti-competitive practice it went to the US Supreme Court and the Supreme Court said that that behavior since it's connected to collective bargaining is sheltered by the labor law exemption and the owners could do that unilateral stuff collectively, collusively and be free of the competition laws that would otherwise apply so it became unbelievably attractive and now you hear some of the debate that you might have seen if you were following the hockey lockout the players mobilizing to decertify and the owners taking steps to try to maneuver in the courts to prevent decertification from happening not because they would prefer to have no union but they needed what's called the labor law exemption some people think that that was a critical factor in the result of the hockey lockout coming to an end players getting back on the ice there is an interesting topic and a whole collection of law related to the power and authority of commissioners to govern sports in what's referred to as the best interest of the sport but let me skip over that and go to a couple of other things I want to be sort of brief about the Olympics and may need zero in on questions about brand and to some extent rules for participation which we might see in a couple of other subsequent slides the Olympics is actually structured as a structure that looks like a government in its organizational structure but it's a very private organization on the basis of a corporate registration in Switzerland and that's the sense of the reference to the very private nature of the Olympics the way in which the sports are delivered though is by the international sporting federations of particular sports they're sort of delegated provided they agree to all the terms that are established by the International Olympics Committee when it comes to the delivery of Olympics events the Olympics are devote in their protection of brand and one of the requirements if you want to be a host city for the Olympics is that you have to agree with the Olympics that you will put in place a regime that protects the Olympic brand in Canada in 2007 I'd have to we passed an act called the Olympic and Paralympics Marks Act that was intended to provide protection and enforcement of the Olympic brand the Olympics said to the government of Canada passed this law there are not very many organizations that have the power to tell a national government to pass this law they did the same thing with respect to the United Kingdom for the Olympics in London this probably will be hard to read but what the Olympics did was that enforcing the brand this took place in relation to the Vancouver Olympics a whole series of rules about people who might be misusing or manipulating the Olympic brand for their own benefit or maybe they baked a cake with the Olympic circles and put it in their big shop window and they got in trouble with the Olympics so there were all kinds of like there's a chart of when they would go after you for violating the brand in the United Kingdom the legislation also was passed there and one of the provisions in the law was nobody in Great Britain except sanctioned by the International Olympic Committee was allowed to use any of these two words together or any one of these words with any one of these words it feels like I don't know like Stalinistic to me and in the United Kingdom when the London Olympics rolled around they had 300 brand police policing the United Kingdom to prevent violations this is one of the reasons why I put that table up on sports and the economy because the financial value of the Olympics for the IOC and also for broadcasters and the sponsors is so staggering and they pay so much money that it has led to these kinds of enforcement practices to protect those very staggering investments in fact my sense is that we've sort of seen the Olympics get a little bit out of hand now this is Browson's report thank you very much I would like to do something I would like to do something be an international student something that would entire our future generations to laugh I live in a small town in the west of Ireland population of maybe 8 or 9,000 people and I think that we should bid for the Olympics we should bid for the Olympics and have no facilities and the athletes would want to come because we let them take whatever drug or steroid that they wanted to the drug and steroid Olympics women are so fantastic two weeks of people just drinking all over the place some people don't drink drugs in sports I say SHUT UP if somebody runs down the 100 meters in half a second I would have seen him slow down before he gets to the end of the year be fantastic athletes would no longer represent countries they'd represent pharmaceutical companies viagra and virus and really botan mix up the drug and steroid in the west of Ireland why? because every time we win something there's something dodgy about it all in the games we won a gold medal show jumping going up our senses with a heart I have to use an animal that the horse put on drugs the jockey said that he didn't know what to think about it I believe himself he's not stewed he knew the type of life he could be in after a big victory he saw himself on a show the gold medal draped around his neck and actually his tincture it gets not here from here on so I sort of stopped it although I should say that when I was hearing about the gold medal around I couldn't help but think of Lance Armstrong and his determination to win against other people probably equally on drugs and steroids this I think is a certain statement about the challenges that the Olympics has had regarding drugs but also the general question of performance enhancing drugs and trying to manage that it said that drugs have been used since the ancient Olympics back before time and who knows what exactly they were but certainly ramped up as we moved to a more kind of pharmacological age and ramped up following the Second World