Introduction

Canada is a fairly new player in sports law and few Canadian lawyers’ practices will predominantly be related to sports law. This does not mean however that Canadian lawyers are neophytes when it comes to sports law. Both long-standing, well-established areas and emerging trends in the sport law sector are providing diverse opportunities for legal practitioners of varying expertise and specialties.

Amateur Sport

Under the Canadian Constitution, the responsibility for amateur sport is shared between the federal government and each province’s government.

With regards to amateur sport, at the core of sports law in Canada are the various sports’ national sporting organisations, which run their sport in accordance with the rules of the relevant international federation. Inevitably, regulations need to be drafted, including team selection and athlete funding criteria, competition rules, eligibility rules, anti-doping rules, safeguarding rules, disciplinary rules, anti-corruption and prevention of match manipulation rules, etc. Legal experts are required to undertake such regulatory drafting, as well as argue any disputes that can arise out of the same.

The Canadian Olympic Committee governs all sports in the Olympic Program and similarly will require a wide range of regulations to be drafted, implemented and overseen. This will also include sponsorship and marketing, privacy and IP rights, among others.

Sport organisations in Canada are generally defined as any organisation that is:

• the governing body for a specific sport or discipline at the national level or for its association of members in any provincial, territorial or regional jurisdiction, as recognised from time to time by Sport Canada or the Sport Dispute Resolution Center of Canada (SDRCC);
• a multisport service organisation at the national level or in any provincial, territorial or regional jurisdiction in Canada, as recognised from time to time by Sport Canada or the SDRCC; or
• a Canadian Sport Institute or Centre receiving funding from Sport Canada.

Arbitration and Dispute Resolution

Disputes necessarily arise in the course of the administration of national level sport in Canada. While some sporting disputes inevitably still get resolved through civil courts, and sometimes criminal proceedings, the SDRCC established pursuant to subsection 9(1) of the Federal Physical Activity and Sport Act (Bill C-12 and assented to on March 19, 2003), is responsible for providing to the Canadian sport community a national alternative dispute resolution service for sport disputes. To this end, the SDRCC establishes and maintains a list of arbitrators who possess recognised competence with regard to sport and alternative dispute resolution procedures and have the requisite experience in conducting such matters.

The SDRCC operates four different Tribunals.

• Ordinary, which mostly deals with selection and carding cases – meaning athletes who dispute their non-selection to a specific team and athletes who dispute their non-funding from the Athlete Assistance Program of the Government of Canada. 
• Doping, which deals with disputes between the Canadian Center for Ethics in Sport (CCES) and athletes or other persons bound by the Canadian Anti-Doping Program (CADP).
• Safeguarding, which for the most part deals with alleged violations of the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS).
• Appeals, restricted to appeals brought under the CADP and UCCMS.

The most common disputes referred to the SDRCC involve selection cases, carding cases, discipline, anti-doping and more recently safe sport cases. Each of these cases has its unique features, and each dispute will ultimately have to be decided on a case-by-case assessment, taking account of all pertinent factual, regulatory and legal circumstances. A significant body of case law has evolved over the years in all these types of cases. The annotated SDRCC Code provides an overview of these, and all SDRCC decisions are posted on its website. SDRCC decisions may not be posted on the website or publicly reported if they involve minors, if parties have agreed to keeping the award confidential or if the adjudicator’s discretion finds that it warrants non-publication.

A unique feature of the SDRCC arbitration process is the requirement for parties before the Ordinary Tribunal to communicate and attempt to progress towards a negotiated agreement with the assistance of a neutral third party: the “resolution facilitator”. Additionally, prior to taking any significant steps into an arbitration process, parties are given the opportunity to proceed to resolution facilitation or mediation, non-binding and informal processes in which each party undertakes in good faith to negotiate with all other parties, with the assistance of a resolution facilitator or mediator, with a view to settling their sports-related dispute. This preliminary step has proven quite successful in reducing sports hearings in Canada. As a result, this model is currently being considered in other jurisdictions around the world.

Professional Sport

Notably, Canada runs its own American Football League – called the Canadian Football League (CLF). It is similar to the National Football League, with different rules.

Canada also has:

• seven teams competing in the National Hockey League (NHL);
• one team competing in the National Basketball Association (NBA);
• three men’s teams competing in Major League Soccer (MLS);
• three teams in the Women’s MLS;
• three teams competing in the newly created Professional Women’s Hockey League (PWHL); and
• eight teams competing the relatively new Men’s Canadian Premier Soccer League.

