Thursday, March 20, 2014

Anti-doping needs to confront the issues

The anti-doping community needs to do more to confront the doping issues in sport rather than manage them, was the overriding message from day two of Tackling Doping in Sport, which took place on 19-20 March at Wembley. “I fear there will be no big scandals in the future”, said David Walsh, journalist and author. “Too many people want to manage the problem rather than confront it. There is too much at stake financially.”

Walsh commended the US Anti-Doping Agency (USADA) for continuing with its pursuit of Lance Armstrong, suggesting that other countries may have been reluctant to prosecute such a high-profile athlete, because of the implications such action could have for sport. “If Armstrong had been British, would we have brought him down in the same way?” he asked. “In any other country, he would have been too big to fall”.

Travis Tygart, Chief Executive of USADA, spoke of the importance of “ensuring that the system is cleaned out”. He pointed out that while athletes are banned, many doctors and support staff that may have been complicit in doping remain in sport. “The culture of corruption persists”, he said. “Doctors, team owners, coaches. The likelihood that they will continue in their actions is huge”.

Responding to a question on whether USADA and UK Anti-Doping needed to do more to bring their knowledge to other nations, Tygart said that even in established anti-doping nations, “pressure is put on people within sport organisations not to do the right thing. People within the system are not subject to testing, and they are preying on the athletes, who change.” He also mentioned a big complaint from athletes is that they are not on a level playing field with athletes from other countries.

Martin Gibbs, Director General of the Union Cycliste Internationale (UCI), outlined the work of the Cycling Independent Reform Commission (CIRC), which is examining all the UCI’s electronic data. He pointed out that in 2013, the UCI had 19 “intentional” doping cases and 34 “inadvertent” cases. However, Walsh questioned the commitment to change by asking why Jonathan Tiernan-Locke’s case had not been resolved yet, despite the initial test being conducted back in February 2012.

Delegates were also updated about steroidal profiling, which needs further refinement before it can be reliably used as evidence. It was pointed out that it is intended as an indicator of potential doping in much the same way as the blood passport, with a follow-up test determining an anti-doping rule violation.

An athlete panel again highlighted that supplement use is a reality in sport (see the Day One review). The difficulty in drawing a line between ‘safe’ food supplements and ‘unsafe’ supplements was again underlined. Delegates also heard from Marjolaine Viret of the University of Neuchâtel about innovation vs. legal scrutiny in anti-doping; from Jaimie Fuller of Skins about doping’s impact on sponsorship; and an update on Spanish law and Operacion Puerto from Enrique Gómez Bastida, Director General for the Spanish anti-doping agency (AEPSAD).

The 2015 edition of Tackling Doping in Sport will take place on 18-19 March at Wembley. Please send any speaker suggestions to Paul Moran. We hope to see you there!


Wednesday, March 19, 2014

Education & targeted testing key to future of anti-doping

Education and targeted testing will be key in the future fight against doping in sport, heard 230 delegates from over 25 countries on the first day of Tackling Doping in Sport, which is taking place at Wembley on 19-20 March. However, the introduction of the 2015 World Anti-Doping Code on 1 January will create challenges for sport, athletes and anti-doping organisations, as all try to adjust to the new provisions within the Code. 

One of the most popular sessions during the first day was the round table discussion on education. It came to light that the anti-doping community still has an issue with supplement use, in that athletes who had checked the label of supplement products are still reporting positive tests. Jeff Benz, an Arbitrator at the Court of Arbitration for Sport (CAS), reported that out of 2,631 tests conducted at the Sochi Winter Olympics, seven positives had been reported and all had involved supplements.

Graeme Dell, Deputy Chef de Mission (Operations) for Commonwealth Games England, said that athlete support staff needed to “stop telling the athletes to take supplements”, as it has already been identified that there are too many risks associated with it. Another suggested solution was to shift liability onto supplement producers, by making them accountable for the substances in their products. It was suggested that this would not cause problems with regards to athletes claiming contamination, as batches of supplements could be tested to ascertain if they contained the same substance.

David Howman, the World Anti-Doping Agency’s (WADA) Director General, warned delegates that WADA has been asked by sport to measure the quality of testing, rather than the quantity of testing, in the future. He highlighted that the 2015 Code and new International Standards put the emphasis on anti-doping organisations to ensure that they carry out investigations into alleged doping, rather than relying purely on testing. Concern was raised that many smaller ADOs are not equipped for this, however WADA is looking into establishing training programmes for ADOs.

In terms of compliance, Howman highlighted that WADA had posted a set of model rules on its internet site. It expects every anti-doping organisation to have submitted its rules to a special department set up by WADA to deal with the new rules by this time next year.

Another hot topic was the creation of ‘sport-specific menus’ for testing under the 2015 Code. The theory behind this is to avoid unnecessary expense by not requiring sports to test for substances that would be of no use to an athlete in that sport – for example, human growth hormone in snooker. Howman said that a consultation with all sports would take place this year, with a report due in September. However, there was a warning that this could actually make things more expensive for laboratories, which may be required to develop special tests for different sports.

Another issue is laboratory funding. Peter Van Eenoo, Director of the WADA-accredited laboratory DoCoLab, explained how anti-doping laboratories are running out of money. “WADA and others have been saying that tests can be done for US$100”, said Eenoo. “A test at €150 is a low cost estimation. Some labs are charging €100 per test, but they are subsidised. WADA claims that labs are making huge profits when in fact they are making losses. People think that we are paid by WADA, when we in fact pay WADA to carry out proficiency tests. If the labs are losing money, then anti-doping research and innovation will stop.”

Van Eenoo highlighted that in 2011, labs produced 3,310 research papers; in 2012 this had risen to 3,740; but in 2013 this had dropped to 2,320. He said that a requirement to spend 7% of budgets on research would further test laboratories.

Stacey Shevill, a solicitor with UK Anti-Doping, highlighted how focus had shifted from analytical cases to non-analytical. She said that in 2010, 95% of cases were analytical, whereas in 2013, 60% were. She also highlighted how the 2015 Code’s change in focus means that anti-doping organisations can focus on intelligence-led investigations, citing UKAD’s prosecution of Dean Colclough for possession and trafficking of prohibited substances as an example of this approach.

Renée Anne Shirley, former Executive Director of the Jamaican Anti-Doping Commission, highlighted her experience as a whistleblower, reminding all of their responsibilities in protecting those that come forward to speak out against the anti-doping system. You can read some of her views in this pre-event interview.

Jeff Benz, a CAS Arbitrator, gave his eagerly anticipated round up of the major anti-doping case law over the past year. However, he highlighted an important issue with the CAS, in that all the decisions are not published, meaning that anti-doping practitioners are often not armed with all of the information they need to argue their cases.

Day two of the conference kicks off tomorrow at 9am. Highly anticipated sessions include an opening address from Travis Tygart, Chief Executive of the US Anti-Doping Agency; a debate on what the new Code means for athletes; a session on the future of cycling and on the Operacion Puerto investigation. For a full programme, click here.


Thursday, March 13, 2014

EXCLUSIVE INTERVIEW: Renée Anne Shirley, former Executive Director, JADCO

On 19-20 March at Wembley Stadium, the world’s anti-doping community will convene for the two-day Tackling Doping in Sport conference, organised by World Sports Law Report and supported by UK Anti-Doping. Over 200 delegates from 25 countries will travel to Wembley Stadium to hear the latest techniques in tackling doping in sport, to stay abreast of the latest cases and developments in both testing and educating athletes, and to go over the major cases of the last year, which has been one of the most significant in anti-doping history.

One of the most eagerly anticipated speakers at the event is Renée Anne Shirley, former Executive Director of the JADCO. Shirley was one of four vice-Chairpersons at the first session of the Conference of Parties to the International Convention on Doping in Sport, held in Paris in 2007.

Last summer, JADCO revealed that five athletes had returned positive tests, closely following an earlier positive test by Veronica Campbell-Brown, prompting an outcry in the international media that resulted in most of the athletes being named, and accused of cheating. Veronica Campbell-Brown has recently been cleared of any anti-doping rule violation, however the other cases have yet to reach their conclusion.

Shirley spoke out, revealing that JADCO lacked the staff or funding to adequately test its athletes, prompting a World Anti-Doping Agency (WADA) investigation that resulted in JADCO being offered support in order to improve its testing programme. World Sports Law Report spoke to her about some of the concerns she has over the way in which anti-doping is being conducted at the moment.

These include the disparity caused by the fact that those with money within the anti-doping system can afford the best legal support, but those who don’t have money can’t get that support; issues with the Court of Arbitration for Sport (CAS) not publishing all decisions; the preoccupation with urine tests; the need for testing to be more intelligence driven; concerns over supplements and energy drinks; WADA’s need to move on to the next phase of anti-doping; and issues over the lag time between samples and sanctioning decisions.

To read the full interview with Renée, click here.


Tuesday, March 04, 2014

Qatar 2022, Broadcasting & Salary Caps: key debate areas at International Sports Law & Business conference

Debate over shifting the Qatar 2022 World Cup from summer to winter, changes in the broadcasting landscape and whether football salary caps could ever be introduced dominated debate at Management Forum’s annual conference on International Sports Law & Business. “The whole process since awarding the World Cup to Qatar has been a complete mess,” said Nic Coward, General Secretary of the FA Premier League (FAPL). “It is not just us – this view is held across the European leagues.”

Coward said that adjusting the international calendar to accommodate a winter tournament due to concerns over Qatar’s summer heat would take a huge amount of time, and getting it right would be extremely difficult. “It is a complex process, and the idea that somebody can decide to do this on a whim…if we are in the middle of the process by this time next year, that will be a result. It will cause massive disruption and significant problems, and will have a knock-on effect on other sports. For example, the Champions League final could end up clashing with the Wimbledon final.”

