LAW AND BUSINEES: October 2013

Thursday, October 31, 2013

140 Law - Legal Headlines for Thursday, October 31, 2013

Here are the leading legal headlines from Wise Law on Twitter for Thursday, October 31, 2013, Happy Halloween!:

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, October 30, 2013

140 Law - Legal Headlines for Wednesday, October 30, 2013

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, October 30, 2013:

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Tuesday, October 29, 2013

140 Law - Legal Headlines for Tuesday, October 29, 2013

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, October 29, 2013:

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Monday, October 28, 2013

Sports Illustrated and UNH Law Town Hall on O'Bannon v. NCAA and the Future of College Sports

The University of New Hampshire School of Law and Sports Illustrated proudly invite you to attend A Town Hall on O'Bannon v. NCAA on Tuesday, November 5th from 6 p.m. to 7:30 p.m. in Room 282, followed by a reception in the Franklin Pierce Center for Intellectual Property.

The Town Hall will examine how a class action lawsuit against the NCAA could radically change college sports as we know it. Through legal arguments sounding in intellectual property and antitrust, Ed O'Bannon—a former basketball star at UCLA—contends that current and former Division I men's basketball and football players should be paid for their image and likeness on television broadcasts, video games, trading cards, apparel and other commercial ventures. The Town Hall will also consider related cases, including Sam Keller v. NCAA and Ryan Hart v. Electronic Arts, as well as pending federal legislation in the NCAA Accountability Act. Collectively, these legal developments could lead to the compensation of college student-athletes and impact their unionization and quasi-employment rights.

The Town Hall will feature some of the most influential and insightful people in college sports:

Moderator
B.J. Schecter	B.J. Schecter, Executive Editor of Sports Illustrated and SI.com. Schecter is a sports journalism professor at CUNY Graduate School of Journalism and Columbia University Graduate School of Journalism.
Panelists
Charles Grantham	Charles Grantham, former Executive Director of the National Basketball Players Association (NBPA). Grantham was an architect of the revenue-sharing business model while protecting the NBA’s greatest asset—its players. Currently, he is a sports business consultant and an Adjunct Professor at Seton Hall University’s Stillman School of Business and New York University where he teaches at the graduate level on collective bargaining and dispute resolution in professional sports.
Professor Michael McCann	Professor Michael McCann, Director of the Sports and Entertainment Law Institute and a tenured professor at UNH Law, teaching Pro Sports Law, Amateur Sports Law, andSales. Legal Analyst and Writer at Sports Illustrated & SI.com.
Alan Milstein	Alan Milstein, Shareholder at Sherman Silverstein in New Jersey, Milstein is one of the nation's leading litigators in both sports and bioethics. Milstein has litigated on behalf of Allen Iverson, Carmelo Anthony, Eddy Curry, Allen Houston, Maurice Clarett & other sports figures.
Professor Alexandra Roberts	Professor Alexandra Roberts, Executive Director of UNH Law's Franklin Pierce Center for Intellectual Property and a professor of entertainment law and trademark law. Roberts is a former intellectual property litigator at Ropes & Gray LLP in Boston and New York.
Marty Scarano	Marty Scarano, University of New Hampshire Athletic Director in his 14th season, National Association of College Directors of Athletics "AD of the Year" in 2007. During Scarano’s tenure, UNH teams have made 44 NCAA postseason appearances and captured 14 conference titles. Those teams have also achieved one of the best graduation rates among NCAA members.
Sonny Vaccaro	Sonny Vaccaro, Leading advocate for rights of college athletes and an unpaid adviser to Ed O'Bannon's legal team. Founding Chairman of The Roundball Classic and ABCD camp. While a marketing executive at Nike, Vaccaro signed Michael Jordan to his first major endorsement package.

Come for the enthusiastic discussion and debate; stay for the hors d'œuvre, beverages, and networking opportunities. We hope to see you there! Please RSVP to ip.center@law.unh.edu.

