RECENT DEVELOPMENTS in CANADIAN SPORTS LAW John Barnes*

Home , 1983 Pan American Games, Abby Hoffman, Alan Eagleson, Bruce McNall, Dino Ciccarelli, Harold Ballard

RECENT DEVELOPMENTS IN CANADIAN SPORTS LAW John Barnes*

This review considers legal and policy Cette itude examine des ivinements developments during a turbulent survenus sur le plan juridique et poli- period in Canadian sport. The years tique pendant une piriode agitie de 1988 to 1991 brought the disqualifica- l'histoire du sport canadien. De 1988 tion of Ben Johnson at the Seoul Olym- a 1991, il y a eu la disqualificationde pics, the Dubin Inquiry and Report, a Ben Johnson aux Jeux olympiques de new anti-doping program and a Sjoul, la Commission d'enqu~te et le general debate over the role of govern- rapport Dubin, un nouveau programme ment in sports organization. The antidopage ainsi qu'un ddbat gingral review presents a sceptical account of sur le role du gouvernement dans l'or- doping control which is placed in the ganisationdes sports. L'auteurfait un context of the discreditedpunitive war compte rendu critique sur le contr6le on drugs. The review also notes recent du dopage, lequel est situg dans le case law and other developments in contexte de la guerre punitive contre athletes' rights, liability for sports les drogues qui a jtj discriditde.L'au- injuries and commercial and employ- teur traite aussi de la jurisprudence ment relations in professional sport. ricente et d'autresfaitsnouveaux dans The discussion of sports violence les domaines des droits des athletes, de focuses on the implications of the deci- la responsabiliticoncernant les bles- sion of the Supreme Court of Canada sures subies en pratiquant un sport et in R. v. Jobidon. Besides the names of des relations d'affaires et de travail Johnson and Dubin, the reader will dans le milieu du sport professionnel. find the article sprinkled with other La discussion de la violence dans les famous Canadian sport figures, sports porte principalement sur les including Alan Eagleson, Wayne consiquences de la decision rendue Gretzky, Eric Lindros, Dino Ciccarelli, par la Cour supreme dans l'affaire R. Abby Hoffman, Charlie Francis,Jamie c. Jobidon. En plus de Johnson et Du- Astaphan, Lyle Makosky and Donald bin, le lecteur ou la lectrice constatera Crump. que l'article est imailli d'autres noms de personnalitis du monde du sport canadien dont Alan Eagleson, Wayne Gretzky, Eric Lindros, Dino Ciccarelli, Abby Hoffman, CharlieFrancis, Jamie Astaphan, Lyle Makosky et Donald Crump.

* Adjunct Professor, School of Human Kinetics, University of Ottawa. Many people kindly assisted in this survey by referring me to sources and commenting on earlier drafts. In particular I thank Line Beauchesne, Patrick Fitzgerald, Victor Lachance, Gilles Ldtourneau, Edward Molstad, Joseph de Pencier, Richard Pound, Eric Single, Jan Skirrow and Linda Wheeler.

1991] Sports Law

I. INTRODUCTION AND RECENT PUBLICATIONS ...... 627

II. FEDERAL PROGRAMS AND POLICIES ...... 629 A. Introduction ...... 629 B. Toward 2000 ...... 630 C. The Dubin Report ...... 633 D. The ParliamentarySub-Committee ...... 635 E. Responses and Discussion ...... 636

III. DOPING CONTROLS AND DRUG TESTING ...... 638 A. Evolution of Controls in CanadianSport ...... 638 B. The Uneasy Case for the War on Drugs ...... 642 1. The Wider War ...... 642 2. Drugs in Sport ...... 645 C. Legal and ConstitutionalAspects ...... 649 1. Authority in the Organization...... 650 2. Definitions of Doping Prohibitions...... 652 3. The Right to Privacy ...... 653 4. The Application of the Canadian Charter of Rights and Freedoms ...... 655 5. ProceduralRights ...... 658 D. Ben Johnson and the Dubin Report ...... 659 1. Fairness in Seoul ...... 659 2. Inquiry and Report ...... 663 3. The ParliamentarySub-Committee ...... 666 4. Government Response and New Controls ...... 666 E. Discussion ...... 671

IV. OUTLINE OF OTHER DEVELOPMENTS ...... 674 A. Rights of Amateur Athletes ...... 674 1. General ...... 674 2. Recent Reports ...... 675 3. Cases on Equality Rights ...... 676 4. Selection and Discipline ...... 678 626 Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

B. Violence - Consent in Criminal Assault ...... 680 C. Civil Liability ...... 689 D. ProfessionalSport ...... 694 1. Commercial Aspects ...... 694 2. Player Restraints and the Competition Act ...... 698 3. Collective Bargainingand Players' Associations...... 700 4. ContractualIssues ...... 703 5. Drug Programs and Discipline...... 704

V. CONCLUSION ...... 705 1991] Sports Law

In some circles he had the nickname "Charlie the Chemist".'

I. INTRODUCTION AND RECENT PUBLICATIONS

This survey updates developments in Canadian sports law since the publication of the second edition of Sports and the Law in Canada.2 That edition preceded by a few months the numbing incident which has cast a shadow over sport in Canada ever since. Almost four years after the harrowing press conference in Seoul, we are still working out how Ben Johnson's disqualification will affect the country's sports system. Although significant developments have occurred throughout a wide range of sports law, the agenda has been dominated by the war on drugs, the inquiry into the activities of the Johnson entourage and the search for a new vision of the role of Canadian sport. The single most important published source in the period under 3 review is, therefore, the report by the Honourable Charles L. Dubin following the hearings and inquiry to investigate alleged drug use by Canadian athletes at and before the Seoul Olympics. Much of the same ground is covered from a quite different perspective by Johnson's coach Charlie Francis in SPEED TRAP 4. Another significant document is the Towards 20005 task force report of 1988, which suggested goals and priorities for government sports policy in the period just before the Johnson disqualification. The potential impact of the Dubin Inquiry was considered in papers presented at a conference at Queen's University in September 1990,6 and directions for the official response to Dubin have 7 been explored in a number of government documents. Recent general accounts of Canadian sports law include a revised Sports Law section in the CANADIAN ENCYCLOPEDIC DIGEST, 8 the proceedings of a continuing legal education program 9 and the proceedings of a

I Canada, Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance (Ottawa: Minister of Supply and Ser- vices, 1990) at 241 (Commissioner: C.L. Dubin) [hereinafter Dubin Report]. 2 J. Barnes, SPORTS AND THE LAW IN CANADA, 2d ed. (Toronto: Butterworths, 1988) [hereinafter BARNES]. For reviews see: C.N. Swayze, (1989) 46 THE ADVOCATE 955; M. Holman, (1989) 55:4 CAHPER J. 47; B. Markel, (1989) 53 SASK. L. REV. 181; G.T. Tallon, (1989) 18 MAN. L.J. 274. 3 Supra, note 1. 4 C. Francis & J. Coplon, SPEED TRAP; INSIDE THEBIGGEST SCANDAL IN OLYMPIC HISTORY (Toronto: Lester & Orpen Dennys, 1990) [hereinafter SPEED TRAP]. 5 Towards 2000: Building Canada's Sport System (Ottawa: Government of Canada, August 1988) [hereinafter Toward 2000]. 6 AFTER THE DUBIN INQUIRY: IMPLICATIONS FOR CANADA'S HIGH PERFORMANCE SPORT SYSTEM (Kingston: Sport and Leisure Studies Research Group, 1990) [unpub- lished; forthcoming] [hereinafter AFTER DUBIN]. 7 See infra, Parts II, D-E, and III, D, 3-4. 8 (Ontario 3rd), Vol. 31, Title 135.1, Sports (May 1989); (Western, 3rd), Vol. 32, Title 136.1, Sports Law (May 1989). 9 M.J. Steven (Course Co-ordinator), SPORTS AND THE LAW (Vancouver: Con- tinuing Legal Education Society of British Columbia, April 1989) [hereinafter Steven]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 conference on the business of sport. 0 Two publications by the Fair Play Commission review the literature on sports violence, I I and the future of minor hockey in Quebec was considered in the Therien Report.12 The anxiety over sports injuries and risk management has led to the publication of a number of general guides to civil liability.13 Professional hockey is dealt with in R. Heinz's guide to a professional career 14 and in investigative and autobiographical works on the life and times of R. Alan Eagleson. 15 Two important new academic texts address sociolog- 16 ical and policy issues in Canadian sport. Articles in law journals include studies of sports violence by Ltourneau 17 and Watson, 18 studies of civil liability for sports injuries

10 THE BUSINESS OF SPORTS IN CANADA; CAPITALIZING ON OPPORTUNITIES IN A DYNAMIC INDUSTRY (Toronto: The Canadian Institute, May 1989) [hereinafter CAP- ITALIZINGI. 11 M.D. Smith, VIOLENCE IN CANADIAN AMATEUR SPORT: A REVIEW OF LITER- ATURE (Ottawa: Government of Canada, Commission for Fair Play, August 1987); M.D. Smith & K.M. Young, VIOLENCE IN CANADIAN AMATEUR SPORT; AN ANNOTATED BIBLIOGRAPHY (Ottawa: Government of Canada, Commission for Fair Play, August 1987). See also J. Barnes, Two Cases of Hockey Homicide; The Crisis of a Moral Ideal (Paper presented at the 1990 proceedings of the North American Society for Sport History, Banff, Alberta), summarized in 1990 NASSH Proceedingsand News- letter 75. 12 Vers un diveloppement harmonieux du hockey au Quebec (Rapport Th6rien), Rapport final du groupe de travail sur le hockey mineur au Quibec (Gouvernement du Qu6bec, Loisir, Chasse et Pche, juin 1989). See also Groupe de travail sur le hockey mineur, Rapport priliminaire(Gouvernement du Qudbec, 1988); Le diveloppement du hockey mineur au Qudbec : Plan d'action gouver- nemental (Gouvernement du Qudbec, 20 avril 1990). 13 B.W. Robertson & B.J. Robertson, SPORT AND RECREATION LIABILITY AND You! FOR PARENTS, COACHES AND SPORT ORGANIZERS (Vancouver: Self Counsel Press, 1988); LEGAL LIABILITY; CONSIDERATIONS FOR THE FITNESS LEADER, REPORT OF THE NATIONAL FITNESS ADVISORY COMMITTEE (Fitness Canada, Government of Canada, 1989); GUIDE EN RESPONSABILITt CIVILE D LICTUELLE (Gouvernement du Quebec, Service juridique, R6gie de la securit6 dans les sports du Qu6bec, f6vrier 1990). 14 R. Heinz, MANY ARE CALLED...FEw ARE SIGNED; HARD REALITIES OF PROFES- SIONAL HOCKEY (Toronto: J.N.R. Heinz Group Ltd, 1988). 15 A. Eagleson & S. Young, POWERPLAY: THE MEMOIRS OF HOCKEY CZAR ALAN EAGLESON (Toronto: McClelland & Stewart Inc., 1991) [hereinafter Eagleson & Young]; D. Cruise & A. Griffiths, NET WORTH; EXPLODING THE MYTHS OF PRO HOCKEY (Toronto: Viking, 1991) [hereinafter Cruise & Griffiths]. For an earlier account see D. Clayton, THE LIFE AND TIMES OF R. ALAN EAGLESON (Toronto: Lester & Orpen Dennys, 1982). 16 J. Harvey & H. Cantelon, NOT JUST A GAME; ESSAYS IN CANADIAN SPORT SOCIOLOGY (Ottawa: University of Ottawa Press, 1990); A. Hall et aL, SPORT IN CANADIAN SOCIETY (Toronto: McClelland & Stewart, 1991) [hereinafter CANADIAN SOCIETY]. 17 G. L6tourneau, Problimatique de la violence dans les loisirs et moyens d'action corrective et priventive: l'exprience quibecoise et canadienne (1989) 19 R.G.D. 653. 18 R.C. Watson, Athletes Beware: Legal Reasons to Play Fair (1991) 3 EDUC. & L.J. 167 [hereinafter Watson]. 1991] Sports Law

9 20 a comment on the Blainey21 case by Vella 22 by Blaxland' and Kligman, 2 3 and an analysis of the legal aspects of drug testing by Trossman. Besides the published studies, there have been interesting developments in case law and legislation and in commercial and employment contracts in professional sport. The period under review is, however, most notable for the way that sports institutions became the focus of public scrutiny and debate. The Dubin Inquiry served as more than a search to find out who took which potion: it prompted basic rethinking about the purpose of publicly organized and funded sports programs. In particular, it brought into question the structure of sports organizations, the role of the federal government and the future direction of Canadian policy towards amateur and high performance sport.

II. FEDERAL PROGRAMS AND POLICIES

A. Introduction

24 Federal government programs in support of sports and fitness operate under the authority of the Fitness and Amateur Sport Act of 196125 which creates the National Advisory Council on Fitness and Amateur Sport and authorizes the Minister of National Health and Welfare "to encourage, promote and develop fitness and amateur sport in Canada". 26 The office of Minister of State for Fitness and Amateur Sport dates from 1976 (and has become well-known for the rapid turnover in its portfolio holders27). Fitness and Amateur Sport operates

19 M. Blaxland, The Assessment of Liability in Ski Injury Actions - Recent British Columbia Decisions (1988) 46 ADVOCATE 25 20 R.D. Kligman, Tort Liability for Sports Injuries (1989) 1 C.I.L. REV. 153. 21 Blainey v. Ont. Hockey Assn (1985), 52 O.R. (2d) 225 (H.C.), rev'd (1986), 54 O.R. (2d) 513, 26 D.L.R. (4th) 728 (C.A.) [hereinafter Blainey]. 22 S. Vella, Re Blainey and Ontario Hockey Association: Removal of 'No Females Allowed' Signs in Ontario (1989-90) 3 C.J.W.L. 634. 23 J. Trossman, Mandatory Drug Testing in Sports: The Law in Canada (1988) 47 U.T. FAC. L. REV. 191 [hereinafter Mandatory Drug Testing]. 24 See Barnes, supra note 2, pp. 7-48; Dubin Report, supra, note 1 at p. 3-65; D. Macintosh, T. Bedecki & C.E.S. Franks, SPORT AND POLITICS IN CANADA; FEDERAL GOVERNMENT INVOLVEMENT SINCE 1961 (Kingston: McGill-Queen' s University Press, 1987); D. Macintosh & D. Whitson, The Game Planners: Transforming Canada's Sport System (Montreal: McGill-Queen's University Press, 1990) [hereinafter THE GAME PLANNERS]. 25 R.S.C. 1985, c. F-25. 26 Ibid., s. 3. 27 Otto Jelinek held the position for an unusually long period from September 1984 to April 1988. His successor, Jean Charest, was forced to resign on January 25, 1990 following the disclosure that he had telephoned a judge hearing Daniel St. Hilaire's application to be selected as a coach on the Canadian track and field team at the Commonwealth Games in Auckland (See St. Hilaire c. Assn canadienne d'athlitisme, [1990] A.Q. No. 42 (C.A.). See further, Part IV, A, 4 infra). Marcel Danis then held the portfolio until April 1991, when he was succeeded by Pierre Cadieux. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 through three major program directorates: Sport Canada, Fitness Canada and International Relations. These programs provide funding and policy leadership to national sport and fitness organizations; in 1989-90 Sport and Fitness Canada made Canada made contributions of $55,580,000 28 contributions of $8,458.000 to sporting activities. Sport Canada deals with 85 national sport organizations (NSOs) and is particularly committed to promoting achievement by Canadian athletes in national and international competitions. Sport Canada's Athlete Assistance Program provides grants or allowances to top-ranked (or "carded") amateur athletes to help defray living, tuition and training costs. The system of substantial federal funding of arms-length, national early 1970s organizations dates from administrative changes in the 29 which followed The Report of the Task Force on Sportfor Canadians. The main national organizations first operated from the National Sport to the new facilities and Recreation Centre and in January 1989 moved 30 at the Canadian Sport and Fitness Administration Centre.

B. Toward 2000

In February 1987, the Minister of State for Fitness and Amateur Sport commissioned a new task force study by a group of 17 experienced sports figures under co-chairs Lyle Makosky, Assistant Deputy Minister, and Abby Hoffman, Director General of Sport Canada. The report, 3 Toward 2000, 1 was released in August 1988 and graphically reveals the value system that prevailed in sports policy development prior to the Seoul Olympics. The most noticeable feature of Toward 2000 is its lum- bering verbosity: Canadian sport is analyzed in the convoluted abstrac- tions of business planning, bureaucratic administration and systems theory. The following is a sample:

When one speaks of the Canadian sport system in a holistic sense, one speaks of a number of system elements which are driven by the sport specific athlete development models and systems of sport organizations ....Because of its aggregating role, the federal government has been in a position to play, to some degree, an integrating role among the various elements of the sport system....Shared leadership refers to the shared role and balance of power and authority that should be both understood and demonstrated among the leading sport agencies at the national level, both governmental and non-governmental, in the process

28 Fitness and Amateur Sport, Annual Report, 1989-1990 (Ottawa: Minister of Supply and Services Canada, 1991) at 29. Under the Athlete Assistance Program, 832 athletes received a total of $4,070,000 in allowances; the monthly allowance for "A" card athletes (ranked in the top 8 in the world) is $650: ibid. at 21. 29 Report of the Task Force on Sport for Canadians (Ottawa: Department of National Health and Welfare, 1969). 30 The new centre is located at 1600 James Naismith Drive, Gloucester, Ontario, KIB 5N4. 31 Supra, note 5. The Minister notes, diplomatically, that Toward 2000 "has encouraged the expression of frank opinions": see Fitness and Amateur Sport, Annual Report, 1988-1989 (Ottawa: Minister of Supply and Services, 1989) at 5. 1991] Sports Law

of proposing and implementing the National Goals and Priorities 32 for Sport.

The report is clearly a jargonistic discourse on the management objectives of the corporate activity of high-performance sport. In Toward 2000 sport is rarely projected as a moral or educational activity. Before Seoul and in the general spirit of the 1980s, sport was a matter of system setting, financial planning and goal achievement. Toward 2000 identifies the NSOs as the "key agencies for sport development in Canada".33 The federal government, meanwhile, "must continue to provide significant leadership, policy direction and substantial funding to sport at the national level".34 The report proposes that by 1996 government should contribute $120 million a year, but also confirms a long-standing policy that NSOs generate at least half of their funding from private and corporate sources.35 Toward 2000 sets eight "National Goals for Sport":

I. To establish a coherent Canadian Sport System for athlete development and participation based on sport specific models and systems in which all roles, responsibilities and linkages are clearly understood and accepted (The Sport System in Canada).

2. To develop a Canadian Sport System which will provide opportunities to enable athletes with talent and dedication to win at the highest level of international competition (High Performance Sport).

3. To encourage the development of an integrated community-based sport system within the national framework which will provide an increased range and quality of competitive opportunities for all levels of participants and which will utilize as one of the primary delivery mechanisms the sport club (Domestic Sport).

4. To enable Canada to maintain a high level of success and visibility in international sport circles, both governmental and non-governmental, and to ensure that Canada provides leadership in the international sport community at least concomitant with its current record of international success (InternationalSport Leadership).

5. To ensure that athletes central to the achievement of Canada's high performance objectives will be financially supported on a combined need-reward basis and that this support will be available through public subsidies, private sector sponsorship, prize money and/or income from employment as athletes (The Status of the High Performance Athlete).

32 Toward 2000, supra, note 5 at 20-21. A "translation" might read: "Canada's sport system includes bodies that run just one sport. Government can co-ordinate these and ought to share power with them". 33 Ibid. at 21. 34 Ibid. 35 Ibid. at 48-49. Toward 2000 at 49 gives the current ratio of government to non-government funding as 58:42. The Dubin Report, supra, note 1 at 29 gives it as 56:44. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

6. To ensure that sport is articulated, recognized and valued as an integral part of Canadian culture and as a cultural form (Sport as a Component of Canadian Culture).

7. To secure the level of funding required by the sport system and specific sport programs to achieve the National Goals for Sport (Financing of Sport).

8. To ensure that there is strong, coordinated leadership for sport at the national level within and among the governmental and non-governmental sectors of the Canadian Sport System (Leadership and Link- 36 ages).

Many of these goals reflect well-established features of the current system of support for amateur sport, but the policy of promoting sport as a unifying cultural form perhaps reflects a new approach. This policy requires that national teams gain greater public exposure and requires that important achievements by Canadian athletes be recognized in 37 school curricula and in all forms of communication media. Many recommendations in Toward 2000 are concerned with improving results in international competition, and the report sets the following goals for the country's high performance athletes:

a) To have Canada place among the three leading Western sporting nations (with West Germany and the USA) and to rank among the top 6-8 nations overall....in the 1992 Summer Olympic Games in Barcelona.

b) To place among the top 6 nations in the 1992 Winter Olympic Games in Albertville. c) To have Canadian athletes win medals in 18 of 28 summer Olympic sports and 6 of 10 winter Olympic sports in 1992.

d) To place first as a nation in the 1990 Commonwealth Games.

e) To maintain Canada's current world ranking in non-Olympic sports and disabled sports.

f) To develop performance objectives for major non-Olympic events on 38 a sport-by-sport basis.

The report also endorses Sport Canada's criteria for recognizing sport organizations and determining their funding level. The "sport recognition system" is based on the number of participants and the results achieved at major international competitions, with priority given to 39 Olympic sports.

36 Toward 2000, ibid. at 77-78. 37 Ibid. at 45-47, 57, 61. 38 Ibid. at 36. Canada finished ninth at the Albertville Winter Olympics in 1992 and third at the 1990 Commonwealth Games in Auckland behind Australia and England. 39 Ibid. at 73-74. 1991] Sports Law

The Task Force report includes useful recommendations for revi- sion of the Fitness and Amateur Sport Act,40 noting that "the Act is outdated in that several of the structures and processes that are reflected in it are either not in use or have been significantly altered, and the values, benefits and contribution of sport are not adequately expressed". 41 The Task Force suggests that the Act recite the social values associated with sport and explicitly recognize the NSOs "as the key agencies for the development, promotion and governance of their respective sports". 42 The report proposes the removal of the outdated National Advisory Council and the establishment of a Consultative Council on National Sport consisting of respected sports experts. It also calls for a contemporary definition of sport. The regulations made under the current Act define amateur sport as "any athletic activity when engaged in solely for recreation, fitness or pleasure and not as a means of livelihood". 43 Under this definition, it is quite arguable that for years there has been no legislative authority for programs supporting those high-performance sports in which athletes are able to generate income. One month after its release, Toward 2000 entered a state of suspended animation when Ben Johnson was disqualified in Seoul. The Dubin Inquiry then prompted a fresh look at national sports policies. In April 1989, Sports Minister Jean Charest, "facing an overflow crowd of 300 nervous national sport executives and employees" ' 44 at the Canadian Sport and Fitness Administration Centre, announced that the proposals in Toward 2000 would not be considered until Mr Justice Dubin had reported:

The recommendations of the Dubin Inquiry may have far reaching effects on the way we do business....We will therefore suspend policy development and funding for any of the recommendations in the task force report. We will not make any changes in either the high performance programming or our carding system for athletes until Mr. Justice Dubin's report is in. It is my belief that real challenges for our community lie in the two years ahead.45

C. The Dubin Report

The Dubin Report46 of June 1990 duly contained many proposals for changes in federal programs; indeed, the Report offers a vision of the government mandate that is quite at odds with recent policies. Mr Justice Dubin first takes issue with the suggestion that government exercises no regulatory authority over NSOs or national teams:

40 Supra, note 25. 41 Toward 2000, supra, note 5 at 69. 42 Ibid. 43 Fitness and Amateur Sport Regulations, C.R.C. 1978, c. 868, s. 2. 44 M. Cleary, "Budget goes easy on sport" The Ottawa Citizen (29 April 1989) Fl. 45 J.J. Charest, Remarks (Canadian Sport and Fitness Administration Centre, 28 April 1989) at 9-10. 46 Supra, note 1. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

In principle, Mr. Makosky is correct in stating that the role of the federal government is restricted to financial contribution. In practice, however, federal funding props up47 the entire system, and so its role appears to be much more significant.

Dubin J. (as he then was) notes that Sport Canada programs mainly serve to develop high performance athletics and notes that the goals set in Toward 2000 further emphasize this role:

.... the thrust of the report of the 1988 task force stresses government funding for the winning of medals primarily in major and international

competition and uses that focus as one of the principal criteria48 for the determination of the level of future government funding.

Mr Justice Dubin sees drug use by athletes as the inevitable by-product of a system that stresses the pursuit of Olympic gold: "As a society we have created a climate in sport in which the only good is perceived to be winning and the manner of doing so of no consequence. Only the winner is accorded praise and financial reward .... ,,49 He therefore recommends a shift towards policies promoting greater popular involvement in sport and recognizing the value of the pursuit of personal excellence. The first recommendation in the Dubin Report is that government funding be based on the principles of "broad participation in sport, not solely a focus on elite sport [and] access to sport programs by all Canadians". 50 He further recommends that those who receive federal funds meet the required "ethical standards as well as the perfor- 1 mance standards".5 Dubin J. criticizes the degree of government involvement in the operations of NSOs and the "management by objective" style of administration and recommends that government consider "the creation of a mechanism to ensure that .... an arm's-length relationship is maintained between government and the sport-governing bodies". 52 He maintains that "Canada is unique among Western nations in having government control so closely the ordinary functions of sport"53 and, without making an express recommendation, considers the advisability of an independent body responsible for "administering the funding and supervising the 54 development of sport in Canada as the Sport Council does in Britain".

47 Ibid. at 27. 48 Ibid. at 52. 49 Ibid. at 518. 50 Ibid. at 527 (see Recommendation 1). 51 Ibid. (Recommendation 3(a)). 52 Ibid. at 531 (Recommendation 5(a)). 53 Ibid. at 530-31. 54 Ibid. at 531. 1991] Sports Law

D. The ParliamentarySub-Committee

During 1989 and 1990, the House of Commons Sub-Committee on Fitness and Amateur Sport, chaired by John Cole, M.P., held hearings to consider the recommendations in Toward 2000 and the Dubin Report. In its report, Amateur Sport: Future Challenges,55 issued in December 1990, the Committee suggests reforms to the sport administration system that would enhance the independence of the main players. It also explores the need for a co-ordinated national, rather than federal, policy and recommends the creation of a standing parliamentary committee and the amendment of the Fitness and Amateur Sport Act.56 The Committee recognizes both excelling and winning as worthwhile philosophies of sport. It recommends that "the pursuit of excellence be encouraged at all levels"' 57 and that each NSO be free to determine the importance it places on the pursuit of medals. The Com- mittee endorses the Task Force's Consultative Council on National Sport as a means of sharing leadership in directing sport, but notes that there must also be "a substantive change to the mandate and authority of Sport Canada".5 8 The report echoes Dubin J. in recommending "that the federal government take a less active role in daily sports operations and that NSOs be given that autonomy to manage the public resources allocated to them". 59 The committee then goes beyond Mr Justice Dubin in expressly recommending the establishment of a Canadian Sports Council, provided it does not become merely another layer of bureau- cracy. 60 The function of the Council would be to decide on the allocation of federal funds according to "participation, performance need, administrative abilities, public perception and, as suggested in the Dubin Report, accessibility of programs to the broader community, anti-doping policies, and the organization's record in encouraging participation by 61 women, minorities, disabled and the disadvantaged".