Coward said that part of the problem was that the international football calendar had been written by European football, but it was no longer the case that European football dictated the international calendar. Despite remaining critical of the idea of awarding the tournament to Qatar without considering the implications of a winter tournament, he said that the FAPL would work towards a solution. “What we will never settle for is rank bad process,” he said. “Through the proper processes, we will reach an outcome. However, we are now at the other end of the governance spectrum.”

Mike Lee OBE, Chairman of Vero Communications, said the awarding of the 2018 and 2022 FIFA World Cups at the same time was a “bad decision”, made for commercial reasons (i.e. broadcasting) that caused “untold problems.” However, he pointed out that rugby union had managed to do the same thing (i.e. award the 2015 & 2019 World Cups at the same time) with little problems. 

The FAPL expressed concern at an “unhealthy shift in the European Union” towards allowing broadcasters to sell “pan-European” access to their offerings. As World Sports Law Report has reported, a European Commission investigation into whether agreements between US film studios and European broadcasters to ‘geo-block’ content streamed over the internet infringes Article 101 of the Treaty on the Functioning of the European Union, could affect how sport sells its rights. Nic Coward asked whether the EU’s interest in breaking down such agreements to restrict internet content to the market in which the rights were initially sold was “in the public interest.”

A lively debate was held towards the end of the day about controlling spending in sport, especially with regards to salary caps and whether they could be implemented in football. Delegates heard how Blackburn Rovers, Leicester City and Queens Park Rangers have launched a challenge to the Football League’s Financial Fair Play regulations, and heard updates on salary caps in golf, motorsport and rugby union. Oliver Weingarten, lawyer for the Formula One Teams Association (and former FAPL lawyer), said that there was a real danger that a competitive Formula One team could go out of business in the future, unless the sport implements effective cost control procedures.

An interesting question was raised as to why UEFA has sought to limit club spending to a percentage of revenue in order to prevent clubs from going bust in its own Financial Fair Play Regulations, rather than limiting spending to money available. One of the objections to UEFA’s regulations raised by the Striani complaint is that the regulations prevent new owners from bankrolling a smaller club to success, by limiting the money that they can invest to a percentage of revenue, rather than to money available to the club through a rich owner.

Paul Rawnsley, a Director of Deloitte’s Sport Business Group who works with UEFA on its Club Licensing and Financial Fair Play Regulations, pointed out that UEFA’s objective is not to level the playing field, but prevent clubs from going bust. He was also critical of football agents. “The amount that agents take out of the game is completely disproportionate to what they offer,” he said.

Delegates also received an update on the 2015 World Anti-Doping Code, which comes into effect on 1 January next year. Organisations are under greater obligation to collect and share information with other anti-doping organisations (ADOs) under the new Code, and the onus is placed on ADOs to collect and pass on the data, which could create issues regarding data protection legislation.

Kendrah Potts, a Senior Associate at Onside Law who spent two years on secondment as lead lawyer on anti-doping and corrupt sport betting at the London Organising Committee for the Olympic Games, explained how the Statute of Limitations had been extended from eight to 10 years under the new Code, enabling ADOs to go back further than ever before in prosecuting athletes for past offences. A shift in whereabouts requirements now requires athletes to record three missed tests in 12 months rather than 18 months to constitute an anti-doping rule violation. This means that serious test avoidance is more likely to be caught as opposed to carelessness.

Another key point raised by Potts was that a reduction in sanctions for prompt admission of guilt – previously available for two-year sanctions under the 2009 Code – is now only available for four-year sanction cases. Potts also highlighted that doping can learn from integrity rules, which rely on people coming forward to report fixing and often contain a requirement to report suspicious activity. Doping rules normally don’t contain such a requirement. 

A more detailed assessment of the new Code and potential issues with it will be provided by Tackling Doping in Sport, a two-day conference organised by World Sports Law Report in association with UK Anti-Doping on 19-20 March at Wembley stadium.

Chris Watts, the England and Wales Cricket Board’s anti-corruption officer, highlighted that although a review has begun into the International Cricket Council’s anti-corruption resources, the current anti-corruption framework within cricket “is adequate,” in his view. This is an interesting viewpoint, given the Justice Mugdal Indian Premier League (IPL) Committee report into breaches of IPL rules regarding betting and match-fixing, which was critical of the ICC’s Anti-Corruption & Security Unit. It is understood that a new ICC Anti-Corruption Code has been submitted for discussion and adoption, following the completion of the review in January.

Other sessions at the event included a review of the key issues facing Rugby World Cup 2015; issues around the arbitration procedure used to settle disputes in sport; the impact of the digital revolution and social media on sport and more.

Andy Brown


Tuesday, February 25, 2014

On the scrapheap at 30: are professional football clubs defying the UK’s age discrimination laws?

So there I was, happily watching one of those television shows where journalists sit around a table and talk earnestly about football when suddenly off the conversational subs’ bench leaps a real employment law issue.

The reference was made by Henry Winter (Daily Telegraph Football Correspondent), who claimed that he receives emails on a regular basis from employment lawyers in the City telling him that Premier League clubs are flouting the law by discriminating against their older players. The debate relates to an apparently blanket rule at some of the top football clubs that once a player hits the magic age of 30 he will not be given anything more than 1- year-at-a-time extensions to his contract. One person on the show asked whether it would be acceptable in any other profession to have a policy whereby employees above a certain age are blatantly treated less favourably than their younger co-workers? The general consensus amongst the group was probably not, but “this is football” (i.e. not real life), and if the policy wasn’t committed to writing then the clubs would “no doubt get away with it”.

The Equality Act 2010 is pretty clear on this stuff. A ’30 and out’ policy is a clear example of direct discrimination; treating someone less favourably because of his age. However – maybe something the “employment lawyers in the City” neglected to point out to Mr Winter – direct age discrimination is unusual in that it can potentially be justified, and so lawful. The Act states that direct age discrimination can be justified if it is “a proportionate means of achieving a legitimate aim”. Whether an employer can meet the requirements for this ‘objective justification’ test generally depends on whether the policy can be considered to be appropriate and necessary, looking at the business needs.

Applying these tests, the offending clubs might fancy their chances of defending their approach. With the exception of Manchester United’s evergreen Ryan Giggs and Everton’s Sylvain Distin, it is the conventional wisdom that when a player reaches his thirties, he will not have the ‘legs’ to play as many games in a season and that he becomes more likely to pick up a career-threatening injury or at least to take longer to recover. Given vast player salaries (see Charlie Frost’s recent blog post), it is perhaps understandable that clubs are offering shorter contracts to players over a certain age, the legitimate aim being to mitigate their exposure should that player not make it through the season in one piece. What’s more, it is not a case of the clubs simply getting rid of players once they hit 30; instead there is a proportionate approach taken by treating each case on its merits. Put simply, if the player can demonstrate that he still have enough puff to play then he will be offered a new 1 year deal.

Compare this, however, with the supplying body for Premiership referees, Professional Game Match Officials Ltd. In 2010 the Sheffield Employment Tribunal ruled that PGMOL’s compulsory retirement from top-level matches at 48 was unlawful, as it could not justify that age either on medical/fitness grounds or by reference to common refereeing practice in other European countries. That was an absolute bar while the clubs merely impose a hurdle to be surmounted. Nonetheless, the fact remains that it is less favourable treatment and the likes of Giggs and Distin are the very reason why age-related assumptions and practices of this sort can never be said to be truly safe. Perhaps the reality (even in football) is that no terribly good reason is required not to renew a player contract at all and therefore that it would indeed take a brave player offered a 1-year deal to take legal action about not getting 3.

 

Jim Keogh Associate
Squire Sanders, Leeds
james.keogh@squiresanders.com

 

This article originally appeared on the Squire Sanders Employment Law Worldview blog. You can view the original by clicking here.


Tuesday, February 04, 2014

Your Guide to the Alex Rodriguez Appeal

An arbitrator for Major League Baseball (MLB) has issued a final decision determining that New York Yankee third baseman Alex Rodriguez should be suspended for 162 games – the complete 2014 MLB season – plus any and all postseason games. This decision reduces the suspension initially imposed by MLB (211 games), and, because it will be without pay, costs A-Rod $25 million. (Perversely, the suspension benefits the Yankees, who will not only be freed from their payroll obligations to A-Rod for 2014, but relieved of certain luxury tax obligations as well under MLB rules.)

Via a statement released earlier today, A-Rod says that he and his lawyers are headed to federal court. What awaits him there? To understand that, we need to understand the legal landscape that applies to major league baseball players.

The relationship between Alex Rodriguez, the New York Yankees, and MLB is governed by the Basic Agreement, a contract that was negotiated in 2012 between the existing MLB teams and the players’ union, called the Major League Baseball Players Association (“MLBPA”). The current Basic Agreement runs until 2016, at which point the union and MLB will sit down and collectively bargain for a new one.

Under the Basic Agreement, disputes between a player and his team are governed by Article XI (the “Grievance Procedure”). Id. at 38. Those disputes, in turn, are ultimately settled by arbitration pursuant to XI.B. Id. at 44. The Basic Agreement provides that the “decision of the Arbitration Panel shall constitute full, final and complete disposition of the Grievance appealed to it.” Id.

That’s where we are now; A-Rod has followed the Grievance procedures and has now obtained a “full, final and complete disposition” of his Grievance, reducing his suspension from 211 to 162 games. How does he get from there into federal court?

