Clenbuterol – Spiropent Abuse in Sport

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I have recently seen a great increase in the abuse of the drug called Clenbuterol, available on the market under the brand name Spiropent, used by prescription only. It is a bronchodilator used for asthma. It has stimulating effects and is abused for its fat burning properties. It is on the WADA Prohibited List and strict sanctions apply when abused without a validly approved Therapeutic Exception.

The earliest case I recall is that of Katrin Zimmerman Krabbe v Deutscher Leichtathletik Verband (DLV) and International Amateur Athletic Federation (IAAF) (Munich Court of Appeal, Germany, 28 March 1996).

Katrin Krabbe was a German athlete, member of the German Athletics Federation (DLV). She tested positive for Clenbuterol and admitted taking it. She had no record of asthma and bought Spiropent on the black market. At that time, Clenbuterol was used for fattening up pigs and calves in order to increase their lean muscle mass.

She received a one-year suspension at first, which the DLV deemed insufficient and decided to suspend her for three years. Katrin Krabbe appealed to the District Court (Landgericht) for a declaratory judgment which would make the suspensions imposed by the DLV and IAAF inapplicable. Her request was dismissed by the District Court. The athlete then took her case to the Munich Court of Appeal.

The Court decided that the two penalties (DLV and IAAF) were separate. The one-year suspension imposed by the DLV was legally enforceable because the appellant was a member, purchased the annual Federation membership card and was thus contractually bound by the rules of the Federation.

According to Article 116 of the German Civil Code (BGB), an implicit contract existed between the athlete and the Federation. The same contract is binding under the US laws. The athlete tried to argue that since Clenbuterol was not on the DLV’s list of prohibited substances, it was presumed to be acceptable. The Court dismissed this argument because the DLV had rightly pointed out that the list of substances also banned the use of substances that had an identical effect to that of those on the list.

In other words, Katrin Krabbe had contravened the principles of sportsmanlike conduct and fair play by taking Spiropent bought on the black market – a substance for which a medical prescription was required – and by refusing to give accurate information on drug test forms. The evidence also showed that Katrin Krabbe was aware of the issues associated with abuse of Spiropent.

However, the IAAF rules did not provide for any review of DLV sanctions, and the court therefore deemed the IAAF sanction excessive. In compliance with IAAF Rule 54, the DLV had decided, via its Legal Committee, to impose a twelve-month suspension for violation of the principles of sporting behavior. Rule 54 was the rule applicable to non-doping cases. IAAF Rule 53.2.2 applied only if the disciplinary procedure described in Rule 54 had not been correctly followed by the National Federation. This implied that Rules 54 and 53.2 could not both be applied to the same case.

Rule 53 could not be used as a legal basis for the punishment of “unsportsmanlike conduct,” which had already been considered and sanctioned by the relevant national sports federation. Furthermore, if, contrary to the above, Rule 53.2 could serve as the legal basis for an extra sanction imposed by the IAAF, the extension of the suspension breached the principle of proportionality. The suspension of 3 years 9 months was excessive. It was generally accepted that a four-year suspension usually meant the end of an athlete’s career.

The DLV Legal Committee therefore considered a two-year ban to be the maximum for a first offence against the rules on doping. The same opinion was held by the “Deutsche Sportbund” and the IOC. Since “unsportsmalike conduct” was less serious than doping itself and since this was the athlete’s first offense, the IAAF’s sanction was excessive, disproportionate and unfair.

 

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Fiduciary Duty in Real Estate Transactions

When you employ a real estate broker or salesperson as your agent, you are the principal. The relationship of agent and principal is fiduciary in nature, founded on trust or confidence reposed by one person in the integrity and fidelity of another. Included in the fundamental duties of such a fiduciary are good faith and undivided loyalty, and full and fair disclosure. Such duties are imposed upon real estate licensees by license law, rules and regulations, contract law, the principals of the law of agency, and tort law. The object of these rigorous standards of performance is to secure fidelity from the agent to the principal and to insure the transaction of the business of the agency to the best advantage of the principal.

A real estate broker is strictly limited in his or her ability to act as a dual agent. As a fiduciary, a real estate broker is prohibited from serving as a dual agent representing parties with conflicting interests in the same transaction without the informed consent of the principals. If dual interests are to be served, the disclosure to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance.

