Thursday, March 20, 2014

Anti-doping needs to confront the issues

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

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

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

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

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

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

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

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


Wednesday, March 19, 2014

Education & targeted testing key to future of anti-doping

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

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

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

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

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

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

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

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

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

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

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

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


Tuesday, March 04, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Andy Brown


Tuesday, February 04, 2014

Your Guide to the Alex Rodriguez Appeal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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


Thursday, December 19, 2013

Is "Instant Racing" Coming To NJ?

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

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

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

Friday, November 15, 2013

Sport must tackle betting-related corruption

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

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

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

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

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

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

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

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

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

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

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

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

OTHER POINTS OF NOTE

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

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

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

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

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

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

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

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

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

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

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

Andy Brown


Thursday, October 17, 2013

Tackling Doping in Sport webinar, 26 September 2013

One hundred and forty participants from 27 countries took part in the Tackling Doping in Sport webinar on Thursday 26 September, chaired by conference organiser David Longford. Delegates heard from the World Anti-Doping Agency’s (WADA) Director General, David Howman, and former skeleton athlete Adam Pengilly, Vice-Chairman of the International Olympic Committee’s Athlete Commission.

The main topic was the ongoing revision of the 2015 World Anti-Doping Code (WADC), the final draft of which is to be sent to all stakeholders in early October. The final drafts of the Code and all five of WADA’s International Standards will be tabled for approval by WADA’s Executive and Foundation Board at the World Conference on Doping in Sport, which takes place 12-15 November in Johannesburg.

The main ‘take home’ points from the webinar were as follows:

David Howman

• WADA received over 300 specific submissions from stakeholders, suggesting over 2,000 changes to the World Anti-Doping Code.

• “Our view is that the Code is clearer in language, shorter in length and stronger in its application”.

• Under the new version of the Code, WADA has the ability to get involved in investigations – something it has not been able to do to date.

• International Standard for Testing enhanced to become the International Standard for Testing & Investigations.

• WADA will be responsible for publishing information on suspect personnel, which will be made available to athletes. There is a need to be able to sanction athlete support people, such as the legal profession, medical profession, parents, teachers, sport administrators, etc.

• Following the efforts of the working group on the ineffectiveness of testing, WADA will be releasing a technical document on test distribution planning, after the World Conference on Doping in Sport in November.

• Protocols relating to storage mean that samples can now be stored for ten rather than eight years, due to recent re-analysis of samples revealing past anti-doping rule violations (e.g. Lance Armstrong).

• WADA will act as mediator where there is a disagreement between an international federation and a national anti-doping organisation about who should be responsible for testing at an event. “Bodies can both test in a mutually acceptable way”.

• WADA is disappointed at the “paucity” of the number of registered blood sample collections & is disappointed at the number of samples tested for erythropoietin (EPO).

• Education programmes needed by all signatories to the Code (WADA is keen to focus on testing and compliance – click here for a World Sports Law Report news article on this).

• Compliance – stakeholders have asked for WADA to set the bar high rather than low. A focus on “quality rather than quantity”.

Adam Pengilly

• Many athletes take supplements regularly as part of their training programme. In the UK, UK Anti-Doping and national associations are well-funded, helpful and informed. Batches of supplements are sent to labs to confirm that they aren’t contaminated. This is not the case in the majority of jurisdictions.

• The European Union should look at regulating the supplement industry.

• “Personal view is that athletes who have the resources to do decent checks really have no comeback”.

• The burden of proof for establishing a contaminated supplement is likely to be high.

• Every clean athlete wants to know that everyone in their competition has the same anti-doping burden. At the moment, this is not the case and this needs to be addressed.

• Suggestion of tiered harmonisation of anti-doping programmes. Perhaps the top five nations in a particular sport need more stringent anti-doping programmes than those who struggle to qualify.

• Compliance requirements need to be tougher, especially for those nations at the top.

• Athletes are willing to accept the anti-doping burden, as long as the system is fair.

Questions

• New WADA phone application is helping athletes comply with whereabouts requirements. Some athletes want GPS on smartphones to be used as whereabouts, through fear of forgetting to file a change (Adam Pengilly said this has happened to him and lots of other athletes). Other athletes find this idea horrifying.

• WADA is putting together a compliance programme which will be published next year.

• Athletes welcome an increased focus on athlete support personnel. However, it will be a big challenge to prove their involvement in causing an athlete to dope. Even so, if these people are not caught, anti-doping authorities will be failing in their duty, as conspirators ought to be brought to justice.

The Tackling Doping webinar was organised as a precursor to Tackling Doping in Sport, a two-day annual conference organised by World Sports Law Report in association with UK Anti-Doping. The conference will take place 19-20 March at Wembley Stadium. For more information, click here


Friday, July 12, 2013

Player Contracts 2013: Safeguarding Youth Key

The safeguarding of young players will become crucial in football, heard delegates at Player Contracts 2013, which took place in London on 11 July. Clubs are likely to target the youth market in order to remain within regulations restraining player spending, such as UEFA’s Financial Fair Play Regulations and the FA Premier League’s planned salary controls. However the effectiveness of such regulations is in doubt, as spending on transfers is increasing.

100 delegates from 13 countries heard presentations from FIFA, the FA Premier League, the European Club Association, the Professional Footballers Association and more. Kimberley Morris, of FIFA’s Transfer Matching System, outlined how the number of completed player deals fell by 2%, but the value of the deals increased by 39% in the first half of 2013 compared to the first half of 2012.

Patricia Moyersoen, legal advisor to clubs including AS Monaco (ASM) and Paris Saint-Germain, explained how France’s Ligue de Football Professionnel (LFP) is currently fighting government plans to tax anyone earning more than €1 million at 75%. Luca Ferrari, legal advisor to Italy’s Serie B, explained its plans for a salary cap.

Ged Roddy, Youth Director of the FA Premier League, explained how the FA Premier League has committed £350 million to invest in youth development from 2012-2015. He outlined how the Elite Player Performance plan is transforming youth development by ranking clubs according to player productivity in order to target investment in youth. Other sessions focussed on contract breaches, insolvency, compensation and cases involving youth players.

Delegates at the event included eight football clubs, two football leagues, two national associations, one international federation, four player organisations, player representation companies, agents and - of course - their numerous legal advisors. "The variety of the topics was very good, as was the quality of the presentations and speakers", said a delegate.

Player Contracts is just one annual conference organised by World Sports Law Report and Cecile Park Conferences. Other events include Sport & Betting and Tackling Doping in Sport. For full details including a full programme for Player Contracts 2013, please visit www.cecileparkconferences.com. Player Contracts 2014 will take place on 17 June.

Andy Brown


Thursday, June 27, 2013

Increased funding crucial to anti-doping

A call for increased funding to tackle doping in sport made by UK Anti-Doping (UKAD) during the Tackling Doping webinar on 26 June was underlined by today’s release of the World Anti-Doping Agency’s 2012 annual report. ‘The biggest constraint ahead for WADA is limited funding’, wrote WADA President John Fahey in the report. ‘For the second consecutive year, WADA’s Foundation Board voted to keep the 2013 budget frozen at approximately US$28 million, the same level of funding received in 2011, because governments did not agree to provide any additional funding for WADA. While I appreciate that economies across the world continue to struggle, this freeze is not ideal for the fight against doping in sport. WADA has dipped into its reserves over the last two years to cover shortfalls for its operating costs, but if funding continues to remain the same, the Agency will be forced to cut back its activities.’

“There needs to be a drive to increase investment”, UKAD Chief Executive Andy Parkinson told the Tackling Doping webinar yesterday. “The new version of the Code [2015 Code, published last week] is more targeted and focussed, but there is a feeling that certain organisations are not applying the Code in the same way that others are”. Parkinson said that more needed to be done to ensure that WADA has the resources available to investigate and sanction those not correctly implementing the Code.

Parkinson also supported a change of emphasis in the Code, regarding the introduction of four-year bans. Under the existing Code, sporting organisations would begin with a two-year ban, which could be increased up to four years maximum in cases involving ‘aggravating circumstances’. The 2015 version of the Code starts with a four-year ban, which can then be reduced depending on the circumstances of the case. “The current draft has taken great steps to punish serious dopers”, he said, adding that WADA would soon release a legal opinion on how this change complies with European Union law.

