The Commercial Court has ruled that Pakistani international bowler, Danish Kaneria's appeal proceedings against his life time ban for involvement in spot-fixing under the ECB's Disciplinary Regulations are an 'arbitration' for the purposes of the Arbitration Act 1996. The decision is a momentous one for sports' lawyers and governing bodies, not least in terms of the Court's supervisory role over sporting bodies' disciplinary procedures and the ability to rely on a Court to entertain appeals from, and make ancillary orders in support of, those processes.

In England and Wales Cricket Board Limited v Kaneria [2013] EWHC 1074 (Comm), the ECB sought a witness summons to compel its main witness, the cricketer Mervyn Westfield to attend the appeal hearing and give evidence. The summons was sought under s.43 of the Arbitration Act on the basis that the appeal proceedings constituted an arbitration; this was contested by lawyers acting for Mr Kaneria. The sole question for the Commercial Court was whether the appeal proceedings constituted an arbitration under the Act.

Unlike in some other notable cases (e.g. Stretford v The Football Association [2007] EWCA Civ 238) nowhere in the ECB's disciplinary regulations were its procedures described as an "arbitration", and there was no written agreement that used the word arbitration. Furthermore, the regulations described the ECB as "prosecutor" and the player as the 'accused'. Mr Kaneria argued that they were internal disciplinary proceedings and not an arbitration.

Mr Justice Cooke found that the characterisation of the appeal proceedings could only be that of arbitration on the one hand or internal disciplinary procedure on the other. It was in this context that Mr Kaneria's arguments about the 'ouster of the court's jurisdiction' were considered. If the appeal proceedings constituted an arbitration then remedies for serious irregularity and rights of appeal or recourse to the court were expressly governed by the Arbitration Act, in particular, sections 67 to 69. Whereas, if they were merely internal disciplinary proceedings, then the court could only intervene if there was either a breach of human rights, a breach of contract or if 'some form of judicial review was found to be available' (such as applied in the decision in Bradley v The Jockey Club [2005] EWCA Civ 1056).

The Court applied the test set out in dicta of Thomas J in Walkinshaw v Diniz [2000] 2 All ER (Comm) 237 that asked whether the procedure was one that in substance sought to determine legal rights and obligations of the parties judicially, with binding effect, enforceable in law, thus reflecting in private proceedings the role of a civil court of law. Applying the factors set out in Walkinshaw, Cooke J. found that

• the parties to the appeal were afforded a proper opportunity of putting their case, not least as the appeal hearing was a complete re-hearing;
• there were no unilateral communications between the parties and the arbitrators;
• the parties had the right to call witnesses and present evidence;
• the decision of the appeal panel was final - there was no further appeal;
• the proceedings contemplated that they be carried out between the parties whose substantive rights were determined by them;
• the jurisdiction of the appeal panel derived from the consent of the parties, by means of the ECB's Regulations which Mr Kaneria accepted when he signed the required undertaking of a cricketer, and he himself had brought the appeal;
• the constitution of the Appeal panel was chosen by a method to which the parties had consented, that is the ECB's disciplinary regulations;
• those regulations provided that the Appeal panel be impartial between the parties - and it was independent from the ECB "prosecution";
• the Appeal panel's decision was intended to be enforceable in law; and
• the regulations provided that the Appeal panel make a decision on a dispute already formulated at the time.

Mr Kaneria had argued that the Appeal Panel was not truly independent because, amongst other things, it contained people associated with the sport of cricket and not just independent lawyers and, moreover, it was appointed by the Chairman of the disciplinary panel. These arguments were rejected. There was a distinction between the ECB as prosecutor and the Appeal Panel which was appointed by an independent QC and contained lawyers. The fact that some members of the Appeal Panel had links with cricket was thought to be beneficial, and it did not mean they could not be impartial. In any event, importantly, Cooke J noted that the real issue was one of impartiality and not independence (although the latter may give rise to the former).