A real estate agent must prove that prior to undertaking to act either as a dual agent or for an adverse interest, the agent made full and complete disclosure to all parties as a predicate for obtaining the consent of the principals to proceed in the undertaking. Both the rule and the affirmative defense of full disclosure are well settled in law. You may always object to the dual agency and not accede to the terms.

In a purchaser/seller transaction in which dual agency arises, the agent must not only clearly explain the existence of the dual agency issue and its implications to the parties, the agent must also obtain a written acknowledgment from the prospective purchaser and seller to dual agency. That acknowledgment requires each principal signing the form to confirm that they understand that the dual agent will be working for both the seller and buyer, that they understand that they may engage their own agent to act solely for them, that they understand that they are giving up their right to the agent’s undivided loyalty, and that they have carefully considered the possible consequences of a dual agency relationship.

The fiduciary duty of loyalty that your real estate agent owes to you prohibits your agent from advancing any interests adverse to yours or conducting your business to benefit the agent or others.

Significantly, by consenting to dual agency, you are giving up your right to have your agent be loyal to you, since your agent is now also representing your adversary. Once you give up that duty of loyalty, the agent can advance interests adverse to yours. For example, once you agree to dual agency, you may need to be careful about what you say to your agent because, although your agent still cannot breach any confidences, your agent may not necessarily use the information you give him or her in a way that advances your interests but, rather, those of the other party.

As a principal in a real estate transaction, you should always know that you have the right to be represented by an agent who is loyal only to you throughout the entire transaction. Your agent’s fiduciary duties to you need never be compromised.

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Predatory Lending

predatory-lending

There is no simple checklist for determining whether a particular loan or loan program is predatory. Loan terms that are helpful to one borrower may be harmful to others. For example, it is important to distinguish subprime lending from predatory lending. Subprime lending includes loans to persons who present heightened credit risk because they have experienced problems repaying credit in the past, or because they have only a limited credit history. Loans that serve these borrowers have a legitimate place in the market when they have been responsibly underwritten, priced and administered. Predatory lending, on the other hand, is not limited to one class of borrowers. Signs of predatory lending include the lack of a fair exchange of value or loan pricing that reaches beyond the risk that a borrower represents or other customary standards.

As a general rule, predatory lending involves at least one, and perhaps all three, of the following elements:

  • Making unaffordable loans based on the assets of the borrower rather than on the borrower’s ability to repay an obligation;
  • Inducing a borrower to refinance a loan repeatedly in order to charge high points and fees each time the loan is refinanced (“loan flipping”); or
  • Engaging in fraud or deception to conceal the true nature of the loan obligation, or ancillary products, from an unsuspecting or unsophisticated borrower.”

The Community Reinvestment Act (CRA) examination process reviews each bank’s record, based on the standards appropriate for its size and operation. Predatory lending can have a negative effect on a bank’s CRA performance, specifically, including violations of: the Fair Housing Act and the Equal Credit Opportunity Act involving discriminatory credit practices; the Truth in Lending Act, regarding rescission of certain mortgage transactions, and regarding disclosures and certain loan term restrictions in connection with credit transactions subject to the Home Ownership and Equity Protection Act; the Real Estate Settlement Procedures Act regarding the giving and accepting of referral fees, unearned fees or kickbacks in connection with certain mortgage transactions; and the Federal Trade Commission Act regarding unfair or deceptive acts or practices. Other practices may warrant the inclusion of comments in an institution’s performance evaluation. These comments may address the institution’s policies, procedures, training programs, and internal assessment efforts.

Predatory lending harms individuals and communities and raises risk management and consumer compliance concerns for financial institutions. Predatory loans can have a negative impact on a bank’s CRA evaluation. The loans may violate fair lending laws and other consumer protection laws, resulting in legal or regulatory action. Questionable loan underwriting and the risk of litigation raise additional safety and soundness concerns.

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To Terminate or Not to Terminate

Termination of employment document

Termination of employment document

 

California Labor Code §1400 affords us the following definitions: under Sec. (c) layoff means a “separation from a position for lack of funds or lack of work.” This means that there is no fault on the part of the employee for a layoff and the employee may be eligible for unemployment and other benefits.