The answers are two-fold: first, because the Basic Agreement is a product of private collective bargaining, it is subject to the federal Labor-Management Relations Act, which in turn provides for federal jurisdiction over disputes regarding rights created by or substantially dependent upon a collective bargaining agreement (such as the Basic Agreement). 29 U.S.C. § 185(a); see also Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). So that means A-Rod can file suit in federal court based on federal law, regardless of what the Basic Agreement or any state laws happen to say.

But what does that federal law say? As it turns out, this is a topic we’ve discussed frequently here at Suits by Suits; the same law that governs virtually all individual arbitration clauses contained in employment agreements also governs here: the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. The FAA, in turn, provides four ways in which a litigant can vacate an arbitration award:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a). If you want to skip to the punch line, our own Jason Knott summarized it perfectly a few months ago: “When a federal court confirms an arbitration award, it isn’t newsworthy, because that’s what everyone expects will happen. But when a court tosses an arbitrator’s decision, it creates headlines.” So why exactly does A-Rod face such an uphill scenario?

The biggest reason isn't what the FAA says; it's what it doesn't say. Note that those four statutory grounds for reversing an arbitration award do not include “mistake of law” or even “gross mistake of law.” They don’t include incompetence, stupidity, or carelessness. As the U.S. Supreme Court has noted, when a collective bargaining agreement specifies that an arbitrator’s award is “final,” a court may not evaluate whether the arbitrator applied “correct principles of law” or not. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598-99 (1960). Thus, even if the arbitrator had no basis for imposing a 162-game suspension on A-Rod, that fact standing alone would not be sufficient to permit a federal court to overturn the arbitration award under the FAA.

Summarizing this (and other) holdings, we lawyers typically describe the FAA’s standards for vacating an arbitration award as procedural rather than substantive; that means that a successful challenge must show that there was something wrong with the way in which the arbitration was conducted, and not just the result the arbitrator reached. This is the dual-edged nature of binding arbitration; like it or not, you’re usually stuck with even an egregiously wrong outcome. (For this reason, we told you how some employers are reconsidering whether mandatory arbitration clauses with their executives are good business policy.)

We do not yet know what transpired during A-Rod’s arbitration. But what we do know is that, if Rodriguez is going to prevail in federal court, he’s almost certainly going to need to show that the process itself was unfair in some way. Maybe he can do this; perhaps there were key pieces of evidence that the arbitrator refused to admit (9 U.S.C. § 10(a)(3)). So far, however, A-Rod’s allegation is that the arbitrator “blatantly disregarded the law and the facts.” That allegation – even if true – is probably not enough for him to succeed in overturning the arbitration award.

As more details are forthcoming – and if Alex Rodriguez and/or his lawyers detail allegations that fit more closely within the four grounds set forth for vacatur under the FAA – we’ll continue to update and evaluate.

 

P. Andrew Torrez
Zuckerman Spaeder LLP
atorrez@zuckerman.com

 

This article originally appeared on the Zuckerman Spaeder LLP 'Suits by Suits' blog. You can view the original by clicking here.


Workers from Sochi systematically exploited

Just over a week from the start of the Winter Olympic Games in Sochi, Russia, the event is facing another scandal. As German TV station ARD and the sports magazine ‘inside sport’ report, the workers of the Olympic construction sites in Sochi have been systematically exploited.

Apparently, thousands of workers have not or not fully been paid for their job. The International Olympic Committee (IOC) has confirmed this to ARD and ‘inside sport’.

A multitude of Russian and migrant workers from Central Asia told the ARD that they are still waiting for their promised salaries. One worker called the experience in Sochi as being "modern slavery". Another worker said: "We never thought that something like this could happen on such internationally important construction sites such as the Olympic ones. We have worked hard, but how should we get our money?"

Semjon Simonov, Sochi representative of the highly acknowledged human rights non-governmental organisation (NGO), Memorial, for the first time classified the dimension of the problem. He confirmed the findings of ARD and ‘inside sport’ in respect to over 100,000 workers in Sochi, saying: "Ninety per cent of all workers on Olympic construction sites in Sochi have either not received any salary at all, or not the full amount. The Olympics have only been made possible through the efforts of these workers. But they were not even given documentation necessary to work and in the end, they were forced to leave the country without their money."

Many of the Sochi workers were from countries within Cental Asia, estimated to number over 50,000 workers. A reporter of ARD and ‘inside sport’ has been to Tajikistan, being the first international journalist to do research about the problem in the region where most Sochi workers come from, according to international NGOs such as Human Rights Watch.

In the last few years, several NGOs including Human Rights Watch have reported about the exploitation of workers, but nothing has since been done by international bodies. In the ARD programme, multiple workers accuse the Russian state owned company Olimpstroi, which was responsible for the Olympic construction process. One Tajik worker says: "When we wanted our money we were told that Olimpstroi hasn't paid yet." Olimpstroi - as well as the Organising Committee of the 2014 Sochi Games - refused to comment to ARD and ‘inside sport’.

The IOC stated that 13 companies in retrospect have now paid salaries of approximately €6 million (US$8 million). Although asked by ARD and ‘inside sport’, the IOC didn't say when and how the payment was made, bearing in mind that most workers were not registered and don't even have a back account.

The Chairwoman of the human rights committee of the European Parliament, Barbara Lochbihler, called the ARD findings and the exploitation of the workers a "scandal". "The IOC can't go on like nothing has happened. They should have reacted earlier on this issue. It is now absolutely necessary that the IOC, the Russian government, as well as the engaged companies show responsibility."

 

Florian Bauer
ARD German TV
florian.bauer@fm.wdr.de


Deadlines Set Regarding FCC’s Proposed Elimination of Sports Blackout Rules

As announced last month, the Federal Communications Commission (FCC) is proposing to eliminate its “sports blackout rules,” which allow sports teams to demand that cable systems and DBS providers black out imported distant broadcast signals when they are presenting a live telecast of a local sporting event when that event is not being telecast by a local broadcast television of these rules and setting comment and reply comment deadlines has finally been published in the Federal Register. Comments are due February 24, 2014 and reply comments are due March 25.

Background. The cable sports blackout rules were adopted in 1975 to “ensur[e] the overall availability of sports telecasts to the general public.” The Commission’s goal was to give teams or leagues the flexibility to contract with broadcasters and, through those contracts, control the terms on which events are displayed on broadcast television and cable systems. When the rules were initially adopted, gate receipts were a primary source of revenue for sports teams, and so contracts between teams or leagues and broadcasters frequently prohibited the airing of home games in the local market to encourage attendance at the stadium. Such provisions continue to be included in some contracts today. The Commission extended the rules to DBS providers in 2002.

As a practical matter, the sports blackout rules have become fairly meaningless over the years. The number of distant signals that cable operators carry has steadily declined and the availability of local sporting events on non-broadcast regional networks generally has rendered it unnecessary for cable systems to import distant broadcast signals in order to provide subscribers with access to a local contest that is not available on a local broadcast station. In addition, separate and apart from the sports blackout rules, retransmission consent requirements and compulsory license royalty fee obligations present significant hurdles to any cable operator seeking to import a distant telecast of a local sporting event. Nonetheless, because the rule is often associated with the NFL’s largely unrelated practice of blacking out local telecasts of home games that are not sold out in advance, the Commission has been under pressure to eliminate the rule.

Discussion

The Commission adopted this NPRM in response to comments submitted in support of a petition filed by several consumer groups asking for the sports blackout rules to be eliminated. The NPRM seeks comment on the FCC’s authority to repeal the sports blackout rules, whether the Commission’s initial justifications for the rules remain valid, and what potential benefits or harms would result from the elimination of the rules.

The Commission’s tentative conclusion, based on changed economic circumstances in the sports industry and questions about whether the rules in fact help to ensure that sports programming is available to the public, is that the rules should be repealed. However, the Commission also has acknowledged that if it repeals the rules, the effect would be to leave carriage issues, including blackouts, to private negotiations between the sports leagues or teams, broadcasters, and MVPDs and, thus, it is likely that repealing the rules will have little impact on whether local contests will be blacked out and the availability of imported distant signals carrying the blacked out contests.

Finally, it should be noted that, under the Copyright Act, copyright owners may commence a proceeding before the Copyright Royalty Judges to adjust the statutory compulsory copyright royalty fees in the event the sports blackout rules are modified or repealed. While a strong case against such an adjustment can be made based on the fact that the repeal of the rules likely would have no impact on the availability of blacked out sports contests, the outcome of such a proceeding, if held, cannot be predicted.

Seth A. Davidson
Partner
Edwards Wildman, Washington DC
sdavidson@edwardswildman.com

This article originally appeared on the Edwards Wildman website. You can access the original by clicking here.


Friday, January 03, 2014

Australia: Match-Fixing Criminal Offences – Guilty Pleas to Football Match-Fixing Charges

Introduction

Match-fixing, cheating at sport and sports betting have been at the forefront of media attention over the last year, both internationally and in Australia and involving a number of different sporting codes including rugby league, cricket and soccer. More recently, it emerged in September 2013 that the Victorian police had uncovered a syndicate conducting multi-million dollar match-fixing activities involving Victoria’s Premier League soccer division. Six individuals associated with semi-professional football team, the Southern Stars Football Club, including four players, the head coach and the alleged syndicate ringleader in Australia, were arrested and charged under new Victorian match-fixing laws for allegedly fixing five Victorian Premier League Matches. These individuals are the first to be charged under new criminal offences for match-fixing set out in legislation relating specifically to match-fixing that was passed in Victoria earlier this year.

