Wednesday, February 11, 2015
Friday, December 19, 2014
Sporting organisations regularly impose fines on players, clubs and other persons within their control1. For example:
• In late October 2014 New South Wales and Cronulla Sharks NRL player Paul Gallen was fined $50,000 ($15,000 of which was later suspended) for sending an abusive comment on social media concerning the NRL. The amount of the fine was significant and some, including the former NRL judiciary chairman, suggested it was excessive and not in proportion to Mr Gallen’s offending behaviour2.
• In November 2014 in the United States, Seattle Seahawks NFL running back Marshawn Lynch was fined US$50,000 (with a further $50,000 imposed from a previous suspended fine) for violating the NFL’s media policy by not speaking to the local media3. Lynch has appealed the fine.
The rules of sporting competitions generally provide sporting organisations with an ability to sanction players, clubs and other persons within their control with monetary sanctions or fines. Fines are used to discipline players and clubs who breach the rules of the sport or the governing body and may cover a variety of events including on-field and off-field conduct, player transfers and drafts, player payment rules and conduct that brings the sport or sporting organisation into disrepute. While the amount of fines imposed by sporting organisations can range from relatively small sums to very large amounts, in many cases the damage suffered by the relevant sporting organisation or by the sport in respect of the breach of the rules is difficult, if not impossible, to quantify.
The penalty doctrine has recently been the focus of judicial consideration in a number of Australian cases. Most recently, Gordon J delivered her judgement in Paciocco v. Australian and New Zealand Banking Group Limited4 (Paciocco), a class action against Australia and New Zealand Banking Group Limited (ANZ) which challenged the validity of a number of different fees charged by the bank. This followed Gordon J’s decision in the original action filed in Andrews v Australian and New Zealand Banking Group5 (Andrews), which was subsequently appealed to the High Court6.
In light of the controversy surrounding Mr Gallen’s fine and recent Australian case law, it is timely to consider whether fines and other sanctions imposed by sporting organisations can be considered void and unenforceable under the penalty doctrine.
The penalty doctrine
The penalty doctrine provides relief to parties against an obligation to make a payment by reason of that party’s breach of a provision in a contract where the payment was out of proportion with the damage suffered by the breach.
Before the High Court delivered its judgement in Andrews, it had generally been accepted that the penalty doctrine only applied when the relevant fee or penalty resulted from a breach of contract. That is, if a fee was linked to some other condition it did not evoke the penalty doctrine.
This concept was summarised by Coleman J in Lordsvale Finance Plc v Bank of Zambia:
• whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaching the contract or to compensate the innocent party for breach7.
On this basis at first instance Gordon J held in Andrews that certain honour, dishonour, non-payment and over limit fees were not charged by ANZ upon breach of contract by the customer (although her Honour did hold that a late payment fee levied by ANZ was payable upon breach of contract and could therefore be characterised as a penalty). Her Honour also found these fees did not represent a fee charged in respect of an obligation or responsibility on the customer to avoid the occurrence of an event.
However, on appeal the High Court unanimously held the penalty doctrine is not confined to breaches of contract. The High Court held that the penalty doctrine can also apply to grant relief from an obligation to make payment which is triggered by the occurrence of a condition which does not amount to a breach of contract. What will be relevant is whether the purpose of the fee is to secure performance of an obligation or whether it is for further services or accommodation. If it is for further services or accommodation, it will not be characterised as a penalty even if the fee is significant. If the fee is payable to secure performance by a party to a contract, it will be enforceable only if it is a genuine pre-estimate of the damage suffered because of that party’s non-performance.
The decision of whether or not the honour, dishonour, non-payment and over limit fees imposed by ANZ were in fact a penalty was reverted back to the Federal Court for decision in Paciocco. Interestingly, the outcome of Paciocco was very similar to the trial decision in Andrews, notwithstanding the comments of the High Court in Andrews in relation to the scope of the penalty doctrine.
Are fines imposed by sporting organisations unenforceable penalties?
Generally speaking sporting organisations impose monetary sanctions or fines as part of disciplinary procedures with the purpose of having a deterrent effect in relation to certain behaviours and ensuring compliance with the rules. This disciplinary action is required to help protect the relevant competition, the players and/or the club/teams and in this sense supports the core objectives of the sporting organisation which often focus upon developing the relevant sport for the benefit of the community at large.
Traditionally the courts have not viewed such disciplinary actions or sanctions as ‘penal’ in nature, rather they have been seen as protective of the community or the welfare and reputation of the relevant organisation.
Indeed, the High Court has described disciplinary actions undertaken by a professional association as ‘entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved’8.
While much of the relevant case law involves disciplinary procedures which are sanctioned by statute and involve professional bodies there is no reason why the same approach would not also be applied to disciplinary actions of sporting organisations.
For example, in Thompson v British Medical Association (NSW Branch)9 a doctor was expelled from the New South Wales branch of the British Medical Association and, much like a sporting organisation, the disciplinary orders were made by a governing body (not sanctioned by any statute) under the Rules of the Association which have their basis in contract law. In that matter the Court observed that:
• The object of the rule is, in their Lordships’ view, not to penalise or impoverish or injure (the plaintiff) … but solely to keep up the discipline and ‘morale’ of the members of the association to protect and promote its interests10.
Consideration of a purported penalty clause, particularly one which involves a financial sanction, also requires consideration of the quantum of the proposed penalty. Courts have historically directed juries to assess the real damages suffered by the plaintiff for the breach of the agreement and permitted the plaintiff to recover that sum11. As a result, where it is impossible to assess the loss that has been suffered the penalty doctrine is unlikely to be engaged. This approach was reinforced by the High Court in Andrews when it stated that:
• the penalty doctrine is not engaged if the prejudice or damage to the interests of the second party by the failure of the primary stipulation is insusceptible of evaluation and assessment in money terms12.
It would be difficult to characterise many of the monetary sanctions or fines in the rules of sporting organisations as being intended to provide for an element of compensation for economic loss or damage which might be sustained by a sporting organisation by any particular breach or infringement of its rules. The object of the rules of sports and sporting organisations are usually protective as opposed to compensatory. Financial sanctions for disciplinary matters are therefore not likely to be regarded as ‘penal’ in nature.
In some circumstances, a breach of a sporting organisations’ rules (particularly involving breaches by clubs of player payment rules or transfer rules) may indeed lead to significant long term damage and economic loss to the sport. However, even if the sanctions were intended to provide some form of compensation, such losses are likely to be impossible to assess.
It is in this context that Mr Gallen would have faced a number of problems had he wished to challenge the fine imposed by the NRL as an unenforceable penalty. Not only could the NRL argue the sanction was designed to protect the image, reputation and integrity of the game, but it would also have been difficult, if not impossible, to determine the economic loss which would be suffered by the NRL as a result of Mr Gallen’s comments on social media. How do you quantify the effect of the comments made by Mr Gallen’s, a senior player who has represented his county, on the NRL’s battle to win the ‘hearts and minds’ of Australian sports fan?
While there are sound grounds that monetary sanctions and fines imposed by a sporting organisation under its rules for disciplinary reasons do not amount to a penalty, there are nonetheless a number of practical things which sporting organisations can do to strengthen their position to avoid confusion and rebut any claim that a financial sanction should be characterised as an unenforceable penalty:
• include provisions in the relevant rules and associated contracts clearly stating that the purpose of the sanctions is to protect the competition, the sport, players, clubs and/or other relevant participants or stakeholders in accordance with the objects of the sporting organisation;
• decision makers should give consideration to proportionality when imposing any fine, particularly where the fine has or may be seen as having an element of compensation; and
• refrain from using the word ‘penalty’ in the relevant rules, instead words such as ‘fine’ or ‘sanction’ are more appropriate.
Hall & Willcox LLP, Sydney
1. For discussion of the class of persons subject to the rules of a sporting organisations, see Commentary - the 'purview tof the rules principle', http://www.hallandwilcox.com.au/news/Pages/Sports-and-Entertainment-Update-230812.aspx’:
2. Peter FitzSimons, ‘NRL had to act over Paul Gallen’s foul tweet’, Sydney Morning Herald (Sydney), 31 October 2014 http://www.smh.com.au/sport/the-fitz-files/nrl-had-to-act-over-paul-gallens-foul-tweet-20141031-11etcl.html
3. Ed Werder, ‘Silence costs Marshawn Lynch $100k’ ESPN, 20 November 2014 (online) http://espn.go.com/nfl/story/_/id/11904067/nfl-takes-100k-seattle-seahawks-marshawn-lynch-media-silence?src=mobile
4.  FCA 52 (‘Paciocco’).
5.  FCA 1376.
6. Andrews v Australia and New Zealand Banking Group Limited 247 CLR 205, 217.
7.  QB 752, 762.
8. NSW Bar Association v Evatt (1968) 117 CLR 177, 183-184.
9.  AC 764.
10.  AC 764, 769-770.
11. Kemble v Farren (1829) 130 ER 1234; Reynolds v Bridge (1856) 119 ER 961.
12. 247 CLR 205, 217.
• This article was originally published on the Hall & Willcox LLP internet site. To access the original, click here.
Wednesday, November 19, 2014
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.
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 http://www.senetgroup-appointments.org.uk. 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."
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.
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.
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 Partner
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
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.
Wednesday, October 08, 2014
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.
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.
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 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.
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
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.
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 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.
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.
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).
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
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
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
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.
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
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.
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
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
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 firstname.lastname@example.org.
Friday, June 27, 2014
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
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…
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
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.
Monday, June 02, 2014
• 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).
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.
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
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.
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
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
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
This article originally featured on the Hill Dickinson blog. You can access the original by clicking here.
Monday, May 19, 2014
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
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
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.
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.
Friday, May 02, 2014
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.
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
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.
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).
1. President of the Brussels Court of First Instance (expedited proceedings), September 26 2013, 13/1268/C, available at www.ie-forum.be.
2. Brussels Court of Appeal (expedited proceedings), November 12 2013, 2013/KR/234, available at www.ie-forum.be.
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.
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.
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
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.
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 13, 2014
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, February 25, 2014
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
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."
ARD German TV
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.
Friday, January 03, 2014
Match-fixing, cheating at sport and sports betting have been at the forefront of media attention over the last year, both internationally and in Australia and involving a number of different sporting codes including rugby league, cricket and soccer. More recently, it emerged in September 2013 that the Victorian police had uncovered a syndicate conducting multi-million dollar match-fixing activities involving Victoria’s Premier League soccer division. Six individuals associated with semi-professional football team, the Southern Stars Football Club, including four players, the head coach and the alleged syndicate ringleader in Australia, were arrested and charged under new Victorian match-fixing laws for allegedly fixing five Victorian Premier League Matches. These individuals are the first to be charged under new criminal offences for match-fixing set out in legislation relating specifically to match-fixing that was passed in Victoria earlier this year.
The Victorian Police’s Purana Taskforce and Sports Integrity Intelligence Unit commenced an investigation in August 2013 after being alerted by Football Federation Australia (FFA). FFA CEO David Gallop indicated that the Victorian police were contacted immediately after receiving data from Sportsradar about suspicious betting patterns involving Southern Stars matches. Reports have indicated that more than $2 million in betting winnings has been collected by the syndicate, with much of the money and bets on the Southern Stars matches originating from overseas. Notably, of the eleven individuals originally arrested (nine players, their Australian head coach and the “ringleader”), the majority are foreign citizens. The majority of the players are British nationals, including the four players who faced the Australian courts. The remaining four players arrested have left Australia and have returned to Europe. The alleged ringleader, Mr Segaran “Gerry” Gsubramaniam is a Malaysian national and is said to have been the liaison between the Southern Stars team and the match fixers in Hungary and Malaysia. It is alleged that he provided instructions to the team, including players to orchestrate pre-determined score lines in five matches between 21 July 2013 and 13 September 2013.
Mr Gsubramaniam and the Southern Stars coach, Mr Zia Younan, were charged with ten breaches each – five counts of engaging in conduct that corrupts a betting outcome and five counts of facilitating conduct that corrupts a betting outcome. There was a separate charge for each football match that was fixed. Each of the players has eight different charges brought, with four counts of engaging in conduct that corrupts a betting outcome and four counts of facilitating conduct that corrupts a betting outcome.
These charges reflected the new criminal offences for match-fixing under the Crimes Act 1958 (Vic) (the Crimes Act).These offences were introduced by the Crimes Amendment (Integrity in Sports) Act 2013 (Vic) which came into effect on 24 April 2013. The new offences reflect the Victorian Government’s aim to address the key objective of the National Policy on Match-Fixing in Sport (the National Policy). The National Policy was agreed to by all of the Australian Federal and State Sports Ministers in June 2011 with the objective of protecting the integrity of Australian sport and pursuing a nationally consistent approach to criminal offences in relation to match-fixing and cheating at gambling. 1074410_1 2 In the present circumstances, the relevant offences are set out at sections 195C and 195D of the Crimes Act. Under section 195C, a person must not engage in conduct that corrupts or would corrupt a betting outcome of an event, knowing that the conduct corrupts the event and having the intention to obtain a financial advantage or cause a financial disadvantage, in connection with any betting on the event. Similarly, section 195D(1) prohibits a person from offering to engage in or encouraging another person to engage in the corrupting conduct. It is also an offence under section 195D(2) for a person to knowingly or recklessly encourage another person to conceal such corrupt conduct, or be party to an agreement or arrangement in respect of such corrupt conduct relating to the betting on an event, with the intention of obtaining a financial advantage. The maximum penalty for each of these new match-fixing offences is 10 years imprisonment. Similar legislation introducing criminal offences for match-fixing and cheating at gambling has also been adopted in New South Wales, South Australia, the Australian Capital Territory and the Northern Territory.
The Current Case
Mr Gsubramaniam was denied bail in September due to police concerns that he was a significant part of the syndicate’s operations but also a flight risk. The four players, Reiss Noel, Joe Woolley, David Obaze and Nicholas McKoy were all released on bail but were required to surrender their British passports to the police. Their Australian coach, Mr Younan was also released on bail. The matter was heard on Friday 6 December 2013 in the Melbourne Magistrates Court. Mr Gsubramaniam pleaded guilty to charges of engaging in conduct that corrupts or could corrupt a betting outcome. He will remain in custody to appear before the Victorian County Court for a plea hearing on 11 April 2014 where evidence and information will be presented to the judge for consideration when determining the appropriate sentence. Two of the arrested players, Joe Woolley and Reiss Noel also pleaded guilty to three and four charges respectively, which related to throwing matches after being instructed by the syndicate to do so. Woolley was fined $1,200 and Noel fined $2,000, penalties that are significantly reduced from the possible maximum penalty of 10 years imprisonment. In determining the sentence, Magistrate Jack Vandersteen took into account the players’ guilty pleas, their promise to help investigators and to give evidence against others in the syndicate, and the shame, humiliation and embarrassment their actions had brought them. The two other players, Mr Obaze and Mr McKoy and the coach, Mr Younan are yet to enter pleas and were ordered to again appear before the court on 20 December 2013. Further, in October 2013, FFA announced immediate bans under its National Code of Conduct (the Code). FFA determined that, as the four players and their coach had been charged of serious criminal offences, they had breached the obligation in the Code not to bring FFA or the game of football into disrepute. Following FFA’s request to FIFA, the international governing body of football, has also imposed global sanctions on the players and coach, barring them from taking part in any football- related activity worldwide, until further notice.
What Does This Mean for the Gambling Industry?
Given the seriousness of the match-fixing offences and the maximum penalties that may be imposed, it is essential that stakeholders in the gambling and sports betting industry are acutely aware of their actions and responsibilities. In particular, online gambling and sports betting operators should ensure that they have the measures and procedures in place to identify suspicious betting activity in the event that they are called to assist in police investigations into match-fixing or to enable them to promptly notify the authorities if they become aware of betting data and patterns that indicates match-fixing is taking place. Gambling industry participants should maintain strong, positive and valuable relationships with the sporting and racing regulatory bodies, by assisting in conduct with the intention of maintaining the integrity of the particular sporting or racing industry. Further, it will be essential for sports betting operators to ensure that their employees partake in training and education as to the seriousness of match-fixing offences and are aware of, and comply with policies outlining the appropriate manner in dealing with customers who may be involved in match-fixing.
This article originally appeared on the Addisons Lawyers’ internet site. You can view the original by clicking here.
Thursday, December 19, 2013
Former professional football players reached a $42 million agreement with the National Football League over use of their publicity rights, with a Minnesota judge signing off on the deal.
The settlement faced vociferous objections from a handful of class members, who argued that not a single athlete would see a guaranteed dime from the millions. U.S. District Court Judge Paul A. Magnuson had harsh words for the objectors in his order, calling them out for their "baser instincts, namely the lure of what their attorneys promise is lucrative financial payouts from the NFL."
The roughly 25,000 class members alleged that the NFL illegally used the likenesses of former players, particularly in NFL Films productions. Pursuant to the settlement, the NFL will create a $42 million Common Good Fund for the benefit of all retired professional players, with some money set aside to establish a licensing agency for the former players. When the licensing agency strikes a deal with an entity, 75 percent of the fees generated will be paid directly to the players whose rights were licensed, with the remaining 25 percent being paid to the Common Good Fund for the benefit of the class as a whole.
"The vast majority of class members see the settlement at issue here for what it is: a boon to those thousands upon thousands of former NFL players who can now reap the collective benefit of a large financial payout to a fund organized solely for their benefit, overseen by their comrades-in-arms," the court said. "That former players will also finally have an avenue to pursue commercial interests in their own images and in their images as part of their former teams, for the first time in conjunction with the NFL's copyrights and trademarks, is icing on the cake for those players and indeed for all former players."
Judge Magnuson found the settlement "fair, reasonable, and adequate" in large part because the chances that the lawsuit "will succeed are slim at best." Further litigation would be both complex and extraordinarily expensive, the court said, and the plaintiffs" case faced serious obstacles from the statute of limitations (at best, six years, which would eliminate a majority of the class) to the choice of law analysis.
With the "law" of more than 20 states referenced in the class's amended complaint – some of which contains law on the right of publicity, while others do not – a serious conflict between applicable state laws weighs heavily against the ultimate certification of the class, the judge explained. Damages for the tens of thousands of class members pose a similar problem, with just a handful of players entitled to substantial amounts and a review of each player's contract required. Football is a team sport, Judge Magnuson added, making valuation of publicity rights damages "a Herculean task."
"Each individual appearing in a game clip has publicity rights in his or her image. But the value of those rights must be divided among all those appearing in some way. Would a court apportion more value to a team's quarterback, because he stands above the line of scrimmage and is more visible in any game clip? Or perhaps a player with a distinctive hairdo, such as current Pittsburgh Steeler Troy Polamalu, deserves more compensation because his image is readily identifiable?" he wrote.
"Magnify these individual issues times 53 players on each of 32 teams' active rosters each year, and it is easy to see that determining damages on either an individual or a class-wide basis would be nearly impossible."
Alternatively, the benefits of settlement are "numerous and far-reaching," Judge Magnuson concluded.
"The settlement provides benefits to the class far beyond direct economic benefits arising out of the alleged infringement of players' publicity rights, which for the vast majority of class members could be meager, at best," the court said. The court also noted that The Common Good Fund and the licensing agency are independent of the NFL and the players' union, which will protect the rights and interests of all class members.
To read the final approval order in Dryer v. National Football League, click here.
Why it matters: The court's decision demonstrates how the complexity of a class action suit ultimately impacts the value of the settlement accepted by the court in lieu of litigation. Judge Magnuson did not mince words when evaluating the plaintiffs' suit, explaining the potentially insurmountable obstacles of the choice of law analysis and determination of damages. (In a detailed footnote, he broke down what a hypothetical retired Minnesota Vikings player might be entitled to from an NFL film about the history of the franchise, estimating that even if 200,000 DVDs of the film were sold, the potential damages for a single player were roughly $200.) Facing an expensive, protracted, complex battle against a defendant with deep pockets, the court found the $42 million to be "the best solution.”
Linda A. Goldstein
Manatt, Phelps & Phillips LLP
This article was originally published on the Manatt internet site. You can view the original by clicking here.
In light of the recent match-fixing arrests by the National Crime Agency, we thought it would be of interest to report on a recent event we attended on the evening of 11th November at Birkbeck University at which Declan Hill, investigative journalist and author of bestselling book The Fix, discussed the themes and issues in his upcoming book, The Insider’s Guide to Match Fixing in Football. Based on the doctoral thesis of Hill at the University of Oxford, The Insider’s Guide to Match Fixing in Football is an analysis of the motivations, mechanisms and methods which pervade match-fixing. The seminar also included discussion from Franz Tabone, UEFA’s Integrity Officer for Malta, and Tony Higgins, FIFPro’s spokesperson for the ‘Don’t Fix It’ project.
There has always been corruption in sport. However, according to Hill, recently match-fixing has been going “haywire”. The sports gambling market is huge in Asia, dwarfing the combined European and North American markets, and this acts to drive the manipulation of sporting fixtures. The proliferation of sporting manipulation in Asia has been well publicised, and there are now few sports which have not been faced with fixing scandals. The focus of corruption in sport has been on Asia, and unsurprisingly so in light of the scandals there, including when such damaging and quite frankly shocking situations are allowed to arise such as former President of Indonesia’s football association, Nurdin Halid, serving two years in jail for corruption whilst remaining as President of the Football Association.
Given the widespread match-fixing problems in Asia and the perceived lack of integrity, the attentions of the betting market have turned to European football matches. Sadly, but inevitably, the fixers’ attentions have followed suit.
Europol, the European Union’s law enforcement agency, reported in February 2013 that they had conducted a major investigation into match-fixing in Europe. The investigation, the largest match-fixing investigation ever in Europe, uncovered a total of 425 match officials, club officials, players and serious criminals from more than 15 countries, suspected of being involved in attempts to fix more than 380 professional football matches. The activities formed part of a sophisticated organised crime operation which generated over €8million in betting profits and over €2million in corrupt payments to those involved. Amongst the suspicious matches identified were World Cup and European Cup qualification matches, two UEFA Champions League matches and several top flight matches in European national leagues.
Such investigations illustrate how match-fixing has proliferated in top flight games in Europe. In August 2013, Turkish team Fenerbahce were excluded from European competitions for the next two years after losing an appeal to the Court of Arbitration for Sport (CAS) against a UEFA sanction for match-fixing. The President of Fenerbahce was sentenced to six years in prison for his involvement. In August 2013, Lazio captain Stefano Mauri was banned for six months by the Italian football federation for his part in alleged match-fixing two Serie A games. Italy in particular has been a prime target for match fixers; the well-known ‘Calcipoli’ scandal, uncovered in May 2006, led to the stripping of Juventus of their 2005 and 2006 Serie A league titles, and relegation to the Serie B division. So far most commentators believe that the Premier League remains untarnished.
According to Hill there are two types of match-fixing: fixing that takes place to defraud betting companies; and everything else, namely match-fixing to secure sponsorship or promotion for clubs. Hill believes some clubs in Europe have adopted a business model of intentionally trying to lose a number of matches per season; the profits of losing ‘fixed’ matches can exceed the value of winning those matches.
Hill remains upbeat about the prospects for tackling match-fixing however. “I think we can win”, commented Hill, “but first we need to know how the fixers operate”. Understanding why a player would fix a match is the main question. In The Insider’s Guide to Match Fixing in Football, Hill compiled a database of players who indicated whether or not they would fix matches, recording a number of variables. One variable stood out amongst the players who would take part in match-fixing – age. When players are over the age of 30, said Hill, matches are over three times more likely to be fixed.
Hill also highlighted the fact that many players in leagues around the world are not being paid. This point is highlighted by FIFPro’s ‘Black Book’ findings, which report that 41.1% of players in Eastern Europe are not paid on time. Non-payment is particularly common in international matches, meaning these games are at a higher risk of being fixed. As Tony Higgins of FIFPro highlighted at the seminar, the proliferation of match-fixing leads to television companies focusing their attentions on leagues which are perceived to have less of a problem with corruption, such as England’s Premier League. This in turn creates funding problems for clubs, intensifying the problem of players not getting paid, and in turn, sustaining match-fixing.
Whilst Hill noted that match-fixing is not particularly prevalent in the UK, he warned that the FA should not rest on its laurels – rather prophetic; his view was that the strong culture of gambling in the UK could act as a gateway to criminality in future. Vulnerabilities in the UK are likely to emanate from the lower leagues were players are paid significantly less than their Premier League counterparts, and we saw recently that four British footballers from those leagues were charged in September of this year by the Australian authorities in relation to match-fixing allegations concerning games there.
An international approach to combatting corruption in sport is clearly required because the criminal conduct is taking place in multiple jurisdictions. A specialist international law enforcement agency dealing with corruption in sport would be the high watermark. In an ideal world it needs to be supported by international or even EU-led legislation requiring countries to criminalise sports manipulation and then monitor enforcement. The European Council has acknowledged the problem and sanctioned an international approach – in June 2013 it authorised the European Parliament to participate on behalf of the EU in negotiations for a convention to combat the manipulation of sports results primarily focussed on judicial cooperation in criminal matters and police cooperation. The European Parliament has also called on all member states to criminalise match-fixing if they have not already done so. Match-fixing in England could be prosecuted under Chapter 19 of the Gambling Act 2005 (cheating or aiding and abetting cheating), Chapter 45 of the Criminal Law Act 1977 (conspiracy), and most recently as a result of the Bribery Act 2010 (offering or receiving a bribe), and our wide money laundering offences can capture the proceeds of such criminality if not the individuals. But perhaps a dedicated offence may be helpful.
Just as importantly, sporting associations needs to educate their member clubs and sportsmen and women about the dangers of corruption in sport and the potentially serious consequences. As Mr Hill indicated on 11 November, the UK should not rest on its laurels.
Edwards Wildman Palmer UK LLP
This article was originally published on the Edwards Wildman Palmer UK LLP Anti-Corruption and Asset Recovery Blog. You can view the original by clicking here.
Wednesday, December 11, 2013
Cyclist Lance Armstrong argued last week in federal court to have a False Claims Act qui tam suit against him dismissed as time-barred. The lawsuit, filed in June 2010 by Armstrong’s former teammate, Floyd Landis, alleges that Armstrong, his cycling team, the team manager and others defrauded the United States Postal Service of approximately forty million dollars worth of sponsorship fees between the mid-1990s and 2004 as a result of Armstrong and the team’s use of performance enhancing drugs and practices. Armstrong was stripped of his seven Tour de France titles in August 2012 by the United States Anti-Doping Authority, and admitted to using banned substances on national television in January 2013. The United States intervened shortly thereafter in some of the claims alleged by Landis, and now seeks treble damages.
Last Monday, on November 18, 2013, the federal district court for the District of Columbia heard nearly three hours of arguments in which Armstrong asserted that the Postal Service had constructive knowledge of his doping as early as 2000, when the French racing authorities conducted an investigation and allegations of the team’s drug use were widespread. The Postal Service chose not to investigate the allegations a decade before Landis’s lawsuit, and did not investigate in the subsequent years despite continued doping allegations. According to the defense, the Postal Service turned a blind-eye and renewed Armstrong’s contract because it profited from the publicity gained by the cycling team’s success.
The government’s last sponsorship payment to Armstrong’s team was made in 2004. Based on the timing of that last payment, Armstrong argues that the False Claims Act’s six year statute of limitations expired nine days before Landis filed his claim and now prevents the suit from going forward.
The government argues, however, that it was not on notice of Armstrong’s improper conduct before 2010. The French investigation found nothing, and Armstrong and his cycling team vehemently denied doping allegations and went to extreme lengths to cover up their use of steroids and other prohibited substances. As a result, the Postal Service had no way of knowing about Armstrong’s cheating. The government further argues that professional athletes routinely are accused of doping; such allegations do not inherently warrant an investigation, particularly in this case, when Armstrong and others repeatedly assured the Postal Service and the public that the accusations were unfounded.
The presiding district court judge, Judge Robert Wilkins, indicated during Monday’s hearing that he expects to let some claims go forward and plans to issue his ruling within thirty days. Landis, a former teammate of Armstrong’s, previously admitted to using banned substances and was stripped of his own Tour de France title. He has been a primary source for the Anti-Doping Authority’s investigation of Armstrong. In August, in connection with a federal deferred prosecution agreement, Landis admitted to defrauding donors contributing to his defense fund when he lied about using performance enhancers. He would receive a portion of the recovery in this case if the government succeeds.
The case, United States ex rel Landis v. Tailwind Sports Corp., et al, 10-cv-00976, is pending in the District Court for the District of Columbia.
This article originally appeared on the Sidley Austin LLP False Claims Act blog, here.
Solicitor in Gateley's Commercial, Technology and Media team, Rachel Cowgill, discusses in detail her experience of being on secondment at Manchester City during her training contract.
As part of my training contract I was fortunate enough to undertake a six month secondment at one of the world’s largest football clubs – Manchester City FC. From an outsider’s perspective, it’s easy to think that the business of a football club begins and ends on the pitch. While the ‘beautiful game’ is the heart of MCFC, the substantial business infrastructure underpins everything the club does. A vital part of this machine is the MCFC legal team.
During my six-month stint at the club my work spanned player transfer agreements, sponsorship and endorsement deals, employment and IT matters. While the majority of the work fell under the umbrella of ‘commercial contracts’, no two days were ever the same. Football clubs are faced with a multitude of legal and non-legal issues. While some of the issues are commonplace within businesses generally, some are football-specific.
For example, if a club seeks to enter into an agreement with a new kit sponsor, not only must the parties reach agreeable commercial terms but they must also abide by the Football Association rules regarding kit advertising. These rules dictate how often the sponsor’s name, mark or logo may appear on the shirt and shorts and in what size. If a club participates in international competitions they must also comply with the relevant regulations of FIFA, UEFA and other Confederations.
In addition, as with other Premier League clubs, MCFC must ensure that it does not fall foul of the financial fair play rules which were brought in to prevent professional football clubs spending more than they earn in the pursuit of success. Non-football specific matters – for example the protection of intellectual property and confidential information – are just as important to the club. As with any business which licences its intellectual property, it must ensure that contractual terms and strict approval processes are put in place to control the use of IP by third parties. After all, prohibited use of IP could potentially damage the valuable MCFC brand. Likewise, when sharing sensitive information, confidentiality agreements must be drawn up to ensure that such information is not leaked into the public domain.
The MCFC secondment proved to be a steep learning curve for me. As a trainee solicitor I often came across the phrase ‘commercial awareness’ and I believe my true appreciation of this term only came following my secondment. I was able to observe and be a part of the inner workings of a business. I saw first hand the work that goes on behind the scenes to ensure that players are signed, training facilities are built and fan experience is improved, and how the legal team plays an intrinsic part in helping the club achieve success. The experience I gained was invaluable and something I will never forget.
Tuesday, December 10, 2013
The Court of Appeal will soon be delivering judgment in a high-profile clash between the head of Thailand’s football federation, Dato Worawi Makudi, and Lord Triesman, the former chairman of the FA, which raises an issue of high constitutional importance.
The background is all too familiar to any supporter of English football. Between 2007 and 2010, the FA stretched every sinew to bring the 2018 FIFA World Cup to England. No English icon was left untapped. Prince William, David Beckham and Sir Bobby Charlton were paraded before the FIFA Executive Committee. The bid was even announced by Adrian Chiles. A total of around £16 million was spent. Two votes were garnered.
In May 2011, Lord Triesman sought to explain this depressing outcome in evidence given to the Culture, Media and Sport Committee of the House of Commons. During that evidence, Lord Triesman alleged that Mr Makudi, who was a member of the FIFA Executive Committee with a vote on the World Cup bids, had attempted personally to secure the broadcasting rights to a proposed fixture between Thailand and England, and that it was “hard not to think” that Mr Makudi had been “…unaware of the idea settling in my mind, or in the minds of people in this country who are responsible for the bid, that these things would be linked”.
That evidence was, in itself, protected by absolute Parliamentary privilege. Article 9 of the Bill of Rights 1689 provides that the “Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” This is a “provision of the highest constitutional importance” (Pepper v Hart  AC 593 at 638 per Lord Browne-Wilkinson) which ensures that evidence given to Parliamentary Committees cannot result in any civil or criminal penalty.
But what if a person repeats statements made in Parliament, or expressly relies upon such statements, in a situation which is not protected by absolute privilege? After Lord Triesman’s evidence to the Select Committee, the FA set up an inquiry. Lord Triesman tried to be careful not to add to his Parliamentary evidence. But he did repeatedly say, to the Chairman of the inquiry, that the inquiry should “rely upon” or “refer to” such evidence, and even gave a statement saying that his “…evidence in respect of” a particular issue was “set out in the transcript” of his evidence to the House of Commons.
It is well established that a person who has made a statement in Parliament which is protected by absolute privilege may lose that privilege simply by stating outside Parliament that he “did not resile” from that earlier statement: see Buchanan v Jennings  1 AC 115.
Relying upon that principle, Mr Makudi brought defamation proceedings against Lord Triesman, alleging that Lord Triesman’s statements to the FA inquiry were not protected by absolute privilege and were defamatory. Mr Justice Tugendhat struck out those proceedings, partly on the basis that a plea of qualified privilege by Lord Triesman raised an issue as to alleged malice, which could not be examined “…without also enquiring into his state of mind when he gave his Parliamentary evidence”, which the Judge ruled to be impermissible ( EWHC 142 (QB) at para 101).
The High Court may have gone too far in this aspect of the ruling. In the MPs’ expenses case (R v Chaytor  1 AC 684), the Supreme Court ruled that: “…where a Member of Parliament affirms outside the House a statement made in the House. Such an affirmation can found a claim in defamation. This may well involve a challenge to the good faith of the defendant in affirming the statement, which will inferentially challenge his good faith in making the original statement” (para 45 per Lord Phillips). These observations reflected those of Lord Bingham in the Buchanan case, that “In such a case there will inevitably be an inquiry at the trial into the honesty of what the defendant had said, and if the defendant’s extra-parliamentary statement is found to have been untrue or dishonest the same conclusion would ordinarily, although not always, apply to the parliamentary statement also. But such an inquiry and such a conclusion are not precluded by article 9, because the plaintiff is founding his claim on the extra-parliamentary publication and not the parliamentary publication.”
It therefore appears to be the law that an inferential inquiry into the good faith or otherwise of Lord Triesman’s statements to the Select Committee is not precluded by Parliamentary privilege. This issue raises a question of high constitutional importance, which is no doubt one of the reasons why the Court of Appeal decided to hear the case. Indeed, in early November 2013 the Speaker of the House of Commons, John Bercow, took the unusual step of writing to the Court of Appeal in order to express concern at the potential impact of the case upon freedom of speech in Parliament.
The case has been heard by a panel comprising Lord Justice Laws, Lord Justice Tomlinson and Lady Justice Rafferty, and their judgment will be eagerly awaited by both sports lawyers, public lawyers and media lawyers alike.James Segan
Blackstone Chambers, London
James Segan was junior counsel in the MP’s expenses case, led by Lord Pannick QC. This article was originally published in the Blackstone Chambers Sports Law Bulletin here.
Wednesday, November 20, 2013
National Hockey League Players were the primary victims of a series of fraudulent investment schemes orchestrated by financial adviser Phillip Kenner and former professional race car driver Tommy Hormovitis. Collectively, the players others lost about $15 million. The court papers charge conspiracy, conspiracy to commit money laundering and wire fraud. U.S. v. Kenner, No. 13-CR-607 (E.D.N.Y. Unsealed Nov. 13, 2013).
Phillip Kenner met a future NHL player while attending college. Subsequently, Mr. Kenner became a licensed financial adviser in Boston. From 1994 through 2003 he used his college connection who had joined the NHL to build a client list which included several professional hockey players. The list became the foundation for his firm which he opened in 2003.