55 Amateur Sport: Future Challenges, Second Report of the Standing Com- mittee on Health and Welfare, Social Affairs, Seniors, and the Status of Women (Bob Porter, M.P., chairman), (John Cole, M.P., chairman, Sub-Committee on Fitness and Amateur Sport) (December 1990) [hereinafter Amateur Sport: Future Challenges]. 56 See ibid. at 34-37 (Recommendations 38-40). 57 Ibid. at 8 (Recommendation 2). 58 Ibid. at 18 (Recommendations 16-17). 59 Ibid. at 28 (Recommenation 25). 60 Ibid. at 28-29 (Recommendation 26). At 28 the Committee explains that the "British Sports Council receives grant from the central government and raises money from non-governmental sources. It seeks to obtain sponsorship to support its programs, undertakes commercial activities such as publishing and generates income by running its own national centres. It offers support to sport-governing bodies in order to enable them to develop excellence programs, improve the standards and scope of coaching, compete internationally and provide facilities and equipment." 61 Ibid. at 28. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

E. Responses and Discussion

The proposals in the three reports illustrate sport's complexity and its capacity to carry varied political and moral baggage. Different stake- holders look to sport to realize a variety of goals. As noted by the Parliamentary Sub-Committee,

For some, sport leads to excellence through the encouragement of a sports elite. Others consider sport as a means of improving health and fitness and favour mass participation in sports and recreational activities by the population as a whole. Still others look for personal prestige and pride and for national unity, through sports success. Finally, some see sport as a source of personal profit.62

The debate over future policy is a struggle to adopt one or more of the competing visions of the nature and uses of sport and the role of government. These general policy questions will be addressed in the final phase of the federal government's announced three-phase response to the Dubin Report.63 This third phase will consider the place of sport in society, ethical issues, the role of NSOs, the status of the athlete and 64 the role and approach of the federal government. Initial responses to the policy alternatives have focused on changes in governing structures and on the values to be promoted by the sports system. In April 1991, "Sport Forum I", a meeting of NSO managers, considered a discussion paper debating the merits of three "structural options". 65 The first model would retain Sport Canada but improve its relationship with NSOs in matters of consultation, 66 communication and accounting. The second is a shared leadership model in which government sits as a partner, not as the master. The third, most radical, model is based on aid to the arts67 and proposes self-government. This model recognizes the maturity and independence of sports organizations and would see government function solely as an arms-length funding agency; the discussion paper nevertheless recognizes that an elaborate bureau-

62 Ibid. at 1. 63 See infra, Part III, D, 4. 64 Fitness and Amateur Sport, News Release, "Danis Unveils Anti-Doping Strategy" (9 January 1991) 3 [hereinafter News Release]; Appendix G. See now Canada, Sport: The Way Ahead - The Report of the Minister's Task Force on FederalSport Policy (Ottawa: Minister of State for Fitness and Amateur Sport, May 1992) [hereinafter Sport: The Way Ahead]. 65 See Discussion PaperII, Structural Options'; Sport Forum I - Optionsfor the Future (Toronto, 26-28 April 1991). Charlie Francis has proposed a minimal governmental structure: "Sport Canada's work should be handled by one auditor and four secretaries", quoted in J. Christie, "Francis calls for end to sports bureau- cracy" The [Toronto] Globe and Mail (22 March 1991) A14. 66 See also Consultation Between Fitness and Amateur Sport and its Client Organizations, A Report prepared by the Committee on Consultation (Ottawa: Fitness and Amateur Sport, February 1990). 67 Compare Toronto Independent Dance Enterprise v. Canada Council, [1989] 3 F.C. 516, 60 D.L.R. (4th) 503 (T.D.) (refusal to review Canada Council's decision not to renew funding; Council not violating any duty of fairness). 1991] Sports Law cracy may still be needed to administer funding. The quest for a new vision of sport and a new relationship with government continued in 1991 at "Sport Forum II", which was co-ordinated by the Sports October 68 Federation of Canada. The competing views of the values promoted by sport are identified in Values and Ethics in Amateur Sport,69 a study prepared for Fitness and Amateur Sport as a basis for its policy review. This report notes that Sport Canada's concept of sport refers to competition, culture, heroes, international leadership, professionalization, the risk element and successful elite teams. For Fitness Canada, the nature of sport includes health, happiness and playfulness. In the Dubin Report sport includes the apprenticeship for life, character building, chivalry, excellence of effort and moral development. 70 Faced with such an ideological smorgasbord, the study recommends that a "consensus be developed on the moral values the Canadian sport system should foster and implement" .71 The relationship between sport and health is central to the issue of drug controls, and Values and Ethics in Amateur Sport notes that competitive sport is often the occasion for harmful practices: Athletes and educators referred to high performance sport as "blood sport", noting serious injuries and over-training. The promotion of health is not a value stressed in the documents from the NSOs and [Sport Canada]. 72

The review of federal programs and policies must grapple with the function of high-performance sport and Canada's goals in international competition. Improving the health of elite athletes has never had any role in such competitive events, which have more to do with chauvinism, xenophobia and the urge to prove ideological mastery. The Fitness and Amateur Sport Act was first enacted in a Cold War climate, and the review must look to happenings in Eastern Europe and the former Soviet Union as well as those in Seoul: perhaps the public funding of capitalism's warriors is unnecessary now that the Communists have been

68 See Toward A New Sport Vision (Consultation Document, July 1991); See also Pre-Conference Materials including Community Responses (October 1991); Sport Forum II; Report of the Process and Proceedings (5 November 1991). Abby Hoffman, Director General of Sport Canada, was removed from her post just prior to this conference: see J. Christie, "Hoffman loses post" The [Toronto] Globe and Mail (19 October 1991) A18. 69 Values and Ethics in Amateur Sport; Morality, Leadership, Education, prepared for Fitness and Amateur Sport, Government of Canada (London, March 1991) [hereinafter Values and Ethics in Amateur Sport]. 70 Ibid. at 18. 71 Ibid. at 6. 72 Ibid. at 5. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 beaten.73 Eventually the thaw may also occur in Canada. The country may then emerge with a coherent sport system that is less driven and repressive than Sport Canada's recent bureaucratic model. 74 The solution to the "drug problem" forms a vital part of this quest for a renewed and liberated system.

III. DOPING CONTROLS AND DRUG TESTING

A. Evolution of Controls in Canadian Sport

Doping refers to the use of banned substances or practices that enhance athletic performance or impede detection of a prohibited tech- nique enhancing such performance. Doping control operates through a combination of prohibition, mandatory testing and punitive sanctions: the system is one of authoritarian government, underpinned by faith in science. The prohibitions derive from schedules of proscribed practices or classes of substances that are periodically promulgated by sports governing bodies. A doping infraction is essentially "an infraction against the banned list", and the list that is usually' applicable to Canadian athletes is the one prepared by the Medical Commission of the Interna- tional Olympic Committee (IOC).75 Obedience to the list is verified by urinalysis - the laboratory testing of urine samples that athletes are required to give. In IOC-accredited laboratories, the screening usually involves preliminary detection by gas chromatography, followed by mass spectrometry. By "electron bombardment the mass spectrometer produces a graph (mass spectrum) of the component molecules and fragments of molecules (ions) characteristic of the detected substances. The results are compared to spectra of known substances, and hence a 76 precise identification can be made". While professional sports leagues 77 have been primarily concerned with athletes' use of illegal, recreational drugs, the prohibitions in amateur sport focus on selected means of gaining a competitive advantage, such means not necessarily being subject to statutory restriction or control. The IOC first tested for stimulants and narcotic analgesics in 1968. Anabolic steroids were added to the banned list in 1974, caffeine and testosterone in 1982, blood doping, beta blockers and diuretics in 1985 and growth hormones in 1989. The current list 78 bans sub-

73 Compare the statement "After the strong Soviet showing in the 1956 Winter Games....[the] American response to this challenge was the development of anabolic steroids" in Drugs in Sport: An Interim Report of the Senate Standing Committee on Environment, Recreation and the Arts (Canberra: Australian Government Pub- lishing Service, May 1989) at 5 [hereinafter Drugs in Sport]. 74 For a new vision see B. Kidd, A New Orientation to the Olympic Games (1991) 98 QUEEN'S QUARTERLY 363 [hereinafter Kidd]. 75 See Dubin Report, supra, note 1 at 95. 76 Ibid. at 136. See also R. Voy & K.D. Deeter, DRUGS, SPORT AND POLITICS (Champaign, Ill.: Leisure Press, 1991) at 80-81 [hereinafter DRUGS]. 77 See infra Part IV, D, 5. 78 See List of Doping Classes and Methods in IOC MEDICAL CONTROLS BRO- CHURE. See also Dubin Report, supra note 1, at 78-89; DRUGS, supra, note 76 at 35-74. 1991] Sports Law stances and their related compounds in six pharmacological classes of doping agents: stimulants (e.g. amphetamine, caffeine, cocaine); narcotic analgesics (e.g. codeine, morphine); anabolic steroids (e.g. Stanoz- olol, testosterone); beta blockers (which slow the function of the heart); diuretics; and peptide hormones (e.g. growth hormones). Alcohol, marijuana, local anaesthetics and corticosteroids are subject to specified restrictions. Under prohibited methods, the IOC list bans blood doping - the transfusion of red blood cells other than as part of legitimate medical treatment. It also bans methods which may alter the integrity of the sample used in urinalysis (e.g. blocking agents, tampering or urine substitution). The first large-scale testing of urine samples occurred at the 1972 Summer Olympics at Munich when, as a result, seven athletes were disqualified. The first positive test of a Canadian athlete occurred at the Pan American Games in Mexico City in 1975. The Games in Montreal in 1976 were the first Summer Olympics to included testing for anabolic steroids and resulted in 11 disqualifications, eight for steroids. The 1981 Pacific Conference Games saw the first Canadian disqualified for steroid use. It was, however, events at the 1983 Pan American Games in Caracas that first brought serious concern about drug use and resulted in Sport Canada's first policy on doping. When it appeared that the Games had an effective testing program, many athletes walked out before competing; among the no-shows were 11 members of the United States track and field team. The Games resulted in 19 disqualifications, including 79 two Canadian weightlifters. Sport Canada announced its first doping policy in December 1983 and revised it in September 1985 to increase penalties and make special provision for anabolic steroids.80 This policy required NSOs to develop plans to eradicate improper drug use by their athletes and support personnel. Doping control was to be conducted in co-operation with the Sport Medicine Council of Canada, an agency established in 1978. The NSO plans had to include: a system of infractions and penalties and a fair procedure to deal with alleged infractions; regular testing at major competitions and during training periods; an educational program; and lobbying activities to eliminate drug use in international sport. Contracts between NSOs, athletes and support personnel had to include a commitment not to use banned substances. The standard agreement between NSOs and athletes therefore contained the following obligations:

79 See 0. Ross, "Canadian weightlifters disqualified for drug use" The [Toronto] Globe and Mail (23 August 1983) 1, 2; 0. Ross, "13 U.S. Athletes pull out as drug use rocks Pan-Am Games" The [Toronto] Globe and Mail (24 August 1983) 1-2; "Nature's little helpers" The [Toronto] Globe and Mail (25 August 1983) 6. See also DRUGS, supra, note 76 at 80-88. s0 See Drug Use and Doping Control in Sport; A Sport CanadaPolicy Update (Minister of State, Fitness and Amateur Sport, September 1985), reprinted in Dubin Report, note 1, at 609-13, Appendix G. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

The Athlete shall....

(h) avoid the use of banned drugs in contravention to the rules of the (International Federation) and Sport Canada policy and submit at competitions and other reasonable times to random doping control testing upon request by the (NSO), Sport Canada, the Sport Medicine Council of Canada or other authority designated to do so by the (NSO);

(i) avoid possession of anabolic steroids, and shall neither supply such drugs directly or indirectly to others, nor encourage their use;

(j) participate as may be requested by the (NSO) in any Doping Control/ Education Program as formulated by the (NSO) in cooperation with Sport Canada and the Sport Medicine Council of Canada. 81

Athletes who received federal financial benefits had to be available for regularly scheduled and ad hoc doping control tests; such benefits included Athlete Assistance grants, funding for travel to national championships and access to national coaches and high-performance sport centres. Direct and indirect financial support would be suspended forth- with when an athlete had a positive test for a banned drug. Individuals who violated rules involving anabolic steroids were subject to an auto- matic lifetime ban from federal programs or benefits. Those who violated other anti-doping rules automatically lost benefits for a minimum of one year or, if longer, for the period of any suspension imposed by the sport federation; second offenders lost benefits for life. The policy declared that the only relief from a lifetime suspension was by direct appeal to the Minister of State, Fitness and Amateur Sport. On their face, the Sport Canada policies of 1983 and 1985 presented a severe and effective anti-drug program, but actual implementation was not quite so rigorous. The policies required NSOs to establish both in-competition testing at major events and out-of-competition testing during training. The latter random form of testing involves the element of surprise and is clearly more effective in detecting drug use because the athlete is deprived of a planned clearance time for the elimination of the drug from the body. The Dubin Report notes that, in spite of pressure from Sport Canada, "in practice virtually all testing of Canadian athletes occurred at major competitions only". 82 Furthermore, "the policy required that athletes agree in writing not to use or possess banned substances. Many athletes received federal money although they did not sign the required contract or they signed but removed the required 83 clause". The Dubin Report criticizes the Canadian Track and Field Associ- ation (hereinafter CTFA) for the slow speed at which it established out-of-competition testing:

81 SPORT CANADA, ATHLETE ASSISTANCE PROGRAM; POLICY AND GUIDELINES, 1986-1987 (Minister of State, Fitness and Amateur Sport, July 1986) at 25. 82 Dubin Report, supra, note 1, at 535. 83 Ibid. at 536. 1991] Sports Law

The record of the CTFA on developing and implementing its anti-doping policy up to the Seoul Olympics is characterized by a tendency to philosophize, discuss and delay. This is both striking and disappointing when one considers the many warning signs about the increased use of performance enhancing 84 drugs and, in particular, anabolic steroids during the last decade.

In 1982 the CTFA adopted a policy for random out-of-competition testing and doping control. However, the procedures for carrying out the policy were not approved by the CTFA board of directors until December 1987, and nothing was done until November 1988 to implement the policy.85

Responsibility for this delay actually seems to be divided squarely between the NSO and Sport Canada, which had failed to approve the testing program. In its response to the Dubin Report, Athletics Canada (the successor to the CTFA) maintains that the Report is in factual error in stating that nothing was done: "During this 11-month period, we were doing everything we could to implement the policy. While awaiting approval, we started to build an infra-structure so that we could begin testing the moment the policy was approved". 86 Ben Johnson's coach, Charlie Francis, has subsequently explained that during 1987 he did what he could "to fend off the campaign within the CTFA for random, out-of-competition testing - a policy that, [he] knew would remove Canada from the international picture". 87 Francis' efforts included telling CTFA officials that associations in both the Eastern and Western Blocs conducted non-punitive testing to control participation by their athletes. Francis also discloses that testing and sanctioning at international athletic meets was often irregular as race organizers did not wish to jeopardize revenue by revealing that competitors were tainted, especially where they came from powerful countries;8 8 organizers wishing to avoid positive tests were known to "accidentally" destroy suspect samples. 89 There were unreported positive tests at the world championships of the International Amateur Athletic Federation (hereinafter IAAF) in Helsinki in 1983, and for the 1987 world championships in Rome the IAAF made a late, unexplained substitution of its own testers for the IOC Medical Commission representatives originally scheduled to be in charge of the laboratory.90 The

84 Ibid. at 225. 85 Ibid. at 433. On the failure to properly investigate the "warning signals" see ibid. at 177-213 and 568-71. 86 Response to the Report of the Commission of Inquiry Into the Use of Drugs and Banned PracticesIntended to Increase Athletic Performance(Athletics Canada, 28 June 1990) at 1. 87 SPEED TRAP, supra, note 4 at 178. 88 Ibid. at 116-18, 128-29 & 267. 89 Ibid. at 279. 90 Dubin Report, supra, note 1 at 446; DRUGS, supra, note 76, at 86 & 103-9. At the Rome World Championships, Dr Virginia Mikhaylova of Bulgaria and Dr Arne Ljungqvist of Sweden replaced Dr Manfred Donike of West Germany and Dr Arnold Beckett of Great Britain. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 panic at the Pan American Games in 1983 was not caused by new sophisticated testing: "People were caught at the Pan Ams not by some revolutionary lab equipment, but because the old equipment was finally being used". 91 Not only was it used, but positive results were announced and sanctions applied. Through 1988 international track and field maintained a system of official prohibition, but practical laissez-faire. 92 The CTFA and Sport Canada also tended to turn the blind eye and were reluctant to respond to the warning signs about doping.

B. The Uneasy Case for the War on Drugs

1. The Wider War

[The] typical diatribe against recreational drugs can, with the substitution of a few words, be applied to sports such as mountain climbing, hang gliding and football. All are dangerous, habit forming exercises in escapism. 93

Modern organized sport and the wider war on drugs both find their origins in the public regulation and standardization of society that began during the last century. 94 Victorian bourgeois morality approved of manly sports, but severely frowned on certain unproductive forms of hedonistic pleasure. Conformity with the respectable standards of indus- trial society demanded morally improving play, but abstinence from stimulants. Recreation had to be "rational" and had to instill the values of order, punctuality, obedience, fair play and sobriety. Football, in spite of its risks, was acceptable and good because it fostered the attributes of a well-drilled workforce. Inebriation was deviant and bad, and the forces of law and discipline first took aim at alcohol and then in this century moved to suppress drugs. Sports and drugs therefore both bear

91 SPEED TRAP, supra, note 4 at 131; DRUGS, supra, note 76 at 77-88, attributes the positive results to technological advances. 92 See DRUGS, supra, note 76 at 10 1-13 (cover-ups and manipulation); Steroids in Amateur and Professional Sports - The Medical and Social Costs of Steroid Abuse: Hearings Before the Senate Committee on the Judiciary, 101st Cong., 1st Sess. 14 (3 April 1989) (estimates by Pat Connolly of steroid use by American athletes: 15 members of the women's track and field team in 1984, and 5-10 gold medalists in men's track events at the Seoul Olympics); R.P. Armstrong, The Lessons Learnedfrom Canada'sDubin Inquiry (Paper presented at the International Symposium on Sport and the Law, Monte Carlo, 1 February 1991) at 14-20. On subsequent changes in the IAAF program see Dubin Report, supra, note 1 at 446-50. 93 C.N. Mitchell, THE DRUG SOLUTION (Ottawa: Carleton University Press, 1990) at 103 [hereinafter DRUG SOLUTION]. See also J. Schonsheck, On Various Hypocrisies of the 'Drugs' in Sport Scandal (1989) 20 THE PHILOSOPHICAL FORUM 247 at 262 [hereinafter Hypocrises]. For a recent general review of drug strategies see Drug Issues: A Canadian Perspective (1991) 21:1 J. OF DRUG ISSUES at I. 94 See B.K. Alexander, PEACEFUL MEASURES; CANADA'S WAY OUT OF THE 'WAR ON DRUGS' (Toronto: University of Toronto Press, 1990) at 18 [hereinafter PEACEFUL MEASURES]. On the hazards of sports see supra at 71. 1991] Sports Law the value labels of those who are able to influence and dominate social control. The word "drug" is usually used as a normative term of disapproval, but strictly speaking a drug is any substance with an active ingredient that affects the mind or body. On this definition, most people are dependent on drugs and the goal of a drug-free society is patently impossible. Drugs can feed, heal, stimulate or calm; they can be used for nutritional, medical, recreational or athletic purposes. Whether legal or illegal, they can be habit-forming and harmful if abused. Drugs are subject to different regimes of legal control, but classification is not determined by pharmacological make-up or by the harm associated with particular substances, otherwise the primary killers (tobacco, alcohol, pharmaceuticals) would be prohibited. It is determined by cultural and political factors as governments look for tax revenue, respond to corporate interests and gauge and manipulate public attitudes. Classifications evolve arbitrarily through panics rather than pharmacy, through social settings rather than science. 95 Society variously encourages, controls or prohibits drug use, but the groupings defy objective analysis in terms of the nature or effects of the substances. Consumption of beer is openly endorsed, especially by sports broadcasting; cigarettes are a lawful product, although subject to some restrictions in their sale and advertising; 96 anabolic steroids are classed as prescription drugs, amphetamines as controlled drugs;97 and heroin, cocaine and cannabis are classed as illegal narcotics. 98 The legal category effects a mythic transformation of the drug, most notably in the case of cocaine where a stimulant is turned into a narcotic - a sleep inducer. Such is the power of the list. Drug prohibitions or "wars" have evolved not so much to control dangerous substances but as part of campaigns of moral reform and misguided measures to deal with (America's) social problems. The war also emerges not as an attack on products but on particular national, cultural or political groups.99 Historically the war has targeted various identifiable foreign or domestic "enemies", including Chinese, Germans, Mexicans, South Americans, Blacks, Communists and dissenters. Puni- tive measures may have reduced the use of illegal drugs 00 but at an overwhelming cost to freedom and equality, and the real burden of the harmful, discriminatory practices has been borne by the Third World:

95 See DRUG SOLUTION, supra, note 93 at 5-27; P.J. Giffen et al., PANIC AND INDIFFERENCE; THE POLITICS OF CANADA'S DRUG LAWS (Ottawa: Canadian Centre on Substance Abuse, 1991). 96 See Tobacco Products Control Act, R.S.C. 1985 (4th Supp.), c. 14, ss 4-9. 97 Food and Drugs Act, R.S.C. 1985, c. F-27, Schedules F and G. See Dubin Report, supra, note 1 at 370-78. 98 Narcotic Control Act, R.S.C. 1985, c. N-1, s. 3 and Schedule therein. 99 See PEACEFUL MEASURES, supra, note 94 at 7-32; D.F. Musto, THE AMERICAN DISEASE; ORIGINS OF NARCOTIC CONTROL (New York: Oxford University Press, 1987). 100 But see P.G. Erickson, A Public Health Approach to Demand Reduction (1990) 20 J. OF DRUG ISSUES 563 at 565-66. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

Governments involve themselves in this drug trade by granting monop- olies to certain companies, by promoting the export of domestic drugs and by limiting the import of foreign drugs. Canadian and U.S. governments conform to standard mercantilist, beggar-thy-neighbour policies by exporting alcohol, tobacco and pharmaceuticals to Third World countries while banning0 the import of opium, marijuana and coca from those same countries.' '

Recent literature testifies to the disillusion with the costs, false- hoods and hypocrisy of the war, and it is increasingly recognized that the greatest harms associated with illegal drugs are iatrogenic - that is, they are caused by systems of control that drive networks underground. The punitive war actually defeats the goal of health protection by marginalizing users, exposing them to dangerous conditions and diverting resources from treatment programs. The war is also misguided in its focus on specific, obscure substances: Steve Podborski "by shunning skiing events sponsored by a tobacco company .... did more to fight addiction than the entire Canadian drug-enforcement establishment".10 2 In summary, the wider war and the current restrictions reveal the following features:

(i) the illogical classification and arbitrary criminalization of substances, giving rise to a dangerous, unregulated black market that promotes crime;

(ii) massive, tax-supported enforcement costs to maintain power in the hands of officials, police and military;

(iii) unequal treatment, involving the punitive sanctioning of weaker parties and minority groups; (iv) the use of misinformation and scare tactics in the name of "education"; and

(v) loss of autonomy and privacy through the suspension of due process, civil liberties and constitutional protections.

Certain resemblances between the campaign against drugs in sport and this war, its big brother, will already be apparent. The wider war offers a graphic symbol of the manipulative and undemocratic character of modem government. There is some hope that the war will collapse under the weight of its own absurdities and that government will be influenced by recent positive suggestions for safer, more rational systems of control. 10 3 A great cause for concern, however,

101 DRUG SOLUTION, supra, note 93 at 22. 102 PEACEFUL MEASURES, supra, note 94 at 300. 103 See generally DRUG SOLUTION, supra, note 93; PEACEFUL MEASURES, supra, note 94 at 292-347; Hypocrisies, supra, note 93 at 278-81; L. Beauchesne, LA LI.GALISATION DES DROGUES...POUR MIEUX EN PREVENIR LES ABUS (Montrdal: Editions du M6ridien, 1991) [hereinafter Beauchesne]; F.R. Pletcher, Book Review of Peace- ful Measures and The Drug Solution (1991) 49 U. OF T. FAC. L. Rv. 310. 1991] Sports Law

is that there is no potential limit to current intrusive enforcement powers. The war on drugs is a convenient excuse to suspend rights and mete out harsh punishment and it may serve to introduce more general repressive techniques.

2. Drugs in Sport

II est indniable que plus de 95% des midicaments riputisdopants sont prescrits aux citoyens de toutes les classes de notre socidt. Il est par ailleurs paradoxal que l'on ne prononce le mot doping que pour disigner des sportifs qui ne reprisentent qu'une 0 °4 infime quantitd des consommateurs de ces substances!

Athletes live in a doped society, rely on a vast array of pharma- ceutical aids and work in a business that is thoroughly drug dependent for its financial health. (Even the federal government's "Fair Play For Kids" program is sponsored by Shoppers Drug Mart.) Some sports operations are synonymous with dangerous drugs. The tobacco industry sponsors many events, notably the "Virginia Slims" and "Players Inter- national" tennis tournaments, and sport sponsorship is exempt from the general ban on advertising in section 4 of the Tobacco Products Control Act 10 5 (a ban which is currently the subject of constitutional challenge by the tobacco industry10 6). Under section 6 of the Act, sports events may advertise or acknowledge tobacco brand names where a sponsorship contract was signed before 28 January 1988 and may continue to advertise or acknowledge manufacturers' corporate names. Sport's greatest link, however, is with beer, and the Labatt's Blue Room at the Canadian Sport and Fitness Administration Centre is the usual location for the announcement of anti-drug policies. Canadian breweries are prominent in the ownership of professional teams, 10 7 the control of broadcasting rights and the sponsorship of both major and local events. Professional athletes also serve as models for alcohol consumption in commercials. Such consumption, of course, exacts a heavy toll both in society at large and among the athletes themselves,10 8 but it is the rare league that punishes alcohol abuse. Given the essential role of drugs in sport and society, it is difficult to formulate either a rationale for the prohibition of particular substances

104 A. Noret, QUE SAIS-JE? LE DOPING (Paris: Presses Universitaires de France, 1986) at 29. 105 Supra, note 96, s. 4. 106 See Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90, 103 N.R. 391 (A.D.), rev'g in part (1989), [1990] 1 F.C. 74, 29 F.T.R. 267 (T.D.); RJR-Macdonald Inc. v. Canada (Attorney General) (1991), 82 D.L.R. (4th) 449, 28 A.C.W.S. (3d) 178 (Que. S.C.). 107 See Hypocrisies, supra, note 93 at 277: "....several professional teams - e.g., the St. Louis Cardinals, the Montreal Expos and the Toronto Blue Jays - are owned by 'drug' dealers (e.g. the purveyors of currently legal psychoactives)." 108 See J. Christie & D. Naylor, "Athletes and alcohol don't necessarily mix" and "When the boys of summer take to the bottle" The [Toronto] Globe and Mail (I1 May 1991) A19 and D1, D3. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 or a general definition of doping. The Dubin Report notes that the campaign against drugs in sport will only be persuasive if it has a logical basis founded in the values of athletic competition. 10 9 The Report does not then go on to make such an ethical case and notes that drug classification by the 1OC has had to proceed by way of ad hoc prohibition. Later, when discussing Ethics and Morality in Sport, Mr Justice Dubin offers the following argument against victories that are dope-induced:

The contest becomes one between doctors and biochemists plotting strategies, perhaps in a clandestine laboratory, and the athlete becomes a tool of technology. The health of the athlete is put at risk, and all other entrants are excluded from fair competition unless they too submit to the use of chemically induced aids. 110

The International Olympic CharterAgainst Doping in Sport recites the following justifications:

Considering that the use of doping agents in sport is both unhealthy and contrary to the ethics of sport, and that it is necessary to protect the physical and spiritual health of athletes, the values of fair play and of competition, the integrity and unity of sport, and the rights of those who take part in it at whatever level...." Il

And the interim report of an Australian Senate committee makes the case as follows:

The Committee takes the view that performance enhancing drugs should be banned because they can potentially damage the health of those taking them, whether they are elite athletes who stand the risk of being detected using them, or the recreational sportsperson who is unlikely ever to be tested. They should be banned also because anyone using them is trying to gain an unfair advantage over those athletes who wish their use is against to maintain normal health. They are cheating12 because the rules of the sporting federations."