Delegates also heard from Ana Muñoz, Director of the Agencia Española para la Protección de la Salud en el Deporte (AEPSD), who outlined Spain’s new legislation criminalising doping. “Spain has arrived late to the fight against doping”, she said, “but 2013 marks a change”. Muñoz said that Spain is moving towards a general sports law covering match-fixing, doping and corruption. She said that the AEPSD would continue its appeal against a court’s decision to order the destruction of the blood bags connected to the Operación Puerto investigation once all appeals against its judgment imprisoning Dr. Eufemiano Fuentes have been exhausted. “We want the blood bags and the names”, said Muñoz. “It is essential to know who these athletes are”.

The Tackling Doping webinar, which was free of charge, was organised by World Sports Law Report in association with UKAD. The annual Tackling Doping in Sport conference will next take place in 2014 in London.

Andy Brown


Friday, October 12, 2012

REVIEW: Sport & Gambling build international framework to tackle corruption

Sporting organisations are working together with international organisations to build an international framework to tackle corruption in sport, heard delegates at World Sports Law Report & DLA Piper’s Sport & Gambling 2012. However, to keep up the pressure on those intent on corrupting sport through betting, further integration is needed between the monitoring systems used by sport and gambling operators, and international regulations are needed to address disparities between national legislative regimes.

Who should pay for such innovations is also a contentious issue. Unless it receives what it considers an ‘adequate return’ from the gambling industry, some sports are unwilling to continually further invest in policing against corruption and argue that gambling operators should foot the bill. Gambling operators argue that they already continually invest larger sums in policing against corruption.

Pâquerette Girard-Zappelli, Secretary of the International Olympic Committee’s (IOC) Ethics Commission, outlined how it is working with United Nations organisations to extend the reach of the Council of Europe’s recently-written Convention on match-fixing beyond Europe. She revealed that the United Nations Office on Drugs and Crime is conducting a study on the application of its conventions to sports betting issues, and is negotiating with gambling regulators in Nevada, Victoria and Korea on an international framework for tackling match-fixing. She warned that policing against corruption is an ongoing issue. “We will not be able to just fix everything tomorrow morning”, she said.

It is hoped that such regulation will eradicate issues such as disparities between how different jurisdictions sanction and prosecute match-fixing, an issue raised by Caroline Larlus-Lefebvre, Head of the Sports Department at French online gambling regulator ARJEL. Paul Scotney, Integrity, Compliance and Licensing Director for the British Horseracing Authority, highlighted that whilst the BHA can obtain phone records to be used as evidence against match-fixers, the same is not true for all sports in all jurisdictions. “We make it a licensing condition that people must provide their phone records, if requested”, he said.

An international regulatory framework might also provide guidance into how sporting authorities can pursue parallel investigations in cases of corruption, whereby a sporting body has to conclude its own investigation in a short space of time (at the London 2012 Olympics, the IOC had 24 hours to make a case before the Court of Arbitration for Sport) without compromising a criminal investigation by the police. This issue was raised by Nick Tofiluk, Director of Regulation at Great Britain’s Gambling Commission, who also spoke about how a ‘risk-based’ approach to monitoring the potential of a sport to be corrupted had been used at the London 2012 Olympics.

Issues regarding the difficulty in gaining adequate evidence to prosecute match-fixers were continually raised. Girard-Zappelli and Tofiluk compared it to doping, where a sample is taken. “There is certainty in doping cases regarding evidence. There is no such certainty in match-fixing,” said Tofiluk.

Integrity as a Business

There are signs that policing integrity in sport is becoming big business. As well as FIFA’s Early Warning System (EWS) – which spoke at the conference – other players include International Sports Monitoring, the European Sports Security Agency, Global Sports Integrity and others. It was agreed that these need to find a way to share their information more freely, but it was pointed out that this might be difficult in a commercial marketplace.

Jacek Wojdyla, Head of International Affairs for FIFA’s EWS, highlighted that as well as monitoring FIFA events, it also has smaller agreements in place to monitor Major League Soccer in the US and Japan’s J.League. It is also offering smaller federations an ‘integrated service package’ and has a ten-year agreement with international police organisation Interpol to educate players.

The conference highlighted that while the most valuable type of bettor to operators is a so-called ‘high roller’, these will usually migrate to the black market at some stage, where they can get better odds. Larlus-Lefebvre revealed that ARJEL sends over 2,000 ‘cease and desist’ letters to operators per year. Through France’s licensing system, 1.8% of bets are returned to amateur sport, which equates to €20.9 million since the French regulated betting market opened in 2010.

Memorandums of Understanding

Andy Cunningham of Betfair outlined how its 55 memorandums of understanding (MoUs) with sporting organisations had allowed sport to quickly identify potential corruption. However, it was generally agreed that whilst MoUs are useful, sport had to move on from its reliance on them to a more integrated approach. It was pointed out that not all sports will sign them, due to issues over control of data.

Andrew Lyman, Head of Public Affairs at William Hill Plc., pointed out a potential failing of early warning systems is that the often fail to take into account betting volume. He also highlighted that some sports still don’t have adequate structures in place to police against corruption. He argued that funding and integrity should not be discussed together and although he welcomed the IOC’s moves towards combating corruption, argued that operators should have more representation. He said that one of the failings of the anti-corruption movement was that “we are not prepared to accept that each of us has expertise”.

Paul Scotney of the BHA highlighted that although illegal markets are an issue, a lot of cheating still goes on in regulated markets. Interestingly, he said that sports governing bodies have to deal with corruption issues, as the police and the Gambling Commission have other, more important, priorities. He said that was why the BHA had decided to charge nine individuals with breaching racing’s rules on 4 October. He said that the BHA had gone to the High Court to gain access to the phone records of one individual involved with the case.

Olympic Betting

The partnership between the IOC, Gambling Commission and the London Organising Committee (LOCOG) for the Olympic Games was held up as a model of best practice. Girard-Zappelli confirmed that the IOC had investigated badminton, boxing and basketball events during the London 2012 Olympics.

The turnover from betting was ten times higher than during Beijing 2008, but despite that, Olympic Games betting only made up 30% of the UK market during the Games. She highlighted that there had been ‘considerable’ micro betting during the Games. Fifty percent of bets were per-event, while 50% were ‘live’. However, overall, bets were placed ‘to win’. The most popular sports to bet on during the Olympics were football, basketball, tennis, handball, volleyball, athletics, swimming and cycling.

The Gambling Commission’s Tofiluk confirmed that 13 inquiries had been generated during London 2012 through the joint monitoring programme set up between the Gambling Commission, the IOC and LOCOG. He said that gambling operators had volunteered their involvement, often without being approached. If it had been found that an event was about to be fixed, the IOC said that the agreed procedure would have been to inform the relevant international federation as well as the IOC President and postponement of the event was a possibility. However, this may have been difficult because of TV schedules.

Overseas Markets

Tim Lowry of DLA Piper outlined the situation regarding New Jersey’s attempt to regulate sports betting. He said although it is unlikely that New Jersey will be successful this time around, the huge State budget deficits mean that a successful challenge will probably be seen in the coming years.

Albert Augustinoy of DLA Piper revealed that Spain is seeking to regulate exchange betting from early 2013. A widening of Spain’s closed list of sporting events on which betting is permitted is also being considered.

Giulio Coraggio of DLA Piper said that there has been a 90% fall in sports betting due to the launch of cash poker games. Italy’s gambling regulator, AAMS, has recently removed its list of permitted events, which is hoped will stimulate the market. The tax regime of 20% of global gaming revenue was also a problem for operators, and is due to change.

Patrick Schwarzbart of DLA Piper highlighted how the German State of Schleswig-Holstein is now joining Germany’s Interstate Treaty on Gambling, which places onerous restrictions on gambling operators. However, restrictions preventing gambling operators from appearing on perimeter advertising hoardings and on sports jerseys have been removed under the new version of the Treaty. However, gambling operators will not be allowed to advertise on television unless approved by a ‘relevant authority’. The final advertising guidelines are due by November 2012.

Player Education

The importance of educating not only athletes, but law enforcement authorities was also raised, as was the possibility of sporting federations taking more proactive action against those suspected of match-fixing. Simon Taylor, General Secretary of the Professional Players Federation (PPF) and Jane Purdon, Director of Governance at the FA Premier League highlighted the importance of educating players about the dangers of corruption.

Taylor said that education programmes need to be tailored to address the specific threat in any particular market, and that a ‘blanket approach’ is no longer adequate. He also highlighted that education needs to be ongoing, as football, cricket and rugby have a ‘churn’ of 25% new players each year. The PPF is funded by gambling operators and sport, and its funding agreement expires in the new year.