From the opening of his firm, and continuing to the present, Mr. Kenner advised a number of NHL players regarding their investments. He counseled them to participate in a number of investment schemes which were fraudulent. Those included:
The Hawaii scheme: This was a real estate investment scheme in Hawaii. Mr. Kenner solicited thirteen players, convincing them to invest $100,000 each and open lines of credit which he controlled. In addition, Lehman Brothers Holdings, Inc. was convinced to invest $2 million. The funds were to be used to develop real estate on the big island. Instead, Messrs. Kenner and Constantine diverted the money to their personal use. The victims lost over $13 million.
The Eufora Scheme: This was a prepaid debit card business, initiated in 2002. Mr. Kenner informed the NHL players who put $1.4 million into the scheme that Eufora was an up and coming business. Another investor was convinced to put up about $200,000. Most of the money was in fact diverted to an account controlled by Mr. Constantine. Investors lost about $1.5 million.
Global settlements scheme: Beginning in May 2009 Messrs. Kenner and Constantine convinced players to invest about $4.1 million in a plan which called for funding an attorney’s escrow account, the Global Settlement Fund. The fund would be used to finance litigation related to Mexican land deals. Most of the money was diverted to the personal use of the defendants. The players lost about $1 million.
Sag Harbor scheme: In this scheme Mr. Kenner acquired a 25% interest in real property in Sag Harbor, New York by taking $395,000 from a player’s line of credit. The player was unaware of the transaction. He then convinced a second player to purchase what was supposed to be a 50% interest in the deal for $375,000. The player, however, received papers showing that he only had a 25% interest. The investors sold the property at a loss. Mr. Kenner then filed a lawsuit in Arizona against one of the investors in connection with the property.
The defendants were arrested in Arizona and appeared in court on Wednesday. The case is pending.
This article originally appeared on the 'SEC Actions' internet site, produced by Thomas O. Gorman of Dorsey and Whitney LLP. To access the original article, click here.
Tuesday, November 19, 2013
Racing pundit John McCririck has lost his age discrimination case against Channel 4 and IMG Media Limited. McCririck, who had worked for ‘Channel 4 Racing’ since 1984, was dismissed in October. He was aged 72 at the time. The tribunal found that the dismissal was objectively justifiable in the circumstances, on grounds that Channel 4 wished to attract wider audiences. A copy of the judgment can be found here.
Why was he dismissed – reality TV appearances, chauvinistic views or age?
The tribunal heard evidence that part of McCririck’s on camera style included sexist views and male chauvinism (referring to his co-presenter Tanya Stevenson on air as “Female”). In his own evidence, McCririck stated that his “pantomime villain sexist image had been deliberately cultivated and played up”. The tribunal viewed DVD extracts of racing broadcasts, as well as extracts from McCririck’s appearances in Celebrity Big brother and Celebrity Wife Swap. Although the evidence suggested that McCririck’s reality tv appearances may have contributed to a reduction in his hours in 2008 and 2010, the tribunal found that there was no evidence that Channel 4 told McCririck at any time that his mode of dress, outspoken views or use of tic-tac language should be moderated.
In September of this year, IMG, having won the bid to cover ‘crown jewel’ events in the racing calendar, had received ‘talent tracker data’ from a market research agency, which was gathered in a national online survey. The talent tracker confirmed that McCririck was well known (with 78% ‘awareness’), but found that 61% of those surveyed did not enjoy viewing McCririck. Overall, he scored badly. In deciding on a new panel of racing presenters, it was decided that MrCririck should not have a role.
However, McCririck forwarded evidence sufficient to support an inference of discrimination, including that Ms Stevenson (aged 42 at the time) was kept on whilst McCririck was dismissed, and that all of the other presenters who were dismissed when compiling the new look line up were also aged over 50. Reference was also made to documentation which indicated that IMG’s bid was predicated on the fact that it intended to use “younger presenters to attract younger audiences” (despite there being evidence before the Tribunal that younger presenters would not achieve this).
Having concluded that McCririck had put forward sufficient evidence of age discrimination, the burden of proof should have shifted to IMG/Channel 4 to establish either:
(i) that there had been no discrimination because the decision to dismiss was not age related; or
(ii) that, even if the decision was age related, dismissal was a proportionate means of achieving a legitimate aim.
Unfortunately, whether or not the tribunal actually made a finding as to the reason for dismissal is not clear from the written decision. Having established a shift in the burden of proof, there is a ‘fastforward’ to item (ii) above, consideration of objective justification. This suggests a finding that the reason for the dismissal was indeed age. However, there are also parts later in the decision in which the Tribunal refer to the dismissal being because of McCririck’s persona.
What was Channel 4’s justification?
The aim of IMG and Channel 4 was to bring horse-racing to a wider audience. Channel 4 gave evidence that, for the future of the sport and programming, it was important that it “grow a wider audience whilst not losing focus on the core viewer”, and that its aim was to “strike a balance between much of what currently works whilst bringing a fresh feel to the experience that will attract a younger audience”.
Surprisingly, the tribunal was satisfied that the aim was sufficiently “of a public interest nature” to be legitimate (following the Supreme Court’s decision in Seldon v Clarkson Wright & Jakes, which confirms that the aim must have a public interest nature, and be consistent with the social policy aims of the state, namely ‘inter-generational fairness’ and ‘dignity’). It also found that the means of achieving the aim were proportionate.
Accordingly, it found that Channel 4 had not contravened the Equality Act 2010 (and that IMG could not have helped them to do so).
Will there be an appeal?
McCririck has confirmed his disappointment in the decision, but is also reported to have said it is unlikely that he will appeal the decision, which was published on 13 November 2013.
Whilst the tribunal found that there was sufficient evidence for the burden to shift to Channel 4 / IMG, it has failed to make any clear finding as to whether or not the dismissal was because of age. The lack of structure and clarity in the written decision could give grounds for appeal.
Interestingly, the judgment also contains a statement that the dismissal was “because of [McCririck’s] persona” (in Celebrity television shows and press articles), “together with his appearances on Channel 4 racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims, and his opinions seen as arrogant and confrontational”.
Even if an appeal is brought and a re-hearing of the evidence takes place, there does seem to be evidence that the decision to dismiss was not in fact age-related and that it was McCririck’s “arrogant and confrontational” persona that played the biggest part in his departure. Therefore, any appeal may in any event lead to a dead end.
Katie RussellAssociateShepherd + Wedderburnkatie.email@example.com
This article originally appeared on the Shepherd + Wedderburn internet site on 14 November. To view the original, click here.
People have been playing in online fantasy sports leagues for a long time. When the federal government created a specific carve-out for fantasy sports in the Unlawful Internet Gaming Enforcement Act (UIGEA) in 2006, paid money leagues became legal on a federal level for the first time and the ability to collect monetary prizes in paid money leagues was left to the discretion of the individual States. Recently, a new wrinkle involving fantasy sports has come to prominence: fantasy sports insurance…but is it legal?
Legality of Online Fantasy Sports Betting
In order to fall within UIGEA’s exception provisions, the fantasy sports game must:
- have an outcome that reflects the relative knowledge and skill of the participants, but not chance;
- be determined predominantly by accumulated statistical results of multiple athletes participating in multiple real-world sporting events; and
- offer prizes that are not influenced by the amount of fees paid by, or the number of, participants.
Under the laws of many States, season-long and even multi-week online fantasy sports tournaments are not considered ‘gambling’. The regulatory trend in these states is to categorise fantasy sports as games of skill based on the sports knowledge of each league participant. The skill involved in fantasy sports betting exempts online fantasy sports leagues from the gambling laws of these States, which only regulate games premised on chance or luck. As we have previously addressed, daily fantasy sports leagues may introduce a higher degree of chance than season-long or multi-week leagues and, as such, invite allegations of illegal gambling.
Fantasy Sports Insurance
A relatively new aspect of fantasy sports has developed, which allows fantasy sports participants to purchase insurance policies for the athletes on their fantasy teams. The insurance policies will pay out an agreed upon amount of money, should the policyholder’s fantasy sports athlete(s) be injured. The concept of fantasy sports insurance ensures that a player may recover some or all of his/her fantasy sports league entry fee should a member of his/her fantasy sports team be put out of commission due to injury.
Legality of Fantasy Sports Insurance
Whether fantasy sports insurance is legal under Federal and State law is an unresolved issue and requires an examination of the nuances of insurance law, specifically the concept of insurable interest. In order for any insurance policy to be valid, the policyholder must have a monetary or ownership interest in the thing he or she is looking to insure. This monetary/ownership interest is called an ‘insurable interest’. Without an insurable interest, the policy is void.
An insurable interest must exist at the time the insurance policy is purchased and exist throughout the policy period, including the time the subject injury is incurred. Without having an insurable interest in the thing being insured, it could be argued that one is making a bet that the insured property will be damaged or destroyed in order to collect the insurance money.
The threshold question relating to fantasy sports insurance is whether a league entry fee is considered an insurable interest in one’s fantasy sports athletes. While it is true that fantasy sports league participants usually pay an entry fee and, therefore, have some monetary interest in their fantasy sports athletes, their league entry fee is used to create a fantasy sports team based on a wager of skill. It follows that obtaining fantasy sports insurance could be construed as a wager of chance upon a wager of skill. The concept of insurable interest is meant to guard against wagering on an undesired outcome.
While the legality of fantasy sports insurance is still unclear, fantasy sports participants should use caution before purchasing a policy to insure their fantasy sports athletes.
David O. KleinKlein Moynihan Turco LLPdklein@kleinmoynihan.com
This article was originally published on the internet site of Klein Moynihan Turco LLP. To view the original article, click here.
On October 25, United States District Court Judge Claudia Wilken denied the National Collegiate Athletic Association's motion to dismiss the civil class action complaint of a group of former Division I college basketball and football players. Led by former UCLA basketball star Ed O'Bannon, the players are suing the NCAA for alleged violations of the Sherman Antitrust Act. The lawsuit also named two other defendants, EA Sports and Collegiate Licensing Company (CLC). Notably, both are reported to have reached a confidential settlement with the plaintiffs in September 2013.
The District Court's decision removes one of the last obstacles standing in the way of the plaintiff's motion for class certification, which, if granted, would allow the plaintiffs to try the case on the merits. If a jury finds in the plaintiffs' favor, the NCAA could conceivably be faced with a judgment in the billions of dollars. The parties have already briefed the class certification motion and the court has heard oral argument; they now await a decision from Judge Wilken.
Essentially, the lawsuit claims that the NCAA impermissibly required student athletes to relinquish all rights in perpetuity to the commercial use of their names, images, and likenesses, including after they graduate and are no longer subject to NCAA regulations. The claims against the NCAA concern the use of players' names and images in both live and archival broadcasts and footage, while the claims against CLC and EA Sports concern the same use in paraphernalia, such as jerseys, and in video games, where player-avatars are modeled after and closely resemble actual players. The former players claim that the defendants conspired to unfairly and unlawfully deprive them of their right to receive compensation for such.
The NCAA's motion to dismiss the operative complaint was based primarily on an argument stemming from a 1984 US Supreme Court case, NCAA v. Board of Regents, in which the Court commented in dicta that not paying student-athletes was necessary to "preserve the character and quality of the NCAA's product." However, Judge Wilken rejected this premise, noting that, in the Board of Regents case, the Supreme Court "focused on a different set of competitive restraints than the rules challenged in this case,” … “never even analyzed the NCAA's ban on student-athlete compensation under the rule of reason” – which is one of the factors for analyzing an antitrust claim – "nor did it cite fact findings indicating that this is the type of restraint which is 'essential if the [NCAA's] product is to be available at all.'"
Although its co-defendants opted to settle the plaintiffs' claims rather than risk certification of the class and a potentially-enormous judgment, the NCAA has vowed that it will contest this lawsuit all the way to the Supreme Court, if necessary. In fact, the same day that Judge Wilken denied its motion to dismiss, the NCAA sought leave of the Supreme Court to intervene in a separate but related action regarding rights of publicity.Maidie E. OliveauCounselStanley G. Stringfellow IIAssociateArent Fox, Los Angelesmaidie.firstname.lastname@example.org@arentfox.com
This article originally appeared on the Arent Fox internet site on 1 November. You can access the original by clicking here.
Wednesday, October 23, 2013
The Confederation of North, Central American and Caribbean Association Football (CONCACAF) appointed World Sports Law Report Editorial Board member Dr. Laila Mintas as Director of Sports Integrity, effective 15 November 2013. In the new role, Dr. Mintas will oversee the design and implementation of systems and processes to prevent, detect, investigate, and respond to match-fixing issues within the CONCACAF region.
Dr. Mintas brings extensive experience in the field as she served as Head of Legal and International Development for FIFA's Early Warning System (EWS) in Zurich, working in close collaboration with the FIFA Security and Disciplinary Divisions in matters related to match manipulation. She previously worked as a lawyer at the international law firm White & Case LLP (headquarters in New York) and has lectured law at the Humboldt University of Berlin. Dr. Mintas has published a number of articles on sports and gambling law and is also Co-Editor of Swiss sports law journal, Causa Sport.
“We are certain that Dr. Mintas’ vast experience and expertise will strongly benefit our aim of preserving and sustaining the integrity of our game”, said CONCACAF General Secretary Enrique Sanz. “We are committed to transparency and determined to build strong foundations for our sport by working with all members of the Confederation, governments and law enforcement agencies to combat match fixing and fight corruption in football”.
Thursday, October 17, 2013
Arbitration is increasingly sport’s forum of choice for determining disputes. But the widespread adoption of this private and confidential process brings problems of its own. For example, how can parties ensure consistency of decision-making if they are unable to access decisions that have gone before? And what is to be done if different parties have the same dispute with a governing body, but there is no consent that the disputes be heard together?
The problems of consolidating (or not) related arbitral proceedings have been the cause of procedural difficulties on more than one occasion. During the pre-season period in 2007, England’s Football Association (FA) docked 15 points from Leeds United for its failure to comply with its Insolvency Policy in approving a Company Voluntary Agreement as a means for exiting administration. Rotherham United, which had also entered into administration at that time, sought to be joined to the arbitration between Leeds United and the FA pursuant to Rule K, as Rotherham feared that a similar deduction. However, Rotherham’s application was refused. Construing Rule K literally, the Tribunal determined that there was simply no dispute between Rotherham and the FA which gave the club standing to be part of those proceedings.
Similarly, as part of the fall-out from West Ham’s breach of the rules by its registration of Carlos Tevez in 2007, Fulham sought to consolidate its claim against the FA Premier League (FAPL) with that which Sheffield United was pursuing against the FAPL. Fulham’s application was refused. However, as a practical solution, Leading Counsel (Michael Beloff QC) for Fulham was allowed to make submissions at the hearing of Sheffield United’s claim, albeit he was not allowed to question witnesses.
Under the FAPL rules, a particular issue arises in relation to any dispute arising out of an employment relationship between a manager and a Club: The Managers’ Arbitration Tribunal is governed by Section Y of the FAPL rules and deals with disputes arising out of managers’ contracts only insofar as they involve the manager and the Club.
However, disputes between Clubs are dealt with by Section X of the rules. This means that if manager of Club A resigns in breach of contract and begins to work for Club B, Club A will have to institute separate arbitrations – one under Section Y against the manager and one under Section X against Club B (for example, for inducing a breach of contract) – which arbitrations cannot be consolidated unless all the parties consent. This is not ideal, although one way round a refusal of consent is to seek to appoint the same panel in both arbitrations and to attempt, once a Chairman is appointed, to have the arbitrations heard concurrently or immediately one after the other.
Sheffield United’s claim against the FAPL concerning Tevez (paragraph six, above) went to a full hearing in July 2007. A preliminary issue that arose was whether Sheffield United had sufficient standing under the rules to initiate a claim against the FAPL over its findings regarding another club (West Ham). Sheffield United prevailed. The tribunal held that, whilst the ordinary rule was that a third party club would have no standing to complain about a disciplinary decision on another club, the circumstances of the case were exceptional since Sheffield United was ‘directly and vitally affect[ed]’ by the West Ham decision.
A further dispute arose out of the Sheffield United litigation, again brought by Fulham. Fulham, like Sheffield United, brought a claim directly against West Ham (as opposed to Sheffield United’s challenge to the FAPL, above) on the basis that West Ham’s signing of Tevez in breach of the rules had led to Fulham’s relegation. A procedural wrangle ensued, namely whether the Award and Reasons of the tribunal in Sheffield United v West Ham (‘the Award’) was admissible as evidence of the truth of the facts found by that tribunal (Sheffield United having won its case on liability).
It was suggested that the tribunal ought to be instinctively reluctant to re-tread ground covered by a previous tribunal such that the Award should be admitted. The Tribunal had some sympathy for this position, and expressly found that it had the power to admit the Award. However, it did not do so as it was unconvinced that considerations of justice or convenience favoured the Award’s admission.
Procedural limitations (such as those on consolidation or joinder) would be best alleviated by express provisions in the relevant rules. The arbitration rules established by the London Metal Exchange (LME), for example, expressly allow for a panel to raise the issue of consolidating claims (and, if suitable, direct such consolidation) if a common question of law or fact arises in two or more arbitrations, or the arbitrations arise out of the same transaction(s) or for some other relevant reason. By the same token, the panel has the power to take the opposite measure, i.e. to order that an arbitration between two or more parties be divided and proceed separately where it considers it ‘expedient for the future conduct of all such proceedings’.Jane MulcahyBarristerBlackstone Chambers, Londonclerks@blackstonechambers.com
This article originally appeared on the Blackstone Chambers blog. You can access the original by clicking here.
Tuesday, October 08, 2013
The Investigatory Chamber of the FIFA Ethics Committee has further clarified its role in investigating the bidding process for the FIFA 2018 and 2022 World Cups. ‘While Article 36 of the FIFA Code of Ethics prohibits us from disclosing details about ongoing proceedings, the reports and inquiries suggest a need to clarify certain general information’, read a statement released today by Kirkland & Ellis LLP, the law firm which employs the Chairman of the Independent Ethics Committee, Michael Garcia. ‘As has been publicly reported, the Investigatory Chamber continues to investigate the bidding process for the 2018 and 2022 FIFA World Cup events. Members of the Investigatory Chamber intend to speak with and request information from representatives of every bid team that vied to host the 2018 or 2022 FIFA World Cup. Accordingly, the fact that we request a meeting with members of a particular bid team does not mean that any specific allegation has been made by or against that team or anyone associated with it.’
‘Pursuant to Articles 65 and 66 of the FIFA Code of Ethics, the Chairman of the Investigatory Chamber, Michael J. Garcia, is leading the proceedings as Chief of the Investigation. However, in order to avoid the appearance of any conflict of interest, the independent Deputy Chairman of the Investigatory Chamber, Cornel Borbely, is leading this effort with respect to the United States and Russia bids.’
‘It is not our role to determine the venue or timing of the World Cup. Our role, in this or any other matter, is to investigate potential violations of the FIFA Code of Ethics by football officials. We will consider any allegations and evidence indicative of such violations, and we urge anyone with potentially relevant information to contact us now. We emphasise that the FIFA Code of Ethics provides anonymity protections in appropriate circumstances.’
‘As in every case, we will use all investigative tools available to us under the FIFA Code of Ethics. These tools include the authority to impose disciplinary measures against anyone who breaches an obligation to cooperate with the investigation. Ultimately, we will submit a final report to the Adjudicatory Chamber. In addition to setting forth findings and recommendations, the report will document the investigative steps we followed, including what information and material we requested and what response we received. This investigation is likely to extend at least several months into 2014.’
This investigation end date dovetails with the decision made by FIFA’s Executive Committee on Friday 4 October, that no decision would be made on whether to switch the Qatar 2022 World Cup to winter before the 2014 FIFA World Cup Brazil. The Independent Ethics Committee was formed last year, along with a new Code of Ethics. Garcia hinted that it may look at the 2022 voting process during May’s FIFA Congress. The Independent Ethics Committee is funded by FIFA.
Thursday, October 03, 2013
Retired NFL players settle concussion litigation, but potential insurance implications to be determined
Starting in July 2011, the National Football League (NFL) and helmet manufacturer Riddell Inc. began facing a number of lawsuits from thousands of former NFL players alleging that concussions and other injuries sustained during their NFL careers resulted in brain and other neurological damage. These concussion-related suits - eventually brought by more than 4,500 retired football players - were consolidated in the Eastern District of Pennsylvania in the case In re NFL Players’ Concussion Injury Litigation, E.D. Pa., No. 2:12-md-02323 (filed 31/1/12). On 29 August 2013, after nearly two months of intensive negotiations, former United States District Judge Layn Phillips, the court-appointed mediator in the consolidated suits, announced that the parties had reached a settlement agreement. Under the agreement, the NFL and NFL Properties, LLC will pay US$765 million to provide medical benefits and injury compensation for retired NFL football players, fund medical and safety research, and cover litigation expenses. Attorney fees, to be approved by the district court, will be paid in addition to the settlement amount. The settlement agreement must be approved by United States District Judge Anita B. Brody, who is presiding over these cases.
The settlement includes all players who have retired as of the date on which the court grants preliminary approval to the settlement agreement, their authorised representatives, or family members. Riddell and a number of related entities are not a part of the settlement agreement and therefore claims against them for design and manufacturing defects, as well as failure to warn, remain in litigation. If the settlement receives final approval, Riddell and related entities will be the only remaining targets, a potentially risky position since any damaging discovery might be harmful in current and future lawsuits brought by athletes in college, high school, and other types of contact sports (mixed martial arts, soccer, etc.).
Pending Insurance Coverage Cases Arising from the Concussion-Related Litigation
The NFL and Riddell tendered these concussion-related lawsuits to their insurers, resulting in an ongoing battle in various pending coverage suits between the NFL and its liability insurers to determine what, if any, coverage and indemnity will be provided to the NFL. On 12 April 2012, Riddell filed a declaratory judgment action against 13 of its insurers in Los Angeles Superior Court, putting at issue 37 primary and excess policies issued from 1959 through 2011 (Riddell v. Ace American Ins. Co., Cal. Sup. Ct. LA, No. BC482698, filed 12/4/12).
On 13 August 2012, Alterra American Insurance Company, a high level excess insurer, filed an action against the NFL in New York Supreme Court seeking a declaration that it does not have a duty to defend or indemnify the NFL under their primary, umbrella, and excess insurance policies in approximately 93 underlying concussion-related suits (Alterra America Ins. Co. v. NFL, Sup. Ct. NY Cty, No. 652813, filed 13/8/12). In response to the Alterra action, on 15 August 2012, the NFL filed a lawsuit in Los Angeles Superior Court against 32 general liability insurers that issued 187 primary and excess insurance policies over a period of 44 years, alleging that the insurers wrongfully denied coverage and seeking a declaration of the insurers’ duty to defend the NFL and indemnify it for any damages owed in at least 143 concussion related suits (NFL v. Fireman’s Fund Ins., Cal. Sup. Ct. LA, No. BC490432, filed 15/8/12). The NFL alleges that its insurers issued ‘occurrence policies’ that provide both primary and excess coverage to cover all sums the NFL may be legally obligated to pay as damages because of third-party bodily or personal injury caused by an occurrence. According to the NFL, the duty to defend - the key issue in dispute - is triggered when the occurrence leading to the liability resulted in injury during the policy’s period. The NFL also sued ‘Doe’ insurers that issued policies to Riddell, claiming additional insured status. On 21 August 2012, Discovery Property & Casualty Company and five affiliated companies (collectively, Travelers) filed its own declaratory judgment action against the NFL in New York Supreme Court, naming two dozen other insurers from the California action, claiming it owed them no contribution for the underlying brain-injury lawsuits (Discovery Prop. & Cas. Co. v. NFL, Sup. Ct. NY Cty, No. 652933, filed 21/8/12). The Travelers suit seeks a declaration that it is not obligated to defend or indemnify the NFL for any of the concussion-related suits because Travelers does not insure the NFL; it only insures NFL Properties, Inc., the NFL’s marketing company, which is not a party to the coverage litigation (although it is a party to the NFL concussion litigation settlement).
On 22 August 2012, Alterra amended its New York complaint to sue the NFL’s other insurers—the 29 insurers that were parties to the California NFL coverage action. On 19 September 2012, the two New York actions - Travelers and Alterra - were consolidated. On 25 September 2012, the NFL and Riddell declaratory judgment actions in California were deemed ‘related’ and assigned to the judge presiding over the Riddell action. All of the insurers (but one) moved to stay or dismiss the NFL coverage action in California on forum non conveniens grounds, arguing that New York was a more appropriate forum. On 28 November 2012, the court stayed the California coverage action pending the outcome of the parallel New York actions, finding that New York was the proper forum and that the NFL was ‘selective and tactical’ in choosing California. The NFL appealed, and on 28 May 2013, the Court of Appeals affirmed the judge’s stay order. In Alterra, the NFL filed a motion to stay or dismiss with prejudice, based on the prior filed more comprehensive NFL coverage action in California, but that motion was denied on 15 March 2013. As for the New York action filed by Travelers, the NFL filed a similar motion to dismiss, but that motion was denied. No coverage decisions have yet been made in these cases.
Future Insurance Coverage Cases and Potential Impact on Insurers
Although these insurance coverage actions are currently limited to former professional football players, there may be future insurance coverage cases involving college football, high school football, or other contact sports. For example, on 3 September 2013, three former college football players filed a lawsuit against the National Collegiate Athletic Association (NCAA) in the Eastern District of Tennessee on behalf of a class of plaintiffs defined as ‘All former NCAA football players residing in the United States, who did not go on to play professional football in the National Football League’ (Walker v. NCAA, E.D. Tenn., No. 1:13-cv-00293, filed 9/3/13). The plaintiffs allege that the NCAA failed to educate football players of the long-term, life-altering risks of head impacts, and did not establish known protocols to prevent, mitigate, monitor, diagnose, and treat brain injuries. Plaintiffs seek medical monitoring and their costs and attorney fees for the lawsuit. There is currently another class action against the NCAA pending in the Northern District of Illinois (Arrington v. NCAA, N.D. Ill., No. 1:11-cv-06356 (filed 12/9/11).
However, whether the insured is the NFL, the NCAA or the Ultimate Fighting Championship (UFC), the courts and the parties will face complex coverage issues due to the number of insurers involved and the nature of the alleged brain injury-related claims. One significant issue is that, similar to tobacco or asbestos litigation, the alleged injuries took years to develop and manifest; adverse health effects may only manifest themselves several years after the player retires. So, the definition of an occurrence will likely feature in the litigation. For example, should each game in which the player participated be an occurrence or each season? Depending on the answer, policy limits on several policies could be triggered, and complex allocation issues lay ahead. The larger issue for the courts is whether the primary insurers will have to carry more of the burden than the insurers who wrote the excess policies. Further, because insurance laws vary from state to state (New York law, for example, is thought to be more favorable to insurers than California law), the degree of impact on insurers may depend on where the cases are tried.Dean HansellPartner
Liana G. Wolf
Hogan Lovellsdean.email@example.com@hoganlovells.com firstname.lastname@example.org
This article originally appeared on the Hogan Lovells internet site. You can view the original by clicking here.
Wednesday, October 02, 2013
FIFA has clarified that Michael Garcia is Chairman of its Independent Ethics Committee and as such, it has no say over whether an official investigation will be launched into the bidding process for the 2022 World Cup. Last week, WSLR reported FIFA’s insistence that no formal investigation into the bidding process is underway. This has not changed.
However since then, it has been reported that Garcia will be visiting all the bidders connected to the 2022 World Cup to assess whether there is a case to launch an investigation into the bidding process. “Michael Garcia is the Chairman of the investigatory chamber of the independent Ethics Committee”, said a FIFA spokesperson. “As such, we kindly ask you to directly contact his office”. WSLR is awaiting a reply.
The Independent Ethics Committee was formed last year, along with a new Code of Ethics. Garcia hinted that it may look at the 2022 voting process during May’s FIFA Congress. The Independent Ethics Committee is funded by FIFA.
Tuesday, September 17, 2013
Heisman Trophy winner Johnny Manziel has been suspended for the first half of Texas A&M University’s season opening game for an ‘inadvertent’ violation of the rules of the United States’ National Collegiate Athletics Association (NCAA). The NCAA and Texas A&M announced that Manziel would receive the minor penalty because there is no evidence that Manziel received money in exchange for signing autographs, based on currently available information and statements made by Manziel to NCAA investigators.
Texas A&M suggested the penalty to the NCAA because it believed that Manziel had only committed an inadvertent violation of NCAA bylaw 18.104.22.168 by his signing of certain autographs. The bylaw specifically prohibits student-athletes from permitting the use of their names or likenesses to be used for commercial purposes, including to advertise, recommend or promote sales of commercial products, or to accept payment for the use of their names or likenesses. Although the NCAA accepted the proposed penalty, it specifically reserved the right to consider further action against Manziel pursuant to this bylaw if ‘additional information comes to light’.
In addition to its decision to declare Manziel ineligible and recommend the half game penalty to the NCAA, Texas A&M suggested the following additional conditions before Manziel could be reinstated by the NCAA:
• Manziel will address the team regarding the autograph situation and the lessons he has learned;
• Texas A&M will revise its future education programs to include information concerning student-athlete signing autographs for individuals with multiple items.
“Student-athletes are often asked for autographs from fans, but unfortunately, some individuals’ sole motivation in seeking an autograph is for resale”, said NCAA Vice President of Academic and Membership Affairs Kevin Lennon. “It is important that schools are cognizant and educate student-athletes about situations in which there is a strong likelihood that the autograph seeker plans to resell the items”.
Manziel has been the center of attention during pre-season practice since it was reported that he had allegedly been paid a ‘five figure flat fee’ by a Florida sports memorabilia dealer for signing autographs while he attended the 2013 BCS National Championship game. With daily speculation questioning the potential penalty Manziel might receive, the NCAA agreed to the proposed minor penalty following a lengthy interview session with Manziel.
The NCAA stated, ‘NCAA rules are clear that student-athletes may not accept money for items they sign, and based upon the information provided by Manziel, that did not happen in this case’.
Based on the information submitted by the University, the NCAA accepted the conditions as put forward by Texas A&M. “I am proud of the way both Coach (Kevin) Sumlin and Johnny (Manziel) handled this situation, with integrity and honesty”, said Texas A&M University System Chancellor John Sharp. “We all take the Aggie Code of Honor very seriously and there is no evidence that either the university or Johnny violated that code”.Gregg CliftonAttorneyJackson Lewis LLP, Phoenix AZgregg.email@example.com
Wednesday, September 11, 2013
World Sports Law Report is offering free access to its news articles, which were previously only available to subscribers, for a trial period. Visitors to the World Sports Law Reportwebsite will be able to access key news on the regulation of sport, however access to analysis by key sports law practitioners will continue to be restricted to subscribers only.
Historically, World Sports Law Report's news reflects three key monthly developments in the regulation of sport, stretching back over ten years. However, as the business of sport has expanded, these developments have become more frequent. As such, in the coming months, World Sports Law Report plans to reflect this increased focus on the regulation of sport by updating its news section frequently each month.
The updated news section will complement World Sports Law Report's Twitter feed, @sport_law, which reflects daily developments in the regulation of sport by providing free analysis of key developments, as they happen. Users of LinkedIn can also stay updated by joining the World Sports Law Report group, available at http://www.linkedin.com/groups/World-Sports-Law-Report-2191126
Andy Brown, Editor
Thursday, August 15, 2013
The PL does not use the term Financial Fair Play (FFP) to characterise its new rules but they bear some of the hallmarks of break-even, which are prominent in the UEFA and Football League FFP provisions.
Short Term Cost Control
Rule E.18 states that:
‘If in any of Contract Years 2013/14, 2014/15 and 2015/16 a Club’s aggregated Player Services Costs and Image Contract Payments:
E.18.1. exceed £52m, £56m, or £60m respectively; and
E.18.2. have increased by more than £4m when compared with the previous Contract Year or by more than £4m, £8m or £12m respectively when compared with Season 2012/13;
then the Club must satisfy the Board that such excess increase as is referred to in E.18.2 arises as a result of contractual commitments entered into on or before 31 January 2013, and/or that it has been funded only by Club Own Revenue Uplift and/or profit from player trading as disclosed in the Club’s Annual Accounts for that Contract Year.’
The definition of ‘Club Own Revenue Uplift’ is set out at A.1.32 of the PL rules and means ‘any increase in a Club’s revenue… when compared with its revenue in … 2012/13 (excluding Central Funds fee payments’.
The practical effect of the above is that only a £4m increase in the wage bill for PL clubs per season will be permitted. If a PL club spends more than an additional £4m on wages from the previous season, the additional wage cost can only be funded by increased commercial revenues that the club has made during that same season. The below table sets out the defined amounts:
|Season||The extra amount of PL Central Fund revenue that can be used to fund player wage costs (cumulative)||If the wage bill is below the following figure, then the club are exempt from the restrictions|
By way of practical example, if Liverpool’s 2012/13 wage bill is around £125m and for the 2013/14 season it increases to £130m, the club has spent £1m more than is permitted under Rule E.18. Liverpool must demonstrate to the PL that, in the same year of the wage cost increase, the £1m additional wage cost arises either from:
• contracts entered into before 31 January 2013;
• its own revenues excluding centrally distributed PL monies; or
• profit from player transfers.
Rule E.19 states that the 1 March 2014 (for the contract year 2012/13) will be the first time that each PL club will have to submit Form 3 to the PL, but that the first substantive assessment will occur in February 2015. Presumably assessment will occur around this time, as the PL will - in March 2015 - have the 13/14 contract year figures to compare against the 12/13 figures for compliance purposes. It appears from the guidance in the handbook that a Financial Regulatory Panel will be established to determine whether a club has complied with the cost control provisions and to sanction the club accordingly if they have been in breach.
Profitability and Sustainability
PL clubs can make a £15m loss over a three-year rolling accounting period. This means that a £5m per season loss can be covered by owner loans. Clubs can make a cumulative £35m loss over a three year rolling accounting period (i.e. the first being 2013/14, 2014/15 and 2015/16) I.e. a total loss of £105m with certain conditions attached (set out below).
Importantly, Rules E.52-E.58 will only come into effect from the 2015/16 season. By 1 March 2016, PL clubs will have to submit three years worth of accounts. For losses up to £15m over the three-year period, no owner guarantee will be required. If a club’s losses exceed £15m for the three-year period, the club in the relevant season has to provide:
• future financial information to the PL; and
• evidence of sufficient Secure Funding (as defined in Rule A.1.143) of up to £90m injected into the club by way of shares (Rule E57 and E.58).
If a club breaches the £105m limit, the PL board has the power to compel a club to adhere to a defined budget (Rule E.15.1) and/or refuse to register any new or existing player contract (Rule E.15.3). Rule E.58.2 appears to give a Regulatory Commission the power to further sanction a club for breaching these provisions. The outcomes of such reporting requirements may thus result in breaches, which could lead to sanctions such as points deductions, although a sanctioning tariff has not yet been published.
Related Party Transactions (RPT)
In the Football League and UEFA regulations, there are provisions to combat accusations of companies which have connections to the club from providing the club with an artificially high sponsorship deal. The UEFA regulations make reference to the test being ‘fair value’ for assessing the value of the contract. Interestingly, the PL is using a ‘Fair Market Value’ test (Rule A.1.32). However, the test for whether a deal is a RPT appears to be somewhat limited (Rule A.1.132). It sets out that a RPT is only if ‘the transaction [is] disclosed in a Club’s Annual Accounts as a related party transaction’. If it is not disclosed, then it cannot be classed as a RPT. This is a different approach to the UEFA test.
Promotion and Relegation
Lastly, it is not expressly clear how the PL will deal with relegated and promoted clubs. From first reading of the regulations it appears:
• accounts for years that clubs were in the FL will be used to assess PL compliance; and
• a promoted club’s accounts for the previous year then they were in the Football League will be used as the wage benchmark for how much a club can spend on wages whilst in the PL.
Any sanctioning decisions for breach of the above rules are still some time away but by March 2014, clubs will have to submit financial information to comply with the latest PL regulatory requirements. By the Spring of 2015, the first wage control decisions will occur, but it will only be in 2017 that the first break-even decisions will be taken.
