Wednesday, July 11, 2012

Analysis Needed Before Further Regulating Player Contracts

Analysis of the impact that recently-implemented rules affecting player contracts will have on football is needed before further regulating the area, concluded World Sports Law Report's Player Contracts 2012 on 5 July in London. Football authorities need to investigate whether banning third-party investment in players is plausible - especially as such bans put certain counties at a disadvantage when competing for the world's best players under UEFA's Financial Fair Play Regulations (FFPR).

"What is the point of the Financial Fair Play Regulations if you can assemble a squad at no cost using third-party investment?", said Jane Purdon, Director of Governance at the Premier League, which has notified UEFA that its own ban on third-party investment in players puts it at a disadvantage in European competitions. "Third-party investment either pushes up transfer fees or curtails the real transfer market".

"When we first examined third-party investment, we weren't comfortable banning it having looked at it for only a short period of time", said Sefton Perry of UEFA's Club Licensing department. "However, it was clear that something needed to be done, as there was no transparency. Player ownership now has to be declared under club licensing, which is a step in the right direction."

Delegates attending the event also heard how FIFA is considering using powers to audit clubs to ensure compliance with its Transfer Matching System (TMS). "We have very broad investigative powers given to us by the regulations", said Isabelle Solal, Head of Integrity & Compliance at FIFA TMS, when asked if FIFA would conduct 'surprise audits' on clubs. "We are not ruling anything out at the moment".

Delegates also heard:

- if a club breaches UEFA's FFPR as a result of the wages of players signed prior to 1 June 2010, then that club will not be sanctioned (Annex XI FFPR).
- The Premier League and Football League are having discussions about what should happen under the Football League's FFPR if a promoted club is then relegated back into the Football League, as it would be able to sign players freely whilst in the Premier League, which doesn't operate FFPR.

The programme also included sessions on how compensation for international duty operates, how image rights issues are affecting the way in which player contracts are conducted and much more.

The annual conference, hosted at the Kensington Close hotel, was attended by international federations, continental associations, national associations, leagues, clubs, agents, lawyers and more. World Sports Law Report also organises Tackling Doping in Sport, which is organised in association with UK Anti-Doping and Squire Sanders. World Sports Law Report will also be hosting its annual Sports & Betting conference at a central London location on October 9 this year.

For more information, visit;
http://www.e-comlaw.com/world-sports-law-report
http://www.cecileparkconferences.com


Platini both right and wrong on goal-line technology

On 5 July, the International Football Association Board (IFAB) approved that goal-line technology can be used by those who wish to in football. I have previously explained why I think that this is not the best solution to the issue of wrong decisions being made in football games here, here, here, here, here and here. Let's get one thing straight. I am not against the use of technology in football - far from it. I just think that there are simpler, cheaper and more effective ways to ensure that less wrong decisions are taken.

UEFA President Michel Platini recently revealed that he is opposed to the use of any technology in football - not just goal-line technology. "If tomorrow someone handballs it on the line and the referee doesn't see it, what then?", he said. "We can't just have goal-line technology. We also need sensors to see if someone has handballed it."

Platini's opposition to goal-line technology appears to be based on the often repeated premise that the use of technology will ruin the flow of the game. I don't buy this argument. Rugby league and union are both fast-flowing games and use technology to review decisions without affecting the flow of the game. All refereeing mistakes in football and both rugby codes are only picked up through television coverage, and this is what rugby uses to review decisions. A simple and inexpensive solution, but one that football has failed to consider. Why?

Platini is right that goal-line technology will only solve one issue - whether a ball has crossed the line or not. It would not have picked up Maradona's handball to score during the 1986 FIFA World Cup quarter-final. Nor would it have picked up Henry's handball during a 2010 FIFA World Cup qualifier against Ireland. Nor would it pick up numerous dives or feigning that have led to goals.

I accept that review of every decision is impossible, but it would seem common sense to allow the referee to have another look if he isn't certain. In cricket, each team is allowed to refer three unsuccessful requests to the video referee per innings. Such a system could be adapted for use in football. As I have suggested before, allowing the captain to make just three requests for video review per game would not affect the flow of the game. It would also be simple, cheap and effective.