The same paragraph, Sec. (f) defines the word “termination” as “the cessation or substantial cessation of industrial or commercial operations in a covered establishment.” Thus TERMINATION and LAYOFF are the same, but while the former refers to the termination of the business, the latter terminates the employee. Again, there is no stigma attached to “termination.”

What does “being fired” mean in this context? The state of California follows the “at will” presumption, which means that in the absence of an employment contract, there is a presumed “at will” employment. Under “at will” an employee can be fired for any reason or no reason at all, but the reason, if any, may not be unlawful. Unlike with a layoff or termination, the term “I was fired” usually carries the stigma of “for a cause,” such as being late to work, or not performing one’s duties. Employers who are “firing” their at will employees for “lack of funds or lack of work” should therefore use the term layoff or state that they are “terminating” the employment.

The most common “unlawful reason” for firing an employee is usually some kind of public policy violation, which may amount to “wrongful termination.” If there is an apparent “causal connection” between the policy violation, there may be sufficient grounds for a “wrongful termination” action. This causal connection is often in the form of a retaliation against the employee for something he or she has rightfully done:

If an employer discharged an employee in violation of rights granted by the First Amendment to the US Constitution.

If an employer violates his or her own discharge policy (written or implied).

If an employer the employment-related provisions in the Bankruptcy act or Fair Credit Reporting Act.

If an employer violates of a federal or state discrimination law.

If an employer discharged or fired an employee in retaliation for whistle blowing, wage garnishing, exercising union rights, serving in a military, and legally taking a leave under the Family and Medical Leave Act.

Interestingly, some courts (though not all) also recognize the Good Faith and Fair Dealing exception to At-Will Employment. This is a contract concept, which states that although employees are employed “at will,” there is a covenant of good faith and fair dealing between them and the employer, prescribing the latter to treat them fairly: the employer may not be transferring employees to prevent them from collecting sales commissions, misleading them about their chances for promotions and wage increases, fabricating reasons for firing an employee when the real motivation is to replace that employee with someone who will work for lower pay, repeatedly transferring an employee to remote, dangerous, or otherwise undesirable assignments to coerce the employee into quitting without collecting severance pay or other benefits that would normally be due.

 

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Rescission, Reformation, Replevin

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How Often Can Rent Be Raised?

How often can rent be raised? if you have a lease for more than 30 days, your rent cannot be increased during the term of the lease, unless the lease allows rent increases.
If you have a periodic rental agreement, your landlord can increase your rent, but the landlord must give you proper advance notice in writing. the written notice tells you how much the increased rent is and when the increase goes into effect.
California law guarantees you at least 30 days’ advance written notice of a rent increase if you have a month-to-month (or shorter) periodic rental agreement.
The landlord must give you at least 30 days’ advance notice if the rent increase is 10 percent (or less) of the rent charged at any time during the 12 months before the rent increase takes effect. Your landlord must give you at least 60 days’ advance notice if the rent increase is greater than 10 percent. In order to calculate the percentage of the rent increase, you need to know the lowest rent that your landlord charged you during the preceding 12 months, and the total of the new increase and all other increases during that period.
Civil Code Section 827(b). Longer notice periods apply if required, for example, by statute, regulation or contract. (Civil Code Section 827(c).) Tenants in Section 8 housing must be given at least 30 days’ written notice of a greater-than-10-percent rent increase if the increase is caused by a change in the tenant’s income or family composition, as determined by the local housing authority’s recertification. (Civil Code Section 827(b)(3)).
Normally, in the case of a periodic rental agreement, the landlord can increase the rent as often as the landlord likes. However, the landlord must give proper advance written notice of the increase, and the increase cannot be retaliatory. Local rent control ordinances may impose additional requirements on the landlord.
Increases in rent for government-financed housing usually are restricted. if you live in government-financed housing, check with the local public housing authority to find out whether there are any restrictions on rent increases.
A landlord’s notice of rent increase must be in writing. the landlord can deliver a copy of the notice to you personally. In this case, the rent increase takes effect in 30 or 60 days, as just explained.
The landlord also can give you a notice of rent increase by first class mail. In this case, the landlord must mail a copy of the notice to you, with proper postage, addressed to you at the rental unit. The landlord must give you an additional five days’ advance notice of the rent increase if the landlord mails the notice. Therefore, the landlord would have to give you at least 35 days’ notice from the date of mailing if the rent increase is 10 percent or less.
If the rent increase is more than 10 percent, the landlord would have to give you at least 65 days’ notice from the date of mailing.