Purdon said that the Premier League had rewritten its rules on youth development this summer. A regulatory awareness programme is in place for all Premier League Academy scholars and staff, with modules relating to corruption in connection with gambling.

For more information on World Sports Law Report’s other conferences, contact david.longford@e-comlaw.com

Andy Brown


Wednesday, June 27, 2012

Penn State case: Reporting & preventing child abuse

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

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

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

Obligations for reporting

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

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

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

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

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

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

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

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

Duty of care

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

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

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

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

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

Take responsibility

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

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

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

Minor child waiver

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

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

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

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

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


Friday, October 28, 2011

Sport must carefully ‘define its public’ following Karen Murphy ruling

Sport can still protect the value of its broadcasting rights following the Karen Murphy ruling by carefully defining its public, concluded an Emergency Briefing organised in London yesterday. Whilst rights holders will no longer be able to partition the single market into Member States in order to sell those rights, this will not result in a huge drop in value as rights holders will be able to use other methods to partition their markets.

 

Licensing different language broadcasts of sport could offer one method of partitioning rights into different markets, explained Tom Moody-Stuart, a Barrister with 8 New Square Chambers. “Leaving to one side Sky and football for a minute, you are licensing a particular language version of a particular programme or film and you can license that within a particular territory – you have no control over where it goes afterwards”, he said. “That is something that you can evaluate, the size of the market and take fair remuneration for. It doesn’t matter where they are, you are defining your public, and that’s the answer to all of this.”

 

Barrister Marie Demetriou of Brick Court Chambers, who represented Southsea pub landlady Karen Murphy in her case at the Court of Justice of the European Union (CJEU), agreed. “You can’t partition the market, but I don’t think there would be much objection to licensing on the basis of language”, she said. “What happens at the moment is that Nova provides commentary in both English and Greek. That’s why it’s so attractive to people like Karen Murphy. I don’t think there would be a competition objection to removing that service.” It was explained that Murphy held a domestic licence with Greek broadcaster Nova as opposed to a commercial one, as commercial licences in the Greek market required an assessment of the premises in which the licence was to be used. This could not be carried out in Murphy’s case since her pub was in Southsea.

 

In its 4 October ruling, the CJEU ruled that a system of licensing which grants broadcasters territorial exclusivity on a Member State basis and which prohibits TV viewers from watching the broadcasts with a decoder card in other EU Member States is contrary to the EU principle of freedom to provide services. However, it also ruled that the screening of matches containing copyrighted works (such as the Premier League logo) in a pub requires the authorisation of the author of those works, as it constitutes a new ‘communication to the public’ as specified in Article 3 of the Copyright Directive.

 

“The pub subscription model is not really replicated across Europe”, said Raj Koria of sports rights and marketing agency Sportfive. “There is a view that this is an English problem”. Following the reasoning of the judgment, it was suggested that it might be acceptable for UK pubs to screen Premier League games using a commercial licence from another country, however the judgment provided no guidance as to whether this reasoning is correct. One solution suggested to this issue was for the Premier League to only sell one commercial licence, which all European commercial premises would have to purchase.

 

“It seems that the consensus amongst most commentators is that the Premier League is going to think about how it can lawfully re-tender its rights”, said Daniel Geey, an Associate with Field Fisher Waterhouse. “There may be some type of selling of live Premier League rights on a pan-European basis. Another solution may be for the Premier League to launch its own TV channel which it could license to other broadcasters and its own subscription internet channel.” It was suggested that this might be a wise move in the long term, as sport may currently be going through the process of widespread piracy that music went through before the launch of iTunes gave people a central shop from which to purchase content at a reasonable rate.

 

As the judgment suggested that rights holders cannot partition markets on a Member State basis, a potential issue raised was whether geo-blocking is now illegal, as it uses technology to prevent users from certain countries accessing internet content. Further clarity on this, on whether commercial licenses from other countries are acceptable and other questions is expected when the case returns to the High Court for a final judgement.

 

 

EDITORS NOTES

 

  1. The ‘Emergency Briefing: CJEU Ruling on Sport, IP & Broadcasting Rights’ was organised by World Sports Law Report, World Online Gambling Law Report, E-Commerce Law & Policy and Field Fisher Waterhouse LLP. It took place at the London offices of Field Fisher Waterhouse LLP on 20 October.

 

  1. For more information on future Cecile Park Conferences events, click here or contact David Longford on +44 (0) 20 7012 1384.

 

  1. The two Karen Murphy judgments, cases C-403/08 and C-429/08 are available from the Court of Justice of the European Union internet site.

Tuesday, October 04, 2011

Sporting Organisations Cooperating Closely To Tackle Corruption

Sporting Organisations are cooperating closer than ever before in efforts to tackle corruption caused by illegal betting, it emerged at Sport & Gambling 2011, an annual conference organised by World Sports Law Report and World Online Gambling Law Report on 29 September. However, opinion was divided on whether an international body similar to the World Anti-Doping Agency (WADA) is needed to oversee integrity issues; whether minimum guidelines for sport and gambling operators are needed; or whether closer cooperation between all concerned parties is sufficient.

 

Huw Roberts, Legal Counsel for the International Association of Athletics Federations (IAAF), revealed that the IAAF and the International Olympic Committee (IOC) are to develop an integrity enforcement programme within the next 12 months, ahead of the London 2012 Olympics. An IOC cross-sector international review group is also examining current international efforts to protect the integrity of sport, and will report its findings before the end of the year. The British Horseracing Authority (BHA) and the International Cricket Council (ICC) also agreed to share expertise in tackling corruption at Sport & Gambling 2011.

 

It was also revealed that international police organisation Interpol has been working with the International Cricket Council (ICC) and Great Britain’s Gambling Commission. “We have engaged with Interpol”, said Sir Ronnie Flanagan, Chairman of the ICC’s Anti-Corruption and Security Unit. “There is a possibility for a memorandum of understanding and other relationships”. Nick Tofiluk, Director of Regulation at Great Britain’s Gambling Commission, said it had been working with Interpol and European police organisations in an effort to take a more international approach to tackling corruption. “There is little to be gained by each national taking its own regulatory path”, he said. Interpol has recently been working with the IOC, FIFA and UEFA to investigate integrity issues. Rick Parry, former Head of the Sports Betting Integrity Unit, backed the idea of pan-sport integrity units, pointing out that smaller sports do not have the finances to police integrity effectively.

 

Stephen Ketteley, a Partner at DLA Piper – the conference’s Gold Sponsor – pointed out that these issues are likely to get more complex due to a new approach to licensing gambling operators in Europe. He pointed out that operators will now need a licence for every country they wish to operate in, now that Great Britain and Europe have rejected the previous approach which only required an operator to be licensed in one regulated jurisdiction to offer services in all regulated jurisdictions. This approach was criticised by Nick Tofiluk. “I don’t see much point in duplicating the work if another regulator has already carried out tasks such as due diligence”, he said.

 

The importance of player education in combating corruption was also raised. “The best defence is if the player says no”, said Simon Taylor, General Secretary of the Professional Players Federation, who also criticised the IOC and WADA for failing to engage with athletes. “The IOC has excelled itself in working with gambling companies, but has failed to engage with athletes”, he said. “However, to be fair, the IOC has not really been active in this market until very recently. Do we need another WADA? WADA has also failed to engage with athletes.”

 

Sir Ronnie Flanagan also pointed out a ‘catch 22’ that existed with regards to policing against corruption. “The ICC anti-corruption unit is independent, however our remit is international cricket”, he said. “The more we protect international cricket, the more likely we are to displace risk to other parts of the game. The ECB [England and Wales Cricket Board] has created its own integrity unit. In terms of the IPL [Indian Premier League], we’ve no remit, but we’ve covered it because the organisers wanted us to. We need to be alive to this threat of displacement.”

 

• A detailed programme for Sport & Gambling 2011 is available by clicking here. Copies of the presentations are available by contacting David Longford either by email, or by phoning +44 (0)20 7012 1382.

 

World Sports Law Report and World Online Gambling Law Report also run a number of tailored events designed for their respective industries. For more information, click here.


Thursday, September 15, 2011

Interview: Andy Cunningham, Head of Integrity, Betfair

Andy Cunningham is Head of Integrity at Betfair and will be speaking at Sport & Gambling 2011, a conference taking place on 29 September at The Law Society in London. Andy will give a joint presentation on identifying suspicious betting patterns with Paul Scotney, Director of Integrity Services and Licensing at the British Horseracing Authority.