One of the arguments raised early on was that the introduction of goal-line technology would ruin the 'drama' of the game. FIFA President Sepp Blatter was also against goal-line technology, before performing what has been reported as a u-turn. I think that Blatter has been far cleverer than that. When announcing its approval for the GoalRef and Hawk-Eye systems, IFAB was 'keen to stress that technology will only be utilised for the goal line and for no other areas of the game'. Could it be that in return for advocating goal-line technology, Blatter has managed to convince IFAB to rule out any further adoption of technology in football, thereby killing any chance of real reform, as advocated by other leading figures in football?

It appears that FIFA has forced the IFAB to maintain the status quo, rather than adopting the easier, cheaper and potentially more wide-ranging possibilities that TV replays offer. Goal-line technology will be expensive to install, could affect the flight of the ball and will actually solve few incorrect decisions. It is important to point out that it will be up to national football associations and continental federations to decide whether to adopt goal-line technology, and every system must be referred to FIFA for approval. It will therefore only be adopted by the richest in football, and those who believe FIFA's hype.

Andy Brown


Wednesday, June 27, 2012

Penn State case: Reporting & preventing child abuse

The events at Penn State University have certainly raised a new awareness as to the legal and moral obligations we have regarding the reporting of child abuse. Teams may wonder what laws and procedures come into play when an adult suspects or witnesses sexual abuse of a child or any other crime that takes place in or around a ballpark.

Because of many well-publicised cases over the last several years, we've learned that sexual abuse of minors occurs much more often than many of us were aware and often is not discovered until many years later.

This article reviews the obligations for reporting child abuse and the consequences that teams could face if they are not familiar with those obligations. More important, it offers steps you can take to prevent such dangers. We also will look at the possibility of the team's liability arising out of negligence toward a child who is involved in a ballpark activity such as a kids play zone.

Obligations for reporting

Generally, the law does not require a witness to report a crime. However, consider two important factors. First, there may be a fine line between witnessing a crime and becoming an accomplice by allowing a crime to take place. Second, in child abuse situations, State laws place a much greater burden to report a crime or suspicion of a crime on certain individuals who have professional or trust relationships with the victims.

On a day-to-day basis, employees of a ball team will normally not have such a professional duty because the team employees do not have a professional or trust relationship with the child. Persons typically required by State law to report child abuse (and abuse of developmentally disabled persons) include medical personnel, counsellors, day care workers, camp and school personnel, persons who work with developmentally disabled individuals, home care workers and others who deal with and have care and custody of kids or disabled individuals. Most States include a direct reporting requirement. In other words, an adult in any of these professions who witnesses or suspects abuse or neglect must directly report to the agency that employs him or her, or to law enforcement.

Statutes on reporting of crimes vary from State to State. As we saw in the Penn State case, confusion and possible wrongdoing regarding one's obligations can easily occur. Under the Pennsylvania Child Protective Services Law, the person in charge in a school has the legal obligation to make a report; lower-level employees are permitted, but not required, to make reports.

The Pennsylvania law and similar State laws might well prove subject to more than one interpretation, given civil lawsuits and the many turns the criminal cases seem to have taken. The reporting obligation may be fulfilled on some levels by making a superior aware of the incident, but eventually the crime must be reported to law enforcement authorities.

Another issue is the level of knowledge about the abuse. For instance in Ohio, the reporting requirement applies when, in an official or professional capacity, the person 'knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect' that the child 'has suffered or faces the threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect'. This is a fairly low threshold, a reflection of the policy to err on the side of protecting the child.

The law imposes a penalty if the adult fails to report as required. The penalty for a criminal misdemeanor, using Ohio as an example, would be a jail sentence not to exceed six months and/or a fine not to exceed $1,000.

As long as the reporting person acts in good faith, the law will provide immunity from civil and criminal liability. This immunity will apply to any person making a report-whether mandatory or discretionary. The idea is to eliminate the fear that the reporting person may be sued for making the report. Making a false report, of course, would be an exception to the immunity.