War in ways in which athletes were able to find means by which they could perform better at some noticeable risks to their health and often driven by country imperatives or tragic stories of East German athletes who are required to take drugs in order to excel individual athletes in North America and in Europe who have been lured by the same desires for success to achieve excellence a kind of form of artificial excellence and challenges to try to manage that in the pursuit of a clean sport and it gradually seems to become a battle in terms of athletes who are willing to do that, I think one could use the word cheating in that respect and trying to stay ahead of the ways in which the measurement of their use of performance enhancing drugs could be caught major, major investments in and through the World Anti-Doping Agency initially led by Dick Pound who's been a Canadian from Montreal who's been a champion of the opposition to performance enhancing drugs sometimes controversial champion of that also a variety of issues around the scope and effectiveness and appropriateness of drug testing regimes, competitive athletes particularly connected to Olympic sports being subject to random tests at all times having to provide information about their whereabouts at all times to their sporting enterprise though not driven so much by the issue of performance enhancing drugs the degree which various kinds of testing including related to gender have been a noticeable interference with people's privacy issues revolving around performance enhancing drugs and the desire for a level playing field, arguments and significant concerns about athlete health and probably image in relation to sports enterprises the Olympics trying to present a pure image it is said at least I don't know enough detail on this to say this authoritatively but it is said and suggested that the North American professional sports leagues have been resistant to the testing of their athletes partly because they don't really want to find out and they don't want the public to find out the image of professional athletes in large numbers taking drugs of any kind in particular performance enhancing drugs is seen to be problematic to the image and probably the profitability of some of those major sports leagues despite the fact that it leaves lots of athletes vulnerable in relation to their health while they're playing or afterward this is a bit of a spectrum to try to think though about what is legitimate and what is illegitimate with respect to the means of improving your athletic performance and a lot of these some of us who are finally tuned athletes already do but what point do you start to think that what you think of as acceptable ways of improving your performance start to become illegitimate where does the unacceptable kick in I don't know if this is a perfect description but you get the idea of when we are engaged in the pursuit of athletic excellence there are lots of things that seem to be legitimate to do but we might not all agree on where the line of legitimacy becomes illegitimate and that's made it hard as a matter of principle to think about this question as well as in effectiveness of enforcement what's your opinion where's my opinion well I'm just thinking about my own incredibly great athlete skills I'm trying to think of I don't think I ever got into the scale but where would I say I think I'm comfortable up to about here and blood doping is problematic and these are even I think more problematic so that would be where if I were to draw the line and I'm guessing that that's fairly close to where the line tends to get drawn in in the regimes of enforcement partly you start to fiddle artificially with yourself here now maybe that's what happens with respect to high protein too you're artificially building up a protein in your body that you wouldn't normally eat but protein doesn't sound quite as bad as these other things but this issue is not insignificant this doesn't relate so much to the Olympics but drugs in sport this is an observation by a guy who wrote a book recently eight days discussing the use of steroids in sports more time than congress spent on national health care the floods in New Orleans ending the war in Iraq and his suggestion was apparently we take the whole national but mostly this revolved around baseball we take the whole thing seriously I don't know that an awful lot was done but they obviously took it seriously this is kind of the congress equivalent of the supreme court's interest in and I guess focus on baseball another topic and I'll just kind of highlight this issue is what I've called and others have called the right to play which is sounds like sort of kids game but the point really is the right to participate in elite sports and the challenges that have been faced in the context of race, gender, disability Jesse Owens was able to compete in the Olympics but it had a powerful racial statement to it you did not mention Jackie Robinson I put a picture of Jackie Robinson up here he was the player who broke the color barrier in baseball at a time when there was a gentleman's agreement to keep African Americans out of baseball and indeed up until fairly recently it was suggested it is generally believed that the Boston Red Sox baseball team had a racial quota limiting the number of black players that they would have on the Boston Red Sox team if true I hope that kind of explains why the Boston Red Sox went 90 years without winning the World Series gender and gender questions in I think two contexts one this is Renee Richards a transgender athlete and in the 70s an enormous amount of debate about whether she should be allowed to play women's tennis after she transgendered to a woman this is Caster Semenya who was a black athlete from South Africa a woman who had high levels of testosterone presented in some respects with a lot of masculine features all in question kind of in