 

The conference is organised by World Sports Law Report and World Online Gambling Law Report. It will bring together key organisations from world sport to identify what gambling operators and sporting organisations can do to protect themselves against the possibility of corruption. The event is supported by Gold Sponsor DLA Piper and speakers include organisations such as:

 

• the British Gambling Commission;

• The International Association of Athletics Federations;

• French gambling regulator ARJEL;

• the Professional Players Federation;

• the British Horseracing Authority;

• Football DataCo;

• the British Sports Betting Integrity Panel;

• DLA Piper.

 

For a full programme, please click here. For more information on Sport & Gambling 2011, visit the conference page by clicking here.

 

In this interview, Andy outlines his background before joining Betfair, gives his view on how the gambling industry’s relationship has changed in the seven years he has been at Betfair and discusses whether an organisation such as the World Anti-Doping Agency is needed to tackle corruption in sport.

 

WSLR: Tell us a bit about your background...

AC: I graduated from University and started in the financial accounting world, joining Betfair in 2003. I have been there ever since, joining the Integrity Team in late 2004. I have progressed to head that team, which I have been doing for the last year.

I have a team of seven people, whose remit is to monitor all of the transactions on Betfair’s site and to investigate any unusual or suspect betting patterns. We liaise with sports governing bodies, regulators and law enforcement agencies, as appropriate, to help them carry out betting related integrity investigations.

In 2010 I spent six months in the US working for TVG, which was purchased by Betfair at the start of 2009. The company is one of the largest legal online pari-mutuel horseracing betting operators in the US. Whilst working for them I spent time engaging with horseracing regulators and implementing betting integrity related systems and procedures for the US pari-mutuel horseracing industry.

 

WSLR: What are you hoping to get out of the event?

AC: Networking with regulators and sports, primarily. I am sure that people will be there from some of the sports with which we have MOUs [Memorandums of Understanding] and also some of the regulators that we liaise with. I am also looking forward to networking with some of the other interesting parties that will be there. It will also be interesting to find out people’s latest views on the issues within the presentations.

 

WSLR: What do you anticipate questions on?

AC: My presentation will focus on what my team does to determine whether a bet is suspicious and the process of investigation that follows from that. I will talk about our MOUs and how we liaise with sport, regulators and law enforcement agencies if required. It’s difficult to predict what I might get questions on.

 

WSLR: What have been the biggest changes in sport’s relationship with gambling that you have seen?

AC: There has been increased cooperation on integrity related issues since I joined Betfair. Our number of MOUs has increased since 2004 when I joined the team – we now have them with 48 sporting bodies worldwide. Sports recognise that if they sign an MOU it acts as a safeguard in the fight against corruption. Most of the time we never have to use a MOU, but it allows us to share information with the sport involved and carry out an effective investigation if there is a betting integrity related issue. There has also been increased understanding that when we are talking about corruption in betting and sport, there is a clear distinction between the legal market and the illegal market. Regulated online companies in the legal market - such as Betfair - go to great lengths to police integrity and liaise with sports. It is in our mutual interest with sport to do so.

A recent Sky Sports News match-fixing report interviewed 'fixing insiders' and any mention of betting was with reference to the illegal industry in Asia rather than from the legal industry, which is here to help. If somebody were to cheat with us, we will catch them.

There has also been increased cooperation on educational initiatives in sport. For example we work in partnership with the Professional Players Federation on educating players and Simon Taylor may well speak about our work in that area at Sport & Gambling. This is a very important topic.

 

WSLR: Do you think there will ever be an international ‘anti-corruption’ body regulating sport’s relationship with gambling, as WADA regulates sport’s relationship with drugs?

AC: To set up a WADA-type organisation to tackle corruption would be incredibly complex. Also, some sports have established effective integrity units which have excellent relationships with gambling operators. I do agree that an international mechanism to ease the cross-border sharing of information would help but there are legal challenges that need to be overcome in this respect.

 

WSLR: Can sport and gambling’s relationship be mutually beneficial?

AC: From an integrity perspective, I believe sport and gambling’s relationship is already mutually beneficial. As described above it is in our interest as a licensed betting operator to help keep sport free from corruption. Gambling and sport has always had a kind of symbiotic relationship and I think it will continue to do so.

 

Interview by: Andy Brown

 


Wednesday, August 17, 2011

Manager Contracts: Resigning under constructive dismissal: McLeish case

Alex McLeish recently resigned as Manager of Birmingham City to join rival Aston Villa, citing constructive dismissal as his reason for terminating his contract prematurely. Meena Botros, an Associate with Norton Rose LLP, examines what constitutes constructive dismissal and previous case law involving football managers who have claimed that by its conduct, a club has breached its contract.

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.


Tuesday, July 26, 2011

Transparency Key To Policing Player Contracts

Transparency is key to effective policing of player contracts, highlighted major sports organisations at Player Contracts 2011, a World Sports Law Report conference that took place in London on 7 July. Sporting bodies present included FIFA, UEFA, the European Club Association (ECA), FIFPro, the International Cricket Council, the Irish Rugby Football Union and more. The main points raised were:

 

• FIFA’s Transfer Matching System (TMS) needs to make changes to ensure financial transparency within the TMS system;

• UEFA’s Financial Fair Play regulations are unlikely to be effective and will cement the position of the richest clubs;

• Clubs are declaring their players as amateurs in order to avoid scrutiny under the TMS;

• TMS to be extended to include international transfer of female professionals and futsal players;

• More needs to be done to protect young players from exploitation;

• Training compensation is hampering big clubs from selling players to smaller clubs;

• Regulations on third party investment in football need clarifying;

• More needs to be done to compensate clubs for injuries attained during international duty.

 

In its presentation on its Transfer Matching System, FIFA highlighted that 4,600 clubs now use the TMS, which became mandatory for international transfers in 2010.  However, it was agreed that more needs to be done to ensure financial transparency in the system. FIFA said that it was working on a system whereby clubs would specify ‘approved accounts’ for player transfers, so that clubs could be confident that money was being paid to legitimate bank accounts.

 

The European Club Association (ECA) said it had evidence that payments are being made to third parties. It said FIFA needs to do more than the TMS requirement for clubs to tick a box agreeing not to make payments to third parties. “A box is a box”, said Isabelle Solal, Head of Integrity & Compliance for FIFA Transfer Matching System GmbH. “It is something we can use as evidence that a club has lied. It is something that we plan to use going forward during investigations.”

 

FIFA and the ECA also revealed they have evidence that clubs are getting around prohibitions on the transfer of young players by arranging jobs for player parents. FIFA Regulations prevent the international transfer of a player under the age of 16, unless the parents of the player move to a new country. FIFA and the ECA said that jobs are being arranged for parents, who move to a new country only for a local club to sign their son shortly after his 16th birthday. In its presentation on protecting youth players, the ECA cited the cases of Paraguayan Carlos Javier Acuna Caballero, whose mother was allegedly offered a job in Cadiz prior to the player’s 16th birthday ahead of FC Cadiz’s contract with the player after his 16th birthday. The ECA also revealed that the Dutch authorities are investigating the transfer of Nathan Ake from Feyenoord to Chelsea, who was allegedly pictured on a football agent’s internet site at Chelsea’s Stamford Bridge ground prior to his 16th birthday.

 

Delegates from smaller clubs raised a peculiar problem caused by FIFA’s requirement for compensation to be paid for the training of a player. Young players trained by a big club can often find themselves stranded, as smaller clubs cannot afford to pay the compensation. The abandonment of young players abroad was also raised as a potential problem, especially as UEFA’s Financial Fair Play Regulations are leading clubs to pursue ever-younger players in order to save money.

 

Other sessions discussed the impact of the Bribery Act on player contracts; managing rival competitions and calculating compensation for contract breaches.

 

Andy Brown


Friday, March 25, 2011

Social Media: The regulation of social media use in sport

The recent rise in social media has enabled players to get closer than ever to their fans, and vice-versa. Leslie Ross examines the dangers that holds, recent incidents involving social media and sport's policies on its use. She also examines sport's rules on social media use in the light of freedom of expression legislation and whether instant messaging can be regulated by sport, as it is a 'private' form of social media.

If you are a subscriber to World Sports Law Report, click here to access the full article, or click here to sign up for a free trial. 