In any case, it would be advisable to have a personnel policy, conforming with State law, about reporting not only child abuse but other criminal and anti-social behaviour on the premises. The team's security procedures should also be consistent with the policy and obligations under State law.

Duty of care

Here is an important question to consider, and you may want to discuss it with your liability insurance carrier. What duty of care does the team owe to a child within the ballpark?

Take, for example, a kids play zone. Does the team owe a duty of care to watch for and prohibit suspicious behaviour by an adult who appears near the children in the play zone area? Suppose the adult is taking inappropriate photos or attempting to approach a child. Does the team have a duty of care to the child to stop this activity?

The local State law of negligence would govern the team's liability. Typical State law would find that the team was negligent if it owed a duty of care to the child and its failure to fulfil that duty led to the child being injured. Whether that duty exists depends on the relationship between the parties. In Ohio, for example, because of the special relationship between a business and its customer, especially a customer who is a child, a business may be liable for harm caused to the child by a third person.

Although a business does not ensure the safety of its customers, it has a duty to protect a customer from the criminal act of a third person if it knew or should have known of a danger. The duty exists only if the incident that harms the customer was foreseeable, and whether an incident was foreseeable depends on the totality of the circumstances. Those circumstances would have to be overwhelmingly clear. Circumstances that would put the business on notice of potential dangers might include other recent crimes on the property or a history of high crime in the area.

In the end, the question of whether the team has a duty of care and has met that standard would likely be a question of law for a judge to decide. The question would greatly depend on the facts in the case. A negligence case in the situations above may carry a high burden of proof, but fact-oriented cases nevertheless often survive pre-trial summary judgment motions and go to trial.

Take responsibility

Operationally, there are a few things that you may want to keep in mind:

  • First and foremost, of course, the safety of the children is paramount. We would recommend a consultation with a security official or police unit to review any holes in your safety measures. A professional sees things that you and I don't.
  • If an incident develops, make a written report and file it with the police quickly. You never know how important that information may become.
  • Make sure each child is accompanied by a parent or guardian or other responsible adult at all times. If not, the child should not be permitted in the play zone or to participate in any other activity.
  • Consider assigning a responsible adult employee, and better yet a uniformed security or police officer, to watch for hazardous activity in areas that may give adult strangers some access to children. An 18-year-old intern may not be your best choice in these situations. The employee or officer should have the authority to take defensive action if need be.
  • Check with your insurance carrier and make sure the team has adequate coverage. If the insurance carrier has a liability audit program, you may want to take advantage of it.

Hopefully no incidents will occur and your team will never have to face the question of whether it properly handled a dangerous situation involving a child.

Minor child waiver

A point we have raised a number of times in presentations at Baseball Winter Meetings and in articles is the importance of using minor child waiver forms before children participate in any team-supervised activity. This is not very practical for a play zone situation, but it should always apply for field stunts and certainly for group overnights at the ballpark. You can probably think of many more such circumstances.

The minor child waiver forms should include language that verifies the parent or guardian's own responsibility for the child while participating in the activity. If the parent or guardian is not personally with the child, he or she should sign an acknowledgement that names the adult who is responsible for the child. A team employee should have the job of making sure that each child has submitted a signed form. If not, no admittance. This practice protects the team from any number of potential liability situations.

The goal is to protect children from abuse, sexual and otherwise. This article is intended to give an overview and to make you aware of issues that you can discuss with a lawyer, including details about your specific legal obligations.

L. James Juliano, Jr., Attorney
Nicola, Gudbranson & Cooper, LLC, Cleveland Ohio
juliano@legallyspeakingonline.com

Benjamin J. Cooper, an associate at Nicola, Gudbranson & Cooper LLC, assisted with this article, which was originally published on www.legallyspeakingonline.com.


Wednesday, June 20, 2012

Ukraine 'Goal' Underlines Fallacy of Goal-Line Technology

Ukraine's unrecognised goal against England underlines the fallacy of FIFA's insistence on persisting with goal-line technology. Had goal-line technology been used, Ukraine could have progressed through to the quarter-finals ahead of France (if they had scored enough goals). However, the decision would have been incorrect, as Milevskiy was offside. As I have said before, the only logical solution is to use TV replays. Everyone watching on TV at home instantly saw that the ball was over the line - they also heard about a minute later that Milevskiy was offside. Goal-line technology could have identified the first mistake, but not the second.