There are of course countless legal considerations linked to professional sport related to the administration and operations of each of these professional leagues, their athletes’ careers, their coaching staff, their funding, their owners, the rules of the governing league, etc. There is therefore much work being done by various lawyers throughout Canada with regards to contract negotiations, sponsorship and broadcasting rights, IP, image rights and privacy issues, marketing, risk management, regulation, discipline, training compensation and revenue redistribution, only to name the most obvious areas in relation to each of these professional sports.

Other trends of great interest in Canadian/North American amateur sports are the relaxation of the rules for collegiate athletes and the rethinking of draft rules and bargaining power for minor aged athletes, which, in conjunction with the increased impact of social media, have emboldened amateur athletes to look to increase their earning potential prior to hopefully competing in professional leagues where they were previously prohibited from doing so. Specifically, in relation to hockey, the NHL and Canada’s Major junior hockey leagues were hit in February 2024 with a class-action lawsuit alleging that “they operate a cartel that violates US antitrust law, suppresses competition and keeps players locked in what they refer as an exploitative system that pays them poverty wages in exchange for the dream of playing in professional leagues”. The law on this is unsettled, be it labour, antitrust or anti-competition. But the facts for the most part are not. The system clearly does not favour athletes. It will be interesting to see how the lawsuit evolves and how it will impact hockey and potentially other amateur and professional sports.

Whilst Canada does boast its own sport lawyers who advise teams, owners, leagues, regulators, sponsors and athletes, numerous Canadian athletes are represented by US firms and attorneys. This is a tendency that will hopefully change as more qualified lawyers enter the sports law sphere and are given the opportunity to represent many of the varying entities that are engaged in one way or another.

Recent Trends

Out of the various trends emerging in sports law in Canada, three currently stand out.

• The growth of women’s professional team sports.
• Safeguarding in sport.
• Competition manipulation and sport gambling.

The growth of women’s professional team sports

Women’s professional team sports are a relatively new phenomenon, having largely emerged within the latter part of the 20th century. Unlike amateur women athletes, professional women athletes competing in team sports are able to acquire an income which allows them to earn a living without requiring another source of income. Up until very recently, most top female athletes who competed in team sports were not paid – and if they were, they were only touching a fraction of what their male counterparts were paid (in terms of contractual fees, sponsorship, or other remuneration). Professional organisations for women in sport are most common in developed countries like Canada, France, Spain, the UK and the US, where there are investors available to buy teams and businesses which can afford to sponsor them in exchange for publicity and the opportunity to promote a variety of their products or services. Women’s team sports have of course also been given the opportunity to flourish of late because of shared revenues, stadiums and training facilities enjoyed by their male counterparts – the most impressive example of this being FC Barcelona women’s soccer club.

Very few governments support private leagues, male or female, and Canada is no different. Perhaps the greatest boost to women’s professional sport in Canada was the success of the Canadian women’s soccer (football) team and their fearless leader Christine Sinclair and the profound and lasting impact of various members of the Canadian women’s national soccer squad in FIFA women’s play. Women’s soccer continues to grow exponentially at the international level and Canada should be proud to have been instrumental in this growth, notably by contributing outstanding players to the Premier League, UEFA competition, etc. The same applies to the newly created PWHL which is rapidly growing in fanbase due largely to the contribution of many Canadian players. The growth of women’s professional team sports in Canada has created new revenue streams and has escalated the need for regulation, marketing, sponsorship rights, broadcasting rights, image rights, agency rules, and the like. Whilst not currently being dealt with predominantly by Canadian lawyers, the emergence of this market will surely create opportunities for sports law lawyers in Canada. Stay tuned.

Safeguarding in sport

Maltreatment in sport has been exposed across many jurisdictions around the world over the last few years, and Canada has not been immune to it. After numerous reports, complaints and allegations of mistreatment and abuse at all levels of Canadian sport became known, in December 2023, the federal government announced that it would launch a three-person commission to investigate systemic abuse and human rights violations in Canadian sport. This announcement was made by the government after being pressured for months to call a public inquiry into abuse in sport. Elite athletes, advocates and a parliamentary committee have all demanded an inquiry to address what they call a pattern of normalising abuse, covering up misconduct and failing to hold perpetrators accountable.