Thursday, March 03, 2011

Integrity: Tribunal verdict in cricket's spot-fixing case: analysis

The International Cricket Council recently delivered its verdict in the spot-fixing case against three Pakistan cricketers, imposing sanctions of varying severity. Amrut Joshi, an Advocate who heads the sports practice at MMB Legal, examines the charges brought against the players, the evidence against them and how sanctions were determined by considering both 'aggravating and mitigating factors', as required by the ICC's Anti-Corruption Code. Joshi also comments on steps that could be taken by the ICC to prevent such a situation from arising in the future.

If you are a subscriber to World Sports Law Report, click here to access the full article, or click here to sign up for a two-week free trial. 


Tuesday, February 01, 2011

2011 Issues: Views and predictions from the editorial board for 2011

We asked members of World Sports Law Report's editorial board to highlight what they think will be the main sports law issues during 2011. In this article, they set out their responses.

If you are a subscriber to World Sports Law Report, click here to access the full article, or click here to sign up for a two-week free trial. 


Friday, October 15, 2010

Experts Highlight Player Issues Requiring Urgent Resolution

Issues such as the regulation of player agents, clenbuterol doping and compensation for players injured on international duty need urgent resolution, heard delegates at Player Issues: Regulations & Contracts 2010, a World Sports Law Report conference hosted by Hammonds LLP on 14 October.

 

The quality of speakers and information available was praised by delegates. “There are many journals and conferences around that cover sports law, however you will struggle to find one that goes into the level of detail analysed by World Sports Law Report”, said Omar Yabroudi, Crystal Palace FC. “This event was perfect for my needs.”

 

Paolo Lombardi highlighted that FIFA’s decision to regulate intermediaries used during player transfers constituted – contrary to media reports – a strengthening of regulations governing use of player agents, as only 30% of international transfers utilise licensed FIFA Agents under the present regime. “If FIFA is prepared to tear down the barriers to entry for player agents, then that indicates that it wants to focus attention on every single transaction instead”, said Lombardi, CEO of sports advisory business SportsTeam and former Head of Disciplinary & Governance at FIFA. “Is FIFA giving up on agents? Perhaps. Is it giving up on protecting football? No. Will this have a positive effect? Only time will tell.”

 

Roberto Branco Martins, General Manager of the European Association of Football Agents (EAFA), disputed this view, arguing the dangers of an unregulated “wild west” environment. He also pointed out that whilst it is laudable that FIFA prohibit fees for work with minors, they do not limit the length of a player representation contract, meaning that an agent can sign a ten year contract with a young player. He argued that FIFA should engage the EAFA in amending the regulations.

 

There was also controversy over regulations which state that 3% of a transfer fee may be paid to an agent. “If the intention is to create transparency, then the regulations must also be realistic”, said Martins. “Currently agent commission falls between 5% and 10% of the transfer fee. There are also issues to be resolved with agents retaining the economic rights to players in some countries.”

 

In a two-part doping session, Mike Morgan of Hammonds LLP pointed out the dangers of athletes accidentally ingesting clenbuterol – a banned substance illicitly used in segments of the farming industry to increase the growth rate of livestock and keep meat lean. Clenbuterol remans present in contaminated meat and can therefore result in a positive test for a Prohibited Substance under the World Anti-Doping Code. Three times Tour de France winner Alberto Contador recently tested positive for clenbuterol, but argues he ingested it through contaminated meat. Morgan also revealed to delegates that the US Olympic Committee had shipped 11,000kg of meat to Beijing for the 2008 Olympics because of concerns over Chinese meat and, amongst other things, the potential risk it posed to athletes subject to doping control tests. He contemplated whether anti-doping authorities might be able to develop an analytical test to distinguish clenbuterol administered directly from clenbuterol ingested inadvertently following the consumption of contaminated meat.

 

Speaking on compensation for player injuries, Peter Limbert of Hammonds LLP said that it is “only a matter of time” before clubs challenge the lack of compensation available for injuries to players whilst on international duty. He pointed out that Bayern Munich is considering legal action after Captain Mark van Bommel returned injured from international duty and that Arsenal are also keen to pursue compensation for an injury to Robin van Persie.

 

Compensation for breach of contract was also a hot topic. Adam Lewis QC, of Blackstone Chambers, suggested that Article 17 of FIFA’s Regulations for the Status and Transfer of Players could be challenged as a breach of competition law. “Under FIFA rules, it is acceptable to have system to compensate actual loss for breach of contract without just cause [Article 17 of FIFA's 'Regulations for the Status and Transfer of Players], as long as it tallies with national law”, he said. “Even now, CAS arbitrators would arrive at different conclusions as to what constitutes ‘actual loss’ due to different national regulations on how to calculate this. There is therefore an argument that an award under Article 17 that is deemed to go beyond actual loss could be challenged as a possible breach of competition law.”

 

 David Douglas, Chairman of the World Professional Billiards and Snooker Association (WPBSA) Disciplinary Committee, also cleared up the confusion over the release of information to the respondents connected to its allegations that John Higgins had agreed to throw frames. “This was a purely practical consideration by the News of the World in order to keep control of the information while the case was ongoing”, said Douglas, a former investigating officer for the Metropolitan Police and hostage negotiator. Douglas provided delegates with a fascinating insider's account of the integrity tribunal, highly praising Sports Resolutions UK and tribunal chair, Ian Mill QC, who resolved the issue of disclosure of information that allowed the News of the World to hand over its information to the lawyers representing John Higgins and Pat Mooney.

 

Player Issues: Regulations & Contracts is an annual event organised by World Sports Law Report and hosted by Hammonds LLP.

 

World Sports Law Report offers free monthly sports law updates via email. Signing up takes seconds and can be done by clicking here.

 

For more information about World Sports Law Report and WSLR-organised events, please contact Ngaio Claris on +44(0) 207 012 1382.


Broadcasting: A Dutch solution to Premier League TV issues: part 2

The 'exclusive' broadcast model favoured by the English Premier League is currently facing a number of challenges from regulators, who are concerned about the restrictions it places on competition. In this second instalment of a two-part article, Tom Evens, Daniel Geey, Katrien Lefever and Ben Van Rompuy explain how court cases involving the use of decoders to view foreign broadcasts of English Premier League football could open the football broadcasting market to Europe-wide competition. They explain how this could ruin the territory-based sport broadcast sales model, and explain how the Dutch Eredivisie's approach could offer a viable alternative.

To read the full article, sign up for a two-week free trial to World Sports Law Report by clicking here.


Insolvency / Tax: Football insolvency and the 'football creditors' rule

Portsmouth's financial difficulties last season held some important lessons for football clubs entering a Corporate Voluntary Arrangement (CVA) with creditors in order to avoid insolvency. Trevor Watkins, Head of Sport at Clarke Willmott and recognised for his role in leading AFC Bournemouth out of receivership, analyses how the Portsmouth situation evolved, Her Majesty's Revenue & Customs (HMRC) opposition to the club's CVA and to the preferential treatment the 'football creditors' rule offers to creditors within football over ordinary creditors. He also explains why some CVAs are acceptable to HMRC while others are not, and explains why the Portsmouth saga may not yet be over.

To read the full article, sign up for a two-week free trial to World Sports Law Report by clicking here.


Tuesday, September 28, 2010

Broadcasting: A Dutch solution to Premier League TV issues: part 1

The 'exclusive' broadcast model favoured by the English Premier League is currently facing a number of challenges from regulators, who are concerned about the restrictions it places on competition. In this first instalment of a two-part article, Tom Evens, Daniel Geey, Katrien Lefever and Ben Van Rompuy explain the current challenges facing the Premier League and how the Dutch Eredivisie's decision to wholesale its own channel to could offer an alternative that placates regulators.

To access the full article, sign up for a free trial to World Sports Law Report by clicking here. World Sports Law Report is also organising Player Issues: Regulations & Contracts, a conference taking place at the London offices of Hammonds on 14 October. For more information, click here.


Player Eligibility: National team eligibility rules: FIFA, UEFA, IOC & the CAS

The 2010 FIFA World Cup highlighted the increasing trend of footballers choosing to play for countries other than those in which they were born. Ryan S. Hilbert and Ricardo Gentzsch compare the nationality rules of FIFA and UEFA with those of the IOC, in the light of Court of Arbitration for Sport rulings which state that the possibility of changing nationality must remain open to athletes. They also suggest possible changes to football's regulations that may assist it with its aim of preserving the strength of national teams.