Goal-line technology is consistently hailed as the solution to incorrect decisions in football, however as has been pointed out previously, the evidence suggests that there are far more incidents other than those involving the goal-line. It can also lead to incorrect decisions just as easily as correct ones, as explained above.

FIFA has consistently delayed the introduction of goal-line technology, because it doesn't really want to introduce it - it is happy with the status quo. Rather than settling the injustices in football, goal-line technology goes as far as possible towards maintaining that status quo without affecting the 'flow' of the game, which FIFA doesn't want altered, no matter how many wrong decisions are taken. In other words, changing little, whilst generating money for FIFA as companies queue up to become 'official supplier'.

Articles have suggested that FIFA President Sepp Blatter has performed a 'u-turn' on the introduction of technology in football. In fact he has played a far cleverer game - he has managed to convince the world that he wants to settle injustices in football through the use of technology, by supporting the introduction of technological means that will make little change to football's injustices. Diving, feigning, incorrect offside decisions and more will continue to go unpunished. There are generally only a handful of goal-line incidents in one season, and of those, evidence suggests that less than a quarter are incorrect.

Andy Brown


Friday, May 18, 2012

Conference on Law, Policy and the Olympic Movement, Part III

Interesting points about the future of the Olympic movement and its regulation were raised on the second day of Ithaca College's third conference on Law, Policy and the Olympic Movement, May 16-18. Karolina Tetlak, a Lecturer in Tax Law at Warsaw University, explained that any officially accredited person coming to the UK for the London 2012 Olympics will be tax-exempt, as will any athlete.

An interesting discussion was held around how Her Majesty's Treasury can reconcile this exemption with its normal requirement that any visiting athlete must pay tax on any earnings whilst in the UK. It was explained that although it is not a requirement of the IOC that host cities offer tax exemption, its 'Candidate Procedure and Questionnaire' for potential hosts asks questions about what taxes the Olympic Games would be subject to if they were held in that country, whilst requiring cities to sign an 'undertaking' that any statement made in the questionnaire is legally binding. Tetlak explained that it is often difficult for cities and countries to pull out of offering tax exemptions, explaining that Poland's new government had threatened to remove a tax exemption granted to UEFA for the Euro 2012 by the previous administration. UEFA apparently mentioned that Germany would be able to take over their co-hosting duties and the tax exemption remained.

An interesting discussion was had about whether in the future, the Olympics will continue to attract the same number of competing bidding cities, given that whilst the profits of the IOC have been increasing over time, host cities report losses more often than not. It was agreed that it would take either a failed Games or a lack of bidders before the IOC would consider giving some of its profits to host cities.

Keynote speaker Professor Ian Blackshaw, a Member of the Court of Arbitration for Sport (CAS), revealed that a CAS decision that it lacked jurisdiction to hear the case of footballer Ömer Riza is being appealed under Article 6 of the European Convention on Human Rights (ECHR), which protects the right to a fair trial. The basic facts of the case are that Riza terminated his contract with Trabzonspor Kulübü Dernegi, alleging that the Turkish club had breached his contract and joined an English club. After filing a claim against Trabzonspor with FIFA, Riza's case was referred back to the Turkish football association (TFF), as all disputes must be heard by a TFF arbitration board under its regulations. The TFF arbitration board held that Riza had wrongfully terminated his employment contract, resulting in an appeal to the CAS, which held that it lacked jurisdiction to hear the case. Riza then appealed to the Swiss Federal Court, which agreed with the CAS. The details of the case will be explained in more detail in the May edition of World Sports Law Report.

Hilary Findlay of Brock University highlighted how the Athlete Biological Passport works and highlighted a number of potential issues with it. Firstly, she pointed out that the passport reverses the presumption of innocence by requiring athletes to prove their innocence if their biological markers indicate that doping might have taken place. It was questioned whether this is the right approach to policing against doping in sport. It was also pointed out that if athletes can still micro-dose, as long as they stay within their biological markers and that if an athlete is already doping, the biological passport might actually require athletes to continue doping in order to ensure that their biological markers continue to appear 'normal'!

