Wednesday, November 19, 2014

Senet group: promoting responsible gambling

The Senet Group, set up in September by four of Great Britain's biggest multi-channel gambling operators, is a new watchdog dedicated to promoting responsible gambling standards. Ron Finlay, its Chief Executive, explains its role.


Initially funded by William Hill, Ladbrokes, Coral and Paddy Power, membership of the Senet Group is now open to any company across the gambling industry. We aim to help members fulfil their commitment to responsible gambling and will hold them to account for compliance with codes of good practice.

Social responsibility

The Group has already committed to a series of measures in pursuit of social responsibility. From January, we will be running a major advertising campaign to help educate people on how to stay in control of their betting and keep it fun. All advertising from members will also include more prominent responsible gambling messages in a bid to further strengthen the 'stay in control' message.

Mindful of children and young people watching sport on TV, member companies have agreed not to advertise free bet and free money sign-up offers on TV before the 9pm 'watershed.' Alongside this, all advertising of gaming machines (sometimes referred to as FOBTs or Fixed Odds Betting Terminals) have been removed by members from shop windows. And 20% of shop window space is now to be dedicated to messages about responsible gambling and staying in control.

These voluntary advertising measures go beyond those required by Government and the regulator in Great Britain, the Gambling Commission. Senet Group members took this initiative in response to what they perceived as increasing public concerns over the tone of some gambling advertising, particularly from parents anxious about the possible impact on their children watching sports in the afternoon or early evening.


Modelled on the Portman Group, the self-regulatory body for the alcohol industry, the Senet Group will be chaired by an independent Standards Commissioner. Applications to become the Chair of Senet Group or one of its independent directors are now open until 21 November 2014 and details may be found at Dame Janet Gaymer, former Commissioner for Public Appointments, has kindly agreed to oversee the recruitment process, which is being conducted transparently following the so-called 'Nolan Principles' of standards in public life. 

The wider Senet's membership, the more effective the Group will be. For industry operators concerned that Senet will be unduly concerned with the interests of its founding members, there is good news: the Group's constitution has not yet been finalised and there is a commitment to shape it to suit companies with different operating models, subject to its being able to fulfil its compliance function with due independence. The sanctions available to the Group for members found in breach of good practice will include 'naming and shaming' and fines.


The Group's creation has been hailed as 'positive move' by politicians and critics of the gambling industry as a whole. UK Prime Minister, David Cameron, said he was "heartened that the industry (was) proactively introducing these measures," while Sajid Javid, Secretary of State at the Department for Culture, Media and Sport, said that it was "really good the industry is taking these initiatives."

The Gambling Commission was also positive about the new commitments, saying: "We welcome this initiative and look forward to it being translated into action. We hope it will gain traction across the industry more widely." Clive Efford, Shadow Minister for Sport, said the creation of a watchdog was a "welcome step," but it needed to cover the whole industry.


Over the coming months, the Committee of Advertising Practice is expected to announce the results of its review into gambling advertising; and the Gambling Commission will be considering the results of its consultation on amendments to the social responsibility provisions in the licence conditions and codes of practice for gambling operators. In the longer term, changes in technology are likely to offer opportunities for product development and new marketing initiatives by gambling operators, while social attitudes towards gambling may also change, but are hard to predict.

The industry needs the public's confidence that it is striking the right balance between promoting an enjoyable leisure pursuit and doing its best to minimise potential harm, and the Senet Group has an important role to play. Membership will be a badge of pride. After all, as Patrick Kennedy, CEO of Paddy Power, said at Senet Group's launch: "Putting responsible gambling at the heart of our business is simply the right thing to do."


Ron Finlay
Chief Executive
Senet Group

The impact of the Gambling (Licensing and Advertising) Act 2014

The Gambling (Licensing and Advertising) Act 2014 has changed the way in which gambling is regulated in Great Britain from a point of supply to a point of consumption basis. Ewen Macgregor, a Partner with Bond Dickinson LLP examines the implications of these changes for the industry.


There have been some significant changes to the regulation of remote gambling since the Gambling (Licensing and Advertising) Act 2014 ('the Act') came into force at the start of this month. Previously, remote operators only required a licence if they had at least one piece of remote gambling equipment located in Great Britain. Remote gambling operators who located all of their equipment offshore did not need a licence and were not subject to the regulatory supervision of the Gambling Commission (UKGC). 

From 1 November 2014, gambling in the UK is regulated at the point of consumption rather than the point of supply. This means that remote gambling operators now require a licence from the UKGC if their gambling facilities are used in Britain, even if no equipment is located here. From 1 December 2014, they will also be liable to pay remote gaming duty of 15% on their profits generated from UK customers, no matter where in the world the operator is situated1. This is a major change in the way the gambling industry is regulated, as previously around only 15% of remote gambling operators had a UKGC licence. 

In addition, only licensed operators are able to advertise their services to British consumers. The advertisement of gambling is unlawful if an operator does not hold the required licence from the UKGC for the gambling to take place as advertised. A remote gambling operator will commit an offence if their remote gambling facilities are capable of being used in Great Britain and a remote operating licence is required for the gambling to take place as advertised, but the operator does not have the requisite licence2.

Background to changes

It is estimated that online gambling has a 10.9% share of the overall EU gambling market and that the UK has the largest remote gambling market out of all the EU countries, with gross gambling revenues of over €2.5 billion in 20113, but most of this gaming comes from overseas4. The Government's impetus for the changes was based on the fact that overseas based operators were not required to:

- contribute to research, education or the treatment of problem gambling; 

- report suspicious gambling to the UKGC or sports bodies; 

- report crime to the Serious Organised Crime Agency (SOCA); or 

- to test products to UKGC standards. 

The desired change also supported the Governments objective of a 'fairer tax system,' albeit that this aim was disputed by many in the industry.

The White listing system, in which non-EEA jurisdictions apply to the British government for permission for their operators to be able to advertise gambling services in Britain, is essentially taxpayer and licence-fee funded. Many British facing brands are located in white listed countries or other EEA states like Gibraltar (such as Betfair, William Hill and Ladbrokes). The Government considered that it was unfair for overseas operators to be subsidised in this fashion and effectively compete directly with British based companies without contributing in the same way to the costs of regulation, or towards the British economy5

The Government hopes that the new regulatory regime will increase protection for British consumers, as previously they may have encountered differing standards, depending on the operator they used to gamble with. The benefits of changing regulation so that gambling is regulated at the point of consumption rather than supply brings Britain into line with the approach of other European countries. 

In addition, it hopes to:

- Put domestic operators on a level playing field by making the non-domestic operators obtain an operator's licence. 

- Ensure that the UKGC's work with overseas operators is properly funded meaning that British based operators and the taxpayer will not subsidise this. 

- Provide a legitimate way for global operators to enter the British market that may assist in reducing the incidence of illegal gambling provision in Britain and provide an incentive for improved standards worldwide. 

- Make consumer protection consistent - all operators active in the British market will be expected to meet UKGC standards. 

- Simplify the system for consumers and advertisers - it will be straightforward to determine whether an operator is authorised to provide services in Britain and will become possible for the UKGC to provide advice to consumers about the majority of websites they may be using to gamble. 

- Permit instant regulatory action in the event of a problem.

Industry criticism

Unsurprisingly, many gaming companies disagreed with the Government's perception that the previous system adversely affected British consumers and suggested that there was little concrete evidence in support of this. Others suggested that requiring overseas operators to obtain a licence would duplicate the regulation already taking place in the jurisdictions where most British facing operators are based, and with which the UKGC were already familiar. White list jurisdictions are required to demonstrate they have the capacity, technical and regulatory ability to enforce gambling regulation and inform the UK Government of any changes to their regulatory systems. They were also required to comply with relevant British advertising codes of practice, which apply to the form and media in which they advertise their gambling facilities or services. 

However, the Government considers that there is nothing to stop a Member State from implementing an authorisation system notwithstanding the fact that an operator already holds an authorisation in another Member State, provided that such a system is compliant with EU case law on issues such as proportionality and discrimination. The Government also rejected suggestions that non-statutory changes such as increased regulatory co-operation and memoranda of understandings would improve things, as without a statutory system, the UK would have limited ability to enforce the provisions of an agreement if a party withdrew its co-operation6. In addition, there are operators targeting British consumers from other countries that do not have an independent regulator or a robust system of gambling regulation. Seeking out such jurisdictions and negotiating agreements would undoubtedly incur further cost - again something that the taxpayer would bear. 

High Court challenge

The legislative framework introduced by the Act was recently the subject of a High Court challenge by the Gibraltar Betting and Gaming Association (GBGA), which claimed the new regime was 'unlawful because it is an illegitimate, disproportionate and discriminatory interference with the right to free movement of services guaranteed by Article 56 TFEU.' In addition, the GBGA claimed that the new regime would actually undermine consumer protection and create perverse incentives which would encourage the uptake of unlicensed gambling. 

However, Justice Nicholas Green disagreed, rejecting the claim and concluding that the GBGA had not established that the new regime was unlawful under EU or domestic law, and it served a series of legitimate objectives. He stated that remote gambling services are highly profitable for those that provide the service, but the financial benefit to the provider can be at the expense of the social welfare of the consumer and can bring about a high consequential social and economic clean-up cost for the State7. He considered that if the Government could not lawfully move to a point of consumption regime, the prospect of any form of regulation of remote e-commerce becomes increasingly difficult. 


Our thoughts

Whilst one can understand the Government's financial rationale for switching the regulation and taxation of remote gambling in the UK to the point of consumption rather than supply, it remains to be seen how successful the new regime will be in practice and what level of enforcement action the UKGC will take against operators whom it considers to be breaching the new rules. 

There are some grey areas which remain to be tested. For example, the question of whether blocking access by British consumers to websites of overseas' operators is sufficient to avoid committing the offence of unlawful advertising. The UKGC says that the position is arguable, and that consumers can circumvent blocking measures. Further clarification has been given recently in relation to land-based advertising of online gambling where the UKGC has stated that gambling operators cannot advertise their services without both making it clear in the product as advertised, and in reality, that betting with that particular operator is not available to those in Britain8

Justice Green make it clear in his judgment that a an unlicensed operator whose services are capable of being used by customers in Great Britain will commit a criminal offence if it advertises its services in this jurisdiction and this will apply even if the operator has no intention of targeting British customers, but is not able effectively to block such customers accessing its services9

Translating the land-based guidance to online advertising by making it clear that if the facilities are not available in Great Britain will help to some degree. However, the bottom line is that, operators should ensure they have fully addressed the due diligence and technical challenges of making sure that consumers do not circumnavigate blocking measures. Operators should have clear policies and due diligence procedures in place to ensure they have a robust evidence trail in the event of an investigation by the UKGC. 

Of some, albeit limited, comfort to operators is the fact that the Government has stated that it will watch and learn how the new regime operates in practice and if lacunae or flaws emerge it will consider strengthening the legislation10. Only time will tell. In gambling, the many must lose in order that the few may win11


Ewen Macgregor
Bond Dickinson LLP, London


1. Profits are the amounts due to an operator as stakes or for use of facilities it provides for remote gaming, less amounts paid out as winnings. 

2. Section 3(3) Gambling (Licensing and Advertising) Act 2014.

3. Library of the European Parliament, Online gambling in the EU, May 2013, p2.

4. Department for Culture, Media and Sport, Remote gambling regulation - impact assessment (IA No. DCMS 029), June 2011,p9.

5. Ibid, paragraphs 51 and 52.

6. DCMS, Remote gambling regulation - impact assessment (IA No. DCMS 029), June 2011, paragraph 63.

7. Gibraltar Betting & Gaming Association Ltd and the Secretary of State for Culture, Media & Sport and others [2014] EWHC 3236 (Admin).


9. Gibraltar Betting & Gaming Association Ltd and the Secretary of State for Culture, Media & Sport and others [2014] EWHC 3236 (Admin), paragraph 50.

10. Ibid., paragraph 117.

11. George Bernard Shaw.

Football League Championship Clubs Tweak their Financial Regulations

On November 6, representatives at an EGM of the Football League’s 24 Championship clubs voted in favour of a new set of new financial regulations which will, in two seasons, replace their previous financial fair play regulations (FFPRs). They have however taken the lead from the Premier League in renaming their new regulations that will be implemented from the 2016/17 season, the ‘Profitability and Sustainability Regulations’ (PSRs). Daniel Geey, a Senior Associate with Field Fisher Waterhouse LLP, examines the implications and consequences of this.

The Football League’s Press Release and Some Initial Comment

1. ‘At an EGM at Derby County, Championship clubs have agreed a new set of “Profitability and Sustainability” Regulations that will bring the division’s approach to Financial Fair Play into line with that used by the Premier League.’

Three quarters of all Championship clubs were required to vote in favour of the rule changes for any agreement to be reached. From a consensus building perspective, the Football League administration has done well to persuade at least 18 clubs to vote in favour of the new PSRs. This is because the current Football League FFPRs rules benefited a number of compliant Championship clubs that would have the competitive advantage of signing players at a time when other Championship clubs in breach (because of losses over the acceptable permitted amounts) would have been sanctioned with a transfer embargo from January.

2. ‘From the beginning of the 2016/17 season, Championship clubs will have their financial performance continuously monitored over a three season timeframe and will be permitted to lose up to £15 million during that period without having to be prescriptive over how that loss will be funded.’

Interestingly, the Football League PSRs framework will be similar in substance to the Premier League PSRs (click here for an explanation on the Premier League regulations). It would appear beneficial to have two regulatory systems that align especially because of the fluid nature of relegation and promotion between the two leagues. As is explained below, the Football League PSRs now provide practical compliance guidance for clubs that ‘yo-yo’ between the leagues to ensure they know what losses will be permitted. This was not previously set out in such a joined-up manner. Similarly, whereas before the Championship FFPRs were only based on one years’ set of accounts (see here for the detail), from the 2016/17 season, both Premier League and Football League PSRs will align to cover a three year rolling accounting period.

The example provided for in the Football League press release explains that ‘A club that moves between the Premier League and Championship will be assessed in accordance with the average allowance that is permitted in the relevant division (for example, a club that had played two seasons in the Championship and one in the Premier League would have a maximum permitted loss of £61 million – consisting of one season at £35 million and two at £13 million)’.

As such, both sets of PSRs work regardless of whether a club is in the Premier League or the Football League for the relevant calculation season. This joined up approach from a regulatory compliance perspective will be of value to clubs and, to some degree, shows both the Premier League and the Football League working together to make the PSR process more manageable and straightforward.

3. ‘In addition, they will be permitted to lose more than £15 million, but not more than an aggregate of £39 million (compared to an equivalent figure of £105 million in the Premier League) but will be subject to additional regulation when doing so. This will include providing evidence of Secure Owner Funding and Future Financial Information for the two seasons ahead. The maximum deviation under the regulations will remain at £6 million for 2014/15 and will increase to £13 million in 2015/16, in line with the maximum loss (£39 million over three seasons) permitted under the new rules.’

From the 2016/17 season (i.e. the previous Football League FFPRs continue in force for the current two seasons), Championship clubs will be permitted to lose £13m per year (up to a total of £39m over three years if they remain in the Championship) so long as club owners provide, a guarantee for the overspend. Based on the fact that the acceptable FFPR loss that a club could make in their 13/14 accounts was £8m and next year will be £6m, there will be a large increase in the acceptable loss amounts permitted so long as an owner is willing to guarantee such spending. This will give clubs from the 2016/17 season, more leeway than under the current FFPRs.

4. ‘Clubs also agreed transitional arrangements for the period leading up the introduction of the new regulations in 2016. These can be summarised as follows:
- The existing Championship FFP framework will remain in place for the 2014/15 and 2015/16 seasons.
- Any sanctions for accounts relating to the 2013/14 season will continue to take effect as intended (and in accordance with the amounts specified at the time).’

