In the drawn out pandemic that is Covid-19 there is a patchwork of professional sport resumption in Canada. The most notable pro sport back is NHL hockey. The BC Athletic Commission has resumed professional sport as well with an upcoming mixed martial arts event planned next month and professional boxing shortly thereafter. Hard work and compromise occurred to get sports back on track such as Covid safety protocols, lack of audience and other changes. Many other professional sports have ground to a halt with no end in sight.
This is not an article to advocate ignoring sensible public health orders and everyone doing their share to help get safely through the pandemic. But, if you are in charge of professional sport, there is a seldom known federal law that you must keep in mind in doing your job. Agreements that “limit unreasonably the opportunities for any other person to participate, as a player or competitor, in professional sport” open the door to both potential criminal and civil penalties.
The Competition Act is a broad statute aimed at stopping anti competitive conduct. One section deal expressly with professional sport and athlete rights to earn a living in their trade. Section 48 contains a short and straightforward prohibition of conspiracies to limit the rights of professional athletes. The section reads as follows:
- (a) to limit unreasonably the opportunities for any other person to participate, as a player or competitor, in professional sport or to impose unreasonable terms or conditions on those persons who so participate, or
- (b) to limit unreasonably the opportunity for any other person to negotiate with and, if agreement is reached, to play for the team or club of his choice in a professional league
is guilty of an indictable offence and liable on conviction to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both.
Governments are not completely immune from the scope of the Act with it noting that “This Act is binding on and applies to an agent of Her Majesty in right of Canada or a province that is a corporation, in respect of commercial activities engaged in by the corporation in competition, whether actual or potential, with other persons to the extent that it would apply if the agent were not an agent of Her Majesty.“
And anyone who violates the pro sport conspiracy section could be looking at a civil suit with section 36 spelling out the right to recover damages as follows:
- (a) conduct that is contrary to any provision of Part VI, or
- (b) the failure of any person to comply with an order of the Tribunal or another court under this Act,
may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.
Sport regulators and others in power over professional athletes in Canada would be wise to work within the boundaries of public health orders while also constructively exploring paths to safe resumption of professional sport. Agreements or efforts to unreasonably limit the return of athletes to their profession could bring out the seldom seen consequences of section 48.