Putting aside the contractual violation involved in the surreptitious breaking of rules, the case against doping agents1 13 usually involves four

109 Dubin Report, supra, note 1 at 78. 110 Ibid. at 504. I International Olympic Charter against doping in sport, "Preamble and principles", A. 112 See Drugs in Sport, supra, note 73 at 60. 113 See R.L. Simon, Good Competition and Drug-Enhanced Performance (1985) 11 J. OF THE PHILOSOPHY OF SPORT 6; W.M. Brown, Paternalism,Drugs and the Nature of Sports (1985) 11 J. OF THE PHILOSOPHY OF SPORT 14; N. Fost, Banning Drugs in Sports: A Skeptical View (1986) 16:4 HASTINGS CENTER REPORT 5; M. Lavin, Sports and Drugs: Are the Current Bans Justified? (1987) 14 J. OF THE PHILOSOPHY OF SPORT 34; P.A. Lawson, The Use of Drugs by Athletes in P.J. Galasso, ed., PHILOSOPHY OF SPORT AND PHYSICAL AcTIvITY: ISSUES AND CONCEPTS (Toronto: Canadian Scholars' Press Inc., 1988) at 32 [hereinafter Use of Drugs]; R. Gardner, On Performance-EnhancingDrugs and the Unfair Advantage Argument (1989) 16 J. OF THE PHILOSOPHY OF SPORT 59; E. Cashmore, MAKING SENSE OF SPORT (London: Routledge, 1990) at 118-31 [hereinafter Cashmore]. 1991] Sports Law points; on close analysis, however, these arguments fail to justify the current bans: (i) Spoil Sport: doping is contrary to the ideal of sport. The ideal sees sport as a challenge between individuals, not a test of technical resources; it also holds that competition should test ability and dedication, not bodily response to artificial supplements. This vision, however, cannot account for modern high-performance sport and fails to distinguish permitted from banned techniques. The development of 114 successful athletes is a highly bureaucratic and technical process, requiring rigid training regimes, sophisticated equipment and support from medical and scientific personnel. Athletes use abnormal condi- tioning programs and a whole range of dietary supplements and ergo- genic aids to enhance performance. No distinction can be drawn between permitted and banned techniques in terms of artificiality or unearned benefit: the IOC bans natural techniques (e.g. testosterone and blood doping), and steroids do not dispense with the need for training. Sporting success has been achieved by those advanced countries that are able to maintain the necessary scientific infrastructure, and it has been the policy of Sport Canada to develop the technical resources that are available to national teams. Far from being contrary to some accepted conception of sport, doping is the logical extension of the values of modern sport and the policies of Sport Canada.11 5 To paraphrase von Clausewitz, "Doping is the continuation of training by other means." (ii) Danger: doping is harmful to the user's health. This argument has both empirical and moral aspects. It only excludes those methods for which there is evidence of risk, and the clinical case on the dangers of all banned techniques is very uneven. (Many alleged risks now derive from prohibition as substances are supplied on the black market or used without proper medical supervision.) The argument is paternalistic in denying freedom of choice to informed adults and it is hypocritical given the dangers of some sports and of permitted training techniques. High-performance sport has little to do with health promotion, and the actual practice of many sports entails far greater risks than are involved in taking drugs. Sports leagues often tolerate dangerous styles of play and use "performance-allowing" sports medicine techniques that pay scant regard to long-term health consequences. When doping control is justified as concern about athletes' health, this stands as thin as employers justifying workplace testing by their concern about employees' health; the historical evidence is that they have little such concern. 116

114 See B. Rigauer, SPORT AND WORK, trans. A. Guttmann (New York: Columbia University Press, 1981). 115 See Kidd, supra, note 74 at 366-67; THE GAME PLANNERS, supra, note 24 at 136-37. 116 See H.J. Glasbeek & D. McRobert, PrivatisingDiscipline - The Case of Mandatory Drug Testing (1989) 9 WINDSOR Y.B. AccEss JUST. 30 at 60: "....employers seldom have been at the forefront of the struggles to improve occupational health and safety conditions." Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

(iii) Fairness and Equality: doping gives the user an unfair advantage and disturbs equality in competition. Some athletes enjoy immense advantages in competition because of their own skills or because they come from countries with favourable climates or elaborate training resources. It is, therefore, difficult to identify what advantages or what means of victory are "unfair". The whole purpose of competition is, furthermore, to prove difference and inequality. Secret drug use in violation of a rule may create unfairness and inequality, but this could be remedied by open use and universal access. (iv) The Issue of Coercion and Harm to Others: doping involves harm to other competitors who may feel compelled to take substances or who in contact sports may be injured by participants whose size, strength and aggression has been enhanced by doping agents. The argument fails to show how banned techniques are materially different from the ordinary risks of training that athletes are compelled to take. Injuries in contact sports could be reduced more effectively by rule changes that limit player size or by strict disciplinary action against violent conduct. Such action has not been taken because it tends to harm the commercial potential of some sports, and such sports often encourage or require aggression and bulking up. Again to paraphrase von Clause- witz, "Steroid rage is the continuation of Shero and Lombardi by other means." In summary, doping is quite consistent with the values of competitive sport, and doping control reveals a strange obsession with very selective sources of risk or advantage. Since there is no material difference between banned and permitted practices, there is nothing inherently wrong in the prohibited methods. Any wrongdoing comes solely from the breach of established rules. As Charlie Francis has observed, "Steroids were not banned because they were unethical; they became unethical because they were banned".117 Sports participation is a voluntary activity and organizations are free to establish competition rules that represent the shared values of members. Doping is wrong only because it cheats the agreement and promise that comes with membership in the organization - it is a fraud on enacted values. The offence in doping is that it shows disobedience and dishon- esty towards established power. Such power may, of course, gain legitimacy if rules are made democratically (with full participation by the affected athletes) and enforced even-handedly. But the power structure of international organizations and their record in enforcement hardly provides substantive legitimacy to the prohibitions. Doping controls have less to do with promoting health and fairness than with maintaining a conservative vision of society:

117 SPEED TRAP, supra, note 4 at 299. 1991] Sports Law

Banning drugs is opting for a conservative attitude towards the human condition which does not give enough weight to personal freedom. Stability, predictability and control are emphasized...." 8

This vision is endorsed in an extraordinary passage in the Dubin Report where sport is praised for its benefits to "our current leaders" 119 and where the Report quotes with approval the following account of the value of sport:

Sport, through the discipline which it requires, brings home the necessity of order... .The team activity often involved in sport develops a respect for the loyally established hierarchy, a sense of equality.... 20

According to the Report, therefore, sport is useful because it develops a false sense of equality and functions as an instrument of law and order that props up the vested hierarchy. Doping control can be appreciated in a new light when placed in the context of this ultra-conservative, authoritarian philosophy.

C. Legal and ConstitutionalAspects

Aggrieved athletes have often been successful in obtaining judicial review of exclusionary or disciplinary decisions by national or domestic bodies.' 2' There are, however, serious jurisdictional difficulties when there is an international element to the case. 122 An athlete belonging to the national association of country A may be disqualified at an event in country B, at games organized by a body based in country C, in a sport where the headquarters of the international federation (IF) are in country D. The appropriate forum for obtaining an effective remedy then becomes problematic. Fluid cosmopolitan elements, combined with an original disqualification in a remote or legally unfamiliar jurisdiction, may for all practical purposes deprive the athlete of independent review. However, in theory, sports governing bodies are susceptible to attack for different types of legal error. This section notes the various grounds of challenge to doping control procedures as follows: (1) authority in the organization; (2) def-

118 Use of Drugs, supra, note 113 at 34. 119 Dubin Report, supra, note I at 500. 120 Ibid. at 499. The extract comes from Essai de doctrine du sport (Paris: Haut Comit6 des Sports, 1965) and is quoted in J.-M. Brohm & B. Yanez, Why the "EcoleEmancipie' is Against Competitive Sport in J.-M. Brohm, SPORT- A PRISON OFMEASURED TIME (London: Ink Links, 1978) 65 at 75. Brohm, of course, recognizes the dubious political philosophy expressed in the extract and continues with the following comment at 75-76: "In other words, sport trains people to respect the fetished state, the national flag, the hierarchy of the factory/barracks or the school/prison." 121 See Barnes, supra, note 2 at 142-47, 238-45; M.J. Beloff, Pitch, Pool, Rink,...Court? JudicialReview in the Sporting World (1989) PUBLIC LAW 95 [hereinafter Pitch, Pool, Rink]. 122 See H. Opie, Legal Regimes for the Control of Performance-Enhancing Drugs in Sport (1990) 12 ADEL. L. REV. 332 at 350 [hereinafter Legal Regimes]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 initions of doping prohibitions; (3) the right to privacy; (4) the application of the CanadianCharter of Rights and Freedoms and (5) procedural rights. This material serves as a preliminary to what happened to Ben Johnson in Seoul.

1. Authority in the Organization

The authority to conduct doping control and to apply sanctions must be based on properly established rules, and each interested national or international organization must ensure that it actually holds the power to act in a particular case. 123 The athlete must have submitted to the jurisdiction of the organization by voluntarily agreeing to abide by the rules, the prohibition must be clearly spelled out and the particular sanction must be authorized.12 4 The organization is also bound to follow the prescribed procedures for conducting drug tests, hearing appeals and imposing penalties. The powers and procedures of the IOC are set out in the Olympic Charter,12 5 and accompanying by-laws, and in the rules on medical controls 126 which are deemed to be part of the by-laws. At the time of the Seoul Olympics, Rule 26 of the Charter,regarding eligibility, provided as follows:

26. To be eligible for participation in the Olympic Games, a competitor must....observe and abide by the Rules of the IOC and in addition the rules of his or her IF, as approved by the IOC....

Rule 29 stated that, "All competitors must comply with the medical code drawn up by the IOC", and the by-law to the Medical Code provided:

A. Doping is forbidden. The IOC Medical Commission shall prepare a list of prohibited classes of drugs and of banned procedures.

123 Ibid. at 339-42, discussing domino effect sanctions by different sports or governmental bodies and the lack of uniformity in prohibitions. National organizations usually defer to suspensions imposed by international federations: see Michels v. United States Olympic Committee, 742 F.2D 155 (3rd Cir. 1984) (no right in athlete to require USOC to provide a hearing on validity of test results following a suspension by the IF). 124 See H. Beyer, Some Legal Aspects in Regard to Doping Control (1990) 30 MED. Sci. LAW 197; L. Uzych, Drug Testing of Athletes (1991) 86 BRITISH J. OF ADDICTION 25. On jurisdictional and legal error by tribunals see R. Dussault & L. Borgeat, ADMINISTRATIVE LAW; A TREATISE 2nd ed., (Toronto: Carswell, 1990) vol. 4 at 154-236 [hereinafter ADMINISTRATIVE LAW]. 125 Olympic Charter (International Olympic Committee 1991). The 1991 Charter incorporates important changes in the numbering and content of the Olympic rules. See, e.g., Rule 45 (eligibility code), Rule 48 (medical code) and Rule 50 (infringement of the Olympic Charter). 126 IOC Medical Controls; GAMES OF THE XXIVTH OLYMPIAD SEOUL 1988 (International Olympic Committee) (IOC Medical Controls Brochure). 1991] Sports Law

C. All Olympic competitors are liable to medical control and examination carried out in conformity with the rules of the IOC Medical Commission.

D. Any Olympic competitor refusing to submit to a medical control or examination or who is found guilty of doping shall be excluded from competition or from the present or future Olympic Games.

F. A medal may be withdrawn or other disciplinary action taken by order of the Executive Board on the proposal of the IOC Medical Commission.

Rule 31, on penalties, stated, "A competitor found guilty of having knowingly infringed the Olympic Rules and by-laws shall be disqualified and lose any position that he may have gained". The rules on medical control required selected athletes to produce "A" and "B" samples of urine "under the observation of the person responsible for the supervision of the collection of urine" (Procedures, 6.2.11). Samples then had to be numbered, coded and sealed before delivery to the testing laboratory. Unauthorized persons were not permitted in the doping control office or in the laboratory during analysis (Procedures 6.2.9, 6.3.3). If the "A" sample indicated the presence of a banned drug, the chair of the IOC Medical Commission or the chair's representative had to write to the Chef de Mission of the athlete's delegation to advise of this fact and record the time for testing the "B" sample (Procedures 6.3.5.). The medical control procedures were then as follows:

6.3.6. The analysis of B samples shall be carried out in the same laboratory but by different persons, under the supervision of a member of the IOC Medical Commission. The delegation in question shall be allowed to send a maximum of three (3) representatives to the laboratory. The member of the IOC Medical Commission shall communicate to the Chairman of the IOC Medical Commission the result of this analysis, which will be regarded as final for the identification of the drug. The member of the IOC Medical Commission will be supplied with appropriate documentation of the results.

6.3.7. Should the result of the A sample be confirmed, the Chairman of the IOC Medical Commission shall then call a meeting of the IOC Medical Commission, to which a representative of the delegation concerned, a representative of the International Federation concerned and the Chairman of the Dope Control Committee will also be invited to attend. The competitor will also be invited to attend. Following this meeting, the IOC Medical Commission will establish a recommendation for the IOC Executive Board.

6.3.8. The Chairman of the IOC Medical Commission shall then pass this recommendation to the President of the IOC Executive Board, which shall be responsible for taking the necessary action. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

In summary, Olympic competitors at Seoul were subject to doping prohibitions, but strict procedures had to be followed to ensure accuracy and security in testing. Doping control was supervised by the Medical Commission which was also authorized to conduct a "meeting" following the confirmation of a positive test and to make a "recommendation" to the Executive Board. (The "meeting" presumably served as a hearing at which a positive test could be explained, but this function was not spelled out, and neither were there explicit rules on the procedure or the burden of proof.) The "necessary action" (presumably the sanction) was for the Board to determine, and the IOC Charter permitted disqualification for "knowing" breaches of Olympic rules.

2. Definitions of Doping Prohibitions

Doping prohibitions can be viewed as either eligibility rules or disciplinary rules. As the former, they prescribe qualifications or pre- conditions for admission: competition is restricted to drug-free participants just as events might be limited by age, weight or sex. As the latter, they define wrongdoing: the competitor may be penalized if found guilty of a doping offence. Generally, the affected person is entitled to more elaborate procedural protections and the observance of natural justice when accused of wrongdoing and subject to disciplinary action. In 1988 various IOC rules addressed doping. Guideline B.6 to the bylaws on eligibility (Rule 26) stated that all competitors conforming to the eligibility criteria could participate "except those who have .... in the practice of sport and in the opinion of the IOC, manifestly contravened the spirit of fair play in the exercise of sport, particularly by the use of doping or violence". Other rules were more consistent with a system of disciplinary offenses. Thus by-law D to Rule 29, regarding the Medical Code, talked of a doping "infringement" and referred to anyone "who is found guilty of doping", and the medical control procedures used the term "sanction" (Procedure 6.3.9). Where an athlete was accused of breach of a doping prohibition, it was not entirely clear what elements had to be proved. By-law A to Rule 29 simply stated "Doping is forbidden". Under the medical control procedures, the hearing process began when "the analysis of the A sample indicate[d] the presence of a drug of the banned classes" (Pro- cedure 6.3.5). These rules required merely the scientific proof of a positive test and suggested absolute liability, so that inadvertent use or use of minimal quantities giving no competitive advantage could not be excused. The eligibility rule, however, referred to doping that manifestly contravened fair play, and Rule 31 limited disqualification to "knowing" rule infringement. These rules suggested that the prohibitions were directed only against deliberate wrongdoing that significantly enhanced performance. Since there is no scientifically verifiable point at which use becomes unfair or advantageous, these rules called for a subjective 1991] Sports Law evaluation of the merits of the athlete and the plausibility of the expla- nation. Granting the benefit of the doubt to the athlete, IOC rules seemed to create a disciplinary regime of mens rea, or even specific intent, offenses. The prohibition might be restated as follows: an athlete could be disqualified who knowingly used an excess quantity of a banned substance with127 intent to gain an unfair advantage. The IOC occasionally "exerplied"' this "discretionary rule" to absolve athletes who claimed to have inadvertently used medicine containing banned substances, but it was then unclear whether the decision was that "no offence was committed or that as a matter of discretion the athlete ought not to be proceeded against". 128 The IOC rules contained no criteria to structure or control the exercise of the discretion. In brief, in 1988 the IOC's doping prohibitions were ill-defined, the standards were vague and subjective, and the action to be taken following a positive test was entirely unpredictable. A court reviewing the ambiguous rules on the mental element in doping offenses could easily find legal error in their interpretation and application.

3. The Right to Privacy

People need to be let alone and rid of snoopers, but modern technology severely threatens to pry into private space. The right to be undisturbed by officialdom and to control access to personal information are important aspects of individual liberty, and the Supreme Court of Canada has recognized the fundamental constitutional importance of freedom from unwarranted intrusion:

Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizens go to the essence of a democratic state. 129

In spite of such high acclaim for privacy as a political or cultural value, infringement of the "right to privacy" is a precarious basis for grounding legal action, and the "right" may be no more than a vague principle that embraces odd protected personal or proprietary interests. 13 0

127 To "exerply" a rule is to apply a rule that calls for the exercise of a heavy amount of discretion. 128 Legal Regimes, supra, note 122 at 346. 129 R. v. Dyment, [1988] 2 S.C.R. 417 at 427-28, 55 D.L.R. (4th) 503 at 513-14, La Forest J. (police received blood sample taken from patient without consent) [hereinafter Dyment cited to S.C.R.]. See also Hunter v. Southam, [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641 [hereinafter Hunter]. 130 See P. Burns, The Law and Privacy: the Canadian Experience (1976) 54 CAN. BAR REV. 1; S.A. Cohen, INVASION OF PRIVACY; POLICE AND ELECTRONIC SURVEILLANCE IN CANADA (Toronto: Carswell, 1983) at 49-55. See also Lee v. Jacobson (1992), 87 D.L.R. (4th) 401 (B.C.S.C.) (action for invasion of privacy; peep-hole to cabin bedroom). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

Privacy can be spatial, involving the exclusion of intruders from territory such as the home; it can be informational, involving control of access to confidential data; or it can be personal, involving the preser- vation of the dignity of the individual and the integrity of the body. Invasions of personal privacy can take the form of witnessing activities, physical touching, or taking and using body products, and such invasions are recognized to be particularly intrusive: "....the use of a person's body without his consent to obtain information about him, invades an area of 13 personal privacy essential to the maintenance of his human dignity". ' The essence of privacy is the right of the individual to determine who sees or knows about himself or herself: intrusion is warranted only if the subject consents (or if there is other legal authority). Drug testing sport clearly involves invasions of privacy in that the athlete must in 32 urinate in the presence of a witness, must yield a sample of body fluid,' and must be prepared for the public disclosure of the results of the testing; such disclosure may give out information about the presence of legal and illegal substances and so publicize aspects of the athlete's lifestyle. These intrusive investigative methods are justified only if they are permitted by valid rules of competition 133 that have been voluntarily 134 agreed to by athletes. Drug testing can be challenged as an invasion of privacy if there has not been complete and effective consent to all aspects of the enforcement procedure, from initial sample-taking to publication of results. Such consent must be clearly declared in competition entry forms or in the rules of the organization: besides having authority to ban, to test and to punish, the organization must have the right to make public what would otherwise be confidential information. In 1988 the IOC medical controls prescribed the following rule on the disclosure of results:

Following the sanction decided upon by the IOC Executive Board, the head of the delegation to which the competitor belongs and the IF concerned will be informed, before the sanction is made public by the IOC. (Procedure 6.3.9)

The body responsible for making the public announcement was, therefore, the IOC itself, and the right of disclosure was limited to an announcement of the sanction applied in the particular case.

131 Dyment, supra, note 129 at 431-32, La Forest J. 132 The IOC Medical Commission is considering whether blood testing should supplement urine testing at future Olympics. See "Confusion reigns over blood tests" The [Toronto] Globe and Mail (4 February 1992) A14. 133 See Use of Drugs, supra, note 113 at 35-36; P.B. Thompson, Privacy and the Urinalysis of Athletes (1982), 9 J. OF THE PHILOSOPHY OF SPORT 60, reprinted in P.J. Galasso, ed., PHILOSOPHY OF SPORT AND PHYSICAL ACTIVITY: ISSUES AND CON- CEPTS, supra, note 113 at 37. 134 See Chabot v. Manitoba Horse Racing Comm. (1986), 33 D.L.R. (4th) 714, [1987] 1 W.W.R. 149 (Man. C.A.) (consent of horse racers to search and enforcement powers) [hereinafter Chabot]. 1991] Sports Law

4. The Application of the Canadian Charter of Rights and Freedoms

Sections 7 and 8 of the Charter, protecting "Legal Rights", are worded as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 35

Section 8 has been held to serve as a protection for the individual's reasonable expectations of privacy136 and both sections have been used to declare unconstitutional the mandatory, random drug testing of prison inmates. 37 These programs allowed sampling without reasonable and probable suspicion of drug use, and in the absence of objective criteria the tests could not be justified under section 1 of the Charter as "reasonable limits prescribed by law .... as demonstrably justifiable in a free and democratic society". In spite of successful constitutional challenges in other contexts, the application of the Charterto mandatory drug testing in amateur sport is problematic.138 The Charter operates to protect the individual only against interference by government 139 and testing is usually conducted by private organizations. Many Charter rights are restricted to the context of criminal or penal proceedings. 140 And the athlete consents to

135 Canadian Charterof Rights and Freedoms, Part I of the ConstitutionAct, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 [hereinafter Charter]. In the context of penal legislation, it has been held that s. 7 guarantees more than procedural due process or natural justice. "Fundamental justice" applies also to the substantive content of prohibitions punishable by imprisonment: see Reference re s.94(2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, [1985] 2 S.C.R. 486, 48 C.R. (3d) 289 (mental element required in offence); Reference re Ss. 193 and 195.1(1)(c) of the Criminal Code (Manitoba), [1990] 1 S.C.R. 1123, 77 C.R. (3d) I (void for vagueness doctrine). See also Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85, 45 C.R. (3d) 81 (A.D.) (uncertainty and vagueness in customs tariff; prohibition on "immoral" or "indecent" material). 136 Hunter, supra, note 129. See P. Connelly, Random Drug Testing: The ConstitutionalRamifications in CAPITALIZING, supra, note 10. 137 Re Dion and the Queen (1986), 30 C.C.C. (3d) 108 (Que. S.C.); Jackson v. Joyceville Penitentiary, [1990] 3 F.C., 55 C.C.C. (3d) 50 (T.D.). 138 See Dubin Report, supra, note 1 at 490-95; MandatoryDrug Testing, supra, note 23; Gray v. Canadian Track and Field Assn (1986), 39 A.C.W.S. (2d) 483 (Ont. H.C.). 139 See Charters. 32. See also McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 76 D.L.R. (4th) 545; Stoffman v. Vancouver Gen. Hosp., [1990] 3 S.C.R. 483, 76 D.L.R. (4th) 700; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, 77 D.L.R. (4th) 55. 140 See Dubin Report, supra, note 1 at 491-93, noting that the rights in s. 11 of the Charter, including the presumption of innocence, are limited to the context of persons "charged with an offence". Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 testing as a condition of participation. 141 The Chartermight nevertheless be pressed into service. The Privacy Commissioner of Canada has noted the directing influence of a government agency, Sport Canada, and has hinted at an element of compulsion in the "free" consent to mandatory, random testing:

....athletes should not be forced to abandon their Charter rights at the locker room door - no matter how many may be willing to do precisely that in order to compete in their sport. Charter rights also apply to federally-funded athletes. Like other employees, these athletes receive monthly cheques from the government for their efforts. The federal government dictates athlete drug testing policy. If those policies fail to measure up to Charterrequirements, they will be subject to challenge42 even if a non-governmental agency actually conducts the tests.

In the Commissioner's opinion, mandatory, random testing of athletes is a clear violation of sections 7 and 8, which could not be justified under section 1 because of the failure to canvass less intrusive methods. 143 The Commissioner asks, "Where is the virtue in attaining a drug-free sports arena by sacrificing our athletes' right to privacy?" 144 (Justification under section 1 is also precluded by the fact that doping control programs are not "prescribed by law".) Decisions under the Fourth Amendment of the American Constitu- tion 145 and under state guarantees of privacy have addressed the standards that must be satisfied in order to justify drug testing of athletes. Some early cases held that there are diminished expectations of privacy

141 See ibid. at 491 and 495; Chabot, supra, note 134. 142 Drug Testing and Privacy (Ottawa: The Privacy Commissioner of Canada, 1990) at 43 [hereinafter Drug Testing]. Governmental nexus can be found in the directive force of Sport Canada's drug policy, in conditions of funding for NSOs and in the system of government-imposed sanctions. The Dubin Report, supra, note 1 at 494 recognizes that Sport Canada's funding requirements "could be viewed as governmental action", but argues that drug testing of athletes is not an unreasonable search because it is conducted for "valid purposes" and is "not mandatory in a true sense" because it is "consensual". 143 Drug Testing, ibid. at 43-45. The federal government's own brief to the Dubin Inquiry testifies to the over-extensive scope of random testing: "Not all, or even a majority of athletes are users of banned substances or practices. The majority of federally-funded sports have not been identified with doping problems": see Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance, Submission of the Government of Canada at 5. See also Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance, A Submission from the Sport Medicine Council of Canada at 2. 144 Drug Testing, supra, note 142 at 44. The report also notes the potential violation of the Privacy Act, R.S.C. 1985, c. P-21. 145 The text of this Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 1991] Sports Law in high school athletics 146 and in the intensely regulated industry of 148 horse racing. 147 Similarly, in O'Halloranv. University of Washington, dealing with the drug testing program of the National Collegiate Athletic Association, the Federal District Court found that the student's privacy interest:

.... [was] outweighed by the compelling interest of the University and the NCAA in protecting the health of student-athletes, reducing peer pressure and temptations to use drugs, ensuring fair competitions for the student-athletes and the public,149 and educating about and deterring drug abuse in sports competition.

However, in Brooks v. East Chambers Consol. Ind. School Dist.150 an American Federal Court followed recent United States Supreme Court decisions dealing with the testing of customs officers151 and railway workers 152 and held that in the case of school children there was no compelling government interest in law enforcement or public safety that could justify the forfeiture of privacy expectations. And in Hill v. N.C.A.A. 153 involving an evaluation under the California Constitution, the NCAA program was found to infringe guaranteed privacy rights:

....the evidence did not support the NCAA's claim that there is significant drug use among student-athletes, and that by testing, students' health and safety and the integrity of the competition will be protected. The evidence showed that the test program was too broad, and its accuracy doubtful. The appeal procedure was inadequate. Finally, there are alternatives to testing that are less offensive to the right to privacy which have not been adequately considered. Therefore, what usefulness the program had did not manifestly outweigh the resulting impairment of the constitutional right of privacy. For these reasons, the NCAA may not require student-athletes to "waive" their constitutional rights in order to receive the benefit of participation in intercollegiate athletics. 154

146 Schaill v. Tippecanoe County School Corp., 864 F.2D 1309 (7th Cir. 1988) (non-punitive program, with unmonitored urination, to deal with "plague of illicit drug use" [at 1324]; implied consent by athletes; safety and role modelling aspects. The diminished expectation of privacy in sports arises from the normal "communal undress", medical examinations and training rules [at 1318]). 147 Shoemaker v. Handel, 795 F.2D 1136 (3rd Cir. 1986) (administrative search serving to maintain public confidence in the integrity of the sport). See also Dimeo v. Griffin, 943 F.2D 679 (7th Cir. 1991). 148 679 F. Sup. 997 (W.D. Wash. 1988), rev'd on other grounds 856 F.2D 1375 (9th Cir. 1988) [hereinafter O'Halloran]. 149 O'Halloran, ibid. at 1007 (W.D. Wash.). See also Bally v. Northeastern Univ. 532 N.E.2D 49 (Mass. 1989) (intercollegiate athletics testing program held not violative of state civil rights and privacy statutes). 150 730 F. Supp. 759 (S.D. Tex. 1989) (urinalysis of students in grades 6-12 wishing to participate in extra-curricular activities; no evidence of greater use or greater risk among such students; program unlikely to prevent drug use). 151 National Treasury Employees Union v. Von Raab, 109 S.CT. 1384 (1989). 152 Skinner v. Railway Labor Executives' Assn, 109 S.CT. 1402 (1989). 153 273 CAL. RPTR. 402 (Cal. Ct App. 1990); cert. granted 801 P.2D 1070, 276 CAL. RPTR. 319 (Cal. 1990) [hereinafter Hill]. 154 Ibid. at 422 (Cal. Ct App.). The less intrusive alternatives include education, counselling programs and testing based on reasonable suspicion. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

In summary, government-sponsored drug testing may be susceptible to constitutional challenge in spite of athletes' apparent "consent" to the required conditions. Programs are particularly vulnerable where alternative methods of control have not been attempted, where testing affects large numbers of athletes regardless of credibly-based probability of drug use, where there is little likelihood of achieving claimed objectives, or where public safety is not in issue. Such programs may be found to be a disproportionate intrusion on protected rights.