To access the full article, sign up for a free trial to World Sports Law Report by clicking here. World Sports Law Report is also organising Player Issues: Regulations & Contracts, a conference taking place at the London offices of Hammonds on 14 October. For more information, click here.


Tuesday, September 14, 2010

Sport & Gambling Unite Against Corruption

The sports industry and bookmakers are cooperating more than ever before in their efforts to eradicate corruption and provide a fair return to sport, it emerged at Sport, Gambling & Sponsorship, a World Sports Law Report Briefing on 14 September. However, although united in this common aim, issues such as who should be responsible for convicting betting cheats and what constitutes a fair return to sport from gambling still need to be tackled.

 

Nick Tofiluk, Director of Regulation at the Gambling Commission, told delegates that although 108 cases of suspicious betting were reported to the Commission between 1 September 2007 and 31 March 2010, 60 have been closed due either adequate action being taken by a sports governing body or lack of evidence to secure a conviction. Just one conviction has been secured to date in relation to greyhound racing, and eight cases remain active, including two involving snooker. Tofiluk said that criminal investigations against sport are often discontinued because sports governing bodies can deal with the issue. “Criminal investigations are costly, lengthly and it is often difficult to predict the outcome”, he said. “In many cases, the standard of evidence does not reach the standard required to secure a criminal conviction”.

 

Nic Coward, Chief Executive of the British Horseracing Authority, underlined the importance of the levy in providing a financial return to horseracing from betting, and said that the concept should be extended to all sport. He expressed dismay that many of the major players in the industry – such as William Hill – had decided to locate their online operations offshore, depriving the horseracing industry of potential levy revenues. “We need to break out of this ludicrous and destructive cycle that we are in”, said Coward, referring to the situation whereby bookmakers located in Great Britain must contribute to the horseracing levy, while those receiving a licence through the ‘whitelist’ of approved foreign jurisdictions escape the levy. “Our focus is on securing a fair return for horseracing, but we would also like to see a fair return to all sports”. Under the Betting, Gaming and Lotteries Act 1963 (as amended), the Horserace Levy Betting Board collects monetary contributions from bookmakers and the Tote via a levy, which it then distributes for the improvement of horseracing.

 

Coward pressed the point that a holistic approach is needed to any review of the current levy system encompassing all sports. He advocated “the creation of a modern market in which betting operators wanting to offer a bet must enter into enforceable contracts for the right to do so”. France’s Code du Sport, which allows sporting event organisers control over the ‘right to offer bets’, was held up as an example of how this can work. It even has European Commission approval, as confirmed by another speaker, Gianluca Monte, a Policy Advisor to the European Commission’s Sports Unit.

 

Many thanks to all of our speakers, delegates and to gambling regulatory experts Berwin Leighton Paisner LLP, who hosted today’s event in an amazingly equipped conference room at their London offices and were instrumental in securing speakers.

 

For the full programme and speaker list, click here. If you are interested in receiving a copy of the presentations, please email me.

 

Andy Brown


Thursday, September 02, 2010

Flaws in the Bowl Championship Series System

Since 1998, the National Collegiate Athletics Association has used the Bowl Championship Series (BCS) System to decide which ten teams will compete in a playoff system to determine the college football champion in the US. The BCS uses polls and computer selection methods to determine team rankings and to determine which 10 teams from each of the six BCS conferences and five other college football conferences will compete to become champion.

College football is very popular in the US – in 2008, the average attendance for NCAA Division I FBS football was 46,971, and ABC’s coverage of the Alabama’s 37-21 defeat of Texas in the BCS Championship Game attracted a TV rating of 17.2, or 19.7 million households. This illustrates that college football is very lucrative in the US and is vital to the funding of education.

However, the BCS system is not without its critics. In this article, Sports Management Degrees points out ten flaws with the BCS system as opposed to a regular playoff system.

 

Andy Brown


Thursday, August 12, 2010

Golfers challenge Asian Tour's ban on other tournaments

Four golfers have filed a lawsuit with the Singapore Supreme Court against the Asian Tour's ban on players taking part in other tournaments.

To access the full article, click here. If you are not a World Sports Law Report subscriber but would like to activate a two-week free trial, click here.


HMRC to pursue 'Football Creditors' rule challenge despite Portsmouth judgment

Her Majesty's Revenue & Customs (HMRC) will pursue its challenge to Football Association Premier League's rules requiring clubs to pay football creditors in full in the event of administration, despite losing a High Court case ([2010] EWHC 2013 (Ch)) against Portsmouth's Company Voluntary Agreement (CVA). The case is due to be heard in November.

To access the full article, click here. If you are not a World Sports Law Report subscriber but would like to activate a two-week free trial, click here.


Expert speakers confirmed for gambling briefing

A number of expert speakers will address delegates attending Sport, Gambling & Sponsorship 2010, a World Sports Law Report event that will be hosted at the London offices of Berwin Leighton Paisner LLP on 14 September.

To access the full article, click here. If you are not a World Sports Law Report subscriber but would like to activate a two-week free trial, click here.


Opinion: WADA and the pharmaceutical industry fight doping

On 6 July, the World Anti-Doping Agency (WADA) and the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) signed a Joint Declaration of Cooperation in the Fight against Doping in Sport. This agreement aims to facilitate voluntary cooperation between WADA and IFPMA member companies, to identify medicinal compounds with doping potential, minimise misuse of medicines still in development, improve the flow of relevant information and facilitate development of detection methods in the context of the fight against doping in sport.

To access the full article, click here. If you are not a World Sports Law Report subscriber but would like to activate a two-week free trial, click here.


Monday, May 17, 2010

Conference on Law, Policy and the Olympic Movement

On Thursday and Friday last week, I attended an excellent conference entitled Law, Policy and the Olympic Movement at Ithaca College’s London Centre, which raised too many interesting issues about the regulation of Olympic sport to summarise in one blog posting. Here is a summary of some of them;

·         Lack of redress for Olympic athletes. It was suggested that as the Court of Arbitration for Sport is only an arbitration body, it can only assess whether the rules of a sporting body have been correctly applied. If an athlete has a real dispute with a sporting body (i.e. one not involving correct application of the rules but legal principles), then their only route is through the courts, yet the International Olympic Committee’s (IOC) Charter reads ‘Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration’.

 

·         That risk assessment costs in connection with hosting the Olympic Games might one day outstrip the benefit of hosting the Games. Local organising committees are increasingly transferring risk and costs to the private sector through agreement with corporations (e.g. LOCOG’s agreement with CLM). It was mentioned that although the Vancouver 2010 Winter Olympics was the first Games to use Enterprise Risk Management techniques, London 2012 will be the first Games to place managing risk at the centre of its strategic planning. Risk management is expected to become a serious issue for the Rio 2016 Olympics.

 

·         Gene doping is expected to become a serious issue. Kate Miller of Southern Illinois University presented research which revealed that Zinc-Finger Nucleases could be used to ‘knock out’ part of the human genome, allowing gene editing that would be almost impossible to detect. More information is available here.

 

·         Sport needs a separate body to protect its common ethics, as ethics commissions set up by international federations (such as FIFA) and international sport organisations (IOC) can only investigate ethics internally, said Hilary Findlay, Associate Professor at the Department of Sport Management, Centre for Sport and Law, Brock University. This theme was later picked up by Simon Boyes of Nottingham Trent University’s Law Department, who highlighted the need for a Global Sports Charter, which would define what makes sport specific from other areas of human activity. It was suggested that this document could then be used by sporting organisations to defend themselves in tort.

 

I was very impressed with the level and variety of debate at the conference, which marked a clear departure from the normal conference programme of ‘something on sponsorship, something on stadiums, something on TV rights, something on finance’ format of so many of today’s sport business conferences. I was also impressed by the friendly and relaxed atmosphere of Ithaca College and its staff, especially Bill Sheasgreen and John Wolohan – many thanks for inviting me along.

  

Andy Brown


Monday, January 25, 2010

Global Anti-Doping Experts To Address WSLR Event

Anti-doping experts from around the globe will address Tackling Doping in Sport, a unique event organised by World Sports Law Report and Hammonds, taking place on 24 February at Hammonds’ London offices. Key speakers include Pat McQuaid, President of the Union Cycliste Internationale; Travis Tygart, Chief Executive of the US Anti-Doping Agency; Andy Parkinson, Chief Executive of UK Anti-Doping; Françoise Dagouret, Manager of the Doping Free Sport Unit for SportAccord; Mike Earl, Doping Control Programme Manager for England’s Football Association; Simon Bowden, Anti-Doping Officer for England’s Rugby Football Union and more, listed here.