physiognomy terms a woman but who was barred from running as a woman for a significant period of time and humiliated in the international sports press this one raises enormous questions about how whether it's appropriate and how to determine gender when it comes to elite athletes competing in sports most notably the Olympics and other international and world championships and that story is a problematic one initially in the Olympics when they turned their mind to this mainly in the 50s and into the 60s up until 1968 the way by which women athletes were able to qualify as women in the sports was through what was called the naked parade the women athletes had to parade naked in front of a panel of three doctors in the pictures that I've seen not of the women honestly but of the doctors they were all men and the doctors evaluated them by information as to whether they were women or not everyone actually passed there was never anybody who actually declined or was disqualified through that process and it is said that the only woman exempted from that process during the naked parade years of determining gender was princess Anne I guess if you're named a princess you get a free pass and then there were moves to other kinds of measures of determination that were mostly revolving around questions of X and Y chromosomes and the like the most recent and equally controversial method is to measure the natural testosterone levels of athletes and if women have too high a natural testosterone this is kind of an unbelievable way of determining it if they're too high for the Olympics or the sport for which they're being measured they have to either take medication lower their testosterone or submit to medical procedures in order to qualify downward and qualify their own natural kind of physiological features in order to fit into the range that's acceptable for women men are not attested in those terms another example of the challenges of disability is Oscar Pistorius who ran in the Olympics this past year after a lot of fighting in order to qualify certainly a lot of legitimate debate about what kinds of artificial features in the case of Mr. Pistorius he was born without the lower parts of his legs and used an artificial device to be able to walk and to run and he competed well but it wasn't as though he had like rockets on his feet or anything but he had a long fight in the context of the challenges of disability in order to have an opportunity not just in the Paralympics but in the Olympics and so lots of issues revolving around questions of right to play often driven by the circumstances of being a minority and in some cases a very small minority by virtue of certain kinds of identity in society I'm going to be brief and nearly done here and then if there's some chatting we can do it, I enjoy that in the context of the criminal law sport I think in large measure has given has been able to get not a free pass but a pretty gentle pass in terms of the application of criminal law you will know about fighting I'm not going to show you anything about fighting a useful and interesting debate there's almost no other place other than maybe boxing rings and mixed martial arts where you can actually have a fight and not get arrested except in the hockey rink these are a couple of them I'm going to be using them to see if we're going to just stare at these people they're going to grow people are going to be sorely sorely for a year and caught it in the helmet the August suspension belongs to Juan de Soler who was handed a 23 years suspension for using a stick to lack a nice double brass shears on the head back in January 2000 later that year McSoli was found guilty in a British Columbia court for assault on the weapon the shears team named Todd Bertuzzi offered his opinion on the incident that very night a little bit ironic here Todd Bertuzzi offered that account after in the first clip which came chronologically later he was the perpetrator those kinds of things that you just saw there they led to very light criminal sanctions but the law essentially has carved out a space for what normally would be thought of assaults to not be treated in that way and it turns in the criminal law around the question of consent to what would otherwise be an assault the general rule is that an unwanted touching of any kind can constitute an assault thankfully it's not as though police are roaming the streets looking for people bumping into each other and charging them with assault but one of the mechanisms that can cause what would otherwise be an assault to be set aside is if the person who was otherwise thought of as the victim consents to that contact and in sports enterprises obviously lots of sports are contact sports and you would expect to be bumped into or crashed into and sometimes hurt and so different sports have a different set of boundaries about what constitutes what you've consented to and in sports like hockey the rule has been it's not limited to the rules of the game that is that somebody can do something to you that is against the rules trip you, elbow you in the head and even though those might be penalties in the sport the law has basically said that those still qualify as the kinds of behaviors to which you have consented sort of part of the culture of the sport and so just the rules of the sport don't define how large your consent is your consent is larger than where the boundaries of infractions occur but the question then becomes at what point is the attack on you is the physical contact with you beyond what you would have consented to what the courts have tended to say is that they're giving quite a bit of license to sports because there's a socially redeeming value in the sport itself and participation in it that we will cut these enterprises quite a bit of slack and the reality is that in professional sports there's a great desire to keep the courts out of the business of sports