5. ProceduralRights

Errors in procedure relate to the technical aspects of the testing process and to the fairness of the disciplinary hearings. A positive result can be challenged on technical grounds if the required steps were not followed in collecting the sample, in maintaining its security and integrity, and in conducting the laboratory tests. The athlete then questions the accuracy of the result or alleges breach of the rules that give the organization the authority to punish for drug use. The challenge might, for example, relate to the requirement under IOC Procedures 6.3.6 and 6.3.7. that the B sample be tested independently and that it "confirm" the result of the A test.155 An athlete accused of a doping infraction is entitled to "natural justice", 156 which requires a fair and unbiased hearing appropriate to the circumstances of the case and the seriousness of the consequences. Typical requirements are as follows: adequate notice of the hearing and of the facts and offence alleged; adequate preparation time; a disinter- ested deciding body; a fair hearing allowing presentations from both sides and the opportunity to rebut allegations; a decision based on the evidence heard; and some opportunity for independent review of the decision. The common law rules of natural justice (and the guarantee of "fundamental justice" in section 7 of the Charter) protect the right to basic fairness in the constitution and conduct of disciplinary bodies. One aspect of fairness is the speed of the process: where property and reputation are at stake, summary justice is inappropriate' 57 and decisions 58 must not be taken with indecent haste.'

155 See Gasser v. Stinson (15 June 1988), CH.-88-G-2191 (Ch.), Scott J. (no breach of IAAF rules; second test must confirm first, but two results need not be identical). See also Re HarryL. Reynolds (Doping Control Review Board, 4 October 1991) (rules of IAAF and TAC; positive "A" sample test for Nandrolone; doubt about chain of custody, laboratory procedure and data analysis in testing "B" sample). 156 See Pitch, Pool, Rink, supra, note 121 at 101-03; ADMINISTRATIVE LAW, supra, note 124 at 243-336. 157 See Hill, supra, note 153 at 422 (Cal. Ct App.) (12 hours' notice to institution, not to student; "hearing" on same day by conference call; no right to an independent test; process held inadequate). 158 See, e.g., McGuire v. Royal College of Dental Surgeons of Ontario (1991), 77 D.L.R. (4th) 732, 49 ADMIN. L.R. 295 (Ont. Div. Ct) (professional disciplinary committee took 17 minutes to decide on six convictions; failure to base findings on evidence; apprehension of bias). 1991] Sports Law

The athlete who challenges doping control can, therefore, base the case on contractual, constitutional and procedural rights. The sports organization must hold the authority to test and to sanction, it must comply with the established rules on substantive offenses and required control procedures, and it must pay proper regard to legally protected rights of the individual. Legal theory grants the athlete a good supply of ammunition, but the scene now shifts to Seoul.

D. Ben Johnson and the Dubin Report

1. Fairness in Seoul

As the eight men in the 100-metre Olympic final responded to the starter's gun, the CBC television commentator announced, somewhat unfortunately, "They're away cleanly". Easing off for the last 15 metres, the race was won by Benjamin Sinclair Johnson, Jr, in the world record time of 9.79 seconds. Three days later, the IOC struck the win and the record from the books when it disqualified Johnson after he had tested positive for the anabolic steroid, Stanozolol. Johnson had finally lost in the laboratory after a string of successes. Between 1986 and 1988, 19 in-competition tests (the last in Zurich on 17 August 1988) had declared 159 him clean; he had never been tested out of competition. The disqualification in September 1988 brought a devastating halt to a highly profitable career. Ben Johnson was born in Jamaica 160 in 1961, moved to Toronto in 1976, began training under Charlie Francis at the Scarborough Optimist club in 1977 and by 1980 was ranked among the top Canadian sprinters. In 1981, Francis decided that a steroid program was needed to raise Johnson to prominence in international competition. Such a program, combined with intense training and weightlifting, could set Johnson one metre ahead (or eliminate a one metre 161 disadvantage) in the 100 metres:

The overwhelming evidence at this Inquiry is that anabolic steroids enhance athletic performance. Witness after witness spoke of increased strength and size; of a greater ability to train intensely, to resist the pain of workouts, and to recuperate; of improved performances; and of new feelings of confidence, physical well-being, and enthusiasm....Anabolic steroids are used during training, and the intense training program required of Mr Francis's athletes in addition to their drug programs indicates that they do not provide any short cut. 162

159 See Dubin Report, supra, note 1 at 285. 160 A perceptive cartoon by Edwards originally in The [Kingston] Whig-Stan- dard showed a three-stage progression in public identification of Johnson at Seoul: Canadian wins gold medal; Jamaican-Canadian accused of steroid use; Jamaican stripped of gold medal: see The [Toronto] Globe and Mail (13 October 1988) A7. 161 See SPEED TRAP, supra, note 4 at 112. 162 Dubin Report, supra, note 1 at 103. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

Francis duly began to administer injections to Johnson and monitor the program to calculate necessary clearance times. From 1984 Francis usually had the assistance of Dr Jamie Astaphan, who sought to develop a technical expertise in performance-enhancing drugs. Johnson understood the nature of the injections and consented throughout. 63 From 1982, Johnson achieved a series of victories culminating in a world record of 9.83 seconds for the 100 metres at the World Championships in Rome in 1987. Johnson's fame generated a handsome income from appearance fees and commercial endorsement contracts which enabled him to maintain a lavish lifestyle. The miscalculation at the Olympics had its origin in injuries suffered by Johnson during the early part of the 1988 season, in financial disputes and "disarray in the Johnson entourage on the road to Seoul". 164 Johnson aggravated a hamstring injury at a race in Tokyo in May and decided to recuperate in the care of Dr Astaphan on the island of St. Kitts, rather than join a group of Francis' athletes in Europe. Johnson and Francis at one point decided to part company but resolved their differences at a meeting in Toronto in late June. Johnson resumed competition in August, but his performances deteriorated and included a loss in Zurich to American arch-rival, Carl Lewis. After returning to Toronto on 22 August, Francis designed pre-Olympic training programs and Dr Astaphan placed Johnson on a short program of Inosine (a legal, mildly anabolic substance), growth hormone and "Estragol", with the last injections made around 28 August, 26 days before the Olympic 100-metre final. The Dubin Inquiry makes the following finding as to the identity of the substance referred to as "Estragol": Notwithstanding his protestations to the contrary, I am satisfied that when Dr Astaphan introduced "estragol" to his athlete patients in 1985, he was in fact administering stanozolol and that, even more disturbing, the stanozolol he was administering was the injectable Winstrol-V which he had purchased from Sterling Drug Ltd. I am also satisfied that Dr Astaphan never told the athletes that65 the drug he was providing to them was in fact a veterinary product.

Until Seoul, Charlie Francis believed that "Estragol" was untestable Furazobol, but he later recognized that Dr Astaphan had actually been injecting testable Stanozolol. 166 Horse sense might suggest that Johnson's disqualification was justified, since by the time of the Seoul Olympics he had been knowingly using banned substances for over six years. In fact, the outcome was no foregone conclusion and the process that deprived him of gold was so

163 Ibid. at 271-84; SPEED TRAP, supra, note 4 at 3 & 111-13. 164 Dubin Report, supra, note 1 at 290. 165 Ibid. at 308. 166 See SPEED TRAP, supra, note 4 at 2-3, 162, 277. Francis speculates at 276-78 that Johnson may have taken steroids after the last apparent injection on 28 August 1988. 1991] Sports Law irregular that one can seriously question whether it was proper. The sequence of events was as follows: Saturday, 24 September 1988: Johnson wins the 100-metre final at 1:30 p.m. At 2 p.m., he attends the medal ceremony and then receives a televised, congratulatory telephone message from Prime Minister Mul- roney. Johnson then proceeds to doping control, where, after a long delay and 10 beers, he is able to produce the necessary "A" and "B" samples. Sunday, 25 September 1988: Testing of the "A" sample in the IOC laboratory results in a positive test for Stanozolol. The sample number is correlated with the list of names held by the Chairman of the IOC Medical Commission, Prince Alexandre de M6rode. Monday, 26 September 1988: At 1:45 a.m., Carol Anne Letheren, the Canadian Chef de Mission receives a letter from de M6rode advising her of a positive result in Johnson's "A" sample and inviting the team to attend analysis of the "B" sample. At 10 a.m. Charlie Francis, Dr William Stanish (chief Canadian medical officer) and Dave Lyon (team manager) go to the IOC laboratory and meet Drs Arnold Beckett and Manfred Donike (IOC Medical Commissioners) and Park Jong Sei (iaboratory director). After Johnson attends at 11 a.m., the detected drug is revealed as Stanozolol and testing of the "B" sample begins. Johnson attributes the positive result to actions by a stranger who was in the doping control area. By noon, media reports of the positive "A" sample are circulating. In the afternoon, a meeting is held with Richard Pound, a Canadian lawyer and IOC Vice-President, to prepare a case to be presented at the meeting of the IOC Medical Commission scheduled for 10 p.m. Pound agrees to argue the case on theories suggested by Johnson's group - sabotage and breaches of security at doping control. By 10 p.m. the "B" sample is confirmed as containing Stanozolol. Pound, with Stanish, argues the case before about 25 officials and puts in an outstanding performance, but is set back by an undisclosed part of the Commission's case. In response to the sabotage theory, Dr Donike, of the IOC Subcommission on Doping and Biochemistry, introduces evidence of Johnson's endocrine profile (natural hormone level) and argues that this shows long-term steroid use and is inconsistent with a single application. The meeting then deliberates for about two hours. Tuesday, 27 September 1988: At 1 a.m. the Commission announces that it will recommend to the IOC Executive Committee that Johnson should be disqualified. Later in the morning Letheren recovers the gold medal from Johnson. At 8:30 a.m. the Executive Committee disqualifies Johnson. Justice was, therefore, dispensed with remarkable speed: accusa- tion, trial and punishment took less than 24 hours. In the process, Johnson lost an estimated total career income of $25 million. The IOC announced the disqualification at a press conference at 10 a.m. on Tuesday, 27 September. The IOC press release stated in part: Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

The urine sample of Ben Johnson (Canada - Athletics - 100m) collected on Saturday, 24th September 1988 was found to contain the metabolites of a banned substance namely Stanozolol (anabolic steroid). The IOC Medical Commission discussed all arguments presented by the Canadian Delegation, especially the statement that the substance in question might have been administered after the competition by a third67 party. The steroid profile however is not consistent with such a claim.

The Dubin Report, taking a less hasty 21 months to investigate and reflect, confirmed the Commission's technical findings: "There was no mistake about the identity of the urine sample .... There was no mistake 68 in the analyses .... There was no sabotage". Johnson's urine was certainly tainted, but no more than the summary proceedings he faced. In any other walk of life, the defects in due process would fatally flaw the disciplinary action (and in certain other locations, athletes' rights would have counted for more). 169 The anomalies begin with the rules and by-laws of the IOC which fail to clearly define the substantive offences or the procedures and responsibilities of the IOC Medical Commission. 170 The accused does not have full notice of all elements of the charge and it is not clear what constitutes evidence of knowing use. A particular abnormality in Johnson's case was the ad hominem use of the endocrine profile to prove repeated steroid application; use of the profile is not expressly authorized in IOC rules and the evidence was introduced as an unprecedented surprise. 171 The hearing process denies an adequate chance to rebut the allegations and evidence, and particularly gives rise to the apprehension of bias. Doping control requires IOC officials to act as testers, prosecutors and judges (and Johnson further muddled the roles by asking an IOC Vice-President to serve in the very difficult position of defence counsel). There may also have been serious breaches of security rules in the presence of unauthorized persons at the doping control office 172 and in the publicity given to Johnson's positive "A" sample. 173 In theory, Johnson might have relied on the numerous irregularities in the IOC's proceedings to challenge his disqualification. A delegation and government fully committed to athletes' rights might well have encouraged him in this course. Unfortunately, Ottawa had been the site in June of the First Permanent World Conference on Anti-Doping in Sport' 74 and the "war-on-drugs" mentality tends to suppress matters of

167 Dubin Report, supra, note 1 at 264. 168 Ibid. at 268-69. 169 Compare Hill, supra, note 153. 170 See above, Part III, C. 171 See DRUGS, supra, note 76 at 177-79; SPEED TRAP, supra, note 4 at 6 & 12-13. Compare Discussion Paperfor Consultation on the Dubin Report; Doping Related Matters (Government of Canada: Fitness and Amateur Sport, 1990) at 17 [hereinafter Discussion Paper)where Marcel Danis said: "There is some consider- able debate within sport and scientific circles concerning the reliability of endocrine or hormone profiles as an indicator of doping activity." 172 SPEED TRAP, supra, note 4 at 275-76. 173 Ibid. at 279-80. 174 See infra, Part III, D, 4. 1991] Sports Law due process. On the day of the disqualification, Sports Minister Jean Charest announced that Johnson was suspended from federal programs for life and would never again run for Canada. 175 (More rough justice was later dispensed in 1990 when the IAAF retroactively annulled world they had made formal records of Johnson and Angella Issajenko because176 admissions of drug use at the Dubin Inquiry.) The Dubin Inquiry eventually revealed that, regardless of fairness, the IOC was certainly right. The Dubin Report makes no adverse comment on the flawed proceedings in Seoul, but does recommend a right of appeal from decisions about federal funding.

2. Inquiry and Report

On 5 October 1988, an Order in Council appointed Charles L. Dubin, at that time Associate Chief Justice of Ontario, to inquire into events in Seoul and drug use by Canadian athletes and to make recommendations on related issues. 177 The appointment of the Commission of Inquiry followed public pleas of innocence by Dr Astaphan and Johnson and a request by Johnson for a full investigation. At a press conference on October 4, Johnson stated: "I have never, ever, knowingly taken illegal drugs; and I would never embarrass my family, my friends, my country and the kids who love me." 178 The Inquiry therefore initially faced the possibility of error or manipulation in the testing process. In the Inquiry's Report released on 27 June 1990, the Commissioner explains that the objectives were to ascertain "what has transpired, to identify the problem areas, to define the issues, and to seek a way of correcting the errors of the past so that they will not recur". 179 The Inquiry held public hearings from 11 January 1989 until 3 October 1989, called 119 witnesses and received 26 public briefs. The Commissioner was assisted by counsel, police investigators, research and administrative staff, a scientific experts panel and a sports experts panel. The Inquiry cost $4 million, which included $267,450 in legal fees paid to prominent witnesses. During the hearings, "forty-six Canadian athletes from a wide spectrum of athletic disciplines admitted ....their own anabolic steroid use". 180 Canadians thus learned, for a stiff fee, that doping is widespread and that Ben Johnson was a steroid user. The Inquiry was constructed as a forensic exercise by blue-chip lawyers - a format which confined the line of questioning, precluded awkward fundamental analysis and substantially dictated the outcome. Although it followed a request by a private individual, the political

175 W. Walker, "Stripped of gold medal, Johnson banned for life" The Toronto Star (27 September 1988) Al. 176 Dubin Report, supra, note 1 at 449, 549-50. The IAAF's action effectively stifled further revelations about previous drug abuse. 177 Ibid. at 585 (P.C. 1988-2361). 178 Ibid. at 266. 179 Ibid. at xxvii. 180 Ibid. at 336. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 objectives involved the usual diversionary tactics associated with public inquiries:

to dissociate the government or government bodies from any scandal; to convey the impression of taking action to remedy the problem; and thirdly, implicit in the trial format itself, to expose the guilty and affirm the power of sanctions as the best means to deter.' 8'

The carefully managed proceedings served as a made-for-television morality play parading the guilt and remorse of a few corrupted wrong- doers. The media could be relied on to project the main issue as the deviant, occasionally bizarre, misdeeds of the greedy and unscrupulous, without engaging in "a more general critique of the relationships between medicine, industry and technology .... [or] thoughtful analysis of the motivations and behaviour of non-medical drug users". 182 The process inevitably reinforced the war-on-drugs mentality and did little to disturb the established hierarchy. Two-thirds of the Dubin Report's 70 recommendations relate to controls, penalties and appeal procedures - a crime-and-punishment approach calculated to keep lawyers, bureaucrats, investigators and laboratories central to sport. The Dubin Report asserts that sport "contributes so very much to the health and character of those who participate", 83 but finds that narrow specialization by high performance athletes can damage personal development and the preparation for life.18 4 The Report analyzes doping as the result of a moral failure caused by overemphasis on winning medals. The Report therefore begins by recommending that government redirect policy towards broad access to participation and the affirmation of ethical standards; it also calls for a loosening of Sport Canada's controls over NSOs. 185 To increase opportunities for Canadian athletes, the Report recommends that funding and carding be based on domestic standards, 8 6 but recognizes that this will not reduce the temptation to dope since the "threshold is simply lowered". 8 7 To maintain the independence of NSOs, the Report recommends that decisions about eligibility for competition remain the exclusive function of those bodies. 88 The Dubin Report proposes to establish the required morality through police powers, reporting requirements 189 and punishments. This

181 L. Beauchesne, The Dubin Inquiry's Political Purpose in AFTER DUBIN, supra, note 6 [hereinafter PoliticalPurpose]. See also Beauchesne, supra, note 103 at 200; CANADIAN SOCIETY, supra, note 16 at 224-26. 182 J. Blackwell, Discourseson Drug Use: The Social Constructionof a Steroid Scandal (1991) 21 J. OF DRUG ISSUES 147 at 157-58 [hereinafter Blackwell]. 183 Dubin Report, supra, note 1 at 500. 184 Ibid. at 509, 534. 185 Ibid. at 527-31. See above, Part II, C. 186 Ibid. at 532-35 (Recommendation 8). 187 Ibid. at 506. 188 Ibid. at 532 (Recommendation 7). 189 Ibid. at 555, 556 & 572 (Recommendation 34, 36 & 59). NSOs must inform on physicians, coaches must inform on athletes and the CTFA must establish a general mechanism for reporting potential doping problems. 1991] Sports Law regime disciplinary includes legal regulation, enhanced doping control by an independent agency, and new penalties to be applied by Sport Canada, NSOs and international organizations. The Report recommends that anabolic steroids and human growth hormone be reclassified as Schedule G "controlled drugs" under the Food and Drugs Act, "making them subject to stricter regulation with correspondingly greater penalties for illegal possession, importation and trafficking". 190 The Sport Medi- cine Council of Canada would expand its role to become the central doping control agency responsible for testing, investigation, research and education. 191 Controls would be weighted towards unannounced out-of-competition testing,1 92 but "a positive laboratory test [would] not be the sole means of proof of a doping offence". 193 The Report recommends that the federal government retain jurisdiction "to suspend from direct federal funding athletes who have deliberately violated the Sport Canada anti-doping policy"; 194 funding suspension could also be applied to sports organizations that fail to enforce doping control. 195 The rules of NSOs should include stricter penalties for athletes 196 and for coaches or other persons who assist in doping infractions,1 97 and suspended athletes wishing to be reinstated should be required to submit to testing during the period of suspension.198 The Report also urges the IAAF and IOC to enforce doping control more rigorously and apply longer suspensions for infractions. 199 The Report proposes special monitoring of the administration of the Canadian Weightlifting Federation200 and the Canadian Track and Field Association, 20 1 and recommends suspension from federal funding for named athletes 20 2 and coaches, including Charlie Francis. 20 3 The recommended sanction for Ben Johnson is that Sport Canada maintain his suspension from federal funding, but that the sport federations

190 Ibid. at 546 (Recommendation 20). See Food and Drugs Act, R.S.C. 1985, c. F-27, ss 38-39. Recommendation 21, ibid., proposes increased penalties for offences involving minors. 191 Ibid. at 535-39 (Recommendation 11). See Recommendations 24 & 25 on health and moral education: ibid. at 547. 192 Ibid. at 541 (Recommendation 14). 193 Ibid. at 557 (Recommendation 41). 194 Ibid. at 561 (Recommendation 42). 195 Ibid. at 562 (Recommendation 43 & 44). See also Recommendations 3(b) and 4(b) on adequate doping control as a condition of funding, ibid at 528; Recommendation 46 on coach funding suspensions, ibid. at 562. 196 Ibid. at 563 (Recommendation 48). 197 Ibid. at 562 & 564 (Recommendations 45 & 49). 198 Ibid. at 564 (Recommendation 50). 199 Ibid. at 551-52, 554, 563 (Recommendations 26-28, 30-33 & 47). 200 Ibid. at 553, 567 (Recommendations 29, 55 & 56). 201 Ibid. at 572 (Recommendations 57-61). 202 Ibid. at 566 & 581 (Recommendations 52, 53, 69 & 70). 203 Ibid. at 565-66, 572-75 (Recommendation 51 - Andrzej Kulesza; Recom- mendation 62 - Charlie Francis; Recommendations 63-64 - factors to be considered before extending funding to Angella Issajenko for a proposed coaching career). On Dr Jamie Astaphan see p. 577 (Recommendation 65). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 determine his eligibility to compete in accordance with penalties in force at the time of the infraction. 2°4 The suggested disciplinary regime includes 205 due process safeguards to protect the rights of accused parties.

3. The ParliamentarySub-Committee

The Dubin Report's recommendations on doping control were considered by the House of Commons Sub-Committee on Fitness and 20 6 Amateur Sport as part of its review of federal programs and policies. The Sub-Committee's report, Amateur Sport: Future Challenges, endorses Dubin A.C.J.O.'s view that the Sport Medicine Council of Canada should become the central, independent agency responsible for co-ordinating the anti-doping campaign. 207 The Sub-Committee was nevertheless concerned that doping control can infringe legal rights. It therefore recommended:

That due process and consistent protocols for dope testing and determining doping violations be established. The Sub-Committee affirms that the laws of Canada, of the provinces and territories, and the rights, dignity and integrity of the individual must all be respected and the 208 responsibilities of all must be defined.

The Sub-Committee advised the Minister of State for Fitness and Amateur Sport that it substantially agreed with the Dubin Report's recommendations on penalties and grievance procedures.20 9 To clarify the scope of government responsibility, the Sub-Committee advised that government should restrict its sanctions to "direct" funding of individuals, rather than funds administered by NSOs or provided indirectly: "The government should not seek to impose its view of proper sanctions of participation and team selection indirectly through its funding involvement". 210

4. Government Response and New Controls

The federal government has announced a three-phase response to the Dubin Report. The first two were implemented in 1990 and 1991 and dealt with penalties and a new system of doping control. The final phase will address fundamental questions about the place of sport in society, values and ethics, the role of NSOs and the policies and programs of the federal government in the support of sport.211 The govern-

204 Ibid. at 579 (Recommendation 68). 205 See infra, Part IV, A, 2. 206 See supra, Part II, D. 207 Amateur Sport: Future Challenges, supra, note 55 at 19-20 (Recommen- dation 19). 208 Ibid. at 19 (Recommendation 18). 209 Ibid. at 43-46 (Appendix A). 210 Ibid. at 44 (Point 6). 211 See News Release, supra, note 64; Appendix G. See infra, Part II, E. See also now SPORT: THE WAY AHEAD, supra, note 64. 1991] Sports Law ment response has also included participation in international doping control agreements. The first phase saw acceptance of a specific proposal in the Dubin Report, but rejection of a recommended general principle. In August 1990, Sport Minister Marcel Danis followed the Report in announcing that Ben Johnson's suspension from federal funding would be continued and that his eligibility to compete should be determined by Athletics Canada and the Canadian Olympic Association; 212 these organizations duly declared that Johnson could be reinstated once he had served the two-year suspensions prescribed by the rules of their international federations. At the same time, the Minister announced that government funding of NSOs would be conditional on implementation during 1991 of a new, uniform system of penalties. The required penalties would be a minimum four-year ban from competition for first-time drug users and a lifetime ban for a second offence. This proposal contradicted the Dubin Report's recommendation that NSOs should determine eligibility213 and was promptly criticised as an abuse of power that imposed a Procrustean system on all sports:

There was no proper consultation with Canadian sport-governing bodies on a question both of severity and of proper jurisdiction. Instead there was a unilateral and pre-emptive intervention. 214

The "Sport Forum I" meeting of NSO managers in April 1991 was nevertheless convinced of the Minister's wisdom and authority and 215 passed resolutions adopting a parallel penalty structure. The second phase was announced in January 1991 and consists of an anti-doping campaign that is projected as very intense by world standards. 216 The campaign is to be co-ordinated by a new incorporated body, the Canadian Anti-Doping Organization (CADO), which in April 1992 was renamed the Canadian Centre for Drug-free Sport (CCDS). The initiative involves measures by sports bodies and by civil authorities. The sport-related measures include an expanded program of testing and investigation with mechanisms to guarantee procedural rights, new NSO anti-doping policies, research and education programs, and international advocacy. Civil control will be achieved through liaison with law enforcement agencies and, as recommended in the Dubin Report, through legislative reclassification of anabolic steroids:

212 R. MacLeod, "Johnson Cleared to Run Again" The [Toronto] Globe and Mail (10 August 1990) Al. 213 Dubin Report, supra, note 1 at 532 (Recommendation 7). 214 R.W. Pound, "Government isn't a good sport" The [Toronto] Globe and Mail (17 August 1990) A15. See also Canadian Olympic Association Response to the Dubin Report (1 December 1990) at 7 [hereinafter COA Response]. 215 News Release, "Sport Forum I" (29 April 1991). See also supra, Part II, E on "Sport Forum I" discussions. 216 News Release, supra, note 64 Appendix B. See also Discussion Paper, supra, note 171. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

The Government plans to include anabolic steroids under the proposed new Psychoactive Substance Control Act which is under development. This will ensure a greater level of control and corresponding penalties related to drugs. Until such time as the new legislation is in place, Health and Welfare Canada will be initiating the process to reclassify anabolic steroids from Schedule F of the Food and Drugs Regulations to Schedule G of the Food and Drugs Act, making them subject to a similar strict control regime.21 7

CADO was officially inaugurated in September 1991218 as "an arms length, independent, non-profit body, situated outside of government.... responsible for co-ordinating the development and implementation of policies and programs for anti-doping in Canadian sport".21 9 NSOs must "agree to defer to the authority of, and co-operate with" 220 CADO as a condition of receipt of federal government funding. CADO itself is funded by the federal government which provided "$1.47 million for the enhanced anti-doping campaign in '91-92 and $2.3 million thereafter.... in addition to the $1 million in existing resources applied to anti-doping efforts". 221 The "independent" structure suggests an attempt to insulate the program from review under the Canadian Charter of Rights and Freedoms,222 but the governmental nexus is so strong that the new program is probably subject to Charter rights. Similarly, the Privacy Commissioner has commented adversely on the chosen mechanism and indicated that privacy considerations should not be discarded:

Because the anti-doping organization will not be a federal agency, it will not be subject to the Privacy Act. This may have been a deliberate attempt to circumvent the Act. Nevertheless, the organization's approach (as announced by the minister) prompts some general privacy objec- tions. Athletes may find themselves with precious few privacy rights.22 3

At CADO's inauguration, Sport Minister Pierre Cadieux confirmed that a new, uniform penalty structure would take effect at the end of