The conference is designed to address recent developments in the fight against doping, such as the use of athlete biological passports and whether blood profiling alone can be used to convict an athlete of doping, such as in the case of Claudia Pechstein. The conference will also discuss the use of intelligence in the fight against doping, such as the recent alliance between Canadian border police and the International Olympic Committee for the Vancouver 2010 Winter Olympics.

Doping and privacy will also be another major topic, especially the World Anti-Doping Agency’s regulations which equate three failures to report your whereabouts with a doping violation.


London’s 2012 anti-doping strategy will be debated, as will whether a distinction needs to be made within anti-doping regulations between performance-enhancing and recreational drugs. For a full programme, click here.

As might be expected, delegate spaces for such a detailed programme are selling out fast. For more information on attending, contact Erika Joyce on +44 (0)20 7012 1383.

 


Monday, January 18, 2010

New gambling licence requirements could impact UK sports sponsorship

The UK government's plan to require all overseas-based gambling operators to be licensed by the Gambling Commission could affect sports sponsorship and advertising, as it will require European gambling advertisers to obtain a licence and contribute towards regulatory costs.

To read the full article in the January edition of World Sports Law Report, click here.


Friday, November 06, 2009

Doping: Sample collection: failure to submit to doping control

Under World Anti-Doping Agency rules, failure to submit to sample collection for doping control purposes constitutes an anti-doping rule violation. Mike Morgan, a Solicitor with Hammonds, examines recent case law to explain that seemingly innocuous actions by athletes - such as taking a shower or attending a private team talk once in the presence of Doping Control Officers - can result in such an anti-doping rule violation.

The full article appears in the November edition of World Sports Law Report here.

 


South Africa: Ambush marketing: sanctions and state legislation

Corporations pay millions to exclusively sponsor events such as the FIFA 2010 World Cup South Africa, however ambush marketing by non-sponsors keen to associate themselves with popular events threatens that revenue. In the final instalment of three articles, Michael Murphy, a Partner with Bowman Gilfillan, examines recent South African case law regarding ambush marketing by corporations keen to associate themselves with FIFA events.

The full article appears in the November edition of World Sports Law Report here.


Monday, September 28, 2009

WSLR Event Attracts International Media Coverage

Peter Limacher, UEFA’s Head of Disciplinary Services, revealed that UEFA is currently investigating 40 potential cases of match fixing at World Sports Law Report’sSport, Betting & Sponsorship’ Briefing on Friday. “We have identified 40 matches in the last four seasons that are regarded as suspicious”, Limacher told delegates. “We have 16 betting analysts working full time on this problem in London”.

 

Limacher outlined UEFA’s Fraud Detection System in a detailed presentation that received international coverage from media organisations such as the Press Association, the Associated Press, Agence France Press and a number of international newspapers.

 

Simon Barker, a Senior Executive of the Professional Footballers Association and a Director of the Professional Players Federation – which represents player associations in the UK – revealed that in his experience, footballers do not often understand the rules regarding acceptable and unacceptable betting. He said that in his opinion, this had been the case regarding the five Accrington Stanley footballers recently charged by the Football Association. Delegates highlighted education of athletes regarding sports betting rules to be of paramount importance.

As could have been predicted, betting operators did not support the idea of creating a new right for sporting organisations to be able to sell to betting operators keen to offer bets. Delegates also expected an appeal from Bwin against the European Court of Justice’s (ECJ) judgment in Liga Portuguesa de Futebol Profissional, Bwin International Ltd, formerly Baw International Ltd, v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa. This appeal is regarded as important, as the ECJ’s ruling appears to suggest that gambling operators sponsoring sporting tournaments might wish to influence their outcome. ‘An operator which sponsors some of the sporting competitions on which it accepts bets and some of the teams taking part in those competitions may be in a position to influence their outcome directly or indirectly, and thus increase its profits’, reads the ruling.

Delegates were split on whether an organisation similar to the World Anti-Doping Agency should be set up to combat corruption in sport related to betting.

Andy Brown

 


Wednesday, September 16, 2009

DCMS & Professional Players Federation To Speak At WSLR Event

The UK Government’s Department for Culture, Media and Sport and the Professional Players Federation will join a stellar line up that includes UEFA, the British Horseracing Authority, the European Sports Security Association and more for Sports, Betting & Sponsorship, a World Sports Law Report briefing to be held at the London offices of Berwin Leighton Paisner on 25 September.

 

In what is set to be an interesting session, Simon Barker, a Director of the Professional Players Federation, will speak alongside UEFA’s Head of Disciplinary Services, Peter Limacher, about how integrity panels can help police against suspicious betting. As the Professional Players Federation represents many of the largest player associations in the UK, Barker will provide the view of professional athletes on the use of integrity panels, in contrast to the sporting federation’s view, provided by Limacher.

 

Henry Burgess, Head of International Sport at the Department for Culture, Media & Sport will join a panel session considering whether an organisation similar to the World Anti-Doping Agency – which policies against illegal doping – should be set up to combat corruption due to betting.

 

To view the full programme for the day, click here, or contact Erika Joyce for more information. Hope to see you there!

 

Andy Brown

 


Tuesday, August 04, 2009

FAPL can claim US damages for live broadcasts

The Football Association Premier League (FAPL) has yet to decide whether it will pursue statutory damages, after it won the right to claim them from YouTube for broadcasting its live games. In a 7 July ruling, a US district court said that FAPL could claim statutory damages under the 'live broadcast exemption' of the Copyright Act. The exemption entitles FAPL to claim up to $150,000 per work infringed.
The full version of this article appears in the August edition of World Sports Law Report.

 


Tuesday, June 09, 2009

FIFA, CAS, FIFPro & Premier League To Address WSLR Player Issues: Contracts & Regulations Briefing

FIFA, the Court of Arbitration for Sport, the FA Premier League, FIFPro and more will address World Sports Law Report’s second Player Issues: Contracts & Regulations full-day briefing, which will be hosted at the London offices of Hammonds LLP on 1 July.

Mariana Jonsson, Group Leader and Legal Counsel for FIFA; Mike Forde, Performance Director at Chelsea FC; James MacDougall, European and International Officer with the Central Council for Physical Recreation (CCPR) and Stephen Sampson, Partner, Hammonds LLP will address the identification of young talent and measures tackling the international transfer of minors.

Stephan Netzle, an Arbitrator with the Court of Arbitration for Sport; Theo van Seggelen and Wil van Megen of FIFPro and Peter Limbert of Hammonds LLP will examine compensation in football – in particular, the Matuzalem and Webster rulings.

Jane Purdon, Company Secretary for the FA Premier League; Mariana Jonsson from FIFA and Rodrigo Garcia of Spanish sports law experts Cuatrecasas will examine third party ownership in sport.

Other speakers will include Professor Ulrich Battis, co-author of the controversial Institute for European Affairs report backing FIFA’s ‘6+5’ proposal, which limits the amount of overseas players that clubs can sign. The proposal has recently received the backing of FIFA’s Congress. Ian Smith, Legal Director for the Professional Cricketers’ Association will also explain the International Cricket Council’s difficulties in policing new unauthorised forms of cricket.

For a full programme, click here and for more information, contact Erika Joyce on +44 (0)20 7012 1383.

 


Wednesday, May 27, 2009

Foot Anstey Sports Law Conference

Foot Anstey Solicitors is organising a Sports Law Conference based at their offices in Plymouth, with proceeds dedicated to Childen's Hospice South West, who provide the only hospice care in the South West for children with life-limiting conditions. The programme will include:
• The World Anti-Doping Code: considering its implications;
• Securing and Managing Sponsorship in the Credit Crunch: protecting your name and brand;
• Dealing with On-Field and Off-Field Incidents;
• Child Protection Issues: a review of the current law;
• When Tax Gets Taxing: tips for the sporting sector.
World Sports Law Report is proud to count itself as a supporter of this conference. For more information on speakers and a full conference programme, click here.
 


Thursday, April 16, 2009

Premier Rugby and the PFA to speak at Credit Crunch Briefing

 Jon Varney of Premier Rugby and Nick Cusack from the Professional Footballers’ Association will speak at The Credit Crunch: Implications for Sport, a World Sports Law Report full-day briefing to be held at the London offices of K&L Gates on 8 May.