The Tip-Off

The Victorian Police’s Purana Taskforce and Sports Integrity Intelligence Unit commenced an investigation in August 2013 after being alerted by Football Federation Australia (FFA). FFA CEO David Gallop indicated that the Victorian police were contacted immediately after receiving data from Sportsradar about suspicious betting patterns involving Southern Stars matches. Reports have indicated that more than $2 million in betting winnings has been collected by the syndicate, with much of the money and bets on the Southern Stars matches originating from overseas. Notably, of the eleven individuals originally arrested (nine players, their Australian head coach and the “ringleader”), the majority are foreign citizens. The majority of the players are British nationals, including the four players who faced the Australian courts. The remaining four players arrested have left Australia and have returned to Europe. The alleged ringleader, Mr Segaran “Gerry” Gsubramaniam is a Malaysian national and is said to have been the liaison between the Southern Stars team and the match fixers in Hungary and Malaysia. It is alleged that he provided instructions to the team, including players to orchestrate pre-determined score lines in five matches between 21 July 2013 and 13 September 2013.

The Charges

Mr Gsubramaniam and the Southern Stars coach, Mr Zia Younan, were charged with ten breaches each – five counts of engaging in conduct that corrupts a betting outcome and five counts of facilitating conduct that corrupts a betting outcome. There was a separate charge for each football match that was fixed. Each of the players has eight different charges brought, with four counts of engaging in conduct that corrupts a betting outcome and four counts of facilitating conduct that corrupts a betting outcome.

The Law

These charges reflected the new criminal offences for match-fixing under the Crimes Act 1958 (Vic) (the Crimes Act).These offences were introduced by the Crimes Amendment (Integrity in Sports) Act 2013 (Vic) which came into effect on 24 April 2013. The new offences reflect the Victorian Government’s aim to address the key objective of the National Policy on Match-Fixing in Sport (the National Policy). The National Policy was agreed to by all of the Australian Federal and State Sports Ministers in June 2011 with the objective of protecting the integrity of Australian sport and pursuing a nationally consistent approach to criminal offences in relation to match-fixing and cheating at gambling. 1074410_1 2 In the present circumstances, the relevant offences are set out at sections 195C and 195D of the Crimes Act. Under section 195C, a person must not engage in conduct that corrupts or would corrupt a betting outcome of an event, knowing that the conduct corrupts the event and having the intention to obtain a financial advantage or cause a financial disadvantage, in connection with any betting on the event. Similarly, section 195D(1) prohibits a person from offering to engage in or encouraging another person to engage in the corrupting conduct. It is also an offence under section 195D(2) for a person to knowingly or recklessly encourage another person to conceal such corrupt conduct, or be party to an agreement or arrangement in respect of such corrupt conduct relating to the betting on an event, with the intention of obtaining a financial advantage. The maximum penalty for each of these new match-fixing offences is 10 years imprisonment. Similar legislation introducing criminal offences for match-fixing and cheating at gambling has also been adopted in New South Wales, South Australia, the Australian Capital Territory and the Northern Territory.

The Current Case

Mr Gsubramaniam was denied bail in September due to police concerns that he was a significant part of the syndicate’s operations but also a flight risk. The four players, Reiss Noel, Joe Woolley, David Obaze and Nicholas McKoy were all released on bail but were required to surrender their British passports to the police. Their Australian coach, Mr Younan was also released on bail. The matter was heard on Friday 6 December 2013 in the Melbourne Magistrates Court. Mr Gsubramaniam pleaded guilty to charges of engaging in conduct that corrupts or could corrupt a betting outcome. He will remain in custody to appear before the Victorian County Court for a plea hearing on 11 April 2014 where evidence and information will be presented to the judge for consideration when determining the appropriate sentence. Two of the arrested players, Joe Woolley and Reiss Noel also pleaded guilty to three and four charges respectively, which related to throwing matches after being instructed by the syndicate to do so. Woolley was fined $1,200 and Noel fined $2,000, penalties that are significantly reduced from the possible maximum penalty of 10 years imprisonment. In determining the sentence, Magistrate Jack Vandersteen took into account the players’ guilty pleas, their promise to help investigators and to give evidence against others in the syndicate, and the shame, humiliation and embarrassment their actions had brought them. The two other players, Mr Obaze and Mr McKoy and the coach, Mr Younan are yet to enter pleas and were ordered to again appear before the court on 20 December 2013. Further, in October 2013, FFA announced immediate bans under its National Code of Conduct (the Code). FFA determined that, as the four players and their coach had been charged of serious criminal offences, they had breached the obligation in the Code not to bring FFA or the game of football into disrepute. Following FFA’s request to FIFA, the international governing body of football, has also imposed global sanctions on the players and coach, barring them from taking part in any football- related activity worldwide, until further notice.

What Does This Mean for the Gambling Industry?

Given the seriousness of the match-fixing offences and the maximum penalties that may be imposed, it is essential that stakeholders in the gambling and sports betting industry are acutely aware of their actions and responsibilities. In particular, online gambling and sports betting operators should ensure that they have the measures and procedures in place to identify suspicious betting activity in the event that they are called to assist in police investigations into match-fixing or to enable them to promptly notify the authorities if they become aware of betting data and patterns that indicates match-fixing is taking place. Gambling industry participants should maintain strong, positive and valuable relationships with the sporting and racing regulatory bodies, by assisting in conduct with the intention of maintaining the integrity of the particular sporting or racing industry. Further, it will be essential for sports betting operators to ensure that their employees partake in training and education as to the seriousness of match-fixing offences and are aware of, and comply with policies outlining the appropriate manner in dealing with customers who may be involved in match-fixing.

 

Jamie Nettleton
Partner
Karina Chong
Solicitor
Addisons Lawyers, Sydney
jamie.nettleton@addisonslawyers.com.au
karina.chong@addisonslawyers.com.au

 

This article originally appeared on the Addisons Lawyers’ internet site. You can view the original by clicking here


Thursday, December 19, 2013

Is "Instant Racing" Coming To NJ?

On December 9, the Senate State Government, Wagering, Tourism & Historic Preservation Committee advanced S2935, a bill that would authorize "instant racing" to be offered at New Jersey racetracks, OTWs, and casino simulcast rooms. 

Instant racing is a form of horse race wagering offered only at wagering terminals.  The customer is offered a screen with horse numbers and past performance data, and the option to make traditional horse race bets.  The race itself is a randomly selected, recorded race, often from many years ago.  Because the track, date, and horse names are not identified, and the race is selected at random, it would be extremely difficult to identify the actual race so as to enable the customer to have the advantage of knowing the result.Instant racing is viewed as a way to offer racetrack patrons another form of wagering during the relatively lengthy periods between races.  Typically, at New Jersey's racetracks, races take place approximately every 20-30 minutes.  Moreover, the fact that instant racing uses a terminal that often looks similar to a slot machine might be more appealing to customers who prefer to use higher technology devices.One important issue was discussed during the committee hearing on December 9 - namely, the constitutionality of instant racing.  Currently, the New Jersey Constitution permits wagering only on live horse races and on simulcast horse races.  Instant wagering is arguably neither of those, and in light of how the courts generally strictly construe New Jersey's constitutional language and statutes authorizing gambling, instant wagering might be vulnerable to a challenge.  The solution discussed by the committee was to place instant wagering under the auspices of the Atlantic City casinos through the intrastate internet wagering protocols currently in place, thus deeming all wagers placed in and through an Atlantic City casino, avoiding constitutional implications.There are still a number of legislative steps for this bill to get through before becoming law, but it certainly appears that New Jersey continues to look for ways to be at the technological forefront in the gaming industry.

This article was originally published by Christopher L. Soriano, on the Duane Morris LLP Blog. You can view the original by clicking here

NFL, Retired Players Reach $42M Deal Over Publicity Rights

Former professional football players reached a $42 million agreement with the National Football League over use of their publicity rights, with a Minnesota judge signing off on the deal.

The settlement faced vociferous objections from a handful of class members, who argued that not a single athlete would see a guaranteed dime from the millions. U.S. District Court Judge Paul A. Magnuson had harsh words for the objectors in his order, calling them out for their "baser instincts, namely the lure of what their attorneys promise is lucrative financial payouts from the NFL."

The roughly 25,000 class members alleged that the NFL illegally used the likenesses of former players, particularly in NFL Films productions. Pursuant to the settlement, the NFL will create a $42 million Common Good Fund for the benefit of all retired professional players, with some money set aside to establish a licensing agency for the former players. When the licensing agency strikes a deal with an entity, 75 percent of the fees generated will be paid directly to the players whose rights were licensed, with the remaining 25 percent being paid to the Common Good Fund for the benefit of the class as a whole.

"The vast majority of class members see the settlement at issue here for what it is: a boon to those thousands upon thousands of former NFL players who can now reap the collective benefit of a large financial payout to a fund organized solely for their benefit, overseen by their comrades-in-arms," the court said. "That former players will also finally have an avenue to pursue commercial interests in their own images and in their images as part of their former teams, for the first time in conjunction with the NFL's copyrights and trademarks, is icing on the cake for those players and indeed for all former players."

Judge Magnuson found the settlement "fair, reasonable, and adequate" in large part because the chances that the lawsuit "will succeed are slim at best." Further litigation would be both complex and extraordinarily expensive, the court said, and the plaintiffs" case faced serious obstacles from the statute of limitations (at best, six years, which would eliminate a majority of the class) to the choice of law analysis.

With the "law" of more than 20 states referenced in the class's amended complaint – some of which contains law on the right of publicity, while others do not – a serious conflict between applicable state laws weighs heavily against the ultimate certification of the class, the judge explained. Damages for the tens of thousands of class members pose a similar problem, with just a handful of players entitled to substantial amounts and a review of each player's contract required. Football is a team sport, Judge Magnuson added, making valuation of publicity rights damages "a Herculean task."