217 News Release, ibid.; Appendix C. 218 Fitness and Amateur Sport, News Release, "Minister Cadieux Announces Four-Year Penalty, Framework and Launch of Anti-Doping Organization" (18 September 1991) [hereinafter Fitness] and background paper "A Canadian Anti- Doping Organization"; M. Cleary, "Positive doping tests show huge increase" The [Ottawa] Citizen (19 September 1991) C16. The Chairman of CADO is Dr Andrew Pipe. The Chief Executive Officer is Mr Victor Lachance. 219 "Speaking Notes for The Honourable Pierre H. Cadieux, Minister of State, Youth, Fitness and Amateur Sport, on the occasion of CADO Launch" (Gloucester, Ontario, 18 September 1991) at 3 [hereinafter Speaking Notes]. 220 "A Canadian Anti-Doping Organization", supra, note 218 at 5. 221 News Release, supra, note 64 'at 2. See also Dubin Report, supra, note 1 at 540, which notes an anticipated increase of Sport Canada's annual $500,000 expenditure on doping control. 222 See supra, Part III, C, 4. 223 Privacy Commissioner, Annual Report 1990-1991 (Ottawa: Minister of Supply and Services Canada, 1991) at 19 [hereinafter Privacy Commissioner]. 1991] Sports Law

199 1.224 In collaboration with CADO, NSOs must enact anti-doping rules for participants and must establish arbitration and appeal procedures to deal with infractions. The policy paper, Penaltiesfor Doping Infractions, outlines the required framework of eligibility and funding penalties for condoning or using banned substances or practices. "Non-use" doping infractions include "aiding, abetting, condoning, counselling, or distrib- uting banned substances or the materiel used in banned substances or practices" (para. A. 1(2), D.1). Persons other than athletes who violate "non-use anti-doping rules ....shall be subject to a lifetime penalty in respect of federal direct funding and sport eligibility, without opportunity for appeal of the penalty" (para. D.2). The policy paper defines "use" infractions by athletes as either "major" or "minor":

Major doping infractions are those involving "doping classes and methods" including, inter alia, steroids and related compounds, blood- doping, masking agents, diuretics, probenecid, human growth hormone, stimulants, narcotics, beta blockers, peptide hormones and analogues, as defined from time to time by the Canadian Anti-Doping Organization consistent with the International Olympic Charter Against Doping in Sport. (para. A.2)

Minor doping offences [sic] are those involving ephedrine, phenyl- propanalomine, codeine etc. when these are administered orally for medical purposes in association with decongestants and\or anti-hista- mines, as defined....(para. A.2)

Major doping infractions will carry the following penalties: lifetime suspension from direct federal sport funding (para. B.2.2a) and competitive ineligibility for a minimum of four years for the first offence (para. B.l.la) and for life for the second (para. B.l.lb). Minor infractions will carry funding suspension for three months for the first offence and for life for the second (para. B.2.2b). The periods of ineligibility following minor infractions will be as follows: first infraction, three months; second infraction, four years; third infraction, life (para. B. 1. lc). Procedures will be established to consider applications for reinstatement (para. C) and to hear appeals from doping infraction decisions (para. E). There will be many practical difficulties in implementing this new regime, which seems to be a lawyer's gold mine. The first problems relate to the status of CADO, which lacks any special legal authority and will function as a private, administrative body co-ordinating NSOs' anti-doping programs. The agency's mixed roles as investigator, tester and convenor of hearings will inevitably create apparent conflicts of interest providing grounds to challenge proceedings. It is anticipated that CADO will maintain liaison with law enforcement agencies, and evidence obtained during doping investigations might be subject to seizure

224 Fitness, supra, note 218; Speaking Notes, supra, note 219; see also policy paper "Penalties for Doping Infractions" (presented by Pierre Cadieux, Minister of State, Youth, Fitness and Amateur Sport). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 by police authorities. The draconian sports penalties and the possibility of concurrent criminal liability will inevitably cause the accused to demand strict observance of legal rights. It will be the responsibility of NSOs to enact the rules, sanctions and procedures that will apply to their members. As drafted in the announcement of September 1991, the proposed uniform rule structure contains various anomalies. First, there is no provision for athletes who refuse to submit to doping control. In the absence of NSO rules on refusal, the entire regime can be avoided simply by declining to give the sample that might prove a "use" infraction. Second, "non-use" infractions may prove particularly difficult to investigate, especially where parties exercise the apparent right not to co-operate with an investigation. The definitions of these infractions also leave something to be desired. The policy paper, Penalties for Doping Infractions, indicates (para. D.1) that "condoning" includes "failing to report suspected use of banned substances ....[and] possession of banned drugs unless compelling medical reasons exist to possess same." It is not clear what is the scope of this positive duty to report or what is a "compelling" reason. Third, the "use" infractions refer to the slightest involvement with banned substances or methods: there is no reference to a mental element, to expected competitive advantage or to standards of tolerance. Past practice, however, suggests that discretion will be exercised in actual enforcement and the policy's goal of consistency is unlikely to be realized. Besides appearing to toughen domestic controls, Canada has par- ticipated in a number of international initiatives and expressions of ideal.225 The First Permanent World Conference on Anti-Doping in Sport,226 held in Ottawa in June 1988, established a working group and produced a charter which was subsequently adopted as the International Olympic Charteragainst Doping in Sport. Canada co-chairs the working group which is seeking to co-ordinate international controls through out-of-competition testing, a standard list of banned substances and a model national anti-doping program. Some countries have also entered into bilateral or multilateral agreements providing for exchanges of information and reciprocal doping control. 22 7 In December 1990, Canada signed a five-year Memorandum of Understandingwith the governments of Australia and the United Kingdom that calls for "mutual assessment and evaluation of each others [sic] programmes against a commonly

225 Dubin Report, supra, note 1 at 412-15, 443-44; Discussion Paper, supra, note 171 at 30-32. 226 S. Newman, "A Breakfast of Champions; The First Permanent World Conference on Anti-doping in Sport; A Step Towards Curbing Drug Use and Abuse" (Summer 1988) 12(2) CHAMPION 12; M. Hynes, "Worldwide anti-drug fight takes shape" The [Toronto] Globe and Mail (30 June 1988) A15. See also M.T. Wolff, Playing by the Rules? A Legal Analysis of the United States Olympic Committee- Soviet Olympic Committee Doping Control Agreement (1989) 25 STAN. J. INT'L L. 611 [hereinafter Playing by the Rules?]. 227 Dubin Report, supra, note 1 at 422-23 (Nordic Confederation), 466-67 (US OC-USSR OC Agreement and subsequent extension to other countries), 531-32 (Recommendation 6); Playing by the Rules?, ibid. 1991] Sports Law agreed and accepted standard [and] arrangements for athletes training in each other's countries to be tested either at the request of the home 228 nation or on the initiative of the host nation".

E. Discussion

The International Olympic Charter against Doping in Sport identifies doping as "part of the problem of drug abuse and misuse in society". 229 Sport now finds itself co-opted into waging a prominent campaign in this punitive war on disapproved drugs: the war recognizes sport as an influential symbol of the values and deeper meanings of the society and looks for a co-operative ally. Society certainly faces a serious problem of drug abuse, but it is not rationally addressed by arbitrarily criminalizing the mere use of certain exotic substances. Instead, there must be an integrated preventive strategy that recognizes our general dependence on drugs and deals comprehensively with the dangers of both licit and illicit drugs. Repressive measures and mandatory testing do little to improve public health or to promote informed and judicious drug use. Such measures also involve significant denials of freedom. The latest evaluation by the Privacy Commissioner on this point is as follows:

The Commissioner continues to be concerned about the lack of merit of most drug testing programs. Little this office has seen in the past year has altered its thinking about the fundamental futility of testing programs and their inherent intrusiveness. The government's example 230 is a poor one for the private sector to follow.

Opposition to liquor licensing once prompted the slogan, "England free better than England sober". Perhaps we should now declare, "Canada free better than Canada clean". The latest anti-doping campaign has drawn inspiration from the Dubin Report, whose flawed moralizing 231 has lent support to a partic-

228 Fitness and Amateur Sport, News Release, "Minister Signs Trilateral Anti- Doping in Sport Agreement" (19 December 1990); News Release, supra, note 64 Appendix E. Lyle Makosky, Assistant Deputy Minister, Fitness and Amateur Sport (Canada), has explained that mutual assessment of national models focuses on "the control optic - testing, investigation....and other optics - the education dimension and the consideration of the underlying values and ethics dimension": see Common- wealth of Australia, Senate Standing Committee on Environment, Recreation and the Arts (7 December 1989) at 4141 [hereinafter Senate Standing Committee]. 229 International Olympic Charter against Doping in Sport, Preamble and principles. Compare "Provisions Against the Trafficking of Prohibited Drugs" Olympic Charter 1991 (International Olympic Committee, By-law 3.1 to Rule 48) at 47 which states that: "In order to intensify its fight against doping and to stem such scourge at its roots....all those who are involved in any way in the practice of doping will be sanctioned." 230 Privacy Commissioner, supra, note 223 at 19. 231 C. Overall, "Ethics and High Performance Sport" in AFTER DUBIN, supra, note 6; K.V. Maier, Philosophical Anorexia (1991) 43 QUEST 55 at 61-62; R. Beamish, Review (1991) 26 INT'L REV. SPORT Soc. 359. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 ular form of political discourse.232 The critics have not been kind to it and have dwelt on the Report's costs, its absence of novel recommendations and its failure to criticize government officials for inaction in the face of suspected doping practices. 233 Richard Pound has criticized the factual and ethical basis of the Report as follows:

The Dubin report is not regarded internationally as a document of very great importance. It contained....recommendations that were so purely based on a lack of complete information and any real understanding of the international sport system that it just carries no weight at all.... Nowhere....is there written a framework or definition that defined doping. The line between nutrition or training and illicit performance enhancement has never been drawn, and this was something else that sportsmen were looking for in the Dubin report.234

The one clear result of the inquiry was that the IAAF retroactively stripped Canadian athletes of world records, 235 and the exercise may well have been counterproductive in other respects. In spite of the Report's recommendations that NSOs maintain independence in their administration, anti-doping has proved a convenient vehicle for government to tighten further its controls on sport.236 A particular irony is that Johnson's suspension served as a massive advertisement for the performance-enhancing effects of steroids. Before Seoul, the evidence was unclear, but athletes will now look at the 9.79 run and compare Johnson's results since his return from suspension.237 The enduring message of the scandal and Inquiry is, "steroids work". The IOC suspension and the Dubin Inquiry thus performed an invaluable service for pharmaceuti- cal companies and contributed to increased interest in substances that 238 improve strength and good looks. Since 1988, a sizeable percentage of the federal sports budget has gone to the anti-doping campaign, (and it is particularly noticeable how doping control affords frequent opportunities for foreign travel by sports officials 239 and government bureaucrats). Direct expenditures include the World Conferences, the Dubin Inquiry, Sport Canada's anti-doping program, the founding of CADO and administrative costs for NSOs.

232 Political Purpose, supra, note 181; Blackwell, supra, note 182. 233 N. McCabe, Olympic Gold: The Dubin Inquiry (February 1990) 14:1 Canadian Lawyer 22 at 25. 234 Quoted in J. Christie, "Report no panacea for amateur sport" The [Toronto] Globe and Mail (20 October 1990) A14. 235 Dubin Report, supra, note 1 at 449. 236 Compare COA Response, supra, note 214 at 1, which states: "The report reflects a pro government bias so strong that one would be excused for concluding that Canadian sport was spawned and nurtured by government alone." 237 "Ben Johnson: Is there life after fame?" The Ottawa Citizen (3 July 1991) A10. 238 G. Hardie, "Pumping Steroids" The Ottawa Citizen (3 July 1991) Al, A2. See also Cashmore, supra, note 113 at 130. 239 Dubin Report, supra, note 1 at 433-34, 571 (regarding CTFA travel to Sweden to attend symposium). 1991] Sports Law

Doping issues also form part of the mandate of the Fair Play Commis- sion, the Sports Medicine Council of Canada and Sport Canada's international relations directorate, and these costs may soon be supplemented by costs of civil law enforcement. 240 Drug use by Canadian athletes nevertheless seems to be as high as ever241 and we can anticipate an endless technological battle as athletes leapfrog ahead of the prohibitions and testing techniques. Just as the war on drugs is subject to critical evaluation, the priority, rationale and effectiveness of the anti-doping campaign must now be seriously questioned. The campaign will flounder as long as it lacks a sound philosophical base, and the federal government shows no sign of clarifying why it is exacting the present human and financial costs. When testifying in Australia in December 1989, Assistant Deputy Minister Lyle Makosky noted:

....by and large the traditional focus on health considerations has not been a significant winner with athletes....Ultimately, 242 it is a question of ethics and values.

By January 1991, the second phase of the response to the Dubin Report preferred not to stress "the ethical basis of the doping problem" and fell back on "deterrence, prevention and control measures". 243 Until the 1980s, control measures in amateur sport were directed against taking money; they now target the equally artificial sin of taking listed substances. A scientifically based activity that demands measured results cannot sensibly ban performance enhancement, and doping control must ultimately go to the scrap heap along with other unworkable and hypocritical ideologies. We may soon look back bemused at a system that once allowed an athlete to consume 10 beers to check that he was not abusing drugs. The time to declare a pause in the repressive anti-doping campaign is overdue. A "time-out" might also serve to re-think the greater waste and injustice of the wider war on drugs.

240 The sports programs add further complication to the already bewildering array of federal and provincial departments and agencies that are responsible for specific drug issues. 241 "Drug use by athletes rising, anti-doping doctor reports" The [Toronto] Globe and Mail (25 September 1991) A15 (report at a conference in Bergen, Norway). See also J. Christie, "Canadian sprinter fails doping test" The [Toronto] Globe and Mail (19 June 199 1) A l; C. Motherwell et al., "Fellow athletes informed on Calgary sprinter" The [Toronto] Globe and Mail (20 June 1991) Al; J. Christie & G. Loewen, "Morrison drug use recent, Montreal doctor contends" The [Toronto] Globe and Mail (21 June 1991) A13; P. Hickey, "Hero Worship Powerful Drug for Athletes" The Ottawa Citizen (20 June 1991) E2 (positive tests and disciplinary action). 242 Senate Standing Committee, supra, note 228 at 4141. 243 News Release, supra, note 64 Appendix B. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

IV. OUTLINE OF OTHER DEVELOPMENTS

A. Rights of Amateur Athletes

1. General

The term "amateur" no longer means "unpaid", but may be used to refer to athletes who are not signed to professional employment contracts or affiliated with commercial circuits. Amateur sports federations now focus on regulating payments and defining eligibility, rather than per- petuating a myth of non-materialistic purity.244 Amateur athletes include children, 245 student athletes and recreational participants. They also include state-funded, high-performance competitors who are subject to contractual agreements with NSOs 24 6 and who receive grants or allowances from government agencies. A few of these competitors are able to market themselves to generate private income from endorsement contracts, prizes and payments for appearances. "Athletes' rights" refers to guaranteed basic rights and private law rights.247 The former include constitutional and human rights while the latter include rights associated with the working relationship between athletes and NSOs. This relationship typically creates disputes over financial entitlements, team selection and due process in disciplinary matters. 248 Traditionally, high-performance athletes in Canada have been viewed as exercising a privilege granted by sports organizations and Sport Canada, 249 and disputes have been resolved more on the theory of administrative law than employment law. Athletes' duties nevertheless resemble those of contracted workers and some commentators suggest that high-performance athletes should enjoy the benefits of employee 0 status.25 Athletes' rights have received much attention during the period under review. Recent public reports have considered equality rights and other aspects of the status of the athlete, and allegations of discrimination

244 See A. Strenk, Amateurism: The Myth and the Reality in J.O. Segrave & D. Chu, eds, THE OLYMPIC GAMES IN TRANSITION (Champaign: Human Kinetics Books, 1988) at 303; K.L. Shropshire, Legislation for the Glory of Sport: Ama- teurism and Compensation (1991) 1 SETON HALL J. OF SPORT LAW 7. 245 See P.J. Galasso, Children in Organized Sport: Rights andAccess to Justice in P.J. Galasso, ed., PHILOSOPHY OF SPORT AND PHYSICAL ACTIVITY: ISSUES AND CONCEPTS, supra, note 113 at 324 [hereinafter Galasso]. 246 See S.M. MacMillan, Athlete/National Sport OrganizationAgreements in Canada (1991) 5 J. OF SPORT MANAGEMENT 177. 247 See Barnes, supra, note 2 at 63-79, 139-56; B. Kidd & M. Eberts, ATHLETES' RIGHTS IN CANADA (Toronto: Ministry of Tourism and Recreation, 1982). 248 See P.J. Galasso, Natural Justice in Sport in PHILOSOPHY OF SPORT AND PHYSICAL ACTIVITY: ISSUES AND CONCEPTS, supra, note 245 at 384. 249 See Dubin Report, supra, note 1 at 491. 250 See R. Beamish & J. Borowy, Q. WHAT Do You Do FOR A LIVING? A. I'M AN ATHLETE (Kingston: The Sport Research Group, Queen's University, 1988). See also Dubin Report, supra, note 1 at 498 & 534. 1991] Sports Law and procedural unfairness have prompted important litigation. A number of studies also consider possible discrimination against French-Canadian hockey players in the drafting and employment practices of the National 251 Hockey League.

2. Recent Reports

The eight "National Goals for Sport" declared in Towards 2000 include increasing opportunities for all levels of participant 252 and maintaining financial support for high-performance athletes "on a combined need-reward basis"'253 through public subsidies and income from the private sector. While allowing pursuit of commercial profit, the system would oblige athletes, agents and sponsors to recognize the develop- mental contribution of the NSO. The Task Force report recognizes the costs associated with athletic achievement and proposes a support system "which encourages and permits individuals to make a commitment to high performance sport without undue sacrifice of educational, cultural, or life objectives". 254 Besides dealing with financial entitlements, Towards 2000 notes that programs must ensure "that actions and decisions affecting athletes (selection, discipline, carding, negotiation of etc.) are conducted in accordance athlete contracts, anti-doping measures 255 with accepted standards of due process and natural justice". Dubin Report call for government The first recommendations in the 256 policies that will remove inequalities in access to sports programs. The Report also includes a chapter entitled Athletes' Rights that is mainly concerned with the constitutional and procedural aspects of drug testing. 257 The chapter refers to examples of scientific error in testing and notes that:

The IOC-accredited laboratories are reluctant to have the accuracy of their tests challenged. They have a legitimate concern that releasing technical information would allow athletes interested in cheating to benefit from that information. Athletes whose futures are affected by

251 See M. Lavoie, G. Grenier & S. Coulombe, Discriminationand Perfor- mance Differentials in the National Hockey League (1987) 13 CAN. PuB. POL. 407; M. Krashinsky, Do Hockey Teams Discriminate Against French Canadians?: A Comment on 'Discriminationand PerformanceDifferentials in the NationalHochey League' (1989) 15 CAN. PUB. POL. 94; M. Lavoie et al., Discrimination versus English Proficiency in the National Hockey League: A Reply (1989) 15 CAN. PUB. POL. 98; M. Lavoie, Stacking, PerformanceDifferentials and Salary Discrimination in ProfessionalIce Hockey: A Survey of the Evidence (1989) 6 Soc. OF SPORT J. 17. 252 See TOWARDS 2000, supra, note 5 at 38-39. 253 Ibid. at 43, 78. 254 Ibid. at 44. The report proposes protection of the athlete assistance stipend against inflation: ibid. at 43. 255 Ibid. 256 Dubin Report, supra, note I at 527-28 (Recommendations 1, 4(d)). The Report specifically mentions regional disparities and inequalities faced by women, the disabled and disadvantaged groups. 257 Ibid. at 490-98. See supra Part III, C. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

drug testing2 5should,8 however, be allowed to know the criteria used to judge them.

The Report therefore recommends that the grounds of appeal against a positive result should not be limited to the administrative integrity of the sample, but should include challenges to the scientific validity of the 259 test. The Report also includes more general recommendations on procedural rights: NSOs should establish fair grievance mechanisms, including independent arbitration, and there should be no retroactive 2 60 imposition of penalties. In the area of financial entitlements, the Dubin Report notes that athletes who earn substantial incomes no longer require assistance awards; financial need should therefore be a factor in the award of direct government funding. 261 The Report also recommends that where Sport Canada suspends athletes from direct federal funding there should be a 262 right of appeal to an independent arbitrator rather than to the Minister. Amateur Sport: Future Challenges, the report of the Sub-Com- mittee on Fitness and Amateur Sport, begins by recommending that the Canadian sport development system be centred on the needs of the athlete: "in all assessments, evaluations and programs, the athlete must 263 be the essential element and the raison d'tre of all related activities". The Report confirms the policy of increasing opportunities for disadvantaged groups2 64 and endorses recommendations in Towards 2000 and the Dubin Report on the need to protect athletes' rights through fair dispute 265 resolution procedures and independent review of decisions.

3. Cases on Equality Rights

In Ontario, the Human Rights Code, 1981266 guarantees equal treatment with respect to services, 2 67 goods and facilities; in most other jurisdictions, the protections are limited to services etc. that are customarily available to the public. Recent cases have continued to define how far human rights legislation applies regarding access to sports, physical activity and recreation programs. Services customarily available to the

258 Ibid. at 497. 259 Ibid. at 544 (Recommendation 19). 260 Ibid. at 556-57 (Recommendations 38 & 40). Recommendation 39 states that no athlete or coach should be penalized solely on the basis of his or her own testimony before the Commission. 261 Ibid. at 534-35 (Recommendation 10); ibid. at 527 (Recommendation 2 financial assistance for athletes); ibid. at 572 (Recommendation 61 - athlete reserve fund). 262 Ibid. at 561 (Recommendation 42). 263 Supra, note 55 at 6 (Recommendation 1). 264 Ibid. at 10-12 (Recommendations 6-8). 265 Ibid. at 12-14 (Recommendations 10-13). 266 S.O. 1981, c. 53. 267 See, e.g., Peel Board of Education v. OntarioHuman Rights Comm. (1990), 72 O.R. (2d) 593, 12 C.H.R.R. D/91 (Div. Ct) (services include education). 1991] Sports Law public have been held to include organized amateur hockey268 and an armed forces parachuting course, 269 and various cases have held that social clubs may not engage in discriminatory practices. 270 However, in Gregory v. Donauschwaben Park Waldheim Inc. 271 it was held that linguistic and ethnic restrictions on the purchase of recreational property were justified under section 17 of the Ontario Code which allows fraternal or social organizations serving an identifiable group to limit services or facilities to persons belonging to that group. Preserving equal opportunities in sport presents particular difficulties where the alleged discrimination relates to physical characteristics. This problem, which can be resolved either by separation of programs or by integration, has been addressed in cases of alleged discrimination on the grounds of sex 272 and physical disability.273 In the final resolution of the Blainey litigation, 274 the Board of Inquiry275 found that a suffi- ciently skilled female had the right to play on a traditionally male team, but also recognized separate women's hockey as a special affirmative action program276 so that there would be no corresponding right in a male to play on a female team. In Youth Bowling Council of Ontario v. McLeod277 the Court dealt with a statutory provision stating that discrimination on the basis of handicap does not occur where "the person is incapable of performing or fulfilling the essential duties or requirements

268 Solin v. British ColumbiaAmateur Hockey Assn (1988), 9 C.H.R.R. D/5266 (B.C. Human Rights Council) (parents' residence rules; not discrimination on the basis of ancestry or place of origin). 269 Canada (A.G.) v. Rosin, [1991] 1 F.C. 391, 91 C.L.L.C. 17011 (C.A.) [hereinafter Rosin cited to F.C.] (disability; monocular cadet). 270 See Letendre v. Royal Canadian Legion, South Burnaby Branch, No. 83 (1988), 10 C.H.R.R. D/5846 (B.C. Human Rights Council) (disability; wheelchair dancing); Singh v. Royal CanadianLegion, JasperPlace (Alberta), Branch No. 255 (1990), 11 C.H.R.R. D/357 (Alta Bd. of Inquiry) (religion; wearing turban). See also Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 (1991), 14 C.H.R.R. D/176 (Y.T.S.C.), rev'g (1989), 10 C.H.R.R. D/5812 (Y.T. Bd of Adj.) (literary and historical club; board failed to consider interaction between freedom and equality). 271 (1990), 13 C.H.R.R. D/505 (Ont. Bd of Inquiry) (recreational property operated by non-profit society for Danube Swabians). 272 For a recent feminist critique of the literature on women in sport, see H. Lenskyj, WOMEN, SPORT AND PHYSICAL ACTIVITY: RESEARCH AND BIBLIOGRAPHY, 2d ed. (Government of Canada, Fitness and Amateur Sport, 1991). 273 See Rosin, supra, note 269 (vision in both eyes not a bonafide occupational requirement for parachuting); Rogers v. Newfoundland (Minister of Culture, Rec- reation and Youth) (1991), 93 NFLD & P.E.I.R. 121 (Nfld T.D.) (blind man denied a hunting licence). 274 Supra, note 21. 275 Blainey v. Ontario Hockey Assn (1987), 9 C.H.R.R. D/4549 (Ont. Bd of Inquiry); Blainey v. Ontario Hockey Assn No. 2 (1988), 9 C.H.R.R. D/4972 (Ont. Bd of Inquiry). 276 See the Charter,supra, note 135, s. 15(2); Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 16; Human Rights Code, supra, note 266, s. 13; Re Ontario Women's Hockey and Ont. Human Rights Comm. (1987), 59 O.R. (2d) 492 (H.C.). 277 (1990), 75 O.R. (2d) 451, 74 D.L.R. (4th) 625 (Div. Ct), aff'g (1988), 9 C.H.R.R. D/5371 (Ont. Bd of Inquiry) [hereinafter Youth Bowling cited to O.R.]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 attending the exercise of the right". 278 In this case, 11-year-old Tammy McLeod, who suffered from cerebral palsy, was excluded from a children's bowling competition because she used a wooden ramp to deliver the ball from her wheelchair. The Court recognized that, "Tammy is not able, because of handicap, to perform the essential act of bowling - manual control and release of the ball".279 This rule of the game was, however, found to have adverse impact on the handicapped and an obligation then arose to accommodate persons affected by it:

....the Code imposes upon those who offer services in the sports field the obligation of making accommodations to the needs of handicapped persons who wish to participate, up to the point of undue hardship. That point is reached, in my opinion, when the proposed accommodation would impact significantly upon the way in which other participants would be required to play or would give the accommodated person an actual advantage over others in such participation. The Code does not require that the essential elements of a sport be altered for all participants in order to accommodate those280 who for whatever reason cannot perform those essential elements.

Since bowling is an individual sport, use of the ramp did not affect the way others played; neither did it give Tammy any unfair advantage over the other children, who in fact completely accepted her. The Court found no undue hardship to the Bowling Council or the competitors and upheld the finding that there had been a denial of equal treatment.