As explained above, the clubs that were in line to comply with the current Football League FFPRs would have needed incentivising to accept and vote in favour of the new Football League PSRs. It appears that the method for coaxing some clubs to sign up to the new regulatory framework was to ensure that the existing FFPRs will still bite for this and next season. As such, Championship clubs that are in breach of the £8m figure for the 13/14 accounting period season, during this current season, will to be sanctioned with a transfer embargo in January 2015. Similarly, clubs who were promoted to the Premier League and are in breach of the £8m acceptable deviation amount for the 13/14 season when they were in the Championship will be fined. This suggests that, if reports are to be believed, the Football League will still impose a hefty fine on QPR for their Football League FFPR breach regardless of these recent changes.

Some may argue that clubs like QPR that were promoted to the Premier League, that are no longer in the Championship and that are inherently affected by this vote have unreasonably had no say in shaping the amended regulations. Others may disagree and say they are no longer in the Football League Championship and as they are not a member they do not get a say. Similarly, it appears that no substantive changes have been made to the current sanctioning punishments so that any Championship club in breach of the £8m threshold will incur a transfer embargo (with some leeway in specific circumstances) regardless of whether they are £10,000 or £10m over the acceptable loss amount.


The next steps for the Football League are likely to involve issuing sanctioning decisions for those clubs in breach of the current FFPRs, imposing fines on clubs promoted to the Premier League (i.e. QPR) and transfer embargos on current Championship clubs. The rules have changed but the current FFPRs still remain in force for this and next season. In short, expect clubs to be embargoed and fined come January 2015.

Daniel Geey
Senior Associate
Field Fisher Waterhouse LLP, London


This article originally appeared on Daniel’s Blog, ‘The final score on football law’. You can access the original by clicking here.


Can ‘Rooney’ Tackle Discrimination In UK Football Management?

In October, the Football League commissioned a study into why there are so few black managers in English football. Andrew Peters, an Associate with Squire Patton Boggs, examines the US’ ‘Rooney’ rule and whether such an approach could work in the UK.


The issue of discrimination in professional football has again come to the fore through public statements by Fifa Vice President Jeffrey Webb in The Guardian newspaper that such discrimination is “overt”. This time attention turns to the under-representation of ethnic minority managers in the English football leagues. In particular, the talk has focussed on the “Rooney Rule”, an American initiative established in 2003 which requires NFL clubs there to interview at least one minority candidate for any head coach or senior football operations vacancy. Though the Rule does not require any active preference to be given to that candidate, minority representation in NFL team management has reportedly jumped over that period from 6 to 22%. If we assume, as we must, that the fortunes involved in doing well in the NFL mean that no team will consciously appoint anyone other than the person it sees as the best candidate, it becomes apparent that the compulsory minority interview has brought candidates into view who might otherwise have been missed.

On this basis Webb, Keith Curle (one of only two non-white football managers currently plying his trade in the top 4 flights of English football, 92 Clubs all told) and Kick it Out believe that the introduction of such a rule would address the under-representation issue here, while others have either denied that racism exists in the sport or argued that if it does, the Rooney Rule is not the answer.

While those statistics are striking, the obvious first question, however, is whether the Rooney Rule would even be lawful in this country. The Equality Act 2010 prohibits discrimination in relation to race (that covers positive discrimination too, for the most part) in both employment and recruitment, including in the ‘arrangements’ made for deciding to whom to offer employment. ‘Arrangements’ is construed broadly and would include any selection process, including for example the questions on an application form or the compiling of any short-list. On the face of it therefore, the Rooney Rule is likely to be held to be discriminatory if, in giving effect to it, the inclusion of the non-white candidate was at the expense of a better-qualified white candidate, rather than his simply being an additional candidate. Even in the latter case, there is still a risk, however – if you have to have an ethnic minority candidate, that excludes considerations of ultimate fit for that person, while a similarly (un-) qualified white applicant might not get that same chance to be interviewed. The Club might argue that the minority candidate would not have got the job anyway and therefore that the white claimant suffered no loss as he would not have got it either, but the Rooney Rule experience in the US seems to militate against this. Where premiership manager salaries run into millions, the compensation for discriminatory exclusion even from a chance of appointment could be very sizeable.

Since April 2011 the Equality Act has allowed positive discrimination in certain very limited circumstances. An employer may hire a candidate based on his race provided that (a) members of that race are disadvantaged or that their participation in an activity is disproportionately low (as would clearly be the case in respect of minority football managers) and (b) this individual is “as qualified as” the other best candidate, i.e. his race was in effect the tie-breaker. In the relatively subjective world of football management, however, it would be very difficult for a Club seeking to rely on this positive action provision to prove that the two candidates were indeed “equally qualified”. These are not all formal or quantifiable qualifications such as coaching badges, length of experience and number of wins. Clubs would quickly find themselves debating the respective but intangible merits of varying levels of success, domestic and international history, reputation, transfer market dealings, links to player targets, etc.

As a result, if a Club sought to exercise the positive action provisions to hire an ethnic minority manager and later faced a Tribunal claim from an unsuccessful white candidate, it may be safer not to base its defence on positive action, but to instead explain why it felt that the ethnic minority candidate was a better match for the role. This avoids the need for the Club to tread the dangerous and difficult line of having to prove that the two candidates were ‘equally qualified’. In reality, since the histories and circumstances of serious candidates for top-flight football management roles will never be identical, the practical likelihood of two such candidates being genuinely “equally qualified” is in any case minimal.

So, if the Rooney Rule would be unlawful discrimination and if the positive action tie-breaker provisions in the Equality Act are potentially dangerous, what is the answer to addressing the blatant under-representation of non-white football managers in the UK?

So what is the answer? It is a difficult problem to solve. There is a Catch-22 in that football clubs, and certainly the elite clubs, inevitably base their hiring policy on experience and a proven track record which are justified and legitimate recruitment criteria.  That in itself will disadvantage non-white candidates trying to break into management as they are less likely to have those attributes, given the exceptionally low number of minority managers currently plying their trade, scarcely 2% of the UK’s top 92 Clubs.  We are unlikely to get any help from the Employment Tribunals for two reasons – first, that Clubs will almost inevitably be found to have appointed on grounds of genuinely perceived merit rather than race, and second, that unless and until the ethnic minority candidates are at least “equally qualified” on the measures referred to in my earlier post, race claims will generally fail anyway.  So overall, the law would seem to offer little direct help in this matter.

The answer may lie in a deeper analysis of the point at which the minority candidates drop out of the running to be football managers. For example, are there proportionate numbers of non-white coaches earning their coaching licence/managing at grass roots level and, if not, why?  Does the problem lie at this early stage? If so, the Equality Act’s positive action provision allows for bodies to overcome a perceived disadvantage by encouraging such under-represented groups to undergo training courses and gain relevant qualifications.  A Club may, for example, choose to hold sessions for its ethnic minority playing or coaching staff to meet leading figures in coaching to discuss how to break into elite football management.   This is not giving minority candidates preference over better- qualified white candidates, but giving them a helping hand to become as (or better) qualified and so to compete on the proverbial level playing field for a managerial appointment on merit.

No one can magic up from thin air a cohort of ethnic minority candidates with equivalent experience and qualifications if they do not exist, but the game and its Clubs and governing bodies can certainly help ensure that there will be such candidates in the future.  In my view, the answer lies, as ever, in ensuring that minority candidates are given (and take) opportunities at gross-roots level.  This is of course not just a race issue – the same could equally be said of women seeking to enter football management.  When Karren Brady became a director of Birmingham City FC aged 23, it is reported that the Club Chairman told her that to succeed she would have to be twice as good as the men there.  “Luckily”, Brady is said to have replied, “that’s not difficult”.   Hopefully a solid pipeline of minority candidates will avoid the same pressure being placed upon them.


Andrew Peters
Squire Patton Boggs (UK) LLP, London


This article was originally published on the Squire Patton Boggs ‘Employment Law Worldview’ internet site in two parts, which you can access here and here. A search on World Sports Law Report’s internet site for ‘employment’ turned up 161 articles. To sign up for a free trial to World Sports Law Report, click here.


NFL Wins Publicity Rights Dispute With Retired Players

Former professional football players who opted out of a settlement with the National Football League (NFL) over claims of publicity rights violations had their new lawsuit thrown out of a Minnesota federal court. Linda A. Goldstein, Jeffrey S. Edelstein
and Marc Roth, of Manatt, examine why.

The case originated from a class action brought by former professional football players who challenged the NFL’s use of video footage for NFL Films productions. Most of the original plaintiffs resolved their claims with a $42 million settlement deal, which established a fund for the benefit of the former players and appointed a licensing agency to assist those players in exploiting their publicity rights.

Three players – John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White – opted out of the earlier settlement and filed their own suit alleging, among other things, that their publicity rights were violated. They argued that the videos – footage of plaintiffs playing in actual football games – were meant to promote the NFL brand and as commercial speech were entitled to minimal First Amendment protection.

But U.S. District Court Judge Paul A. Magnuson disagreed. The films “are essentially compilations of clips of game footage into theme-based programs describing a football game or series of games and the players on the field,” he explained. That the productions generated substantial goodwill for the NFL is not itself dispositive of whether the productions are advertising, the court went on to explain.

In fact, the court found the “productions themselves are not advertising,” as television networks paid the NFL for the right to air those productions and other advertisers had to pay to have their ads inserted into the production broadcasts.

Moreover, the court found that the films tell the story of a football game, or a football team, and in a sense “a history lesson of NFL football.” “The only way for NFL Films to tell such stories is by showing footage of the game – the plays, the players, the coaches, the referees, and even the fans. The NFL is capitalizing not on the likenesses of individual players but on the drama of the game itself, something that the NFL is certainly entitled to do.”

“While the NFL certainly reaps monetary benefits from the sale and broadcast of these productions, the use of any individual player’s likeness – the productions’ display of footage of plays involving an individual player – is not for commercial advantage but because the game cannot be described visually any other way,” the court said.

As noncommercial speech, the films are entitled to First Amendment protections that trump the plaintiffs’ publicity rights, the court concluded. In addition to finding that the footage satisfied an exception for newsworthy events or matters of public interest, the court found that the plaintiffs explicitly or impliedly consented to the NFL’s use of game footage by participating in interviews with the film crew.

To read the decision in Dryer v. NFL, click here.

Why it matters: In approving the November 2013 settlement, the judge indicated that the deal was fair and reasonable in large part because the chance the lawsuit would succeed on the merits was “slim at best.” The decision of these three plaintiffs to opt out and take their chances on a separate lawsuit proved unwise, as the court resoundingly rejected their publicity, copyright, and Lanham Act claims, in large part because the productions at issue were not commercial speech.


Linda A. Goldstein


Jeffrey S. Edelstein
Marc Roth
Manatt, New York


This article was originally published on the Manatt internet site. You can view the original by clicking here. A search on World Sports Law Report’s internet site for ‘image rights’ turned up 46 articles. To sign up for a free trial to World Sports Law Report, click here.

Thursday, November 06, 2014

Football League Championship agrees new FFP rules

England’s Football League Championship agreed new financial fair play regulations at an Emergency General Meeting in Derby on 6 November, which are designed to bring the division’s approach in line with that of the FA Premier League. ‘At an EGM at Derby County, Championship clubs have agreed a new set of “Profitability and Sustainability” Regulations that will bring the division’s approach to Financial Fair Play into line with that used by the Premier League,” read a Football League media release. ‘From the beginning of the 2016/17 season, Championship clubs will have their financial performance continuously monitored over a three season timeframe and will be permitted to lose up to £15 million during that period without having to be prescriptive over how that loss will be funded. In addition, they will be permitted to lose more than £15 million, but not more than an aggregate of £39 million (compared to an equivalent figure of £105 million in the Premier League) but will be subject to additional regulation when doing so. This will include providing evidence of Secure Owner Funding and Future Financial Information for the two seasons ahead.’

‘A club that moves between the Premier League and Championship will be assessed in accordance with the average allowance that is permitted in the relevant division (for example, a club that had played two seasons in the Championship and one in the Premier League would have a maximum permitted loss of £61 million - consisting of one season at £35 million and two at £13 million),’ continued the release. ‘Clubs also agreed transitional arrangements for the period leading up the introduction of the new regulations in 2016. These can be summarised as follows: 

• The existing Championship FFP framework will remain in place for the 2014/15 and 2015/16 seasons.

• Any sanctions for accounts relating to the 2013/14 season will continue to take effect as intended (and in accordance with the amounts specified at the time).

• The maximum deviation under the regulations will remain at £6 million for 2014/15 and will increase to £13 million in 2015/16, in line with the maximum loss (£39 million over three seasons) permitted under the new rules. Following the Championship’s decision, The Board of The Football League has been given a mandate by its clubs to complete a new financial solidarity arrangement with the Premier League in accordance with that currently under discussion between the two leagues.’

The launch of new regulations for the Football League Championship was predicted at Player Contracts 2014, a two-day conference organised by World Sports Law Report. It is understood that the meeting was called in response to the current situation, where a number of Football League Championship clubs could face sanctions for breaching the current regulations in December / January.


Friday, October 31, 2014

Consolidation a key theme at Day Two of Player Contracts 2014

Day Two of Player Contracts 2014 highlighted how through regulation, football is consolidating its financial position, but this process is causing a new set of issues. Through financial fair play (FFP) regulations, the deregulation of agents and bans on third party ownership, football appears to be managing growth in player wages better than ever before. However, these measures are having more of an impact on clubs outside of the established European elite, and risk affecting their competitiveness.  

In 2012, revenue growth in European football outpaced wage growth for the first time since UEFA started collecting data in 2006, highlighted Daniel Geey of Field Fisher Waterhouse, in the opening talk of the day. However, Geey said that as many as one third of the Football League Championship clubs may be in breach of the Football League's FFP regulations. He gave the example of Queens Park Rangers, which faces a potential fine of between £30 million and £40 million for the season it spent in the Football League Championship, before being re-promoted.

Geey said that as a result of this, the Football League is to hold a meeting next week to bring its regulations "more into line with" the FA Premier League's FFP regulations, which have much more of a wide remit for losses. "The Football League will be the new FFP flashpoint come December / January, when a number of clubs could be sanctioned", he said.

Ian Lynam of Charles Russell highlighted how the Premier League already operates a "soft salary cap" through its short term cost control measures, which limit how much more a club with a large wage bill can spend on wages in the following seasons. In a session on performance-related contracts he said that currently, the amounts specified in such contracts are so small that players disregard them, but there has been a huge increase in their use during the last five to ten years.

FC Barcelona and Manchester City were highlighted as two clubs that are innovating in offering a new contract structure to players, which consists of two-thirds fixed wages, one third variable pay. Lynam said that as the average tenure of a Premier League player is now less than three seasons, players are naturally risk-averse. However, Lynam said that agents had indicated that players would go for performance-related pay as long as it balances the interest of the club with that of the player.

It was highlighted that difficulties may arise in this area - for example if a striker is paid a goal bonus, does that make him less likely to pass? In answer to this, it was highlighted that many clubs offer some players positive motivation, whilst offering others negative motivation - for example, some players will be offered a goal or win bonus, whilst others will be offered incentives for not losing. It was pointed out that in the Premier League, relegation clauses are hugely important for all clubs outside of the top eight, as clubs don't want to be saddled with a Premier League wage bill in the Championship.

The globalisation of football has also affected player image rights contracts. Fladgate LLP highlighted that in recent years, agencies will often agree both onshore and offshore deals regarding the same area of image rights for a player. 'Tweet quotas' are often included in image right contracts, such as a reward for a certain number of new followers. In an interesting 'show of hands', nobody considered Nike to be an official sponsor of the FIFA 2014 World Cup, despite their huge marketing spend around the tournament, whilst many correctly agreed that Adidas was the official sponsor.