The 18-month commission process is set to start sometime in 2024. The goal is for a preliminary and final report to be issued with recommendations on governance, funding and policy aimed at changing the culture in sport.

Also noteworthy are the significant growing pains faced by the Office of the Sport Integrity Commissioner (OSIC) of Canada. The OSIC is responsible for administering the UCCMS by using trauma-informed processes that are compassionate, efficient and provide fairness, respect and equity to all parties involved. The OSIC contributes to the advancement of the UCCMS by:

• overseeing a complaint intake process;
• conducting preliminary assessments and commissioning independent investigations, when warranted;
• maintaining a database of imposed sanctions; and
• monitoring compliance by sporting organisations, and issuing reports into its findings, as required.

The OSIC was created as an independent division of the SDRCC which had been in operation and serving the Canadian sport system since 2002. However, after roughly a year-and-a-half, reviews of the operations of the OSIC were not favourable. Although the OSIC’s stated purpose is to be an independent handler of reports and complaints of abuse throughout Canada, its jurisdiction is limited mostly to the federally funded sports organisations required by the Sport Minister to become signatories. As most provincial, territorial and community sport bodies are not yet signatories and thus not under OSIC’s jurisdiction, this means that many athletes/victims were/are falling through the proverbial cracks. This was identified as the most important shortcoming of the OSIC. As it is funded purely by the Canadian government to provide services to its national sports organisations, other sport organisations (provisional, territorial or even regional) can use it but would have to pay for it, and that is simply not accessible to provincial or smaller organisations given the significant cost of becoming a signatory. Thus, it is not that these smaller organisations do not want an independent mechanism, it simply was not built for them and is not realistically accessible to them. Therefore, athletes keep falling through the cracks.

Another issue is that the OSIC’s independence has been questioned, resulting in Canada’s Sport Minister announcement at the end of 2023 that OSIC would be moving outside the umbrella of the SDRCC. No details have been released on when this would occur, how, and which body would be taking over the OSIC operational and administrative oversight. This is a topic to watch closely in 2024 and beyond.

Competition manipulation and sports gambling

Competition manipulation is a deliberate effort to influence elements of a sporting contest or its outcome, usually for financial gain. Competition manipulation is recognised as a major threat to the integrity of sport on a global scale. As a result, sport federations have increasingly created international integrity units to tackle the issue to expose the scale of the problem. In Canada, the CCES is engaged in several activities that aim to protect the integrity of sport and bolster the country’s role and reputation in this area on the international stage.

Competition manipulation is often associated with gambling and linked to organised crime, and it is also a growing issue of concern for Canada. Although regulated gambling markets can also be subject to betting-related fraud, when compared to unregulated betting markets in which bookmakers operate with limited oversight, regulated markets are typically managed by government and provide better opportunities to monitor and address issues related to match manipulation. Canada has recognised that without measures in place to manage sport betting and corruption, it will continue to grow. This is particularly so in an environment where athletes for the most part, are not professional, and therefore unable to earn a living strictly from their sporting endeavours. This leads to amateur and lower-level athletes being particularly vulnerable to match manipulation approaches. To this end, most Canadian provinces, who under Canada’s division of constitutional powers are responsible to regulate and manage sports betting, have legalised sports gambling in an effort to better regulate the same. Bill C-218 – An Act to amend the Criminal Code (sports betting) which became law in August 2021, provides a regulatory framework to manage single-event sport betting in Canada, consumer protections, and increased economic opportunities. Whilst this has proven quite profitable for the betting regulators and is widely supported as providing a concrete mean of reducing match manipulation and illegal gambling, it has not come without struggles. There has been considerable backlash and general moral distaste from the public about oversaturation of gambling adverts, as well as ethical complaints regarding the risks and ramifications of this legalisation and the barrage of adverts that followed, including that both pander to addictions,  manipulate the impressionable youth and normalise betting.

This is an area to follow closely, not only in Canada, but globally.

There are of course various other legal trends in Canadian sport law that are being argued, investigated, arbitrated and regulated by some great Canadian legal practitioners, be it lawyers, arbitrators or advocates, including human rights, anti-doping, discipline, eligibility, governance, regulatory, commercial rights, hosting major or minor sporting events, risk management, esports etc. It is a small niche community that will surely continue to grow and emerge exponentially like the trends identified above.