4. Selection and Discipline

Decisions by sports organizations are subject to judicial review if they are not authorized by established regulations 281 or involve unfairness 282 in the procedures followed. Club competitions must, therefore, follow announced game rules, 283 and association business must be conducted in accordance with the by-laws of the association. 284 Natural

278 Supra, note 266, s. 16(l)(b). See amendments in S.O. 1986, c. 64, ss 18(10) & (11). 279 Youth Bowling, supra, note 277 at 460, Lane J. 280 Ibid. at 458. See also Human Rights Code, supra, note 23, s. 10, as am. 1986, c. 64, s. 18(8). 281 See, e.g., MacDougall v. OntarioFed. of School Athletic Assns (1987), 27 C.P.C. (2d) 326 (Ont. Dist. Ct) (player transferred to new school; tribunal applied three different definitions of "program change", none of which was in by-law; injunction granted), additional reasons at (April 22, 1988), Doc. 19355/87 (Ont. Dist. Ct). 282 See, e.g., Cranberry Portage Midget Winterhawks Hockey Team v. Mani- toba Amateur Hockey Assn (1990), 20 A.C.W.S. (3d) 258 (Man. Q.B.) (no breach of natural justice in decision to reclassify team). 283 See Michaud v. Grand Falls Golf Club Inc. (1990), 110 N.B.R. (2d) 47, 73 D.L.R. (4th) 352 (C.A.), rev'g (1989), 103 N.B.R. (2d) 361, 259 A.P.R. 361 (Q.B.) (rules for hole-in-one prize). 284 See Larocque v. Manitoba Freestyle Wrestling Assn (1987), 52 MAN. R. (2d) 187 (Q.B.); Agarrabeitia v. British Columbia Modern Rhythmic Gymnastics Fed. (1990), 51 B.C.L.R. (2d) 128 (S.C.). 1991] Sports Law justice must be observed prior to taking decisions to suspend or other- 2 85 wise discipline members. Although there are various grounds for reviewing decisions affecting members' rights, courts are generally reluctant "to interfere in the internal operations of a voluntary organization" 286 - a reluctance that is particularly strong in technical or discretionary matters better suited to expert decision-making by association officers. However, in two recent cases from Quebec, courts were prepared to intervene in disputes over team selection "pour corriger une injustice manifeste et fla- grante".287 Deschgnes288 dealt with the selection of fencers for the Seoul Olympics and St-Hilaire289 dealt with selection of a track and field coach for the Commonwealth Games in Auckland. In Deschines, the Canadian Olympic Association (COA) left the selection of two "borderline cases" to the Canadian Fencing Association (CFA) to be made according to CFA criteria. Deschnes found himself left out when the CFA erroneously deviated from its results-based criteria and selected another sabreur, Plourde, on the ground that discretionary factors could be applied in selections for team (as opposed to individual) competition. In the absence of internal review by either the COA or CFA, the Court held that the breach of the established rules justified ordering the selection of Deschenes in addition to Plourde. Similarly, selection was ordered in St-Hilaire after the coach alleged that he was the victim of discrimination and procedural unfairness when the co-ordinator of jumping events selected himself and another Toronto coach for the Auckland games. The court found lack of fair play in the arbitrary exclusion of a well-qualified candidate and in the failure to make timely communication of selection criteria: "La Cour l'impression que le choix s'est fait un peu "between the boys"... le 290 dicideur a placd le requirant devant le fait accompli; sa dicision". The court also found breach of fundamental justice in the decisions of the association's appeal committees which recognized St-Hilaire's right to know the selection criteria but asserted that the Association could exercise its discretion.

285 See Shoniker v. Ontario (Minister of Education) (1986), 17 O.A.C. 265 (Div. Ct) (suspension of student by school athletic association; proper notice of complaint and opportunity given to present case). 286 Kernaghan v. Softball Saskatchewan (1987), 42 D.L.R. (4th) 364 at 368 (Sask. Q.B.), Goldenberg J. (eligibility conflict between national and provincial associations; player granted injunction allowing participation in play-offs). See Assn olyinpique can. c. Desch6nes, [1988] R.J.Q. 2389 at 2394, 20 Q.A.C. 69 at 75 (C.A.), Malouf J.A. (diss.) [hereinafter Deschdnes cited to R.J.Q.]. 287 St-Hilaire, supra, note 27 at 8,Macerola J. 288 Supra, note 286. 289 Supra, note 27. 290 Ibid. at 9. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

B. Violence - Consent in CriminalAssault

If it was seriously suggested that the participants attending this gathering had consented to fight and in so consenting are obliged to suffer the consequences, then I must express my horror at the suggestion - which in my opinion is tantamount to saying that the displays of fighting to which we are all too frequently exposed between players on the ice may, by consent, be transferred to the street and dance floor - not so! I am sure the majority of participants were appalled at the donnybrook and dismayed with the actions of the few who brought the 1987-88 hockey season and the awards night ceremony to such an inglorious and nearly fatal conclusion. 291

The consent of the victim did not, therefore, enter the fray when brawling disrupted the Community Hockey League dinner and dance at the Legion Home, Wellington, Prince Edward Island. Consent has, however, been the central issue in a series of appellate decisions dealing with street fights and player violence. 292 These cases culminated in the Supreme Court of Canada's decision in R. v. Jobidon293 where five judges claimed the power to reconstruct the Criminal Code2 94 according to their perception of public policy. The legal outcome may be summarized as follows: the consent of the opponent is no defence when an adult intentionally inflicts bodily harm during a brawl or fist fight; in cases involving contact during worthwhile, rough sports, the central issue is the scope of players' implied consent. Arrival at this destination required a long and painful trek through common law, Canadian cases and the sorry chaos of present statutory law. The journey would not have been necessary except that Canada continues to limp along shackled with the unreformed and incomplete Criminal Code of 1892.

291 R. v. Lynch (1989), 75 NFLD & P.E.I.R. 351 at 355, 234 A.P.R. 351 at 355 (P.E.I.S.C.T.D.), Campbell J. 292 On the sentencing of players see R. v. Paul (1989), 7 W.C.B. (2d) 207 (Man. Prov. Ct) (vicious assault in no-contact hockey; $2000 fine after Crown appeal; case suitable for incarceration, but Crown seeking only fine); var'd (6 October 1989), Doc. No. 203/89 (C.A.); R. v. Savenco (1988), 26 Q.A.C. 291 (attack with baseball bat during game by person with criminal record; two years probation was at the limit of reasonableness); R. v. Francis (1989), 100 N.B.R. (2d) 34, 252 A.P.R. 34 (Prov. Ct) [hereinafter Francis](cross-check from behind during hockey game; one day imprisonment, $300 fine; future offenders could expect more severe penalty); R. v. Ciccarelli (1988), 5 W.C.B. (2d) 310 (Ont. Prov. Ct) (one day imprisonment, $1000 fine), aff'd (1989), 54 C.C.C. (3d) 121, 9 W.C.B. (2d) 402 (Ont. Dist. Ct) [hereinafter Ciccarelli cited to C.C.C.]. See also Watson, supra, note 18 at 181-91; E. Payne, "Nepean man given 89-day sentence, sports ban for assault during game" The Ottawa Citizen (1 November 1991) C3 (89 days in jail for aggravated assault; player had two previous hockey-related convictions, one from an on-ice fight, the other from a scuffle at a banquet). 293 (1991), 66 C.C.C. (3d) 454, 7 C.R. (4th) 233 (S.C.C.), aff'g (1988), 45 C.C.C. (3d) 176, 67 C.R. (3d) 183 (Ont. C.A.), rev'g (1987), 36 C.C.C. (3d) 340, 59 C.R. (3d) 203 (H.C.) [hereinafter Jobidon cited to C.C.C.]. 294 R.S.C. 1985, c. C-46 [hereinafter Code]. 1991] Sports Law

Jobidon was charged with manslaughter when he killed his opponent by repeated blows to the head in a consensual fist fight outside a Sudbury hotel:

The object of the fight was to hit the other man as hard as physically possible until he gave up or retreated. Physical injury was intended and contemplated....The accused intentionally hit Rodney Haggart as hard as he could. He believed that he was fighting fair, and he did not intentionally depart from the kind of fight that Mr. Haggart consented to. I find that the accused struck the deceased at least four times when he was, in fact, unconscious. 295

Manslaughter is a form of culpable homicide, which is committed when a person, "causes the death of a human being, (a) by means of an unlawful act [or] (b) by criminal negligence". 296 The trial judge found that Jobidon was not guilty of criminal negligence, so he could be guilty of manslaughter only if he had committed an unlawful act. The unlawful act 297 in issue was assault. The Criminal Code creates a basic crime of assault 298 and more serious forms which are subject to heavier penalties, e.g. assault causing bodily harm299 and aggravated assault. 300 Subsection 267(2) of the Code defines "bodily harm" to mean "any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature". In the context of the crime of threatening in subsection 264.1 (a), the Supreme Court has held that "serious bodily harm" means "any hurt or injury, whether physical in a substantial way with the physical or psychological, that interferes 30 or psychological integrity, health or well-being of the complainant". ' Harm therefore includes psychological harm. The various crimes of assault are subject to the definitional and general provisions in section 265:

295 Jobidon, supra, note 293 at 349 (H.C.), Campbell J. 296 Code, supra, note 294, s. 222(5). Criminal negligence causing bodily harm under s. 221 was considered in R. v. Wilcox (27 June 1986), Vancouver CC860401 (B.C. Co. Ct) (downhill skier convicted when he collided with an instructor and caused serious injuries). See also Jobidon, supra, note 293 at 464-66 (S.C.C.). 297 The Crown did not rely on the crime of unlawfully causing bodily harm under Code s. 269, for which consent is no defence; see R. v. Daigle, [1987] R.J.Q. 2374, 39 C.C.C. (3d) 542 (C.A.). See also R. v. DeSousa (1990), 42 O.A.C. 375, 62 C.C.C. (3d) 95 (C.A.) (mens rea requirement). 298 Code, supra, note 294, s. 266. 299 Ibid., s. 267(l)(b). See R. v. Brooks (1988), 41 C.C.C. (3d) 157, 64 C.R. (3d) 322 (B.C.C.A.) (foreseeability of consequences not required). 300 Ibid., s. 268. See R. v. B.(S.) (1990), 73 O.R. (2d) 256, 78 C.R. (3d) 93 (Prov. Ct Fam. Div.) (actual foresight of harm required). 301 R. v. McCraw (1991), 66 C.C.C. (3d) 517 at 524, 529-30, 7 C.R. (4th) 314 at 322, 328 (S.C.C.), Cory J. (threat of rape), aff'g (1989), 51 C.C.C. (3d) 239, 72 C.R. (3d) 373 (Ont. C.A.), rev'g (8 November 1988) (Dist. Ct) [unreported]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;....

(2) This section applies to all forms of assault....

(4) Where an accused alleges that he believed that the complainant consented to the conduct....a judge....shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

The apparent meaning of this section is that a conviction for assault requires the prosecution to prove as essential elements that the victim did not consent and that the accused did not believe that the victim was consenting. 30 2 These elements seem to apply even in cases where the assault results in bodily harm. The Code's only explicit disallowance of the victim's consent occurs in section 14 which states that no "person is entitled to consent to have death inflicted on him, and such consent does not affect ....criminal responsibility." The wording of the Code suggests that liability for assault turns on the evidence of the reality of the victim's consent.30 3 Fair fist fights between consenting combatants have, therefore, been held to be law- 304 ful. The factual approach demanded by the Canadian Code allows for convictions where the victim has ceased to consent 3 5 or where the accused exceeds the ambit of the agreement and intends to cause serious injury: 30 6 resort to a weapon 30 7 or to kicking30 8 might, for example, exceed the compact. By contrast, in Britain, in the absence of a code, courts have imposed general public policy limits on consent. This approach is sometimes referred to as the traditional common law position, but it was only clearly declared in 1981. In A.G. 's Ref. (No. 6 of 1980) the English Court of Appeal stated that "it is not in the public

302 See R. v. Abraham (1974), 30 C.C.C. (2d) 332 (Que. C.A.); R. v. MacTavish (1972), 4 N.B.R. (2d) 876, 8 C.C.C. (2d) 206 (C.A.) [hereinafter MacTavish]. 303 On the limits of consent and problems in the law, see A.W. Bryant, Consent and Constructive Manslaughter (1988) 67 C.R. (3d) 193; G. C6t-Harper, A.D. Manganas & J. Turgeon, Droitpinal canadien, 3e 6d. (Cowansville: Les 6ditions Yvon Blais, 1989) at 609-19. 304 See R. v. Dix (1972), 10 C.C.C. (2d) 324 (Ont. C.A.) [hereinafter Dix]; R. v. Setrum (1976), 32 C.C.C. (2d) 109 (Sask. C.A.); R. v. Bergner (1987), 78 A.R. 331, 36 C.C.C. (3d) 25 (Alta C.A.); R. v. S.(S.R.) (1991), 13 W.C.B. (2d) 105 (Man. Prov. Ct Youth Div.). 305 See R. v. Thomas (1984), 13 W.C.R. 268 (B.C. Co. Ct) [hereinafter Thomas]. 306 See R. v. Maloney (1976), 28 C.C.C. (2d) 323 (Ont. Co. Ct); R. v. Kusyj (1983), [1984] N.W.T.R. 152, 51 A.R. 243 (N.W.T.S.C.). 307 See R. v. Gur (1986), 71 N.S.R. (2d) 391,27 C.C.C. (3d) 511 (C.A.) (knife); R. v. Carri~re(1987), 76 A.R. 151, 56 C.R. (3d) 257 (C.A.) (knife); R. v. Loonskin (1990), 103 A.R. 193 (C.A.) (biting). 308 See MacTavish, supra, note 302; Thomas, supra, note 305; R. v. Turner (1983), 10 W.C.B. (2d) 86 (B.C.C.A.). 1991] Sports Law interest that people should try to cause, or should cause, each other actual 30 9 bodily harm for no good reason". The trial judge in Jobidon felt himself bound by the authority of R. v. Dix310 to dismiss the charge:

Because Rodney Haggart agreed to a fair fist fight, and because I have found that the accused did not intentionally exceed that consent, and that he struck the last blows under a reasonable but mistaken apprehension that Mr Haggart was still capable of returning to the fight and was trying to, I therefore find there 3was1 no assault, because the Crown has not established lack of consent. '

On appeal, the Court chose not to follow Dix and convicted Jobidon of manslaughter. The Ontario Court of Appeal decided that consent in the Criminal Code should be interpreted according to the limitations in A. G.'s Ref.: "....the concept of consent is limited and extends only to the application of force where bodily harm is neither caused nor intended".312 After 1988, the Ontario Court of Appeal's decision in 313 Jobidon exerted its influence on prosecutions arising from street fights and sports incidents. The scope of players' consent was addressed in three major cases involving hockey 314 violence: R. v. Cey;315 R. v. Ciccarelli316 and R. v. Leclerc.317 The decision of the Saskatchewan Court of Appeal in Cey is particularly significant because it offers a general framework for determining the scope of consent. In Cey an amateur player had caused injuries to an opponent's face and mouth by cross-checking him from behind into the boards. At first instance, Cey was acquitted on a charge of assault causing bodily harm when the judge directed his mind to three issues: did the accused intend to cause serious injury?, did he exceed long-standing standards in hockey?, and, was the victim willing to play hockey again? In ordering a new trial, the Appeal Court held that the trial judge ought to have considered "whether there was express or implied consent to this type of contact and whether the contact was of such a nature that in any event

309 [1981] I Q.B. 715 at 719, 3 W.L.R. 125 at 128 (C.A.), Lane C.J. [hereinafter A.G. 's Ref.]. 310 Dix, supra, note 304. 311 Jobidon, supra, note 293 at 352, Campbell J. (H.C.) 312 Ibid. at 181 (C.A.), Zuber J.A. 313 See R. v. McIntosh (1991), 102 N.S.R. (2d) 56, 64 C.C.C. (3d) 294 (C.A.) (Jobidon followed). See also Spade v. Criminal Injuries Compensation Board (1990), 73 O.R. (2d) 385, 39 O.A.C. 48 (Div. Ct). 314 See also R. v. A.W. (1987), 4 W.C.B. (2d) 25 (Ont. Prov. Ct) (blow with head during aggressive soccer game; conflict in evidence; accused acquitted). See also Francis, supra, note 292. 315 (1989), 75 SASK. R. 53, 48 C.C.C. (3d) 480 (C.A.) [hereinafter Cey cited to C.C.C.]. 316 Ciccarelli, supra, note 292. 317 (1991), 4 O.R. (3d) 788, 67 C.C.C. (3d) 563 (C.A.), aff'g (9 February 1990) (Dist. Ct) [unreported] [hereinafter Leclerc cited to O.R.]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

no true consent could be given". 318 The Court held that the principles in A.G. 's Ref. and Jobidon were applicable to sporting events, except that the reference to bodily harm being "caused" was "inappropriate where actions to which there is implied consent may in extraordinary circum- 319 stances cause harm". Gerwing J.A. summarized the previous case law on consent as follows:

It is clear that in agreeing to play the game a hockey player consents to some forms of intentional bodily contact and to the risk of injury therefrom. Those forms sanctioned by the rules are the clearest example. Other forms, denounced by the rules but falling within the accepted standards by which the game is played, may also come within the scope of the consent. It is equally clear that there are some actions....that are so violent it would be perverse to find that anyone taking part in3 20a sporting activity had impliedly consented to subject himself to them.

She then set out a general analysis of the elements to be proved in sports assault cases. In determining intention and possible belief in the victim's consent, the Court considers the subjective factor of the accused's state of mind. Individual factors and "specific consents" may also be relevant where there is a fight between players. However, in determining consent to contact during play, the subjective attitude of accused and victim are not the sole considerations because a uniform standard should apply to all players at the particular level. The scope of the implied consent is a matter of degree to be determined by objective criteria that take account of playing conditions (e.g. setting, league, age level) and the "qualitative and quantitative" aspects of the conduct. In determining whether the prosecution has negatived consent, the accused's state of mind is just one of many considerations. The Court must consider all the circumstances including:

The conditions under which the game in question is played, the nature of the act which forms the subject-matter of the charge, the extent of the force employed, the degree of risk of injury, and the probabilities of serious harm....321

This approach to consent was adopted by the District Court in Ciccarelli:

An approach where the scope of implied consent extended to what may be expected to happen or where any assault is within the scope of consent if there is no bodily harm panders to a public appetite implied 322 for violence as entertainment.

318 Cey, supra, note 315 at 493, Gerwing J.A. 319 Ibid. 320 Ibid. at 488. 321 Ibid. at 490-91. 322 Ciccarelli, supra, note 292 at 126, Corbett J. 1991] Sports Law

Ciccarelli was convicted of assault after he used his stick to strike opponent Luke Richardson three times around the head during a National Hockey League game. These actions did not result in bodily harm and the trial judge found that no such harm was intended, so the Court did not have to decide "whether the limits imposed in the Jobidon case apply to professional sports, such as hockey". 323 The issues were the scope of the consent and the defence of honest belief in consent under subsection 265(4) of the Criminal Code. In dismissing Ciccarelli's appeal, the Court found that the trial judge had properly applied the objective criteria:

He considered the nature of a national hockey league game as a fast, vigorous, competitive game involving much body contact. He had regard to the acts in question and their surrounding circumstances. He found that the high sticking was unusual. He concluded that striking the opponent's head with a hockey stick, whether blade or butt, was not a reasonable practice and fell outside the ambit of the implied consent. He considered that the blows occurred after the whistle had halted the play according to the rules of the game. He considered the nature of the blows and that the blows had the capacity to injure....[he] considered the state of mind of the appellant....[he] found that Ciccarelli was overreacting. 324

The Court held that the trial judge erred in holding that the onus was on Ciccarelli to prove that he honestly believed on reasonable grounds that his victim was consenting: "The burden remains on the Crown to prove beyond a reasonable doubt that the appellant did not honestly believe that the victim expressly or impliedly consented". 325 The conviction was, however, affirmed because the evidence dealt only with professional players' general acceptance of high sticking: this was relevant to the issue of implied consent, but there was no evidence to "address the subjective belief of this accused that Richardson consented to Ciccarelli's applica- 326 tion of force". In Leclerc327 the accused was charged with aggravated assault after his push or cross-check from behind caused an opponent to fall head first into the end boards and suffer quadriplegia. The incident occurred in a recreational hockey league game using no-contact rules: bumping and spirited play were nevertheless expected and accepted. Leclerc was acquitted when the trial judge found that the conduct did not constitute a "malicious, egregious, vicious breach of the accepted norm". 328 The judge followed the civil case, Agar v. Canning,32 9 and asked, "Did [the conduct] exhibit or display a definite resolve to cause serious injury to another?" 330 On appeal, this was held to be a misdirection because the

323 Ibid. at 124. 324 Ibid. at 127. 325 Ibid. at 128. 326 Ibid. at 130. 327 Supra, note 317. 328 Ibid. at 792 (C.A.). 329 (1965), 54 W.W.R. 302 (Man. Q.B.), aff'd (1965), 55 W.W.R. 384 (C.A.). 330 Leclerc, supra, note 317 at 792 (C.A.). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

crime of aggravated assault does not require proof of an intent to bring about the consequences. The Ontario Court of Appeal accepted Cey's analysis of the limits on consent and held that proof of an intent to cause serious injury is not a necessary element:

Conduct which evinces a deliberate purpose to inflict injury will generally be held to be outside of the immunity provided by the scope of implied consent in a sports arena. This is not to be taken to mean....that in order to negative implied consent, the prosecution has the burden of proving a deliberate purpose or resolve to inflict injury.33'

The Court nevertheless affirmed Leclerc's acquittal because the trial judge had found that his push or cross-check was the result of loss of balance and was an "instinctive reflex reaction, which had the object of minimizing the risk of bodily harm created by his high speed in close 332 proximity to the boards". Assault cases must now be resolved in light of the policy pro- nouncements by the majority of the Supreme Court of Canada in R. v. Jobidon.333 In dismissing Jobidon's appeal, Gonthier J., on behalf of the majority, asserted that to avoid absurd consequences in the interpretation of section 265 of the Criminal Code it must have been Parliament's intention "for the courts to explain the content of the offence, incremen- tally and over the course of time". 334 This approach would seem to be precluded by subsection 9(a) of the Code, which excludes liability for common law offenses, but Gonthier J. placed some general reliance on section 8(3), which declares that common law defences continue in force unless inconsistent with statutory provisions. In this instance, however, subsection 8(3) was not used to preserve a common law defence but to limit one: subsection 8(3) served not to introduce the common law defence of consent but to exclude it. The common law preserved by subsection 8(3) did not justify or excuse the conduct of the accused but served to convict him. Thus subsection 8(3) had the paradoxical effect of expanding criminal liability by preserving common law limits that made the defence non-existent. Ultimately, Gonthier J. held that the common law restrictions on consent declared in A. G. 's Ref.335 were not appropriate for charges under the Canadian Criminal Code:

Attorney General'sReference makes it clear that a conviction of assault will not be barred if "bodily harm is intended and/or caused". Since this test is framed in the alternative, consent could be nullified even in situations where the assailant did not intend to cause the injured person bodily harm but did so inadvertently. In Canada, however, this very broad formulation cannot strictly apply, since the definition of assault

331 Ibid. at 797, Lacourci re J.A. 332 Ibid. at 798. 333 Supra, note 293 (S.C.C.). 334 Ibid. at 479, Gonthier J. 335 Supra, note 309. 1991] Sports Law

in s. 265 is explicitly restricted to intentional application of force. Any test in our law which incorporated the English perspective would 3of36 necessity have to confine itself to bodily harm intended and caused.

General historical limits on consent served, rather, as background to an encyclical against fighting. 337 Gonthier J. announced that the sanctity of the human body and the moral point of view demanded a policy prefer- ence for paternalism, rather than autonomy and self-rule. He condemned fist fights and street brawls as socially futile or of "precious little utility". Deterrence was also an important factor because fighting can lead to public disorder, private perversion and mutilation. Having ex cathedra resolved all moral and policy issues, Gonthier J. distinguished activities on the basis of their utility and defined the limits on consent accordingly. Fist fights, as anti-social activities, are subject to the following formula:

The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor's apparent consent to an adult's intentional application of force in a fight would also be negated.)....[T]he "ordinary" school yard scuffle, where boys or girls immaturely seek to resolve differences with their hands, will not come within the scope of the limitation. 338

This formula does not, however, apply to sports and stunts possessing positive social value:

Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite. The Court's majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given. On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.

There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions. Nor, for example, would it necessarily nullify consent

336 Jobidon,supra, note 293 at 490, Gonthier J. (S.C.C.) (emphasis in original). 337 See ibid. at 491-94. 338 Ibid. at 494 & 495-96 (emphasis in original). Gonthier J. chose, at 496, to "leave open" cases where persons under 18 "truly intend to harm one another". Compare R. v. Barron (1985), 12 O.A.C. 335, 23 C.C.C. (3d) 544 (C.A.) (death ensuing from roughhousing on stairs), rev'g (1984), 39 C.R. (3d) 379 (H.C.). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. 33 9

It is not clear whether fist fights during sports are subject to the first formula or the second passage. We can anticipate further litigation on this point and extensive court challenges to find out which activities are regarded by the judiciary as socially useful. The value-laden judgment of Gonthier J. is a remarkable non- Charter exercise in judicial legislation and policy-making. It prompted a brief and pointed dissent by Sopinka J., concurred in by Stevenson J.:

I see no evidence in the clear and simple language of s. 265 that it intended to outlaw consensual fighting in the interests of avoiding breaches of the peace or to allow it if a judge thought that it occurred in circumstances that were socially useful....use of the common law to eliminate an element of the offence that is required by statute is more than interpretation and is contrary to not only the spirit but also the letter of s. 9(a). One of the basic reasons for s. 9(a) is the importance of certainty in determining what conduct constitutes a criminal offence. That is the reason we have codified the offenses in the Criminal Code. An accused should not have to search the books to discover the common law in order to determine if the offence charged is indeed an offence at law. Where does one search to determine the social utility of a fight during a hockey game-to take one example? There are those that would argue that it is an important part of the attraction. Judges may not agree. Is this a matter for judicial notice or does it require evidence? The problem of uncertainty which the social utility test creates is greater than searching out the common law, a problem which lead [sic] to the 340 prohibition in s. 9(a).

The minority nevertheless concurred in the decision to convict the accused. The minority held that section 265 requires close scrutiny of the scope of the consent. The trial judge had found that the object of the fight was to hit the opponent "until he gave up or retreated". 34 1 By continuing to pummel Haggart once he realized he was unconscious, Jobidon knowingly exceeded the consent and committed assault. Con- victing Jules Jobidon did not, therefore, demand any ad hoc judicial redraft of Canadian criminal law. Jobidon further stresses the need for comprehensive, parliamentary reform of criminal law. In 1986, in a review of the Law Reform Commission of Canada's Working Paper on Assault, Don Stuart made the following comment on the state of the law:

The case for a radical overhaul is well made. Most Canadians would be amazed to learn that if someone deliberately bloodies another's nose the offence is theoretically a matter of intricate statutory construction342 involving no less than fifteen broad categories of offences.

339 Ibid. at 495. 340 Ibid. at 458-59, 460, Sopinka J. 341 Ibid. at 349 (H.C.). 342 D. Stuart, Assault (review of Law Reform Commission of Canada Working Paper 38) (1986) 64 CAN. BAR REV. 217 at 218. 1991] Sports Law

The offence now additionally calls for construction of the Jobidon 343 formula, social utility analysis and, possibly, search of the "archive" of common law. The disorderly state of criminal law doctrine in this and other areas now assumes scandalous proportions, and the time is long overdue for fundamental modernization through the democratic process of Parliament. The obvious starting point is the 1987 report of the Law Reform Commission of Canada, Recodifying Criminal Law. 344 A new and complete Code might at least save us from further rule by judicial decree. In the meantime, we must try to distinguish useless fist fights from "risky sparring" and we await the news on which sports the judges like.