In an detailed session on training compensation, Mark Hovell of Mills & Reeve explained that clubs have two years in which to put forward a claim for compensation under Article 25.5 of FIFA's Regulations on the Status & Transfer of Players (RSTP). He pointed out that this can create problems when a case is referred to FIFA if clubs have already been in contact, but one has refused to pay, as FIFA can rule that the two-year time limit has elapsed. This happened in CAS 2012/A/2919, FC Seoul v. Newcastle Jets, but FC Seoul was successful on appeal to the Court of Arbitration for Sport (CAS).

Marie-Anne Lindhardt, of Maqs Law Firm, pointed out how Article 49 of UEFA's FFP regulations can ensure that clubs are paid training compensation, through the requirement that no overdue payables are due to other clubs. She said that clubs often repeatedly request payment only to receive nothing, then as soon as the payee qualifies for Europe, payment magically arrives!

Andrew Rogers, Salary Cap and Regulations Manager of Premiership Rugby, gave a fascinating insight into how salary caps can work and be effectively policed by sport. "The key is that it is their regulation", he said. "The 12 club board members make the decisions about the system, and we manage it".

Perhaps the hottest topic of the day was FIFA's proposed ban on third party ownership (TPO) of players in football. Wouter Lambrecht, Legal Manager with the European Club Association (ECA), explained how the FIFA Working Group on TPO had considered three approaches:

• Full transparency, involving uploading all documents through FIFA's Transfer Matching System;
• Full transparency, but involving restrictive regulations;
• An outright ban.

He said that the Working Group had chosen the third option at a 2 September meeting - a second meeting was held yesterday, the outcome of which you can read about here. He said that the ECA had been "taken by surprise" by the timeline, which aims to have final regulations in place for approval at the May 2015 FIFA Executive Committee meeting. The ECA agrees with the decision to ban TPO, but believes that it should be allowed when it is "pure financial investment".

Lambrecht also expressed surprise that none of the stakeholders had requested analysis of whether a ban on TPO is consistent with European Union law. Ángel Juárez, of Juárez Veciana Abogados, said it was "quite possible" that a complete ban could come into conflict with Article 63 of the Treaty on the Functioning of the European Union. The ECA's main concerns are that a ban would drive the practice underground; and that FIFA will face difficulty in policing the regulations and issuing sanctions.

Through Article 18bis RSTP, FIFA currently does ban any TPO that 'enables any other party to that contract of any third party to acquire the ability to influence in employment and transfer-related matters its independence, its policies or the performance of teams'. However, it was pointed out that FIFA hasn't sanctioned any clubs under this article since its introduction on 1 January 2008.

In a detailed presentation, Juárez said that the "overall economy weight" of TPO is estimated at $360m per year, or 9.7% of the transfer compensation paid in international transfers. He said that the percentage of transfer compensation accounted to third parties, when they are involved, ranges from 10% to 40%. 

Juárez, Benfica CF and FC Porto disputed the suggestion that TPO presented a risk to the integrity of football, pointing to the lack of any evidence. "The only clubs that will benefit under an outright ban on TPO will be the top clubs", said Juárez. "Smaller clubs will suffer". A suggestion was made that a sensible solution might be to create a panel or sub-committee, to which all TPO deals were submitted under agreed criteria. "The more you restrict movement and fees, the more the big clubs will profit", said a delegate, pointing out that clubs in European countries where TPO is permitted will become less competitive.

Ariel Reck, an independent Argentinean sports lawyer, pointed out that no FIFA rules currently exist prohibiting bridge transfers, where a club sells a player to another club by putting it through a 'middle' club. He explained in detail the reasons that clubs do this, and how it can create a problem when clubs use bridge transfers to inflate player fees, circumvent FIFA regulations or tax law.

Reck pointed out that as FIFA's regulations on intermediaries are set to limit the amount that agents can be paid, a TPO ban is possible and loans are on the increase due to FFP, bridge transfers will become more common. "There is therefore a need for a specific rule on this", he said.

Many thanks to all 200 delegates who made the journey to Player Contracts 2014 from 35 countries (and 43 clubs!), and to our excellent Chairmen and Advisory Board, which made Player Contracts 2014 possible. Also, many thanks to the Cecile Park Publishing team, especially Paul Moran and Carli Nelson, who worked tirelessly to make this event happen.

You can read a review of Day One of Player Contracts 2014 by clicking here. Presentations are available to delegates through a link in the delegate pack. For more information on World Sports Law Report events, click here. We hope to see you at Sport & Betting 2014 at the end of the month!

Andy Brown


Thursday, October 30, 2014

Transparency & Protection: key themes at Player Contracts 2014

Day One review…

Regulations and jurisprudence governing player contracts should be more transparent, and should be fit for purpose were the underlying themes at Day One of Player Contracts 2014, organised by World Sports Law Report. Around 200 delegates from 35 countries, including 43 clubs, made their way to Arsenal's Emirates Stadium to hear presentations on topics including FIFA's Intermediary Regulations; Contract Termination; Protection of Minors; FIFA's Transfer Matching System and more.

In the opening session, speakers highlighted the difference between dealing with disputes at the FIFA level and the Court of Arbitration for Sport (CAS) level. It was agreed that CAS procedural rules are generally stricter than FIFA's, which are more "forgiving", as CAS Arbitrator David Casserly put it. It was argued that both approaches have their advantages, but that more transparency is needed in publishing both FIFA and CAS jurisprudence, as sometimes unpublished jurisprudence is relied upon as precedent.

FIFA pointed out that its procedural regulations are available online, but it was highlighted that these are not often followed by decision makers. It was also mentioned that CAS might consider publishing a 'closed list' of arbitrators, as at present 40 out of a list of over 300 arbitrators are used for 80% of the cases, and that it would be useful for everyone to know which arbitrators hold expertise in which areas (i.e. what cases they have acted on).

Last season, 60% of Premier League clubs sacked their manager, was a shocking opening figure from Nick Carter, Senior Legal and Commercial Counsel at Manchester City, in a presentation on termination of manager contracts. He also mentioned that corporate CEOs remain in their job for an average of six years, as compared to two years for football managers. Lucio Colantuoni, a CAS arbitrator, also highlighted that Antonio Conte, the new manager of the Italian national team, will receive over half of his pay from sponsor Puma. It emerged that manager contracts are often complex and subject to national peculiarities, and manager contract termination remains an emerging area of sports law jurisprudence.

Of course, jurisprudence is not lacking when it comes to player contract termination, but it is becoming harder for players to walk out of their contracts, due to the compensation mechanisms in place. "It would take a brave lawyer to advise a player to walk out of his contract", said John Mehrzad, a Barrister with Littleton Chambers. In an entertaining session, in which he likened the legal negotiations underpinning player contracts to a magic show, he highlighted the Comolli case as one where compensation had already been paid, but it was ruled that statutory compensation was also "magically" due.

The importance of recognising mediation clauses in player contracts was also highlighted, as Premier League clubs can be penalised if they ignore such clauses. Pekka Aho, of Studio ELSA, pointed out that mediation clauses can also be used to settle buyout clauses in player contracts, when time is an issue.

Ritchie Humpreys, Chairman of the Professional Footballers Association's Management Committee, highlighted some interesting facts from the player's perspective. He said that the average career of a player in England is eight years, and that 95% of players use agents. He also said that education of players is an issue. "Players are sometimes not aware that a clause which cuts their pay by 20% if the club is relegated, but boosts their pay by 20% if the club is re-promoted, will mean that they will be on less money".

Dan Lowen, of Couchmans, highlighted that FIFA's Intermediary Regulations are sometimes wrongly labelled as a de-regulation, when they in fact represent a "shift in focus. FIFA are regulating the activity itself rather than the person." He also said that FIFA is aware that the current regulations are not working because it lacks the resources to police them effectively. He said that the FA would make its position known about the new Intermediary Regulations known next year.

Mel Stein, Chairman of the Association of Football Agents (AFA), gave a characteristic barnstorming performance criticising FIFA's new approach. "There can be no regulation without representation", he said. "We were never consulted by FIFA." He also argued that it is standard industry practice that agents are remunerated at 5% of the transfer fee, and the 3% level suggested within the Regulations amounts to "price fixing". Stein said that the AFA's challenge to the Regulations has been acknowledged by the European Commission, who are awaiting a response from FIFA.

The need to reform FIFA's Regulations on the Transfer of Minors was also highlighted by speakers and delegates, who pointed to difficulties with the wording of the Regulations in their current form. As just one example, Jesús Arroyo, of Sevilla FC, pointed out that one exemption for a block on international transfers of U18 players was if that player's parents move to a new country. He highlighted that there are currently no exemptions to that rule - i.e. it must be both parents that move, and the exemption is not triggered if a player's legal guardians move.

Omar Ongaro, Head of Players' Status and Governance with FIFA, said that FIFA is aware of the issues. He said that a working group had agreed that there is a need to lower the age limit for which an International Transfer Certificate (ITC) is needed, from 12 to 10, which would then imply that even the international transfer of players from the ages of 10 to 12 would need to be approved by the sub-committee appointed by the Players' Status Committee.

In a very interesting presentation, Daniel Lorenz of FC Porto highlighted a number of situations where the Regulations had been strictly interpreted, preventing minors already in another country from playing. He highlighted the case of Valentin Vada, an Argentinean player who had been refused registration in France because it could not be proved that his parents had moved to France for 'reasons unconnected to football'. "The family situation needs to be taken into account", he said. "In certain situations, they could lose the chance for a better life".

Kimberly Morris, of FIFA's Transfer Matching System (TMS), highlighted how forged documents are often entered into the system as proof of last contract end, in an attempt to get a player registered. She said that both clubs and football associations have been sanctioned for trying to get around the rules in this area. In a statistical analysis of the international transfer system, she highlighted how there has recently been a huge increase in the amount of payments to intermediaries. In a new initiative, TMS will offer a tab where national associations can keep track of intermediaries used in player contracts, in order to comply with FIFA's Intermediary Regulations. She also pointed to spending inflation in England, which since 2011 has increased a three times the average market rate.

The final session of the day dealt with the extraordinary lengths that criminals will go to in order to dupe young players into handing over money in exchange for the promise of a free trial. Delegates were shown contract forms from various clubs, sometimes running into numerous pages, produced by agents forming social media profiles with information gleaned from FIFA's list of football agents. "One young player from Africa was duped into flying to Russia", said Eby Emenike of TBD Sports Management, which has launched projects in Africa - including an 'app' - to protect young players from this threat. "He made it back, but was forced to sleep rough for three months."

At Day Two of Player Contracts 2014, which takes place today, delegates will hear presentations on UEFA's FInancial Fair Play Regulations; Bonus Structures & Incentive-based pay; Training Compensation & Solidarity Payments; Salary Caps; Third Party Investment; Bridge Transfers and more. Hot topics are sure to be the European Commission's reported rejection of the Striani complaint yesterday; whether FIFA can effectively ban or regulate TPO; and the old chestnut of whether salary caps are feasible in football.

For updates, follow the #playercontracts14 hashtag on Twitter. For more information on the programme, click here.

Wednesday, October 08, 2014

ASADA Act amendments - what the changes mean for sport in Australia

The Australian Sports Anti-Doping Authority Amendment Bill 2014 (Bill) was recently referred to the Senate Community Affairs Legislation Committee for inquiry and report.

The Bill proposes five amendments to the current Australian Sports Anti-Doping Authority Act 2006 (Cth) (Act) which are all scheduled to come into effect on 1 January 2015.

Violations List

The current "Register of Findings" will be replaced by a "Violations List". The new Violations List will detail all athletes or support persons whose sanction for an Anti-Doping Rule Violation (Violation) has been finalised. This amendment aims to simplify the process of charging and sanctioning an athlete or support person for a Violation.

Under the current system, ASADA issues its show-cause notice to the athlete or support person, and thereafter the Anti-Doping Rule Violation Panel determines whether to place the person's details onto the Register of Findings. If so, ASADA informs the person's sport, and the person is then charged under the terms of the sport's anti-doping policy. This two-stage process is unique to Australia. It has long been considered antiquated and "clunky" in operation, and has resulted in matters in Australia taking a comparatively long time to process as compared to other countries.

The proposed new process is intended to streamline the steps involved. Once an athlete or support person has been charged, a hearing conducted and the person has been sanctioned by their relevant sport, ASADA will list the nature of the doping offence and the resulting sanction on the (publicly available) Violations List. Such an approach will finally align the anti-doping process in Australia with that of the rest of the world.

Prohibited Association

The Bill creates a new Violation of prohibited association, in which it will be a Violation for an athlete or support person to associate, in a professional or sports related capacity, with another person who is banned from sport or has been criminally convicted or professionally disciplined for an action that would constitute a Violation.

By way of example, it will be considered a Violation for an athlete to be trained by a coach who is currently serving a sanction. The proposed wording is very broad and, therefore, it may also be considered a Violation for an athlete to be trained by a coach who is not serving a Violation sanction, but who has been professionally disciplined for an action that would constitute a Violation. For example, a coach who is also a teacher, lawyer, doctor or other industry professional, and who has been disciplined for recreational drug use by their industry body.

The amendment has the potential to be wide-reaching in its application across sports, and will require sports to be thorough in their recruiting and appointments. The prohibition on association only applies in a sporting or professional capacity and is not intended to prevent social or family associations with a banned person.

Other amendments

Other amendments proposed by the Bill include:

Increasing the limitation period (ie the period in which a charge must be brought) for actions in relation to potential Violations from eight years to ten years.

Creating a right of appeal within Australia for athletes who are denied access to medication under a Therapeutic Use Exemption (TUE). Where an athlete's application to have medication approved under the TUE is unsuccessful, they will now have the opportunity to seek consideration of the decision by a review panel, rather than having to appeal directly to WADA.

It will be an offence, with a maximum of two years' imprisonment, to disclose protected information to anyone besides an authorised person for the purposes of the ASADA Act. While there are currently provisions under the ASADA Act relating to disclosure of confidential information, the amendments seek to simplify these rules.

Overall, the measures introduced in the Bill will simplify and streamline the anti-doping process in Australia. In particular, the introduction of the Violations List and the TUE review panel will assist both athletes and sports and are long overdue changes.

The introduction to the WADA Code of the new violation for "prohibited association" and the lack of information surrounding its operation in practice, may create a few challenges for ASADA and is likely to result in some court challenges in order to get clarity on this new violation.

However, the amendments have not addressed some of the major concerns that sport has in Australia such as:

the requirement for matters to be heard by CAS at first instance (in most cases) and the associated costs of such hearings, where other jurisdictions such as the UK, the USA, France, Canada and New Zealand have no-cost tribunals available to their sports and athletes; and

those issues pertaining to professional team sports which face a different set of challenges from individual sports.

It will be interesting to see if the Senate Community Affairs Legislation Committee makes any recommendations on the matters outlined above in its review of the Bill.


Amelia Lynch
Senior Associate
Tom Hickey


This article originally appeared on the Lander & Rogers internet site. You can access the original by clicking here. A search for ASADA on the World Sports Law Report internet site returned eight articles. To sign up for a free trial to World Sports Law Report, click here.

Tuesday, September 23, 2014

Major bookies agree self-regulation to promote responsible gambling

The recent announcement by the four major retail bookmakers – William Hill, Ladbrokes, Coral and Paddy Power – that they are committing to a range of voluntary measures to promote responsible gambling standards and ensure that the marketing of gambling is socially responsible, has been well received by the national regulator, the Gambling Commission, and politicians alike.

The proposals

Together these four operators have formed an organisation called the Senet Group, and whilst the founding members are all bookmakers, the organisation is open to all gambling operators.

The response by the betting industry to address very public concerns around gambling sees a commitment to the following steps from the 1st October 2014:

• a voluntary ban on advertising sign-up offers (free bets and free money) on TV before 9pm, mindful of children and young people watching;

• the withdrawal of all advertising of gaming machines from betting shop windows;

• dedicating 20% of shop window advertising to responsible gambling messages.

These measures follow a further initiative taken by the industry in September 2013 when the ABB's Code for ‘Responsible Gambling and Player Protection in Licensed Betting Offices’ was launched.