* UNH Law is about an hour drive from Boston and directions can be found here.

** Portions of the town hall will be aired on SI Now, Sports Illustrated's Daily Talk Show. Other portions will be shown through video provided by UNH Law's Sports and Entertainment Law Institute.

Mike Pouncey Subpoena

A potentially major development in the Aaron Hernandez murder case occurred last night, when Dolphins center Mike Pouncey was served with a grand jury subpoena after the Dolphins played at the Patriots. The grand jury is investigating a potential scheme involving the same of guns and it may be connected to Hernandez. On SI.com last night, Pete Thamel and Greg Bedard broke the story and I have a legal analysis this morning.

140 Law - Legal Headlines for Monday, October 28, 2013

Here are the leading legal headlines from Wise Law on Twitter for Monday, October 28, 2013:

- Elysia Cherry, Legal Assistant

Visit our Toronto Law Office website: www.wiselaw.net

Sunday, October 27, 2013

Procompetitive Effects and the Ban on Paying College Athletes

USA Today's Steve Berkowitz wrote on Friday that Judge Wilken denied a motion to dismiss in the O'Bannon litigation. Here is an excerpt from Berkowitz's article in which he addresses Judge Wilken's remarks concerning whether a ban on athlete pay serves a procompetitive purpose:

Meanwhile, the judge also raised questions about the applicability to this case of the 1984 Supreme Court ruling in NCAA v. Board of Regents, a case that was about control of college football TV rights but the opinion on which included the statement that "in order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class and the like."

The NCAA has relied upon this language in defending its amateurism system and has successfully used it [in] many prior legal cases.

However, Wilken wrote in Friday's ruling that the case "does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images, and likenesses.

"Although it is possible that the NCAA's ban on student-athlete pay serves some procompetitive purpose, such as increasing consumer demand for college sports, Plaintiffs' plausible allegations to the contrary must be accepted as true at the pleading stage."

Wilken also wrote that the Supreme Court "never even analyzed the NCAA's ban on student-athlete compensation under the rule of reason nor did it cite any fact findings indicating that this ban is the type of restraint is 'essential if the (NCAA's) product is to be available at all'. More importantly, the Court never examined whether or not the ban on student-athlete compensation actually had a procompetitive effect on the college sports market."

Berkowitz's piece raises a really interesting question. In sports antitrust cases, the issue concerning procompetitive effects essentially revolves around competitive balance. Why is there an assumption that a ban on athlete pay increases consumer demand for college sports and/or fosters competitive balance?

First, while I do believe there are many consumers who do not want athletes to be paid, I have serious doubts whether there is any correlation between consumer demand and athlete pay (or lack thereof). For starters, the consumer knows there are lots of athletes in big-time college sports who are paid under the table from boosters and various other third parties (unless of course one believes that the number of athletes getting paid is limited to only those who actually get caught).  But more importantly, if the rules were changed to permit athletes to be compensated for their names and images, I don't believe fans and alumni would take the position, "I'm not watching my team play this weekend because I read somewhere that somebody paid our defensive end $1,000 this week for signing some memorabilia."

But who cares what I think and let's assume for sake of argument that some consumers would not be interested in the product if the athletes were paid more than they are currently. How much relevance should it have for antitrust purposes? Is a producer insulated from antitrust liability simply by calling its product "unpaid labor"? If all of the law firms in the U.S. agreed to restrict the pay of their associates (in the first four years before making partner) to law school tuition reimbursement, would the agreement pass antitrust scrutiny if they marketed their product to the consumer as "cheap associate labor"? Most would not dispute that a team salary cap violates antitrust law but is the answer different if a sports league calls its product "salary capped labor"?  If the NFL could show that it is losing consumers because they believe the athletes are grossly overpaid, would/should that have any relevance for antitrust purposes if the league put an individual cap on each player's salary?

