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RECENT DEVELOPMENTS in CANADIAN SPORTS LAW John Barnes*

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RECENT DEVELOPMENTS in CANADIAN SPORTS LAW John Barnes* 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 proceed- ings 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 publi- cation 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
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