Daniel GeeyAssociateField Fisher Waterhouse LLPdaniel.firstname.lastname@example.org
 Rule E.52 states: ‘Each Club shall by 1 March in each Season submit to the Secretary:
E.52.1. copies of its Annual Accounts for T-1 (and T-2 if these have not previously been submitted to the Secretary) together with copies of the directors’ report(s) and auditors’ report(s) on those accounts;
E.52.2. its estimated profit and loss account and balance sheet for T which shall:
E.52.2.1. be prepared in all material respects in a format similar to the Club’s Annual Accounts; and
E.52.2.2. be based on the latest information available to the Club and be, to the best of the Club’s knowledge and belief, an accurate estimate as at the time of preparation of future financial performance; and
E.52.3. if Rule E.55 applies to the Club, the calculation of its aggregated Adjusted Earnings Before Tax for T, T-1 and T-2 in a form approved by the Board.’
Rule E.55 states: ‘If the aggregation of a Club’s Earnings Before Tax for T-1 and T-2 results in a loss, any consideration from Related Party Transactions having been adjusted (if appropriate) pursuant to Rule E.53, then the Club must submit to the Secretary the calculation of its Adjusted Earnings Before Tax for each of T, T-1 and T-2.’
Rule E.56 states: ‘If the aggregation of a Club’s Adjusted Earnings Before Tax for T, T-1 and T-2 results in a loss of up to £15m, then the Board shall determine whether the Club will, until the end of T+1, be able to pay its liabilities described in Rule E.14.7.1 and fulfil the obligations set out in Rules E.14.7.2and E.14.7.3.’
Rule E.57 and E.58 states: ‘If the aggregation of a Club’s Adjusted Earnings Before Tax for T, T-1 and T-2 results in a loss of in excess of £15m then the following shall apply:
E.57.1. the Club shall provide, by 31 March in the relevant Season, Future Financial Information to cover the period commencing from its last accounting reference date (as defined in section 391 of the Act) until the end of T+2 and a calculation of estimated aggregated Adjusted Earnings Before Tax until the end of T+2 based on that Future Financial Information;
E.57.2. the Club shall provide such evidence of Secure Funding as the Board considers sufficient; and
E.57.3. if the Club is unable to provide evidence of Secure Funding as set out in Rule E.57.2, the Board may exercise its powers set out in Rule E.15.
E.58. If the aggregation of a Club’s Adjusted Earnings Before Tax for T, T-1 and T-2 results in losses of in excess of £105m:
E.58.1. the Board may exercise its powers set out in Rule E.15; and
E.58.2. the Club shall be treated as being in breach of these Rules and accordingly the Board shall refer the breach to a Commission constituted pursuant to Section W of these Rules.’
This article originally appeared on Daniel’s Blog, ‘The Final Score on Football Law’, here.
A search for ‘financial fair play’ in World Sports Law Report’s archives revealed 29 articles. To access World Sports Law Report’s archives, which contain over ten years of sports law information, click here to sign up for a free trial.
On 2 August 2013 District Judge Edward J. Davila denied a motion to dismiss antitrust claims brought by consumers of NFL apparel against Reebok and the NFL in Dang v. San Francisco Forty Niners1. Plaintiff seeks to represent a class of National Football League (NFL) apparel purchasers who were allegedly overcharged as a result of an agreement that gave Reebok the exclusive right to make and sell NFL apparel. Defendants - Rebook, the NFL, the NFL teams, and an NFL licensing entity - argued that plaintiff lacked standing and failed to adequately plead a relevant market. Judge Davila denied defendants' motion to dismiss. The Court held that NFL apparel and NFL apparel licenses could be relevant markets because the NFL logos may be what consumers really want, in which case non-NFL apparel would not be a reasonable substitute. The Court also held that Dang had sufficiently pleaded standing in both markets, because he was present and injured in the retail market, and his injury was inextricably intertwined with the licensing market. The decision has potentially broad implications for similar licensing agreements throughout the professional and collegiate sports world, at least at the pleading stage.
Plaintiff Patrick Dang alleged that Reebok's exclusive licensing agreement caused Dang to pay an anticompetitive overcharge on purchases of apparel bearing NFL team logs and other NFL intellectual property. Dang alleged that the agreement violated Sherman Act Section 1 and sought injunctive relief on behalf of a nationwide class of indirect purchasers. Dang also alleged that the agreement violated California's Cartwright Act and Unfair Competition Law, and sought to represent a class of California indirect purchasers.
In their motion to dismiss, defendants argued that Dang's alleged relevant markets for NFL apparel and NFL apparel licenses were too narrow because a relevant market cannot be based on a single brand or trademark. The Court disagreed, holding that the alleged market consisted of all 30 NFL teams' logos, and all of those teams competed with each other for apparel sales throughout the country. In addition, unlike trademarks that only serve to identify origin, NFL team logos 'may very well be the products themselves that consumers seek to purchase'. Furthermore, the Court found that non-NFL apparel, such as baseball, collegiate, entertainment or fashion apparel 'would not suffice as a reasonable substitute' for NFL apparel.
Defendants also argued that plaintiff lacked standing under Associated General Contractors of Cal., Inc. v. Cal. State Council of Carpenters2 because he was not a participant in the market where competition was allegedly restrained; Dang was a retail consumer of NFL apparel, but the alleged restraint occurred in the upstream market for NFL apparel licenses. The Court disagreed. As to the retail NFL apparel market, Dang's allegations were sufficient to establish standing under AGC because he 'clearly states that he participated in this market and suffered an injury in the form of an "anticompetitive overcharge"'. As to the NFL apparel license market, Dang's alleged injury in the retail market was 'inextricably intertwined' with defendants' alleged licensing conduct because 'the relevance and value of the apparel to the consumers lie in their containing and displaying the logos and trademarks of NFL teams'. Moreover, Dang claimed that he paid an overcharge that was 'directly traceable to the licensing market'.
Finally, the court rejected defendants' argument that the complaint lacked sufficient detail regarding the nature of Dang's purchases (type of apparel, identity of manufacturer, where it was purchased). The Court held that the complaint had sufficiently alleged an exclusive licensing agreement that would affect all NFL apparel purchases.
The decision could open the floodgates for plaintiffs to file similar cases challenging exclusive licensing deals involving other professional or collegiate sports organizations. Indeed, even other kinds of exclusive licensing agreements may be targeted where the licensed intellectual property can be alleged to be what consumers really want. Whether Dang can actually establish his allegations remains to be seen. Consumers looking for jackets with NFL team logos might find non-branded jackets to be reasonable substitutes if they are lower priced.
David R. GarciaPartnerLeo CaseriaAssociateSheppard Mullindrgarcia@email@example.com
1. Case No. 5:12-CV-5481 (N.D. Cal.).
2. Associated General Contractors of Cal., Inc. v. Cal. State Council of Carpenters (AGC), 459 U.S. 519 (1983).
This article originally appeared on the Sheppard Mullin Antitrust Law Blog here.
A search for ‘apparel’ in World Sports Law Report’s archive returned six items. To access World Sports Law Report’s archive, which contains over ten years of sports law information, sign up for a free trial here.
Tuesday, August 06, 2013
A New York state appeals court has affirmed the ruling of a lower court, denying separate motions to dismiss made by two defendant school districts in a personal injury case.
The impetus for the action occurred on 17 March 2009, when plaintiff Anthony C. Philippou, then 13-years-old, was participating as a wrestler in a dual meet as a representative of Lawrence Middle School, in the defendant Lawrence Union Free School District (LUFSD). The meet was held at Baldwin Middle School, in the defendant Baldwin Union Free School District (BUFSD).
Philippou was injured during a match when two mats, which had been taped together, came apart as his hand and arm hit the wood floor, following an attempted take-down by his opponent. He ultimately sued BUFSD and LUFSD to recover damages for personal injuries.
Separately, the defendants moved for summary judgment, arguing that the plaintiff assumed the risk of injury. The trial court denied the motions. The defendants appealed.
The appeals court noted that the defendants were successful in establishing that the plaintiff, an eighth grader who was involved in wrestling, a contact sport, was aware of the possibility of injuries.
“It is well established that a voluntary participant in sporting events has consented, by their participation, to injuries which are apparent or reasonably foreseeable consequences of the participation. (Turcotta v. Fell, 68 NY2d 432). When the risk of a sporting activity is fully comprehended and apparent, the participant has consented to them and the defendant has performed its duty. (Id.) An infant plaintiff, a wrestler, was held to have assumed the risk of a blow to the jaw in a take-down move, (Edelson v. Uniondale UFSD, 219 AD2d 614), and to have assumed the risk of being thrown down to the floor by a teammate during practice when half his body landed on the mat and the other half landed on the hardwood floor surrounding the mat. (Egger v. St. Dominic High School, 238 AD2d 542).”
The appeals court noted that the plaintiff, who had never wrestled before joining his school's team, had participated in eight wrestling matches as of the date of the subject wrestling match.
It then went on to examine the doctrine of primary assumption of risk, which mandates that “a voluntary participant in a sporting or recreational activity, ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’” (Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 677, 961 N.Y.S.2d 178, quoting Alqurashi v Party of Four, Inc., 89 AD3d 1047,1047, 934 N.Y.S.2d 214, quoting Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127; Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49; Viola v Carmel Cent. School Dist., 95 AD3d 1206, 1207, 945 N.Y.S.2d 155).
“The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon.” (Castro v City of New York, 94 AD3d 1032, 1032, 944 N.Y.S.2d 155; see Viola v Carmel Cent. School Dist., 95 AD3d at 1207).
“If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies.” (Cotty v Town of Southampton, 64 AD3d 251, 254, 880 N.Y.S.2d 656; see Bocelli v County of Nassau, 93 AD3d 747, 748, 940 N.Y.S.2d 660; Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194, 1195, 924 N.Y.S.2d 474; Rosenbaum v Bayis Ne'Emon, Inc., 32 AD3d 534, 820 N.Y.S.2d 326).
However, “a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658, 541 N.E.2d 29, 543 N.Y.S.2d 29; see Schmidt v Massapequa High School, 83 AD3d 1039, 1039, 921 N.Y.S.2d 547).
“Here, the defendants failed to establish, prima facie, that the injured plaintiff, by participating in the wrestling match, assumed the risk of being injured in the manner in which he allegedly was injured here. The defendants' moving papers failed to demonstrate, prima facie, that the allegedly dangerous condition caused by the improperly taped or secured mats did not unreasonably increase the risk of injury inherent in the sport of wrestling. (see Blumstein v Half Hollow Hills Cent. School Dist., 96 AD3d 702, 703, 945 N.Y.S.2d 426; Cotty v Town of Southampton, 64 AD3d at 254; Laboy v Wallkill Cent. School Dist., 201 AD2d 780, 781, 607 N.Y.S.2d 746).
“Since the defendants did not establish their prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs' opposition papers.” (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).
Anthony C. Philippou, etc., et al. v Baldwin Union Free School District, et al.; S.Ct.N.Y., App. Div., 2d Dept.; 105 A.D.3d 928; 2013 N.Y. App. Div. LEXIS 2494 2013 NY Slip Op 2556; 4/17/13
Attorneys of Record: (for appellant Baldwin Union Free School District) Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel). (for appellant Lawrence Public Schools) Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel),. (for respondents) Nathaniel M. Swergold, Cedarhurst, N.Y.This article originally appeared in Sports Litigation Alert. World Sports Law Report editor Andy Brown writes a European round-up for Sports Litigation Alert. A search through World Sports Law Report’s archives, which contain over ten years of archives sports law information, found almost 30 articles relating to liability. To access the archive, sign up for a free trial here.
Wednesday, July 31, 2013
Creation of new violations
Significantly, two new Anti-Doping Rule Violations (ADRV) have been introduced into the new Code:
• new article 2.9 makes ‘complicity’ in an ADRV a violation; this was arguably always the case, but the new Code clarifies the position; and
• new article 2.10 creates a violation of ‘prohibited association’. This violation was proposed early in the consultation process and has survived into this likely final draft despite being the subject of some debate. In short, new article 2.10 makes it a violation for athletes and athlete support persons to ‘associate’ with a coach or trainer who is currently serving a ban, or has in the last eight years been convicted of conduct that would amount to a violation.
There are other conditions in place, but in certain close-knit sporting communities, the enforcement of this rule may cause sport some headaches (for example: a husband and wife scenario where one is serving a ban and the other remains an athlete. The same applies for parents and children, neighbours, and so on). No doubt education and guidance on the application of this ADRV will need to be introduced to sport.
These two new rules raise the number of ways an individual can fall foul of the Code from eight to 10.
Retirement and return to competition (Article 5.7)
Typically, retired athletes must sit out a period of time between returning from retirement to actually competing in sport. This sitting out period was originally designed to ensure that returning athletes, who during their retirement were not subject to testing, did not return to sport with the benefits of having been able to use prohibited substances. New Article 5.7 enables an application to be made to WADA to waive this rule on a case-by-case basis in circumstances where a strict application of the rule would be manifestly unfair to an Athlete. The effect in Australia is that retired athletes may be more likely to consider returning to sport if there is the possibility they can compete immediately. Hence, sports may wish to consider implementing some policies or guidelines on handling such matters, particularly around selection time for major events.
Therapeutic Use Exemptions (Article 4)
There are a number of changes to the TUE system that are designed to create mutual recognition for TUEs across sport. In short, the system hasn't changed insofar as non-international level athletes should continue to apply to their National Anti-Doping Organisation (NADO), and international level athletes should continue to apply to their International Federation (IF). However, the new Code establishes that if an athlete holds a TUE that meets the International Standard requirements, then the IF must recognise it. Similar rules are in place for Major Event Organisers. That is, appropriate nationally granted TUEs will suffice for athletes, and they won't have to go through the existing hassle of applying to multiple TUE committees. This addresses the current problem of athletes attending events believing they had a TUE in place, only for it to not be recognised. It will be interesting to see whether, in practice, TUEs granted to athletes from developing or non-established NADOs, or areas where there is a suspicion of irregular practices, will be considered acceptable to the sporting world at large.
Mandatory Provisional Suspension elimination (Article 7.9.1)
In circumstances where an athlete can establish that their ADRV is likely the result of a contaminated product, the mandatory Provisional Suspension can be eliminated. This new article is one of a number of new articles that are introduced with a view to increasing proportionality relating to sanctions in the Code. In practice however, it may not operate as smoothly as intended: it may take time and effort for an athlete to prove a product contaminated, and until they do so they are likely to be provisionally suspended anyway.
Sanctions (Article 10)
The area of the Code with the most changes is Article 10, which deals with sanctions. The intent behind the changes is that WADA wants sports to take a harsher line on intentional doping and to have more flexibility when it comes to inadvertent doping. By way of example:
• bans will be four years for Prohibited Substances that are not Specified Substances, unless the athlete can show that the use of the Prohibited Substance was not intentional. Presently, the starting point for a ‘standard’ sanction is two years, which can be increased to four years for aggravating circumstances.
The new changes will mean that the starting point (for non-specified substances) will be four years, and this can be reduced where the athlete establishes non-intentional use. Hence, the onus is reversed from the sport having to show aggravation to increase the ban, and placed on the athlete to show lack-of-intent to lessen the ban;
• bans for Specified Substances can also be four years if the NADO can establish that the use of the Prohibited Substance was intentional. Under current interpretations, this may potentially lead to a four-year ban for the supplement-based stimulant cases that we see and hear so much about.
In Australia, unlike some other jurisdictions globally, the methylhexaneamine supplement cases commonly receive sanctions of a two year ban due, in part, to the athlete being unable to show 'no intent to enhance performance'. By extension, under the new regime, if the NADO can prove an intent to enhance performance (as opposed to the athlete being unable to prove no intent to enhance performance), the athlete may face a four year ban;
• bans for Evading, Refusing or Failing to Submit to Sample Collection, and for Tampering will also be four years, and will be from four years to life for Trafficking and Administration. Prohibited Association will range between one to two years based on the Athlete’s degree of fault; and
• if an athlete can establish that a product was contaminated, their ban may range from a reprimand up to two years. The effect of this is that in genuine contamination cases, innocent athletes may not face any time out of their sport. Currently athletes in this situation typically can hope at best for a 12-month ban under the No Significant Fault or Negligence provisions.
Substances of Abuse (Article 10.5.1.3)
A new article for substances of abuse has been included. It specifically refers to cocaine and cannabis, but others may be forthcoming. For a finding involving these substances, a penalty between a reprimand and up to one year may be imposed, and this will depend on the athlete being able to show that their use was unrelated to sport performance. Rehabilitation may also be imposed in place of part of the ban. Combined with the fact that WADA has also recently increased the detection limit for cannabis ten-fold, this sends a clear message to sport world-wide of how WADA wants these types of matters to be processed.
Other new provisions include a requirement for athletes to cooperate with investigations into ADRVs. This is a timely inclusion, and echoes the ASADA Amendment legislation recently passed by the Australian parliament. Interestingly, There was a suggestion in the early drafts of the Code changes that WADA wanted to eliminate the ‘B Sample’ process. It was argued that it was too expensive to maintain, and particularly in circumstances where the B matched the A in almost every case, it had become redundant. The new Code however clarifies that the B Sample will remain. It was considered too important to maintaining a fair system and protecting athlete's rights to omit. WADA is also updating their International Standards that deal with testing, laboratories, privacy and so on.
Richard RedmanSenior Associate Garth TowanLawyerLander & Rogers, Australiarredman@firstname.lastname@example.org
This article originally appeared on the Lander & Rogers internet site here.
Hats off for a striking own-goal scored by Premiership Footballer Papiss Cisse in his dispute with Newcastle United FC (see our post of 15 July – Football Strip Adds Interest to Debate). To re-cap, Cisse has refused to wear Newcastle’s usual strip because the activities of its shirt sponsor, Wonga, offend Sharia and Islamic principles relating to the charging of interest on loans.
No solution to that issue has yet been reported, but you can expect what little sympathy Newcastle fans and bosses might have had for his position to have been significantly eroded by the recent appearance of photographs of Cisse in the City’s Aspers Casino. Aspers confirms Cisse as an ‘occasional visitor’ (i.e. more than once) who is – perhaps by way of distinction from other visiting footballers – “very well-behaved and very welcome”. The casino would not confirm whether Cisse did actually gamble – another infringement of Sharia law – and his agent denies it, but the photo of him sitting at a dealing table, hat pulled down (hats only permitted in the Poker Room, reveals Aspers’s dress code, oddly), may then take some explaining.
Helpful this may be to Newcastle’s PR position in its dispute with Cisse about the Wonga branding, but does it actually alter the law behind it? It would be a brave employer which took from an employee’s marginal respect for one tenet of his faith that he must therefore be equally willing to ride roughshod through others. However, the Cisse question is a little different. His issue with Wonga is not that it requires him to breach Sharia law in benefiting from the charging of interest, but that his wearing the strip promotes an organisation which does, and so gives the wrong impression to other Muslims. It is a much harder argument to contend that you are willing to be associated with certain non-Islamic behaviours and not others. At least with the strip issue, Cisse could argue that he is contractually bound to wear it and that his contract expressly prevents his wearing it being used to indicate his support for the sponsor. Periodically wandering into Aspers, on the other hand, must be seen as wholly voluntary and so quite without the same possible mitigation. Whether he did actually gamble is then about as relevant as whether he does actually lend money at usurious interest rates, i.e. not at all.
Cisse’s local councillor and a supporter in the Wonga debate says: “Islam is not about picking and choosing”. Maybe not, but his appearances in one of the region’s premier gambling joints have certainly lengthened the odds on his chances of success were this particular off-field drama ever to be played out in the Newcastle Employment Tribunal.
David WhincupPartnerSquire Sanders, Londondavid.email@example.com
The article originally appeared on the Squire Sanders Blog, here.
Samantha McHugh, a Solicitor at King & Wood Mallesons, provides an interesting insight into how parody Twitter accounts of famous athletes can lead to confusion and offence, and how athletes can best avoid that situation.
Soon after publishing our post about Adam Gilchrist’s Twitter twin, we received a direct approach from @AdamCGilchrist, the account in question:
‘Hi, thanks for following. What are you saying I need to change on my account in your tweet? It was not my intention for all of this that has happened, it was supposed to be just a bit of fun parody account and I certainly didn’t want to offend Gilly. I’m amazed that the journalist didn’t do due diligence as it clearly states parody obviously on my account and there is no blue tick next to my name. If you read the tone of most of my tweets – I would have thought it was ‘parody obviously’ – certainly didn’t expect any of this. Thanks for your time’.
We’ll share ‘Fake Gilly’s’ side of the story shortly, but for those who missed it, here’s the background. Back in July 2012, the @AdamCGilchrist Twitter account was set up. The profile of the account did then, and has always clearly stated ‘Parody, obviously’. The person behind the account went about Tweeting all things cricket from the parody POV of the great man, Gilly. Last week, the account began live-Tweeting the opening Test of the 2013 Ashes – the ups, the downs, and the controversies. Little did our mystery Tweeter know he was about to be embroiled in a controversy all of his own.
After England’s Stuart Broad contentiously refused to ‘walk’ on day three, social and mainstream media were abuzz with opinion. Given the well-known incident from the 2003 World Cup semi-final, in which Adam Gilchrist showed true sportsmanship by walking, even though he was given ‘not out’, it is no surprise the parody account was sparked into action. The @AdamCGilchrist account Tweeted a series of Tweets about the incident, which were then falsely attributed by mainstream media, including Fox News, as originating from Adam Gilchrist himself:
‘Former Test wicketkeeper Adam Gilchrist, who earned a reputation during his playing career for not waiting for the umpire’s verdict and walking back to the pavilion, was angered by Broad’s decision. “Some people saying, you rely on the umpire. No you don’t, you rely on honesty”, Gilchrist tweeted, adding: “Disappointed by the Poms today, if you’re out - you walk”’.
Given the way Twitter feeds and conversations operate - where a user’s full profile is not displayed unless you choose to click to a new page - it is understandable (though not excusable) that such mistakes can happen.
Reports suggest the real Gilchrist has since launched his own Twitter feed to plead with the ‘imposter’ to shut the account. Is it fair, however, for @AdamCGilchrist to be pilloried in this way?
Twitter parody accounts
Twitter’s guidelines permit parody accounts, as long as they comply with Twitter’s various policies. We can only speculate about the basis for Twitter’s parody policy, although it’s well known that its CEO, Dick Costolo, is a former improvisational comedian who started out with the likes of Steve Correll. In other words, not taking Twitter too seriously, and having a sense of humour about it, is perhaps a lesson to all of us that ‘social’ is a core ingredient of ‘social media’.
@AdamCGilchrist is in good company with parody Twitter accounts forming a species of their own, some lauded, some less so. Take for example: ‘Not Mark Zuckerberg’, The New York Times and HRH Queen Elizabeth (which has more than one million followers).
Indeed, one of the trending parody accounts during the 2013 Tour de France is @TweeterSagan, who mimics the Slovak accent of the great sprinter during his Twitter feeds:
‘It true, I suck compare to Cav. But compare to green jersey? I still first’.
2 RETWEETS 1 FAVORITE
Our fireside chat with ‘fake Gilly’
Exploring why people get involved with parody accounts is helpful in understanding this niche aspect of social media. For insights, we look no further than ‘Fake Gilly’, who has been kind enough to answer some questions we put to him. His responses are below.
1. What are your interests when you’re not tweeting as @AdamCGilchrist?
I’m a big sports fan as you can imagine, cricket, tennis, golf, soccer. I also have a wife and two kids whom I love spending time with. I occasionally like to travel as well when the opportunity arises through work and have spent several months in different parts of the globe.
2. What inspired you to open this parody Twitter account?
I thought it would be good fun. There are thousands of parody accounts on Twitter, some of which are really funny and I fancied trying my hand at it. I wanted to exchange views with fellow cricket fans with a bit of ‘tongue in cheek’ and to spark a bit of banter.
3. Why Gilly?
I thought Gilly would be a good one to do as a typical, upstanding, traditional Aussie bloke. If you look at the tone of a lot of my tweets they would be best read with a strong Aussie accent – particularly the ones where I talk about spending time on Gilly Ranch. I thought there would be a fair bit of humour in the role of supporting Shane Warne as mentioned in my bio following the years that we heard ‘bowling Shane’, ‘lovely Shane’, keep ‘em coming Shane’ etc.
4. How much time do you spend on the account each day?
When time allows, you will note that sometimes I don’t go on for a few days and then at other times I can go on four or five times in one day. I was particularly keen to tweet about the Ashes.
5. Do you operate any other parody accounts (whether on Twitter or otherwise)?
No, not at the moment, although I have been considering starting another one for some time.
6. If yes, would you be willing to reveal which ones?
7. Did you know about Twitter’s Parody Policy before this?
Not really, I thought the statement of ‘parody, obviously’ in the bio would be enough – and obviously I will never have a blue tick next to my name.
8. What do you love most about Twitter?
It’s a great opportunity to chat and exchange views, it’s a quickfire forum and I don’t think it should be taken too seriously.
9. Can you give us any tips on how we too could end up with more than 6,000 followers?
Ha, given Gilly’s popularity I followed a few people in cricketing nations such as India, Pakistan, England and Australia which led to getting some follow backs. Once I then started getting a few retweets along the way the account picked up pace. I’ve also had a few mentions/ retweets from famous cricketers along the way, which usually show a spike in followers afterwards.
10. How have you felt about reaction by Adam Gilchrist to the parody account? Do you think it might impact your own conduct in the future?
If I was misquoted by the press I’m sure I would be frustrated too, although I repeat I’m amazed the press were able to make such a mistake in the first place. I do think however that Gilly might not feel so badly about me if he read the account and saw that I’m not actually trying to be him but just to provide a bit of light entertainment and the occasional view on cricket. I would love the opportunity to apologise to him for the furore that has occurred and for the fact I have led to him being ‘misquoted’, but I would also love to explain to him the ideals of the account and that offence was never intended.
Fake Gilly PS – yes I am ‘he’. PPS – I think the Gilchrist who took to Twitter to ask me to stop is also a fake although I might be wrong. Gilchrist did an interview with the BBC after that account was set up and said he had never been on Twitter.
Managing parody Twitter accounts
It is for others to assess how they feel about parody accounts. We consider it incumbent on us to suggest a few tips to help all stakeholders manage the question of Twitter parodies.
• If you’re a journalist, check a user’s profile before attributing quotes. This means you won’t be left with egg on your face. This incident could easily have been avoided.
• If you’re starting a parody account:
- read Twitter’s Parody Policy;
- make clear that it’s a parody (have a think about what a ‘parody’ means, how you want readers to interpret your tweets, and whether each tweet should have a humorous tone. According to the Macquarie Dictionary, a parody includes “to imitate (a composition, author etc.) in such a way as to ridicule”);
• ensure your Twitter handle and username are not identical to the person’s name [Perhaps @AdamCGilchrist could change his handle to @notadamgilchrist or @thegreatgilly, with a corresponding user name]; and
• use images carefully. You will infringe copyright of the photographer/agency if you reproduce their photo without permission.
If you’ve been parodied:
• can you grin and bear it? Sometimes a laissez-faire approach is best;
• why not get on Twitter yourself (with a verified account displayed by the blue tick to which @AdamCGilchrist refers)? You could reap the benefits of those thousands of followers currently following your impersonator; and
• If not, and users are clearly confused, consider reporting to Twitter.
By Samantha McHugh, Natalie Hickey and Daniella Phair. This article originally appeared on IP Whiteboard here.
Thursday, July 25, 2013
Since it came to light that US sprinter Tyson Gay and five Jamaican athletes have reported positive A-samples last week, pandemonium has ensued. Newspaper articles have consistently described sprinters Gay and Asafa Powell as cheats, despite both insisting that they have never knowingly taken a banned substance. “We do not know the pathology in these particular cases but the broader message is simple: abnormalities will be found out”, Lord Coe told the Daily Mail. “There is no ambiguity about that. We will get rid of the cheats.”
WADA President John Fahey commented in a similar vein. “Every athlete in the world is responsible for what goes in his or her system – that’s the start and finish”, he told the Independent. “Every athlete has to make sure they know what they’re doing. My take is that no matter how big or great you are as a star and whatever your sport you’re not beyond the capacity to be found as a cheat through the methodology adopted.”
Understandably, the media have focussed on the second aspect of this – rooting out the cheats. As the above quote from Coe illustrates, we do not yet know the pathology in these cases, yet he goes on to talk about getting rid of cheats. Before his quote, which could be taken as labelling Gay and Powell as cheats, Fahey tells the Independent that he will not discuss individual cases while ongoing!
Neither the US Anti-Doping Agency (USADA) nor Gay has announced the substance involved in returning the positive A-sample. “I don’t have a sabotage story”, said Gay in a telephone interview with ABC News. “I don’t have any lies. I don’t have anything to say to make this seem like it was a mistake or it was on USADA’s hands, someone playing games. I don’t have any of those stories. I basically put my trust in someone and I was let down.”
A USADA statement read: ‘In response to Mr. Gay’s statements, USADA appreciates his approach to handling the situation and his choice to voluntarily remove himself from competition while the full facts surrounding his test are evaluated. The B-sample will be processed shortly, and as in all cases all athletes are innocent unless or until proven otherwise.’ In other words, Gay is still innocent until the B-sample is returned.
Powell released the following statement: ‘I will confirm that a sample I gave at the National Trials in June earlier this year has returned “adverse findings”. The substance oxilofrine (methylsynephrine) was found, which is considered by the authorities to be a banned stimulant. I want to be clear in saying to my family, friends and, most of all, my fans worldwide that I have never knowingly or wilfully taken any supplements or substances that break any rules. I am not now – nor have I ever been – a cheat.’
Powell’s statement confirms that his team is investigating how the substance got into his system and that he has also withdrawn from the International Association of Athletics Federations (IAAF) World Championships, Moscow, 10-18 August. The Jamaica Gleaner republished a statement from sprinter Sherone Simpson reporting a positive test for the same substance.
Oxilofrine (methylsynephrine) is listed as a stimulant under S6 of the World Anti-Doping Agency’s (WADA) 2013 List of Prohibited Substances and Methods. It is understood to be an ingredient in some dietary supplements. In 2010, cyclist Flavia Oliveira was banned by the United States Anti-Doping Agency for two years after reporting a positive test for oxilofrine. In the decision, she contends that oxilofrine may have entered her system due to consumption of a supplement Hyperdrive 3.0+, which doesn’t list oxilofrine on its list of ingredients but does list methylsynephrine, which didn't appear on WADA’s 2012 List but is understood to have a similar chemical structure.
Of the Jamaican athletes, only one (understood to be Powell) has requested testing of their B-sample, and the athlete has been notified of two possible dates for this by the Montreal laboratory accredited by the World Anti-Doping Agency (WADA) involved with testing the A-samples. The Jamaican Anti-Doping Commission (JADCO) is awaiting instructions from the other athletes before referring any cases to the Jamaica Anti-Doping Disciplinary Panel, reads a 15 July statement from Jamaican Prime Minister Portia Simpson Miller.
‘Let me take this opportunity to assure the Members of this Honourable House and the People of Jamaica that Jamaica - through its Anti-Doping Agency, JADCO - has consistently had a rigorous programme for in and out of competition testing while providing public education for all who participate or wish to participate in sport, including at the high school level’, reads the statement. ‘Questions have been raised regarding the delayed response of the Government to the public announcement of these findings. Let me assure you, Mr Speaker that as a Government we have made every effort to adhere to the rules governing the notification of the athletes whose A-Samples have returned Adverse Analytical Findings following testing at the National Junior and Senior Championships in June. Indeed, Mr Speaker, one of the athletes was only notified yesterday as he was travelling, so we had to delay our public statement until we were sure that due process was observed.’
In other words, what we have here is a number of athletes who have been labelled as cheats by the media following the return of a positive A-sample, despite the fact a positive test is inconclusive until the B-sample is returned. Of those that have confirmed the substance in their system, we know it to be an ingredient that sometimes goes under different names on the label of certain supplements. Therefore, is it right to label them cheats at this stage?
There could also be a commercial angle to this. Reuters reports that Chinese sportswear company Li-Ning has suspended its sponsorship agreement with Powell. If Powell’s B-sample comes back negative, does he have a legitimate claim against Li-Ning for unlawful termination of a contract? Even if the sample comes back positive and Powell is found to have inadvertently doped, after checking a supplement’s ingredients, he could still have a case.
Those involved in policing against doping in sport need to be careful not to be pulled in by their own rhetoric. Yes, sport needs to get tough on doping cheats, but it also has a role to play in supporting athletes accused of doping until they are proven to be cheats – a role that is becoming increasingly forgotten. Athletes such as Gay and Powell have not yet been proven to be cheats. Until that day comes, the sporting community has a duty to support them.
World Sports Law Report organises Tackling Doping in Sport in association with UK Anti-Doping, which will be held 19-20 March 2014. A search on World Sports Law Report's archives revealed five articles mentioning the Oliveira case. The archive contains over ten years worth of sports law information. To access this invaluable resource, click here for a free trial to World Sports Law Report.
Tuesday, July 16, 2013
Retailers concerned about protecting their valuable trademarks recently secured a meaningful victory. On 28 June 2013, a Federal court in Manhattan awarded the National Football League (NFL) a $273 million judgment against the operators of more than 1,000 websites who were selling counterfeit NFL merchandise. This case, while providing a substantial financial award to the trademark owner, was also notable because only two months had elapsed between the time that the NFL filed its complaint and request for a preliminary injunction until the court rendered its judgment.
The defendants in this case were Asian counterfeiters who manufactured counterfeit NFL products outside of the US. The defendants then globally marketed and sold the products through their websites, many of which were designed to appear as if the NFL had authorised them. Further, these sites were in English, accepted payment in US dollars through a variety of portals such as PayPal and Western Union, claimed to provide superior customer service, and concealed the fact that the website registrants were not located in the United States.
The NFL, after determining that its valuable brand would incur significant irreparable harm from the defendants’ conduct, sued the defendants alleging federal trademark counterfeiting and infringement, cybersquatting, unfair competition and false designation of origin, as well as other state unlawful deceptive acts and practices. Specifically, the NFL claimed that the defendants:
• were part of a network of counterfeiters who engaged in the manufacture, importation, distribution, advertising and sale of products designed to look like genuine NFL products;
• without the NFL’s authorisation and in order to deceive NFL customers, used the NFL’s marks on websites designed by the defendants to appear as if they were authorised by the NFL;
• registered the domain names with a bad faith intent to profit from the unauthorised use of the NFL’s marks; and
• used the NFL’s marks in a manner likely to cause, and which has caused, confusion, mistake, and deception by and among consumers.
The NFL sought an injunction to prevent the defendants from using its marks, to have the infringing domain names disabled, and to transfer control of defendants’ registration, ownership, and control of the infringing URLs to the NFL. In addition, the NFL sought disgorgement of defendants’ profits realised from the sale of the counterfeit goods, statutory damages of $2 million for each and every NFL mark wilfully counterfeited by each defendant, as well as statutory damages of $100,000 per infringing domain name. Finally, the NFL sought its attorney’s fees and costs associated with the litigation.
When the defendants’ failed to appear, the court issued the NFL a default judgment. In so doing, the judge awarded the NFL maximum statutory damages totalling $150 million for wilful counterfeiting of the NFL’s products along with maximum statutory damages totalling $123.3 million for wilful cybersquatting. The Court allowed the NFL to collect money directly from the defendants’ PayPal accounts until the granted monetary relief had been collected in full, and to collect directly from the PayPal accounts of any of defendants’ newly discovered aliases, businesses, and/or websites. The judge also granted the NFL ownership and control of all the currently infringing domain names. Any newly discovered infringing domain names defendants controlled were also to be transferred to the NFL.