this is one small example the criminal law of a vast number of circumstances where professional sports leagues have organized themselves as best they can to have their matters not dealt with by courts but by the privacy of the framework of the league this has worked to some extent in hockey but not entirely and both Mr. Bertuzzi and Mr. McSorley faced the criminal law though they got very light sanctions Mr. Bertuzzi's problem is mainly with a big civil case brought by the fellow that he injured that you saw at the very beginning of the clip Mr. Moore nevertheless, I think there's a fairly strong argument that we've cut professional sports a little bit too much slack and those are the kinds of things that people would be severely sanctioned for if they happened in normal life those were unpremeditated attacks in this in the last one we saw with a stick to the side of a guy's head one of the things that happened and there are two things that I'll end on at this point one is that when Roy McMurtry the recently retired Chief Justice of Ontario was the Attorney General of Ontario in the 1970s he launched a project to try to have hockey players held more accountable enormous pushback from the National Hockey League the Philadelphia Flyers hockey team which was a pretty bruising kind of hockey team claimed that this was an effort to try to minimize the Philadelphia Flyers hockey team's effectiveness that the Attorney General of Ontario was marshalling his forces to improve the chances of sad sack teams like the Toronto Maple Leafs trying to limit the influence of big rough tough hockey teams on his team if you can call it that McMurtry was only moderately effective in using the criminal law to address highly anti-social behaviour in hockey hockey itself as you probably will have followed has upped the ante with respect to its own internal procedures and to try to persuade the public of the legitimacy of the sanctions that they have been imposing partly to give you a little bit more confidence in the way in which hockey operates and that it takes some of these serious behaviours seriously but also to try to keep the regular courts and the regular law out of their business and that's the case especially across the field of sports not just with respect to violence but other areas of their activity it's not quite that the sporting franchises and sporting efforts get a free pass but they get cut a lot of slack by the law on this topic and many others let me stop there and invite your questions or comments or if you feel the need to rush off and get home on a cold night thanks very much it's difficult for a variety of reasons if you look at some of the power say of US college sports there was a law passed in the United States in 1996 called the Kurt Flood Act to try to address these questions of the way in which players are treated as property by teams how much of that was needed because in some ways the players were making progress through collective bargaining but that was what happened but US college sports lobbied to ensure and they were successful anti-competitive behaviors the illegality of anti-competitive behaviors would not apply to the NCAA and as a result they got themselves through even though there was a congressional work done and laws passed they got themselves a free pass so there's an enormous official power out there that tries to protect these regimes and sometimes there's a core of legitimacy to nearly all of the claims but sometimes they get taken way too far and I think that's the case with the NCAA there are lots of abuses and ways in which athletes are really disadvantaged by the college system and a sort of a collusion between them and professional sports to protect each other's interests one of the problems that I think is a bit identified in the early part is that there's a certain love of sports and a certain nostalgic maybe childlike way in which we think about it that is not too close to it's not all that close to the actual reality but many of us are lured into that conception of it I put myself in that category I have a friend who used to be a lawyer for the Toronto Maple Leafs and there was a big debate going on about whether the Phoenix hockey team should be allowed to leave Phoenix and relocate in Hamilton prominent business guy in Ontario Jim Balsilli with research in motion I think a somewhat aggravating character but nevertheless a guy who had lots of money was willing to buy the team at its full price and move it I'm talking to my friend the Toronto Maple Leafs lawyer but maybe that would be good for hockey and maybe make the Toronto Maple Leafs have to become a decent hockey team and all the rest of it and he just said absolutely not we own Hamilton we own Hamilton and I have this picture of the major hockey franchises seeing the map of North America in a certain way kind of carved up and there is a veto in the national hockey league constitution that nobody can establish a franchise or play any hockey games within 50 miles of the edge of the metropolitan area of your city and that's his argument we own Hamilton nobody can go to Hamilton without our say so and it reminded me that actually the national hockey league owners are not that interested in how I understand hockey or how you understand hockey they are interested how they understand hockey which is through being owners of businesses that maybe make money maybe don't but the value of their franchises grows and we are a sort of a secondary concern except when it comes to selling us tickets and paraphernalia so in some ways we are our own enemies with respect to that how many of us if you are interested in hockey we are annoyed with or maybe bitterly annoyed with the way in which the national hockey league and the players disregarded hockey for their own interests in a almost it feels like unnecessary drawn out bargaining exercise and then on Monday what you see is record numbers