C. Civil Liability

Government campaigns boldly trumpet the health benefits of active lifestyles,345 but physical activity stands second only to the workplace as a hazardous source of injury. A study by the Rggie de la sicuritidans les sports du Quibec3 4 6 revealed that in 1987 sports and recreation accounted for 21% of all accidents in the province that required medical attention; an estimated 239,000 victims suffered sports-related injuries, 347 there were 186 deaths and the total economic costs were $184 million. Safety in sports and fitness programs348 is therefore a significant social and medical problem. Participants at all levels face the risk of injury, and civil liability is the most common issue in sports law as athletic casualties look for compensation. 349

343 Jobidon, supra, note 293 at 475, Gonthier J. (S.C.C.). 344 Law Reform Commission of Canada, Recodifying Criminal Law (Report 31) (Ottawa: Law Reform Commission of Canada, 1987). The report deals with assault, harming and sports at 61-63. 345 There is, however, no evidence that exercise increases life expectancy; see J.R. Johnstone and C. Ulyatt, Health Scare: The Misuse of Science in Public Health Policy, CRITICAL ISSUES (No. 14) (Perth: Australian Institute for Public Policy, 1991) at 31-36. The practice of proclaiming health messages regardless of scientific evidence is known as the "Lalonde Doctrine": ibid. at 77. 346 See Rdgie de la srcurit6 dans les sports du Qudbec, RAPPORT ANNUEL (Gouvernement du Qudbec, 1989). 347 See Analyse des cofits socio-iconomiques associis a la morbiditi et la inortalite d'origine sportive et ricriative au Quibec en 1987 (Rdgie de la srcurit6 dans les sports du Quebec, avril 1990); Economic Costs of Injuries and Fatalities Resulting from the Practice of Sports and RecreationalActivities in Quebec (Rdgie de la sdcurit6 dans les sports du Qu6bec, April 1990) (summary of above work). 348 See THE PROFESSIONAL'S GUIDE TO FITNESS SAFETY (Toronto: Ministry of Tourism and Recreation, 1991). This guide is based on the 1989 report of the Ontario Fitness Safety Standards Committee. 349 On workers' compensation see Decision 62/89 (1990), 13 W.C.T.R. 130 (Ont.) (injury caused by volleyball playing in employer's "wellness program"). On criminal injuries compensation, see annual reports of of the Ontario Criminal Injuries Compensation Board: 17th. Rep. 1985/86, File 922-013358 (stick blow to opponent in college hockey); 19th Rep. 1987/88, File 922/015541 (assault by supervisor of basketball), File 922-016735 (altercation during tobogganing). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

Recent cases illustrate various forms of sport tort and address the exclusion of liability through waivers and releases. 350 The two most prominent decisions have been the judgments of the Supreme Court of Canada in Crocker v. Sundance Northwest Resorts Ltd351 and the Man- itoba Court of Appeal in Temple v. Hallem. 352 In Crocker the organizers of "tubing" races at a ski hill were held liable for failing to prevent participation by a visibly inebriated racer. In Temple the Court found no breach of game rules in a collision in softball and held that one player can be liable to another only where the conduct shows an intention to cause injury; the Court therefore seemed to discount negligence liability between participants in vigorous contact sports. 353 Further case law has

350 See Karroll v. Silver Star Mountain Resorts Ltd (1988), 33 B.C.L.R. (2d) 160, 47 C.C.L.T. 269 (S.C.) (effective release in downhill ski racing); Phillips v. British Columbia (1987), 8 A.C.W.S. (3d) 350 (B.C.S.C.) (effective release in car racing); Potvin c. Stipetic, [1989] R.J.Q. 777, 22 Q.A.C. 128 (C.A.) (marathon swimmer injured by a motor escort boat; action dismissed on evidence of waiver); Knowles v. Whistler Mountain Ski Corp. (1991), 24 A.C.W.S. (3d) 938 (B.C.S.C.) (effective release in ski rental contract); Cudmore Estate v. Deep Three Ent. Ltd (1991), 28 A.C.W.S. (3d) (Ont. Ct Gen. Div.) [hereinafter Cudmore Estate] (release ineffective in scuba diving; breach of safety condition); Blomberg v. Blackcomb Skiing Enterprises Ltd (No. 1) (1991), 61 B.C.L.R. (2d) 256 (S.C.) (release signed on purchase of season's ski pass); Blomberg v. Blackcomb Skiing Enterprises Ltd (No. 2) (1992), 31 A.C.W.S. (3d) 753 (B.C.S.C.). See also R.B. Kennedy, Assump- tion of Risk, Inherent Risk Acceptance and Release of Liability in Steven, supra, note 9. 351 [1988] 1 S.C.R. 1186, 44 C.C.L.T. 225, rev'g (1985), 51 O.R. (2d) 608, 20 D.L.R. (4th) 552 (C.A.), rev'g (198-3), 41 O.R. (2d) 145, 150 D.L.R. (3d) 478 (H.C.) [hereinafter Crocker]. 352 (1989), 58 D.L.R. (4th) 541, [1989] 5 W.W.R. 669 (Man. C.A.); leave to appeal den'd (1990), 105 N.R. 240, [1990] 2 W.W.R. lxii. See P.H. Osborne, A Review of Tort Decisions in Manitoba, 1989 (1990) 19 MAN. L.J. 419 at 432-41. 353 On liability between participants, see Mulloy v. Eaton (1987), 7 A.C.W.S. (3d) 54 (B.C. Co. Ct); Boudreau v. Ouellette (1987), 7 A.C.W.S. (3d) 266 (Que. C.A.); Wright v. Sorenson (1989), 14 A.C.W.S. (3d) 136 (Ont. Dist. Ct) (golf); Walkowski v. Strongman (1987), 2 A.C.W.S. (3d) 362 (B.C.S.C.) (skiing); Miscolczi v. Wiebe, [1989] 5 W.W.R. 550 (Sask. Q.B.) (injuries sustained by participant in snowmobiling rally); Clark v. Wheels Roller Skating (London) Ltd (1989), 13 A.C.W.S. (3d) 446 (Ont. Dist. Ct) (plaintiff fractured wrist while roller-skating); Staley v. Hazell (1990), 20 A.C.W.S. (3d) 733 (B.C.S.C.) (boat passenger injured by the breaking of a rope used to tow water skiers) [hereinafter Staley]; Canuel v. Sauvageau (1991), 25 A.C.W.S. (3d) 385 (Que. C.A.) (plaintiff injured during broomball game); Sexton v. Sutherland (1991), 26 A.C.W.S. (3d) 472 (Ont. Ct Gen. Div.) (plaintiff hockey player suffered kidney injury from body check); Conger v. Gianoli (1991), 88 SASK. R. 299 (Q.B.) (plaintiff suffered broken ribs and punctured lung during a softball league game when defendant intentionally crashed into him). On liability to a spectator see Lewis v. Soucie (1990), 23 A.C.W.S. (3d) 853 (B.C.S.C.) (spectator hit by unexpected practice shot during intermission in a hockey game); Foy v. Lourenco (1987), 3 A.C.W.S. (3d) 211 (Ont. Dist. Ct) (spectator assaulted by referee). 1991] Sports Law dealt with the liability of facility or program operators, 354 schools and teachers, 355 instructors, 356 associations, 357 equipment manufacturers and

354 See Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff'd (1987), 49 B.C.S.C. (2d) 99 (C.A.) (plaintiff seriously injured when performing in an acrobatic ski show); Burhoe v. Beach Grove Stables Ltd (1987), 7 A.C.W.S. (3d) 266 (B.C.S.C.) (riding stables; fall from horse); Burstall v. Parlee (1988), 83 N.S.R. (2d) 132 (T.D.) (rider fell when her horse was bumped from behind by another); Richardson v. Saunders (1989), 16 A.C.W.S. (3d) 154 (B.C.S.C.) (plaintiff sought damages sustained in a fall from a horse hired from defendant stables); Robinson v. Madison (1987), 7 A.C.W.S. (3d) 166 (B.C.S.C.) (plaintiff fell from machinery in a gymnastics club operated by the defendants); Rampersaud v. 386697 Ontario Ltd (1987), 8 A.C.W.S. (3d) 189 (Ont. H.C.) (roller-skating); Roy v. Ecole d'escalade la haute perchie inc., [1988] R.J.Q. 663 (C.A.) (rock climbing); Crupi v. Royal Ottawa Hospital (1988), 42 M.P.L.R. 220 (Ont. Dist. Ct) (beach accident); Warren v. Dupras (1989), 13 A.C.W.S. (3d) 446 (Que. C.A.) (injury sustained during cross-country skiing); Scurfield v. CaribooHelicopter Skiing Ltd (1990), 21 A.C.W.S. (3d) 760 (B.C.S.C.) (plaintiff killed in an avalanche while wilderness skiing); Zeismann v. Wonder Shows Ltd (1990), 65 MAN. R. (2d) 155 (Q.B.) (infant injured on an amusement park ride); Ivo v. Halabura(1990), 85 SASK. R. 147 (Q.B.) (plaintiff race car driver injured due to uneveness in defendant's race track); L'Ecuyer v. Quail (1991), 27 A.C.W.S. (3d) 1094 (Que. C.A.) (plaintiff involved in a collision on ski hill; resort's duty to supervise and warn); Lake v. Callison Outfitters Ltd (1991), 58 B.C.L.R. (2d) 99 (S.C.) (plaintiff killed in an aircraft accident during a fishing trip). 355 See Mottishaw v. Vancouver School Board (1987), 4 A.C.W.S. (3d) 82 (B.C.S.C.) (student sustained injuries during school-sponsored tobogganing outing); Fraser v. Campbell River School Dist. No. 72 (1988), 54 D.L.R. (4th) 563 (B.C.C.A.) (student diving into snow and injuring neck after supervised rugby match); Gagnon v. Alma (Comm. scolaire) (1989), 50 C.C.L.T. 250, [1989] R.R.A. 242 (Que. C.A.) (fall off schoolyard equipment); Dunn v. Ottawa Bd of Educ. (1989), 15 A.C.W.S. (3d) 106 (Ont. H.C.) (student injured in trampoline accident during a physical education class); Thomas v. Hamilton (City) Bd of Educ. (1990), 19 A.C.W.S. (3d) 602 (Ont. H.C.) (injured plaintiff alleged negligence in coaching and first aid provided in junior high school football game); Mainville v. Ottawa Bd of Educ. (1990), 75 O.R. (2d) 315 (Prov. Ct) (plaintiff injured by snowball while leaving school); Petropoulos v. Surrey School Dist. No. 36 (1990), 22 A.C.W.S. (3d) 886 (B.C.S.C.) (proper supervision of gymnastics; plaintiff disobeyed instruc- tions); Abbas v. Lalonde (1991), 26 A.C.W.S. (3d) 308 (Ont. Ct Gen. Div.) (gym teacher failed to warn of danger to plaintiff who was injured while practicing cartwheels on balance beam); Feniuk v. Bulkley Valley School Dist. No. 54 (1991), 27 A.C.W.S. (3d) 1095 (B.C.S.C.) (plaintiff injured avoiding "groomer" on ski hill; adequate supervision by instructor); Kowalchuk v. Middlesex Co. Bd of Educ. (1991), 27 A.C.W.S. (3d) 1281 (Ont. Ct Gen. Div.) (12-year-old injured while playing an improvised game on a highjump mat without teacher supervision during recess); Plumb v. Cowichan School Dist. No. 65 (1991), 30 A.C.W.S. (3d) 1245 (B.C.S.C.) (catch with hard ball in schoolyard). 356 Adam v. Baillargeon (1987), 5 A.C.W.S. (3d) 453 (Que. C.A.) (accident sustained during riding lessons); Mile v. Club Med. Inc. (1988), 10 A.C.W.S. (3d) 50 (Ont. H.C.) (plaintiff suffered respiratory muscle weakness as a result of scuba diving accident); Cudmore Estate, supra, note 350 (scuba diving). 357 See Hamstra v. B.C. Rugby Union (1989), 1 C.C.L.T. (2d) 78 (B.C.S.C.) (alleged mismatching in try-out rugby match). Ottawa Law Review/Revue de droitd'Ottawa [Vol. 23:3 retailers, 358 and even spectators. 359 In a notable case on medical negligence in the treatment of sports injuries, 360 cryosurgery was so badly performed that the athlete had to be put down. 361 Recent cases on occupiers' liability have considered safety standards for snowmobilers 362 and for participants at ski hills,3 63 swimming

358 Ross v. Skyline Sports Centre Ltd (1988), 10 A.C.W.S. (3d) 448 (B.C.S.C.) (plaintiff suffered knee injury when ski bindings failed to release); O'Connor v. Gousse (1989), 14 A.C.W.S. (3d) 224 (Que. C.A.) (golf cart plaintiff was riding in flipped over); Westerlund v. Skyride Gift Shops Inc. (1989), 15 A.C.W.S. (3d) 313 (B.C.S.C.) (brake on rented skis protruded, causing plaintiff to fall violently); Moore v. Cooper Can. Ltd (1990), 2 C.C.L.T. (2d) 57, var'd (1990), 2 C.C.L.T. (2d) 57 at 95 (Ont. H.C.) (hockey helmet not intended to protect against neck injury); Staley, supra, note 353. 359 See Johnson v. Goldsmid (1987), 7 A.C.W.S. (3d) 374 (B.C.S.C.) (ski racer crashed into spectators who were standing below safety net). See also Peck v. Chomyc Hotels Ltd (1989), 101 A.R. 65 (Q.B.) (spectator attacked exotic dancer). 360 See Smith v. Moscovich (1989), 40 B.C.L.R. (2d) 49 (S.C.) (no negligence in treatment of ski injury). See also Fraserv. Kelowna Motorcycle Club (1988), 9 A.C.W.S. (3d) 56 (B.C.S.C.) (no negligence in first aid treatment at racetrack). 361 Ryan v. Avenue Animal Hospital Ltd (1989), 95 N.B.R. (2d) 405 (Q.B.T.D.) (racehorse put down after unsuccessful cryosurgery; veterinary malpractice). 362 See Eastwick v. New Brunswick (1987), 83 N.B.R. (2d) 77, 45 C.C.L.T. 191 (Q.B.) (plaintiff suffered injury to ankle when snowmobile he was operating struck a drainage ditch); Cormack v. Mara (Township) (1989), 68 O.R. (2d) 716, 73 O.A.C. 55 (C.A.), rev'g (1987), 50 M.V.R. 45 (Dist. Ct) (snowmobiler injured after township removed makeshift bridge he relied upon); Tronrud v. French (1990), 64 D.L.R. (4th) 498, 62 MAN. R. (2d) 133 (C.A.), rev'g in part (1989), 56 MAN. R. (2d) 284 (Q.B.) (snowmobiler injured while entering government-maintained road and parking lot). 363 See Simms v. Whistler Mountain Ski Corp. (1987), 9 A.C.W.S. (3d) 387 (B.C.S.C.), aff'd (1990), 20 A.C.W.S. (3d) 303 (C.A.) (plaintiff killed skiing into ungroomed terrain); Marshall v. B.C. (1988), 23 B.C.L.R. (2d) 320 (C.A.) (skier injured falling into unmarked ravine); Wishneski v. Harper Mountain Lifts Ltd (1990), 19 A.C.W.S. (3d) 955 (B.C.S.C.) (plaintiff rendered quadraplegic while riding inner tube that went over an unmarked ridge); Kottke v. Robert L. Sutherland Professional Corp. (1990), 75 ALTA L.R. (2d) 27, 21 A.C.W.S. (3d) 1383 (Q.B.) (child injured when struck from behind by boy sliding off mound of snow). See also Gutek v. Sunshine Village Corp. (1990), 65 D.L.R. (4th) 406 (Alta Q.B.) (chair lift accident; infant thrown from ski chair lift causing severe permanent injuries; third party notice against Crown struck out). 1991] Sports Law

pools, 364 gymnasia, 365 parks, 366 race tracks, 367 school fields 368 and tennis courts.369 Action has also been brought by spectators injured at stadia and arenas. 370 In Waldick v. Malcolm,37 1 dealing with injury suffered by a visitor to a farm, the Supreme Court of Canada held that the statutory 372 defence of assumption of risk in the Ontario Occupiers' Liability Act incorporates the standards in the common law doctrine of voluntary

364 See Unger v. Ottawa (City) (1988), 68 O.R. (2d) 263, 58 D.L.R. (4th) 98 (H.C.) (plaintiff injured diving from life-guard's chair into water known to be shallow); Warren v. Camrose, (1989), 92 A.R. 388, [1989] 3 W.W.R. 172 (C.A.) (paraplegia caused by dive into 1 metre-deep pool), rev'g (1987), 83 A.R. 384, [1988] 1 W.W.R. 661 (Q.B.); Diodoro v. Calgary (City) (1990), 108 A.R. 139 (Q.B.) (plaintiff sought damages after nearly drowning in defendant's leisure pool); Fuerst v. St. Adolphe Co-op Parc Inc., [1990] 3 W.W.R. 466, 63 MAN. R. (2d) 66 (C.A.); Hainm Estate v. Wellington Hotels Ltd (1990), 65 MAN. R. (2d) 133 (Q.B.) (suit for wrongful death of a hotel guest who drowned in hotel swimming pool). See also Golos v. Trans-CanadaWaterslides Ltd Partnership(1989), 17 A.C.W.S. (3d) 287 (B.C.S.C.) (plaintiff injured in collision on waterslide); Sewell v. Whistler (Resort Municipality) (1991), 24 A.C.W.S. (3d) 1324 (B.C.S.C.) (plaintiff broke vertebrae after diving from wharf into shallow water); Atley v. Popkum Water Slides Ltd (1992), 31 A.C.W.S. (3d) 687 (B.C.C.A.) (plaintiff slipping on walkway). 365 See Drodge v. St. John's YM-YWCA (1987), 67 NFLD & P.E.I.R. 57, 206 A.P.R. 57 (T.D.) (water from ventilation system led to moisture on floor; plaintiff slipped in a pool of water while playing floor hockey). 366 See Herzog v. Winnipeg, [1990] 2 W.W.R. 177, 63 MAN. R. (2d) 104 (Q.B.) (plaintiff injured when she fell into an 81 -inch hole on grounds of a city park); Young v. Newfoundland (A.G.) (1990), 87 NELD & P.E.I.R. 163, 271 A.P.R. 163 (T.D.) (plaintiff suffered severe wound to hand when he fell on a broken glass bottle while playing at a provincial park); Robinson v. Rock City Ent. Inc. (1990), 22 A.C.W.S. (3d) 256 (B.C.S.C.) (damages sought for broken vertebrae suffered when using amusement park slide); Kelemen v. Delta (1991), 28 A.C.W.S. (3d) 411 (B.C.S.C.) (plaintiff injured when swing in a public park gave way under him). 367 See Smith v. Allen (1990), 22 A.C.W.S. (3d) 1104 (Alta Q.B.) (13-year-old drove go-cart at defendant's track, was struck from behind, lost control and sustained broken teeth); Dumaresq v. Freeway Plymouth Chrysler Ltd (1991), 80 D.L.R. (4th) 579 (B.C.C.A.) (plaintiff injured when thrown from a racehorse at defendant training track). 368 See Nyuli v. Vernon School Dist. No. 22 (1991), 28 A.C.W.S. (3d) 862 (B.C.S.C.) (fall on baseball field; no proof that uneveness caused fall). 369 See Burrough v. Kapuskasing (Town) (1987), 60 O.R. (2d) 727 (Dist. Ct) (tennis player assumed risks by playing on court whose surface was visibly cracked); Stynes v. Victoria (1990), 66 D.L.R. (4th) 588, 43 B.C.L.R. (2d) (C.A.) (short tennis court with curb at end). 370 See Waselenkoff v. Hughes (1988), 12 A.C.W.S. (3d) 342 (B.C.S.C.) (spectator injured by errant hockey puck); Ryan v. Scarborough (City) (1989), 17 A.C.W.S. (3d) 1166 (Ont. Prov. Ct) (tennis grounds); Bolschetschenko v. London (City) (1989), 18 A.C.W.S. (3d) 1029 (Ont. Dist. Ct) (spectator fell on ice near boards at arena); Noonan v. Exhibition Place (1991), 26 A.C.W.S. (3d) 152 (Ont. Ct Gen. Div.) (10-year-old hit by baseball during American League game); Gould v. Amherst (Town) (1991), 30 A.C.W.S. (3d) 448 (N.S.S.C.T.D.) (fall on ice). 371 (1991), 83 D.L.R. (4th) 114, 47 O.A.C. 241 (S.C.C.), aff'g (1989), 63 D.L.R. (4th) 583, 35 O.A.C. 389 (C.A.), aff'g (1987), 43 D.L.R. (4th) 693, 61 O.R. (2d) 624 (H.C.) [hereinafter Waldick cited to D.L.R.]. 372 R.S.O. 1980, c. 322, s.4(l). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

assumption of risk: the defence precludes liability only where the plaintiff knows of the risk, willingly accepts it and agrees to waive legal rights. This decision will now be particularly relevant where injury is suffered at sports and recreation facilities. The damages award in any type of tort liability case may include a sum to compensate for lost enjoyment of sports participation and lost capacity to earn sports-related income. 373 The victims of two recent motor vehicle accidents both received $20,000 for loss of professional opportunities: in Gillmour v. Laird374 a cyclist missed out on the 1988 Olympics, and in Bailey v. Dixon375 a 17-year-old lost the prospect of playing professional baseball.

D. ProfessionalSport

1. Commercial Aspects

376 Commercialism is now a prominent feature of all levels of sport: public interest in active lifestyles has provided a financial boon to the sporting goods industry and the "fitness business"; sponsorship is a major source of funding for sports organizations, and high-performance athletes are increasingly the commodities of corporate Canada. Govern- ment policies favouring privatization have actively encouraged commer- cialization, and the combined public and private funding of international events and major facilities has particularly enhanced private capital accumulation. Taxpayers then provide subsidy to construction contrac- tors and event sponsors, and professional teams usually inherit the use of the facilities. The legacy for the public purse is debt. Following the financial disaster of the Montreal Olympics, 377 the latest instance of cost overrun and corporate benefit is Toronto's SkyDome, where an original cost estimate of $130 million finally materialized in a $585-million structure, leaving the Province of Ontario liable for a debt of $370 million. In November 1991, the province lightened its burden by selling the SkyDome to a consortium of private investors for $110 million together with a 22-year debenture payment having a present value of $40 million. 378 The SkyDome may yet prove the sports scandal of the 1980s that outlives even Ben Johnson in Seoul. Money-making in professional sport is assisted by taxpayers' lar- gesse and the possibilities for creative accounting. Although hard finan-

373 See Fulkerson v. Platen (1990), 23 A.C.W.S. (3d) 1130 (B.C.S.C.) (aero- bics instructor); Kennedy v. Krueger (1990), 24 A.C.W.S. (3d) 1240 (B.C.S.C.) (water ski coach). 374 (1989), 13 A.C.W.S. (3d) 302 (B.C.S.C.). 375 (1991), 26 A.C.W.S. (3d) 953 (B.C.S.C.). 376 See CANADIAN SocIETY supra, note 16 at 103-33. 377 For one recent postscript on the the 1976 Olympics see Cojan v. La rigie des installations olympiques, [1990] R.J.Q. 175 (C.S.) (plaintiff cyclists opposed turning Olympic velodrome into "biodome"). 378 G. Allen, "Ontario sells dome to private investors" The [Toronto] Globe and Mail (15 November 1991) A1, A2. 1991] Sports Law cial data rarely escapes corporate privacy, most leagues seem to be highly profitable. The truly lucrative "game" for club owners (and players) is major league baseball, where the most recent four-year television contracts with CBS and ESPN went for $1.4 billion. Conse- quently, even weaker franchises are attractive investments. In June 1991 the Montreal Expos were sold for $100 million despite their middling revenue performance and poor attendance. 379 (These problems climaxed late in 1991 when remaining games had to be played away from Olympic Stadium because of doubts about its structural safety.) A consortium of 12 private investors and the City of Montreal purchased the club from Charles Bronfman, the owner since 1969, the deal being assisted by a $18-million loan from the Province of Quebec. 380 Meanwhile, the Toronto Blue Jays, the SkyDome's main tenants, were valued at $150 million after they broke major league attendance records in 1991. In November 1991 Labatts Breweries, which also owns the TSN sports network, achieved 90% control of the club by paying $67 million to 381 acquire an additional 45% interest. The Canadian Football League (CFL) has been the apparent excep- tion to the rule of profitability. CFL clubs have continued to suffer from financial uncertainties and accumulated debts, and the League has even looked to the federal government for grants and tax credits. 382 The problems have not been eased by the rapid turnover in the league's executive and in the ownership of clubs. Doug Mitchell resigned as Commissioner in 1988 after a five-year term that was troubled by the costs of setting up the CFN as the league's own broadcasting network. During 1989, the CFL operated with Roy McMurtry as Chairman and Bill Baker as "President". Donald Crump, the treasurer of Maple Leaf Gardens, then replaced Baker as Commissioner in January 1990, but resigned his position in December 1991.383 In May 1991, Crump had arranged a one-year television contract with the CBC and TSN, which originally promised to pay each club $900,000; the blackout on home games was frequently lifted during the regular season, with compensation offered to clubs suffering a corresponding decline in attendance.