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Unlawful Discrimination

housing-rentA landlord cannot refuse to rent to a tenant, or engage in any discrimination on the basis of group characteristics specified by law that are not closely related to the landlord’s business needs: race, color, religion, sex (including pregnancy, childbirth or medical conditions related to them, as well as gender and perception of gender), sexual orientation, marital status, national origin, ancestry, familial status, source of income, age, and medical condition. This includes such discrimination in all oral or written statements (e.g. advertisements for rent).

The landlord may, however, properly inquire into a prospective tenant’s credit history and his ability to pay the rent and security deposit. In disability cases, as a condition of making modifications, the landlord may require the person with a disability to enter into an agreement to restore the interior of the rental unit to its previous condition at the end of the tenancy (excluding reasonable wear and tear). Making such accommodations (including, for example, accommodations for a companion or service dog) is landlord’s obligation. (See Government Code Sections 12926(p), 12927(c)(1),(e), 12948, 12955(d); Civil Code Sections 51, 51.2, 55.1(b). See Moskovitz et al., California Landlord-Tenant Practice, Section 2.27 (Cal. Cont. Ed. Bar 2011).)

Under California law, a landlord cannot use a different financial or income standard for persons who  will be living together and  combining their incomes than standard used for married persons who combine their incomes. in the case of a government rent subsidy, a landlord who is assessing a potential tenant’s eligibility for a rental unit must use a financial or income standard that is based on the portion of rent that the tenant would pay – see Government Code Sections 12955(n),(o). A landlord cannot apply rules, regulations or policies to unmarried couples who are registered domestic partners that do not apply to married couples, nor can a landlord inquire as to the immigration status of the tenant or prospective tenant or require that a tenant or prospective tenant make any statement concerning his or her immigration or citizenship status. However, a landlord may request information or documents in order to verify an applicant’s identity and financial qualifications. (See Harris v. Capital Growth  Investors XIV (1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614]; Civil Code Section 1940.3; California Practice Guide, Landlord-Tenant, Paragraph 2:569.1 (Rutter Group 2011); California Practice Guide, Landlord-Tenant, Paragraph 2.553 citing Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824  [31 Cal.Rptr.3d 565]. See Civil Code Section 1940.3. 46 42 United States Code Section 3607(b), Civil Code Section 51.3(b)(1).).

Finally, “housing for senior citizens” includes housing that is occupied only by persons who are at least age 62, or housing that is operated for occupancy by persons who are at least age 55 and that meets other occupancy, policy and reporting requirements stated in the law. The owner cannot discriminate on the basis of medical condition or age. A person in a single-family dwelling who advertises for a roommate may express a preference on the basis of gender, if living areas (such as the kitchen, living room, or bathroom) will be shared by the roommate. (See Government Code Sections 12927(a)(2)(A), 12955(c); Civil Code Sections 51,51.2, Government Code Section 12948; Government Code Section 12927(c)(2)(B).).

If a landlord refuses to rent to you because of your race or national origin), you may have several legal remedies, including:

  • Recovery of out-of-pocket losses.
  • An injunction prohibiting the unlawful practice.
  • Access to housing that the landlord denied you.
  • Damages for emotional distress.
  • Civil penalties or punitive damages.
  • Attorney’s fees.

 

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Non-Compete Clauses

non-competeA Non-compete clause limits the employment of the employee after termination for a specific amount of time in a given area and field of expertise. Its purpose is typically to: (1) protect trade secrets, and (2) limit employees who possess the knowledge and skills in the given area.

(1) Trade secrets are limited by a non-disclosure agreement, which contains a list of particular secrets of the trade. It may also contain sales strategies and client lists. (2) Employment limitation is focused on the market niche and geographic area, usually for up to three years. Overbroad limitations will be stricken and deemed unenforceable, especially where they are overly restrictive.