Second, on the issue of competitive balance, the irony is that college football arguably has much less competitive balance than professional football where the athletes are paid competitive wages. Unlike professional football, college football has "dynasties" and "powerhouses".  For a college sport that supposedly has competitive balance, why are Alabama's football fans leaving so many empty seats in the stadium?

Saturday, October 26, 2013

Baseball rules, again

One year after benefiting from a bizarre and controversial (although I believe correct) Infield Fly call in the NL WIld Card, the St. Louis Cardinals won Game 3 of the World Series on an obstruction call on the Red Sox third baseman (video embedded). Although early reaction (at least outside the Red Sox clubhouse) seems to approve of the call, this one will remain a point of contention, both because it occurred in the World Series and because it allowed the game-winning run to score (officially, it was scored an error on the third baseman who obstructed).

Rule 2.00 of the Official Baseball Rules defines "Obstruction" as "act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner." A Comment to the rule provides that a fielder can occupy space when "in the act of fielding a ball," but once he has attempted to field a ball and missed, he can no longer be in the act. Thus, if a player dives at a ball and continues to lie on the ground after it is passed him and delays the runner's progress, "he very likely has obstructed the runner." The rule has no intent requirement; impeding the runner, even unintentionally, constitutes obstruction. Under R. 7.06(b), the umpire can "impose such penalties, if any, as in his judgment will nullify the act of obstruction;" typically, that is the base he would have been entitled to without the obstruction.

Here is video of the umpires' press conference, which can best be described as a judicial opinion issued from the bench, explaining a decision. A couple of themes emerge that, I think, support the call. First, intent does not matter, only the result. Even if (as here) it is almost unfair because the play happened too quickly for the fielder to do anything to get out of the way. Second, while the internet is talking about the Sox third baseman's legs going up in the air, the umpires insisted that it was not the legs, but the fielder's body that created the obstruction. Third, it did not matter that the runner was inside the foul line when he tripped over the fielder (one ump said he was right on the chalk, the video suggests he was inside the line), a point the Red Sox players kept repeating in interviews; a runner can "make his own baseline" by picking the most direct path to the next base.

As expected, some players (Sox starter Jake Peavy was one) complained about the game ending on the umpire's call and the umpire "deciding" the game, a reflection of what Mitch Berman has called "temporal variance" in enforcement of sports rules. That argument seems especially incoherent in this context. After all, the Cardinals could just as easily argue that the play was important precisely because the Cardinals had a chance to score the game-winning run and the Sox were preventing him from doing so.

Anyway, obstruction now will be the word of the rest of this Series.

Schooled: The Price of College Sports

Need something to do before you head out Trick-or-Treating on Halloween? Swing by Harvard Law Schools as The Committee on Sports & Entertainment Law hosts a panel discussion about the business of college sports.

Friday, October 25, 2013

140 Law - Legal Headlines for Friday, October 25, 2013

Here are the leading legal headlines from Wise Law on Twitter for Friday, October 25, 2013:

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Ontario Powers of Attorney for Care: The Courts' Role in End-of-Life Care Decisions

This week at Wise Law Blog, we are exploring Powers of Attorney for Care, and end-of-life care decisions, generally. Join us as Simran Bakshi, Student-at-Law, considers a the questions and concerns around appointing an Attorney for Care and completing an Ontario Power of Attorney for Care document.

Our focus thus far in this week's series has been on the practical considerations in making an Ontario Power of Attorney for Personal Care. In this final instalment, we will now shift gears to look at the issues that can arise with end-of-life care decisions, and the role the Court assumes in such matters.

Where there is no appointed Attorney for Care, whose opinion counts?

A lack of clarity as to your end-of-life care wishes can seriously compromise your autonomy in making personal choices, and potentially create serious rifts among loved ones left to fill in the blanks on what is at best, well-intentioned guesses. The case of Terri Schiavo serves as a cautionary tale of the devastating consequences that can result where an Attorney for Care has not been appointed.