"Each individual appearing in a game clip has publicity rights in his or her image. But the value of those rights must be divided among all those appearing in some way. Would a court apportion more value to a team's quarterback, because he stands above the line of scrimmage and is more visible in any game clip? Or perhaps a player with a distinctive hairdo, such as current Pittsburgh Steeler Troy Polamalu, deserves more compensation because his image is readily identifiable?" he wrote. 

"Magnify these individual issues times 53 players on each of 32 teams' active rosters each year, and it is easy to see that determining damages on either an individual or a class-wide basis would be nearly impossible."

Alternatively, the benefits of settlement are "numerous and far-reaching," Judge Magnuson concluded.

"The settlement provides benefits to the class far beyond direct economic benefits arising out of the alleged infringement of players' publicity rights, which for the vast majority of class members could be meager, at best," the court said. The court also noted that The Common Good Fund and the licensing agency are independent of the NFL and the players' union, which will protect the rights and interests of all class members.

To read the final approval order in Dryer v. National Football League, click here

Why it matters: The court's decision demonstrates how the complexity of a class action suit ultimately impacts the value of the settlement accepted by the court in lieu of litigation.  Judge Magnuson did not mince words when evaluating the plaintiffs' suit, explaining the potentially insurmountable obstacles of the choice of law analysis and determination of damages. (In a detailed footnote, he broke down what a hypothetical retired Minnesota Vikings player might be entitled to from an NFL film about the history of the franchise, estimating that even if 200,000 DVDs of the film were sold, the potential damages for a single player were roughly $200.) Facing an expensive, protracted, complex battle against a defendant with deep pockets, the court found the $42 million to be "the best solution.”

 

Linda A. Goldstein
Partner
Manatt, Phelps & Phillips LLP
LGoldstein@manatt.com

 

This article was originally published on the Manatt internet site. You can view the original by clicking here.


Corruption in Sport: Match-Fixing in Football

In light of the recent match-fixing arrests by the National Crime Agency, we thought it would be of interest to report on a recent event we attended on the evening of 11th November at Birkbeck University at which Declan Hill, investigative journalist and author of bestselling book The Fix, discussed the themes and issues in his upcoming book, The Insider’s Guide to Match Fixing in Football. Based on the doctoral thesis of Hill at the University of Oxford, The Insider’s Guide to Match Fixing in Football is an analysis of the motivations, mechanisms and methods which pervade match-fixing. The seminar also included discussion from Franz Tabone, UEFA’s Integrity Officer for Malta, and Tony Higgins, FIFPro’s spokesperson for the ‘Don’t Fix It’ project.

There has always been corruption in sport. However, according to Hill, recently match-fixing has been going “haywire”. The sports gambling market is huge in Asia, dwarfing the combined European and North American markets, and this acts to drive the manipulation of sporting fixtures. The proliferation of sporting manipulation in Asia has been well publicised, and there are now few sports which have not been faced with fixing scandals. The focus of corruption in sport has been on Asia, and unsurprisingly so in light of the scandals there, including when such damaging and quite frankly shocking situations are allowed to arise such as former President of Indonesia’s football association, Nurdin Halid, serving two years in jail for corruption whilst remaining as President of the Football Association.

Given the widespread match-fixing problems in Asia and the perceived lack of integrity, the attentions of the betting market have turned to European football matches. Sadly, but inevitably, the fixers’ attentions have followed suit.

Europol, the European Union’s law enforcement agency, reported in February 2013 that they had conducted a major investigation into match-fixing in Europe. The investigation, the largest match-fixing investigation ever in Europe, uncovered a total of 425 match officials, club officials, players and serious criminals from more than 15 countries, suspected of being involved in attempts to fix more than 380 professional football matches[1]. The activities formed part of a sophisticated organised crime operation which generated over €8million in betting profits and over €2million in corrupt payments to those involved. Amongst the suspicious matches identified were World Cup and European Cup qualification matches, two UEFA Champions League matches and several top flight matches in European national leagues.

Such investigations illustrate how match-fixing has proliferated in top flight games in Europe. In August 2013, Turkish team Fenerbahce were excluded from European competitions for the next two years after losing an appeal to the Court of Arbitration for Sport (CAS) against a UEFA sanction for match-fixing. The President of Fenerbahce was sentenced to six years in prison for his involvement[2]. In August 2013, Lazio captain Stefano Mauri was banned for six months by the Italian football federation for his part in alleged match-fixing two Serie A games. Italy in particular has been a prime target for match fixers; the well-known ‘Calcipoli’ scandal, uncovered in May 2006, led to the stripping of Juventus of their 2005 and 2006 Serie A league titles, and relegation to the Serie B division. So far most commentators believe that the Premier League remains untarnished.

Hill’s findings

According to Hill there are two types of match-fixing: fixing that takes place to defraud betting companies; and everything else, namely match-fixing to secure sponsorship or promotion for clubs. Hill believes some clubs in Europe have adopted a business model of intentionally trying to lose a number of matches per season; the profits of losing ‘fixed’ matches can exceed the value of winning those matches.

Hill remains upbeat about the prospects for tackling match-fixing however. “I think we can win”, commented Hill, “but first we need to know how the fixers operate”. Understanding why a player would fix a match is the main question. In The Insider’s Guide to Match Fixing in Football, Hill compiled a database of players who indicated whether or not they would fix matches, recording a number of variables. One variable stood out amongst the players who would take part in match-fixing – age. When players are over the age of 30, said Hill, matches are over three times more likely to be fixed.

Hill also highlighted the fact that many players in leagues around the world are not being paid. This point is highlighted by FIFPro’s ‘Black Book’ findings, which report that 41.1% of players in Eastern Europe are not paid on time. Non-payment is particularly common in international matches, meaning these games are at a higher risk of being fixed. As Tony Higgins of FIFPro highlighted at the seminar, the proliferation of match-fixing leads to television companies focusing their attentions on leagues which are perceived to have less of a problem with corruption, such as England’s Premier League. This in turn creates funding problems for clubs, intensifying the problem of players not getting paid, and in turn, sustaining match-fixing.

Whilst Hill noted that match-fixing is not particularly prevalent in the UK, he warned that the FA should not rest on its laurels – rather prophetic; his view was that the strong culture of gambling in the UK could act as a gateway to criminality in future. Vulnerabilities in the UK are likely to emanate from the lower leagues were players are paid significantly less than their Premier League counterparts, and we saw recently that four British footballers from those leagues were charged in September of this year by the Australian authorities in relation to match-fixing allegations concerning games there.

Solutions

An international approach to combatting corruption in sport is clearly required because the criminal conduct is taking place in multiple jurisdictions. A specialist international law enforcement agency dealing with corruption in sport would be the high watermark. In an ideal world it needs to be supported by international or even EU-led legislation requiring countries to criminalise sports manipulation and then monitor enforcement. The European Council has acknowledged the problem and sanctioned an international approach – in June 2013 it authorised the European Parliament to participate on behalf of the EU in negotiations for a convention to combat the manipulation of sports results primarily focussed on judicial cooperation in criminal matters and police cooperation. The European Parliament has also called on all member states to criminalise match-fixing if they have not already done so. Match-fixing in England could be prosecuted under Chapter 19 of the Gambling Act 2005 (cheating or aiding and abetting cheating), Chapter 45 of the Criminal Law Act 1977 (conspiracy), and most recently as a result of the Bribery Act 2010 (offering or receiving a bribe), and our wide money laundering offences can capture the proceeds of such criminality if not the individuals. But perhaps a dedicated offence may be helpful.

Just as importantly, sporting associations needs to educate their member clubs and sportsmen and women about the dangers of corruption in sport and the potentially serious consequences. As Mr Hill indicated on 11 November, the UK should not rest on its laurels.

 

Antonio Suarez-Martinez
Partner
Annie Clarke
Trainee
Edwards Wildman Palmer UK LLP

 

[1]https://www.europol.europa.eu/content/results-largest-football-match-fixing-investigation-europe

[2] http://www.bbc.co.uk/sport/0/football/21135626


This article was originally published on the Edwards Wildman Palmer UK LLP Anti-Corruption and Asset Recovery Blog. You can view the original by clicking here.


Wednesday, December 11, 2013

Cycling and the False Claims Act: Lance Armstrong’s Motion to Dismiss Hearing

Cyclist Lance Armstrong argued last week in federal court to have a False Claims Act qui tam suit against him dismissed as time-barred. The lawsuit, filed in June 2010 by Armstrong’s former teammate, Floyd Landis, alleges that Armstrong, his cycling team, the team manager and others defrauded the United States Postal Service of approximately forty million dollars worth of sponsorship fees between the mid-1990s and 2004 as a result of Armstrong and the team’s use of performance enhancing drugs and practices. Armstrong was stripped of his seven Tour de France titles in August 2012 by the United States Anti-Doping Authority, and admitted to using banned substances on national television in January 2013. The United States intervened shortly thereafter in some of the claims alleged by Landis, and now seeks treble damages.

Last Monday, on November 18, 2013, the federal district court for the District of Columbia heard nearly three hours of arguments in which Armstrong asserted that the Postal Service had constructive knowledge of his doping as early as 2000, when the French racing authorities conducted an investigation and allegations of the team’s drug use were widespread. The Postal Service chose not to investigate the allegations a decade before Landis’s lawsuit, and did not investigate in the subsequent years despite continued doping allegations. According to the defense, the Postal Service turned a blind-eye and renewed Armstrong’s contract because it profited from the publicity gained by the cycling team’s success.