This case is a victory for retailers and others seeking to protect their trademarks from these opportunistic infringers. Because it did not have to engage in the extensive discovery and other related litigation activities that usually accompany a lengthy court proceeding, the NFL only had to invest a small amount of money in order to preserve its brand integrity and reputation. In the end, the NFL was able to recover significant money and maintain its global consumer goodwill.click here. A search on World Sports Law Report's archives revealed over ten articles dealing with counterfeit products. The archive contains over ten years worth of sports law information. To access this invaluable resource, click here for a free trial to World Sports Law Report.
Tuesday, July 02, 2013
BT Ofcom complaint over BSKyB's supply of Sky Sports channels: previous complaint against Sky dismissed
British Telecom (BT) has made a complaint to the UK's Office of Communications (Ofcom) alleging that the terms on which BSkyB offers its Sky Sports channels to the YouView platform constitute abuse of a dominant position, contrary to Article 102 of the Treaty on the Functioning of the European Union. BT indicated that BSkyB has refused to supply Sky Sports 1 & 2 to the YouView platform unless BT supplies its BT Sport channels wholesale to BSkyB.
Ofcom has opened an investigation under section 25 of the Competition Act 1998, to consider whether BSkyB is in breach of UK or EU competition law. A decision on interim measures requested by BT is expected in July.
The complaint was made in the same week that Ofcom ruled on an earlier complaint made by BT in April that BSkyB unduly discriminated against it by refusing to air advertising for BT’s new television sports channels on Sky Sports channels, holding that BSkyB’s refusal was justified.
BSkyB refused to advertise BT Sport on Sky Sports, given the level of their investment in those channels. BT complained that this was in breach of the Code on the Prevention of Undue Discrimination between Broadcast Advertisers. Ofcom investigated the complaint and delivered its ruling last week, dismissing the complaint stating that by refusing to promote a rival’s sports coverage on its sports channels BSkyB was ‘pursuing a legitimate commercial interest’.
BT will be hoping for a decision on their more recent complaint in advance of the start of the next Premier League season in August. A positive result for BT would allow them to offer the full range of live matches on their YouView service, while denying BSkyB the ability to offer its satellite subscribers coverage of BT’s 38 live matches.
Andrew Preston, TraineeDLA Piper
Methylhexaneamine is classified as a stimulant under Section S6 of the World Anti-Doping Agency's (WADA) Prohibited List of banned substances. The likely source of the substance in Dominique's system is a supplement she was taking called Nuerocore. An examination of the Nuerocore label showed one of the ingredients as 'geranium extract (as Geranium robertianum, aerial parts)'. Methylhexaneamine is a component of the geranium extract.
As I explained in a 2009 Gleaner article, methylhexanamine (more properly called 4-methyl-2-hexanamine) is a natural compound found in tiny amounts in the oil from the leaves and stalk of the geranium plant. The oil is clear to light green in colour and has a minty-flowery smell. It is used mainly in the food and perfume industries. Methylhexanamine is the same substance for which Yohan Blake, Marvin Anderson, Lansford Spence, Allodin Fothergill and Sheri-Ann Brooks returned positive tests in 2009.
Back then, methylhexaneamine was not on the WADA Prohibited List of banned substances. It was put on the following year. Why were the athletes (except for Sherry-Ann Brooks) penalised, then? This was because WADA's 2009 List, while not naming methylhexaneamine specifically, included it under a broad category with 'tuaminoheptane and other substances with a similar chemical structure or similar biological effect(s)'.
I disagreed then and I disagree now with lumping compounds together under 'similar chemical structure'. This is because, without rigorous scientific analysis, one cannot equate similar biological effect with similar chemical structure. It is the similarity in biological effect which is important. Indeed, there are about 80 other compounds, as yet unnamed on the WADA List, which are similar in structure to tuaminoheptane and methylhexaneamine. They can all form the basis of career-ending decisions by the Jamaica Anti-Doping Commission (JADCO) and WADA, but are yet unnamed.
The main 2012 WADA List (The 2012 Prohibited List International Standard), which Dominique said she used to check her supplement, does not list 'geranium extract (as Geranium robertianum, aerial parts)' as a banned substance. This was part of Dominique's defence. However, as she found out, there is another 2012 WADA List called the 'Summary of Major Modifications and Explanatory Notes'. Rather than 'summarising', this List provided an additional six names for methylhexaneamine.
Within this 'Summary' listing, methylhexaneamine is described as 'geranamine, geranium root extract, or geranium oil, etc'. These names are close enough to those on her Nuerocore label, JADCO concluded, for Ms Blake to have been duly warned. So if an athlete was unaware that there is a supplementary List that must be checked as well, please be informed now. And what about the trade names and the many other names (such as dimethylpentylamine, 4-methyl-2-hexanamine, and Forthan) under which methylhexaneamine is sold in the many supplements out there? The WADA List does not cover most of them, and athletes without scientific support can feel like they are in a loaded minefield, where even the best due diligence can come up short.
No scientific data
The situation is made more complicated by the absence of any scientific data which support the view of any performance-enhancing properties of methylhexaneamine. Indeed, the only study that I am aware of that investigated this (in searching more than 100 years of scientific literature) is a 2011 paper by Richard Bloomer et. al. in the Journal of Caffeine Research. The study showed that methylhexaneamine had no effect at all on athletic performance. Why is methylhexaneamine on the list then? Only WADA can say.
While WADA has an enormous job to do to weed out those who cheat by deliberately using performance-enhancing substances - and, in that regard, it must be supported - in many ways the present system is a minefield that is difficult to navigate, even for the most diligent athlete. The penalty for the athlete's transgression is so great that the following measures must be introduced sooner rather than later:
• WADA must present hard scientific facts on the banned substances in every single case to support sanctions. The scientific studies to date do not show any evidence that methylhexaneamine enhances athletic performance, yet the substance carries a severe penalty.
• The WADA List must be updated constantly to reflect all the scientific names, common and trade names of the banned substances therein. About half of the alternative names of methylhexaneamine are not on the WADA Lists, and;
• Only one List per year is necessary. If a summary List has to be used, it should not contain additional information, as this just makes things more difficult for the athletes. For example, the summary list for methylhexaneamine contained six different names other than those on the main List. An athlete could miss these if he or she checked the main List only. In Dominique's case, this oversight contributed to her six-year ban.
In all of this, our athletes need scientific support, replete with the appropriate education and training to navigate this obstacle course. The most recent case of Veronica Campbell-Brown returning a positive test for the banned diuretic Lasix serves to emphasise this. We have to act now! We can't afford for our athletes to make mistakes that can taint and ruin promising careers.
Peter L. Ruddock, PhD, is a medicinal chemist and served as expert witness for the defence team of Yohan Blake, Marvin Anderson, Lansford Spence, and Allodin Fothergill (v JADCO) in 2009, and for the legal defence team of Dominique Blake in Blake v JADCO in 2013.
This article was originally published by the Jamaica Gleaner here.
Friday, June 21, 2013
The two major regulations governing the payment of solidarity mechanism and training compensation in Portuguese football are the collective labour agreement for professional football players (CCT)1, and the regulations of the Portuguese Football Federation on the status and transfer of players (PFF Transfer Regulations). The amount of training compensation that shall be due to the training club immediately following the signing of a first professional contract by a player is mandated by Article 28 of the CCT, as well as by Article 20 of the PFF Transfer Regulations.
The rules of the federation
Under article 20 of the PFF Transfer Regulations, training compensation is payable to all the club(s) involved in the training and development of the player:
• When the player signs his first professional contract.
• Each time the professional player transfers to another club up to the end of his 23rd birthday.
• When the professional is transferred between clubs or two different associations (whether during or t the end of his contract), before the end of his 23rd birthday.
Annex 4 of these regulations establishes a table similar to the one contained within the FIFA regulations for training compensation. Training compensation is not due when:
• the training club terminates the player's contract without just cause2;
• the player is transferred to a category 4 club;
• the professional re-acquires amateur status upon being transferred.
In accordance with Article 3 annex 4 of the PFF Transfer Regulations, the duty to pay training compensation lies with the club which registers the player as a professional for the first time. It must pay all the clubs which contributed to the training and development of the player from his 12th birthday.
Article 5 Annex 4 of the PFF Transfer Regulations mandates that the amount due to all previous clubs involved in the player's development is calculated on a pro rata basis by multiplying the number of years the player spent training from his 12th birthday to his 21st birthday. In case of subsequent transfers, the same is calculated on the basis of the training costs incurred by the new club multiplied by the number of years of training spent by the player at the former club. For players aged 12-15, the training costs are assessed on the basis of the training and education costs of category 4 clubs.
The CCT provisions
Annex 3 Chapter 2 of the CCT foresees the indemnification of all training clubs for the development and training of players in two situations:
• When the player signs his first sporting professional contract.
• Compensation in situations besides this.
Annex 3 Chapter 2, Article 33 of the CCT entitles all the clubs involved in the training and education of amateur players to indemnity (compensation) immediately following the signing, by players, of their first professional contract. The minimum conditions entitling the training club to receive such payments are set out in Annex 3 Chapter 2, Article 33.2 of the CCT, and are as following:
• The training club must have communicated in writing to the player, before 31 May of the year in which the player's training period is due to end, informing him of its desire to enter into a professional contract with him on the terms, conditions and minimum remunerations that have been fixed for players by the competition in which the club has been integrated.
• The training club must submit a copy of this letter of intention to contract the player to the Portuguese professional football league and the Sindicato dos Jogadores Profissionais de Futebol (SJPF) no later than 11 July of the following year. The SJPF is the Portuguese professional footballer's union.
• The player must not, as at the 31st of December of the year when his 'contract' with the amateur club has come to an end, have reached the age of 24 years.
These minimum conditions must correspond to the value of the remuneration due under the previous 'amateur contract'. To this value, 10% is added from the list of compensation maintained by the Portuguese professional football league.
This amount must always, if possible, be agreed in writing between the clubs and the said agreement must be registered at the offices of the Liga Portuguesa de Futebol Profissional (LPFP). Annex 3 Chapter 2, Article 32.3 of the CCT requires the compensation to be paid within 30 days following the registration of the said agreement.
Pursuant to article Annex 3 Chapter 2, Article 33.6 of the CCT, in cases where the training club has terminated the amateur's contract without just cause, it is not entitled to receive any training compensation from the player's new club as and when the player signs his first or subsequent professional contract(s) in future.
Pursuant to Annex 3 Chapter 2 article 33.4 of the CCT, the amount of training compensation due to the former club shall not be less than 20 times the amount of salaries received by the player under his new professional contract. In cases where the player has played for more than one club during his training period, this amount shall be distributed proportionately among all the clubs involved in his training, according to the number of seasons spent by the player with them.
The LFPF maintains an annual list containing the names and amount of compensation due to the training clubs of all the players listed therein. This list must be sent no later than 15 June each year by the LFPF to the SJPF and the PFF. Annex 3 Chapter 2, Article 36 of the CCT requires any club which signs professional contracts with any of the players listed therein to communicate in writing to the player's training club(s) and submit relevant documentation to the LFPF.
Both rules are more or less similar and are applied in parri passu, with each making up for the other in situations of doubt or in cases which are unclear.
This is provided for by the rules of the PFF on the status and transfer of players. They are similar to and modelled around the FIFA regulations for the status and transfer of players.
The buying club must deduct 5% of the transfer fee agreed between it and the selling club. It must then distribute this fee (5%) to all the clubs for which the player played between his 12th and 15th birthday. For the clubs which the player played for during his 16th-23rd birthday, the buying club must pay them 10% of the transfer fee and not 5%.
It is the duty of the buying club to pay the solidarity mechanism to the previous clubs. This amount (5%, or 10% where applicable) is distributed equally among all the clubs involved in the training and education of the player. Pursuant to Article 20 of the PFF's Statutes, solidarity mechanism payments are paid on each occasion the player transfers, but only before the expiry of his contract and not for transfers effected by players who are out of contract. No payment is due for players who transfer on 'Bosman' free transfers.
Annex 5 of the PFF's Statutes establishes a table similar to the one maintained by the FIFA regulations on the status and transfer of players clarifying the different percentages used for calculating the amount (5% or 10%) according to the ages during which the player spent at each club.
Unilateral termination of contract
The rules governing the compensation due in cases where contracts are terminated with just cause for gross misconduct are provided for by the PFF Transfer Regulations and the Collective Labour Agreement (CLA) between the LFPF and the SJPF published in chapter 5 of the Portuguese labour official gazette3. The PFF transfer regulations contain no specific provision with regard to calculation of compensation in cases of termination with just cause. This relevant provision (Article 14) only says that: 'a contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause'.
The calculation of compensation is foreseen in the CLA. The rules of the CLA provide, under Article 48.1, that in cases where it is the player who has terminated his contract with just cause as a result of the club's gross misconduct, the player will be entitled to compensation equivalent to the amount he would have received had the contract been performed to its end. If the player signs a new contract, the amount that he will receive as from the new contract, and from the new season, should be deducted from the amount which he was allowed to receive from the original contract.
Pursuant to Article 48.2 of the CLA, the compensation only includes the basic remuneration and the eventual bonus due under the season in which the contract was terminated. This is without prejudice to the player's right to sue in civil courts for more compensation in case the damages he has suffered are greater than the amount he would have received under the contract, as provided for under article 48.3 of the CLA.
Under article 51.1 of the CLA, in cases where it is the club which has terminated the contract with just cause as a result of the player's gross misconduct, the club will be entitled to compensation for the damages suffered. In case the club benefits from the said termination (because it did not replace the player or it gets a new player with a lower monthly salary) the financial benefits received there from will be deducted from the damages suffered.
Felix MajaniConsultantCRA - Coelho Ribeiro e Associados, SCARL, Lisbonfelix.firstname.lastname@example.org
This article was originally published on Coelho Ribeiro e Associados' website, here.
1. Published in the Boletim Do Trabalho e Emprego (the Portuguese labour official
gazette) 1st serie number 33 of 8 September 1999.
2. Annex 4, Article 2(ii) of the PFF Transfer Regulations.
3. Ibid. footnote 1.
Thursday, June 20, 2013
Kutrovsky and Qerimaj; Oliviera and Foggo: these are cases all too familiar to sports lawyers representing athletes who have accidentally (or allegedly accidentally) fallen foul of the anti-doping regime. These cases represent two conflicting branches of Court of Arbitration for Sport (CAS) authority on the proper approach to intent and reductions of periods of ineligibility when an athlete says that he accidentally consumed certain prohibited substances, and they have continued to exercise the National Anti-Doping Panel in recent cases.
Specified substances under the WADA Code
The problem stems from the special provision under the World Anti-Doping Agency (WADA) Code for the consequences of a doping offence in respect of certain ‘specified’ prohibited substances (being a particular subset which is only banned in competition). If an athlete fails a drug test for a specified substance, he or she may be able to argue that he or she should benefit from one of either rule 10.4 or 10.5 of the WADA Code, which allow for a lesser penalty than the usual penalty for a first time doping offence of two years’ ineligibility.
Rule 10.4 provides that where a doping offence relates to a specified substance and the athlete can show how it came into his body and/or came into his possession, then the athlete may qualify for an elimination or reduction of the period of ineligibility – to somewhere between a reprimand and no period of ineligibility up to a maximum period of ineligibility of two years – if the athlete can establish ‘to the comfortable satisfaction of the hearing panel, the absence of intent to enhance the Athlete’s sport performance or mask the Use of a performance-enhancing substance’.
This test has led to a number of conflicting decisions on the question whether for an athlete to benefit from Rule 10.4, the correct question was whether he intended to take the specified substance to enhance his performance or whether he intended to take the product which contained the specified substance to enhance his performance. If, for example, an energy drink contains amphetamines, is the correct approach to ask whether the athlete intended to enhance his sporting performance (a) in taking the energy drink or (b) in taking the amphetamines?
CAS decisions: Oliviera and Qerimaj
In Oliviera, the CAS Panel hearing the case opted for the second of these potential answers, holding (at paragraph 9.14): ‘The Panel does not read clause two of Article 10.4 as requiring Oliveira to prove that she did not take the product (i.e., Hyperdrive 3.0+) with the intent to enhance sport performance. If the Panel adopted that construction, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADC, would render Article 10.5 inapplicable even if the particular supplement that is the source of the positive test result contained only a specified substance…’. This reasoning was agreed with by two further CAS Panels in the subsequent cases of Kolobnev (29 February 2012) and Lapikov (10 July 2012).
In Qerimaj (decided on 12 September 2012; shortly before Kutrovsky), another CAS Panel followed Oliviera in holding that nutritional supplements are usually taken for performance-enhancing purposes, which is not per se prohibited and that ‘…the primary focus can obviously not be on the question whether or not the athlete intended to enhance his sport performance by a certain behaviour (i.e. consuming a certain product), but moreover if the intent of the athlete in this respect was of doping-relevance’.
CAS decisions: Foggo and Kutrovsky
By contrast, a subsequent CAS Panel in Kutrovsky (3 October 2012) elected not to follow the Oliveira, Kolobnev, Lapikov decisions, and instead to follow the earlier case of Foggo (3 May 2011), in concluding that the mere fact that an athlete did not know that a product contained a specified substance did not itself establish the relevant absence of intent under Rule 10.4. This had not produced particular harshness in the Foggo case, as the CAS Panel concluded that Mr Foggo’s use of an energy drink called Jack3d was not intended to enhance his sporting performance. Likewise in Kutrovsky, the CAS Panel concluded that although the athlete could not come within Rule 10.4 (despite his ignorance that the Jack3d contained a specified substance), he could still benefit from Rule 10.5.2 on the basis that he was not significantly at fault.
Tough love before the National Anti-Doping Panel (NADP)
The Oliveira-Qerimaj line of authority was therefore promising for athletes who had failed doping tests in cases where they were unaware that the product contained a specified substance. Unfortunately for those athletes, in recent cases the NADP has rejected the attempt to rely on that line of authority and has instead endorsed the Foggo-Kutrovsky line, adopting a strict approach to the interpretation of Rules 10.4 and 10.5 (which allows for a reduction of the sanction in cases where the athlete was not or ‘not significantly’ at fault).
In the case of Whyte (NADP Decision 22 January 2013), a Panel of the NADP (noting that the prospective draft of the WADA Code and Commentary favours the Foggo/Kutrovsky approach) applied the Kutrovsky approach to find that the athlete had intended to enhance his sporting performance in using the same energy drink (Jack3d) as had been in issue in Foggo and, accordingly, that he could not benefit from Rule 10.4. However, contrary to the decision in Kutrovsky, the Panel concluded that the athlete could not benefit from a reduction on the basis of no significant fault under Rule 10.5.2 either, by reference to his inadequate investigations into Jack3d. Mr Whyte appealed to an Appeal Tribunal of the NADP. The Appeal Tribunal dismissed the appeal noting the duty of utmost caution imposed on athletes in the advisory opinion in FIFA v WADA (CAS 2005 IC.976 & 986). The Appeal Panel expressed doubt as to how the CAS Panel in Kutrovsky had reached its decision that Mr Kutrovsky was not significantly at fault, and dismissed Mr Whyte’s appeal on the basis that the inadequate inquiries made meant he could not benefit from a reduction for no significant fault under Rule 10.5.2. The Appeal Panel also set out a general warning and reminder stating:
‘This case emphasises, yet again, the dangers of athletes taking supplements which contain MHA. These risks have been the subject of a public warning by UKAD following the publication of the decision in UKAD v Wallader made on 29th October 2010. A number of sports governing bodies have issued warnings about MHA. On 28th August 2012 the Medicines and Healthcare Products Regulatory Agency removed Jack3d containing MHA from the UK market, following serious concerns about the safety of this substance. A list of supplements which have been tested to proper standards is available at www.informed-sport.com. Any athlete who uses a supplement which is not on that list is running a serious risk of attracting a doping violation.’
In similar vein, in the case of Llewellyn (14 February 2013) an eminent Appeal Tribunal composed of three Queen’s Counsel rejected the Qerimaj approach and took the exceptional step of expressly doubting the CAS decisions in both Oliviera and Qerimaj, stating at paragraph 5.42, ‘Suffice it to say that the Appeal Tribunal is of the view that Qerimaj and Oliviera should not in future be followed.’ This is a comment which James Segan has already discussed in his blog post on the need for a Grand Chamber of CAS to avoid the confusion of conflicting CAS decisions – see here. Despite having no power to overrule a decision of CAS, the NADP has therefore sent a clear message of its tough new intent. Some will argue this is the tough love the anti-doping system needs to be effective; others that this is harsh justice for individual athletes who through ignorance or naivety test positive for a prohibited substance through use of an energy drink or similar product.Tom MountfordBarristerBlackstone Chambers, Londontommountford@blackstonechambers.com
Members of Blackstone Chambers have been involved in a number of the cases above. Nick De Marco and Tom Mountford acted for the athlete in the NADP’s first decision in Whyte; Ian Mill QC and James Segan acted for the athlete in Lapikov; Robert Englehart QC was a member of the Appeal Tribunal in Llewellyn; Charles Flint QC was the Chairman of the Appeal Tribunal in Whyte; and Michael Beloff QC was a member of the CAS Panel in Kutrovsky.
This article originally appeared in the Blackstone Chambers Sports Law Bulletin here.
Wednesday, June 19, 2013
In recent years, sport has been no stranger to bizarre trademark claims, especially in the US. As World Sports Law Report highlighted in its April edition, National Basketball Association (NBA) star Jeremy Lin last year sought to trademark 'Linsanity', a phrase coined following a winning streak. He has been followed by another NBA star, Antony Davis, who has sought a number of copyrights based on his trademark 'unibrow'; and National Football League star Tim Tebow, who has trademarked his touchdown celebration as 'Tebowing'.
It appears that Tottenham Hotspur player Gareth Bale - or more likely agents who represent him - has been watching. Bale has sought to trademark his '11 of Hearts' goal celebration with the UK's Intellectual Property Office. Whether the IPO will accept such an application remains to be seen, however there is a jurisdiction where such an application would be welcomed - Guernsey.
The Channel Island, just off the coast of French Normandy, is a British Crown dependency, but as it is not part of the United Kingdom or the European Union, creates its own laws. At the end of 2012, the Channel Island of Guernsey created the world’s first registrable image right that can register a person’s image, nicknames, videos, mannerisms and distinctive characteristics. Tennis's Heather Watson has registered her image, and law firm Collas Crill IP was behind the deal.
'The very notion of image rights is hugely problematic from a UK perspective', wrote David Evans and Jason Romer of Collas Crill IP in the June edition of World Sports Law Report. 'Under UK law, there is no definition of an image right per se, and the Courts have struggled with various ways in order to try to fill this gap. The Guernsey Image Right allows your clients to register their images, nicknames, videos, mannerisms and any distinctive characteristics that identify them. These rights will be registered on the register and can include all of those features that are so difficult to define in a contract. We have all grappled with what a ‘gesture’ or ‘mannerism’ means in that definitions section before - now it really means something and can be directly referred to in relevant contracts'.
Perhaps Bale and his advisors should consider an IP transfer from the UK to Guernsey…
Tuesday, June 18, 2013
National Football League (NFL) commissioner Roger Goodell has said the Washington Redskins's nickname has 'a positive meaning' in a letter to 10 members of Congress, who had earlier urged team owner Daniel Snyder and the NFL to change the name because it is offensive to many Native Americans. The members of Congress sent their letters to Snyder, Goodell and the other 31 NFL franchises in May. Goodell's response was sent June 5, a copy of which can be viewed on the Indian Country Today Media Network.
'The Washington Redskins name has thus from its origin represented a positive meaning distinct from any disparagement that could be viewed in some other context', Goodell stated. 'For the team's millions of fans and customers, who represent one of America's most ethnically and geographically diverse fan bases, the name is a unifying force that stands for strength, courage, pride and respect'.
Betty McCollum (D-Minn.) and Eni Faleomavaega (D-American Samoa) responded to Goodell's letter with statements of their own. McCollum said Goodell's letter was 'another attempt to justify a racial slur on behalf of Dan Snyder and other NFL owners who appear to be only concerned with earning ever larger profits, even if it means exploiting a racist stereotype of Native Americans'. Faleomavaega said that Goodell 'completely missed the point regarding the Washington franchise's name'.
The letter to Snyder said that 'Native Americans throughout the country consider the "R-word" a racial, derogatory slur akin to the "N-word" among African Americans or the "W-word" among Latinos'. The nickname is the subject of a long-running legal challenge from a group seeking to have the team lose its trademark protection. The team’s owner has vowed he will never change the name.W. Gregory GuedelAttorneyFoster Pepper Pllc, Seattleguedw@foster.com
Greg is chair of Foster Pepper's Native American Legal Services Group and edits its blog, where this post originally appeared here.
Friday, June 14, 2013
Would you spray a product derived from deer antler velvet into your mouth in order to aid recouperation from a back or knee pain? You would do that without question? OK. If you were a professional athlete, would you use such a spray if you knew it came from a company called Sports With Alternatives To Steroids (SWATS)? Comfortable with that? OK. How about if you visited the SWATS website and were greeted by background pictures of bodybuilders ‘feeling the burn’ and stocked with products such as ‘Jacked Spray’. Still comfortable? If you looked at the people behind SWATS and found they were bodybuilders and not scientists. Still unconcerned? How about if you checked the ingredients of the spray and found that it contained IGF-1, which features on the World Anti-Doping Agency’s Prohibited List?
Vijay Singh’s lawsuit is surprising, because under the strict liability conditions mandated by Article 2.1 of the Code, he has been very lucky. Professional athletes know that they are responsible for what goes into their body and that ignorance is not a defence for violating the World Anti-Doping Code. Singh’s lawsuit claims that he checked the spray bottle and SWATS said that their products were all-natural and didn’t contain any banned substances. There is a raft of case law in anti-doping which illustrates that this is no defence.
However, the lawsuit again highlights the difficulties that international sporting federations face when the World Anti-Doping Agency (WADA) moves the goalposts. Singh’s lawsuit arose because the PGA Tour was forced to drop its charges against him after WADA confirmed that it no longer considers ‘deer antler spray’ to be prohibited. This was news to the PGA Tour. It now faces a legal battle which if Singh wins, will undermine the anti-doping process and in which it is accused of 'recklesss administration and implementation of its Anti-Doping Program'.
If Singh’s lawsuit is successful and he is awarded damages, the danger is that this case could embolden athletes who have (arguably) not carried out sufficient checks on the substances they are using. Currently, the onus is on the athlete to check that the substance they are using is not on any prohibited lists. Do we really want to put the onus on international federations to check with WADA that their lists have not been amended? This will be something for the court to decide…
Thursday, June 13, 2013
In the case of Henning Berg v Blackburn Rovers Football Club, the High Court determined that a contractual payment due as compensation on early termination of a fixed term contract was enforceable. Liz Ellen and James King, of Mishcon de Reya's Sports Group, examine the ruling and its implications.
Blackburn Rovers terminated the three-year fixed term contract of their manager, Henning Berg, in December 2012, after just 57 days in the job. There was a contractual provision in Mr Berg's contract giving Blackburn the express right to terminate early, provided that the Club paid Mr Berg a sum equal to his gross basic salary for the unexpired balance of the fixed period as 'liquidated damages' – totalling £2.25 million. The Club initially admitted liability and agreed to pay Mr Berg the remainder of the contract, but later sought to argue that the contractual provision was a so-called penalty clause (a pre-determined amount disproportionate to the financial loss likely to be suffered on a breach of contract) and that it was therefore unenforceable. The reason for raising this argument was that if the clause was deemed to be a penalty, payment under it could not be enforced by Mr Berg, who would only be entitled to damages for breach of contract under normal contractual principles (meaning he would be required to mitigate his loss, i.e. limiting his entitlement to damages by requiring him to find alternative employment).
It is established law that payments due on an event, such as the exercise of an express right to terminate a fixed term contract early, which is not a breach, cannot be invalidated as penalties. Applying existing law, the High Court found that because the payment to Mr. Berg was due on the occurrence of an event other than a breach of contract, the relevant clause was valid. The agreement expressly granted Blackburn the right to terminate the fixed term early. As such, termination in accordance with it could not be a breach, and thus could not engage the law on penalties.
A contractual payment on early termination will not be a penalty and will therefore be enforceable. Penalty clauses can only apply in circumstances where the trigger for payment is a breach of contract.
When drafting or negotiating service agreements and contracts of employment, to increase certainty and reduce the risk of a penalty argument being raised, avoid describing non-breach payments as 'liquidated damages'. Damages are only relevant where there has been a breach of contract. For employers looking to limit the payments to be made on termination, it is better to expressly provide for a reduction in the contract, rather than later trying to rely on a penalty argument.
Liz Ellen, AssociateJames King, SolicitorMishcon de Reya, Londonliz.email@example.com@mishcon.com
This article was originally published on Mishcon de Reya's internet site here.
Wednesday, May 22, 2013
On 6 May, Belgian player agent Daniel Striani lodged a complaint with the European Commission challenging whether UEFA's Financial Fair Play Regulations comply with European Union law. Andrew Nixon, a Partner with Sheridans Sports Law group, examines previous challenges to sporting rules based on EU competition law grounds, and assesses how the European Commission may view the Financial Fair Play Regulations
In 1995, the case of Jean-Marc Bosman came before the European Court of Justice (ECJ) and changed the face of football in Europe. The case involved (amongst other issues) a challenge to the legality of the transfer system for football players. The ECJ found in favour of Bosman and against his club, RFC Liege, the Belgium FA and UEFA, determining that transfer fees for out of contract players were illegal where a player was moving between one EU nation and another.
Almost 18 years later, a Belgian football agent called Daniel Striani has lodged a complaint with the European Commission on the basis that UEFA's Financial Fair Play Regulations (FFP) are anti competitive and will negatively impact on his ability to generate income. It is a challenge that may yet have an impact as significant as that of the Bosman case.
Background to the Financial Fair Play Regulations
The spending of football clubs, particularly those licensed by and under the jurisdiction of UEFA has long been an issue and a point of debate within the sport. In England, whilst commercial revenues have continued to rise (the Football Association Premier League sold the broadcast rights for seasons 2013-2016 for £3.018 billion), that has not necessarily reflected itself on the balance sheet, with many clubs having experienced falling operating profits and pre-tax losses. Some clubs have been able to operate as normal and, indeed, expand squads and wage bills, as losses were underwritten by wealthy investors and benefactors. Other clubs have operated at levels above their means, gambling player wages against receipt of broadcasting revenue, a strategy which has on more than one occasion led to insolvency events involving high profile clubs.
In September 2009, the first steps were taken to positively address the spiralling debt within European football when UEFA's Executive Committee approved the concept of financial fair play. The objectives were as follows:
to protect the long term viability of European club football;
to introduce more discipline and rationality into club finances;
to decrease pressure on salaries and transfer fees and limit inflationary effects;
to encourage clubs to compete within their means;
to encourage long-term investments in academies and youth infrastructure; and
to ensure clubs settle liabilities on a timely basis.
The overriding obligation on clubs licensed by UEFA is, over a period of time, to balance their books or break even. Under the rules, clubs cannot, repeatedly - as part of a multi year assessment - spend more than their generated income, thereby enabling a longer term view to be formed. The UEFA Executive Committee approved the creation of a Club Financial Control Body in June 2012 (replacing the Club Financial Control Panel), which oversees the application of the Financial Fair Play Regulations alongside the Club Licensing System and is competent to impose disciplinary measures. Clubs have had their accounts monitored since summer 2011, with the break even assessment covering financial years ending 2012 and 2013, to be assessed during the 2013/2014 season.
The principles behind FFP were also adopted domestically in England, initially by the Football League, which has had to deal within a number of insolvency events and administrations. In the Football League Championship (the division below the Premier League), clubs have agreed to introduce a break even approach based on the UEFA FFP model, whilst in League 1 and League 2(the two divisions below the Championship), clubs will implement the Salary Costs Management Protocol, which (broadly) limits spending on total player wages to a proportion of each club's turnover. Just last month, the Premier League ratified its own financial fair play regulations which, amongst other elements, will mean that clubs with a total wage bill of more than £52 million will only be allowed to increase the wage bill by £4 million per season for the next three seasons (restrictions applying to broadcasting income only).
The Striani Challenge
The overall objectives of FFP are, on the face of it, in the interests of the game and its future as a self sustaining sport. Indeed, the licensee clubs themselves agreed to the implementation of the rules. Why, therefore, has Striani launched this challenge?
There are real issues of sporting regulation that will need to be addressed and analysed by the Commission. The key arguments that Striani will employ will be that the break even rule (Article 57 of the UEFA Financial Fair Play Regulations):
will restrict outside investment in football clubs;
effectively preserves the dominance of clubs that do not operate losses by preventing clubs operating at losses in order to break through(I wonder if the point here is that it preserves the dominance of clubs that have previously operated at a loss - e.g. Chelsea and Manchester City - by preventing other clubs from doing the same?); and
will dampen the transfer market and salary levels, with a knock on effect on Striani's ability to generate revenue and income.
The merits of the complaint
The reality is that the competition rules of the Treaty on the Functioning of the European Union (TFEU) were drafted with more orthodox industries in mind than sport and, perhaps, the key document when assessing the Commission's attitude to sporting rules is its 2007 White Paper on Sport. This addresses, amongst other matters within sport, governance and licensing.
Indeed, at paragraph 4.7 of the White Paper, the Commission acknowledges the usefulness of robust licensing systems for clubs as a 'tool for promoting good governance in sport'. The Commission stated that these licensing systems generally aim to ensure that all clubs respect the same basic rules on financial management and transparency. However, such systems must be compatible with competition laws and the Internal Market provisions and must have at their heart a legitimate aim and objective.
There are a number of industry nuances which are recognised and will be applied when assessing compliance with Community law. For example, sport must involve uncertainty of outcome and there must therefore be a degree of competitive balance and equality within competitions which, of course, sets it aside from other industries in which - unlike sport - there is no interest in competitors retaining economic stability.
However, despite these accepted nuances, the Commission will not reject the complaint simply because FFP purports to maintain competitive balance - indeed, one of Striani's key arguments is that it does the exact opposite). The ECJ has long since rejected the 'sporting exception' argument on the basis that, as determined in Meca-Medina & Majcen v the Commission1, sporting rules do not fall outside the scope of EU competition law simply because they regulate sport. In Meca-Medina, the ECJ ruled unreservedly that although the doping ban was proportionate in the circumstances and doping rules were a legitimate means of protecting sporting integrity, all sporting regulations which produced appreciable economic effects must be subject to review. The objective of the anti doping rules was to ensure fair competition, a level playing field for all and were 'inherent in the organisation and proper conduct of competitive sport'. However, will the Commission (and, if necessary, the General Court and the Court of Justice of the European Union - as it is now named) view FFP in the same light?
The Commission has produced a methodology as to how it will apply competition law to sport. The first question to be considered is whether or not the body that adopted the rule is an undertaking, or an association of undertakings. The second question will be whether or not the FFP regulations (specifically the break even rule) restrict competition, or indeed constitute an abuse of a dominant position. In answering this question the Commission will give consideration to the overall context of the rules, whether or not the rules are inherent in the pursuit of the body's objectives and whether or not - in light of the overall objective - the rule is proportionate. Thirdly and fourthly, the Commission will consider if the rule affects Member State trade and if the rule fulfils the conditions of Article 101(3) TFEU, which lists exceptions to the prohibition on restrictions to free trade.
What broad conclusions can be reached by applying this methodology to FFP? Is UEFA an undertaking? An undertaking is described as an entity engaged in economic activity and there is no doubt that UEFA, and its member clubs, are undertakings within the meaning of Articles 101 and 102 TFEU. Indeed, UEFA would be considered to be an association of undertakings.
Do the FFP rules restrict competition or constitute an abuse of a dominant position? Rules drawn up by a sports governing body will constitute a decision by an undertaking, or an association of undertakings. Therefore, on that basis, those rules may have the effect of distorting competition, even if the objectives are not such and there is merit in any argument that FFP has a distortion effect.