There were many other interesting issues raised - far too many to list here. Thank you very much for inviting me, Ithaca!

Andy Brown


Tuesday, May 01, 2012

Interview with Frédéric Donze, World Anti-Doping Agency

The Court of Arbitration for Sport (CAS) yesterday rejected an appeal from the British Olympic Association (BOA) against a World Anti-Doping Agency (WADA) decision to declare a BOA Bye-Law non-compliant with the World Anti-Doping Code ('the Code'). The CAS ruled that BOA Bye-Law 7.4, which bans athletes suspended for doping for over six months from Olympic selection, "is a doping sanction and is therefore not in compliance with the WADA Code".

In its statement in response, the BOA confirms that it has the support of UK Minister for Sport and the Olympics Hugh Robertson in its call for a return to four-year sanctions for drug cheats, contained within its submission to WADA as part of the Code review. A recent World Sports Law Report poll found that 60% of respondents thought that provisions should be included within the World Anti-Doping Code allowing sporting bodies to ban convicted dopers from selection for future competitions.

Earlier this year, World Sports Law Report organised Tackling Doping in Sport, a two-day conference at Twickenham Stadium designed to coincide with the 15 March deadline for submissions to the Code review. WADA is due to table a revised version of the Code at its Executive Committee and Foundation Board meetings, which will take place on 17 and 18 May in Montreal.

World Sports Law Report interviewed one of the key speakers, Frédéric Donze, Director of the European Regional Office of the World Anti-Doping Agency. You can read his comments on WADA's role in amending the Code, sanctioning, Code compliance, anti-doping in developing countries and whether there can ever be a level playing field for athletes in anti-doping terms by clicking here.

Tackling Doping in Sport, which took place 14-15 March at Twickenham Stadium, brought together over 200 anti-doping experts from 22 countries. For more information on the conference programme, click here.


Friday, March 09, 2012

Research Backs TV Alternative To Goal-Line Technology

Research undertaken by sports broadcaster Tim Long has logged just four incorrect goal-line calls during the 2010/11 FA Premier League season, compared to 151 goals that should/should not have been allowed for offside reasons. The research backs recent calls for TV replays to be introduced in football - and that is without analysing incorrect penalty/free kick decisions leading to a goal. Of 20 'goal-line decisions', four were incorrect, 12 were correct calls and four were impossible to tell from TV replays. Introduction of a proper TV replay system similar to that used in rugby union and league (rather than viewing broadcast TV replays) could also resolve the remaining four incidents.

Long told World Sports Law Report that his research, conducted for radio documentary Beyond The Goal Line: Football's Technology Debate, involved spending a whopping 250 hours analysing 713 incidents that occurred during the 2010/11 season. These included:

  • 361 penalty claims for fouls or handballs;
  • 151 goals that should / should not have been allowed for offside reasons;
  • 20 goal-line decisions (only four of these were incorrect, 12 were correct calls and 4 were impossible to tell from TV replays).

The rest of the decisions were red cards, second yellows, foul in or out of the box, etc.

Although the International FA Board has recently announced that it is proceeding with testing for goal-line technology, it is not too late for FIFA to listen to what is actually going on in football and change its mind. The amount of money involved in the modern game means that a lot is at stake and pressure is on players to gain an advantage in any possible way. If that means hoodwinking the referee…

In a sterling effort to show how TV replays could impact football, Long compiled a new Premier League table based on correcting the incorrect decisions. Arsenal would have leapfrogged Manchester City and Chelsea to finish second in the table, while Blackpool and Birmingham wouldn't have been related. Wigan and Wolves should have been relegated instead, along with West Ham.

Long's research proves what is at stake. Professional football needs and deserves a better system if FIFA truly wishes to make football a fair game. Regular readers of this blog will know what's coming next…

FIFA has a duty to protect the referee's integrity and allowing the manager or captain to make a limited number of challenges to decisions made during a match would impact the game little, and most professional clubs already have the technology in place to do this. FIFA's argument is that to allow video replays would ruin the flow of the game. I can't see how an instant TV replay the minute the ball next goes out of play would delay the game any more than referral to goal-line technology systems, or more than appeals to the referee by outraged players currently do.