of people watch hockey on the weekend we forgave them in a minute I didn't myself watch I'm going to not forgive them for a couple weeks but we are we succumb to that fondness and as a result it's hard to impose a discipline and to be honest my sense of reading some of these cases is that the judges mostly men lots of them type A personalities probably athletes themselves have also got that almost romantic conception of sport and they cut the sports world a lot of slack that's my sense of it it's not easy to address this I raised this with what Mr. McMurtry did with two very prominent judges in Ontario and they said are you nuts? a politician who did that would be voted out of office in a minute so and I thought they were some of my most thoughtful fair-minded friends and their advice was that that's politically unwise other thoughts questions anxieties yeah at the beginning of your lecture in the list of identities do you think it's reasonable to add another stage being a citizen of a planet or this biological species of human beings for example who is a culture who is a nation you know Bremen? well the same world runs 1,000 metres I forget the keys of different race I forget the keys from Germany I'm just so proud that I'm also in this I'm only two seconds behind I think it's a very good point in the sense that at the core we're probably fans of excellence and achievement but in the nature of competition we often divide up to compete with each other and lots of good things come from that the patriotism that arises around the Olympics and often in a good way I spent some time in Vancouver during the 2010 Olympics it was a joyous place to be but there are lots of bad things too and in some ways taking us past those different dimensions of identity to a richer pure one is attractive because it can maybe cause a lot of the problematic features to fall away if you think about the people who support soccer teams in Britain and the kind of behaviour that they engage in somehow in their minds justified by support for a particular often not very good soccer team is bizarre and very unhealthy so the riots in Vancouver some of that is a noticeable downside to the ways in which people connect with certain kinds of identity I'm sympathetic to all the points you made on the examples you give though quite frankly often we're more interested in our team winning than admiring the great beauty and achievement of others other questions thoughts yeah I think your opinion on Lance Armstrong obviously it was not as surprising but are laws that responsive to media hype and public outcry or do you think it's more impervious than that and anti-doping laws will stay where they are or get more stringent I think there will be continued efforts to try to keep them or make them as stringent as possible the influence of the anti-doping agency is I think quite powerful the interesting questions about Armstrong I think are I haven't followed the exact timing but I understand that in certain ways he made his confession after some of the limitation periods for him had expired but generally what happens is with athletes who admit that they were engaged in doping they might get stripped of their medals and all the rest of it it's probably not a crime what they did all kinds of other dominoes that get knocked over because there are issues about perjury in the context in which they denied taking drugs previously there are issues in relation to obstruction of justice in criminal investigations and often civil lawsuits that will get brought I understand that Armstrong settled for some amount of money in defamation proceedings against people that like it's pretty dishonorable to have brought and accepted a settlement for defamation that you knew in your heart was no defamation at all so that I think there are a whole series of knock on legal consequences to which he is absolutely justifiably ought to be held accountable the testing the athletes who are using performance enhancing drugs are with the help of doctors and I guess pharmaceutical companies managing to try their best to stay one step ahead of the measurement and maybe it will always be like that I don't know enough about the science Adrian but I think it has probably reinvigorated the people who are trying to measure and catch what they regard as cheaters in terms of use of drugs so I think one of the upsides is this does seem to work but I'm rooting out basically illegality and unfairness in the performance of these elite sports I'm kind of happy about that In the juniors there was a very hard hit and not being a force band it was a very hard hit which in the rules it was fair it was a head on collision and I think slow back player hit by a larger player than the Canadian team which is devastating to the human quality if you're not prepared for it and in the rules the Canadian rules had a fair hit and they gave him a penalty for it afterwards because it looked so bad and clearly he knew he wasn't looking so the intentionality there is there for the player to hit the slow back player he knew what was going to happen if there is a circumstance where the hit was so hard that they slow back player the past wave into a coma and was taken off ice court and was later killed would you think in your opinion because of the circumstance that player may be held for at least say national order? Well the test is actually whether it can fit into the criminal context at all and if it does then there are different gradients of what you might regard this to be a crime of but the real question is and this is a challenge maybe that contact would happen 100 times and 99 times the player might be uninjured or injured but not in a catastrophic way that you describe and one of the challenges is to measure should you measure on the basis of the consequences of this particular outcome by and large the criminal law if there is consent and the effects are as adverse as