In February of 1990, Terri Schiavo suffered a full cardiac arrest that temporarily deprived her brain of oxygen, leaving her in a persistent vegetative state. As Terri had not appointed an Attorney for Care, her husband became her legal guardian pursuant to Florida laws, and took on the role of decision-maker for her medical care. He contended that Terri had expressed to him that she would not want to be kept alive through artificial means and accordingly would not want to be dependent on a feeding tube. Terri’s parents, however vehemently denied this to be their daughter’s wishes, arguing that as a devout Catholic, she would have instead held strong beliefs in the sanctity of life. A very bitter and public feud ensued between the parties when in 1998, Terri’s husband petitioned the Court to have her feeding tube removed.

The end-of-life care decisions of Terri Schiavo soon became a matter of public discourse with everyone from President George Bush to the Vatican weighing in on what was “appropriate”. What should have been a personal decision reflecting the values of Terri Schiavo, instead became a hot topic that divided the nation, “pitt[ing] culture-of life conservatives against right-to-die civil libertarians”[1]. In a highly unusual step, the “Schiavo Bill” (which later came to be known as the “Palm Sunday Compromise”) was passed to allow for Terri’s case to be reviewed by the Federal Court. However, despite this extraordinary measure and the countless appeals to both the court of law and the court of public opinion, Terri Schiavo’s feeding tube was removed on March 18, 2005. She sadly died shortly thereafter.

In reflecting on the ordeal, Michael Schiavo’s attorney infamously stated, ““no family…having to go through the death process for a loved one should have the added worry that a panel of judges is going to order an ambulance to come or that politicians are going to interfere with the death process that your loved one has chosen and has almost completed.” In what can only be described as a tragedy all around, the case of Terri Schiavo stands testament to the need for clarity in advance care planning.

Reconciling a Patient’s right to self-determination with a Physician’s ethical duty:

Pursuant to section 10 of the Health Care Consent Act, a health practitioner is required to obtain consent prior to administering any treatment on a patient. Such authorization may come directly from the patient, or, where the patient is deemed to be incapable it may be obtained from the appointed substitute decision-maker. As discussed earlier, an appointed Attorney for Care is to reach personal care decisions on your behalf on the basis of your directives, or where no such guidance is available, or simply impossible to follow, on the basis of what is held to be in your best interests.

While the legislative framework surrounding consent to medical treatment is clearly defined, challenges arise when it is considered in context with a health care professional’s duty towards his or her patient. A modern translation of the Hippocratic oath that guides physicians includes a promise “to keep the good of the patient as the highest priority.” Accordingly, health care providers in Ontario are able to seek recourse by way of making an application to the Consent and Capacity Board, where they have reason to believe that a substitute decision-maker is not acting in accordance with a patient’s best interests. Serious issues arise however where a medical opinion as to what is “good” for the patient cannot be reconciled with a substitute decision-maker’s assessment of “best interests”.

The controversial case of Samuel Golubchuk is one that brings this issue to the forefront. Mr. Golubchuk was an 84-year old patient admitted to Winnipeg’s Salvation Army Grace Hospital with pneumonia and pulmonary hypertension. While his pneumonia was eventually cured, he remained in a severely weakened state such that he required life support in the form of a ventilator and feeding tube. As his condition deteriorated, physicians at the hospital took the position that further medical intervention would be futile and treatment ought to be withdrawn. His family however, maintained that doing so would be in violation of Mr. Golubchuk’s Orthodox Jewish beliefs. An interim emergency court injunction against removing life support pending trial was successfully brought by his children. Shortly thereafter, the Manitoba College of Physicians and Surgeons released a statement conferring physicians with the final decision to withdraw life support.

In the brink of it all, Mr. Golubchuk’s attending physician resigned from the hospital on the grounds of medical ethics. In explaining his reasons, Dr. Anand Kumar stated,

“If we honestly attempt to follow the court mandate to focus on keeping Mr. Golubchuk from his natural death, we will likely have to continue to surgically hack away at his infected flesh at the bedside in order to keep the infection at bay. This is grotesque. To inflict this kind of assault on him without a reasonable hope of benefit is an abomination. I can’t do it.”