A provision should be included, which clearly states that “in the absence of any provision thereof deemed unenforceable,” the remaining portion of the Agreement shall be enforced.

What is more, non-compete agreements must involve some give-and-take (consideration). If a non-compete is signed only after the employment began, without any extra payment or advantage to the party, the proffering party (employer) is running the risk of the clause being stricken by the court (for lack of consideration). The employer is traditionally the drafter of the non-compete, thus bears the burden of proof that any restriction is reasonable and necessary to protect against unfair competition.

In California, the employer must show that the non-compete agreement actually concerns proprietary information (objectively understood, not merely because the employer says so). If this information, be it client lists or sales tactics or pure data, can be obtained by some other means (e.g. internet search), the non-compete will be deemed invalid.

Finally, the employer may not force the employee to sign a non-compete under threat of termination. Such a forced clause would be held unconscionable and invalid, and the employer would be liable to the employee for damages in a wrongful termination action.

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King v. Burwell

The U.S. Supreme Court has ruled 6-3 that the Affordable Care Act allows subsidies for low-income people who purchase health insurance through federal exchanges. The majority opinionby Chief Justice John G. Roberts is a big win for the Obama administration and the viability of its health-care law.

At issue was a provision of the law allowing subsidies for people participating in exchanges “established by the state.” Challengers had argued the law nixes subsidies in the nearly two dozen states that use federal, rather than state-run, insurance exchanges. Justice Roberts (joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan) said that the provision should be read in context of the entire law.

Roberts’ decision was based on a reading of the law rather than “Chevron deference,” which allows federal agencies to fill in gaps in a statute on the theory that the ambiguity is an implicit delegation of power from Congress (viz. Chevron USA v. Natural Resources Defense Council).

If Roberts had ruled the Internal Revenue Service had “Chevron deference” to interpret the law, future administrations could give a different reading to the law. Roberts said the law was ambiguous, but Chevron deference didn’t apply because the tax credits are among the key reforms of the health law, affecting the price of health insurance for millions of people.

Instead, Roberts said, the ambiguity required an analysis of the broader structure of the law. Reading the law to bar subsidies in states using federal exchanges would likely create “death spirals” in the individual insurance market that the law was designed to avoid, Roberts said. “It is implausible that Congress meant the act to operate in this manner,” he said. What the Congress meant, however, the Congress did not know as it did not read the law in order to learn “what’s in it” (Palosi).

On the other hand Scalia’s dissent (joined by Justices Clarence Thomas and Samuel A. Alito) said the majority advanced “feeble argument” made up of “interpretive jiggery-pokery.” In particular, the dissent attacked the clear mis-construction that “[the] exchange [shall be] established by the state” should (pursuant to Roberts) mean “[the] exchange [shall be] established by the state or the federal government.” “That is of course quite absurd, and the court’s 21 pages of explanation make it no less so,” concludes Scalia.

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Bill Defending Workers’ Rights

The California Assembly approved a bill Thursday backed by the Consumer Attorneys of California that would protect the legal rights of California workers who face the prospect of being forced to sign arbitration agreements as a part of employment.

AB 465, authored by Assemblyman Roger Hernandez (D-West Covina), will ensure that important employment rights and procedures can be waived only by the voluntary consent of employees in writing. These waivers, including waiving the right to trial by jury and requiring the use of arbitration to settle disputes, eliminate significant guarantees of fairness and due process that are cornerstones of the American civil justice system.

These clauses are often buried in the fine print of employment applications and employee handbooks. As a result it is nearly impossible for an employee or prospective employee to evaluate and make an informed choice about how a dispute will be resolved before a dispute exists.

Employers frequently require agreement to such waivers, including mandatory arbitration, as a condition of employment, meaning Californians will not be hired unless they give up their right to resolve employment claims in a court of law. AB 465 would ensure these waivers of rights cannot be made a condition of employment.

“When claims are settled behind closed doors in arbitration, we all lose,” said CAOC President Brian Chase. “AB 465 will ensure that workers do not face coercion from an employer that forces them to sign away their rights to resolve disputes in a court of law.”

AB 465 is sponsored by the California Labor Federation, AFL-CIO.

 

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