The global recession has hit financial institutions - one of the main benefactors for top level sport - especially hard. It has also resulted in the public cutting back on luxuries and for many, sport is an expensive luxury – this has been illustrated by many clubs freezing ticket prices in an attempt to halt attendance decline. The recession follows a financially tough season for domestic rugby union, which took place in 2007 despite players and fans decamping to France for the Rugby World Cup.

Football is also more than £3 million in debt, according to Lord Triesman, Chairman of the Football Association. UEFA is considering amending its club licensing system to stop clubs amassing unacceptable levels of debt. Many clubs began the 2008/9 season without a sponsor and many clubs are facing administration due to financial difficulties – the latest being Southampton, whose parent company went into administration recently.

Our Briefing will examine issues that sport will have to deal with due to the recession, such as restructuring of sponsorship and player contracts; methods of coping with declining revenue; the impact that the current economic climate has had on London 2012; maximising media revenue through combating piracy; impact on club investment and more.

In the spirit of the Briefing, we are also offering a £100 discount on the usual price of attendance, plus additional delegates can attend for £100 each.

For a full programme and a list of speakers, please visit our site, or contact Erika Joyce on +44(0)20 7012 1383.


Tuesday, December 23, 2008

Briefing in Nice on the Specificity of Sport

 The Sports Law Centre at the University of Nice Sophia-Antipolis is organising a briefing on 16 January in Nice about the ‘specificity of sport’. The aim of this briefing is to analyse the notion of specificity of sports in order to justify a particular legal treatment of sports activities.


Speakers include Frédéric Thiriez, President of the Ligue de Football Professionnel; Patrick Baumann, Secretary General of the international basketball federation (FIBA); Jérôme Champagne, FIFA’s Director of International Relations; Jonathan Hill, UEFA’s Director of European Affairs. Delegates include: FIFA, UEFA, FIBA, the French Basket-Ball Federation, law firms and more.

For more information, including a full programme, click here or send an e-mail to Marc Peltier, Director of the Sports Law Centre.


Monday, December 22, 2008

2009: Sports Law Predictions

Readers of World Sports Law Report will know that the journal features insightful - and sometimes exclusive - news articles, plus features examining current issues in sports law written by expert lawyers. However, at Christmas time - after a few mince pies and a glass of sherry - we decide to do something different and ask the esteemed members of our editorial board to make predictions about what the main issues facing sports lawyers will be during the coming year.

This year, I decided to have a go myself, however as our editorial board supplied more than enough predictions to include in the print journal, I decided to omit mine. So here they are:

The global recession will hit expensive luxury products especially hard, and for many, football is an expensive luxury product. We have already seen empty seats and blank jerseys this season, as the financial supporters of the beautiful game cut back on luxuries. However, football fans are loyal and will find new, cheaper, methods of consumption. 2009 is perhaps a bit early for the Premier League to adjust its tried and tested rights model to accommodate the increasing threat that free (illegal) internet coverage presents, however it is expected that smaller sporting clubs and organisations will adopt increasingly innovative methods of getting bums on seats and cash in banks.

Sport is already considering how it can generate revenue from betting – which is predicted to be less affected by the economic downturn than other economic areas – and much debate will ensue over whether event organisers can sell a ‘right to bet’ to operators keen to offer odds on events. Corruption in sport will continue to follow the same road as doping in sport, and whether an organisation similar to the World Anti-Doping Agency (WADA) should be set up to police this area will attract serious debate.

The protection of the privacy of athletes under the revised WADA Code will also attract further examination at a regulatory level. Finally, I predict - and hope - that World Sports Law Report will continue to stay ahead of the pack in reporting on all of these developments.

I think that about sums it up, however it was interesting to note that Gareth Southgate made similar predictions about a recession hitting football following my considerations on what the major issues would be. As manager of a club in an industrial city without a rich overseas benefactor, Southgate should be acutely aware of any approaching ‘football recession’.

December’s edition of World Sports Law Report – which is now available on our internet site – contains predictions from Luca Ferrari of Studio LCA in Milan; Richard McLaren of the University of Western Ontario; Mike Morgan of Hammonds; David Zeffman of Olswang; and Michael Stirling of Field Fisher Waterhouse LLP. They provide an interesting insight into where sport may be heading in 2009. One thing that is certain – recession or boom – is that people will continue to play and support sport and with that thought in mind, have a Merry Christmas and a Happy New Year!

Andy Brown

Friday, October 17, 2008

Tackling Doping In Sport: IOC, UK Sport & Dwain Chambers

Howard Stupp, the International Olympic Committee's (IOC) Director of Legal Affairs and Andy Parkinson, UK Sport's Acting Director of Drug Free Sport will be available at Tackling Doping in Sport to discuss the IOC's recent decision to re-test samples taken at the Beijing 2008 Olympic Games for CERA - a form of EPO used for blood doping.

Jonathan Crystal, Barrister for Dwain Chambers, will provide a case study. Sprinter Dwain Chambers will also attend.

Jonathan Harris, Anti-Doping Manager for the London Organising Committee for the Olympic Games, will also provide an overview of plans to tackle doping at London 2012.

The Briefing, to be held at the London Offices of Charles Russell LLP on 22 October, will also discuss how the new version of the World Anti-Doping Code, which comes into effect from 1 January, will allow sporting organisations to implement a four-year maximum ban for intentional doping, rather than the current two-year maximum.

Delegates include: FIFA, the England & Wales Cricket Board, the British Equestrian Federation, the Amateur Swimming Association, UK Athletics, the Royal Yachting Association and, of course, numerous law firms. For more information, including a full programme, click here.

 Andy Brown


Tuesday, August 14, 2007

Cardiff’s Financial Backers Seek Return of £30 Million

Peter Ridsdale, former Leeds United Chairman, is in financially choppy waters again. Langston, the financial backers of Cardiff City, have instructed Hextalls to commence proceedings against the club (which Ridsdale now chairs) to recover funds which ‘amount to more than £30 million’, according to Hextalls.

A press release issued by Hextalls says that Langston is alleging that the Football League Championship club has failed to meet deadlines and has breached the terms of its loan agreement, in respect of the capital sum plus interest.

‘Our client has serious and increasing concerns about the club’s present administration and its ability to manage the club’s financial affairs’, reads the release. ‘In the event that the club cannot meet its liabilities to our client, then the alternative is for the current Board of Directors to resign and our client endorse the appointment of a new Board and new management. The club’s board has also been advised by us that its recently submitted accounts do not reflect its true financial position. Clubs are, of course, governed by the Football League concerning their solvency and (as has recently been seen in the case of Leeds United FC) circumstances can arise causing a 10-point deduction’.

The release accuses Ridsdale of ignoring communications regarding the seriousness of the financial situation, including a final warning giving ten days in which to respond, issued 2 August. Peter Ridsdale is currently completing his book, which is expected to reveal some of the excesses that led to the financial collapse of Leeds United. It had better sell well…

Andy Brown


Thursday, July 19, 2007

Excellent Debate on Sheffield United’s ‘Appeal’

An excellent open debate was held yesterday evening by the British Association for Sport and Law, entitled ‘From registration to relegation…the twists and turns of the Premier League, West Ham, Sheffield United saga’. A number of interesting points were raised.

It was agreed that West Ham’s main offence was the breach of its ‘good faith’ requirement under FA Premier League rule B13, as it had not told the League the truth. It was suggested that West Ham’s arrangements to bring Carlos Tevez and Javier Mascherano to the club were not very different from loan agreements, which could be judged to be in breach of FA Premier League rule U18, which prevents clubs singing contracts which enable another party to ‘materially influence’ the policy or performance of teams.

It was pointed out that in loan agreements, it is often the case that clubs agree that a player should not take part in Cup games and that in the case of player transfers, it has been known that the selling club has agreed to pay a player’s wages for a period even after they have been sold. This could be judged to be materially influencing the performance of the team.

Another good point raised was that given that the Arbitration Panel judgment appeared to agree that Scott Duxbury and Paul Aldridge had acted improperly, why had action not been taken against them? In response, a possible reason was that this action may have had little chance of success due to a lack of reliable evidence.

One panellist raised a thorny issue, arguing that the case highlights that sport is not fit to govern itself, as we know little about the people involved in bringing star players to our clubs, or, indeed, buying them clubs. It was suggested that the Premier League should re-examine sports governance in the US. Thankfully, the European Commission’s attempt to set out sport’s ability to self-govern in its White Paper on Sport was not brought up, although cases such as this cannot help sport’s case for autonomy of governance.

 Andy Brown