Unfortunately, as is often the case with end-of-life care litigation, the Court did not decide the underlying issue as Mr. Golubchuk passed away prior to the commencement of trial.

Guidance from the Supreme Court of Canada: The Rasouli decision

In reflecting on how to conclude this article, I had initially planned on setting out the many uncertainties that remain in the law of medical consent and decision-making. Ironically, however, late last week, the Supreme Court of Canada released its decision in the case of Cuthbertson v. Rasouli, wherein it provided great clarity and direction on the question of who holds the authority to make end-of-life care treatment choices in Ontario.

On October 18, 2013, the Supreme Court of Canada dismissed an appeal brought by doctors of Hassan Rasouli to unilaterally end his life-support without the consent of his substitute decision-maker. In doing so, the Court addressed two very interesting issues surrounding medical consent.

Substantively, the physicians of Mr. Rasouli contended that the withdrawal of life support that does not provide any medical benefit to the patient does not require consent as it does not constitute a “treatment” as defined in the HCCA.

In disagreeing with this position, the Court clarified as follows:

· “Treatment” and “medical benefit” are two distinct concepts. Treatment is broadly defined as “anything that is done” for one of the enumerated purposes (therapeutic, preventative, palliative, diagnostic and cosmetic) or “other health-related purpose”. Medical benefit on the other hand is a reflection of the standard of care that a physician is to provide a patient in providing treatment.

· “ ‘[T]reatment’ in the HCCA is broadly defined and therefore should be understood as extending to withdrawal of life support…[which] aims at the health-related purpose of preventing suffering and indignity at the end of life, often entails physical interference with the patient’s body and is closely associated with the provision of palliative care”

· While the continuation of life support for a patient may place a physician in an untenable ethical position, such tensions are inherent to medical practice.

Procedurally, the Court was called upon to assess whether the Court or the Consent and Capacity Board (“Board”) was the appropriate forum for bringing challenges to consent decisions. In upholding the statutory framework of the HCCA, the Court held that the Board was the proper place to make determinations relating to consent to treatment for capable and incapable patients:

“[The] legal framework [of the HCCA], which aims at protecting patients’ autonomy and medical interests, has been used to resolve end-of-life disputes in Ontario for 17 years. Access to this established regime should not be closed off, casting these matters back into the courts.

“The HCCA does not neglect the role of health practitioners in the treatment of incapable patients. First, where there is a prior wish by the patient, the attending physician may ask the Board to find that the wish is not applicable to the patient’s current circumstances (s. 35), or to permit a departure from the wish because the likely result of treatment has significantly improved since the wish was made: s. 36. Second, if the physician feels that a substitute decision-maker has not complied with the HCCA’s rules for giving or refusing consent to treatment, he may challenge the consent decision by application to the Board: s. 37. Such a challenge will generally focus on medical considerations within the s. 21(2) best interests analysis. The physician’s views of what will medically benefit the patient are obviously critical to the Board’s determination of the patient’s best interests. However, the HCCA gives the Board final responsibility to decide disputes over consent to treatment for incapable patients, based on an objective assessment of whether the substitute decision-maker complied with the requirements of the HCCA.”

[Para 27]

This decision reflects the great respect the Court gives to the principles of autonomy and self-determination. In essence, it goes to empower substitute decision-makers, including Attorneys for Care, to exercise the authority conferred upon them.

Simran Bakshi, Student-at-Law, Toronto

Visit our Website: www.wiselaw.net

[1] Commented by Carl Cameron, chief political correspondent, Fox News

Thursday, October 24, 2013

140 Law - Legal Headlines for Thursday, October 24, 2013

Here are the leading legal headlines from Wise Law on Twitter for Thursday, October 24, 2013:

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

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