The government’s last sponsorship payment to Armstrong’s team was made in 2004. Based on the timing of that last payment, Armstrong argues that the False Claims Act’s six year statute of limitations expired nine days before Landis filed his claim and now prevents the suit from going forward.

The government argues, however, that it was not on notice of Armstrong’s improper conduct before 2010. The French investigation found nothing, and Armstrong and his cycling team vehemently denied doping allegations and went to extreme lengths to cover up their use of steroids and other prohibited substances. As a result, the Postal Service had no way of knowing about Armstrong’s cheating. The government further argues that professional athletes routinely are accused of doping; such allegations do not inherently warrant an investigation, particularly in this case, when Armstrong and others repeatedly assured the Postal Service and the public that the accusations were unfounded.

The presiding district court judge, Judge Robert Wilkins, indicated during Monday’s hearing that he expects to let some claims go forward and plans to issue his ruling within thirty days. 
Landis, a former teammate of Armstrong’s, previously admitted to using banned substances and was stripped of his own Tour de France title. He has been a primary source for the Anti-Doping Authority’s investigation of Armstrong. In August, in connection with a federal deferred prosecution agreement, Landis admitted to defrauding donors contributing to his defense fund when he lied about using performance enhancers. He would receive a portion of the recovery in this case if the government succeeds.

The case, United States ex rel Landis v. Tailwind Sports Corp., et al, 10-cv-00976, is pending in the District Court for the District of Columbia.

 

Kristin Graham Koehler
Partner
Amy Deline
Associate
Sidley Austin LLP
kkoehler@sidley.com
adeline@sidley.com

 

This article originally appeared on the Sidley Austin LLP False Claims Act blog, here.


On secondment at Manchester City: the Gateley experience

Solicitor in Gateley's Commercial, Technology and Media team, Rachel Cowgill, discusses in detail her experience of being on secondment at Manchester City during her training contract.

As part of my training contract I was fortunate enough to undertake a six month secondment at one of the world’s largest football clubs – Manchester City FC. From an outsider’s perspective, it’s easy to think that the business of a football club begins and ends on the pitch. While the ‘beautiful game’ is the heart of MCFC, the substantial business infrastructure underpins everything the club does. A vital part of this machine is the MCFC legal team.

During my six-month stint at the club my work spanned player transfer agreements, sponsorship and endorsement deals, employment and IT matters. While the majority of the work fell under the umbrella of ‘commercial contracts’, no two days were ever the same. Football clubs are faced with a multitude of legal and non-legal issues. While some of the issues are commonplace within businesses generally, some are football-specific.

For example, if a club seeks to enter into an agreement with a new kit sponsor, not only must the parties reach agreeable commercial terms but they must also abide by the Football Association rules regarding kit advertising. These rules dictate how often the sponsor’s name, mark or logo may appear on the shirt and shorts and in what size. If a club participates in international competitions they must also comply with the relevant regulations of FIFA, UEFA and other Confederations.

In addition, as with other Premier League clubs, MCFC must ensure that it does not fall foul of the financial fair play rules which were brought in to prevent professional football clubs spending more than they earn in the pursuit of success. Non-football specific matters – for example the protection of intellectual property and confidential information – are just as important to the club. As with any business which licences its intellectual property, it must ensure that contractual terms and strict approval processes are put in place to control the use of IP by third parties. After all, prohibited use of IP could potentially damage the valuable MCFC brand. Likewise, when sharing sensitive information, confidentiality agreements must be drawn up to ensure that such information is not leaked into the public domain.

The MCFC secondment proved to be a steep learning curve for me. As a trainee solicitor I often came across the phrase ‘commercial awareness’ and I believe my true appreciation of this term only came following my secondment. I was able to observe and be a part of the inner workings of a business. I saw first hand the work that goes on behind the scenes to ensure that players are signed, training facilities are built and fan experience is improved, and how the legal team plays an intrinsic part in helping the club achieve success. The experience I gained was invaluable and something I will never forget. 

 


Tuesday, December 10, 2013

Paying the price for speaking freely about FIFA – the Triesman libel proceedings

The Court of Appeal will soon be delivering judgment in a high-profile clash between the head of Thailand’s football federation, Dato Worawi Makudi, and Lord Triesman, the former chairman of the FA, which raises an issue of high constitutional importance.

The background is all too familiar to any supporter of English football. Between 2007 and 2010, the FA stretched every sinew to bring the 2018 FIFA World Cup to England. No English icon was left untapped. Prince William, David Beckham and Sir Bobby Charlton were paraded before the FIFA Executive Committee. The bid was even announced by Adrian Chiles. A total of around £16 million was spent. Two votes were garnered.

In May 2011, Lord Triesman sought to explain this depressing outcome in evidence given to the Culture, Media and Sport Committee of the House of Commons. During that evidence, Lord Triesman alleged that Mr Makudi, who was a member of the FIFA Executive Committee with a vote on the World Cup bids, had attempted personally to secure the broadcasting rights to a proposed fixture between Thailand and England, and that it was “hard not to think” that Mr Makudi had been “…unaware of the idea settling in my mind, or in the minds of people in this country who are responsible for the bid, that these things would be linked”.

That evidence was, in itself, protected by absolute Parliamentary privilege. Article 9 of the Bill of Rights 1689 provides that the “Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” This is a “provision of the highest constitutional importance” (Pepper v Hart [1993] AC 593 at 638 per Lord Browne-Wilkinson) which ensures that evidence given to Parliamentary Committees cannot result in any civil or criminal penalty.

But what if a person repeats statements made in Parliament, or expressly relies upon such statements, in a situation which is not protected by absolute privilege? After Lord Triesman’s evidence to the Select Committee, the FA set up an inquiry. Lord Triesman tried to be careful not to add to his Parliamentary evidence. But he did repeatedly say, to the Chairman of the inquiry, that the inquiry should “rely upon” or “refer to” such evidence, and even gave a statement saying that his “…evidence in respect of” a particular issue was “set out in the transcript” of his evidence to the House of Commons.

It is well established that a person who has made a statement in Parliament which is protected by absolute privilege may lose that privilege simply by stating outside Parliament that he “did not resile” from that earlier statement: see Buchanan v Jennings [2005] 1 AC 115.

Relying upon that principle, Mr Makudi brought defamation proceedings against Lord Triesman, alleging that Lord Triesman’s statements to the FA inquiry were not protected by absolute privilege and were defamatory. Mr Justice Tugendhat struck out those proceedings, partly on the basis that a plea of qualified privilege by Lord Triesman raised an issue as to alleged malice, which could not be examined “…without also enquiring into his state of mind when he gave his Parliamentary evidence”, which the Judge ruled to be impermissible ([2013] EWHC 142 (QB) at para 101).

The High Court may have gone too far in this aspect of the ruling. In the MPs’ expenses case (R v Chaytor [2011] 1 AC 684), the Supreme Court ruled that: “…where a Member of Parliament affirms outside the House a statement made in the House. Such an affirmation can found a claim in defamation. This may well involve a challenge to the good faith of the defendant in affirming the statement, which will inferentially challenge his good faith in making the original statement” (para 45 per Lord Phillips). These observations reflected those of Lord Bingham in the Buchanan case, that “In such a case there will inevitably be an inquiry at the trial into the honesty of what the defendant had said, and if the defendant’s extra-parliamentary statement is found to have been untrue or dishonest the same conclusion would ordinarily, although not always, apply to the parliamentary statement also. But such an inquiry and such a conclusion are not precluded by article 9, because the plaintiff is founding his claim on the extra-parliamentary publication and not the parliamentary publication.”

It therefore appears to be the law that an inferential inquiry into the good faith or otherwise of Lord Triesman’s statements to the Select Committee is not precluded by Parliamentary privilege. This issue raises a question of high constitutional importance, which is no doubt one of the reasons why the Court of Appeal decided to hear the case. Indeed, in early November 2013 the Speaker of the House of Commons, John Bercow, took the unusual step of writing to the Court of Appeal in order to express concern at the potential impact of the case upon freedom of speech in Parliament.

The case has been heard by a panel comprising Lord Justice Laws, Lord Justice Tomlinson and Lady Justice Rafferty, and their judgment will be eagerly awaited by both sports lawyers, public lawyers and media lawyers alike.

James Segan
Barrister
Blackstone Chambers, London
JamesSegan@blackstonechambers.com


James Segan was junior counsel in the MP’s expenses case, led by Lord Pannick QC. This article was originally published in the Blackstone Chambers Sports Law Bulletin here.


Wednesday, November 20, 2013

NHL Players Defrauded in Series of Investment Schemes

National Hockey League Players were the primary victims of a series of fraudulent investment schemes orchestrated by financial adviser Phillip Kenner and former professional race car driver Tommy Hormovitis. Collectively, the players others lost about $15 million. The court papers charge conspiracy, conspiracy to commit money laundering and wire fraud. U.S. v. Kenner, No. 13-CR-607 (E.D.N.Y. Unsealed Nov. 13, 2013).

Phillip Kenner met a future NHL player while attending college. Subsequently, Mr. Kenner became a licensed financial adviser in Boston. From 1994 through 2003 he used his college connection who had joined the NHL to build a client list which included several professional hockey players. The list became the foundation for his firm which he opened in 2003.

From the opening of his firm, and continuing to the present, Mr. Kenner advised a number of NHL players regarding their investments. He counseled them to participate in a number of investment schemes which were fraudulent. Those included:

The Hawaii scheme: This was a real estate investment scheme in Hawaii. Mr. Kenner solicited thirteen players, convincing them to invest $100,000 each and open lines of credit which he controlled. In addition, Lehman Brothers Holdings, Inc. was convinced to invest $2 million. The funds were to be used to develop real estate on the big island. Instead, Messrs. Kenner and Constantine diverted the money to their personal use. The victims lost over $13 million.