FIFA's motto is 'For the Good of the Game'. It would appear that TV replays fit this motto neatly.

Andy Brown


Monday, February 13, 2012

‘Ambush marketing’ and the 2012 London Olympics

‘Ambush marketing’ is a form of unfair marketing, which has been described as ‘parasite marketing’, although those engaged in it would characterise and justify it as ‘clever marketing’. Basically, a company or firm claims an association with a sports event which it does not have, and - perhaps more importantly - for which it has not paid a penny. In such a case, sponsors do not get value for the considerable sums that they have expended on the particular sponsorship. Sponsorship is a multi-million dollar industry worldwide and sports sponsorship represents some 88% of the total in terms of numbers and value! So, there is a lot at stake.  

‘Ambush Marketing[1]’ not only adversely affects the interests of official sponsors, it also dilutes the value of major sports events and causes confusion to consumers and fans. Depending upon the facts and circumstances of the particular case and depending also on whether the sports event is protected by a special law or statute - in order for a country to host the Olympics, such a law protecting the Olympic marks and designations must be passed - it may be possible to obtain a court injunction or an award of damages in cases of breach of the rules.  

 

Combatting ‘ambush marketing’ 

There are a number of legal and non-legal methods of combatting ‘Ambush Marketing’. For example, the International Olympic Committee (IOC) has introduced a ‘naming and shaming’ procedure in which offenders are exposed in a press conference! This seems to have been quite effective on occasions, but must be handled discreetly to avoid any claims of defamation – trade libel/injurious falsehood. 

Another method of combatting ‘ambush marketing’, which takes many creative forms, are detailed and sophisticated so-called ‘brand protection programmes’ created and strictly enforced by major sports event organisers. For example, an elaborate scheme was put into action and successfully implemented during the 2002 Salt Lake City Winter Olympics, with particular controls in place to prevent unauthorised advertising around the venues. 

Likewise, strict and comprehensive rules, having the backing of statutory law, have been put into effect by the Organising Committee (LOCOG) of the London 2012 Summer Olympics. According to LOCOG, the legal and also commercial raison d’être for them is as follows: 

The value of the London 2012 brand is vital to the funding of the Games. You can help support London 2012 by understanding and respecting the need to protect the brand, and by not using our emblems or otherwise creating an association with the Games unless you are sure you are entitled to do so. The hundreds of millions of pounds necessary to organise the Games must be raised by the London 2012 Organising Committee from the private sector – by selling sponsorship, official merchandise and tickets. To raise the necessary revenue, the London 2012 Organising Committee must be able to give its sponsors an exclusive association to London 2012 and the Olympic and Paralympic movements in the UK. As such we must prevent other companies undertaking unauthorised activities which damage our sponsors’ exclusive rights. If anyone could use the 'Games' Marks' for free, or otherwise create an association with the Games, sponsors and merchandise licensees would not want to invest in the Games.’
The London 2012 official website (
www.london2012.com) includes a useful summary of the rules and explains what is permitted and what is not, and also warns offenders of the serious legal consequences that may follow from any breach of the rules. 

 

The London 2012 Olympic Games marks and their legal protection 

So, what are the ‘Games marks’ that sponsors pay substantial sums to use and be associated with and that need, therefore, to be legally protected? They are the following: 

  • The Olympic symbol  
  • The Paralympic symbol
  • The London 2012 Olympic and Paralympic emblems
  • The words ‘London 2012’ and ‘2012’
  • The words ‘Olympic’, ‘Olympiad’, ‘Olympian’ (and their plurals and things very similar to them – e.g. ‘Olympix’
  • The words ‘Paralympic’, ‘Paralympiad’, ‘Paralympian’ and their plurals and things very similar to them – e.g. ‘Paralympix’
  • The Olympic motto: ‘Citius Altius Fortius’ / ‘Faster Higher Stronger’
  • The Paralympic motto: ‘Spirit in Motion’
  • The Team GB logo
  • The Paralympics GB logo
  • The British Olympic Association logo
  • The British Paralympic Association logo
  • London2012.com (and various derivatives)