In addition to the above, from 1 January 2015, a commitment has been made to:

• the creation of a new independent body, The Senet Group, which will be headed by an independent Standards Commissioner to hold the industry to account;

• fund a major new advertising campaign to educate people about responsible gambling;

• all TV advertising carrying more prominent responsible gambling messages.

In launching these initiatives Richard Glynn, CEO of Ladbrokes said that whilst "Gambling has long been a leisure pursuit and part of the cultural fabric of the UK…we are alive to the concerns of the public to keep gambling a responsible and fun activity.”

Patrick Kennedy, CEO of Paddy Power also commented that "Putting responsible gambling at the heart of our business is simply the right thing to do.”

The Public Response

The Gambling Commission has welcomed the initiative adding that they "hope it will gain traction across the industry more widely" whilst Helen Grant MP tweeted that she was ‘encouraged by leading bookmakers announcement …on social responsible gambling’ adding that she was ‘pleased with the industry's pro – activity’.

Needless to say the proposals did not receive universal praise. The Campaign for Fairer Gambling is reported as saying that "the bookmakers are engaging in desperate conjuring tricks to protect their FOBT market monopoly and, put simply, this is just more smoke and mirrors. If the Gambling Commission was fit for purpose there would not be the need for a watchdog. But for any such watchdog to have credibility it should be neither industry-run nor industry-funded."

This may seem a little harsh on an industry who no doubt feels that they are damned if they do and damned if they don’t. In practice, what does all of this mean? Is it too little too late from the industry and has the ‘FOBT’ horse already bolted? There are clearly those who will feel that the industry has not gone far enough and that the proposed measures are a token effort as the political pressure mounts on the sector.

What does this mean in practice?

Whichever side of the argument you find yourself on it is, however, progress and the betting industry should be applauded for the steps that they are going to take. The recent announcement, however, should not been seen as the end for any self-regulation. It should simply be regarded as a start. Any policy, whether they be in relation to responsible gambling or, for example, health and safety, needs to be dynamic, and the steps proposed by the major bookmakers need to be re-visited on a regular basis to keep in step with changing gambling habits and trends.

On a national level the Gambling Commission should have confidence that the words of the industry are now being translated in to actions. Whilst it remains to be seen whether the Senet Group will bear the teeth that it is ultimately given it should at least be given time to bed in before any sensible conclusions can be drawn.

In so far as the local regulators are concerned, when it comes to considering applications for premises licences, local authority licensing committees (and Boards in Scotland) should take greater comfort that those operators who have signed up to the above initiatives will not only comply with their statutory obligations under the Gambling Act 2005 (‘the Act’) but will be going over and beyond that which is required of them by statute to ensure that the objectives under the Act, and in particular the protection of children and the vulnerable, are being upheld.

These steps do not of course not stop an operator from proposing its own application specific conditions nor from preventing a local authority from adding its own additional conditions on any licence where there is evidence that to do so would be necessary to uphold and promote the licensing objectives under the Act.

The future

The argument over fobts, the debate over primary gambling activity, and the political pressure on betting operators will inevitably continue (there are outstanding consultations on the LCCP and planning regulations in England and Wales as well as Scotland). There has also been an announcement by a well-known operator of AGC premises that they intend to convert their premises from an AGC to a betting office and install four FOBTs.

The recent announcement will have taken some of the heat off the betting industry in the short term at least. Observers of the industry will watch closely to see what impact, if any, the proposed changes have and how the Senet Group holds, as they say they will, the industry to account.


Ewen Macgregor
Emma Feeney
Bond Dickinson, Bristol

This article originally appeared on the Bond Dickinson internet site. You can access the original by clicking here. A search on World Sports Law Report’s internet site for ‘gambling’ returned 70 articles. Try a trial to World Sports Law Report by clicking here.

NFL Could Learn From New MA Domestic Violence Law


Baltimore Ravens running back Ray Rice, Carolina Panthers Pro Bowl defensive end Greg Hardy, and San Francisco 49ers defensive end Ray MacDonald all have something in common (and it’s not just that they are incredibly talented professional football players):  They have all been indicted for engaging in conduct that constitutes domestic violence.  In Hardy’s case, he has been convicted for domestic abuse.  And just a few days ago, Minnesota Vikings running back Adrian Peterson was indicted for abusing his son and is now under investigation for abusing another son.

The National Football League’s travails with perpetrators of domestic violence have been numerous and storied, and after years of dealing with player domestic abuse instances, the NFL finally instituted a Domestic Violence Policy.  While the NFL’s policy is directed towards perpetrators of domestic violence, Massachusetts employers now are required to protect employee victims of domestic violence.

As of 1 September 2014, Massachusetts has joined 20 other states by enacting an Act Relative to Domestic Violence (‘DV Law’).  The DV Law requires employers to:

• Provide notice about the DV Law to all of its employees.

• Grant, and reinstate employees after, domestic violence leave.

• Not engage in discrimination or retaliation against any employee exercising his or her right to leave under the DV Law.  (Employers should also institute a protocol for employees to report possible violations of the DV Law and for investigating such reports.  The protocol may be similar to that used for reporting and investigating reports of sexual harassment in the workplace.)

• Keep confidential any information received in connection with an employee’s requesting or taking leave under the DV Law.

Below is a summary of some additional key terms.

When is the DV Law effective?

The DV Law became effective on 1 September 2014.

What employers are covered by the DV Law?

Employers with fifty (50) or more employees are subject to the DV Law.  As with many Massachusetts statutes affecting employee rights, the definition of employer is not limited to entities organized under the laws of, or having a place of business in, the Commonwealth.  Nor does it define employees protected by such law as those working in Massachusetts.

What employees are covered by the DV Law?

The DV Law protects any employee who:

• works for an employer with fifty (50) or more employees; and

• is, or has a family member who is, a victim of abusive behavior by a current or former spouse or person with whom there was a dating, engagement, cohabitation, or co-parental relationship. 

The employee need not be located in Massachusetts and does not need to have been employed for any period of time before being entitled to the protections of the DV Law.

To what is an eligible employee entitled?

An eligible employee may take up to fifteen (15) days of unpaid leave in a twelve (12) month period to:

• Seek or obtain medical attention, counseling, victim services or legal assistance;

• Secure housing;

• Obtain a protective order, appear in court proceedings, or meet with a district attorney or other law enforcement official;

• Attend a child custody hearing; or

• Address other issues directly relating to the abuse.

What notification or verification must an employee provide?

Where advance notice is available, employees are required to notify their employers as to when and for how long leave is needed.  Where an employee may be in imminent danger, advance notice is not required, but an employee must give her employer notice within three (3) workdays.  However, if an employee takes an unauthorized absence that is for a reason permitted under the DV Law, then her employer may not take any negative action against the employee if the employee provides verification within thirty (30) days from the last absence that the reason for the absence was one that is protected by the DV Law.

Although the DV Law does not require it, taking a page from the NFL’s playbook, it behooves employers, and particularly in-house counsel who must advise on how to handle employee situations that may be publicly damaging, to take this opportunity to consider a policy for handling employees who are perpetrators of domestic abuse (while being mindful of legal requirements related to the use of criminal records information).


Renee Inomata
Chair - Labor, Employment & Employee Benefits Practice
Burns & Levinson LLP


This article originally appeared on the Burns & Levinson blog ‘In-House Advisor.’ You can access the original article by clicking here.



Thursday, August 28, 2014

Fantasy Sports in Kansas May Be Illegal

As our readers are aware, the legality of fantasy sports contests is determined by two things:

• the laws of the individual States in which the participants are located; and

• the rules and features of the contests themselves.

In terms of Federal law, the 2006 Unlawful Internet Gambling Enforcement Act (UIGEA) created a specific carve out for fantasy sports games that left the legality of fantasy sports up to the States. As we have detailed on this blog, some States have decided to allow its citizens to participate in fantasy sports contests, while others are silent on the topic or have outlawed such contests entirely. Kansas appears to have become the latest State to outlaw fantasy sports contests within its borders.

The Legality of Fantasy Sports Contests in Kansas

In a recent update to its website, the Kansas Racing and Gaming Commission (KRGC) states that ‘if a fantasy sports league involves the elements of (1) prize, (2) consideration and (3) chance, then it is an illegal “lottery” prohibited by Kansas criminal law.’

The first and second elements listed by the KRGC are pretty straightforward:

• a fantasy sports prize may consist of cash, gift certificates or tangible goods awarded to the fantasy sports contest winner(s); and

• consideration is a buy-in amount or fee paid by the player to participate in the fantasy sports contest. It is the element of chance outlined by the KRGC that has caused uncertainty in the fantasy sports industry.

Under Kansas law, the element of chance, as it relates to fantasy sports, is satisfied if it predominates over any skill involved. The KRGC acknowledges that some level of skill is required to be a successful fantasy sports player. It is whether that level of skill predominates over the amount of chance involved that has been the subject of significant legal wrangling. However, the KRGC has now definitively ruled that ‘chance predominates over skill in fantasy sports leagues.’ In short, under Kansas State law, if a fantasy sports league requires players to pay a fee to participate and awards a prize to the winner(s), in the opinion of the KRGC, it is an illegal lottery, punishable under Kansas criminal law.

This blog post only touches on a few of the relevant legal issues involved in the fantasy sports arena. If you plan on engaging in, or operating, a fantasy sports venture, be sure to retain competent legal counsel to help you design your associated contests in a way that comports with applicable law, and best protects you and your business.


David O. Klein
Managing Partner
Klein Moynihan Turco LLP, New York


This article originally appeared on the Klein Moynihan blog. You can access the original by clicking here. A search on the World Sports Law Report internet site for ‘fantasy sports’ returned four results. To benefit from expert analysis on the key sports regulation issues of the day by proven experts, sign up for a free trial to World Sports Law Report by clicking here.

Wednesday, July 23, 2014

Proposed ban on sponsorship of major sports events by alcohol companies kicked to touch

The Republic of Ireland has recently decided not to implement a plan to improve public health by restricting the sponsorship of major sporting events by alcohol companies. Chris Connolly, an Associate with A&L Goodbody, explains the logic behind the proposed ban and why it was decided that it should not go ahead.

The much debated ban on sponsorship of major sporting events by alcohol companies will not form part of the government's upcoming legislation, known as the Public Health (Alcohol) Bill. Instead, the Bill will focus on introducing minimum pricing for strong alcohol products and warnings on promotional materials and containers.

The ban is now being considered by a governmental working group, which is expected to report on the issue towards the end of 2014. This follows an agreement at government level that no ban should be implemented until a decision is reached regarding how to secure alternative funding for sports bodies, who had claimed they would suffer a significant loss of income if the ban was implemented.

This issue has caused considerable debate since the National Substance Misuse Strategy Steering Group proposed the ban among 45 recommendations to tackle the issue of alcohol misuse in society in February of last year. The key aspects of the proposed ban were:

- A ban on new sponsorship contracts in respect of major sporting events being entered into between alcohol companies and sports governing bodies from 2016.

- An outright ban on such contracts from 2020.

- The ban would not apply to sponsorship of local events, only ‘major events.’

- The ban would not apply to arts and cultural events.

Views of sports governing bodies

In their submissions to the Oireachtas Committee on Transport and Communications, a number of governing bodies in sport stated that no evidence exists which proves that introducing a ban would help solve the problem of alcohol misuse in this country. They also pointed out that the introduction of a ban would result in a drastic drop in revenue for sports bodies, which would be in addition to the decrease caused by the economic downturn.

The Federation of Irish Sport, an umbrella organisation for over 100 sports governing bodies, asserted that the value of sport sponsorship by drink companies in Ireland in 2012 was €35 million and that if this entire sector of income was to be removed, there would be no alternative source of revenue available, either from the State or sponsors in other sectors. This would cause significant damage to sport at both elite and grassroots levels.

The Football Association of Ireland (FAI) has submitted that a ‘significant part’ of its annual sponsorship of income of €6 million would be lost. Likewise, the Irish Rugby Football Union (IRFU) had stated that a ban would cost it an estimated €9 million per annum.

This reduction in funding would jeopardise the ability of sports bodies to continue with social inclusion and community based projects that promote health and well-being. One such example is the FAI's Late Night League Programme, which takes place in disadvantaged areas during prime anti-social hours.

Views of the Drinks Industry Group of Ireland (DIGI)

The DIGI is the representative of the manufacturing, distribution and retail sectors of the drinks industry. It highlighted that a ban would be extremely damaging to one of the country's most vital industries. This would be at odds with the aim of growing Ireland's export industry using the food and drinks market.

It was also asserted that advances in technology, particularly digital television and video streaming, mean that on a daily basis consumers view content and advertising that originates from outside Ireland, for example the ability to watch foreign television channels and events such as the Heineken Cup in rugby union and the John Smith's Grand National in horse racing. Therefore, a ban applying only in Ireland would not eliminate consumers from exposure to sponsorship of major sports events by drink companies in other countries, where no such ban exists.


Chris Connolly
A&L Goodbody, Dublin

This article originally appeared on the A&L Goodbody internet site. You can access the original by clicking here. A search on the World Sports Law Report internet archive for ‘sponsorship’ turned up 216 articles. To access the archive, sign up for a free trial to World Sports Law Report by clicking here.

Tuesday, July 15, 2014

Suarez, Barcelona and Liverpool’s potential £70 million plus transfer profit

With Luis Suarez now reportedly close [n.b. - this article was written before his move was confirmed] to moving to Barcelona for a reported £70 million-£80 million, this blog aims to shed light on how clubs account for the sale and purchase of players and why it is important for Financial Fair Play (FFP) compliance. I have previously written on the value of the David Luiz transfer to PSG, which can be accessed here. Parts of that blog are republished here to explain the transfer amortisation accounting process.

How purchasing clubs account for their spending

In sexy accounting speak, 'when a player is purchased, his cost is capitalised on the balance sheet and is written-down (amortised) over the length of his contract.' In laymen’s terms, transfer fees for accounting purposes are spread over the length of a player's contract. If we take Barcelona’s proposed purchase of Suarez as an example, £75 million over a five year contract is amortised by a club in its accounts to the value of £15 million per season.

A transfer occurring in the summer after the 2013-14 season (depending on Barcelona’s accounting year-end) will have an impact on a club trying to break-even for FFP purposes in subsequent seasons. As noted above, Barcelona will amortise Suarez’s transfer fee over the length of his contract. If we assume a five year contract, Barcelona will have four further £15 million amortisation charges in their 15-16, 16-17, 17-18 and 18-19 accounts. All of those amortisation costs will have FFP significance.

How selling clubs account for their income

The other important amortisation issue is the accounting procedure when a player is sold. On this topic I defer to the Swiss Ramble, who uses the ex-Manchester City player Robinho as an example:

'[H]e was bought for £32.5 million in September 2008 on a four-year contract, so annual amortisation was £8.1 million. He was sold after two years, so cumulative amortisation was £16.2 million, leaving a value of £16.3m in the books. Sale price to Milan is reported as £18 million, so City will report a profit on sale of £1.7 million in the 2010/11 accounts. Therefore, City will show an annual profit improvement of £18.1 million after this deal: £8.3 million lower wages + £8.1 million lower amortisation + £1.7 million profit on sale.'

This demonstrates how clubs write off the transfer value of a player over the lifetime of their contract and also illuminates that because Robinho was worth £16.3 million two years into his four year deal, Manchester City actually made an accounting profit on his transfer of £1.7 million. Fans would see the sale of a player for £18 million bought two years previously for £32.5 million as bad business. The club in their accounts will class it as a £18.1 million profit improvement.

Potential Suarez profit for Liverpool

Liverpool originally purchased Suarez on a 5.5 year deal from Ajax in the January 2011 transfer window for a reported £22.8 million. Suarez’s transfer fee was amortised to around £4.1 million annually (£22.8 million / 5.5 years).

Suarez then signed a (presumed) new five year contract in August 2012. The remaining book value of the transfer fee at the time of his new deal was £16.65 million as around 1.5 years of the original transfer fee (£6.15 million) had been amortised. Therefore £16.65 million amortised over the new five year deal meant a new amortisation cost of £3.33 million per season.