Do the FFP rules pursue a legitimate objective (the impact of which is proportionate to that objective)? The ruling in Meca-Medina discounts any reliance on the sporting exception argument. However, legitimate objectives will relate to organisation and proper conduct of competitive sport and, arguably, FFP complies with this requirement in that its objective is to safeguard the financial stability of the sport. However, the Commission will need to analyse whether or not FFP goes further than is reasonably necessary to secure the objective of financial stability.
Will FFP affect inter-Community trade? The answer to this question will almost certainly be yes and it is generally accepted that rules adopted by international sports governing bodies will affect trade when an economic activity is involved. In this case, FFP will inevitably have an impact on the transfer market and player trading between Member States.
Is the restriction justified? It will be, but only if the beneficial effects of the rule outweigh its restrictive effects, and there is merit in any argument that it does not. The purpose of the break even rule is to ensure that clubs spend within certain limits, thereby ensuring they do not overstretch themselves financially. From a competition perspective, this will inevitably dampen the player transfer market, which will have a knock on effect on the ability of agents such as Striani to generate income. The rule will also prevent investment in clubs by third parties which will arguably preserve the dominance of certain clubs, as opposed to making the competition fairer and more balanced. That reduced investment will also have a direct impact on playing squads, both in terms of the level of player remuneration and the size of those playing squads.
The Commission responded positively to complaints raised with it in relation to the FIFA Player-Agent Regulations in the late 90's, eventually issuing a statement of objections in which it asserted that the FIFA Player-Agent Regulations contravened then article 81(1) of the Treaty by limiting access to the player-agent market. Notably, the Commission took the view that the objectives of the regulations could be achieved by less restrictive means, stating that:
'The Rules prevent or restrict natural or legal persons with the necessary vocational skills from having access to a job. The Commission recognises that there must be checks on access to the profession and that some rules are necessary in order to ensure the smooth operation and to prevent deterioration in the ethical values in sport. However, the rules must be in proportion to the objective pursued. There are clearly other rules which could ensure professionalism on the part of agents without being unduly restrictive.'
A key question will therefore be: are there other feasible rules which could ensure financial fair play in European football, which meet the objectives, but are less restrictive? Arguably, these less restrictive, objective-meeting rules are already in force. It has always been the case that clubs are required to demonstrate, as part of the licensing criteria, that there are no overdue payables to other clubs, their employees, or to tax authorities. Indeed, it will also inevitably be argued by Striani that there are other, better means of redressing competitive imbalance, such as a restructuring of the revenue sharing mechanism between clubs, with perhaps the adoption of a form of 'tax' on the higher spending clubs.
It is the writer's view that employing a regulatory system of financial control is a justified means of ensuring that football clubs compete within their own commercial boundaries and the objective of FFP is therefore credible and justifiable. However, it is entirely possible that the challenge will find its way to the Court of Justice of the European Union (as it is now known) and it will not necessarily be a comfortable ride for UEFA. Whether or not Striani can take his place alongside the likes of Bosman and Meca-Medina remains to be seen and will be watched with interest.
Andrew Nixon Partner
1. (Case 519/04) ECR 2006 1-6991.
Monday, May 20, 2013
The Commercial Court has ruled that Pakistani international bowler, Danish Kaneria's appeal proceedings against his life time ban for involvement in spot-fixing under the ECB's Disciplinary Regulations are an 'arbitration' for the purposes of the Arbitration Act 1996. The decision is a momentous one for sports' lawyers and governing bodies, not least in terms of the Court's supervisory role over sporting bodies' disciplinary procedures and the ability to rely on a Court to entertain appeals from, and make ancillary orders in support of, those processes.
In England and Wales Cricket Board Limited v Kaneria  EWHC 1074 (Comm), the ECB sought a witness summons to compel its main witness, the cricketer Mervyn Westfield to attend the appeal hearing and give evidence. The summons was sought under s.43 of the Arbitration Act on the basis that the appeal proceedings constituted an arbitration; this was contested by lawyers acting for Mr Kaneria. The sole question for the Commercial Court was whether the appeal proceedings constituted an arbitration under the Act.
Unlike in some other notable cases (e.g. Stretford v The Football Association  EWCA Civ 238) nowhere in the ECB's disciplinary regulations were its procedures described as an "arbitration", and there was no written agreement that used the word arbitration. Furthermore, the regulations described the ECB as "prosecutor" and the player as the 'accused'. Mr Kaneria argued that they were internal disciplinary proceedings and not an arbitration.
Mr Justice Cooke found that the characterisation of the appeal proceedings could only be that of arbitration on the one hand or internal disciplinary procedure on the other. It was in this context that Mr Kaneria's arguments about the 'ouster of the court's jurisdiction' were considered. If the appeal proceedings constituted an arbitration then remedies for serious irregularity and rights of appeal or recourse to the court were expressly governed by the Arbitration Act, in particular, sections 67 to 69. Whereas, if they were merely internal disciplinary proceedings, then the court could only intervene if there was either a breach of human rights, a breach of contract or if 'some form of judicial review was found to be available' (such as applied in the decision in Bradley v The Jockey Club  EWCA Civ 1056).
The Court applied the test set out in dicta of Thomas J in Walkinshaw v Diniz  2 All ER (Comm) 237 that asked whether the procedure was one that in substance sought to determine legal rights and obligations of the parties judicially, with binding effect, enforceable in law, thus reflecting in private proceedings the role of a civil court of law. Applying the factors set out in Walkinshaw, Cooke J. found that
the parties to the appeal were afforded a proper opportunity of putting their case, not least as the appeal hearing was a complete re-hearing;
there were no unilateral communications between the parties and the arbitrators;
the parties had the right to call witnesses and present evidence;
the decision of the appeal panel was final - there was no further appeal;
the proceedings contemplated that they be carried out between the parties whose substantive rights were determined by them;
the jurisdiction of the appeal panel derived from the consent of the parties, by means of the ECB's Regulations which Mr Kaneria accepted when he signed the required undertaking of a cricketer, and he himself had brought the appeal;
the constitution of the Appeal panel was chosen by a method to which the parties had consented, that is the ECB's disciplinary regulations;
those regulations provided that the Appeal panel be impartial between the parties - and it was independent from the ECB "prosecution";
the Appeal panel's decision was intended to be enforceable in law; and
the regulations provided that the Appeal panel make a decision on a dispute already formulated at the time.
Mr Kaneria had argued that the Appeal Panel was not truly independent because, amongst other things, it contained people associated with the sport of cricket and not just independent lawyers and, moreover, it was appointed by the Chairman of the disciplinary panel. These arguments were rejected. There was a distinction between the ECB as prosecutor and the Appeal Panel which was appointed by an independent QC and contained lawyers. The fact that some members of the Appeal Panel had links with cricket was thought to be beneficial, and it did not mean they could not be impartial. In any event, importantly, Cooke J noted that the real issue was one of impartiality and not independence (although the latter may give rise to the former).
Mr Kaneria's argument that the proceedings were not an arbitration because the word arbitration was not used in the regulations (but words like 'prosecution' were) was rejected. The Commercial Court is used to seeing agreements that amount to arbitration agreements although informally worded. The court looked at the substance of the agreement (here, the regulations) and not the labels the parties used or failed to use to describe them.
Mr Kaneria argued that according to Stretford there had to be 'a clear and unequivocal agreement to arbitrate' in particular because an arbitration involved a waiver of the right to a public hearing under Article 6 of the Convention. But the Court found nothing in these points. Mr Kaneria had agreed to be bound by the ECB rules and regulations and was aware of the disciplinary and appeal procedures. There was no provision that the disciplinary proceedings be held in public and nor was there an expectation that they would be. Indeed Mr Kaneria had never requested that they be. It did not matter whether the proceedings were 'internal disciplinary proceedings' (and subject to Bradley type review) or an arbitration - in either case they would have been held in private.
The decision may put to an end to the debate about whether properly constituted sports disciplinary procedures constitute an arbitration or just internal procedures subject to Bradley type review (and the Court noted that in Bradley two members of the tribunal were Jockey Club members and no one even thought to argue the proceedings were arbitral).
However, this does not mean all disciplinary procedures will inevitably be arbitrations. They are unlikely to be unless they at least satisfy the test set out in Walkinshaw.
There are at least 10 key considerations arising from the decision:
1. Whether or not a disciplinary procedure is an arbitration does not depend on the use of the word in the rules, but the substance of the procedure.
2. Whilst formal independence between the "prosecutor" and the disciplinary panel is not stricly necessary, it will often be important to establish impartiality of the panel; so will the fact that it has some legal/judicial experience.
3. Disciplinary proceedings should contain procedural safeguards that allow both parties to fairly put forward their case, call and challenge evidence etc.
4. It is possible (and was contemplated in Kaneria) for a disciplinary procedure not be an arbitration (because it lacks the necessary legal safeguards) but for an appeal procedure arising out of it to be one - this may be of important practical benefit for sports governing bodies who wish to have a more efficient and less "legalistic" first stage disciplinary procedure but nevertheless seek finality by having an appeal process in the nature of an arbitration.
5. The much trumpeted expansion of the Bradley jurisdiction in some quarters may now be silenced. Although it is likely that some disciplinary bodies' procedures, lacking appropriate legal safeguards, shall not constitute arbitrations and will thus still be subject to the court's supervisory review powers under the Bradley jurisdiction.
6. But in many respects there may be little distinction between the courts' power to review under Bradley principles and under the Arbitration Act - both routes contain important procedural safeguards and in both the bar for an "appeal" is very high.
7. There are a number of advantages for sports bodies in their disciplinary procedures being arbitrations, in particular confidentiality, finality of proceedings and the ability to obtain ancillary orders from the court.
8. Some of these advantages may also be utilised by the athlete. On the other hand the obvious "disadvantage" to the athelete is that, save for an error of law or procedural irrelularity, if the disciplinary proceding is an arbitration he has noweher else to go afterwards.
9. So far as the availability of ancillary orders is concerned, there are a wealth of orders that parties to an arbitration may wish to apply to the Court for, for example, enforcing compliance with a preliminary decision of the disciplinary tribunal (s.42 of the Arbitration Act), obtaining a witness summons (s.43, as applied in the Kaneria case); enforcing compliance with costs orders and the making of any other orders in support of the arbitration a court could make (in exceptional cases including search and freezing orders) (s.44), and applying to the court for a preliminary determination of law (section 45).
10. Lawyers acting in sports disciplinary cases, (whether for athlete or governing body) need to be familiar with the structure of the Arbitration Act so they can advise on rights to appeal under it and other procedural challenges that can be made.
Nick de Marco
Blackstone Chambers, London
This article was originally published here on the Blackstone Chambers Sports Law Bulletin blog.
Ian Mill QC and Nick De Marco represented the ECB in the Kaneria case.
The full judgment in the case can be found here
Following the release of the Australian Crime Commission report in February 2013, the Australian Sports Anti-Doping Authority (ASADA) has commenced investigations into doping in Australia's National Rugby League (NRL), as well as the Australian Football League (AFL). Although these investigations have received wide spread media attention, there has been considerable uncertainty as to how these investigations will be conducted and the powers of ASADA generally.
What is ASADA?
ASADA was established in 2006 and power is conferred on it by the ?Australian Sports Anti-Doping Authority Act 2006 (Cth).
Some of ASADA's functions include:
establishing a National Anti-Doping scheme (NAD Scheme);
compliance with World Anti-Doping Code (WADA Code); and
ensuring that sports administration bodies adopt anti-doping policies that comply with the NAD Scheme and the WADA Code.
ASADA and the relationship with the NRL
The NRL implements an Anti-Doping Policy of the Australian Rugby League Commission, which explicitly adopts the WADA Code and the National Anti-Doping (NAD) scheme. The policy is reviewed annually to ensure it remains Code compliant with the requirements of both the WADA Code and ASADA. ASADA has the power to advise the NRL to issue notice of an alleged breach of the NRL Anti-Doping Policy. The notice must set out the player's options in accepting a nominated penalty under the WADA Code or proceeding to a hearing before the NRL Anti-Doping Tribunal.
What breaches are currently being investigated?
As the investigation is being conducted confidentially, it is difficult to know the substance of the allegations. However, at this stage, it appears that the investigation relates to breaches of the NRL Anti-Doping Policy and does not extend into criminal sanctions.
The primary breaches being investigated arise out of Article 2.1 of the WADA Code, which provides that the presence of a 'Prohibited Substance' will constitute an anti-doping rule violation. This is a strict liability offence. In relation to what constitutes a Prohibited Substance, the World Anti-Doping Agency (WADA) publishes a prohibited list annually.
Further anti-doping rule violations include:
refusing to submit a sample (Article 2.3);
tampering with a sample (Article 2.5);
possession of Prohibited Substances (Article 2.6);
trafficking or attempted trafficking of Prohibited Substances (Article 2.7); and
assisting in or covering up anti-doping violations (Article 2.8).
Burden and standard of proof
The NRL's Anti-Doping Policy adopts Article 3 of the WADA Code, which provides that the relevant Anti-Doping Organisation (in this case, ASADA) has the burden of proof in establishing that a violation has occurred. This must be proved to the 'comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation made'. The standard is greater than the balance of probabilities, but does not require an offence to be proved beyond reasonable doubt.
What penalties can be imposed?
For Prohibited Substances, the WADA Code imposes a period of ineligibility of two years for a first offence and a lifetime ban for subsequent offences. There is a suggestion that ASADA is offering a reduced six-month suspension for any players that confess to administering banned substances. However, Article 10.5.3 of the WADA Code only allows for the 75% reduction in the ineligibility period in circumstances where 'substantial assistance' is provided to the investigations, which would require a player to disclose information that leads to other anti-doping violations being discovered. Admitting their own guilt alone would not be enough.
The timing of any admission is also important. Were a player to admit to their own anti-doping violation before ASADA is to that point aware of the breach, the standard two-year penalty can be reduced by up to 50%. This only applies where the player comes forward voluntarily and not in circumstances where the player knows that they are about to be caught in any event.
The NRL's Anti-Doping Policy provides that if more than two members of a team are found to have committed an anti-doping rule violation, the NRL shall impose an appropriate sanction on the team, such as loss of points or disqualification, in addition to the sanctions imposed on the individual. This is derived from Article 11 of the WADA Code.
Are there any defences available and what must players and clubs do to comply?
The following defences can be raised. However, some defences are only partial defences or will lead to a reduction in sentence.
1. No fault or negligence - If a player can establish that they could not reasonably have known or suspected that they had used or been administered the Prohibited Substance then no suspension will apply. It is a completely exculpatory defence, but is extremely difficult to prove and requires the player to admit the presence of the drug in their system.
2. No significant fault or negligence - Sanctions may be reduced by up to 50% where a player demonstrates that they bear no significant fault or negligence. Again, if the player wishes to use this defence, there must be an admission that the substance was in their system.
3. Substantial assistance - This was referred to above and requires a player to provide full disclosure of all information that leads to the discovery of an anti-doping violation by another person. Factors to be considered include the number of individuals implicated, the status of those individuals in the NRL and the seriousness of the violation.
4. Therapeutic use - Athletes with documented medical conditions may request a therapeutic use exemption. However, this must be requested within 21 days of becoming aware of the medical condition and therefore is unlikely to apply to the investigations involving the NRL.
In addition to the specific defences available under the WADA Code, athletes have previously alleged failures in the process arising out of issues such as lack of procedural fairness, or defects in the evidence against them. Sections 102 and 103 of the NRL Anti-Doping Policy require all players and other interested parties, including coaches, trainers and agents, to co-operate with any ASADA investigation. The scope of this obligation is currently the subject of debate and has held up the current investigation after the completion of only one interview.
Although all parties have an expressed a desire to complete the investigation as quickly as possible, the potential consequences of the investigation are very serious and further issues will undoubtedly arise.
Brendan Hoffman Partner
Gadens Lawyers, Sydney
This article was originally published on Gadens Lawyers' internet site here: http://tinyurl.com/bw6ton2
Thursday, May 09, 2013
The body representing all of Australia's commercial free-to-air television broadcasters, Free TV Australia (Free TV), has released its proposed amendments to the Commercial Television Industry Code (Code). The amendments, which are supported by the Government and commercial and subscription broadcasters, aim to reduce and control the promotion of live odds during sports broadcasts.
Promotion of live odds by commentators
Commentators will be the most impacted by the amendments, which restrict the promotion of live odds by commentators at certain times before, during and after play. In particular, the proposed amendments prohibit commentators and their guests from promoting live odds as part of a broadcast of a live sporting event:
At any time during play.
During scheduled breaks (e.g. half time in a match).
During unscheduled breaks (e.g. when play is suspended due to rain).
30 minutes before play commences.
30 minutes after play has concluded.
Promotion of live odds by other persons
The promotion of live odds will be permitted, where the promotion is an advertisement or clearly identified sponsorship segment, delivered by a person other than a commentator:
Before play commences.
During schedules breaks.
During unscheduled breaks.
Rules for the promotion of live odds
The proposed changes, require that a promotion for live odds contains, or concludes with, a responsible gambling message. The proposed changes also prohibit the promotion of live odds that 'are directed at children', that 'portray live odds betting as a family activity', that 'promote betting on live odds as a way to success or achievement' or that 'associate a bet on live odds with alcohol'.
What the changes will not cover
The changes do not restrict promotion of live odds for other sports events occurring live at the same time. The changes will also not apply to commercials or sponsorships relating to gambling or betting organisations that appear during a live sporting event, as long as there is no specific reference to live odds relating to the sports event being broadcast. The ban does not cover live sporting events that consist of horse, harness or greyhound racing.
The Code will not cover contracts entered into before 27 May 2011. The proposed amendments to the Code are available for public consultation until 20 May 2013.
Judith Miller Partner
DLA Piper Australia
This article originally appeared on DLA Piper's Sports Law Blog, at http://tinyurl.com/dxbbnmf
Friday, May 03, 2013
The use of polygraph or lie detector evidence in sports law cases has been much debated. Given that evidence beyond adverse analytical findings is being used more frequently to prove doping violations pursuant to the World Anti-Doping Code, there are calls for the use of such evidence, both to prove cases against and to exonerate athletes accused of doping. In cricket, in a bid to fight corruption, Steve Waugh, ex Australian captain, has led calls for the use of lie detectors. He 'convincingly' passed a test to 'demonstrate' that he had never been involved in match fixing. The Marylebone Cricket Club released a statement: 'The World Cricket Committee accepts that the use of polygraph tests is a sensitive subject, but their potential use should now be widely debated in the game'.
There is considerable disagreement as to the accuracy of polygraph testing. Claims as to its reliability seem to range from 60 - 95% accuracy. In the case of Alberto Contador at the Court of Arbitration for Sport (CAS), the Panel heard evidence from two leading professors who suggested an accuracy of 95% with 5% false positives i.e. people said to be lying who were not, in fact. Nonetheless there must always be a degree of self-interest in assessing the validity and value of one's own expertise.
In the UK, polygraph evidence is not used in courts, but it has begun to impact upon other legal procedures. The use of lie detector tests for certain criminals, subject to licence conditions, has been legalised and sex offenders can now be assessed for release based in part on such investigations. Polygraph evidence is used in criminal proceedings in some US States, although it is often said that the role of the jury in deciding the truth should not be usurped by scientific devices and the like.
The polygraph measures a person's physiological responses (e.g. pulse, respiration, blood flow etc.). The theory is that a person's natural fear of being caught out in a lie will result in increased physiological responses when answering the relevant questions as opposed to when answering the control questions.
Opponents of the testing suggest that it can be defeated in a number of ways including by the adoption of 'counter measures' (such as the use of drugs and hypnosis) to reduce the variance in physiological response, but also by the self-infliction of pain to derail the control response. Indeed, a statement from Lance Armstrong's lawyer in 2012 said that the cyclist would be willing to take such a test to prove his innocence suggests that he was massively confident of successfully defeating it. Armstrong's nemesis, Tyler Hamilton, even admits in his book 'The Secret Race' to having beaten the lie detector machine.
The position of CAS with regard to the admissibility of this type of evidence has shifted. In 2008, the Swiss athlete Daubney sought to rely upon a successful polygraph test to prove his innocence of knowingly taking cocaine. CAS ruled that such evidence ws inadmissible under Swiss law and, accordingly, any statement made to the expert by Daubney was purely admissible as a personal declaration. The expert scientific evidence was not admissible. Subsequently in the case of Alberto Contador, he successfully argued that, pursuant to WADC Article 3.2, 'facts relating to an anti-doping violation may be established by any reliable means' which had not been in force at the time of Daubney, led to such evidence being admissible. The admissibility was not challenged by the other parties. CAS ruled that the evidence added 'some force' to Contador's 'declarations of innocence, but do not, by nature, trump other elements of the evidence'.
The Chinese judoka Tong Wen also sought to rely upon polygraph evidence at CAS. Both Wen and Contador were represented by Mike Morgan of Squire Sanders. The Respondent objected, but CAS did not ultimately make any finding about this aspect of her case. They ruled that the Respondent had not proved the doping violation because the B sample had been tested without the athlete being present and, accordingly, the adverse analytical finding was inadmissible.
Mike Morgan has reportedly made the point that such evidence should only be admissible where the athlete has consented to the procedure. Compulsion to take the test is, he argues, likely to skew the results of the test and accordingly render it unreliable in any event.
It is therefore more than likely that this type of evidence will prove more useful - but to a limited degree - to the accused athlete, rather than the prosecuting authority.
Phil Gibbs, Barrister
KCH Garden Square, Leicester
This article was originally published on Phil's sports law blog, http://gibbsbarrister.blogspot.co.uk/
Thursday, March 21, 2013
An Italian sports psychologist has filed a claim with the British Columbia Supreme Court, claiming that the Vancouver Canucks are responsible for damages relating to wrongful dismissal and mental distress.
The psychologist, Mr. Demichelis, claims that the Vancouver Canucks and co-owner Mr. Aquilini induced him to leave his employment with the Chelsea Football Club in the United Kingdom and to work for the Vancouver Canucks in Vancouver.
Mr. Demichelis claims that he initially declined the Canucks offer of employment but that he later accepted it after sustained efforts on the part of Mr. Aquilini and the team. Mr. Demichelis specifically states that the Vancouver Canucks stated to him that he was the person the Canucks needed to improve the players' physical and psychological well-being. Mr. Demichelis also claims that he was told that his expertise was essential to winning the Stanley Cup.
Mr. Demichelis further alleges that he agreed to a two year contract with the Canucks starting July 2012 for a salary of $700,000, along with a signing bonus of $400,000. He also states that the Canucks agreed to market Mr. Demichelis' expertise to other professional clubs in North America.
Mr. Demichelis was told in December 2012 that his employment would end at the end of January 2013. He claims that the club explained to him that, as part of the process of trying to secure him a work permit, they found Canadians that were able to fulfill the requirements of his role.
Mr. Demichelis claims that he has suffered significant damages in part because he gave up his employment in the United Kingdom and moved his family to Vancouver.
The Vancouver Canucks have yet to file a Statement of Defence.
What does this mean for employers?
This case demonstrates the potential pitfalls in the employment of foreigners. In particular, employers can face significant liability when disputes arise from the hiring and/or employment of temporary foreign workers. This issue is becoming increasing commonplace in large part because of the exponential growth in the number of temporary foreign workers in Canada. There are now approximately 250,000 individuals entering Canada on an annual basis under a temporary work permit, and 500,000 temporary foreign workers in the country at any given time.
Employers should accordingly ensure that they receive adequate employment and immigration advice to ensure that all matters relating to the hiring of foreign workers are addressed adequately and in a seamless fashion. This can help to ensure that employers are in the best position to defend against claims should disputes arise.
Heenan Blaikie LLP
This article was originally published on the Heenan Blaikie website here
Wednesday, March 20, 2013
‘Following consultation with the game’s stakeholders (the Premier League, the Football League, the Professional Footballers’ Association, the League Managers’ Association, Professional Game Match Officials Limited and the National Game) in the summer, it was agreed that retrospective action should only be taken in respect of incidents which have not been seen by the match officials’, read a 19 March statement from the Football Association (FA).
However, the FA’s rules do allow retrospective action to be taken. Section A, Regulation 8(j) (Rule E3) of the FA’s Disciplinary Handbook states: ‘A charge of Misconduct…may be brought against a Player in relation to an incident whether or not the same incident has been dealt with by the referee’.
FIFA regulations would allow a Newcastle appeal. Although Article 72 of the FIFA Disciplinary Code mandates that the referee’s decision is final, it also provides that ‘in certain circumstances, the jurisdiction of judicial bodies [Disciplinary Committee, Appeal Committee & Ethics Committee] may apply’. These ‘certain circumstances’ are defined in Article 77 as ‘sanctioning serious infringements which have escaped the match officials’ attention’ and ‘rectifying obvious errors in the referee’s disciplinary decisions’. Newcastle may have a case here.
Further salt has been rubbed into the wound with the news that the FA is to charge Newcastle’s Assistant Manager John Carver with misconduct in relation to the match against Wigan. The club is understandably upset. ‘Newcastle United, along with other clubs, have had players suspended for incidents reviewed after the game’, read its 19 March statement. ‘Whilst not trivialising these incidents, they were not, in our opinion, of the seriousness of Callum McManaman's tackle on Haidara. Whilst we understand that the current procedures give the FA limited options, it cannot be correct that the most serious offences - those which have the potential to cause another player serious harm - can go unpunished, even if the original incident was seen by match officials. We will now be making a strong representation to the FA and the Premier League to see how a more appropriate, fair and even-handed disciplinary process can be introduced at the earliest opportunity to prevent incidents of this nature going unpunished in the future.’
If that doesn’t work, a FIFA appeal may be the next option.
Friday, March 15, 2013
Sport should focus more on education and intervention rather than increased testing to combat doping, heard delegates at Twickenham Stadium for the sixth edition of. The 250 delegates present also heard that while international sporting federations are doing more than ever before to take anti-doping efforts to remote jurisdictions, the system needs to punish those who do not correctly implement the World Anti-Doping Code.
“WADA needs to evolve with the Code”, said Andy Parkinson, Chief Executive of UK Anti-Doping in his opening address. “Should WADA have investigative powers? Yes, but it should investigate uninvited countries and sports that are not correctly implementing the Code. We want WADA to be more than just a service provider.”
Rob Koehler, Director of Education and Program Development at the World Anti-Doping Agency (WADA), highlighted that while the Code places emphasis on testing, very few anti-doping organisations are carrying out education programmes. He revealed that WADA will attend a May meeting with the International Olympic Committee (IOC), international federations, UNESCO, International Fair Play and more on educating young people about anti-doping. This problem was further highlighted by Stephen Watkins of the Rugby Football Union, who raised significant issues regarding supplement use amongst young rugby union players.
Speakers also highlighted difficulties with the current testing-focussed regime and how they are being overcome. Thomas Capdevielle of the International Association of Athletics Federations pointed out that WADA's requirement for sample collection under the Athlete Biological Passport to be analysed in 36 hours by an accredited laboratory can be problematic in certain jurisdictions. The IAAF is launching a satellite laboratory in Eldoret, Kenya, using staff from the accredited Lausanne laboratory.
Hannah McLean of UK Anti-Doping gave a fascinating example of how cooperation with law enforcement worked to combat doping in the case of an athlete and coach whose house had been raided to find 60,000 steroid pills. The case revealed that if anti-doping authorities can prove that an athlete intended to cheat by taking what they believe to be a prohibited substance, then analytical evidence showing that a substance had prohibited drugs in it is not essential. She also revealed that an athlete can renounce possession if they make a mistake and buy a prohibited substance by immediately informing the national anti-doping authority concerned.
Anti-doping authorities also face a challenge presented by the European Union's revision of its data protection laws. Lars Mortsiefer, Head of Legal at the Nationale Anti-Doping Agentur Deutschland, said that WADA's requirements “cannot be reconciled” with the wishes of the Article 29 Working Party of data protection regulators.As, the Art. 29 WP wrote to WADA last week with a 13-page list of issues with the Code. Dan Cooper, WADA's External Privacy Counsel, said that international transfer of data could “prove problematic” and that blood profiling would be “impossible” if current issues were not resolved.
Other issues raised included;
• Interpretation of Article 10.4 of the Code by administrators at the Court of Arbitration for Sport (CAS) can be problematic;
• The 2015 Code needs to clarify whether CAS Arbitrators can still work for sporting organisations, or if they need to be truly independent;
• The US Equestrian Federation is using polygraph (lie detector) tests in anti-doping cases already;
• Clarification is needed as to what constitutes 'substantial assistance' to reduce an athlete sanction under Article 10.5.3 of the Code.
Tackling Doping in Sport is organised by World Sports Law Report, Squire Sanders (UK) LLP and UK Anti-Doping.
Planned revisions to the World Anti-Doping Code need closer examination before the 2015 version is published, heard delegates at day two of Tackling Doping in Sport 2013, which took place 13-14 March at Twickenham Stadium. The 250 delegates from over 30 countries held a lively round-table discussion on contentious areas of the new version of the Code, with suggestions to be submitted to the World Anti-Doping Agency as part of its Code Review process next week.
Joseph de Pencier, CEO of the Institute of National Anti-Doping Organisations kicked off the day by highlighting seven main areas of change in the 2015 Code. The audience was split over whether the standard two-year ban for a first time offence should be increased to four years, as proposed in the 2015 Code. Under the 2009 Code, sporting organisations wishing to prosecute an athlete who has intended to cheat for longer must push for 'aggravated circumstances' under Article 10.6 to scale a first time offence ban up from two years to a maximum of four. However, UK Anti-Doping (UKAD) pointed out that they are often curtailed from doing this by a caveat to Article 10.6, which allows an athlete to 'avoid the application of this Article by admitting the anti-doping rule violation'.
Under the current 2009 Code, the onus is on the international federation (IF) to 'scale up' the ban under Article 10.6. Under the 2015 Code, the onus is on the athlete to scale the standard four-year ban down. There was much debate over whether it is right to place the onus on the athlete to reduce the ban, especially now that athletes face having to pay costs at the Court of Arbitration for Sport should they lose a case, if the IF delegates sanctioning to the national association concerned. “I must now advise athletes that they could face having to pay CAS costs as well as legal costs”, said Antonio Rigozzi, Partner, Levy Kauffmann-Kohler.
Concerns were raised that this could deter appeals from athletes who had inadvertently ingested prohibited substances with no intent to cheat and, conversely, that a four-year ban was so lengthy that it would result in endless appeals from athletes keen to avoid the end of their career. John Ruger, Athlete Ombudsman for the US Olympic Committee, highlighted that between 40% and 60% of US doping cases are inadvertent. “Most athletes have made silly mistakes and for those that have not, penalties can be upscaled”, said Athlete Lawyer Howard Jacobs. “A four year default ban places the burden on the athlete to prove they are not an intentional doper rather than on the IF to prove intentional doping”.
“In cases of inadvertent doping, rank injustice should not be allowed”, said Adam Lewis QC, of Blackstone Chambers. “Where everybody accepts that there has been no intention to cheat, the Code should provide for this”.
It was also pointed out that the 2015 Code doubles the initial doping sanction for competing while banned. Ruger pointed out that if a four-year standard is used, this could result in some athletes facing an eight-year ban for competing in a competition they did not realise they were banned from taking part in.
Issues were also raised around the drafting of certain changes within the 2015 Code. De Pencier pointed out that Article 8.1 of the 2015 Code entitled athletes to a 'fair hearing as set forth in Article 6.1 of the European Convention on Human Rights and comparable principles generally accepted in international law' and clarification is needed as to what this means in practice. He also said that provisions in Article 10.4.2 on contaminated products need clearer definition. Athlete lawyer Howard Jacobs pointed out that the definition of 'contaminated product' in the Code as 'A product which an Athlete or other Person could not have known contained a Prohibited Substance' has the potential to undermine the whole purpose of the contaminated products rule.
Practical issues were also highlighted, such as those involving regulation of drugs for 'therapeutic use' (therapeutic use exemption - TuE. It was pointed out that if an IF doesn't recognise a National Association's TuE, then that can cause issues for the athlete who qualifies for international competition when competing at the national level, as they may find they fail to qualify again due to competing against NA athletes who have that TuE.
Away from the Code revision debate, a fascinating insight into how the media can work with anti-doping authorities was presented by freelance journalist Hajo Seoppelt, who has been carrying out an investigation into doping in Kenya for German state broadcaster ARD. The International Association of Athletics Federations (IAAF) had highlighted how this problem is being resolved through the use of mobile doping units in areas such as Kenya on day one of the conference.
Brett Clothier of the Australian Football League showed that while the Australian Crime Commission's report into doping in Australian sport had highlighted the involvement of organised crime in doping, it has also revealed a number of other issues. These involved the role of anti-ageing parlours in the supply of drugs into the Australian market; and how Australian sport has been using drugs not regulated under the Code, such as drugs not yet tested on humans.
In wrapping up the conference, Mike Morgan of Squire Sanders (UK) LLP said that the event had provided a “balanced discussion” between those arguing for longer sanctions for doping and those arguing for redemption. “Everyone has different ideas about policing integrity, and that's why this conference is worthwhile”, he said.
The conference was covered by media organisations including The Independent, Reuters, The Guardian, the Washington Post and more. Tackling Doping in Sport is an annual event organised by World Sports Law Report, Squire Sanders (UK) LLP and UK Anti-Doping. World Sports Law Report also organises conferences on Betting in Sport and Player Contracts. For more information, visit www.CecileParkConferences.com
Tuesday, March 12, 2013
There have been a number of significant developments in the ongoing battle against match-fixing this month. However, what is interesting about them is how well they illustrate the lack of a coordinated approach to tackling match-fixing. All the different bodies involved are operating in silos, rather than talking to each other.
Europol revealed details of a large-scale investigation into match-fixing. FIFA pointed out that many of the cases revealed by Europol have been dealt with - it has its Early Warning System GmbH to help with this - and launched a website for whistleblowers with information on corruption. Interpol held a conference on match-fixing that illustrated how law enforcement needs to cooperate to tackle match-fixing, yet has made no concrete moves towards this itself. Legislators drew up new plans to regulate operators on the premise of protecting consumers from corruption. Gambling operators bemoaned attempts to further regulate them, yet also complained about lack of consultation with regards to attempts to tackle match-fixing.
This may sound strange coming from the Editor of World Sports Law Report, but sport is unique as a legal discipline in that a debate exists as to whether 'sports law' exists at all, or whether sport is simply governed under a number of established legal disciplines. As with all legal disciplines, sport is regulated through criminal and civil law, but also through the various rules of international federations and national associations that govern different sports. Tradition dictates that sports organisations regulate on a national level with loose international governance. The European Commission has even recognised that sport regulations can have 'special characteristics' which might fall outside of normal law in its White Paper on Sport.
The number of bodies involved in regulating sport is therefore huge. As there is nothing connecting them, they all operate under their own codes and traditions. They are also interact with civil and criminal law, and the bodies involved with policing that area. This situation might be described as a 'lacuna', and goes some way to explaining why sport has failed to get to grips with tackling match-fixing.
This is why initiatives such as the International Olympic Committee and Council of Europe initiatives against match-fixing are so important. Somebody needs to take control of the process and set guidelines as to how all the bodies involved should interact together to regulate an international problem such as match-fixing. As pointed out by the European Sports Security Association in this edition, if sport wants to continue to exist in parallel with the normal rules of law, then it needs to get its house in order before somebody else does it for them.
Tuesday, February 26, 2013
Cairos Technologies AG today became the third company licensed by FIFA as a Goal-Line Technology (GLT) provider, after agreements were signed with Hawk-Eye and GoalRef in November last year. FIFA has also launched a tender for these three companies to bid to become official GLT provider for the FIFA Confederations Cup 2013 and 2014 FIFA World Cup, both of which will be held in Brazil.
FIFA was initially opposed to GLT, however changed its tune in Summer 2010. It was widely reported as a u-turn by football's governing body, however as regular readers of this blog will know, I believe that FIFA has played a far cleverer game. When announcing its approval for the Hawk-Eye and GoalRef systems, the International Football Association Board (IFAB) 'was keen to stress that technology will only be utilised for the goal-line and no other areas of the game'. This statement kills any other attempts to use technology to make football fairer stone dead.