In what ways are the ‘Games marks’ legally protected? Some of them are registered as trademarks in various goods and service classes under the Nice Classification, whilst others benefit from copyright protection, particularly as ‘artistic works’. Additionally, in the UK, special laws have been passed to give extra protection to some of the ‘Games marks’ The Olympic Symbol etc. (Protection) Act 1995 (OSPA) protects the Olympic and Paralympic symbols, mottos and various words, including Olympiad(s), Olympian(s) and Olympic(s).
The London Olympic Games and Paralympic Games Act 2006 (the ‘2006 Act’) prevents the creation of any unauthorised association between people, goods or services and London 2012.
Thus, the Games Marks can only be used with the express authorisation of LOCOG. Such authorisation has been granted
to official sponsors, suppliers, licensees and non-commercial partners. Of course, such parties must act strictly in accordance with the terms and conditions of their respective agreements[2]. Sponsors and others, who have been granted rights to be associated with London 2012, are listed in the statutory register which LOCOG is required to maintain under the provisions of the 2006 Act.
However, as regards the use of the name ‘Olympic’, businesses that have traded under an ‘Olympic’ name for many years (pre-1995) are allowed to continue to do so under the legislation. In other words, such businesses enjoy so-called ‘grandfather rights’.
 

Also, the words protected by OSPA can be used in editorial news pieces without LOGOC authorisation and journalists are, in certain circumstances, able to use the LOCOG emblem to illustrate an editorial piece about the Games. But, this exception does not apply to businesses that produce newsletters, client bulletins or other marketing material.  

Furthermore, the use of marks and logos that are confusingly similar to the ‘Games marks’ is also prohibited. So watch out any potential ‘ambush marketers’!

Legal remedies and issues 

LOCOG is prepared to take legal action against infringers in order to protect the ‘Games Marks’, which includes obtaining Court orders for the seizure of unauthorised merchandise and the payment of damages for breaches of the rules. You have been warned! 

But what about local traders and businesses that operate on a relatively small-scale and wish to enter into the spirit of and promote the Games in their communities? They could fall foul of the ‘Ambush Marketing’ rules if LOCOG adopts a zero tolerance approach in all cases.  

Hopefully, in such cases, LOCOG will take into account the particular facts and circumstances of each case and exercise a certain degree of discretion, and not adopt the strict and unbending approach of FIFA in the 2010 World Cup in South Africa and take legal action against all infringers, irrespective of the circumstances. The South Africa World Cup local organising committee brought 450 Court cases against ‘ambush marketers’ of all kinds and were criticised for doing so, especially when picking on small traders! Rightly so, in the opinion of the author of this article. Discretion, as they say, is the better part of valour! 

Again, what about the use of the protected word ‘Olympian(s)’ which, under the OSPA, may not be used without LOCOG authorisation? Supposing an advertiser wishes, in the advertising of their goods or services, to congratulate ‘so-and-so’ as a fine Olympian during the Games, this, technically speaking, is prohibited. A number of commentators consider that this goes too far and is an infringement of the right of free speech, which includes ‘commercial speech’ (i.e. advertising)! In any case, would this actually amount to ‘ambush marketing’. Once more, there is a need for some discretion. 

 

Concluding Remarks 

Whilst there are strong legal and commercial grounds for cracking down on ‘ambush marketing’, LOCOG would be well advised to remember the old age that ‘circumstances alter cases’ and apply the rules with a certain degree of discretion and common sense. 

Otherwise, there will be PR disasters and the valuable goodwill associated with organising and holding the London 2012 Olympics, which have been described as ‘the greatest sporting show on earth’, will be damaged and undermined! 

Finally, the line between ‘ambush marketing’ and ‘clever marketing’ is not always easy to draw in practice. But that is where the lawyers come in! 

 

Ian Blackshaw 

ian.blackshaw@orange.fr 



[1]. For further detailed information on this important topic of ‘Ambush Marketing’, see Chapter 11 by Ian Blackshaw in ‘Sports Law’ by Gardiner et al, 2006 Third Edition, Cavendish Publishing, London, ISBN 10: 1-85941-894-5. 