379 E. McRae, "Trouble in Expoland" The Ottawa Citizen (17 May 1990) DI, D5. 380 T. Scott, "Expo sale completed" The [Toronto] Globe and Mail (15 June 1991) A12. 381 J. Christie, "Labatt pays $67 million for control of Blue Jays" The [Toronto] Globe and Mail (2 November 1991) A1, A2. 382 See Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480, 23 C.P.R. (3d) 297 (T.D.) (access to information application; CFL brief to the Minister); D. Shoalts, "CFL sought tax incentives, brief reveals" The [Toronto] Globe and Mail, (8 February 1989) A13 (details of brief submitted in 1986). 383 "Crump quits after two rocky years in CFL hot seat" The Ottawa Citizen (12 December 1991) Fl. The CFL named Larry Smith as the new Commissioner in February 1992. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

A majority of CFL clubs are now privately owned as rescuing entrepreneurs 384 have ventured into the League; in 1991 these promo- tional efforts included the Toronto Argonauts' spectacular signing of Raghib Ismail to a contract paying around $31/2 million a year. The League has even considered expansion into the United States, but resolved in December 1991 to defer the issue until 1993.385 The new optimism was, however, severely tested in 1991 with the mid-season resignation of the Board of Directors of the Ottawa Rough Riders. 386 The club had been acquired by a partnership of local business interests in 1987, but suffered from poor team performances and ran up a debt of $2 million, despite receiving loans and concessions from regional and municipal government. The League took over the franchise for three months and drew on television revenue to cover expenses until the club was purchased by Detroit real estate developer Bernie Glieberman in October 1991.387 In the National Hockey League (NHL), clubs derive ample income from ticket sales, other arena income and from the sale of local broadcasting rights, 388 but the League does not have a significant contract with American network television. In 1988 the League moved national rights from ESPN to Sports Channel, a decision that has been heavily criticized for diminishing the exposure and promotion of hockey. 389 Network broadcast rights in Canada are held by Molson Breweries, 390 which in

384 Besides the Ottawa Rough Riders, there have been many changes at other clubs. The B.C. Lions were acquired by stock promoter Murray Pezim in 1988. The Toronto Argonauts passed from Carling O'Keefe Breweries to various sports and entertainment entrepreneurs: Harry Ornest in 1988, then Bruce McNall, John Candy and Wayne Gretzky in 1991. Harold Ballard and Maple Leaf Gardens sold the Tiger-Cats to Hamilton industrialist David Braley in 1989, and in 1991 Calgary businessman Larry Ryckman purchased the Stampeders from community ownership. At the end of 1991, Braley was looking to sell the Tiger-Cats. 385 G. Kerr, "CFL moves on hold after expansion talks" The [Toronto] Globe and Mail (4 December 1991) A14. 386 D. Naylor, "CFL dissolves Rough Riders, takes over franchise" The [Toronto] Globe and Mail (27 July 1991) A16. 387 B. Cox, "CFL sells Riders to Gliebermans" The [Toronto] Globe and Mail (18 October 1991) A14. 388 W. Houston, "NHL rides a big ticket to success" The [Toronto] Globe and Mail (7 December 1991) A20. 389 See A. Strachan, "Hockey still in a league all on its own" The [Toronto] Globe and Mail (15 February 1989) All, A12; G. Loewen, "NHL skating on thin ice" The [Toronto] Globe and Mail (5 October 1991) B18. The contract paid $51 million over three years. In 1991 the contract was renewed for one year at $51/2 million (or $250,000 a club). 390 See Jets Hockey Ventures v. Molson Breweries of Canada (1989), 63 D.L.R. (4th) 119, 61 MAN. R. (2d) 216 (Q.B.), var'd (1990), 66 D.L.R. (4th) 767, 63 MAN. R. (2d) (C.A.) (club retained blackout rights). For other litigation related to sports broadcasting see Titan Sports Inc. v. Mansion House (Toronto) Ltd, [1990] 1 F.C. 448 (T.D.) (injunctions against taverns descrambling wrestling broadcasts); Canadian Cable Television Assn v. American College Sports Collective of Canada, Inc. (1991), 81 D.L.R. (4th) 376 (F.C.A.D.) (copyright royalties); FWS Joint Sports Claimants v. Copyright Board (1991), 36 C.P.R. (3d) 483 (F.C.A.D.) (copyright royalties). 1991] Sports Law

1988 extended its arrangement with the CBC for a further six years; 391 Molsons also owns local rights in Toronto and Montreal. The commercial development of the NHL is in fact closely linked to the beer industry. 392 In 1988 Carling O'Keefe Breweries sold their majority interest in the Quebec Nordiques to a partnership of business interests that undertook to keep the club in the province; the principal partner, Marcel Aubut, purchased Carling's remaining 5% interest in 1989 following that brewery's merger with Molsons, 393 the owners of the Mon- treal Canadiens. The marketing of the NHL in the United States was stimulated in August 1988 when Peter Pocklington, owner of the Edmonton Oilers, sold his depreciating asset, Wayne Gretzky, to the Los Angeles Kings for $15 million.3 94 The League has also made progress in the sale of licensed products (and has been vigorous and litigious in the protection of copyright 95). A further profitable exercise for existing clubs has been the sale of expansion franchises. The San Jose Sharks took to the ice in 1991 having paid an entry fee of $50 million, and in December 1990 the League awarded two further franchises to Tampa and Ottawa for the same price.396 Both clubs received membership certificates one year later after they succeeded in raising the necessary financing. The Ottawa Senators will begin play in the 1992-93 season at the 10,000 seat Ottawa Civic Centre, but must have a major league arena in place for the 1994-95 season. In August 1991, Terrace Investments Ltd, the majority

391 N. Campbell, "CBC retains tradition of Saturday night games" The [Toronto] Globe and Mail (28 June 1988) A19. 392 See R.B. Beamish, The Impact of Corporate Ownership on Labor- Management Relations in Hockey in P.D. Staudohar & J.A. Mangan, eds, THE BUSINESS OF PROFESSIONAL SPORTS (Urbana: University of Illinois Press, 1991) at 202 [hereinafter BUSINESS]. 393 See B. Marotte, "Quebec partners acquire Nordiques" The [Toronto] Globe and Mail (30 November 1988) A14 (the purchase price was around $15 million); L. Zehr, "Molson, Carling join to head beer market" The [Toronto] Globe and Mail (19 January 1989) B1, B4. 394 See E.M. Swift, "Woe Canada" Sports Illustrated (22 August 1988) at 20; K. Dryden & R. MacGregor, HOME GAME: HOCKEY AND LIFE IN CANADA (Toronto: McClelland & Stewart, 1989) at 137-50, 173-91; D. Mills, The Blue Line and the Bottom Line: Entrepreneurs and the Business of Hockey in Canada, 1927-1990 in BUSINESS, supra, note 392, 175 at 192. Gretzky's NHL contract would have allowed him to leave Edmonton without compensation in 199 1. See also A. Strachan, "Oilers profit from Pocklington's dealings" The [Toronto] Globe and Mail (3 March 1989) A 14; G. Pinheiro, "Pocklington held the better hand" The [Toronto] Globe and Mail (1 May 1989) A13. 395 A. Strachan, "NHL escalates lottery battle by filing suit" The [Toronto] Globe and Mail (22 August 1990) A12; A. Picard, "Hockey lotteries outrage officials" The [Toronto] Globe and Mail (4 October 1991) A14; M. Edge, "Gretzky a star witness in court" The [Montreal] Gazette (5 December 1991) F3 (action against Pepsi-Cola). 396 "Ottawa Senators Are Back!" The Ottawa Citizen, (7 December 1990) CI-C4; "Ottawa Senators Are Back!" The Ottawa Citizen (8 December 1990) F1-F3. Ottawa Law Review/Revue de droit d'Ottawa (Vol. 23:3 owner of the Senators, received approval from the Ontario Municipal Board to construct a new 18,500 seat arena on farmland in Kanata.397

2. Player Restraints and the Competition Act

Professional leagues control the free movement of players 398 between clubs through regulations in league by-laws, collective bargaining agreements (CBA) and standard player contracts (SPC). These formal restraints are sometimes supplemented by collusive "gentlemen's agreements" between club owners and managers. Limits on player mobility can be challenged as contrary to the terms of the rules 399 and agreements or as illegal restraints of trade. By section 48 of the Com- petition Act,40 0 it is an indictable offence to impose unreasonable terms or conditions in professional sport or to arrange unreasonable restrictions on opportunities, including unreasonable limits on the right to participate or negotiate. The CFL has twice drawn the attention of the Bureau of Competi- tion Policy in the federal Department of Consumer and Corporate Affairs. In the first example, the League was persuaded to repeal a by-law that had originally been challenged by the players' association. In Reed v. Can. Football League,401 the Canadian Football League Players' Association (CFLPA), on behalf of John Mandarich, obtained an interim injunction against enforcement of a League rule that delayed a player's return after he had been cut by a club in another league. The CFL had unilaterally amended the by-law to discourage players from playing out their option, trying out in the NFL and then resuming with a CFL club in the same year. The CFLPA successfully argued that the rule was contrary to the Competition Act, the restraint of trade doctrine and the article in the CBA protecting the negotiation rights of free agents. 402 In 1990 the Bureau of Competition Policy investigated reports that CFL clubs had agreed not to sign free agents or had agreed to pay compensation for their loss. Paradoxically, the complaints followed a series of free agent signings by the Ottawa Rough Riders which

397 "Now for the cash" The Ottawa Citizen (29 August 1991) Al, A2, BI, B3, Cl. 398 See Barnes, supra, note 2 at 103-37, 160-65, 169-80, 188-223. 399 See, e.g., "Free-agency ruling lands NHL in court" The Ottawa Citizen (26 October 1988) D3 (claim by Clark Donatelli for free agency under NHL by-laws); see also K. Warren, "Riders granted injunction" The Ottawa Citizen (24 October 1990) C I (interpretation of waiver rules; Ottawa Rough Riders obtained a temporary injunction to retain Troy Wilson, who had been awarded to the Edmonton Eskimos). 400 R.S.C. 1985, c. C-34. The Combines Investigation Act was substantially amended in 1986 and renamed the Competition Act, R.S.C. 1985 (2nd Supp.), c. 19, Part II. 401 (1988), 62 ALTA L.R. (2d) 347 (Q.B.). 402 See 1989-91 CFL Collective BargainingAgreement, art. 14, s. 3. 1991] Sports Law dispensed with the need for the annual equalization draft.40 3 The Bureau 40 4 duly found no conspiracy. In the NHL there have been two prominent examples of restraints on players that have certainly influenced negotiations towards a new CBA. In 1991 the Nordiques selected Eric Lindros as first overall choice in the entry draft, but the star junior refused to sign with the Quebec club despite the offer of lucrative terms. 405 Although there has been no legal challenge to the draft, the politically divisive "affaire Lindros" has focused attention on a system that makes a player the unwilling property of a club for two years and then requires a further draft: the draftee can negotiate with another NHL club only if there is a trade of rights. While the draft precludes open bargaining on entry into the League, free agent compensation deters movement by veteran players.40 6 In September 1991 Shanahan from the New Jersey the St Louis Blues' signing of Brendan 407 Devils prompted a heavy and highly disruptive compensation award. League arbitrator, Judge Edward Houston, ordered the assignment of Blues' defenceman Scott Stevens' contract to the Devils despite a no- trade clause and despite the Blues' continuing obligation to pay draft picks to the Washington Capitals after they had acquired Stevens in the previous year. In major league baseball, a series of arbitration decisions has dealt with the collusive collapse of the free agent market between 1985 and 1988:408 the owners' failure to make offers then forced players to re-sign with their former clubs. An initial grievance arbitration in 1987 found a concerted refusal to deal with free agents after the 1985 season,40 9 and subsequent decisions on remedies resulted in awards of free agent status410 and interim compensation. 411 The same remedies were granted in 1988 and 1990 after a further decision relating to the 1986-1987

403 "CFL rivals give Ottawa a rough ride" The [Toronto] Globe and Mail (29 March 1990) A15; M. York, "Competition watchdog investigates CFL" The [Toronto] Globe and Mail (20 June 1990) A12. 404 J. Christie, "Feds rule out free-agent conspiracy in CFL" The [Toronto] Globe and Mail (26 July 1990) A12. 405 See Cruise & Griffiths, supra, note 15 at 339-56. 406 On final offer compensation for "Group I" free agents see Barnes, supra, note 2 at 179-80. 407 A. Strachan, "Stevens deal provides ammunition for NHL free agency" The [Toronto] Globe and Mail (4 September 1991) A12. 408 See S.L. Willis, A Critical Perspective of Baseball's Collusion Decisions (1991) 1 SETON HALL J. OF SPORT LAW 109. 409 Major League Baseball Players Assn v. The Twenty-Six Major League Baseball Clubs (Grievance No. 86-2, Panel Decision 76, 21 September 1987 (Roberts)). 410 Ibid. 22 January 1988 (Roberts) (free agency granted to seven players). 411 Ibid. (Panel Decision 81, 29 August 1989 (Roberts)) (interim award of $10.5 million). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

off-season also found concerted action. 412 Following a third finding of collusion during the 1987-1988 off-season, 413 club owners agreed to 14 make a settlement payment to the players of $280 million. 4

3. Collective Bargainingand Players'Associations

The professional leagues have had distinct experiences in labour relations during the period under review. In the CFL, players agreed to numerous cost-cutting concessions during 1987 and 1988415 that were subsequently incorporated into a new, three-year CBA in 1989. Major league baseball established a four-year agreement in 1990 following a pre-season lock-out. In the NHL, a major development was the selection of a successor to the legendary Alan Eagleson as Executive Director of the players' association. Hockey's CBA expired in September 1991 and a new two-year agreement was concluded in April 1992 following a 10-day strike. The CFL Agreement for 1989-1991 incorporated much of the traditional content of the CBA,416 but also reflected the climate of financial constraint: article 25, for example, clarified that airline soup should not be considered a hot meal. The Agreement reduced the scales of minimum pay and preseason compensation (articles 9, 11) below their 1988 levels and removed the right of four-year veterans to receive a 5% increase in salary during the option year (article 3, section 2). The clubs also sought the right to hold back 25% of basic salary until the end of the regular season. To guarantee payment of the holdback, the CFLPA required an assignment of television revenue and of the proceeds from play-off games and the Grey Cup (article 3, section 6; Appendix K). In the end, players' salary was paid in full when the League and clubs failed to sign the assignment.

412 Major League Baseball Players Assn v. The Twenty-Six Major League Clubs (Grievance No. 87-3, Panel Decision 79, 31 August 1988 (Nicolau)) (decision); 24 October 1988 (free agency granted to 12 players); 17 September 1990 (interim award of $102.5 million for 1987 and 1988 seasons). 413 Major League Baseball Players Assn v. The Twenty-Six Major League Clubs (Grievance No. 88-1, 18 July 1990 (Nicolau)). 414 Club owners agreed in December, 1990 to make the settlement payment: see "Owners vote to give players $280 million in collusion case" The [Toronto] Globe and Mail (6 December 1990) A16. Arbitrators T. Roberts and G. Nicolau substantially approved the division of the award in September 1991: see "Payout Nearer in Collusion Cases" The New York Times (14 September 1991) 29. 415 D. Shoalts, "CFL players join owners in cost cuts" The [Toronto] Globe and Mail (25 November 1987) A19; D. Shoalts, "CFL, player union agree to cost cuts" The [Toronto] Globe and Mail (26 November 1987) A19. 416 See Barnes, supra, note 2 at 188-91. The changes in 1989 included: art. 23 (roster size and designated import); art. 28 (contract negotiation; option year compensation and deferred compensation); art. 34, s. 13 (knee braces); art. 34, s. 14 (media personnel in locker rooms). 1991] Sports Law

The main point of contention in baseball's collective bargaining was club owners' insistence that players have three years of major league service before being eligible for salary arbitration. 417 After a 32-day lock-out during spring training in 1990, the new CBA extended eligibility to the top 17% of players with two years of service. 418 The agreement provided for increased pension contributions by owners, higher minimum pay and the expansion of player rosters to 25 in 1991. To discourage future collusion, the players are to be awarded triple damages if the clubs are found to have agreed not to sign free agents. In the NHL, the players' main negotiator for a new CBA has been Bob Goodenow, who succeeded Alan Eagleson as Executive Director NHLPA at the end of 1991. 4 19 Eagleson's withdrawal from the association he founded came in the wake of concerted opposition to his leadership during 1989 and followed earlier complaints about autocratic rule and conflicts of interest. The recent discontent began with the terms of the 1986 CBA which maintained restrictions on free agency in exchange for "security" payments at age 55 to current players who accumulate 400 games during their careers.420 (Retired players subsequently alleged that their benefits had not properly increased because the owners had largely funded the new scheme from a $25-million pension fund surplus. The retired players filed suit in Ontario in 1991 to obtain an interpretation of the trust documents. 421) Many NHLPA members noted that their salaries, play-off bonuses, pensions, union services and percentage of League income did not compare with the benefits negotiated in other major league sports. The campaign422 to oust Eagleson was co-ordinated by player agents, Rich Winter and Ron Salcer, and by Ed Garvey, the

417 On the inflationary effect of salary arbitration see "Filing for salary arbitration a boon for major-leaguers" The [Toronto] Globe and Mail (23 February 1990) A16. 418 See J. Durso, "Back to work with mixed views" The New York Times (20 March 1990) B15. The Agreement can be reopened on major issues after three years. 419 "Goodenow picked to replace Eagleson" The [Toronto] Globe and Mail (22 January 1990) A14; D. Shoalts, "Goodenow brings new style to NHL job" The [Toronto] Globe and Mail (3 February 1990) A12. 420 See Cruise & Griffiths, supra, note 15 at 266-68, 298-300. 421 See W. Houston, "Former NHL players sue for pension money" The [Toronto] Globe and Mail (1 May 1991) A15; A. Strachan, "Whispers in NHL that hockey lawsuit just tip of iceberg" The [Toronto] Globe and Mail (3 May 1991) A15; T. Claridge, "Former NHL players argue pension case" The [Toronto] Globe and Mail (7 August 1991) A10; T. Claridge, "Round 1 to players in suit" The [Toronto] Globe and Mail (8 August 1991) A13. The League allotted $4.4 million from the surplus to the retired players. See also A. Strachan, "FBI launches investigation into NHL's financial dealings" The [Toronto] Globe and Mail (28 December 1991) Al, A2. 422 See Cruise & Griffiths, supra, note 15 at 300-19. See also A. Strachan, "Garvey junta attempting coup to unseat Eagleson" The [Toronto] Globe and Mail (25 March 1989) Cl1; A. Strachan, "Battle over NHL players gets serious as Eagleson's leadership is disputed" The [Toronto] Globe and Mail (22 April 1989) C11; W. Houston, "Eagleson meeting called as mutiny builds" The [Toronto] Globe and Mail (13 May 1989) C11. Ottawa Law Review/Revue de droitd'Ottawa [Vol. 23:3 former Executive Director of the National Football League Players' Association, and culminated in presentations made at the NHLPA annual general meeting in Florida in June 1989 which were later described by Eagleson:

What my attackers did at West Palm was table a sixty-page document that suggested I had been guilty of financial misconduct, conflict of interest, charging excessive rent and expenses and423 that I had not con- sulted the executive on some financial decisions.

The NHLPA executive and player representatives voted 16 to 12 to retain Eagleson, and this was followed by unanimous votes of support at a meeting in Toronto in August 1989.424 The experience was, however, the beginning of the end for Eagleson who agreed to audits of accounts and to the formation of a committee to find his successor. Eagleson nevertheless remains responsible for the Association's international hockey events until 1993. Eagleson's replacement Goodenow served notice of a new approach to bargaining in June 1991 when he filed an opening brief that called for free market mobility for players:

We believe the time has come for the NHL to emerge from the Dark Ages. We believe that the elimination of the NHL amateur draft and free agency restrictions will have a positive impact on the salaries of all players in the NHL and on the popularity and success of the NHL 4 as a whole. 25

Average salaries in the NHL improved from $276,000 in 1991426 to $379,000 in 1992, but players still have progress to make in their benefits, conditions of employment and in their role in the League. The assessment of two critical commentators is as follows:

.... the players now hold the future of the NHL in their hands. If they and Bob Goodenow recognize this, they may be able to rectify years of terrible deals, one-sided concessions and blatant inequities that previous

423 See Eagleson & Young, supra, note 15 at 209. See also W. Houston, "Eagleson ready for the fight of his life" The [Toronto] Globe and Mail (2 June 1989) Al1; W. Houston, "Rebel NHL players girding for attempt to unseat Eagle" The [Toronto] Globe and Mail (3 June 1989) Cl 1; W. Houston, "Players impose terms on Eagleson" The [Toronto] Globe and Mail (5 June 1989) A15; W. Houston "Eagle's opponents alive and well" The [Toronto] Globe and Mail (6 June 1989) A17. 424 Eagleson & Young, ibid. at 216-32. See G. Loewen, "Eagleson fights off challenge to keep job" The [Toronto] Globe and Mail (22 August 1989) A14; G. Loewen, "Eagle claims harmony, some players not in tune" The [Toronto] Globe and Mail (23 August 1989) A12. 425 NHLPA, Players' Position on Free Agency Issues (June 1991) at 6. 426 See W. Houston, "NHL players seek to dodge draft" The [Toronto] Globe and Mail (18 June 1991) A12. The NHLPA voted to reveal contract figures in January 1990. This disclosure of salaries, together with the generous terms given to star players, may have helped the recent inflation. 1991] Sports Law

bargaining has built into their relationship with the owners. They might also force the League7 to see them, for the first time, as the NHL's primary asset.42

In April 1992, the players duly revealed a new determination to be treated as equal partners and resisted the League's prediction of financial ruin. On 1 April 1992, after a season of sporadic bargaining, the players voted 560 to 4 to reject the owners' "final" offer and began a strike just prior to the play-offs, which are the most lucrative period for the clubs. When the players' bargaining committee rejected a further offer on 7 April, the season seemed doomed, but a settlement on 11 April established a short-term agreement covering 1991 to 1993. The players accepted an additional four games in the schedule, but secured the right to share revenue from two of these. Their gains included improved pension and play-off benefits, a new salary arbitration procedure and recognition of exclusive rights to image and personality enabling the players to maintain control of revenue from the licencing of hockey cards. The agreement liberated the draft and free agency system only slightly, but the players were prepared to make these concessions having previously enjoyed significant increases in salaries. When bargaining resumes prior to the 1993-1994 season, NHL club owners will realize that they are dealing with a more vigorous Association that is concerned to have the players' contribution fully recognized.

4. ContractualIssues

Issues relating to players' contracts include the negotiation process428 and systems for registering or certifying agents. 429 The substantive terms of the Standard Player Contract (SPC) may also prompt disputes, including litigation over clubs' right to "cut" or release personnel. There is also a growing body of wrongful dismissal actions undertaken by head coaches. 430

427 Cruise & Griffiths, supra, note 15 at 339. 428 See J.J. Chapman & A.M. Gans, National Hockey League Contract Nego- tiations and J.S. Moorad, Negotiatingfor the ProfessionalBaseball Player in G.A. Uberstine, ed., LAW OF PROFESSIONAL AND AMATEUR SPORTS (New York: Clark Boardman, 1988). 429 The Major League Baseball Players Association and the CFLPA certify agents (or "contract advisors") and maintain regulations dealing with ethical standards and fees; the NHLPA implemented an agent registration system in May 1991. On litigation between a boxer and a manager see Lalonde v. Coleman (1990), 22 A.C.W.S. (3d) 158 (Man. Q.B.) (agreement not approved by Boxing Commission; fundamental breach in manager's performance). 430 See Neilson v. Vancouver Hockey Club Ltd (1988), 51 D.L.R. (4th) 40, 25 B.C.L.R. (2d) 235 (C.A.) (damages mitigated by earnings from employment with other clubs; award reduced to $64,364). On actions by former head coaches of the Ottawa Rough Riders see W. Scanlan, "Ex-coach sues Rough Riders" The Ottawa Citizen (17 May 1989) Cl; W. Scanlan, "Ex-Rider coach wins lawsuit over salary" The Ottawa Citizen (4 October 1991) DI (regarding Bob Weber); W. Scanlan, "Ex-coach Goldman suing Riders, CFL" The Ottawa Citizen (30 October 1991) El (regarding Steve Goldman). Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3

The SPC in professional sport explicitly authorizes termination if the head coach or general manager is of the opinion that certain specified conditions are met. Paragraph 10 of the CFL SPC traditionally referred to three reasons for termination: the player's failure to demonstrate sufficient skill, unsatisfactory performance of the contract and limits on permitted numbers for certain classes of player. The 1989 CBA (article 3, section 2) added as a further ground that a player could be cut if:

....termination of this contract is in the best interests of the Club having regard for the competitiveness of the Club as a whole or the formation of a team with the greatest overall strength.

At the level of Junior "A" hockey, a power of termination has been implied in a contract that originally promised $2,400 for the season. In Hawes v. Sherwood Parkdale Metro Junior Hockey Club Inc.431 the Court determined that the contract was subject to the customary right and practice of cutting players from the team; the club could terminate without further financial obligation, provided its decision was not made arbitrarily or capriciously.

5. Drug Programsand Discipline

The Commissioner of the CFL holds a general disciplinary authority over players which has been exercised in cases of serious on-field misconduct 432 or conviction for drug offenses. 433 Under the CBA, the Commissioner's decision to fine or suspend a player is subject to review by an independent arbitrator (article 4). The CBA specifies that no drug testing shall be conducted by the clubs or League until there is written agreement on the subject with the CFLPA (article 32, section 2). There is, however, provision for a committee to "study and gather information with respect to drug abuse related to both illegal and performance enhancing drugs" (article 32, section 1).

431 (1990), 86 NFLD & P.E.I.R. 342, 22 A.C.W.S. (3d) 1098 (P.E.I.S.C.T.D.), aff'd (1991), 88 D.L.R. (4th) 439 (A.D.). 432 See, e.g., R. MacLeod, "Rider pins hope on arbiter" The [Toronto] Globe and Mail (8 November 1990) A12; R. MacLeod, "Arbitrator delays Holmes ruling" The [Toronto] Globe and Mail (9 November 1990) A12; R. MacLeod, "Holmes suspension upheld by arbitrator" The [Toronto] Globe and Mail (10 November 1990) A16 (Bruce Holmes given fine and one-game suspension for hitting quarter- back; fine set aside by arbitrator). 433 See D. Shoalts & J. Davidson, "Eskimos' Pothier suspended in drug case" The [Toronto] Globe and Mail (29 October 1986) A14; "Pothier to appeal drug suspension" The [Toronto] Globe and Mail (1 November 1986) C13; H. LaRoi, "Pothier has sentence reduced" The Edmonton Journal (23 May 1987) HI (suspension of Hector Pothier reduced by arbitrator). See also W. Scanlan, "CFL has no policy on drugs" The Ottawa Citizen (20 September 1991) Fl; K. Warren, "Kulka set for abuse" The Ottawa Citizen (26 September 1991) CI (arrest of Glenn Kulka); D. Campbell, "Kulka penalty lays groundwork for CFL drug abuse policy" The Ottawa Citizen (4 April 1992) H2. 1991] Sports Law

The most memorable recent disciplinary action in the NHL was the League's suspension of New Jersey Devils' coach Jim Schoenfeld after he had confronted a referee at the end of a play-off game and delivered lines such as, "fat pig" and "have another doughnut". 434 The Devils obtained a restraining order from a New Jersey court temporarily delay- ing the suspension on the ground that Schoenfeld had been denied a hearing and a chance for appeal. Members of the NHL Officials' Asso- ciation responded by refusing to serve at the next game, which was offi- ciated by amateurs wearing players' warm-up gear and yellow jerseys. The "doughnut" fiasco was not a great moment in the League's 75-year history. Today the NHL addresses the issue of illegal drugs through absolute prohibition and punitive sanctions, rather than a program including testing, treatment and amnesty. 435 Players caught using illegal drugs are subject to the discretionary justice of the League President who deter- mines the initial length of any suspension and whether the punishment is to be commuted to a shorter period. In August 1990, for example, Grant Fuhr admitted long-term use of cocaine and received a one-season suspension, with the chance for reinstatement after 60 games. 43 6 This system of zero-tolerance for those found out has often been criticized as being arbitrary and for failing to encourage players to seek counselling. NHL players have not, however, chosen to try to change it.

V. CONCLUSION

Sport is not peripheral to society; indeed it is central to life and reflects the dominant social and political concerns. In modern society, sport is social system that has become an important a visible and pervasive 437 institution for the transmission of cultural characteristics.

Sport, like law, is all about what concerns us, and sports law may be all about what concerns us the most. The recent crises and conflicts in sport are really a chronicle of greater Canadian anxieties. The

434 See W. Houston, "Coach feels wrath of NHL" The [Toronto] Globe and Mail (9 May 1988) A13; W. Houston, "Temporary peace reached in hockey war" The [Toronto] Globe and Mail (10 May 1988) A15; A. Strachan, "Ziegler's excuses on NHL 'circus' don't hold water" The [Toronto] Globe and Mail (17 May 1988) A15; A. Strachan, "NHL rules court challenge could cost $1 million" The [Toronto] Globe and Mail (14 June 1988) A14; Cruise & Griffiths, supra, note 15 at 321-22. 435 See S.F. Brock & K.M. McKenna, Drug Testing in Sports (1988) 92 DICK. L. REV. 505 at 530-32. 436 See G. Loewen, "Oilers' Fuhr faces NHL drug hearing" The [Toronto] Globe and Mail (I September 1990) A16; G. Loewen, "Gretzky supports NHL drug policy" The [Toronto] Globe and Mail (18 September 1990) A14; D. Shoalts, "No decision made in Fuhr drug case" The [Toronto] Globe and Mail (27 September 1990) A10; A. Strachan, "NHL needs more than whims to form a consistent drug policy" The [Toronto] Globe and Mail (5 February 1991) A11; Eagleson & Young, supra, note 15 at 284-94. 437 A. Metcalfe, CANADA LEARNS TO PLAY: THE EMERGENCE OF ORGANIZED SPORT, 1807-1914 (Toronto: McClelland & Stewart, 1987) at 13. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 23:3 responses to the Johnson disqualification and the Gretzky trade have a lot to do with wounded national pride and insecurities over relations with the United States. Doping control is linked to ambiguous attitudes towards drugs; sports violence ties in with the wider problem of male aggression, and "l'affaire Lindros" reflects the current constitutional crisis. The dollar figures in professional sport cause us to reflect on the myth of equality as we subsidize private wealth amid global poverty. A thread through the whole story is misgiving over the frailty of legal rights and collective rage over the blundering, self-serving actions of government. To look at developments in sport is to look at the society as a whole and to look into the minds of the people. Sport also mirrors more than local concerns. The grand theme of sports studies is the tension between the historical and the timeless: some dilemmas are rooted in particular social structures or political relations, others are enduring and universal in the human condition. Sport reflects deeper meanings both in culture and in human existence. When sport conflict enters the legal system, the case is destined to prominence and notoriety because sport and law offer an interplay of two basic dramas. Sport is about risk-taking and sports law is about the limits of risk-taking. In brief, sports law is about life on the edge. This review therefore traces more than just a vast and varied collection of athlete-related disputes, forming the Canadian segment of the growing worldwide phenomenon of sports law.438 The study of sport helps us find out who we are. It may also help us find out where we are going.

438 See F.G. Houdek, Researching the Law of Sports: A Revised and Com- prehensive Bibliography of Law-Related Materials (1991) 13 HASTINGS COMM. & ENT. L.J. 589-706. On sports law in Australia and New Zealand contact ANZSLA, P.O. Box 4252, Melbourne University, Parkville, Victoria 3052, Australia.