FIFA could have utilised the big screens now present in nearly every professional stadium for referees to instantly review any goal-line situation, as fans watching on TV do. This would have been a cheaper solution to the problem, but one that FIFA chose not to use. Why? Because FIFA can't generate money from technology that already exists in football, but companies providing new technology will be happy to pay FIFA.
This financial motive is underlined by page 3 of FIFA's 'Application as a Licensee for GLT' document, which reads: 'The FIFA licensing scheme for goal-line technology offers two options to licensees: a non-commercial option containing the authorisation to install licensee's goal-line-technology systems worldwide which can be used in official matches, and a commercial option which additionally provides the licensee with certain marketing rights in relation to the FIFA quality programme for goal line technology to communicate its status globally as an official FIFA licensee for goal-line technology. Both options are presented by FIFA to the applicant at the initial meeting. An administration fee is payable by all licensees which contributes to the expenses incurred for the licensing/certification and registration of goal-line technology systems and installations. In addition, where the commercial option is taken, a licence fee will also be due.'
This is why I am sceptical of suggestions that FIFA has 'seen the light' regarding GLT use in football. FIFA is a shrewd commercial operator and I believe that its so-called 'u-turn' on GLT is a licensing exercise to make money. As I have stated before, GLT will only make football marginally fairer. During the 2010/11 FA Premier League season, just four incorrect goal-line decisions were logged, compared to 151 incorrect decisions on goals related to the offside rule. The evidence for this is here.
If the introduction of technology into football was about making football fairer, a better solution would be to use TV replays. Both rugby codes manage this without ruining the flow of the game, however if the football authorities are worried about this, perhaps a system similar to that used in cricket - where players are allowed to seek reviews of a decision - could be used. Football is faster flowing than cricket, so I would advocate a system where the Captain of each team is allowed to refer three decisions per game to the video referee. This would be a better solution than GLT and would also be cheaper. However it won't make money for football, so FIFA and the IFAB have ensured it will never be introduced.
Friday, February 22, 2013
The jury is still out on whether Lance Armstrong is playing a clever game. As was pointed out by Anti-Doping Denmark following Michael Rasmussen's subsequent confession to doping, Armstrong decided against confessing to anti-doping authorities, instead choosing the medium of a TV interview. In terms of the way that the anti-doping community normally operates, he has yet to 'confess' to doping.
Armstrong chose not to contest USADA's evidence against him in an arbitration hearing, after a Texas Court granted USADA's motion to dismiss his appeal against the charges. This was despite the judgment stating that arbitration is the correct forum for the issues around USADA's evidence relying on witness testimony to be discussed. 'The deficiency of USADA's charging document is of serious constitutional concern', reads the judgment. 'It appears USADA's evidence will revolve more around eyewitness testimony than lab results. The Court must presume the arbitration panel will discount the weight of those results to the extent it finds them unreliable or unpersuasive. Armstrong will be able to call into question the reliability of any witness testimony, by affidavit or otherwise, that was not subject to cross-examination'.
Yet despite this, Armstrong chose a TV interview over arbitration and did not call the evidence into question. Unsurprisingly, Oprah Winfrey did not press Armstrong on this crucial issue.
As pointed out by Kris Lines and Jon Heshka in this issue of World Sports Law Report, USADA has acted as 'judge, jury and executioner' so far in the Armstrong case. The evidence against him has not been independently examined by any authority, let alone a court of law. He has not even confessed, as such. All we have is that he says he doped in winning his seven Tour de France titles, but "the last time I crossed that line" was in 2005.
It is important that Armstrong has put a time limit on his doping activities, despite USADA's evidence suggesting he was doping as late as 2010. He has publicly stated that he wants his lifetime ban reduced to eight years, which means he would be free to compete - at the latest - in 2014.
Armstrong has rejected approaches from USADA to cooperate and has focussed instead on giving evidence to a WADA and UCI-led truth and reconciliation commission for cycling. This now looks unlikely to happen, due to ongoing arguments between the two bodies over who should establish and fund such a commission.
Armstrong also faces lawsuits from a number of individuals and companies keen to recoup money. As he hasn't confessed and USADA's evidence has been criticised by a court of law, these lawsuits may prove difficult to pin down. The most important of these is a lawsuit brought by Floyd Landis under the Federal False Claims Act, which alleges that by accepting sponsorship money from the government, the US Postal Service Cycling team was defrauding the government.
However, the lawsuit asks for trial by jury. Armstrong's advisors could argue that the jury has been prejudiced by the media circus that ensued around his Oprah interviews.
Is Armstrong playing a clever game? It appears so, but only time will tell.
Thursday, November 29, 2012
The Union Cycliste Internationale (UCI)'s acceptance of the United States Anti-Doping Agency's (USADA) sanctions against Lance Armstrong raises some interesting questions. Although the UCI has denied suggestions that it was complicit in Armstrong's doping, an independent commission appointed by an 'independent sports governing body' will explore USADA's evidence against it. This includes compelling evidence, such as witness statements of conversations with Armstrong suggesting that he believed that a 2002 payment to the UCI was in order to cover up a positive test from the 2001 Tour of Switzerland. If Armstrong is a fantasist, the UCI has an interest in exposing him as one.
By approving USADA's sanctions, the UCI has ensured that such allegations will not yet be explored further by the Court of Arbitration for Sport (CAS) or a court of law. However, the language of the UCI's 22 October statement suggests that it has serious issues with USADA's evidence. The UCI talks about 'incorrect and incomplete statements' and 'UCI disagrees with these statements and criticism'. The investigatory commission will have to explore why the UCI considers witness statements to be false. If this is proven, further lawsuits could follow.
The UCI also states that 'USADA's reference to national law is not appropriate' and contests that USADA has violated Article 17 of the World Anti-Doping Code. This only allows action to be taken within eight years of the alleged anti-doping violation. The UCI rightly point out that 'it is WADA's role and responsibility to ensure compliance with the Code and to appeal to the CAS in order to warrant, as is the mission of WADA, that the Code is applied in a uniform way and that all athletes are treated equally'.
WADA decided not to appeal this point, agreeing with USADA's analysis that the eight-year Statute of Limitations had been suspended 'by Mr Armstrong's fraudulent concealment of his doping and other wrongful acts'. This analysis is supported by a recent American Arbitration Association decision in a doping case, where the panel suspended the Statute of Limitations because the athlete had lied under oath (USADA v Hellebuyck, AAA Case No. 77 190 168 11, Jan 30, 2012).
There is still a long way to go before the issue of whether the UCI was complicit in Armstrong's doping is resolved. Armstrong still has a right to appeal and the IOC has yet to decide what action - if any - to take. It remains to be seen whether by accepting USADA's sanctions, the UCI has dodged a bullet or shot itself in the foot.
Wednesday, October 31, 2012
The English Football Association's (FA) decision to investigate allegations that referee Mark Clattenberg racially abused Chelsea players has led to calls that referees should be ‘miked up’, as they are in both rugby codes. The argument is that doing this would create an environment where both players and referees would be less inclined to trade insults, if they knew that their words were being recorded.
While such a system would help players abused by a referee, it is questionable whether such a system would help referees, even if managed correctly. A system whereby what is said can be reviewed by the referee might help them to sanction players for use of offensive language, if such language falls within the coverage of the microphone. However, it could also undermine the referee by allowing a player to call a decision into question. Referees might refrain from sanctioning players for fear of getting it wrong.
You have to also question why football would want to record what is said during the heat of the game. Referees are already linked to linesmen and other officials by microphone, so any inappropriate comments would be picked up by them. The balance of power is already too far weighted towards the player. Referees are routinely abused by players and the crowd (name your chant) during a game, yet no action is taken. When one allegation surfaces that a referee might have abused a player, talks begin about changing the system. FIFA and the FA have already undermined the referee’s authority by employing goal-line technology to assess the four incorrect goal-line incidents that typically occur during a season.
It might also backfire. If players know that their peers are listening, they might compete to see who can record the best insult during a game, or who can get closest to the line of what is deemed acceptable. The ingrained respect for the referee in rugby doesn’t exist in football, as anyone is allowed to contest a decision (in rugby, only the captain can do this).
Referee microphones also fails to address the bigger problem, which is that football has become a game of deception. The competitiveness of the modern game coupled with the money involved mean that players and managers are seeking whatever slim advantages they can gain over their opponents, and football is allowing them to do this by not giving the referee the necessary tools to do his job. I have heard supporters and commentators berating players for not going down during heavy challenges. Fooling the referee, through diving and other methods, has already become a key part of many players' games. The dictionary definition of 'fool' is 'one who is deficient in judgment, sense, or understanding' - hardly consistent with respect.
Football needs to act to empower referees, rather than taking power away from them. As I have suggested before, a fairer system would be to allow team captains to refer three decisions per game for review, either on a big screen or via another method. That way, if there is a disputed incident that leads to a key goal, the referee has a chance to correct incidents of diving, feigning, incorrect offside decisions, handball, goal-line incidents, unseen fouls etc. without undermining his position by taking away his power to make that decision. The Chelsea v Manchester United game might not have been so heated if Clattenberg had the option of reviewing Javier Hernandez’s goal, which was offside.
Almost all other sports allow for decisions to be reviewed by the referee, which means that player attempts to deceive the referee can backfire. The longer football supports a game based on deception, the more ingrained the lack of respect for officials will become.
Wednesday, October 17, 2012
The Polish football association (PZPN) confirmed that FIFA took a pre-match decision not to close the roof of the National Stadium ahead of last night’s 2014 FIFA World Cup qualifier against England. The match has been postponed until 5pm local time (4pm GMT) today, after continuous rain left large parts of the pitch underwater. The PZPN also confirmed that tickets for yesterday’s game will be honoured for today’s game.
‘Under the provisions of FIFA (FIFA World Cup Brazil 2014, Article 20, paragraph 5), the decision as to whether the stadium roof will be open or closed is delegated to FIFA after consultation with the teams and the head referee’, reads a PZPN statement. ‘This decision must be announced at the organisational meeting before the game. Before Tuesday’s game, steps were taken to close the roof, however as reported, this was not possible in the weather conditions for technical reasons.’
The FIFA regulations in question are available on the FIFA website here, but link to a blank PDF file. England’s Football Association (FA) is investigating the possibility of compensating fans who had travelled to Warsaw for the game but have had to catch scheduled flights home ahead of today’s rescheduled game. FA Director of Communications Adrian Bevington told press that compensation is “something we are looking into, but I can’t give any final decision on that”. The FA has also set up a refund process for unused tickets.
Tuesday, October 09, 2012
As attendees at our Tackling Doping in Sport conferences will confirm, catching drug cheats in sport is a complex, ever-changing game of cat and mouse. Athletes constantly discover new substances or new methods that provide an advantage and are either not on the World Anti-Doping Agency's (WADA) Prohibited List, or are harder to detect than previous methods. In attempting to catch the real cheats, there is a danger that athletes with no intention of cheating are caught in the crossfire.
Our two main August news articles are illustrations of this. Although the US Anti-Doping Agency (USADA) has been successful in convicting Lance Armstrong for doping, it is a victory by default. Armstrong has never failed a drug test and has not admitted doping. USADA was able to ban him and annul his results as his failure to contest USADA's charges was seen as tantamount to an admission of guilt. There is even a question mark over whether USADA has the authority to do this, as August's lead news article illustrates.
By refusing to contest USADA's charges, Armstrong has ensured that allegations that he was given prior notice of tests and that test results were covered up may never be fully investigated. His sanction may even be reduced, if the UCI does decide to contest USADA's ability to sanction Armstrong. In other words, has the cat actually caught the mouse, or has the mouse evaded capture?
As dopers discover new substances and methods to cheat, anti-doping authorities amend their regulations in order to keep pace. Innocent athletes must also try to keep up with the pace of change, in order to avoid unintentionally falling foul of the ever-changing regulations. August's second news article concerns methylhexaneamine, a substance that has led to numerous unintentional doping violations by athletes who have either checked the ingredients of supplements against the Prohibited List, or have been told by support staff that a supplement is safe to take. The reason is that methylhexaneamine is also known by a number of other names, yet only methylhexaneamine appears on the Prohibited List. Therefore an athlete checking supplement ingredients such as DMAA or 1,3-dimethylamylamine will not find them on the List, convincing them that the supplement is safe to take. It is not. Both DMAA and 1,3-dimethylamylamine are alternative names for methylhexaneamine.
What is needed to prevent either situation from happening again in the future is clear regulation. We may never get to the bottom of the Lance Armstrong situation because of USADA and the UCI's failure to work together, due to unclear regulation about who has jurisdiction for sanctioning retired riders, the burden of proof required and how far back that sanctioning power should stretch. The Medicines and Healthcare products Regulatory Agency's move to eradicate products containing DMAA from the UK market may help prevent UK athletes from committing unintentional doping violations in the future, however athletes from other countries remain at risk. WADA needs to come up with a system that records and logs alternative names for banned substances so that athletes are reliably informed about what they are actually taking. Unless these issues are sorted out, anti-doping could suffer a loss of credibility, and the mouse could continue to evade capture.
Friday, August 31, 2012
The International Olympic Committee (IOC) has a difficult task. When it was formed back in 1894, founder Pierre Baron de Coubertin didn't have to worry about troublesome things such as human rights and sex discrimination. Such concepts were in their infancy, if they existed at all. Women weren't allowed to compete in the inaugural modern Olympics in Athens in 1896, gaining representation in tennis and equestrian events only, in Paris 1900. Since then, the world has changed, but sport continues to split events into 'men's' and 'women's' categories. It has generally been agreed that determining whether someone is female by examining their genitalia is not acceptable - and not always accurate - yet the IOC is still required to split men and women in the interests of 'fairness' and sporting history.
How should it do this? The IOC has come up with its Regulations on Female Hyperandrogenism for the Games of the XXX Olympiad in London 2012 on 22 June, after the Caster Semenya case forced it to rewrite its rules on eligibility of female athletes. It followed the logic of the International Association of Athletics Federations (IAAF), which told World Sports Law Report "if we don't have rules on this, we will also face legal challenge from other female athletes" when publishing its own Regulations on 1 May.
When writing about this before, I have rightly been warned that dealing with hyperandrogenism is a complex scientific issue. It is, but the logic behind the science isn't complicated, and needs to be carefully considered by sports organisations before following the IAAF and IOC's lead. The IOC is at pains to stress 'nothing in these Regulations is intended to make any determination of sex', so it is taken as given that the IOC accepts that the athlete being investigated is female. Without going into too much detail, the Regulations allow the IOC to examine whether testosterone levels in serum fall within the 'male range' and if so, ban a female athlete from London 2012 if this allows her a competitive advantage.
Stripping away the science, the Regulations allow the IOC to ban a female athlete who has done nothing wrong, but has an advantage due to her genetic make up. It also attaches the added stigma that she is 'male' by comparing her testosterone levels to what the IOC considers to be a 'male' range of testosterone. The athlete has no recompense, since she cannot adjust her genetic make up. She is banned for simply being who she is.
Using this logic, perhaps we should also ban Michael Phelps, Usain Bolt and others? This article explains the genetic advantages that Phelps has over us mere mortals in the pool. This article explains why Bolt can break the 100m world record while I run more like a crazed swan. Bolt also has leptin and insulin insensitivity, which means he can maintain low body fat without his hormonal expression being compromised (as compared to a regular person), which means less weight to carry.
You might have noticed that I have used 'she' and 'her' when referring to the athlete subject to the IOC's Hyperandrogenism Regulations. This is because they apply exclusively to females. The IOC doesn't ban a male athlete with testosterone levels considered above the 'normal' male range, or declare a male with low levels as falling within the 'female' range and forcing him to compete as a female. This may sound crazy, but it follows the same logic employed.
However, the IOC may have been clever enough to avoid legal challenge. By inserting the caveat mentioned earlier that they have nothing to do with determining sex, the IOC may be able to argue that the Regulations do not fall foul of Article 14 of the European Convention on Human Rights. A charge that they fall foul of Articles 23, 27 and 29 of the Universal Declaration on Human Rights will be harder to defend, but possible. If these Regulations are used at London 2012, it will take a brave athlete to cope with the embarrassment and stigma of being banned to challenge them in the courts. Good luck!
Wednesday, July 11, 2012
Analysis of the impact that recently-implemented rules affecting player contracts will have on football is needed before further regulating the area, concluded World Sports Law Report's Player Contracts 2012 on 5 July in London. Football authorities need to investigate whether banning third-party investment in players is plausible - especially as such bans put certain counties at a disadvantage when competing for the world's best players under UEFA's Financial Fair Play Regulations (FFPR).
"What is the point of the Financial Fair Play Regulations if you can assemble a squad at no cost using third-party investment?", said Jane Purdon, Director of Governance at the Premier League, which has notified UEFA that its own ban on third-party investment in players puts it at a disadvantage in European competitions. "Third-party investment either pushes up transfer fees or curtails the real transfer market".
"When we first examined third-party investment, we weren't comfortable banning it having looked at it for only a short period of time", said Sefton Perry of UEFA's Club Licensing department. "However, it was clear that something needed to be done, as there was no transparency. Player ownership now has to be declared under club licensing, which is a step in the right direction."
Delegates attending the event also heard how FIFA is considering using powers to audit clubs to ensure compliance with its Transfer Matching System (TMS). "We have very broad investigative powers given to us by the regulations", said Isabelle Solal, Head of Integrity & Compliance at FIFA TMS, when asked if FIFA would conduct 'surprise audits' on clubs. "We are not ruling anything out at the moment".
Delegates also heard:
- if a club breaches UEFA's FFPR as a result of the wages of players signed prior to 1 June 2010, then that club will not be sanctioned (Annex XI FFPR).
- The Premier League and Football League are having discussions about what should happen under the Football League's FFPR if a promoted club is then relegated back into the Football League, as it would be able to sign players freely whilst in the Premier League, which doesn't operate FFPR.
The programme also included sessions on how compensation for international duty operates, how image rights issues are affecting the way in which player contracts are conducted and much more.
The annual conference, hosted at the Kensington Close hotel, was attended by international federations, continental associations, national associations, leagues, clubs, agents, lawyers and more. World Sports Law Report also organises Tackling Doping in Sport, which is organised in association with UK Anti-Doping and Squire Sanders. World Sports Law Report will also be hosting its annual Sports & Betting conference at a central London location on October 9 this year.
On 5 July, the International Football Association Board (IFAB) approved that goal-line technology can be used by those who wish to in football. I have previously explained why I think that this is not the best solution to the issue of wrong decisions being made in football games here, here, here, here, here and here. Let's get one thing straight. I am not against the use of technology in football - far from it. I just think that there are simpler, cheaper and more effective ways to ensure that less wrong decisions are taken.
UEFA President Michel Platini recently revealed that he is opposed to the use of any technology in football - not just goal-line technology. "If tomorrow someone handballs it on the line and the referee doesn't see it, what then?", he said. "We can't just have goal-line technology. We also need sensors to see if someone has handballed it."
Platini's opposition to goal-line technology appears to be based on the often repeated premise that the use of technology will ruin the flow of the game. I don't buy this argument. Rugby league and union are both fast-flowing games and use technology to review decisions without affecting the flow of the game. All refereeing mistakes in football and both rugby codes are only picked up through television coverage, and this is what rugby uses to review decisions. A simple and inexpensive solution, but one that football has failed to consider. Why?
Platini is right that goal-line technology will only solve one issue - whether a ball has crossed the line or not. It would not have picked up Maradona's handball to score during the 1986 FIFA World Cup quarter-final. Nor would it have picked up Henry's handball during a 2010 FIFA World Cup qualifier against Ireland. Nor would it pick up numerous dives or feigning that have led to goals.
I accept that review of every decision is impossible, but it would seem common sense to allow the referee to have another look if he isn't certain. In cricket, each team is allowed to refer three unsuccessful requests to the video referee per innings. Such a system could be adapted for use in football. As I have suggested before, allowing the captain to make just three requests for video review per game would not affect the flow of the game. It would also be simple, cheap and effective.
One of the arguments raised early on was that the introduction of goal-line technology would ruin the 'drama' of the game. FIFA President Sepp Blatter was also against goal-line technology, before performing what has been reported as a u-turn. I think that Blatter has been far cleverer than that. When announcing its approval for the GoalRef and Hawk-Eye systems, IFAB was 'keen to stress that technology will only be utilised for the goal line and for no other areas of the game'. Could it be that in return for advocating goal-line technology, Blatter has managed to convince IFAB to rule out any further adoption of technology in football, thereby killing any chance of real reform, as advocated by other leading figures in football?
It appears that FIFA has forced the IFAB to maintain the status quo, rather than adopting the easier, cheaper and potentially more wide-ranging possibilities that TV replays offer. Goal-line technology will be expensive to install, could affect the flight of the ball and will actually solve few incorrect decisions. It is important to point out that it will be up to national football associations and continental federations to decide whether to adopt goal-line technology, and every system must be referred to FIFA for approval. It will therefore only be adopted by the richest in football, and those who believe FIFA's hype.
Wednesday, June 20, 2012
Ukraine's unrecognised goal against England underlines the fallacy of FIFA's insistence on persisting with goal-line technology. Had goal-line technology been used, Ukraine could have progressed through to the quarter-finals ahead of France (if they had scored enough goals). However, the decision would have been incorrect, as Milevskiy was offside. As I have said before, the only logical solution is to use TV replays. Everyone watching on TV at home instantly saw that the ball was over the line - they also heard about a minute later that Milevskiy was offside. Goal-line technology could have identified the first mistake, but not the second.
Goal-line technology is consistently hailed as the solution to incorrect decisions in football, however as has been pointed out previously, the evidence suggests that there are far more incidents other than those involving the goal-line. It can also lead to incorrect decisions just as easily as correct ones, as explained above.
FIFA has consistently delayed the introduction of goal-line technology, because it doesn't really want to introduce it - it is happy with the status quo. Rather than settling the injustices in football, goal-line technology goes as far as possible towards maintaining that status quo without affecting the 'flow' of the game, which FIFA doesn't want altered, no matter how many wrong decisions are taken. In other words, changing little, whilst generating money for FIFA as companies queue up to become 'official supplier'.
Articles have suggested that FIFA President Sepp Blatter has performed a 'u-turn' on the introduction of technology in football. In fact he has played a far cleverer game - he has managed to convince the world that he wants to settle injustices in football through the use of technology, by supporting the introduction of technological means that will make little change to football's injustices. Diving, feigning, incorrect offside decisions and more will continue to go unpunished. There are generally only a handful of goal-line incidents in one season, and of those, evidence suggests that less than a quarter are incorrect.
Friday, May 18, 2012
Interesting points about the future of the Olympic movement and its regulation were raised on the second day of Ithaca College's third conference on Law, Policy and the Olympic Movement, May 16-18. Karolina Tetlak, a Lecturer in Tax Law at Warsaw University, explained that any officially accredited person coming to the UK for the London 2012 Olympics will be tax-exempt, as will any athlete.
An interesting discussion was held around how Her Majesty's Treasury can reconcile this exemption with its normal requirement that any visiting athlete must pay tax on any earnings whilst in the UK. It was explained that although it is not a requirement of the IOC that host cities offer tax exemption, its 'Candidate Procedure and Questionnaire' for potential hosts asks questions about what taxes the Olympic Games would be subject to if they were held in that country, whilst requiring cities to sign an 'undertaking' that any statement made in the questionnaire is legally binding. Tetlak explained that it is often difficult for cities and countries to pull out of offering tax exemptions, explaining that Poland's new government had threatened to remove a tax exemption granted to UEFA for the Euro 2012 by the previous administration. UEFA apparently mentioned that Germany would be able to take over their co-hosting duties and the tax exemption remained.
An interesting discussion was had about whether in the future, the Olympics will continue to attract the same number of competing bidding cities, given that whilst the profits of the IOC have been increasing over time, host cities report losses more often than not. It was agreed that it would take either a failed Games or a lack of bidders before the IOC would consider giving some of its profits to host cities.
Keynote speaker Professor Ian Blackshaw, a Member of the Court of Arbitration for Sport (CAS), revealed that a CAS decision that it lacked jurisdiction to hear the case of footballer Ömer Riza is being appealed under Article 6 of the European Convention on Human Rights (ECHR), which protects the right to a fair trial. The basic facts of the case are that Riza terminated his contract with Trabzonspor Kulübü Dernegi, alleging that the Turkish club had breached his contract and joined an English club. After filing a claim against Trabzonspor with FIFA, Riza's case was referred back to the Turkish football association (TFF), as all disputes must be heard by a TFF arbitration board under its regulations. The TFF arbitration board held that Riza had wrongfully terminated his employment contract, resulting in an appeal to the CAS, which held that it lacked jurisdiction to hear the case. Riza then appealed to the Swiss Federal Court, which agreed with the CAS. The details of the case will be explained in more detail in the May edition of World Sports Law Report.
Hilary Findlay of Brock University highlighted how the Athlete Biological Passport works and highlighted a number of potential issues with it. Firstly, she pointed out that the passport reverses the presumption of innocence by requiring athletes to prove their innocence if their biological markers indicate that doping might have taken place. It was questioned whether this is the right approach to policing against doping in sport. It was also pointed out that if athletes can still micro-dose, as long as they stay within their biological markers and that if an athlete is already doping, the biological passport might actually require athletes to continue doping in order to ensure that their biological markers continue to appear 'normal'!
There were many other interesting issues raised - far too many to list here. Thank you very much for inviting me, Ithaca!
Tuesday, May 01, 2012
The Court of Arbitration for Sport (CAS) yesterday rejected an appeal from the British Olympic Association (BOA) against a World Anti-Doping Agency (WADA) decision to declare a BOA Bye-Law non-compliant with the World Anti-Doping Code ('the Code'). The CAS ruled that BOA Bye-Law 7.4, which bans athletes suspended for doping for over six months from Olympic selection, "is a doping sanction and is therefore not in compliance with the WADA Code".
In its statement in response, the BOA confirms that it has the support of UK Minister for Sport and the Olympics Hugh Robertson in its call for a return to four-year sanctions for drug cheats, contained within its submission to WADA as part of the Code review. A recent World Sports Law Report poll found that 60% of respondents thought that provisions should be included within the World Anti-Doping Code allowing sporting bodies to ban convicted dopers from selection for future competitions.
Earlier this year, World Sports Law Report organised Tackling Doping in Sport, a two-day conference at Twickenham Stadium designed to coincide with the 15 March deadline for submissions to the Code review. WADA is due to table a revised version of the Code at its Executive Committee and Foundation Board meetings, which will take place on 17 and 18 May in Montreal.
World Sports Law Report interviewed one of the key speakers, Frédéric Donze, Director of the European Regional Office of the World Anti-Doping Agency. You can read his comments on WADA's role in amending the Code, sanctioning, Code compliance, anti-doping in developing countries and whether there can ever be a level playing field for athletes in anti-doping terms by clicking here.
Tackling Doping in Sport, which took place 14-15 March at Twickenham Stadium, brought together over 200 anti-doping experts from 22 countries. For more information on the conference programme, click here.
Friday, March 09, 2012
Research undertaken by sports broadcaster Tim Long has logged just four incorrect goal-line calls during the 2010/11 FA Premier League season, compared to 151 goals that should/should not have been allowed for offside reasons. The research backs recent calls for TV replays to be introduced in football - and that is without analysing incorrect penalty/free kick decisions leading to a goal. Of 20 'goal-line decisions', four were incorrect, 12 were correct calls and four were impossible to tell from TV replays. Introduction of a proper TV replay system similar to that used in rugby union and league (rather than viewing broadcast TV replays) could also resolve the remaining four incidents.
Long told World Sports Law Report that his research, conducted for radio documentary Beyond The Goal Line: Football's Technology Debate, involved spending a whopping 250 hours analysing 713 incidents that occurred during the 2010/11 season. These included:
- 361 penalty claims for fouls or handballs;
- 151 goals that should / should not have been allowed for offside reasons;
- 20 goal-line decisions (only four of these were incorrect, 12 were correct calls and 4 were impossible to tell from TV replays).
The rest of the decisions were red cards, second yellows, foul in or out of the box, etc.
Although the International FA Board has recently announced that it is proceeding with testing for goal-line technology, it is not too late for FIFA to listen to what is actually going on in football and change its mind. The amount of money involved in the modern game means that a lot is at stake and pressure is on players to gain an advantage in any possible way. If that means hoodwinking the referee…
In a sterling effort to show how TV replays could impact football, Long compiled a new Premier League table based on correcting the incorrect decisions. Arsenal would have leapfrogged Manchester City and Chelsea to finish second in the table, while Blackpool and Birmingham wouldn't have been related. Wigan and Wolves should have been relegated instead, along with West Ham.
Long's research proves what is at stake. Professional football needs and deserves a better system if FIFA truly wishes to make football a fair game. Regular readers of this blog will know what's coming next…
FIFA has a duty to protect the referee's integrity and allowing the manager or captain to make a limited number of challenges to decisions made during a match would impact the game little, and most professional clubs already have the technology in place to do this. FIFA's argument is that to allow video replays would ruin the flow of the game. I can't see how an instant TV replay the minute the ball next goes out of play would delay the game any more than referral to goal-line technology systems, or more than appeals to the referee by outraged players currently do.
FIFA's motto is 'For the Good of the Game'. It would appear that TV replays fit this motto neatly.
Monday, February 13, 2012
‘Ambush marketing’ is a form of unfair marketing, which has been described as ‘parasite marketing’, although those engaged in it would characterise and justify it as ‘clever marketing’. Basically, a company or firm claims an association with a sports event which it does not have, and - perhaps more importantly - for which it has not paid a penny. In such a case, sponsors do not get value for the considerable sums that they have expended on the particular sponsorship. Sponsorship is a multi-million dollar industry worldwide and sports sponsorship represents some 88% of the total in terms of numbers and value! So, there is a lot at stake.
‘Ambush Marketing’ not only adversely affects the interests of official sponsors, it also dilutes the value of major sports events and causes confusion to consumers and fans. Depending upon the facts and circumstances of the particular case and depending also on whether the sports event is protected by a special law or statute - in order for a country to host the Olympics, such a law protecting the Olympic marks and designations must be passed - it may be possible to obtain a court injunction or an award of damages in cases of breach of the rules.
Combatting ‘ambush marketing’
There are a number of legal and non-legal methods of combatting ‘Ambush Marketing’. For example, the International Olympic Committee (IOC) has introduced a ‘naming and shaming’ procedure in which offenders are exposed in a press conference! This seems to have been quite effective on occasions, but must be handled discreetly to avoid any claims of defamation – trade libel/injurious falsehood.
Another method of combatting ‘ambush marketing’, which takes many creative forms, are detailed and sophisticated so-called ‘brand protection programmes’ created and strictly enforced by major sports event organisers. For example, an elaborate scheme was put into action and successfully implemented during the 2002 Salt Lake City Winter Olympics, with particular controls in place to prevent unauthorised advertising around the venues.
Likewise, strict and comprehensive rules, having the backing of statutory law, have been put into effect by the Organising Committee (LOCOG) of the London 2012 Summer Olympics. According to LOCOG, the legal and also commercial raison d’être for them is as follows:
‘The value of the London 2012 brand is vital to the funding of the Games. You can help support London 2012 by understanding and respecting the need to protect the brand, and by not using our emblems or otherwise creating an association with the Games unless you are sure you are entitled to do so. The hundreds of millions of pounds necessary to organise the Games must be raised by the London 2012 Organising Committee from the private sector – by selling sponsorship, official merchandise and tickets. To raise the necessary revenue, the London 2012 Organising Committee must be able to give its sponsors an exclusive association to London 2012 and the Olympic and Paralympic movements in the UK. As such we must prevent other companies undertaking unauthorised activities which damage our sponsors’ exclusive rights. If anyone could use the 'Games' Marks' for free, or otherwise create an association with the Games, sponsors and merchandise licensees would not want to invest in the Games.’
The London 2012 official website (www.london2012.com) includes a useful summary of the rules and explains what is permitted and what is not, and also warns offenders of the serious legal consequences that may follow from any breach of the rules.
The London 2012 Olympic Games marks and their legal protection
So, what are the ‘Games marks’ that sponsors pay substantial sums to use and be associated with and that need, therefore, to be legally protected? They are the following:
The Olympic symbol
The Paralympic symbol
The London 2012 Olympic and Paralympic emblems
The words ‘London 2012’ and ‘2012’
The words ‘Olympic’, ‘Olympiad’, ‘Olympian’ (and their plurals and things very similar to them – e.g. ‘Olympix’
The words ‘Paralympic’, ‘Paralympiad’, ‘Paralympian’ and their plurals and things very similar to them – e.g. ‘Paralympix’
The Olympic motto: ‘Citius Altius Fortius’ / ‘Faster Higher Stronger’
The Paralympic motto: ‘Spirit in Motion’
The Team GB logo
The Paralympics GB logo
The British Olympic Association logo
The British Paralympic Association logo
London2012.com (and various derivatives)
In what ways are the ‘Games marks’ legally protected? Some of them are registered as trademarks in various goods and service classes under the Nice Classification, whilst others benefit from copyright protection, particularly as ‘artistic works’. Additionally, in the UK, special laws have been passed to give extra protection to some of the ‘Games marks’ The Olympic Symbol etc. (Protection) Act 1995 (OSPA) protects the Olympic and Paralympic symbols, mottos and various words, including Olympiad(s), Olympian(s) and Olympic(s).
The London Olympic Games and Paralympic Games Act 2006 (the ‘2006 Act’) prevents the creation of any unauthorised association between people, goods or services and London 2012. Thus, the Games Marks can only be used with the express authorisation of LOCOG. Such authorisation has been granted to official sponsors, suppliers, licensees and non-commercial partners. Of course, such parties must act strictly in accordance with the terms and conditions of their respective agreements. Sponsors and others, who have been granted rights to be associated with London 2012, are listed in the statutory register which LOCOG is required to maintain under the provisions of the 2006 Act.
However, as regards the use of the name ‘Olympic’, businesses that have traded under an ‘Olympic’ name for many years (pre-1995) are allowed to continue to do so under the legislation. In other words, such businesses enjoy so-called ‘grandfather rights’.
Also, the words protected by OSPA can be used in editorial news pieces without LOGOC authorisation and journalists are, in certain circumstances, able to use the LOCOG emblem to illustrate an editorial piece about the Games. But, this exception does not apply to businesses that produce newsletters, client bulletins or other marketing material.
Furthermore, the use of marks and logos that are confusingly similar to the ‘Games marks’ is also prohibited. So watch out any potential ‘ambush marketers’!
Legal remedies and issues
LOCOG is prepared to take legal action against infringers in order to protect the ‘Games Marks’, which includes obtaining Court orders for the seizure of unauthorised merchandise and the payment of damages for breaches of the rules. You have been warned!
But what about local traders and businesses that operate on a relatively small-scale and wish to enter into the spirit of and promote the Games in their communities? They could fall foul of the ‘Ambush Marketing’ rules if LOCOG adopts a zero tolerance approach in all cases.
Hopefully, in such cases, LOCOG will take into account the particular facts and circumstances of each case and exercise a certain degree of discretion, and not adopt the strict and unbending approach of FIFA in the 2010 World Cup in South Africa and take legal action against all infringers, irrespective of the circumstances. The South Africa World Cup local organising committee brought 450 Court cases against ‘ambush marketers’ of all kinds and were criticised for doing so, especially when picking on small traders! Rightly so, in the opinion of the author of this article. Discretion, as they say, is the better part of valour!
Again, what about the use of the protected word ‘Olympian(s)’ which, under the OSPA, may not be used without LOCOG authorisation? Supposing an advertiser wishes, in the advertising of their goods or services, to congratulate ‘so-and-so’ as a fine Olympian during the Games, this, technically speaking, is prohibited. A number of commentators consider that this goes too far and is an infringement of the right of free speech, which includes ‘commercial speech’ (i.e. advertising)! In any case, would this actually amount to ‘ambush marketing’. Once more, there is a need for some discretion.