The Eufora Scheme: This was a prepaid debit card business, initiated in 2002. Mr. Kenner informed the NHL players who put $1.4 million into the scheme that Eufora was an up and coming business. Another investor was convinced to put up about $200,000. Most of the money was in fact diverted to an account controlled by Mr. Constantine. Investors lost about $1.5 million.

Global settlements scheme: Beginning in May 2009 Messrs. Kenner and Constantine convinced players to invest about $4.1 million in a plan which called for funding an attorney’s escrow account, the Global Settlement Fund. The fund would be used to finance litigation related to Mexican land deals. Most of the money was diverted to the personal use of the defendants. The players lost about $1 million.

Sag Harbor scheme: In this scheme Mr. Kenner acquired a 25% interest in real property in Sag Harbor, New York by taking $395,000 from a player’s line of credit. The player was unaware of the transaction. He then convinced a second player to purchase what was supposed to be a 50% interest in the deal for $375,000. The player, however, received papers showing that he only had a 25% interest. The investors sold the property at a loss. Mr. Kenner then filed a lawsuit in Arizona against one of the investors in connection with the property.

The defendants were arrested in Arizona and appeared in court on Wednesday. The case is pending.


This article originally appeared on the 'SEC Actions' internet site, produced by Thomas O. Gorman of Dorsey and Whitney LLP. To access the original article, click here.


Tuesday, November 19, 2013

McCririck age discrimination case: analysis

Racing pundit John McCririck has lost his age discrimination case against Channel 4 and IMG Media Limited. McCririck, who had worked for ‘Channel 4 Racing’ since 1984, was dismissed in October. He was aged 72 at the time. The tribunal found that the dismissal was objectively justifiable in the circumstances, on grounds that Channel 4 wished to attract wider audiences. A copy of the judgment can be found here

Why was he dismissed – reality TV appearances, chauvinistic views or age?

The tribunal heard evidence that part of McCririck’s on camera style included sexist views and male chauvinism (referring to his co-presenter Tanya Stevenson on air as “Female”). In his own evidence, McCririck stated that his “pantomime villain sexist image had been deliberately cultivated and played up”. The tribunal viewed DVD extracts of racing broadcasts, as well as extracts from McCririck’s appearances in Celebrity Big brother and Celebrity Wife Swap. Although the evidence suggested that McCririck’s reality tv appearances may have contributed to a reduction in his hours in 2008 and 2010, the tribunal found that there was no evidence that Channel 4 told McCririck at any time that his mode of dress, outspoken views or use of tic-tac language should be moderated.

In September of this year, IMG, having won the bid to cover ‘crown jewel’ events in the racing calendar, had received ‘talent tracker data’ from a market research agency, which was gathered in a national online survey. The talent tracker confirmed that McCririck was well known (with 78% ‘awareness’), but found that 61% of those surveyed did not enjoy viewing McCririck. Overall, he scored badly. In deciding on a new panel of racing presenters, it was decided that MrCririck should not have a role.

However, McCririck forwarded evidence sufficient to support an inference of discrimination, including that Ms Stevenson (aged 42 at the time) was kept on whilst McCririck was dismissed, and that all of the other presenters who were dismissed when compiling the new look line up were also aged over 50. Reference was also made to documentation which indicated that IMG’s bid was predicated on the fact that it intended to use “younger presenters to attract younger audiences” (despite there being evidence before the Tribunal that younger presenters would not achieve this).

Having concluded that McCririck had put forward sufficient evidence of age discrimination, the burden of proof should have shifted to IMG/Channel 4 to establish either:

(i) that there had been no discrimination because the decision to dismiss was not age related; or

(ii) that, even if the decision was age related, dismissal was a proportionate means of achieving a legitimate aim.

Unfortunately, whether or not the tribunal actually made a finding as to the reason for dismissal is not clear from the written decision. Having established a shift in the burden of proof, there is a ‘fastforward’ to item (ii) above, consideration of objective justification. This suggests a finding that the reason for the dismissal was indeed age. However, there are also parts later in the decision in which the Tribunal refer to the dismissal being because of McCririck’s persona. 

What was Channel 4’s justification?

The aim of IMG and Channel 4 was to bring horse-racing to a wider audience. Channel 4 gave evidence that, for the future of the sport and programming, it was important that it “grow a wider audience whilst not losing focus on the core viewer”, and that its aim was to “strike a balance between much of what currently works whilst bringing a fresh feel to the experience that will attract a younger audience”.

Surprisingly, the tribunal was satisfied that the aim was sufficiently “of a public interest nature” to be legitimate (following the Supreme Court’s decision in Seldon v Clarkson Wright & Jakes, which confirms that the aim must have a public interest nature, and be consistent with the social policy aims of the state, namely ‘inter-generational fairness’ and ‘dignity’). It also found that the means of achieving the aim were proportionate.

Accordingly, it found that Channel 4 had not contravened the Equality Act 2010 (and that IMG could not have helped them to do so).

Will there be an appeal?

McCririck has confirmed his disappointment in the decision, but is also reported to have said it is unlikely that he will appeal the decision, which was published on 13 November 2013. 

Whilst the tribunal found that there was sufficient evidence for the burden to shift to Channel 4 / IMG, it has failed to make any clear finding as to whether or not the dismissal was because of age. The lack of structure and clarity in the written decision could give grounds for appeal. 

Interestingly, the judgment also contains a statement that the dismissal was “because of [McCririck’s] persona” (in Celebrity television shows and press articles), “together with his appearances on Channel 4 racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims, and his opinions seen as arrogant and confrontational”. 

Even if an appeal is brought and a re-hearing of the evidence takes place, there does seem to be evidence that the decision to dismiss was not in fact age-related and that it was McCririck’s “arrogant and confrontational” persona that played the biggest part in his departure. Therefore, any appeal may in any event lead to a dead end.

 

Katie Russell
Associate
Shepherd + Wedderburn
katie.russell@shepwedd.co.uk

 

This article originally appeared on the Shepherd + Wedderburn internet site on 14 November. To view the original, click here.


Is Fantasy Sports Insurance Legal?

People have been playing in online fantasy sports leagues for a long time. When the federal government created a specific carve-out for fantasy sports in the Unlawful Internet Gaming Enforcement Act (UIGEA) in 2006, paid money leagues became legal on a federal level for the first time and the ability to collect monetary prizes in paid money leagues was left to the discretion of the individual States. Recently, a new wrinkle involving fantasy sports has come to prominence: fantasy sports insurance…but is it legal?

Legality of Online Fantasy Sports Betting

In order to fall within UIGEA’s exception provisions, the fantasy sports game must:

- have an outcome that reflects the relative knowledge and skill of the participants, but not chance;

- be determined predominantly by accumulated statistical results of multiple athletes participating in multiple real-world sporting events; and

- offer prizes that are not influenced by the amount of fees paid by, or the number of, participants.

Under the laws of many States, season-long and even multi-week online fantasy sports tournaments are not considered ‘gambling’. The regulatory trend in these states is to categorise fantasy sports as games of skill based on the sports knowledge of each league participant. The skill involved in fantasy sports betting exempts online fantasy sports leagues from the gambling laws of these States, which only regulate games premised on chance or luck. As we have previously addressed, daily fantasy sports leagues may introduce a higher degree of chance than season-long or multi-week leagues and, as such, invite allegations of illegal gambling.

Fantasy Sports Insurance 

A relatively new aspect of fantasy sports has developed, which allows fantasy sports participants to purchase insurance policies for the athletes on their fantasy teams. The insurance policies will pay out an agreed upon amount of money, should the policyholder’s fantasy sports athlete(s) be injured. The concept of fantasy sports insurance ensures that a player may recover some or all of his/her fantasy sports league entry fee should a member of his/her fantasy sports team be put out of commission due to injury.

Legality of Fantasy Sports Insurance

Whether fantasy sports insurance is legal under Federal and State law is an unresolved issue and requires an examination of the nuances of insurance law, specifically the concept of insurable interest. In order for any insurance policy to be valid, the policyholder must have a monetary or ownership interest in the thing he or she is looking to insure. This monetary/ownership interest is called an ‘insurable interest’. Without an insurable interest, the policy is void.

An insurable interest must exist at the time the insurance policy is purchased and exist throughout the policy period, including the time the subject injury is incurred. Without having an insurable interest in the thing being insured, it could be argued that one is making a bet that the insured property will be damaged or destroyed in order to collect the insurance money.

The threshold question relating to fantasy sports insurance is whether a league entry fee is considered an insurable interest in one’s fantasy sports athletes. While it is true that fantasy sports league participants usually pay an entry fee and, therefore, have some monetary interest in their fantasy sports athletes, their league entry fee is used to create a fantasy sports team based on a wager of skill. It follows that obtaining fantasy sports insurance could be construed as a wager of chance upon a wager of skill. The concept of insurable interest is meant to guard against wagering on an undesired outcome.

While the legality of fantasy sports insurance is still unclear, fantasy sports participants should use caution before purchasing a policy to insure their fantasy sports athletes.

 

David O. Klein
Klein Moynihan Turco LLP
dklein@kleinmoynihan.com

 

This article was originally published on the internet site of Klein Moynihan Turco LLP. To view the original article, click here.