that that doesn't necessarily generate a criminal sanction but my own sense is that we have allowed some of these sports to go too far in their interpretations of a consent as these sports have gotten more and more violent the players are enormously larger than they used to be they are enormously faster and we have watched hockey games from the 1950s and 60s it's part of my nostalgia thing and it's a different hockey is a different sport than it is now than what it was then and as a result all kinds of these players are way more vulnerable and we ought to be thinking about a more generic way of addressing that in terms of the rules of the sports and maybe the rules of law that get applied but it's awfully difficult to say that that action wasn't an assault if the player wasn't hurt very badly but it is now an assault if they were hurt badly because the measure of it being or not being assault revolves around consent and whether the behavior was impliedly consented to by the player I think it's problematic my own observation is that hockey has gotten to be vicious I think in the ways in which we've allowed fairly high levels of violence that could be managed within the rules and should be managed within the rules I don't have a complete answer to your question just a sense I guess I think to put your finger on the problem at the very end which is that the players are fairly vulnerable in these respects they have short careers the the owners and the teams know that there's value to be gotten out of these players and they're not as sympathetic as they ought to be if I were to guess at the one thing that might make a big change I think it's important that the players know that there's value to be gotten out of these players they're not as sympathetic as they ought to be my guess at the one thing that might make a big change here is that there's a class action suit launched against the national football league by I think 75 retired football players who are suffering post-athletic trauma from the kinds of injuries they experienced and a big award would smarten up the national football league a lot and maybe other sports as well but the incentives on the part of the players and the teams and the owners to get back on the field are overwhelming my sense is that that little partnership isn't going to solve the problem it will require something essentially from the outside and maybe it sees retired players litigation it would be one of the very good chastening and behavior of change effects that tort law could generate for professional sports and I don't know all the details there's another interesting possibility and it probably is the case that sports teams have not fully appreciated these consequences and I know that Ken Dryden who you saw pictured here has been championing these questions in the media and has an arrangement with Mr. Bettman and Mr. Fair the commissioner of the national hockey league and the executive director of the players association that once they got their strike lock out things behind them they had agreed to hold a high level conference on particularly head injuries and sports and it could be that science will smarten up both the players and the owners to begin to think about this in more constructive ways and moderate the rules and put in place protocols that they will actually honor to protect players from sometimes being their own worst enemies here you've likely seen some clippings where there's supposed to be some protocols in place now but players who have been carried off the field clearly have been knocked unconscious in football are back on in a couple of plays completely against the protocol players willing thinks he's indispensable to the team and that's basically why he gets paid so much and the owners are kind of the managers are keen to get the player back on because winning is as Vince Labardi used to say the only thing and you see them basically constantly violating the protocols that they put in place ops out of the playing or doesn't play because of new rules like the San Francisco 49 to quarterback Alex Smith who it looks like may have lost his job suffering and professional and the NFL seems to be pretty sad in the fact that that seems to be pretty obvious and protecting itself and part of it is because the league won't interfere with what they regard as team decisions on who's better and who's worse and the only people and in fact you'd like to see this filter through the system better are the only people who can stand up for their own health are the absolute best athletes and Sydney Crosby being an example I don't think you ever heard maybe there were some players who thought Crosby get your ass back on the ice kind of thing but the whole league and pretty much the whole sports community was uncritical of him taking the time he needed in his judgment and his doctor's judgment to recover from the concussions he experienced but there's almost no other athlete you can identify who was given that level of tolerance in terms of his return to health and for a lot of them the financial pressures are enormous to risk their health in some ways we pay them so much money that we've made it harder for them to take a time out to recover and the vulnerability of the loss of those large amounts of income has been made more significant by their salary level it's not really a very good argument to say we want you all to take a lot less money but it is a kind of a reality of the finances of these sports enterprises and the value of winning for the teams anyway maybe something will come out of this high level conference it's supposed to look at a variety of things medical the players experience who have been retired protocols and leagues and the like and one could hope for progress there I think and on that sense I think we should progress home thanks very much for coming I've really enjoyed it and I hope it's been moderately interesting for you