Whilst there are strong legal and commercial grounds for cracking down on ‘ambush marketing’, LOCOG would be well advised to remember the old age that ‘circumstances alter cases’ and apply the rules with a certain degree of discretion and common sense.
Otherwise, there will be PR disasters and the valuable goodwill associated with organising and holding the London 2012 Olympics, which have been described as ‘the greatest sporting show on earth’, will be damaged and undermined!
Finally, the line between ‘ambush marketing’ and ‘clever marketing’ is not always easy to draw in practice. But that is where the lawyers come in!
. For further detailed information on this important topic of ‘Ambush Marketing’, see Chapter 11 by Ian Blackshaw in ‘Sports Law’ by Gardiner et al, 2006 Third Edition, Cavendish Publishing, London, ISBN 10: 1-85941-894-5.
. On the subject of Sponsorship Agreements, see ‘Sports Marketing Agreements: Legal, Fiscal and Practical Aspects’ by Ian Blackshaw, 2012, TMC Asser Press, The Hague, The Netherlands, ISBN 978-90-6704-792-0.
Monday, January 30, 2012
Queens Park Rangers Vice Chairman Amit Bhatia has become the latest person within football to call for video replays to be introduced. "I'm convinced it's time to allow the challenge system in football", he Tweeted, reported The Guardian. "We have to have some kind of video replay system so that harsh decisions can be reviewed. So much is at stake in every game. Mistakes are made. Decisions are difficult and that's fine, but why not allow those difficult decisions to be reviewed? One challenge per half per manager wouldn't slow the game down by any more than 30 seconds. I think it's got to happen. Every fan and player in the land would appreciate a fair review of a difficult decision. It's not rocket science. And my rant isn't about today's decision. It's a general observation about football and applies to us all who want fairer decisions."
This is not the first time that clubs have advocated video replays (as this blog posting proves), and I have been arguing for their introduction for a long time. Allowing the manager or captain to make a limited number of challenges to decisions made during a match would impact the game little, and most clubs already have the technology in place to do this. FIFA's argument is that to allow video replays would ruin the flow of the game, however I can't see how an instant TV replay the minute the ball next goes out of play would delay the game any more than appeals to the referee by outraged players. As I have recently pointed out, FIFA is driven by generating money for football and I suspect that it cannot see any commercial value in mandating a system where the technology to be used already exists. Compare this with goal-line technology, where FIFA has a number of companies queuing up to become an official supplier.
Put simply, if Bhatia is to be successful in gaining FIFA support for video replays, he needs to gain support for a system that can generate commercial value for the game, and pitch it to FIFA. Perhaps a system could be introduced similar to that used in Australian rugby league, where companies pay to sponsor video replays. Otherwise FIFA will continue to pursue its expensive and ineffective goal-line technology solution, which is not 'for the good of the game'.
Friday, January 20, 2012
FIFA’s motto is ‘For the Good of the Game’. However, I am increasingly thinking that this should be changed to ‘For the Good of Our Own, and Big Business’. Not as snappy, but perhaps more realistic.
Firstly came a damning letter from a number of professional journalists, who have refused an offer from FIFA to become involved with FIFA’s interestingly-titled Independent Governance Committee. Basically, they have refused to become involved because they allege that the Committee is far from independent. Even more interestingly, they also accuse FIFA President Sepp Blatter of trying to personally delay publication of the report by Zug Investigating Magistrate Thomas Hildbrand into kickback corruption at FIFA, which they allege ‘destroys’ his claims to have been cleared by the investigation. ‘We are advised that there is no legal impediment to Blatter putting his copy online today’, reads the letter, which is contrary to FIFA’s claims that the document cannot be released due to legal measures taken by one of the parties involved. The Canton of Zug agrees with the journalists, and has ordered the release of the document. All of this smacks of an organisation trying to protect its own.
FIFA has also been trying to protect its sponsorship deal with Budweiser by forcing the organisers of the Rio 2014 World Cup to break Brazilian law by allowing the sale of beer in its stadiums. This is understandable, as FIFA needs to protect the interest of its sponsor, Budweiser. However, FIFA also wants to change a Brazilian law that mandates half-price tickets for students and OAPs. There is also a reason for this – FIFA now sees ‘For the Good of the Game’ to mean that cash is more important to the football family than social responsibility, and is willing to take money from pensioners and students.
FIFA consistently places its need for ever-more cash above its responsibility of choosing what is best for football. As I have pointed out before, the only logical reason for FIFA’s insistence on goal-line technology when video referees can do the same job is that it sees a system it can license to companies for money.
Perhaps it is time to ask whether FIFA is for the good of the game, or for the good of itself.
Friday, December 02, 2011
Cricketers Mohammad Amir and Salman Butt lost appeals against their sentences for 'spot-fixing' during the August 2010 England v Pakistan test on 23 November, whilst Mohammed Asif announced his intention to appeal his conviction. Amir was jailed for six months, Asif for one year and Butt for 30 months by Southwark Crown Court on 3 November.
A report presented to a 20 November World Anti-Doping Agency (WADA) Foundation Board meeting will determine how the British Olympic Association (BOA) will defend Byelaw 7.4, which bans athletes suspended for doping for over six months from Great Britain Olympic team selection.
The integrity and impartiality of India's National Doping Agency (NADA) has been questioned after players and teams were disqualified from the second Kabaddi World Cup, 1-20 November.
The Court of Arbitration for Sport (CAS) recently ruled that Rule 45 of the Olympic Charter - which bans 'convicted' dopers from competing at the next edition of the Olympic Games following expiration of their suspension - is 'invalid and unenforceable'. Paul J. Greene, an Attorney with Preti Flaherty Beliveau & Pachios LLP, examines the reasoning behind the CAS decision, who stands to benefit from it and the impact it will have on other sporting bodies with similar rules in place.
Southsea pub landlady Karen Murphy took on the Football Association Premier League (FAPL) after it prosecuted her for using a decoder card to screen Premier League football at her pub, rather than paying for a commercial licence to screen the games. Vanessa Barnett, a Partner with Charles Russell LLP, examines the background to the case, the reasons for referral to the Court of Justice of the European Union and the implications it has for the broadcasting of sport within the EU.
The National Collegiate Athletic Association has recently approved a new transgender 'policy' to clarify the eligibility of transgender student athletes in US University sport. Shawn Markus Crincoli, an Associate Professor of Law with Touro College, examines whether it could be subject to challenge and assesses whether the NCAA 'policy' could provide a blueprint for other sporting organisations looking to implement a transgender policy.
Brazilian player Ilson Pereira Dias Junior refused to extend his contract with Ukrainian club Shakhtar Donetsk, arguing that a clause in his contract obliging him to extend by one year unless the club elected to sell him in the first two years of his contact was illegal. Adam Whyte, an Abogado with Ruiz-Huerta & Crespo, examines the Court of Arbitration for Sport's (CAS) reasoning in deciding this case, comparing the methodology in awarding compensation with that used in other CAS cases involving FIFA's Article 17, such as Webster, Matuzalem and El-Hadary.
At time of press, Manchester City were deciding what action should be taken against Carlos Tevez after an apparent refusal to take the field following instruction from club manager Roberto Mancini. Katie Simmonds, Head of Sports Law at Burlingtons Legal LLP, examines the difficulties that football clubs face in taking action against players during contractual disputes.
Wednesday, November 16, 2011
The recent decision to allow the Olympic Flame to travel through Albert Square, the setting for the BBC's fictional soap opera EastEnders, is a perfect representation of the London 2012 Olympic ethos. EastEnders and Albert Square are a fictional creation based in Borehamwood, a posh area in Hertfordshire that has no connection to the East End of London, where the drama is set. The London 2012 Olympics is increasingly becoming a drama created by executives located elsewhere (Canary Wharf) that has no connection to the area in which it is set.
The Olympic Flame that passes through the fictional East End borough of Walford will not even be the true Olympic Flame, at least as far as tradition dictates. London 2012 will represent the first time that the Olympic Torch Relay does not pass from the previous host city to the new host city on foot, the idea being to pass the symbolic 'Olympic Spirit' from city to city in the form of fire. The International Olympic Committee banned Olympic Torch relays following hijacking of the Torch before the Beijing 2008 Olympics.
Now I know all of this is supposed to be a bit of fun, but London 2012 organisers seem blind to the fact that forging links between a fictional soap opera and an Olympic Games that was originally billed as being for the East End of London could appear patronising. Firstly, London Olympic organisers announced that London's Olympic Park would share the E20 postcode of fictional Albert Square (why not E2012?). Now they are granting the privilege of featuring the flame to a soap opera that turned down the chance to relocate to the Olympic Park, slap bang in the middle of the area the soap is supposed to represent.
"There was the chance for the BBC to show genuine commitment to the East End - an area it has harvested for audiences for decades", said London Mayor Boris Johnson. "I'm astonished that the boss class don't see the obvious advantages of rooting a popular drama in an area it claims to portray". Johnson's sentiment is correct, yet his comments are almost comically ironic when you consider that London 2012 organisers have done much the same thing by taking many key Olympic events away from East London. After Badminton and Rhythmic Gymnastics were taken away from the East End, the final straw came last year, when London Boroughs sought to take legal action against the organisers of London 2012 for moving the marathon route from East London to finish on The Mall in central London, making the 2012 marathon the first in Olympic history not to finish in the Olympic stadium. London 2012 had just appointed the organisers of the London Marathon to plan the route. Guess where the London Marathon finishes? Road cycling will also not come anywhere near East London…I could go on, but I don't want you to get too bored…
London 2012 Chair Seb Coe welcomed the move. "Today's announcement is a great addition to the Olympic Torch Relay Route", he said. "I'm sure the people of Walford will now start planning their celebrations to welcome the Flame to Albert Square". They won't, because they don't exist, and neither does the connection between the London 2012 Olympics and improving the lives of people in the East End. If you search on the internet for 'London 2012 Games making a difference in East London', the top link is a story about how volunteers from East London helped clean up rivers within the Olympic Park for free. They will continue to help by spending money they don't have in the vast Westfield shopping complex in Stratford (the company could not even bring itself to change its name to Eastfield…) and are supposed not to notice that few people from the Olympic Boroughs have actually been given jobs on the site.
I have nothing against London hosting the Olympics, but it's time to drop the pretence that this is about improving the lives of people in London and admit that it's an exercise in making money. However, I expect that the fiction will continue long after the Games are over.
Friday, November 04, 2011
Say what you like about Ken Bates, but the former Chelsea Chairman is an astute businessman and knows how to protect assets. Bates famously bought Chelsea for £1 in 1982 after previous owners had sold Stamford Bridge to property developers Marler Estates, who subsequently went bankrupt. Chelsea Pitch Owners was created in 1992 and sold shares for £100 each, limited to 100 shares per person to prevent one person from ever gaining control of the company. In 1997, CPO bought the Stamford Bridge freehold and pitch for approximately £10 million, the idea being if supporters owned Stamford Bridge, it could never again be sold to property developers, thereby securing the future of the club.
In doing this, Bates created - perhaps unintentionally - the most effective and sustainable method of protecting a club against being asset stripped. The Football League and Premier League use the FA’s Fit and Proper Persons test to prevent unscrupulous owners taking money out of the game. However, as has been proved this week, granting supporters ownership of their club's pitch is more effective in protecting a club's heritage than any other method that has been devised recently. Chelsea, which has called Stamford Bridge home since the club's foundation in 1905, had planned to move as capacity is constrained by property and railway lines which encircle the ground, preventing it from a large expansion beyond its capacity of 41,841, which the club argues hinders its development by forcing it to rely on cash investment by owner, Roman Abramovic. However, the club failed to secure the 75% approval required from Chelsea Pitch Owners and so will be forced to remain at its home.
The Premier League, Football League, club owners and supporters groups should take note of developments at Stamford Bridge. Recent events involving Plymouth Argyle and Rangers - and a survey suggesting that fraud is still widespread at football clubs - suggest that controls designed to protect clubs might not be working as they should. A better way to safeguard the future of clubs could be an entry condition requiring clubs to offer supporters the chance to purchase their club's pitch – and there is no harm in doing this, since supporters will almost always vote in favour of proposals that are in the best interests of their club. Such a requirement would prevent clubs from moving out of their historic homes when fans are against it and - more importantly - would prevent unscrupulous owners from asset-stripping a club by selling a club's home for profit, a situation that Brighton & Hove Albion supporters will be able to tell you all about. Supporters groups should pressure new owners to implement such schemes, as failure to do so on the part of a new owner would say a great deal about their future intentions for the club.
Events since then have also been interesting. Chelsea's local council, Hammersmith & Fulham, has issued a statement pledging to work with the club to increase the capacity of the ground. The statement mentioned how proud the borough was to host three Premier League football clubs, indicating that they are willing to be lenient with planning requests in order to ensure that Chelsea can increase its capacity whilst remaining at Stamford Bridge. This suggests that when there is no other option other than to redevelop - as in Chelsea's case - clubs and local councils are forced to cooperate and find a solution that will enable their local club to continue to be successful - which is what all parties involved in such discussions want anyway.
Finally, those readers who have continued to the end of this article will be rewarded with advice to ignore my opening statement. Don't say exactly what you like about Ken Bates. He is aware that there is a law called libel, and he is not afraid to use it!
Tuesday, November 01, 2011
Should Dwain Chambers - and other British athletes facing lifetime bans from the Olympics -compete in the London Olympics next year? Opinion is divided in sporting circles. Some fellow athletes say he should not; whilst others say that he should be allowed to do so. Maurice Greene, a fellow sprinter, is in the ‘no’ camp; whereas Paula Radcliffe, the marathon world record holder, is firmly in the ‘yes’ camp, characterising the ban as being unfair, particularly as he owned up to the doping offence!
This debate regarding the British Olympic Association (BOA) bye-law 25, which imposes an automatic ban for life from the Olympics on any British Athlete who has been suspended from competition as a result of being ‘convicted’ of a doping offence has been sparked off again, this time by a landmark ruling of the Court of Arbitration for Sport (CAS), handed down on 6 October 2011, in the case of the American 400m Olympic champion LaShawn Merritt. So, what was this case and what did the CAS decide?
Following a joint request for arbitration filed by the United States Olympic Committee (USOC) and the International Olympic Committee (IOC) regarding the validity of the ‘Regulations Regarding Participation in the Olympic Games - Rule 45 of the Olympic Charter’ (also known as the ‘Osaka Rule’), the Court of Arbitration for Sport (CAS) issued the following decision:
‘The IOC Executive Board’s June 27, 2008 decision prohibiting athletes who have been suspended for more than six months for an anti-doping rule violation from participating in the next Olympic Games following the expiration of their suspension is invalid and unenforceable’.
The CAS Arbitral Panel, composed of Prof. Richard H. McLaren (Canada), President, Mr David W. Rivkin (USA) and Mr Michele Bernasconi (Switzerland), came to the conclusion that the ‘Osaka Rule’ was more properly characterised as a disciplinary sanction, rather than a pure condition of eligibility to compete in the Olympic Games.
Such a disciplinary sanction is not in compliance with Article 23.2.2 of the World Anti-Doping Code (WADA Code), which provides that the Signatories of the Code may not introduce provisions that change the effect of periods of ineligibility provisions of the WADA Code, because it adds further ineligibility to the WADA Code anti-doping sanction after that sanction has been served.
The Panel further held that, because the IOC made the WADA Code a part of its own governing statute (the Olympic Charter, under Rule 44), the ‘Osaka Rule’ is in fact a violation of the IOC’s own Statute and is therefore invalid and unenforceable.
The CAS Panel also emphasised that if the IOC wanted to exclude athletes who have been sanctioned for doping from the Olympic Games, it could propose an amendment to the World Anti-Doping Code, which would allow other Signatories to consider such an amendment and possibly to adopt it. If so, no ne bis in idem issue (prohibition against double jeopardy) would be raised, as the ineligibility would be part of a single sanction. Moreover, the principle of proportionality could be met because only one adjudicatory body would be in position to assess the proper sanction for certain behaviour, taking into consideration the overall effect of the sanction to be imposed.
It has been reported that David Howman, the Director General of WADA, has written to the BOA asking them to review and reconsider their rule. However Lord Moynihan, the President of the BOA and a former UK Sports Minister, maintains that it perfectly valid and enforceable, claiming that it is an eligibility matter. How can this position can be maintained in the light of the CAS decision in the LaShawn Merritt case, where the IOC argued that the so-called ‘Osaka’ rule was an eligibility one and the CAS held that it was a disciplinary sanction? I would argue that the BOA rule imposes an additional sanction on British athletes that have fallen foul of the doping rules, been suspended and have served their time only to find that they face an additional sanction neither foreseen nor approved by the WADA Code, which after all is – or at least should be – the sole body dealing with all aspects of doping in sport. This additional sanction is clearly the effect of the BOA rule, and this effect is not affected by the fact that it is possible to appeal to the BOA for the rule to be lifted in certain cases, according to their particular circumstances. Equally, the fact that the BOA claims that 39 out of 42 such appeals have been successful is irrelevant, if not only for the fact that in three of those cases, the athletes concerned have suffered a double penalty, that is, double jeopardy, which is illegal because no one can be punished twice for the same offence.
Apart from the above legal arguments, not to mention the clear possibility - in my opinion - of the BOA rule being held by a Court to be an unreasonable ‘restraint of trade’ for ‘elite’ athletes (those who earn their livelihoods through the practice of their sports) and, therefore, void and unenforceable, there also are some sporting considerations that should be taken into account. David Millar, the former cycling world champion who is also affected by the BOA rule, argues that it does not encourage the rehabilitation of offenders who have served their time, or allow for any kind of education of athletes concerning the taking of performance-enhancing drugs. There is also another sporting consideration, and that is discrimination. Apparently, according to the International Association of Athletics Federations, there are at least 83 non-British athletes not affected by the BOA rule who will now be able to compete in the 2012 London Olympics as a result of the CAS ruling. Under the IOC Charter, discrimination of any kind is unlawful! After all, sport is – or, at least, should be – a matter of fairness and athletes competing on a so-called ‘level playing field’.
Professor Ian Blackshaw
TMC Asser International Sports Law Centre, The Hague
Sunday, October 30, 2011
Sport can protect the value of its broadcasting rights following the Karen Murphy ruling by using new licensing methods, concluded a Briefing organised on 20 October by World Sports Law Report and Field Fisher Waterhouse LLP.
British athletes could face exclusion from the London 2012 Olympics if the British Olympic Association (BOA) doesn't either drop or place under review its ban on convicted dopers from competing in the Olympics.
Great Britain's Gambling Commission launched a consultation on 7 October investigating whether using inside information for betting constitutes misuse of that information, and whether further safeguards are needed to protect sport's integrity.
The Deutsche Fußball Liga (DFL - German football league) has recently announced that it intends to set up a licensing regime for the commercial use of its fixture lists, allowing it to recoup money from unauthorised users, such as gambling operators. This decision must be seen in light of the fact that the regulation of gambling in Germany remains uncertain and confused. Gregor Lentze, Founding Partner of Lentze Stopper Rechtsanwälte, examines whether the protection of such fixture lists from commercial use can be justified under German law and outlines the current status of German sports betting laws.
The Professional Football Compensation Committee is used by the Football Association Premier League and the Football League to determine compensation for training young players*. Tim Copplestone, a Solicitor with Clarke Willmott LLP, explains how it works.If you are a subscriber to World Sports Law Report, click here to access the article. Click here to sign up for a free trial to World Sports Law Report.
Italy became one of the first countries to pass legislation making doping a criminal offence. Lucio Colantuoni and Elisa Brigandì of the Sports Law Research Center in Milan examine what constitutes a criminal offence of doping under Italian law and how this contrasts with what sporting regulations consider to be a doping offence. They examine previous attempts to legislate in doping and explore inconsistencies between the criminal offence of doping and sporting regulations on doping.
Whilst some anti-doping organisations are now working closely with law enforcement organisations, many have yet to take this step. Catherine Ordway, a Sport & Anti-Doping Consultant who has worked on collaboration with law enforcement with ASADA, UKAD and CCES, examines how anti-doping authorities can engage with law enforcement through the use of information sharing, memorandums of understanding, outsourcing and - crucially - engage with authorities that may have priorities other than doping in sport.
Padel recently came to the attention of the international sports law community when a new professional tournament, the Padel Pro Tour, came into conflict with the Spanish Padel federation. Ricardo Gentzsch, an Abogado with Schiller Abogados, explains the dispute, the origins of the game and its quest for Olympic status.
Tuesday, September 27, 2011
FC Sion is planning to appeal to the Court of Arbitration for Sport (CAS) after UEFA rejected its appeal against expulsion from the Europa League for fielding ineligible players on 13 September. "We will probably appeal against UEFA's decision to reject our appeal, but without much hope because it is our view that the CAS is not independent", said a spokesperson from FC Sion.
UEFA is seeking an Integrity Affairs Lawyer who will work alongside Integrity Officers in all 53 Member Associations to combat potential match-fixing, it confirmed following its first Integrity Officers workshop on 15 September.
International sporting federations, betting operators, regulators and more will gather at the Law Society offices in London on 29 September for Sport & Gambling 2011, a conference organised by World Sports Law Report and sister publication, World Online Gambling Law Report.
Whilst there is a history of athletes using defamation to prevent the revelation of information that might damage their reputation, a number of sporting bodies have recently found themselves in a similar position. Tom Burrows, a Trainee Solicitor with Paris Smith LLP, examines the implications of the government's draft Defamation Bill for sport in the context of recent defamation claims involving the Rugby Football Union and the England and Wales Cricket Board.
The UK government has launched a consultation on its proposals to expand the Gambling Commission's powers to share information on suspicious betting patterns with international sporting federations. Andrew Danson, a Senior Associate with K&L Gates, explains what has changed.
The Turkish Public Prosecutor, Turkish Football Federation and UEFA have all become involved in sanctioning clubs and individuals for their alleged role in match fixing. E. Benan Arseven, a Partner with Moroglu Arseven, examines the investigations, regulations and rules behind these proposed sanctions. He explains how the Turkish Football Federation's decision to postpone its decision until it receives access to evidence accumulated by the public prosecutor could end up harming Turkish football further.
Professor Ian Blackshaw, a member of the Court of Arbitration for Sport (CAS), outlines how the CAS ensures the independence of its Arbitrators. He also explains methods for challenging the independence of Arbitrators, highlighting that applicants must only provide reasons one might suspect bias to challenge the independence of an Arbitrator - proof of bias need not be provided.
Scotland has introduced proposals for a new 'hate crime' offence specific to football supporters with the introduction of the Offensive Behaviour at Football and Threatening Communications Bill. Chris Anderson, an Associate with Brabners Chaffe Street LLP qualified in both Scotland and England, explains the reach of the new Bill.
On 1 August 2011, a new version of the FIFA Disciplinary Code (FDC) came into force amending Article 64, which sets out sanctions for parties that fail to respect a decision of FIFA. The Article now obliges National Associations to incorporate the sanctioning provisions provided within Article 64 of the FDC into their own regulations. Volker Hesse, a founding Partner with Viva Sports Law - Consulting and former Deputy Head of Disciplinary & Governance of FIFA, examines the changes to the FDC and highlights issues that could arise because of the new requirement for National Associations to implement sanctions against parties that fail to respect a decision of FIFA.
Wednesday, September 14, 2011
World experts on sport's relationship with gambling will converge in London on 29 September for Sport & Gambling 2011, a conference organised by World Sports Law Report and World Online Gambling Law Report and supported by gold sponsor, DLA Piper. The conference will address recent regulatory developments regarding sport and gambling's relationship. Speakers at the event will include:
• Nick Tofiluk, Director of Regulation - Gambling Commission
• Huw Roberts, Legal Counsel - IAAF
• Paul Scotney, Director of Integrity Services and Licensing - British Horseracing Authority
• Will Lambe, Head of External Affairs - British Horseracing Authority
• Andy Cunningham, Head of Integrity - Betfair
• Cecile Thomas-Trophime, Head of Sports Department - ARJEL
• Simon Taylor, General Secretary - Professional Players Federations (PPF)
• Barry Johnston - International PR Manager, Sport+Markt
• Nick Fitzpatrick, Partner - DLA Piper
• Duncan Calow, Partner - DLA Piper
• Hilary Stewart-Jones, Partner - DLA Piper
• Stephen Ketteley, Partner - DLA Piper
Sport & Gambling 2011 will be held amid a period of key regulatory developments in the sports & gambling industries. These include The European Commission's consultation on the future regulation of online gambling in Europe; the consultation on whether the UK's Gambling Commission should share suspicious betting information with the International Olympic Committee and other international sporting federations, and the announcement by the UK's Department for Culture, Media and Sport that all gambling operators selling into the British market will require a license from the UK's Gambling Commission. All of these developments will affect sport's future relationship with gambling and will be discussed by experts at Sport & Gambling 2011.
As such, Sport & Gambling 2011 is a crucial event for all those involved in sport and gambling. The conference will examine the extent of the financial relationship between sport and gambling; methods of identifying suspicious betting patterns; international efforts to combat match fixing; support for a 'right to offer bets' that sport can sell to operators; the Database Directive and its impact on sport's relationship with gambling; gambling and the London 2012 Olympics; player education and more. For a full programme,
For more information on Sport & Gambling 2011, please or contact David Longford or on +44 (0) 20 7012 1384.
• Details about the European Commission's consultation on the future regulation of online gambling in Europe are available by .
• Details on the Gambling Commission's consultation on sharing suspicious betting information with the International Olympic Committee and other international sporting federations are available by .
• Details about the Department for Culture Media and Sport's plans to require all operators supplying the British market to hold a UK Gambling Commission licence are available by .
Wednesday, August 17, 2011
UEFA has not said that it will investigate Manchester City's partnership with Etihad, to the contrary. In the BBC's with Jean-Luc Dehaene, the Chairman of UEFA's Financial Fair Play control panel said that he has questions about the deal, but did not actually say that UEFA would be investigating it directly. That is because UEFA's Financial Fair Play regulations do not work that way.
In the of World Sports Law Report, Stephen Hornsby of Davenport Lyons highlights why a UEFA investigation of the deal is highly unlikely. Firstly, it is the club - not UEFA - which must demonstrate whether a sponsorship deal represents 'fair value' if the club itself flags up the deal as a 'related party' transaction. Under the , a 'related party' constitutes a close family member to club executives who either;
a) Has control or joint control over the reporting club;
b) Has significant influence over the club;
c) Is a member of key management personnel of the club or a parent of the club.
Therefore, unless Manchester City flag the deal as a 'related party' transaction, Manchester City will not have to demonstrate to UEFA that the deal represents 'fair value' and the sponsorship can proceed as normal.
Secondly, UEFA can only ask questions based on documentation received from a club under the UEFA Club Licensing and Financial Fair Play Regulations, Edition 2010. It doesn't have powers to investigate further than this. As we have already seen, unless a club flags a sponsorship deal as a 'related party' transaction, it is not required to demonstrate 'fair value' and UEFA will have no information to work with.
It is also important to remember that Manchester City has not announced the value of the Etihad partnership, and it is important that it is described as a 'partnership' and not a 'sponsorship' in the . As part of the 8 July deal, Etihad will also sponsor the development of the Etihad Campus around its stadium. This part of the deal is exempt from UEFA's Regulations in terms of assessing the 'fair value' of a sponsorship. Manchester City could claim that the deal is split into a shirt and stadium sponsorship that represents 'fair value' under the Regulations, and a 'partnership' to develop the Etihad Campus, which falls outside of the Regulations.
Jean-Luc Dehaene is a former politician and is unlikely to highlight that UEFA's rules represent a 'soft touch' approach to regulation, however it is disappointing to see the media not pressing him further for answers. It is especially disappointing to see media companies making assumptions based on what a politician has said.
The International Basketball Federation (FIBA) approved transfer of players contracted to US National Basketball Association (NBA) clubs to other clubs whilst the NBA 'lockout' continues, however a 'return clause' could lead to contractual issues when the lockout ends.
The Committee for Culture, Media and Sport (CCMS) has told the UK Government to abolish the Football Creditors rule in its Football Governance Report, published on 29 July. The recommendation follows a 27 July Supreme Court ruling questioning the legitimacy of the rule. This comes ahead of Her Majesty's Revenue and Customs (HMRC) 28 November High Court case against the Premier League's Football Creditors rule.
The International Association of Athletics Federations (IAAF) will ban any athletes who refuse to take a blood test ahead of the 2011 World Championships in Daegu, Korea, 27 August to 4 September.
French 1,500 metres runner Hind Dehiba was recently banned from taking part in the 30 June Athletissima meeting in Lausanne, Switzerland, due to a recommendation not to admit athletes who have served doping bans to events organised under the Euromeetings banner. Dehiba successfully challenged her exclusion, which endangered her ability to qualify for the World Championships by running under 4:02.50 before 15 August. Jorge Ibarrola, a founding partner of Libra Law, examines Dehiba's application under Swiss law, the reasoning behind the decision to order Athletissima to accept Dehiba's participation and the implications.
The National Basketball Association has postponed the start of its season, as players and owners have failed to agree on a Collective Bargaining Agreement, which sets the contract terms between team owners and players. Paul J. Greene, an Attorney with Preti Flaherty and former sportscaster for Fox News, examines the implications that this 'lockout' could have for European basketball.
Legislative protection against ambush marketing was promised by New Zealand in its bid to host the 2011 Rugby World Cup. However, the Major Events Management Act passed by government is over restrictive on small local businesses wishing to benefit from New Zealand's hosting of the tournament, writes David Hood, a Solicitor with Maria Clarke Lawyers. The Act is so restrictive and difficult to interpret that it may deter many local businesses from attempting to benefit from the tournament, argues Hood, while many small businesses used to carrying out marketing could fall foul of the Act through ignorance.
New rules permitting the use of product placement in UK and Irish sports broadcasts were introduced earlier this year. Adam Finlay, a Solicitor with McCann Fitzgerald Solicitors, explains what is permitted under the new rules, the new opportunities they may present for sport and potential issues.
There has been much speculation about whether UEFA will 'investigate' Manchester City's partnership with Etihad under its Financial Fair Play Regulations (FFPR). This follows suspicion that the value of the deal has been inflated to allow the club to continue to spend freely whilst meeting the 'break-even' requirements under the FFPR. Stephen Hornsby, head of the sports group at Davenport Lyons, explains that UEFA can only ask questions based on documentation received from the club under the FFPR, and can only assess the 'fair value' of any sponsorship deal if the club itself considers the deal to constitute a 'related party' transaction.
Friday, July 29, 2011
Manchester City must satisfy UEFA that the management team behind its 10-year partnership with Etihad doesn't qualify as a 'related party' to City's owner, His Highness (HH) Sheikh Mansour Bin Zayed Al Nahyan, under the 2010 Club Licensing and Financial Fair Play Regulations (FFPR).
Gambling operators based outside of Great Britain (GB) will have to apply for a Gambling Commission licence to continue to take GB bets under plans announced by the UK government on 14 July.
Team 2012 is reviewing its official media partnership with News International (NI) after the closure of the News of the World (NOTW) following the phone-hacking scandal, and is assessing new potential media partners.
One of FIFA's key requirements for the hosting of its World Cup tournament is that FIFA and certain other entities receive exemption from certain taxes. Mansoor Parker, a Tax Executive at Edward Nathan Sonnenbergs and former Company Secretary for the 2010 FIFA World Cup Organising Committee South Africa, explains how South Africa coped with this requirement.
The England and Wales High Court recently ordered the Health Professions Council to reconsider a decision to strike Stephen Brennan from its register of licensed physiotherapists for his role in fabricating a blood injury for Harlequins rugby union club. Chris Connolly, a Solicitor with A&L Goodbody, examines the decision.
Marcel Seip was recently awarded over £72,000 in a breach of contract action against Blackpool Football Club after he was not paid a bonus due when the club secured promotion to the Football Association Premier League. Seip, who was on loan from Plymouth Argyle at the time, had been excluded from distribution of the £5.15 million promotion bonus pot by the club's 'bonus panel', who discounted loan players who had left the club at the end of the 2009/10 season. One of the lawyers that led the player's claim, Tim Copplestone of Clarke Willmott, explains the reasoning behind the award and the lessons it holds for clubs when drafting player bonus schedules.
Buying a football club is different from other mergers and acquisitions deals, due to the specific regulations that surround football. David Roberts, a Corporate Partner with Olswang, examines issues that need addressing when purchasing a football club. He explains how the valuation of a club takes place; when the City Code on Takeovers and Mergers will apply; debt and the 'football creditors' rule; potential liabilities that clubs may have for players and more.
The Australian Sports Anti-Doping Authority (ASADA) replaced the Australian Sports Drug Agency (ASDA) in 2006 as one of the results from the 2004 inquiry into drug use by the Australian track cycling team. In the second instalment of a two-part article, Catherine Ordway, a Sport & Anti-Doping Consultant who previously worked with ASADA, examines how the limitations of ASDA were addressed when forming the new Authority.
In March, the Football Association announced that it was charging Football League Championship leader Queens Park Rangers with breaches of its regulations regarding third party influence concerning the transfer of key striker Alejandro Faurlin to the club. QPR was successful in proving to the FA that third party interest in the player had been suspended for the duration of his three-year contract, and had since been 'bought out' by the club. Joseph Parks, a Trainee Solicitor at IPS Law LLP - which acted for the club - examines how the FA's decision to publicly announce the charges could have affected the case.
Thursday, June 30, 2011
London’s 32 Boroughs were each offered the chance to buy a range of tickets to the London 2012 Olympics ahead of the first public ballot on 15 March, with 12 deciding to buy tickets to key events, revealed the appendix to a report published by the London Assembly and the Greater London Authority (GLA). News that some Boroughs decided to spend taxpayer money on key events before they were made available to the public is likely to increase concerns that the Olympic ballot process was not completely fair. News that some Boroughs are spending taxpayer money on Olympic tickets for local Mayors will anger many.
Of those 12 Boroughs taking up the offer to purchase tickets, just three secured sponsorship or other external funding for their tickets, revealed the follow up report to ‘Just the ticket? Report on the Ticketing Arrangements for the 2012 Olympic Games and Paralympic Games’, published by the London Assembly and GLA on 24 May. The biggest spender was Kensington & Chelsea, which spent £13,180 on 100 tickets for ‘outstanding young sports people in the borough and the volunteers and stalwarts, who are the backbone of our youth clubs’. The tickets will be Council funded, however the Borough said it is ‘seeking help with the funding’.
The Boroughs were free to use the tickets as they saw fit and whilst many stated that they felt it was unfair to spend taxpayer money on Olympic tickets whilst public services continue to be cut, others had different views, despite a warning in the original March ‘Just the ticket…’ report that public bodies should ‘show restraint’ when bidding for tickets. Merton ignored this advice and had planned to spend £3,980 on tickets for the opening and closing ceremonies for ‘the Mayor and consort’, however has recently reversed that decision following a public outcry, according to local reports. Of Ealing’s 37 tickets, two will be given to the Mayor and consort, whilst the rest will be given to children in Council care. Others – such as Lambeth (40) and Waltham Forest (44) – decided to donate their tickets to deserving members of the local community. Any tickets not bought were returned to the public ballot.
A form sent to each of the Boroughs reveals how they were allowed to cherry-pick some of the best Olympic events ahead of the public ballot. The 100 tickets on offer to each Borough included 16 for the Opening Ceremony; 10 for Cycling Track Finals; 64 for key Athletics Finals (including eight for the men’s 100m final); plus men’s football (8), diving (6), boxing (16) and basketball (2) finals. Any of these tickets bought were obviously taken out of the public ballot.