Then in December 2013, he signed a new 4.5 year deal. Almost 1.5 years of his re-amortised total figure of £16.65 million had been amortised, which reduced his total unamortised value by £4.99 million (£3.33 million x 1.5 years) to £11.66 million. His annual amortisation cost became £2.57 million (£11.6 million / 4.5 years), or £214,000 per month.

If you are still with me(!), depending on the exact figures that Barcelona is willing to pay for Suarez, an initial conservative £70 million transfer fee minus the remaining £8.89 million (£11.6 million – £1.71 million), which is eight months further amortisation (£214,000 x eight months December ’13 to July ’14 inclusive), gives Liverpool a total accounting profit on the Suarez sale of £61.11 million. Therefore, with £10.4 million in lower wages1, £2.57 million lower amortisation costs and £61.11 million estimated profit on the sale, Liverpool may show an annual profit improvement of around £74 million.

Such profit will no doubt put Liverpool in a stronger position to spend big this summer, but as Liverpool’s year end is 31 May, transfer revenue from the Suarez deal will only appear in the clubs 2014-15 accounts thus not one of the periods (i.e. 11-12, 12-13 and 13-14) that UEFA will use to assess the club for FFP break-even purposes during the upcoming Champions League campaign.


Daniel Geey
Senior Associate
Field Fisher LLP


1. Assuming £200k a week, equaling around £10.4 million per year.


This article originally appeared on Daniel's blog, 'The Final Score on Football Law.' You can access the original by clicking here. A search for 'Financial Fair Play' in World Sports Law Report's internet archive returned 36 articles. To sign up for a free trial to World Sports Law Report, please click here.

Sunday, July 13, 2014

Doping tests and privacy rights in Spain: a key court decision

Spain’s Audienca Nactional has recently ruled that the Spanish High Council for Sports cannot require athletes to permanently report their whereabouts, despite concerns that such an extreme measure is necessary to fight against doping. Diego Ramos, a Partner in DLA Piper’s global media, sport and entertainment team, examines the decision and its implications.

No one can deny that, over the last decade, Spain has taken the fight against Sports’ doping networks very seriously. In 2006 and 2013, two demanding laws for the health protection of federated sportsmen and the prosecution of fraud in sports competition have been passed by the Spanish Parliament. New and stringent regulations developing both laws were rapidly drafted by the local Sports authorities. Enforcement of the laws and the regulations has been particularly tough. In fact a bit too much, as one Spanish court recently ruled.

The facts are simple. The Spanish High Council for Sports (CSD) issued a regulation requiring certain federated sportsmen (e.g. the ones recovering from injuries) to be available to undergo doping tests ‘permanently’. This meant at any time, workdays or weekends, holidays or working periods, day or night, in public or private life. They need to report where they are at all times (hence the term ‘permanently’). The Spanish Association of Professional Cyclists (ACP) filed a claim against that regulation for this and other legal grounds in front of Spanish Audiencia Nacional, a central court based in Madrid that handles serious crime like terrorism, the lawfulness checking of regulations and other matters like privacy rights.

The Audiencia Nacional, in a decision that has just been made public, dismissed most of the arguments of the claim, supporting strongly the views of CSD against doping. The Audiencia Nacional even ruled that, since doping in sports is a matter of public concern, sports professionals are obliged to accept regular doping tests at unusual periods of time. However, the Audiencia Nacional also found that the Regulation went too far when requiring some federated sportsmen to report ‘permanently’ where they are. They shall report where they can be ‘usually’ found for undergoing a test (the law actually employs the term ‘usually’, rather than ‘permanently’, the court says, so the CSD went too far extending the scope of the legal authorisation, especially when a constitutional right like privacy is at stake). The court could have stopped there. However, it went into detail on the merits of the case, analysing whether the duty to report ‘permanently’ the whereabouts of an individual breaches the constitutional right to privacy. It does, according to Audiencia Nacional. Every individual, also federated sportsmen, has the right to a minimum quality of life and a minimum of dignity. By making privacy zero that goal is not achieved.

The decision could still be appealed in front of the Spanish Supreme Court. Reporting where someone is ‘usually’ may be only slightly different from reporting where s/he is at every single second. However, the decision is important, and not only because it shall improve slightly the lives of Spanish federated sportsmen and sportswomen. First of all, the court that issued this decision handles normally the legal review of the decisions made by the Spanish Data Protection Commissioner. So it is likely to have a very strong impact on any future court decision on privacy in Spain. Second, the court used for deciding a sports’ case arguments borrowed from the Spanish data protection practice, the Spanish Data Protection Commissioner and the European Data Protection Authorities (Art 29 Working Party) in geo-localisation cases (i.a. AEPD reports of 28 June 2012 and 25 May 2009, AEPD Resolution of 6 June 2013, WP Art 29 Opinion of 16 May 2011). The special legal concept of ‘proportionality’ that made up the core of privacy authorities’ and experts’ position in all these instances is the one that also boasts the new court decision. People like policemen and sportsmen can be obliged, for different reasons, to be geo-localised on a regular basis. Personal safety, public security, personal health and sports’ cleanness entail risks that justify such burden. Nevertheless, forcing them to surrender their privacy at all times in all contexts is probably not proportional to those risks that the law tries to mitigate. A life that shall be worth living requires a minimum of dignity, and privacy is a key part of it.


- The Opinion of 16 May 2011 from the WP ex Art 29 can be checked here

- The resolution of the Spanish Data Protection Commissioner of 6 June 2013 (in Spanish) can be checked here

- The AEPD Report of 25 May 2009 (in Spanish) can be checked here

- The original draft of Spanish Law 3/2013 on protection of sportsmen’s health and fights agains doping in sports can be checked here

Diego Ramos
DLA Piper, Madrid


This article was originally published on DLA Piper’s blog. You can access the original by clicking here.

A search for the term ‘privacy’ on World Sports Law Report’s internet site returned 70 results. A search for the term ‘data protection’ returned 45 results. World Sports Law Report’s internet archive contains over ten years of sports law information. For access, please contact


Friday, June 27, 2014

Court Confirms $1.6 Million Judgment Against Former Spartan and Detroit Red Wing Hockey Player

In a 17-page opinion issued on June 5, 2014, the Honorable Gordon J. Quist of the United States District Court for the Western District of Michigan entered an order recognizing a judgment entered in Switzerland against former NHL hockey player Kevin Miller. The case is of particular local interest in that Miller was born and raised in Lansing, played college hockey for Michigan State University, and played professional hockey for a number of teams, including the Detroit Red Wings.

The underlying judgment against Miller arose out of an on-ice incident on October 31, 2010, between Miller and Andrew McKim during a Swiss hockey league game. Miller checked McKim from behind, hitting McKim in the head and neck and causing McKim to fall on the ice and hit his head. McKim suffered a concussion and other injuries and was hospitalized for several weeks. The Swiss hockey league determined that Miller's check was intentional and suspended Miller for eight games.

In addition, McKim brought a civil lawsuit against Miller for injuries resulting from the incident. At the conclusion of the civil proceedings in Switzerland, judgment was ultimately entered in the amount of 1 million Swiss Francs against Miller, which, when converted to United States dollars, and adding interest, costs, and attorneys' fees, resulted in a current judgment amount of approximately US $1.6 million.

Miller challenged recognition of the judgment under the Uniform Foreign Country Money Judgments Recognition Act (FCMJRA), which Michigan has adopted. Miller raised two arguments:

- that the Swiss judgment was repugnant to public policy and violated due process because Miller was not allowed to cross-examine the independent expert who provided opinion testimony about Miller's intent at the time he checked McKim; and

- that it was repugnant to public policy and violated due process for the Swiss civil tribunal to consider as evidence the determination by the Swiss hockey league that Miller's check of McKim was intentional.

The district court was not persuaded that either of these objections rose to the level of the Swiss judgment being repugnant to public policy. The court noted that the fact that Swiss law does not allow for cross-examination of expert witnesses "is a mere difference of procedure that does not trigger the public policy exception." Op. at 11. The district court also noted that the civil tribunal's consideration of the hockey tribunal's disciplinary determination was not repugnant to Michigan public policy in that the hockey tribunal's determination was only one of numerous sources of information, and the "Swiss civil court did not accord preclusive effect to the National League proceeding that determined that Miller intentionally injured McKim." Id. at 12.

The district court also held that these concerns did not deny Miller due process in the Swiss civil proceedings. The district court clarified that foreign tribunals do not have to provide identical procedural safeguards as United States courts, but rather "must only be compatible in that they do not offend the notion of basic fairness." Id. at 14. Although the court acknowledged that the procedures in the Swiss tribunal were not identical to those in the United States, particularly the restriction on Miller's ability to cross-examine the independent expert, "the Court cannot say the Judgment presents a serious injustice or lacks basic fairness, such that nonrecognition is appropriate." Id. at 15.


Bryan R. Walters
Varnum LLP, Grand Rapids

This article originally appeared on the Varnum LLP internet site. You can access the original by clicking here. A search on the World Sports Law report internet archive for the term ‘injury’ returned over 70 results. For a free trial to World Sports Law Report, click here.

Thursday, June 19, 2014

Playing it with a straight bat – gagging clauses and the KP settlement soap opera

Say what you like about Kevin Pietersen (and many do) but he is never boring. As a young man, he controversially left his native South Africa in protest at its racial quota system to bring his mercurial talents to England.  Since then, cricket fans have watched him develop from skunk-haired, switch-hitting talisman to record-breaking run scorer, via a disastrous stint as captain and being dropped for sending texts about his team mates to the opposition. ‘KP’ was unlikely to leave the public stage quietly and, when it was announced that his England contract was not going to be renewed following the Ashes tour of Australia, rumours abounded about his (allegedly) disinterested and disruptive influence in the dressing room.  

For a while it seemed that these rumours would remain unsubstantiated as the England and Wales Cricket Board (ECB), keen to avoid further bad publicity after a shambolic winter tour, agreed settlement terms with Pietersen. These apparently included confidentiality and ‘gagging’ provisions on both sides, which prevented either party from discussing the events leading up to the termination of Pietersen’s contract, such as any dressing room bust-ups or details of the severance negotiations. However, this did not stop a constant drip feed of comments from individuals close to the player and eventually the ECB’s Managing Director, Paul Downton, weighed in with comments of his own. In an on-the-record statement to journalists, he remarked that Pietersen had appeared disinterested and distracted in the fifth Ashes Test in Sydney, and that he could not find any team mates who had wanted the batsman to remain in the team.

Pietersen reacted furiously to Downton’s comments, denying them and suggesting that they were in breach of the agreed settlement terms, with the ECB subsequently issuing a bland apology. In a further twist, it has recently been ‘revealed’ that the confidentiality provisions in the agreement expire on 1st October of this year, and that Pietersen has lined up an interview with his friend, Piers Morgan, to ‘blow the lid’ on his sacking.

All of the above begs the question, with this much public mud now being slung, what was the point of the settlement agreement in the first place?

The first point to make is that the precise terms of the settlement reached between the parties are still unknown. However, the relative lack of specific comment by the parties since January does support the idea that the agreement dealt, at least in general terms, with confidentiality and disparaging comments. As such, it seems likely that that any off-the-record briefing of friendly journalists by Pietersen was in breach of his contractual duties and/or that the ECB most likely breached its legal obligations to Pietersen through the actions of Downton.

The second point of interest is that it is very unusual for confidentiality and non-disparagement terms to be time-limited, as it has been suggested is the case here.  Confidential information can usually be divided into two categories: information that is and will always be confidential (for example, KFC’s or Coca Cola’s secret formulas); and information that is confidential now but will not be confidential in the future (for example, details of those companies’ next advertising campaigns). Confidentiality obligations are therefore open-ended, on the basis that there is a legitimate need to preserve the first category of information in perpetuity whereas the second category of information will, by its nature, cease to be protected once it is in the public domain or no longer commercially relevant.

Restrictions on the settling parties discussing the terms and background leading up to settlement and/or making any disparaging or damaging comment about the other also tend to be open-ended. This is because settlement is generally intended to be a final resolution to all disputes between the parties and allowing them to speak ill of the other, even after a reasonable passage of time, can only put such resolution at risk.

If it is true that the settlement agreement contained confidentiality and non-badmouthing provisions, one can only speculate as to why neither party sought to take action to pursue their potential claims against the other in this case. However, the ECB may have felt that proving that Pietersen was the source of comments made by others would be difficult and that getting involved in a public dispute with him would simply fan the flames of publicity. Equally, Pietersen may have been advised that the ECB would claim his conduct had constituted a repudiatory breach of contract, which released it from its obligations to him, and that any action he took could leave him open to an expensive counter-claim. In short, both sides may have considered litigation to be a messy, unsatisfactory and potentially expensive option.

It is also possible that time limiting the relevant terms suited both parties in this case. The ECB probably accepted that it was unrealistic to expect to gag Pietersen indefinitely and that the truth would come out eventually but wanted a window of relative calm to review matters such as the coach’s position and the captaincy. Pietersen for his part may have taken the view that interest in him would remain undiminished and that agreeing to a relatively short period of silence would simply delay his opportunity to have his say in a lucrative autobiography or interview, not reduce it. The way in which events have transpired may not have been perfect for either party. However, judged from this perspective, it appears their aims have broadly been met.

The cricket, and wider sporting world, waits with bated breath for 1st October…


James Williams
Hill Dickinson, London

This article originally appeared on the Hill Dickinson blog. To view the original, click here. A search on the World Sports Law Report archive returned three results under the text ‘settlement agreement’. To sign up for a free trial to World Sports Law Report, click here.

Tuesday, June 03, 2014

2022 FIFA World Cup Qatar: a convenient leak?

Last weekend, the Sunday Times published allegations that Mohamed Bin Hammam, former President of the Asian Football Confederation and member of FIFA’s Executive Committee, attempted to bribe football executives in order to secure votes for Qatar’s bid to host the 2022 FIFA World Cup. The allegations are supported by a cache of leaked documents which appear to reveal that Bin Hammam made a total of US$5 million in secret payments, in particular to heads of African football associations.

Following concerns expressed by the Asian Football Confederation, Qatar’s Supreme Committee for Delivery & Legacy, the organising committee for the 2022 World Cup, has denied the allegations. It stressed that Bin Hammam played ‘no official or unofficial role’ in Qatar’s 2022 bid, despite his Qatari nationality.

However, as the BBC points out, the ‘vast majority’ of African officials allegedly receiving payments did not have a vote. The Sunday Times is to publish further articles alleging that Bin Hammam’s strategy was to build a groundswell of support in Africa, which would then influence the four African members of the 22-strong (two were suspended from voting) FIFA Executive Committee members who did hold a vote.

As well as categorically denying the accusations made in the Sunday Times, a media statement from the Confederation of African Football (CAF) appears to question the logic of Bin Hammam’s alleged strategy. ‘The Sunday Times claimed just before 2 December 2010, Mr Hayatou received (60) World Cup match tickets from Mr Bin Hammam,’ reads the statement. ‘As Chairman of the Organising Committee of the 2010 World Cup and vice-president of FIFA, does Mr Hayatou need anybody to offer him match tickets for the World Cup as gifts? Is he not justified and entitled in his positions to receive match tickets?’

As well as replying to the Sunday Times’ allegations, a further statement from CAF President Issa Hayatou reveals that the CAF is considering legal action against the Sunday Times. ‘The CAF president reserves the right to sue and ensure that perpetrators of these fallacious rants are held responsible for their actions,’ it reads. 

If the allegations are proved true, the maximum number of votes Bin Hammam could have secured for his $3 million would have been four. That still leaves 20 members of FIFA’s Executive Committee that would need to be convinced of the merits of Qatar’s bid (two were suspended late on in the process). As the voting process is secret, we are yet to find out who else voted for Qatar and why. 