O’Bannon Antitrust Class Action Against NCAA Survives Pleading Challenge

On October 25, United States District Court Judge Claudia Wilken denied the National Collegiate Athletic Association's motion to dismiss the civil class action complaint of a group of former Division I college basketball and football players. Led by former UCLA basketball star Ed O'Bannon, the players are suing the NCAA for alleged violations of the Sherman Antitrust Act. The lawsuit also named two other defendants, EA Sports and Collegiate Licensing Company (CLC). Notably, both are reported to have reached a confidential settlement with the plaintiffs in September 2013. 

The District Court's decision removes one of the last obstacles standing in the way of the plaintiff's motion for class certification, which, if granted, would allow the plaintiffs to try the case on the merits. If a jury finds in the plaintiffs' favor, the NCAA could conceivably be faced with a judgment in the billions of dollars. The parties have already briefed the class certification motion and the court has heard oral argument; they now await a decision from Judge Wilken.

Essentially, the lawsuit claims that the NCAA impermissibly required student athletes to relinquish all rights in perpetuity to the commercial use of their names, images, and likenesses, including after they graduate and are no longer subject to NCAA regulations. The claims against the NCAA concern the use of players' names and images in both live and archival broadcasts and footage, while the claims against CLC and EA Sports concern the same use in paraphernalia, such as jerseys, and in video games, where player-avatars are modeled after and closely resemble actual players. The former players claim that the defendants conspired to unfairly and unlawfully deprive them of their right to receive compensation for such.

The NCAA's motion to dismiss the operative complaint was based primarily on an argument stemming from a 1984 US Supreme Court case, NCAA v. Board of Regents, in which the Court commented in dicta that not paying student-athletes was necessary to "preserve the character and quality of the NCAA's product." However, Judge Wilken rejected this premise, noting that, in the Board of Regents case, the Supreme Court "focused on a different set of competitive restraints than the rules challenged in this case,” … “never even analyzed the NCAA's ban on student-athlete compensation under the rule of reason” – which is one of the factors for analyzing an antitrust claim – "nor did it cite fact findings indicating that this is the type of restraint which is 'essential if the [NCAA's] product is to be available at all.'"

Although its co-defendants opted to settle the plaintiffs' claims rather than risk certification of the class and a potentially-enormous judgment, the NCAA has vowed that it will contest this lawsuit all the way to the Supreme Court, if necessary. In fact, the same day that Judge Wilken denied its motion to dismiss, the NCAA sought leave of the Supreme Court to intervene in a separate but related action regarding rights of publicity.

Maidie E. Oliveau
Counsel
Stanley G. Stringfellow II
Associate
Arent Fox, Los Angeles
maidie.oliveau@arentfox.com
stanley.stringfellow@arentfox.com

This article originally appeared on the Arent Fox internet site on 1 November. You can access the original by clicking here.


Friday, November 15, 2013

Sport must tackle betting-related corruption

Sport must do more to tackle betting-related corruption, heard delegates at yesterday’s Sport & Betting 2013, a conference jointly organised by World Sports Law Report, World Online Gambling Law Report, Cecile Park Conferences and DLA Piper. However, it cannot act in isolation and needs better help from gambling operators and regulatory tools in order to do this.

Delegates heard that sport needs help because the unregulated market dwarfs the regulated market, making it impossible for it to police. The unregulated market also accepts bets that regulated bookmakers would not take – either due to the size of the stake, or because the bet itself appears corrupt. However global regulation is improbable and, even if possible, is unlikely to solve the problem. “The standardisation of the legal framework across the world is a pipe dream, at best”, said Mike O’Kane, Business Director for Ladbrokes. “Sport needs to deal with this issue without seeking regulatory change”.

Ladbrokes, one of Great Britain’s largest regulated operators, pointed out that it is one tenth the size of the Hong Kong Jockey Club (HKJC), and that the HKJC is one tenth the size of the illegal Chinese gambling market. Delegates heard how between US$250 million and $1 billion is staked on the outcome of every Indian Premier League cricket match, and US$2 billion on India v. Pakistan cricket internationals through the illegal market.

Yet despite evidence that sport has a problem, it has often failed to act. “Sport should be the aggressor”, said Barry Hearn, Chairman of World Snooker. “There must be a zero-tolerance approach, backed by education and punishment. My approach now is purely to frighten people to death!” Andreas Krannich, of SportRadar, pointed out that once a player is involved in match-fixing, the fixers “will never, ever let go”.

Delegates heard how the Scottish Football Association (SFA) had failed to act following the discovery that several players held accounts with Ladbrokes, in contravention of SFA rules preventing players from betting on football. O’Kane pointed out that there had been little action since the publication of FIFPro’s Little Black Book in February 2012, which found that one third of Greek players had been approached by match-fixers and half of Russian players were aware of match-fixing in their league. “We need clarity from sport on its own governance”, he said. “The betting industry can’t continue to be blamed”.

Paul Scotney, Director at Sport Integrity Services and formerly of the British Horseracing Authority, said that often, the regulations are not adequate to prosecute match-fixers, meaning that the incentive to tackle match-fixing is not as great as it could be. “In this country, there have been no new prosecutions since the 1960s for cheating at sports betting”, he said. “The 2010 Cricketers were prosecuted for offences other than cheating at sports betting. The reality is that it comes back to sport to deal with the problem.” He also pointed out that certain operators are unhelpful in sharing information with sport.

It was pointed out that operators have no issue sharing information with regulators, however sharing information with sport can sometimes be an issue, as operators don’t know what sport is going to do with that information. Operators raised concerns about whether that information will be leaked to the media, and whether personal or sensitive data will be adequately protected.

The cost of investigating match-fixing was also raised. Delegates heard that at the first committee debate of the Gambling (Licensing and Advertising) Bill 2013-14 on Tuesday, it was pointed out that sport receives government funding of between £6 million to £7 million to combat anti-doping, yet doesn’t receive a penny for integrity issues. One potential solution would be for operators to return a percentage of takings to sport, as in France, where a ‘sports betting right’ has been created. Eighty-three percent of competitions in France’s five main sports utilised its ‘sports betting right’ in 2010. The right returns 1.1% of stakes to the sport involved. In 2010, this generated €530,000; in 2011 it returned €1.1 million; €1.5 million in 2012 and has generated €1.3 million during the first three quarters of this year. Operators – perhaps obviously – were not keen on this idea.

It was also highlighted that retrospective investigations are almost useless in stopping those behind fixing games, as they punish the athletes involved, not the perpetrators. “Retrospective investigations do not help tomorrow”, said Chris Eaton, Director of Sport Integrity at the International Centre for Sport Security. “Another approach is needed to investigate match-fixing as it happens. Perhaps the best model would be a self-regulatory cooperative approach from the totality of the sports betting industry, at a global level.”

One method of accomplishing this is by using technology developed for the betting industry. Andreas Krannich of Sportradar, a company that provides services to the gambling industry, explained how its Fraud Detection System has helped uncover instances of match-fixing in Australia and – just this week – in Austria. The system tracks real odds movements as compared to calculated odds movements at over 350 bookmakers, looking for discrepancies to identify over 300 manipulated matches every year. He pointed out that such a system, which involves information on 190,000 individuals, would not exist were it not for the involvement of the regulated operators, and explained that such a system has an advantage over early-warning systems, as it can track live betting as it happens, enabling sport to potentially void a suspicious game.

The potential for sport to do this was also picked up by Eaton and Hearn. “You have to starve them of money”, said Eaton. “To do this, you have to work cooperatively with the betting industry”. Hearn said that World Snooker had “taken a match out of play” on a couple of occasions. “Once you start doing this effectively, then there is no point fixing”.

Both sport and betting operators were clear that a ‘Code for Sports Betting’, similar to the World Anti-Doping Code’, is not a solution to this problem. “The WADA model is one that has been discredited in sport”, said Eaton. “It is too oppressive. Sport has begun questioning that approach and Thomas Bach and the IOC have indicated that they would like WADA to take a more service-based approach.”

OTHER POINTS OF NOTE

• International policing is ill equipped to deal with match-fixing, as are local police, as they are jurisdiction based, unlike the fixers.

• There was a consensus that the global recession is likely to mean that the Chinese, Indian and US markets will open to sports betting as governments seek taxation revenues, but it will not happen overnight.

• The IOC is launching the pilot phase of its Olympic Movement Betting Integrity Reporting Mechanism at the Sochi 2014 Winter Olympics. It will continue to be used at the Rio Olympics, and monitoring of its success will take place in 2016/17.

• The European Sports Security Agency estimates the global sports betting of US$18.1 billion per year. China has global gaming revenue of US$10 billion, while the US has global gaming revenue of US$20 billion, 1% of which is regulated. Asia has global gaming revenue of $50 billion per year.

• Samantha Gorse, a researcher at the Centre for the International Business of Sport, pointed out that doping presents a match-fixing risk to operators, especially if people have inside knowledge of that doping.

• There are approximately 432 million sports betting odds movements per day.

• Sports betting is now the number one betting product in Spain, following its regulation.

• German sports betting operators are looking at challenging a 5% of turnover sports betting tax.

• Italy is set to license betting exchanges and betting on virtual events before the end of this year.

• The GB Gambling Commission has yet to address the issue of regulating use of inside information, despite the closure of a consultation into the issue. The Commission said that the appetite for a public debate on the issue was “not strong”; and that blanket rules were perhaps not possible without “killing the spirit” of some sports, such as horseracing.

• The GB Gambling Commission has yet to decide what should be done about sport-related spread betting. Spread betting is regulated by the Financial Conduct Authority, however there is a question about whether sports should be carved out, and the transfer of expertise in regulating sports spread betting to the Commission may mean that it is not worth the effort. This lacuna could present an integrity risk (e.g. it was discovered that spread bets had been taken about the number of cricketers coming out of the pavilion with sunglasses on their heads for some time).

Andy Brown