A Freedom of Information request made on 7 June revealed that Waltham Forest had spent £6,970 on 44 dream Olympic tickets for its lucky residents, which included six tickets at £150 each to the Opening Ceremony and two for 19 other key events such as the Cycling Finals, Men’s 100m Final and Closing Ceremony. These tickets will be funded by the taxpayer.
London 2012 refused to give details on how it decided which sporting events were included within 100 tickets offered for sale to each of London’s 32 Boroughs. “Tickets were offered across a range of events”, said a spokesperson, who refused to elaborate. As the 3,200 tickets were made available prior to the public sale and any not bought were returned to the public, they were allocated separately from the Government’s allocation of 8,815 tickets and the 500 tickets available for purchase by the GLA.
Culture Secretary Jeremy Hunt outlined how the Government would distribute its tickets on 16 June. The Government will pay for 3,750 tickets, of which 450 will go to young people taking part in the School Games and 3,300 to ‘business leaders and dignitaries’. Staff working on the Games will be able to purchase 3,000 tickets and host towns and cities outside of London will be able to purchase 2,065. Five hundred tickets are also available for purchase by the GLA, which said it would fund any used through sponsorship.
Which London Boroughs Bought Olympic Tickets
Who tickets are for
How tickets are funded
Kensington & Chelsea
Young sports people and volunteers at youth clubs
Council, seeking support with funding
Local residents who otherwise wouldn't have had the chance to participate
Partners & local business
Residents contributing to the Borough
Deserving members of community
2 Opening Ceremony tickets for Mayor & Consort, the rest for children in Council care
Young people aged 16-18
Two tickets for opening and closing ceremonies for Mayor & Consort
Young sporting people
Lewisham sports clubs
Young people in care
Council & other sources
Residents contributing to the Borough
Council, using crime enforcement proceeeds
* Local reports suggest that Merton will no longer be buying Olympic tickets
Tuesday, June 28, 2011
Switzerland's federal sport office (BASPO) has delayed a report into whether the regulations of international sporting federations are adequate or whether legislation is needed until the autumn, following further allegations of corruption involving FIFA.
Australian sporting organisations will be entitled to a financial return from betting, under national legislation that will stem from a National Policy on Match-Fixing in Sport, agreed by Australia's governments on 10 June. The Policy also may allow sporting bodies to sell the right to offer bets to operators, if Australia's eight governments decide to take that approach.
Egyptian footballer Hossam Ghaly and a US runner were falsely found guilty of doping by a Malaysian laboratory accredited by the World AntiDoping Agency (WADA), the Court for Arbitration for Sport (CAS) ruled on 22 June. An appeal by the Doping Control Centre Penang against WADA's decision to revoke its licence was dismissed.
The International Association of Athletics Federations (IAAF) recently released rules and guidelines designed to prevent women with elevated androgen levels from competing, which the International Olympic Committee (IOC) is also planning to adopt. Shawn Crincoli, an Associate Professor of Law at Touro Law Center, explains why the rules and guidelines are highly likely to violate non-discrimination laws in a number of jurisdictions.
Educating players to recognise corrupt approaches to them is essential to maintaining the integrity of sport, as is education on the rules on betting. Simon Taylor of the Professional Players Federation and Jason Foley-Train of the Remote Gambling Association explain how the licensed betting industry and player federations have teamed up to educate players.
The Finnish football association became the first national association to apply FIFA's Article 18bis when it expelled Tampere United from all competitions during 2011 for allowing a third party to influence its transfer policies. Pekka Aho, an Attorney with Studio Elsa Avvocati Associati, examines how Article 18bis was used to sanction Tampere United for becoming involved with a company suspected of match-fixing, and explains how Article 18bis could be used by other national associations in different situations in the future.
The ad hoc division of the Court of Arbitration for Sport is used when disputes in sport need to be settled within 24 hours, such as during the Olympics or a similar major sports tournament. Jack Anderson, a Reader in Law at Queen's University Belfast's School of Law, examines how the ad hoc division operates; how the pressurised environment endemic to major sporting events can affect decisions; and how it is likely to be used during the London 2012 Olympics.
Event organisers often assume that they are entitled to monopolise the rights in connection to their event, and can prevent unlicensed third parties from exploiting commercial rights in relation to the event. The recent 'Hartplatzhelden' federal court case in Germany challenges these preconceptions and also explores important questions about to whom football belongs, whether an overall protection for sports events infringes the principle of commercial freedom and more. Dr. André Soldner and Dr. Thomas C. Körber of Klinkert Zindel Partner explore these questions and assess whether sports events with free entry can protect their commercial rights, both adequately and legitimately.
The Australian Sports Drug Agency (ASADA) replaced the Australian Sports Drug Agency in 2006 as one of the results from the 2004 inquiry into drug use by the Australian track cycling team. In the first instalment of a two-part article, Catherine Ordway, a Sport & Anti-Doping Consultant who previously worked with ASADA, examines the reasons why ASADA was established and how it planned to demonstrate organisational credibility.
Saturday, June 04, 2011
An independent arbitration court will rule on Tampere United's appeal against its expulsion from all competitions by the Finland football association (SPL) for violating rules on third party influence before the end of May.
The International Cricket Council (ICC) is investigating whether it should regulate the use of player agents after two national associations issued separate player agent regulations in response to last year's spot-fixing case involving player agent Mazhar Majeed.
Licensed street traders face having to reapply for a licence to trade in public places within 'event zones' during the London 2012 Olympic Games under UK Government plans.
England and Pakistan have recently become the first cricket playing countries to attempt regulation of the activities of agents. Amrut Joshi, an Advocate who heads the sports practice at MMB Legal, examines the regulations, the differences in the approaches of ECB and PCB and the rationale behind regulating the activities of agents. Joshi also draws a distinction between the philosophy behind the regulation of agents in cricket from the Transfer Matching System adopted by FIFA for the sport of football.
The World Anti-Doping Code prohibits athletes declared ineligible due to a doping violation from participating in any activity organised by signatories to the Code during their period of ineligibility. FIFA, however, has rules allowing players declared ineligible for doping to resume training with their club before the end of their period of ineligibility. Dr. Volker Hesse, founder of VIVA Sports Law - Consulting, examines whether there is a case for allowing team sport players to resume training before the end of their ban, as it is argued that it is harder for them to maintain form outside of a club setting than it is for individual athletes to do the same.
FIFA's announcement that it will donate €20 million to a ten-year programme launched in partnership with INTERPOL to tackle match fixing illustrates the financial power that professional sport can wield to tackle corruption and irregular betting. Amateur sport doesn't have the same resources, and it can be argued that its participants are more vulnerable to corruption as they are not paid. Matthew Nicholas and Amelia Lynch of Lander & Rogers Sports Business Group examine this and the difficulties in forming rules that are proportionate to both the professional and amateur side of sport.
The Rugby Football Union has recently been successful in obtaining a Norwich Pharmacal Order requiring ticket resale site Viagogo to provide it with information regarding the resale of tickets to its events. Tom Burrows, a Trainee Solicitor with Paris Smith LLP, examines the case and the implications it could have for restrictions on reselling sporting event tickets, which is likely to become a big issue over the coming months as people receive their ticket allocations for the London 2012 Olympics.
The Court of Arbitration for Sport has been asked to rule on the legitimacy of the IOC's Regulations Regarding Participation in the Olympic Games - Rule 45 of the Olympic Charter, which bans athletes convicted of doping from competing at the next edition of the Olympic Games. Alexandre Miguel Mestre, a Senior Associate with PLMJ, examines whether the so-called 'Osaka Rule' constitutes a disciplinary sanction or an eligibility condition, assessing whether it constitutes a violation of the common law principle that double punishments should be prohibited.
Tuesday, May 03, 2011
The first leg of the UEFA Champions League semi-final between Real Madrid and FC Barcelona on 27 April contained one of the since Diego Maradona graced the world's football fields. However sadly the game will not be remembered for this, but more for the allegations of cheating, diving and conspiracy that dogged the fixture as both clubs made allegations against the other.
FC Barcelona following claims made by Real's Manager Jose Mourinho that a conspiracy exists to favour the Catalan club. In reply, Real Madrid FC Barcelona to UEFA over 'feigned aggressions' (read ‘diving’) that allegedly led to the dismissal of defender Pepe. UEFA has also into both clubs. The Guardian's 'Secret Footballer' at what football has become.
Sir Alex Ferguson has just returned from a five-game touchline ban for criticising the referee, yet that didn’t stop him blaming the referee for failing to award a penalty during Manchester United’s 1-0 defeat at Arsenal on 1 May. Ferguson now faces yet another investigation by the FA. Tottenham Hotspur also missed out after a referee awarded a goal to Chelsea on 1 May when TV replays showed that goalkeeper Heurelho Gomes stopped the ball from crossing the line. Again, the referee was blamed for failing to award the goal.
FIFA’s argument against video replays is that they would ruin the flow of the game, however other sports have coped with video replays for a number of years. Its solution to the perceived injustices in football is goal line technology that could relay a decision back to the referee about whether a ball has crossed the line in under one second. FIFA has recently announced that it will continue its testing, as it has yet to find a system that is up to scratch.
Such a system already exists. Most stadiums are equipped with big screens that could replay goal line incidents instantly, as happened during the World Cup, when Mexico were furious after an in-stadium screen showed everyone that Carlos Tevez was offside when scoring against them, putting them out of the tournament. The solution could even go further than that by replaying controversial incidents such as the refereeing decisions mentioned above, which could end up costing the clubs involved millions of pounds due to failure to qualify for the UEFA Champions League or missing out on higher Premier League TV payments as the result of a bad decision (It is estimated that Chelsea’s wrongly-awarded goal could cost Tottenham £15 million if they fail to qualify for the Champions League as a result).
As I have suggested before, a fairer system might be to allow team captains to challenge three decisions during a match, which will be replayed there and then if the game is being filmed. That way, diving and unjust penalties would also be caught, which can have just as much of an impact on a match as a wrongly-awarded goal. It would also stop ugly incidents marring fantastic games of football, which is what UEFA Champions League semi-finals should be remembered for being.
However, FIFA cannot sell TV replays. It can sell goal line technology, as there are a plethora of companies ready to offer their technology to solve perceived injustices in football. Because of the millions of pounds at stake, modern football deserves a fairer solution.
Sunday, May 01, 2011
The International Association of Athletics Federations (IAAF) is confident that its rules on the eligibility of females with hyperandrogenism will withstand legal challenge when they are published on 1 May. Hyperandrogenism is a medical condition involving excessive production of hormones (androgens) such as testosterone.
Tottenham Hotspur and Leyton Orient football clubs have sought High Court permission for judicial review of Newham's decision to take out a loan of up to £40 million for the redevelopment of the Olympic Stadium following the London 2012 Olympics. Newham Council has not lent West Ham United the money - a 'stadium company' will borrow the money from Newham and will rent the stadium to the club.
Associate members of the International Cricket Council (ICC) are preparing to challenge a decision to exclude them from the 2015 Cricket World Cup at the ICC annual conference in June.
Italian goalkeeper Morgan De Sanctis recently won a reduction in compensation due to his former club Udinese for breaching his contract under Article 17(3) of FIFA's Regulations for the Status and Transfer of Players at the Court of Arbitration for Sport (CAS). Ricardo Gentzsch, an Abogado with Schiller Abogados, examines the arguments of both clubs and the player against the compensation awarded by FIFA's Dispute Resolution Chamber, and explains how the CAS came to its decision.
Leyton Orient and Tottenham Hotspur have launched applications in the High Court for judicial review of Newham Council's decision to loan £40 million to a 'Stadium Company' that will manage the redevelopment of London's Olympic Stadium after the London 2012 Olympic Games. Both clubs also plan to ask for judicial review of the Olympic Park Legacy Company's decision to accept West Ham United and Newham's bid to redevelop the stadium. Daniel York, a Solicitor with Field Seymour Parkes, examines the judicial review process and Leyton Orient's additional challenge based on the Premier League rules on relocation.
UEFA and FIFA recently failed in an action challenging the 'listing' of the European Championships and World Cup as events of national importance that should be available on television to as wider section of the public as possible. Daniel Geey, a Solicitor with Field Fisher Waterhouse LLP, examines the legislation that allows 'listing' of sporting events and explains the European Union General Court's reasoning for rejecting the argument that only games featuring the national team can be considered of major importance for society.
Alex Ferguson, Manager of Manchester United football club, recently received a five-match 'touchline ban' and a £30,000 fine for publicly criticising a match referee. The Football Association (FA) judged him to be in breach of rule E3, which prohibits actions judged as bringing the game into disrepute. Gregory Ioannidis and Geoffrey Alderman, of the University of Buckingham Law School, examine the legal and moral grounds for removing the right to free speech, the reasons for the FA's decision, whether the specificity of sport justifies the removal of such an important right and whether action is possible against the FA for abuse of power.
The European Commission has launched a public consultation which invites views on a range of issues relating to online gambling. Two that will catch the eye of sports organisations are the principle of a 'fair return' for sports, and sponsorship by gambling operators. Andrew Danson, a Senior Associate at K&L Gates LLP, examines the issues and potential opportunities.
Wednesday, April 20, 2011
One of most talked about incidents of this year’s UEFA Champions League occurred during a match between AC Milan and Tottenham Hotspur, where midfielder Gennaro Gattuso was punished by UEFA for his alleged head butt on Spurs coach Joe Jordan. However, whether you agree with the punishment or not, surely this is an incident that shouldn’t come under UEFA’s jurisdiction at all?
Granted, the incident occurred during one of the highest profile fixtures of the football calendar - you don’t get much bigger than the knock-out stages of the Champions League - but is the incident a football one, or no different to any other offence committed on the streets?
Following the issuing of Gattuso’s punishment, UEFA released a short statement clarifying its view of the situation. The statement read 'The control and disciplinary body ruled that Gattuso had assaulted the Tottenham Hotspur coach Joe Jordan after that match'.
It is the use of the word 'assaulted' that, in my view, raises questions about this incident. Assault is defined as an act carried out by a threat of bodily harm coupled with an apparent, present ability to cause harm. Surely grabbing an elderly man by the throat and proceeding to head butt him is a threat of bodily harm?
Some people may argue that this is a football incident as it occurred on the field of play. But this was not a flare up between two players, a late attempt to win the ball spilling over into violence. This was Gennaro Gattuso, an experienced professional footballer who has made 395 club and 73 international appearances, purposefully coming to the edge of the field to confront a man who, to all intents and purposes, could have little impact on the game.
If this incident had occurred in a different setting, on a different occasion, then surely this is a criminal offence? Why does the hallowed turf of the San Siro make any difference to how the incident should be seen in the eyes of the law?
Obviously there has been a huge amount of discussion and arguments over the days and weeks following the game, a shame given that they somewhat overshadowed a fantastic away Champions League performance by Spurs.
Whilst the general consensus seemed to be that Gattuso had acted stupidly, that this is rightly an incident unwelcome within the game, these major excuses or accusations seems to be missing the point somewhat. Whilst those may argue that as an experienced professional footballer Gattuso should know better than to start causing trouble with the opposition’s coach. However, whether Gattuso attacks Joe Jordan or boxer David Haye, the law is still the same. Violence is a not a part of football, and therefore cannot be solely punished by those responsible for the sport.
Gattuso may consider himself unlucky to be punished in such a way that could prevent him from playing in another Champions League in his career. But he should consider himself lucky to still have the chance to play another game of professional football again.
Ashley Burtoft, student
BSc(Hons) Sport Science and Management
School of Science and Technology, Nottingham Trent University
: Ashley raises an important issue with this article – where should the line be drawn between sports regulations and the law? As Ashley rightly points out, should UEFA be punishing players for incidents that take place off the field of play and could have resulted in a criminal prosecution had they occurred in any other setting? The fine line between sports regulation and 'formal' areas of the law is increasingly being tested. Alex Ferguson has recently been issued with a fine and a touchline ban for criticising a referee. In the April edition of , we will examine whether this constitutes a restriction on his freedom of speech.
Many thanks to Ashley for raising this important issue, which we will explore in future editions of in closer detail. If YOU are a student studying sports law, management or regulation and you have an issue that you feel needs exploring and you would like to see published on this blog, please a synopsis to Andy Brown, Editor of World Sports Law Report.
Friday, March 25, 2011
The International Olympic Committee (IOC) Task Force formed to tackle illegal sports betting will consider three options designed to tackle the problem at its next meeting, the date of which has yet to be set.
The Association of Tennis Professionals (ATP) is seeking close to $500,000 in legal fees from five Italian tennis players it suspended for gambling on tennis, after a Florida court dismissed their case against the manner in which they were convicted.
The European Club Association has welcomed a 28 February Court of Arbitration for Sport (CAS) decision as encouraging respect for contracts and stability in football, after it reduced compensation due to Italian club Udinese after Morgan de Sanctis breached his contract.
UEFA has recently brought into force its Financial Fair Play Regulations, which are designed to encourage clubs to operate on the basis of their own revenues in order to protect them from excessive debt. Stephen Hornsby, head of the sports group at Davenport Lyons, explains why the regulations could be challenged by a club excluded from European competition for failing to comply with them. He argues that they don't represent a fair and proportionate restriction on a club's ability to compete under competition law, especially as they were only agreed by European Club Association members.
In part 1 of this two-part article Mike Morgan, an Associate with Squire Sanders Hammonds, examined the background to WADA's 'Similar Substances' provision and the application of the provision in three case studies. In this second instalment, he analyses the rationale of those decisions and the steps that must be taken to ensure that the application of the Similar Substances provision complies with general principles of law.
The Asian Council of Arbitration for Sports (ACAS) was established last year to manage a Sports Arbitration Tribunal of Asia, which has the support of the Olympic Council of Asia for settling sports disputes ahead of the Court of Arbitration for Sports (CAS). Alexandre Miguel Mestre, a Senior Associate with PLMJ Sociedade de Advogados RL, Lisbon, examines whether Asia has a case for establishing such an arbitration court for settling sports disputes. He explains why the ACAS may weaken the CAS, slow down the decision-making process and may even breach the Olympic Charter through its establishment.
The new Bribery Act is scheduled to come into effect across the UK later this year, and will have a significant impact on sport. Chris Brightling, a Trainee Solicitor with Field Seymour Parkes, examines how new provisions in the Act could create difficulties for sport and could lead to a number of test cases reaching the courts before the London 2012 Olympics.
The Court of Arbitration for Sport (CAS) will have no choice to uphold the appeal of the Union Cycliste International (UCI) against the Spanish cycling federation’s (RFEC) to overturn a ban on the cyclist for ingesting Clenbuterol. It doesn’t matter that Contador didn’t intend to ingest the substance or enhance his performance, which is reportedly the defence that his lawyer will offer when the case comes before the CAS. In fact, that defence will not help Contador at all.
As I pointed out in a news article written at the time of Contador’s positive ‘A’ sample in October last year: ‘Clenbuterol is listed as a prohibited substance on WADA's Prohibited List. Under UCI rules, use of a prohibited substance carries a two-year ban (para. 293), unless the cyclist can provide evidence that the substance entered his body accidentally and was not intended to enhance performance (para. 295).’ Contador’s defence team will find it very hard to prove that he ingested clenbuterol through contaminated meat. For one thing, Contador consumed the meat so no evidence of it exists. Clenbuterol’s use in animal feed is banned by the European Union and although it is widely accepted that it is still illegally used in some countries, finding proof of that will be near impossible, especially given the media coverage that the Contador case has received.
According to the Telegraph’s article, however, that is not the defence that Contador’s legal team will pursue. They will attempt to argue that Contador didn’t intend to ingest the substance or enhance his performance. It is worth pointing out here that the CAS is not a court of law – it only serves to ascertain whether the rules of sporting bodies have been correctly followed, not whether the rules are just and fair. In this case, the UCI’s rules have been correctly followed.
Monday, March 21, 2011
Tackling Doping in Sport packed over 200 delegates into Twickenham Stadium’s conference facilities in a hugely successful two-day event that highlighted the new challenges presented by doping, and new methods of tackling them. The expert line up of speakers at the sell-out event attracted delegates from Bermuda, the US, Australia, Russia, South Africa, New Zealand, Qatar, Puerto Rico, Brazil as well as from European countries, international sporting federations, national associations, governments and more.
One of the major themes was that doping is now part of a wider problem of corruption in sport. In an illuminating keynote speech David Howman, Director General for the World Anti-Doping Agency, warned that the criminal underworld is now “controlling a significant proportion of world sport” through trafficking prohibited substances, match fixing and bribing laboratory officials, as “the return on investment is huge”. He warned that this black market is now controlling 25% of world medicine. Andy Parkinson, CEO of UK Anti-Doping, said that sport is tackling this problem by “moving away from focussing on the end user to focussing on the supply chain. If sport thinks that it can solve doping on its own, then it is foolishly deluded. The impact that law enforcement has had in the last 18 months has been incredible. It has provided a much-needed sharpness to what we do.”
The use of athlete biological passports to provide an indication that an athlete may have been involved in doping was another key issue. Howman highlighted how a key decision from the Court of Arbitration for Sport supporting the use of such passports in convicting two Italian cyclists for doping had “validated” the use of such passports. He thanked the Union Cycliste Internationale for investing the money in launching the passports without any guarantee that their use would be supported by a court of law, and that he expected other sports to begin investing in them soon. Delegates were warned that biological passports should not be used as the sole method for convicting an athlete of doping.
Hugh Robertson, UK Minister for Sport and the Olympics, revealed that the UK Government is open to the possibility of passing legislation criminalising anti-doping. “If – as a result of work done by the Council of Europe and the European Union – it is suggested that there are things we need to do, then we will do them”, he said in response to a question about whether criminal legislation was needed to tackle doping.
One of the most popular and most discussed sessions was a series of round-table debates on aspects of the World Anti-Doping Code that need revising, which filled the room with a buzz of conversation. Popular topics included resumption of training following a ban and altering sanctions given to athletes following ‘aggravating circumstances’ or ‘substantial assistance’.
Tackling Doping in Sport 2011 was organised by World Sports Law Report in association with UK Anti-Doping and Squire Sanders Hammonds. It received international news coverage from the BBC, Sky News, The Guardian, The Independent, Reuters, Television New Zealand and more. Tackling Doping in Sport is just one of World Sports Law Report’s annual conferences. Others include Player Issues: Regulations and Contracts and Sport, Gambling and Sponsorship.
• For more information on World Sports Law Report events or if you are interested in taking part in next year’s Tackling Doping in Sport, contact Erika Joyce on +44 (0)20 7012 1383 or firstname.lastname@example.org. Fore more information on discussions at Tackling Doping in Sport 2011, contact Andy Brown on +44 (0)20 7012 1380 or email@example.com.
NOTES FOR EDITORS
Other highlights from Tackling Doping in Sport 2011 included:
- A method that has the potential for detecting gene doping in sport using a molecular biological approach was presented by Professor Perikles Simon of Johannes Gutenberg University, Mainz. Gene doping was previously thought to be undetectable.
- London 2012 will involve a higher number of drug tests on athletes than ever before, revealed Richard Budgett, Chief Medical Officer for the London Organising Committee for the Olympic Games. 5,000 athletes will be tested, as compared to the 4,500 tested at Beijing 2008. 1,250 tests will be conducted during the Paralympics. Ten mobile anti-doping teams will also be used.
- There is a need for new markers to be brought into the athlete biological passport to combat ‘Microdosing’, which involves using small amounts of Erythropoietin (EPO) that are difficult to detect using current methods.
- Governing bodies need to tread a fine line between publicising positive athlete tests in order to limit damage and protecting the athlete. England Hockey gave an example where it was considering publicising a positive ‘A’ sample find from an athlete. It decided not to and the ‘B’ sample came back negative. “We could have ruined that person’s life”, said Sally Munday, CEO of England Hockey.
- To state that any food or supplement is ‘100% safe’ for athletes to consume is very difficult, if not impossible.
- Contaminated food presents a problem for athletes, as do supplements, which can be contaminated with other substances.
- The standard of care that an athlete can expect from a sporting body during the doping control process has now been ‘Codified’, which means that athletes may be able to hold sporting bodies liable if these standards have not been adhered to.
- As well as the problem of false positive tests, a problem now exists with false negatives, as people are scared to report a positive test due to the ensuing legal process that will result from it.
- Whether there is a need to adapt the World Anti-Doping Code to regulate the use of technology in sport, as it can provide an unfair advantage or even endanger the health of athletes.
Friday, March 04, 2011
The International Football Association Board (IFAB) will meet in Newport, Wales tomorrow to again consider whether football should adopt goal-line technology, which will determine whether a ball has crossed the line in situations where the referee might be unsure. The use of goal-line technology has been being discussed by the IFAB since 2007 (perhaps earlier) and from all the discussion that has surrounded it, a casual observer might be forgiven for thinking that football is plagued by hundreds of decisions each weekend where the referee cannot determine confidently whether to award a goal.
The reality is somewhat different. Any football fan will tell you that dubious penalties far eclipse incidents where it cannot be determined whether the ball has crossed the line. They will also tell you that in both situations, TV cameras instantly replay footage of the incident, allowing home viewers to determine whether the correct decision has been made. Viewers at home were able to see clearly that England’s Frank Lampard scored a goal against Germany and Mexico were furious after an in-stadium big screen showed everyone that Argentina’s Carlos Tevez was offside when scoring during the 2010 FIFA World Cup. FIFA’s response? Let’s censor in-stadium screens.
It is also dubious as to how far down the football pyramid goal-line technology will be used. Who will make the decision on whether it is introduced? If it is the national association, then the Football Association has a big investment ahead ensuring that everyone from Manchester United to Walthamstow Avenue is equipped with the technology. If it is up to the leagues, then where will the line be drawn?
Most top-level football is televised – if not by a broadcaster, then increasingly by a club’s own TV channel or internet site. Replaying such incidents would not delay the game any longer than determining the results from goal-line technology systems. As it wouldn’t cost anything, why not use them? It is precisely because it wouldn’t cost anything that FIFA will not use television reviews. Tomorrow, FIFA will hear a report from ten companies keen to sell their system to football. Although it would provide the same result, using television reviews would not bring any new money into football.
FIFA’s motto is ‘for the good of the game’, yet it is happy to support a system that will cost lots of money, will sort out only a small fraction of wrong decisions and will allow diving and cheating to continue unpunished. A fairer system might be to allow team captains to challenge three decisions during a match, which will then be replayed if the game is being filmed. That way, diving and unjust penalties would also be caught, which can have just as much of an impact on a match as a wrongly-awarded goal.
Thursday, March 03, 2011
The International Olympic Committee (IOC) and the World Anti-Doping Agency (WADA) have called for the establishment of an international body to tackle the threat posed to the integrity of sport by match fixing.
The Football League is concerned that Premier League plans to introduce a tier-based system of youth academies will prevent its clubs from signing the best youth players, and that a new system of compensation for training young players doesn't do enough to encourage clubs to develop talent.
World Sports Law Report is proud to announce that world experts on anti-doping will be converging in London for Tackling Doping in Sport on 16/17 March, organised in association with UK Anti-Doping and Squire Sanders Hammonds. Speakers include David Howman (WADA); Pat McQuaid (UCI); Elise Auvachez (UNESCO); Hugh Robertson (DCMS); Stéphane Bermon (IAAF); Andy Parkinson (UKAD); Travis Tygart (USADA); Aurora Andruska (ASADA); Jan-Anders Månson (FINA) and more.
As well as publishing a 'Prohibited List' of substances, the World Anti-Doping Agency also prohibits use of 'Similar Substances'; substances which carry a similar chemical structure or have similar biological effects to those listed on the Prohibited List. In the first instalment of a two-part article, Mike Morgan, an Associate with Squire Sanders Hammonds, examines the background to the provision and the difficulties that the application of the provision can cause for athletes.
The London Organising Committee recently announced plans to change the route of the London 2012 Olympic Marathon to finish by Buckingham Palace on The Mall, rather than in the Olympic Stadium in Stratford. The move led a number of London Olympic boroughs, which had begun work on preparing for the passage of the Marathon, to call for a judicial review into the decision. Simon Grove, a Solicitor with Harrison Clark LLP's Commercial Department, examines whether the Olympic boroughs had a case.
In a recent Opinion issued in the Murphy/QC Leisure case currently before the Court of Justice of the European Union, the Advocate General has stated that the licensing of exclusive sports media rights on a territory-by-territory basis in Europe is contrary to EU law. Andrew Danson, an Associate with K&L Gates LLP, examines the opinion and its potential consequences for sports rights holders and broadcasters.
The London Olympic Games and Paralympics Games Act 2006 protects the London Olympics from ambush marketing and seeks to stop brands that are rivals to London 2012 official sponsors from associating themselves with the event. Hugh Tebay, a Founding Partner of Sipara, examines the impact that the measures within this Act will have on the ordinary spectator.
Thursday, February 03, 2011
German free-to-air broadcasters ARD & ZDF will abandon live coverage of the Tour de France in 2012, due to concerns over doping. ‘The focus is often doping, to which the audience lends an understandably critical eye’, said the state broadcasters in a 2 February statement. ‘German TV viewers only have a low acceptance of the most important cycling race in the world and as such, the long live transmission lines are no longer justified’. The broadcasters will continue to cover the tour in news reports.
Both broadcasters have refused to join a new contract between the European Broadcasting Union (EBU) – which represents national broadcasters such as the BBC – and Amaury Sports Organisation (ASO), which oraganises the Tour. As such, they will still cover the 2011 edition of the Tour, which runs 2 July to 24 July. The contract between the EBU, ASO and national broadcasters allows withdrawal if riders are implicated in doping. Both broadcasters withdrew from covering the 2009 edition of the Tour due to concerns over doping.
The withdrawal demonstrates the commercial impact that doping can have on sport. This will be one of the many issues discussed at Tackling Doping in Sport 2011, organised by World Sports Law Report in Association with UK Anti-Doping and Squire Sanders Hammonds on 16-17 March 2011.
Tuesday, February 01, 2011
The Court of Arbitration for Sport (CAS) was not consulted about the formation of an Asian Council of Arbitration for Sports (ACAS) last year, which will manage a Sports Arbitration Tribunal of Asia (SATA) to settle sports-related disputes.
US broadcaster ESPN has asked a Federal Court to unseal documents that allegedly reveal which elite Association of Tennis Professionals (ATP) players gambled on the sport.
An investigation by Norway's data protection authority, Datatilsynet, has revealed that FIFA insiders offered to sell details of ticket purchasers to the 2006 FIFA World Cup. A 2010 investigation by the UK's Information Commissioner's Office (ICO) and Datatilsynet found personal details and passport numbers of UK ticket buyers were obtained from German company CTS Eventim and passed on to Norwegian company Euroteam AS.
Walls v Brown is the first Scottish case where a sectarian-aggravated breach of the peace conviction - which resulted in the imposition of a football banning order - has been upheld on appeal. Dr David McArdle, a Senior Lecturer at the University of Stirling School of Law, examines the High Court decision and the grounds upon which the Sheriff had granted the banning order application.
The International Cricket Council's Anti-Corruption and Security Unit (ACSU) was formed in 2000 to combat corruption in cricket. Amrut Joshi, an Advocate who heads the sports practice at MMB Legal, examines the reasons for its formation, its role to date and whether enough has been done by cricket's authorities to tackle the threat of corruption.
It has recently been proposed that lie-detector tests be used in cricket to tackle corruption. Tom Burrows, a Trainee Solicitor with Paris Smith LLP, examines how a lie-detector works, the questions that have been raised over the accuracy of such tests and whether they are accepted as evidence by the courts. He also questions how the ICC would implement non-compulsory use of lie-detectors in anti-corruption investigations as refusal could be seen as admission of guilt, and points out that the International Cricket Council could face compensation claims should a player be able to subsequently prove his innocence after taking a test.
The Association of Tennis Professionals (ATP) recently chose to downgrade the Hamburg Open from a Masters 1000 event requiring player participation to an ATP 500 tournament, which doesn't require player participation. Ryan M. Rodenberg and L. Jon Wertheim examine the Deutscher Tennis Bund's and Qatar Tennis Federation's challenge to this decision, which alleged that by requiring players to compete in certain events, the ATP was shielding them from competition with other tennis tournaments, thereby breaching competition law.
Sunday, January 09, 2011
The Swiss government's Federal Sport Office (BASPO) is examining whether the regulations of sporting federations are adequate or whether legislation is needed, following allegations of corruption in the voting process for the 2018 and 2022 FIFA World Cups. Swiss Sport Minister Ueli Maurer ordered BASPO to produce a report examining the extent of corruption in sport within Switzerland and how it can be tackled at a 22 November Lausanne meeting between government authorities and sporting federations.
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The Gambling Commission published its Betting Integrity Decision Making Framework on 17 December, a 12-page document designed to outline when a suspicious betting incident will proceed from a sporting disciplinary matter to a criminal investigation.
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The England and Wales Court of Appeal referred questions to the European Court of Justice (ECJ) on 9 December asking whether the High Court was correct to find that database copyright exists under the Database Directive for English and Scottish football fixture lists.
sale of Liverpool Football Club to New England Sports Ventures in October
raised interesting company law issues that other football clubs could do well
to consider. Ciaran Hickey, an Assistant with Wiggin LLP, explains how the sale
of one of England's most famous football clubs ended up in a court case and
analyses potential lessons for other clubs should they find themselves in a
A lawsuit brought by Lana Lawless recently resulted in the Ladies Professional Golf Association reversing its requirement for competitors to be 'female at birth'. Ryan M. Rodenberg, an Assistant Professor at Florida State University, examines the details of the lawsuit and the impact it could have on rule enforcement in sport.
have recently been a number of incidents where prominent athletes have been
accused of being involved in corrupt activities involving betting. Jody
MacDonald, a Solicitor with Couchmans LLP, examines how the Gambling Commission
identifies and deals with instances of corruption in sport through its
licensing conditions, the offence of 'cheating at gambling' under section 42 of
the Gambling Act 2005 and the activities of the Sports Betting Intelligence
Players often ignore the dangers of head injuries -
especially concussive injuries - due to their keenness to continue playing.
Jack Anderson, a Lecturer in sports law at Queen's University Belfast, examines
the US approach to this problem in American football, the pressurised sporting
environment that often leads to club medics making wrong decisions and
potential solutions to the dangers posed by concussive injuries. He also
highlights the threat that rugby faces from potential litigation.
UEFA has recently sought a share of all bets placed on
its competition games in France, which liberalised gambling earlier this year
allowing sporting organisations to authorise gambling operators to offer bets
on their competitions. Geoffroy Lebon and Thibault Verbiest, of Ulys Law Firm,
explain the principles on which France based its liberalisation of gambling,
the European Commission's concerns over the right to offer bets and how France
has responded to this. They also examine challenges to the right to offer bets.
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UEFA adopted its Financial Fair Play Regulations in
May, which are designed to ensure that clubs do not spend more than they earn.
Rodger Burnett, Matt Totman and Victoria Young, of Baker & McKenzie,
analyse the details of the Regulations and explain potential loopholes.
Thursday, December 02, 2010
UEFA has launched a tender to be considered as a 'specific organiser' of a sporting competition under Article L 331-5 of France's Code du Sport, which would allow it to sell the right to offer bets to French gambling operators licensed by Law no. 2010-476, passed on 12 May.
Four golfers will continue to challenge the Asian Tour's ban on other tournaments as a restraint of trade, despite failing to obtain an injunction temporarily lifting a ban imposed on them after they competed in the OneAsia tournament and failed to pay a fine. Terry Pilkadaris, Guido van der Valk and Matthew Griffin had sought an injunction from the Singapore High Court lifting the ban until their case goes to full trial.
The Union Internationale de Pentathlon Moderne (UIPM) will use laser shooting at the London 2012 Olympic Games despite opposition to the technology from some UIPM member federations. The UIPM failed to secure support from two-thirds of members as required by its rules for laser use to become compulsory at its 6 November Congress.
With no single party winning the election in May, the creation of a coalition government has meant we live in interesting policy times for sport. Priorities came early - the 2018 FIFA World Cup bid, a successful Olympics and a sporting legacy from the Games.
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