FIFA has been coming under increasing pressure over its decision to award the 2022 tournament to Qatar. Having previously threatened a boycott, player organisation FIFPro has lent its support for a winter World Cup in 2022, due to summer temperatures that can top 50 degrees centigrade. On the other hand, the European Professional Football Leagues (EPFL) has stated that ‘all scenarios on the re-scheduling  of the World Cup in Qatar are damaging the domestic competitions and Leagues’ business interests.’

Pressure is also building for action on the conditions suffered by migrant workers, almost 1,000 of whom have died building the facilities for Qatar 2022. The International Trade Unions Congress has demanded that FIFA take action over their treatment. UK Politician Jim Murphy has done much to expose the kafala system that ties workers to their employers, who can prevent migrant workers from leaving the country.

It appears that FIFA is caught between a rock and a hard place. If it goes ahead with the tournament as planned, it faces a potential player strike or potential heatstroke deaths. If it reschedules the tournament, it faces potential action from European football leagues due to revenues lost. In either case, it faces a potential political backlash over worker conditions, which could involve sponsors, TV companies and supporters boycotting the tournament.

The leaked emails and documents come just before Michael Garcia, the US lawyer heading the Investigatory Chamber of the FIFA-funded Independent Ethics Committee, is due to report his findings concerning the initial allegations of corruption in relation to the 2022 bidding process, on 9 June. The report and its findings, to be published six weeks later, will not consider the Sunday Times’s allegations. The leaked emails also come just before FIFA’s Executive Committee meeting on 7-8 June, where the 2022 World Cup is on the agenda. Both these events precede the FIFA Congress, on 10-11 June in Sao Paulo.

Any FIFA decision to re-run the election of the 2022 hosts would make all of these issues disappear, without delving into the difficult question of who, exactly, voted for Qatar and why. The Sunday Times’s initial article refers to payments made by a person already banned by FIFA, to smaller national associations not actually involved in the 2022 voting process. It would appear that the leak, upon which the Sunday Times’s allegations are based, has come about at a convenient time and in a convenient way for FIFA to take action.

Andy Brown

Monday, June 02, 2014

Australia's Major Sporting Events Protection Bill 2014 (Cth)

Key points:

• The Major Sporting Events (Indicia and Images) Protection Bill 2014 (Cth) is currently before Parliament.

• The Bill will apply to major sporting events including The Asian Football Confederation Asian Cup 2015, The Cricket World Cup 2015 and The Gold Coast 2018 Commonwealth Games.

• The Bill seeks to protect Major Sporting Events’ images and indicia (including words associated with the Major Sporting Events, such as “Queen’s Baton Relay”, with respect to the Commonwealth Games) against commercial exploitation by bodies other than the event body responsible for the major sporting event.

• The language and reach of the Bill is very broad.

• Any person who commercially uses a major sporting event’s protected indicia or images, without the prior approval of the event body may be subject to an order for damages, an injunction, ordered to publish a corrective statement (disclaiming any association with the major sporting event) or their goods may be seized by Australian Customs.

Protection of Images & Indicia

The Major Sporting Events (Indicia and Images) Protection Bill 2014 (Cth) (Bill) prohibits the commercial use of Protected Indicia by persons other than the event body, unless the event body has authorised another person, or body, to use the event’s Protected Indicia (Prohibition).

The Bill provides a list of what indicia and images are protected for the Major Sporting Events (Protected Indicia); for example, the following words and phrases are some of the Protected Indicia for the Commonwealth Games: “Australian Commonwealth Games”, “GC18” and “Queen’s Baton Relay” (Primary Words). Furthermore, if Primary Words are used in conjunction with other listed words, such as “agent”, “caterer”, “city” or “product”, then these phrases are also Protected Indicia.

The Bill also provides that where indicia or images are used which ‘so closely resembles’ Protected Indicia, where a reasonable person may mistake the indicium or image as being Protected Indicia, the used indicia or images are also Protected Indicia.

“Commercial use” includes where Protected Indicia are “applied to” a person’s goods or services or used for advertising purposes, provided that such uses would, to a reasonable person, suggest that the user was a sponsor or support provider of a major sporting event. “Applied to” is broadly defined to include where the Protected Indicia are ‘woven in, impressed on ... or affixed to the goods’, and it also includes the use of Protected Indicia on invoices, price lists, catalogues, brochures, and presumably menus.

Interaction with Other Laws

The provisions of the Bill are not intended to limit the application of other Commonwealth laws: remedies obtainable pursuant to the Bill are additional to those which may be available to the event body under other laws, such as the Australian Consumer Law, with respect to misrepresentations or the Trade Marks Act 1995 (Cth), with respect to trade mark infringement. The Bill also operates alongside certain State legislation; for example, with respect to the Commonwealth Games, the Bill operates in tandem with the Commonwealth Games Arrangements Act 2011 (Qld) (Queensland Act).

Permissible Use

The event body for the major sporting event may authorise other persons to commercially use the Protected Indicia for that major sporting event (Authorised User). With respect to the Commonwealth Games, the Bill recognises authorisations granted to persons under the Queensland Act, which permit the commercial use of Commonwealth Games’ Protected Indicia by such persons.

The Bill also permits Protected Indicia to be used for the ‘primary purpose’ of ‘criticism and review’ and for the dissemination of information via news and current affairs’ platforms.


Persons and businesses need to be aware of what words and images constitute Protected Indicia for the Major Sporting Events. They also need to ensure that they do not use Protected Indicia in any part of their business or marketing strategies, unless authorised to do so. By way of example, except with an authorisation, a restaurateur would not be permitted to develop and provide a “Commonwealth Games lunch” during the period in which the indicia are protected (i.e. any marketing flyers or menus with the words “Commonwealth Games lunch” printed on them would breach the Prohibition).

Persons who breach the Prohibition may be liable to account for profits made, be subject to injunctive orders or liable for any loss which the event body, or an Authorised User, may suffer. A corrective statement remedy may also be sought, whereby the person who breached the Prohibition may be ordered to publish (in a newspaper or on television, for example) a corrective advertisement explaining that there is no association between the person’s use of the Protected Indicia and the major sporting event. Imported goods which breach the Prohibition may be subject to seizure by Australian Customs and potentially be forfeitable to the Commonwealth.

If you would like further information or advice on how the Major Sporting Events Protection Bill may impact on your business operations please contact a member of our Kelly & Co. team.


Luke Dale
Kelly & Co. Lawyers, Adelaide


This article originally appeared on the Kelly & Co. internet site. To view the original article, click here. A search on World Sports Law Report’s internet archive, which contains over ten years’ worth of sports law information, resulted in 108 articles. To sign up for a free trial to World Sports Law Report, click here

Wednesday, May 28, 2014

What the Premier League Clearly Did Not Learn from the Miami Dolphins

I recently wrote about the Miami Dolphins’ swift and effective response to offensive tweets posted by a player in response to the NFL’s draft of its first openly gay player, Michael Sam. Within a week, news of offensive and sexist e-mails written by Richard Scudamore, the Chief Executive of the Premier League, were leaked and the reaction of the League and the FA (Football Association) stands in stark contrast to that of the Miami Dolphins.

In case you didn’t see the reports, e-mails exchanged between Mr. Scudamore and a lawyer colleague included derogatory comments about women, including one woman with whom Mr. Scudamore worked. The e-mails were leaked by Mr. Scudamore’s personal assistant (PA) who said that she felt she had a duty to release them.

Here’s what happened next: the Premier League conducted an investigation, which is a good start, except that the investigation was apparently conducted by the Premier League’s only other board member, the Chairman. He did say that he utilized the services of an external law firm to assist in reviewing all of Mr. Scudamore’s e-mail correspondence and that there was “no evidence of wider discriminatory attitudes or inappropriate language or a general attitude of disrespect to women”.

Based on the investigation, the Premier League issued a statement advising that no further disciplinary action was required or justified in the circumstances. This decision seems troubling when one considers various aspects of the “investigation.” First, reports are that Mr. the Chairman and investigator in this case, Peter McCormick, is a close friend of Mr. Scudamore and that they have gone on shooting trips together. An independent investigation, this was not. Second, the investigation appears to have included discussions with other women in the League, including the woman who was supposedly referenced in some of the offensive e-mails. These women claimed to not have been offended by Mr. Scudamore’s behaviour, which seems a predictable response when the question is posed by the Chairman and friend of the alleged offender. How comfortable would any woman have been sharing true feelings of disrespect to someone holding this position?

It also appears to have been overlooked that, regardless of whether some women were not offended by these remarks, clearly the PA who leaked the e-mails was. There is a dispute as to whether she was required to view these e-mails in the course of her employment. The League claims that she searched them out, unauthorized, from a personal e-mail account, while the PA says that the e-mails were sent to her automatically so that she could organize Mr. Scudamore’s calendar. It does seem clear that the PA had access to these e-mails in the course of her duties, and the e-mails were sent from the Premier League account. Employees have a right not be subjected to offensive conduct or comment in the course of their employment, regardless of whether they were the subject or target of the offensive comments or conduct.

Mr. Scudamore has admitted to sending the e-mails and he did so using the employer’s e-mail system. Under the circumstances, it seems extraordinary that the League employer in this case has not found his behaviour worthy of some censure. What kind of message could the League possibly be hoping to send when a matter involving inappropriate comments made by one of the two most senior people in the organization is responded to by the other most senior person in this manner? It would seem that the Premier League could take a lesson from the Miami Dolphins on this one.

Christine M. Thomlinson
Rubin Thomlinson, Toronto

This article originally appeared on the Rubin Thomlinson blog. You can access the original by clicking here.

What Employers Can Learn from the Miami Dolphins

Michael Sam recently became the first openly gay player to be drafted by the National Football League. The University of Missouri defensive end was drafted by the St. Louis Rams in the final round and, in an obviously emotional moment (televised by ESPN) turned to his boyfriend and gave him a kiss. If you’ve seen the ESPN video, then you know that the kiss was hardly more than a peck and yet it prompted some negative reaction, probably the most notable of which was from Miami Dolphins defensive back Don Jones who tweeted, “horrible” and “OMG”.

Jones later deleted the tweets but he was fined an undisclosed amount and suspended from the team to attend sensitivity training in respect of his comments. Miami Dolphins Coach, Joe Philbin, said in a statement:

“We were disappointed to read Don’s tweets during the NFL Draft. They were inappropriate and unacceptable, and we regret the negative impact these comments had on such an important weekend for the NFL. We met with Don…about respect, discrimination and judgment. These comments are not consistent with the values and standards of our program. We will continue to emphasize and educate our players that these statements will not be tolerated.”

Now you may recall that, just two months ago, a report was released following an investigation into allegations of bullying amongst Miami Dolphins players. So, inasmuch as I’m sure the Miami Dolphins organization was not happy with the negative attention surrounding Jones’ comments above, especially following so soon after the bullying scandal, what is important to note here is the organization’s response. Jones was summoned to a meeting almost immediately after management learned of his comments and he has been punished (fined) and also ordered to attend training, presumably designed to ensure that if he is to continue playing for this organization, he understands the expected standards of behaviour.


Christine M. Thomlinson
Rubin Thomlinson, Toronto

This article originally appeared on the Rubin Thomlinson blog. You can view the original by clicking here

Wednesday, May 21, 2014

European Commission defers Striani complaint to Brussels court

This article has been moved to the main News Section of World Sports Law Report's internet site. To view this article, click here.

Tuesday, May 20, 2014

Scudamore - should he stay or should he go?

There is a depressing familiarity about the revelation that the Premier League’s Chief Executive, Richard Scudamore, has been involved in exchanging sexist and offensive emails with colleagues and a lawyer friend. After all, this is the game which allows a director of football to go unpunished for suggesting that a female lineswoman should “go and pose for Playboy” and has welcomed Messrs Keys and Gray back into the punditry fold, despite their boorish attitudes towards female colleagues and women in general.  In a week in which a report by the Women's Sport and Fitness Foundation has shown a continuing lack of proper female representation in the top tiers of sports administration, it appears that male chauvinism in football is alive and kicking.

Both the Premier League and the FA have confirmed that they are not intending to take any action over the emails and, despite widespread protests from a range of public figures and bodies, the consensus appears to be that Mr Scudamore is simply too powerful to be forced out.  The Premier League has enjoyed extraordinary commercial success under Mr Scudamore’s stewardship and so the desire to preserve this seems likely to win out over moral arguments in favour of him being disciplined. Indeed parallels can be drawn to Bernie Ecclestone’s tenure at the helm of Formula 1 despite his continuing legal battles regarding alleged bribery and judicial comment, which branded him an unreliable witness. Nonetheless, the Premier League’s inaction also exposes it to potentially legal liabilities, which should be factored into its decision-making.

Mr Scudamore has accepted that he sent and received the emails, which included crude slang references to women, ‘jokes’ about female irrationality and suggestive comments about a female colleague. Under UK law, “sexual harassment” occurs where one employee subjects another to “unwanted behaviour which is of a sexual nature and which has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. On the face of it, the emails therefore fall squarely within this definition.

Mr Scudamore’s defence is that the emails were sent and received from a “private and confidential email address” and that the temporary PA who leaked them should not have accessed them. However, the PA claims that his emails were sent to her automatically so that she could organise his diary, a claim which Mr Scudamore has not denied. Unless the PA trawled through Mr Scudamore’s private emails despite clear instructions not to do so, it seems reasonable to conclude that she was exposed to these emails whilst using the Premier League’s IT systems in the proper course of her duties, and that she was subjected to sexual harassment as a result. 

It is apparent that Mr Scudamore did not intend these emails to be read by his PA. However, the law is interested in the effect of a harasser’s conduct, as well as its purpose. There is a ‘get out’ where it is not reasonable for the conduct to have the effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (for example, if a victim is overly sensitive or goes out of their way to be offended). However, given the language and attitudes expressed in the emails, it is difficult to see this being applicable in this case. In circumstances where the effect of the emails seems clear and reasonable, Mr Scudamore’s lack of intention is irrelevant in law.

If Mr Scudamore’s conduct does constitute sexual harassment, the next question to consider is the extent to which the Premier League is vicariously liable for his actions as his employer. This will depend on a variety of factors, including whether the conduct took place during the course of his employment or in a personal capacity. Mr Scudamore claims that the emails were private. However, he appears to have used the Premier League’s IT systems to send, receive, view and/or store the emails, and at least one of them made reference to one of his female colleagues. This suggests a sufficiently close connection between the emails and his employment that his employer will struggle to avoid liability for his actions.

The Premier League could also try to avoid liability by demonstrating its commitment to combating discriminatory practices in the workplace. This would include, for example, showing that it operates an up-to-date equal opportunities policy and provides anti-discrimination training to staff, including Mr Scudamore. However, as Mr Scudamore is the most senior member of the organisation and one of only two members of the ‘Board’ responsible for ensuring that its policies are upheld, there are also likely to be significant challenges with this defence.

It remains to be seen whether the individual involved in bringing these emails to light chooses to bring legal proceedings against Mr Scudamore and the Premier League. However, the legal remedies available do not make it particularly attractive for her to do so.

She would theoretically be in line for uncapped compensation but this would largely depend on what losses, if any, she suffered as a result of the conduct. In circumstances where she was only engaged on a temporary basis, these losses are likely to be limited. She might also be entitled to an injury to feelings award, but this is not likely to exceed more than a few thousand pounds. A further remedy would be to ask the Employment Tribunal considering these matters to issue a recommendation for the Premier League to take steps to eliminate or reduce the effects of discrimination on its employees. The scope and framing of such a recommendation would be very interesting (could it, for example, consider the gender breakdown of senior staff?). However, the Tribunals have tended to make scant use of their discretion in this respect and the government is, in any event, proposing to remove this power.