[2]. On the subject of Sponsorship Agreements, see ‘Sports Marketing Agreements: Legal, Fiscal and Practical Aspects’ by Ian Blackshaw, 2012, TMC Asser Press, The Hague, The Netherlands, ISBN 978-90-6704-792-0. 


Monday, January 30, 2012

Football Needs TV Replays

Queens Park Rangers Vice Chairman Amit Bhatia has become the latest person within football to call for video replays to be introduced. "I'm convinced it's time to allow the challenge system in football", he Tweeted, reported The Guardian. "We have to have some kind of video replay system so that harsh decisions can be reviewed. So much is at stake in every game. Mistakes are made. Decisions are difficult and that's fine, but why not allow those difficult decisions to be reviewed? One challenge per half per manager wouldn't slow the game down by any more than 30 seconds. I think it's got to happen. Every fan and player in the land would appreciate a fair review of a difficult decision. It's not rocket science. And my rant isn't about today's decision. It's a general observation about football and applies to us all who want fairer decisions."

This is not the first time that clubs have advocated video replays (as this blog posting proves), and I have been arguing for their introduction for a long time. Allowing the manager or captain to make a limited number of challenges to decisions made during a match would impact the game little, and most clubs already have the technology in place to do this. FIFA's argument is that to allow video replays would ruin the flow of the game, however I can't see how an instant TV replay the minute the ball next goes out of play would delay the game any more than appeals to the referee by outraged players. As I have recently pointed out, FIFA is driven by generating money for football and I suspect that it cannot see any commercial value in mandating a system where the technology to be used already exists. Compare this with goal-line technology, where FIFA has a number of companies queuing up to become an official supplier.

Put simply, if Bhatia is to be successful in gaining FIFA support for video replays, he needs to gain support for a system that can generate commercial value for the game, and pitch it to FIFA. Perhaps a system could be introduced similar to that used in Australian rugby league, where companies pay to sponsor video replays. Otherwise FIFA will continue to pursue its expensive and ineffective goal-line technology solution, which is not 'for the good of the game'.

 Andy Brown


Friday, January 20, 2012

FIFA’s actions consistently undermine its motto

FIFA’s motto is ‘For the Good of the Game’. However, I am increasingly thinking that this should be changed to ‘For the Good of Our Own, and Big Business’. Not as snappy, but perhaps more realistic.

Firstly came a damning letter from a number of professional journalists, who have refused an offer from FIFA to become involved with FIFA’s interestingly-titled Independent Governance Committee. Basically, they have refused to become involved because they allege that the Committee is far from independent. Even more interestingly, they also accuse FIFA President Sepp Blatter of trying to personally delay publication of the report by Zug Investigating Magistrate Thomas Hildbrand into kickback corruption at FIFA, which they allege ‘destroys’ his claims to have been cleared by the investigation. ‘We are advised that there is no legal impediment to Blatter putting his copy online today’, reads the letter, which is contrary to FIFA’s claims that the document cannot be released due to legal measures taken by one of the parties involved. The Canton of Zug agrees with the journalists, and has ordered the release of the document. All of this smacks of an organisation trying to protect its own.

FIFA has also been trying to protect its sponsorship deal with Budweiser by forcing the organisers of the Rio 2014 World Cup to break Brazilian law by allowing the sale of beer in its stadiums. This is understandable, as FIFA needs to protect the interest of its sponsor, Budweiser. However, FIFA also wants to change a Brazilian law that mandates half-price tickets for students and OAPs. There is also a reason for this – FIFA now sees ‘For the Good of the Game’ to mean that cash is more important to the football family than social responsibility, and is willing to take money from pensioners and students.

FIFA consistently places its need for ever-more cash above its responsibility of choosing what is best for football. As I have pointed out before, the only logical reason for FIFA’s insistence on goal-line technology when video referees can do the same job is that it sees a system it can license to companies for money.

Perhaps it is time to ask whether FIFA is for the good of the game, or for the good of itself.

Andy Brown