In the circumstances, the PA may feel that her purpose has been served by leaking the emails to the papers, which have presumably compensated her appropriately whilst also allowing her to preserve her anonymity. Given the demonisation that those who have taken on the football authorities in the past have had to endure, frankly, who could blame her? However, at a time when the NBA is demonstrating its commitment to eradicating discrimination in sport by banning LA Clippers owner, Donald Sterling, for life for making racist comments, it is unfortunate that the English football authorities have not so far seen fit to take a similarly strong stance. Whilst they may be able to ride the storm on this occasion, it seems unlikely that behaviours will change unless decisive action is taken by (and, if necessary, against) those at the very top of the sport. Until this is done, it seems only a matter of time until the next sexism scandal rears its ugly head in the beautiful game. 

James Williams
Hill Dickinson

This article originally featured on the Hill Dickinson blog. You can access the original by clicking here.

Monday, May 19, 2014

Fantasy Sports Contests: Avoiding Civil and Criminal Liability

The Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) prohibits any person engaged in the business of betting or wagering from knowingly accepting payments in connection with the participation by another person in unlawful Internet gambling.   Violation of this statute may result in criminal penalties, including monetary fines and imprisonment for up to five (5) years.  UIGEA has a well known ‘carve out’ for fantasy sports contests.  It is critical to note, however, that the carve out is fairly specific in its scope.  In addition, even if your business falls within the scope of the UIGEA fantasy sports exemption, you must still be mindful that some state laws do not permit fantasy sports contests within their borders.

Federal Fantasy Sports Liability Issues

As set forth above, UIGEA carries the potential for criminal penalties, including fines and/or imprisonment.   In light of this, and because there is currently much discussion and some uncertainty surrounding issues related to the duration of fantasy sports contests played for money, it is imperative to, at the very least, adhere to the basic rules that are clearly delineated in UIGEA.

First, for a fantasy sports contest to be legal under federal law, the outcome of the contest must be determined by the statistics generated by multiple athletes (on different teams) participating in multiple real-world sporting events. Accordingly, at a minimum, fantasy sports contests should require contestants to assemble a roster consisting of several athletes from more than one team and participating in more than one game.

Second, the prizes offered to the winners must be preset and not influenced by the amount of fees paid by the contestants, or the number of contestants in any given fantasy contest.  While it might be tempting as an operator of a pay-for-play fantasy sports contest to treat the purse for each contest like a lottery pool – the more players that enter, the greater the prize – such a scenario would be in violation of applicable law.  Instead, fantasy sports contest operators must set a prize amount prior to the commencement of the particular contest, and not modify that amount based on the number of entrants participating in the fantasy contest or the amount paid in entry fees.

State-Specific Fantasy Sports Liability Issues

On the state level, the legality of fantasy sports games that are played for money in many respects remains unclear and state laws and interpretations thereof are in a regular state of flux.  Some states have specifically legalized fantasy sports (e.g., Maryland, where the statute follows the UIGEA exception) or are considering draft legislation.   Other state laws appear to allow for fantasy sports contests, and then there are a small number of states that have statutes which seem to prohibit fantasy sports altogether (e.g. in Arizona, where operators of fantasy sports contests may face felony charges).  Bear in mind that, even if a given state permits fantasy sports contests, the state’s attorney general’s office may still commence an investigation and prosecute if the subject contest is otherwise violative of state deceptive advertising laws.  Finally, it is important to note that each state attorney general is authorized to enjoin certain violations of UIGEA.

Private Fantasy Sports Litigation

Be aware of the fact that private litigants may seek to take action against fantasy sports contest operators as well.  For example, a handful of Qui Tam actions have been filed in which a private individual sues on behalf of the state for alleged violations of state anti-gambling statutes.  There is also the potential that private suits and/or class actions may be brought based upon alleged violations of consumer protection and/or state marketing statutes.

Notwithstanding the foregoing warnings, remember that the fantasy sports arena is a rapidly growing industry that, if approached with caution and careful legal analysis, can result in a very lucrative business pursuit. This blog post only touches on a few of the relevant legal issues involved in the fantasy sports arena.  If you plan on engaging in, or operating, a fantasy sports venture, be sure to retain competent legal counsel to help you design the associated contests in a way that comports with applicable law, and best protects you and your business.

David O. Klein
Managing Partner
Klein Moynihan Turco LLP, New York

This article originally appeared on the Klein Moynihan Turco LLP blog. You can access the original by clicking here. A search for ‘fantasy sports’ on the World Sports Law Report internet site returned four articles. To sign up for a free trial to World Sports Law Report, click here

Monday, May 12, 2014

Australia: Legislating against ambush marketing

A Bill that increases protection against ambush marketers, who try to get a free ride by piggybacking off major sporting events, is welcome news for event organisers and sponsors. The Major Sporting Events (Indicia and Images) Protection Bill 2014 was introduced into Federal Parliament on 26 March 2014. The legislation specifically protects next year’s AFC Asian Cup, the ICC Cricket World Cup 2015, and the 2018 Gold Coast Commonwealth Games.

This new event-specific ambush marketing legislation increases protection of the commercial rights and marketing efforts of event owners and sponsors by legislating against unauthorised commercial use of certain event indicia (text and other distinguishing marks) and images. This bolsters support currently provided to rights owners and their licensees by the Trade Marks Act 1995 and the Australian Consumer Law. The Major Sporting Events (Indicia and Images) Protection Bill 2014 follows on from the Olympic Insignia Protection Act 1987 and other event specific legislation created for the Australian Grand Prix, Sydney Olympics and Melbourne Commonwealth Games.

Ambush marketing

Local organising committees, who own events and the related event intellectual property and commercial rights, rely on sponsorship to provide essential revenue for staging events. Businesses that do not sponsor the events may seek to capitalise on the event by using event indicia or images in order to associate themselves (sometimes subtly) with the event.  This is known as ‘ambush marketing’.  

While ambush marketing may comprise advertising or marketing that is clearly misleading and would be unlawful under existing legislation, ambush marketers are often more savvy than this.  A business may seek to associate itself with an event but stop short of representing that it is an official sponsor; that is, it misappropriates for itself the benefit of the reputation (and feel good factor) of the event but does not misrepresent an association with it.  This in itself may not be in breach of the Australian Consumer Law, and it also may not involve the use of a registered trade mark associated with the event. 

Benefits to sponsors

The new ambush marketing legislation will provide an added level of comfort to official sponsors who believe existing legislative mechanisms are inadequate and do not prevent freeloading businesses diluting genuine sponsor marketing efforts.

As mentioned, consumer law does not cover all the issues. There are also certain types of event indicia – like common words, titles and short expressions – that are not covered by the Trade Marks Act 1995. This new legislation will prevent or minimise broader forms of ambush marketing by going beyond the normal prohibitions against trade mark infringement and misleading or deceptive conduct. 

The key features of the Bill include:

• Prevention of the unauthorised commercial use of protected indicia and images.

• Protection of the use of agreed words and phrases, and variants of event names and known abbreviations, associated with each event.

• The establishment of a registration process and the creation of an online register containing details about authorisations to use indicia and images for each event. 

• Provision of a range of remedies including injunctions, damages, corrective advertisement and the seizure of goods.

• Exceptions allowing for the continued operation of rights and liabilities under the Trade Marks Act 1995, Designs Act 2003, Copyright Act 1968 and the Competition and Consumer Act 2010 (Australian Consumer Law). 

The Bill contains a list of protected indicia that may only be used by authorised users (i.e. official sponsors) during specified periods of time around each sporting event.  For example, protected indicia for the ICC Cricket World Cup 2015 include the phrases, “Cricket World Cup” and “CWC 2015”. 

The Bill also contains two lists of expressions that are protected when a phrase from one list is combined with a phrase from the other list.  For example, one list contains phrases that are similar or identical to terms on the protected indicia table like “Cricket World Cup”, while the other list contains general terms like “caterer” and “merchandise”.

Event owners will have an expanded range of legal remedies to protect their intellectual property. This includes the ability to enforce their rights by threatening or taking legal action under event-specific legislation. This means improved security for sponsorship revenue, and a more attractive investment for sponsors.  This is good news for these upcoming world class sporting fixtures.  


David Yates Partner
Mark Hyde Associate
Corrs Chambers Westgarth, Perth


This article originally appeared on the Corrs Chambers Westgarth internet site. You can access the original by clicking here.


A search on World Sports Law Report’s internet site revealed 40 articles on ambush marketing. To sign up for a free trial to World Sports Law Report, click here.

Friday, May 02, 2014

Is football finally becoming a 21st century employer?

When rumours first surfaced that David Moyes was to be relieved of his duties by Manchester United, it seemed that his team’s lacklustre performance in the 2-0 defeat to his old club Everton FC was the straw that broke the camel’s back. However, it seems that there may have been a bit more to the timing than simply the events at Goodison Park. The result guaranteed that Manchester United would not be participating in the Champions League next season (for the first time in 19 years). It has since been widely reported that this failure meant that the manager’s six year contract could be terminated with immediate effect, with a pay-off of no more than 12 months’ remuneration, despite still having more than five years to run.

Moyes was reported to be earning £4.5 million a year under his contract with Manchester United, so even though he is only getting one year’s worth of compensation he is not doing too badly out of the deal. However, in the crazy world of football contracts and finances, such performance-related caps on severance remain relatively rare. There are plenty of examples, both past and present, of players being signed up on long and lucrative deals only for the expected levels of performance to fail to materialise. Clubs are then lumbered with paying out huge salaries season after season, with little chance of offloading the underperforming player unless they agree to pay the player off or loan them out and continue paying a hefty chunk of their inflated salary.

Managers are also awarded long contracts but, when they fail to perform, it is not an option to force them to train with the reserves or loan them out. A club wanting to part ways with its manager is therefore usually left with no option but to bite the bullet and pay out the remainder of his contract, or at least a substantial part of it. Even when such payments are paid out in instalments, there is little incentive for managers to mitigate their losses by rushing to find another job - as the FA discovered to its cost after terminating Sven Goran Eriksson’s contract as England manager. Chelsea are famously said to have paid out almost £50 million to the managers they have sacked over the last 10 years, many of whom have subsequently gone on to take well-paid jobs with other large clubs.

No other business would ever allow itself to be put in this position. In the real (i.e. not football) world, senior employees are rarely given fixed terms or notice periods of more than 12 months, which is in line with corporate governance guidelines that advise against it. We are constantly told that football is a special case and different from other businesses, not least because playing careers are short and managerial tenures are notoriously insecure. For so long as TV companies are willing to pay exorbitant broadcast fees, it is accepted that the best talent will demand their share. Add in the market-distorting antics of new entrants, rich with oil or commodity wealth, there is a case to say that some of football’s challenges may be unique. However, many of the same points can be made about individuals working in other areas of business, where these challenges are nevertheless managed through the use of properly considered and drafted employment contracts.

For example, specialist and highly paid employees in the financial services sector, such as traders and fund managers, are often critical to the fortunes of their employer and therefore generally enjoy a large slice of the profits they generate as a reward (up to 50% in some cases). They also typically have fairly short careers, often retiring in their late 30s/early 40s due to burn-out (and the fact that they have accumulated substantial wealth and never need work again). In short, they are pretty similar to professional footballers and managers in a number of material respects.

Such employees are sometimes engaged on fixed term contracts of more than 12 months. However, these invariably contain clauses allowing for early termination in the event of poor performance, sometimes coupled with a right to reduce remuneration if particular targets are not met. This ensures that both employer and employee are able to benefit when things go well but, crucially, also ensures that the employee bears his or her share of the pain when they go sour.

In addition to such performance-related incentives and disincentives, the contracts of such employees typically contain restrictions on their activities after their employment ends. Such examples being: restrictions preventing the employee from targeting or interfering with their ex-employer’s clients, suppliers or key staff for a period of time (usually 6 to 12 months) and/or a restriction on working for a competitor for a similar period. Even when such restrictions are not enforced (or are, perhaps, unenforceable), they can create a strong negotiating position from which the employer can secure a sensible severance outcome.

Engaging football players on contracts of this sort would be complicated, first by the registration system, but secondly by the fact that clubs usually treat their players’ registrations as intangible assets and account for them accordingly. However, no such concerns relate to managers and there is no reason why more managers should not be subject to ‘ejector seat’ clauses that limit their pay-outs in the event of unacceptable levels of performance. Perhaps, in his departure, David Moyes has contributed to the development of football in a way his team was unable to achieve on the pitch.

James Williams
Louise Millington-Roberts
Hill Dickinson, London

This article originally appeared on the Hill Dickinson internet site. You can view the original by clicking here. A search on World Sports Law Report’s internet site for ‘manager contracts’ revealed seven articles. To sign up for a free trial to World Sports Law Report, click here.

Wednesday, April 30, 2014

Belgium national football team denied protection of image rights

From June 12 to July 13 2014, all football-loving eyes will be directed towards the World Cup in Brazil. This will definitely be the case in Belgium, as its national team, the Red Devils, last qualified for the World Cup in 2002. Support for the Red Devils in Belgium is immense and grew significantly during the qualification rounds. More than 20,000 supporters attended the first Red Devils Fan Day on June 2 2013 and the Royal Belgian Football Association (RBFA) – the Belgian governing body for football – received so many offers to sponsor the team that it had to turn some of them down.

The tremendous (commercial) success of the Red Devils has not gone unnoticed. The qualification rounds received heavy press coverage and this is expected to increase once the World Cup starts. Some organisations may try to cash in on the team's success.

A recent case came before the Belgian courts in which the RBFA claimed that a book cover photograph infringed the Red Devils' image rights. The dispute arose from the first publication of the book "Football Annual 2012-2013" by a Belgian publisher with the cover below.

About 80% of the cover comprised a picture of six of the Red Devils (including Vincent Kompany, Kevin De Bruyne and Kevin Mirallas) celebrating after their team scored a goal during a World Cup qualification match. The back cover included text describing the book as a summary of the previous football season, covering both the Belgian and international league, as well as the national team. The book also contained interviews with some of the Red Devils depicted in the cover photograph.

In Belgium, the RBFA is competent to enforce the individual and collective personality rights of the players in their capacity as members of the Red Devils. The RBFA had already signed an agreement with another publisher, which had published The Official Red Devils Book and was authorised to use a similar cover photograph. The RBFA thus claimed that the unauthorised publisher's publication of Football Annual 2012-13 jeopardised its relationship with the authorised publisher (as well as with any future partners). When the unauthorised publisher failed to reply to the RBFA's formal written notice, the RBFA initiated expedited proceedings for infringement of the players' image rights and requested a court order to have all copies of the annual withdrawn from sale and its cover replaced.

Right to privacy

The question of whether the unauthorised publisher could use the contested photograph on the cover of the football annual was answered in the affirmative by both the president of the Brussels Court of First Instance1 and the Brussels Court of Appeal2.

Image rights are personality rights that an individual has over his or her own image and which protect individuals from taking and publishing photographs without their consent. However, these rights are restricted by the right to freedom of expression and the freedom of the press, as laid down in Article 10 of the European Convention on Human Rights, Article 19 of the International Covenant on Civil and Political Rights and Articles 19 and 25 of the Belgian Constitution. This restriction unequivocally applies to public figures, who are:

"persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain3."

The use of images of public figures without their prior consent is subject to two conditions:

• The image is used for information purposes only.

• The public figure's right to privacy is not infringed.

The courts in both instances confirmed that these principles applied to this case. The courts held that the players' right to privacy had not been infringed, because the photo had been taken during an official game of the Red Devils – that is, during a public sporting event, through which the players in question had become well-known public figures. However, the discussion focused on whether the first condition had been breached.

Commercial purpose

The RBFA claimed that the photo had not been used solely for information purposes, but was rather a blatant attempt to free-ride on the success of the Red Devils, in particular because it was the largest feature on the cover and thus served as an eye-catcher for potential buyers. This constituted a commercial purpose and the publisher therefore should have obtained prior consent from the RBFA.

Both courts disagreed with this claim, agreeing with the annual's publisher that the photo could be freely used, as it had been used purely for information purposes. In the courts' view, the annual clearly aimed to inform readers about the Belgian league and international teams in the 2012/2013 season. The qualification of the Red Devils for the World Cup finals was an inevitable and important part of the past season, as confirmed by the heavy press coverage. The fact that the annual was not written by a journalist, was not presented in a newspaper or magazine and was more expensive than a newspaper or magazine did not alter this conclusion. The court of appeal believed that the photo had a direct relationship with the content of the book, and that it had its own value as information, regardless of the fact that the publisher had profited from publication of the annual. The RBFA's claim based on the personality rights of the players was therefore dismissed as unfounded.


The RBFA's attempt to protect its players' interests and IP rights4 thus failed. With the World Cup finals approaching, it is likely that other companies will also try to use images of or references to the Red Devils. The Belgian press recently reported on the publication of a comic book telling the history of the Red Devils in World Cup competitions since 1930, as well as the launch of a champagne named 'Les Diables Rouges' ('Red Devils' in French) by a French wine house. It remains to be seen whether the RBFA will be able to stop these companies (in or outside the court).


Sarah Van Nevel
Philippe de Jong
ALTIUS, Brussels

1. President of the Brussels Court of First Instance (expedited proceedings), September 26 2013, 13/1268/C, available at

2. Brussels Court of Appeal (expedited proceedings), November 12 2013, 2013/KR/234, available at

3. Resolution 1165, Right to privacy, Parliamentary Assembly, European Council, June 26 1998, nr 7.

4. For example, RED DEVILS is registered as a Benelux and international trademark.


This article originally appeared on the International Law Office internet site. You can access the original by clicking here. To take out a free trial to World Sports Law Report, click here.

NLRB Region 13 Rules Northwestern University's Football Players Can Unionize

In a case of first impression, Region 13 of the National Labor Relations Board (NLRB) determined that football players who are on scholarship at Northwestern University are “employees” of the school and eligible to vote whether they want to be represented by the Collegiate Athletes Players Association (CAPA), an entity financed by the United Steelworkers (USW) union.

According to the decision, “players receiving scholarships to perform football-related services for the Employer [Northwestern] under a contract for hire [athletic scholarships] in return for compensation [tuition, room & board, and stipends] are subject to the Employer’s control [team rules] and are therefore employees within the meaning of the Act.”

Region 13 determined that athletic scholarships are an employment contract for compensation since they cover a football player’s tuition, fees, room, board, and books for up to five years. In fact, the value of football scholarships at Northwestern is roughly $76,000 per year resulting in a total compensation package in excess of one quarter of a million dollars throughout the four or five years they perform football duties.

Walk-on football players do not meet the NLRB’s definition of employees because they do not receive a scholarship or compensation for their time devoted to the Northwestern football program and thus are not eligible to vote in the upcoming union election.

Northwestern University as the “employer” has the right to request a review of this decision by the full National Labor Relations Board in Washington, D.C. It is expected that the school will seek such review, though the full NLRB will likely rubber stamp Region 13’s conclusion. From that, Northwestern can appeal the matter to a Federal Circuit Court where a different outcome may occur.

This decision raises more questions than it answers.

Northwestern is a private university, and this decision, if it stands, likely governs other private universities regardless of sport or division. Football players – or any athletes – at public universities would have to abide by their own state’s collective bargaining laws and may not meet their individual state’s definitions of “employee.” For example, Northwestern football players may have federal collective bargaining rights under the National Labor Relations Act, but football players for The Ohio State University may not have collective bargaining rights because they may not be “employees” under State Employment Relations Board doctrine.

Although other areas of employment law have different standards of what constitutes an “employee,” most standards are very similar resulting in the following questions being further raised by this decision:

• Are Northwestern football players who are on scholarship entitled to overtime pay for all hours worked in excess of 40 hours each week? According to testimony in the NLRB case, players spent 50-60 hours per week devoted to football during training camp and upwards of 25 hours over a two-day period traveling to and from away games, attending practices and meetings, and competing in those games.

• How does the determination that football scholarships are “compensation” impact a student-athlete’s eligibility? Specifically, the NCAA prohibits student-athletes from receiving compensation for just about everything and suspends players from games and schools from bowl games and future scholarships for breaking this rule.

• Are Northwestern scholarship football players now eligible for workers compensation benefits for injuries sustained while engaging in football-related endeavors?

• Will the Board ultimately expand this issue from student-athletes who receive scholarships to students who receive scholarships related to the arts and sciences? For example, does a student who receives a scholarship requiring her to major in music become an “employee” since the scholarship requires her to take music classes like the football player is required to practice and play football?

Since this issue has severe ramifications to every college and university that offers scholarships of any kind to its students, look for updates from the attorneys at Roetzel & Andress as new developments happen.


Matt Austin
Roetzel & Andress, Columbus, Ohio

This article was originally published on the Roetzel & Andress Employment Services Alert. You can access the original by clicking here. To take out a free trial to World Sports Law Report, click here.


Tuesday, April 29, 2014

Decisions of the CAS ad hoc Division at Sochi 2014

This article summarises the four decisions of the Court of Arbitration for Sports ad hoc Division at the Sochi 2014 Winter Olympics. This article was originally published in the Australia and New Zealand Sports Law Association (ANZSLA) Commentator.

The CAS ad hoc Division

The Court of Arbitration for Sport (CAS) has operated an ad hoc tribunal at each Olympic Games since 1996.

The purpose of the CAS ad hoc Division is to resolve, in an expedited manner, legal disputes which arise during the Olympic Games (and during the 10 day period leading up to the Opening Ceremony).  A temporary office is established in the relevant host city to facilitate the CAS ad hoc Division.

At the recent Sochi 2014 Winter Olympics, the CAS ad hoc Division heard four cases, all involving skiers.

Case summaries

A summary of the cases considered by the 2014 CAS ad hoc Division is provided below.

Clyde Getty v. International Ski Federation1

Clyde Getty claimed that he was eligible to compete at the Sochi 2014 Winter Olympics in the men’s aerials competition after the International Ski Federation (FIS) originally allocated a quota place to the Argentinian NOC. Less than 12 hours later (and after Mr Getty had been informed of the quota place) the FIS withdrew the allocated place on the basis that it was erroneously attributed because no Argentinian athlete was eligible to participate in the event.

The CAS Panel found that the wording in the provisions of the Freestyle Skiing Qualification System was clear and unambiguously required a competitor to meet the individual eligibility requirements to be eligible to compete at the Olympic Games. This included a requirement that the individual have a minimum of 80 FIS points at the end of the qualification period. Mr Getty had not obtained 80 FIS points by the end of the qualification period, therefore the Panel held he was not eligible to compete, even if the Argentinian NOC had been allocated a quota place.

The CAS Panel noted that FIS qualification requirements were supported by Rule 44.5 of the Olympic Rules which provides that ‘the NOCs shall send to the Olympic Games only those competitors adequately prepared for high level international competition’. Mr Getty was unable to point to any instance in the past where an athlete was allowed to compete at the Olympic Games without meeting the eligibility requirements.

The CAS Panel also rejected Mr Getty’s other arguments, including his claim that he should be allowed to compete because, amongst other things, it would be in the spirit of the Olympic movement, Mr Getty was the only male freestyle skier representing South America, Mr Getty had shown dedication to the sport and was popular amongst the freestyle skiing community were matters of policy for the FIS to consider and not questions of law for the Panel to consider when asked to apply the existing rules.

Daniela Bauer v. Austrian Olympic Committee & Austrian Ski Federation2

Daniela Bauer filed an application against the Austrian Olympic Committee (AOC) and Austrian Ski Federation (ASF) seeking an order she be selected in the Austrian Olympic team to compete in the women’s freestyle ski halfpipe.

Unlike Mr Getty, Ms Bauer had met the minimum FIS qualification requirements so was prima facie eligible to compete, subject to selection by the AOC. The AOC however, on recommendation of the ASF, declined a quota place for a female halfpipe freestyle skier which had been offered to it by the FIS and could be filled by Ms Bauer. Ms Bauer asserted she had previously been given the impression that because she had met the minimum FIS qualification standards she would be selected through the use of the quota places. The ASF however decided not to recommend her for selection because they thought her performance, results and technical skill level were not sufficient to allow her to achieve a positive result at the Olympics, notwithstanding she had met the minimum qualification standards.

The CAS Panel found that under the ASF’s regulations the ASF had a significant degree of subjective discretion in making recommendations which did not contain any qualification rules (i.e. there were no objective criteria which would qualify a freestyle skier for the Austrian Olympic team if those criteria were satisfied). The CAS Panel held that the ASF did not exercise this discretion in an arbitrary, unfair or unreasonable manner because it had a legitimate sports performance justification for not recommending that the AOC nominate Ms Bauer for an allocation quota in women’s halfpipe. In coming to this conclusion the CAS Panel held that the ASF did not discriminate on grounds of race, religion, politics, gender or otherwise as against Fundamental Principle of Olympism 6 of the Olympic Charter.

The CAS Panel did however make it clear that it did not condone the lack of published qualification criteria and strongly recommend that the ASF establish, identify and publish clear criteria to enable athletes to determine the qualification standards they are required to meet to be recommended for selection by the AOC.

Maria Belen Simari Birkner v. Comité Olímpico Agentino & Federación Argentia de Ski y Andinismo3

Maria Belen Simari Birkner filed an application against the Argentinian Ski Federation (FASA) and the Argentinian NOC against her non selection in the Slalom, Super G and Giant Slalom events. Ms Simari Birkner’s application alleged she had been discriminated against on a number of bases, including her family affiliation which she described as ‘a legendary family … that has dominated Argentinian Alpine Skiing for over 30 years’.

The CAS Panel, which included Justice Annabelle Bennett from Australia, decided that the CAS Panel did not have jurisdiction to hear the case as the dispute fell before the date when the jurisdiction of the CAS Panel became effective (i.e. 10 days before the Opening Ceremony). In doing so the Panel held that the dispute arose when Ms Simari Birkner was notified of her non-selection and not, as had been held in the Schuler case4,  when Ms Simari Birkner had decided to appeal and filed her notice of appeal. The Panel felt that following the decision in the Schuler case would extend the jurisdiction of the CAS Panel outside the precise and limited frameworks set by the CAS ad hoc Rules.

Nevertheless, the Panel considered the merits of the matter and concluded that the Ms Simari Birkner’s claims on the merits would have failed even if the CAS Panel did have jurisdiction as Ms Simari Birkner had not established that the decision not to select her was discriminatory. Ms Simari Birkner raised a number of matters which she thought showed her non selection had been tainted by bias, including bias against her family, bias in establishment of, and non selection in, the National Team and bias in that she was not informed of the selection criteria whereas others were.

The Panel found that there was no evidence to support any of the claims of bias. In particular, the Panel noted that: 

bias against her family was hard to make out given two of her siblings and a cousin were in the Argentinian team, with her brother being given the honour of carrying the flag at the Opening Ceremony. Her parents were also both selected as coaches and were present at the Olympics;

there was no evidence that the National Team had been formed to ‘break’ her family’s dominance in Argentinian skiing and an inference was open that it was established for the future of skiing in Argentina.  In any event there was a suggestion that her family were not interested in selection in the National Team. Some members of the National Team were not selected for the Olympics, in favour of the Ms Simari Birkner’s siblings;

the selection criteria were not deliberately chosen to discriminate against Ms Simari Birkner and while it was unfortunate that her international results (as opposed to domestic) did not count for selection, the criteria (including consideration of ‘the evolution and projection in the future’) was not applied in an arbitrary or unreasonable manner; and

it appears that none of the skiers or their coaches, and not just Ms Simari Birkner, were notified of the selection criteria in advance.

Although finding there to be no discrimination or bias, the Panel did endorse the statements in the Bauer case to the effect that clear selection criteria should be established, identified and published in a timely manner so that athletes can understand those criteria and the qualification standards they are required to meet.

Alpine Canada Alpin, Canadian Olympic Committee & National Olympic Committee of Slovenia v. FIS & IOC5

The Alpine Canada Alpin and the Canadian Olympic Committee and the Slovenian Olympic Committee filed two applications regarding a decision of the Competition Jury of the FIS. The decision related to protests filed by the appellants regarding the actions of the French team in the Men’s Ski Cross competition where the French ultimately swept the gold, silver and bronze medals.

Under Article 4511.4 of the FIS Competition Rules (ICR) which regulates ski suits ‘[f]astening devices … [of any method] shall not be used to tighten the suit material closer to the body or prevent the natural fall of the clothing’. The applicants claimed that the French competitors should be disqualified because the French support staff tampered with the suits of the French riders to create a ‘fairing’ around the lower leg which provided an aerodynamic effect in contravention of the ICR. The ‘fairing’ involved a change to the lower leg of the ski suit by pulling the fabric of the suit tight around the front lower leg and shaping it in a sharp crease along the back. 

The application was rejected on the basis that the Competition Jury of the FIS had been correct in determining that the protests had been filed late. Articles 3050.1 and 3050.2 of the ICR provided that ‘[n]o Protest shall be considered by the Jury unless’ a written protest is made ‘to a Jury member within 15 minutes of the completion of the last competition run of that phase of competition’.

The applicants admitted their protests were filed out of time but submitted that it was a fundamental breach of natural justice for their late protests not to be considered because the 15 minute time period did not give them enough time to attend to the athletes who had competed, gather sufficient evidence to realise that a formal protest should be raised and then actually provide notice. However, the CAS Panel noted that to lodge a protest under the ICR all that is required is the ‘reason for protest’ and not substantial evidence or proof that the violation occurred. The Panel found that, within an hour and half of the competition (if not sooner) the applicants had sufficient reason to submit a protest (it had been agreed that the Canadian coach had suspicions about the garment prior to the final). As such, there was no reason for a delay in more than six hours for the lodging of their protest.

Although the CAS Panel did not explicitly say so, it appears that the CAS Panel left open the possibility that had the protest only been filed a few minutes after the 15 minute deadline it may have considered the merits of the appeal. The CAS Panel did however note that:

‘the natural expectation of athletes, sporting governing bodies, spectators, and the public [is] that competition results are final unless promptly and properly protested within a reasonable amount of time after the competition ends.’ 

As such, it was for the FIS rather than the CAS Panel to change the rules governing protests.


The cases heard by the CAS Panel at the 2014 Winter Olympics reinforce the following principles: 

• while it is preferable for there to be objective qualifying criteria for athlete selection, if the criteria are based on subjective matters the relevant National Sporting Organisation (NOS) or National Olympic Committee (NOC) will have a large degree of discretion;

• it is preferable for the relevant NOS or NOC to establish, identify and publish clear criteria to enable athletes to determine the qualification standards they are required to meet to be recommended for selection by their respective NOS or NOC;

• if an athlete or country wishes to lodge a protest regarding the result of a competition, such protest must be lodged strictly within any relevant time limits provided in the competition rules; and

• where time limits to lodge a protest are relatively short, protests should be lodged as soon as the applicant has identified a ‘reason for protest’ rather than waiting to gather all relevant evidence to make their case. 


Martin Ross Partner

Sally Scott Partner

Mark Lebbon Lawyer

Hall & Wilcox, Melbourne


1. Clyde Getty v International Ski Federation CAS OG 14/02.

2. Daniela Bauer v Austrian Olympic Committee & Austrian Ski Federation CAS OG 14/01.

3. Maria Belen Simari Birkner v Comité Olímpico Agentino & Federación Argentia de Ski y Andinismo CAS OG 14/03.

4. Andrea Schuler v Swiss Olympic Association & Swiss-Ski CAS OG 06/2002.

5. Alpine Canada Alpin, Canadian Olympic Committee & National Olympic Committee of Slovenia v FIS & IOC CAS OG 14/04-05.


This article was originally published on the Hall & Wilcox internet site. You can access the original by clicking here. A search through World Sports Law Report’s internet archives found 19 articles relating to the CAS ad hoc division. To sign up for a free trial to World Sports Law Report, click here.

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


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


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

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.


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
Edwards Wildman, Washington DC

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