Mr Kaneria's argument that the proceedings were not an arbitration because the word arbitration was not used in the regulations (but words like 'prosecution' were) was rejected. The Commercial Court is used to seeing agreements that amount to arbitration agreements although informally worded. The court looked at the substance of the agreement (here, the regulations) and not the labels the parties used or failed to use to describe them.

Mr Kaneria argued that according to Stretford there had to be 'a clear and unequivocal agreement to arbitrate' in particular because an arbitration involved a waiver of the right to a public hearing under Article 6 of the Convention. But the Court found nothing in these points. Mr Kaneria had agreed to be bound by the ECB rules and regulations and was aware of the disciplinary and appeal procedures. There was no provision that the disciplinary proceedings be held in public and nor was there an expectation that they would be. Indeed Mr Kaneria had never requested that they be. It did not matter whether the proceedings were 'internal disciplinary proceedings' (and subject to Bradley type review) or an arbitration - in either case they would have been held in private.

The decision may put to an end to the debate about whether properly constituted sports disciplinary procedures constitute an arbitration or just internal procedures subject to Bradley type review (and the Court noted that in Bradley two members of the tribunal were Jockey Club members and no one even thought to argue the proceedings were arbitral).

However, this does not mean all disciplinary procedures will inevitably be arbitrations. They are unlikely to be unless they at least satisfy the test set out in Walkinshaw.

There are at least 10 key considerations arising from the decision:

1. Whether or not a disciplinary procedure is an arbitration does not depend on the use of the word in the rules, but the substance of the procedure.

2. Whilst formal independence between the "prosecutor" and the disciplinary panel is not stricly necessary, it will often be important to establish impartiality of the panel; so will the fact that it has some legal/judicial experience.

3. Disciplinary proceedings should contain procedural safeguards that allow both parties to fairly put forward their case, call and challenge evidence etc.

4. It is possible (and was contemplated in Kaneria) for a disciplinary procedure not be an arbitration (because it lacks the necessary legal safeguards) but for an appeal procedure arising out of it to be one - this may be of important practical benefit for sports governing bodies who wish to have a more efficient and less "legalistic" first stage disciplinary procedure but nevertheless seek finality by having an appeal process in the nature of an arbitration.

5. The much trumpeted expansion of the Bradley jurisdiction in some quarters may now be silenced. Although it is likely that some disciplinary bodies' procedures, lacking appropriate legal safeguards, shall not constitute arbitrations and will thus still be subject to the court's supervisory review powers under the Bradley jurisdiction.

6. But in many respects there may be little distinction between the courts' power to review under Bradley principles and under the Arbitration Act - both routes contain important procedural safeguards and in both the bar for an "appeal" is very high.

7. There are a number of advantages for sports bodies in their disciplinary procedures being arbitrations, in particular confidentiality, finality of proceedings and the ability to obtain ancillary orders from the court.

8. Some of these advantages may also be utilised by the athlete. On the other hand the obvious "disadvantage" to the athelete is that, save for an error of law or procedural irrelularity, if the disciplinary proceding is an arbitration he has noweher else to go afterwards.

9. So far as the availability of ancillary orders is concerned, there are a wealth of orders that parties to an arbitration may wish to apply to the Court for, for example, enforcing compliance with a preliminary decision of the disciplinary tribunal (s.42 of the Arbitration Act), obtaining a witness summons (s.43, as applied in the Kaneria case); enforcing compliance with costs orders and the making of any other orders in support of the arbitration a court could make (in exceptional cases including search and freezing orders) (s.44), and applying to the court for a preliminary determination of law (section 45).

10. Lawyers acting in sports disciplinary cases, (whether for athlete or governing body) need to be familiar with the structure of the Arbitration Act so they can advise on rights to appeal under it and other procedural challenges that can be made.

Nick de Marco
Barrister
Blackstone Chambers, London
nickdemarco@blackstonechambers.com

This article was originally published here on the Blackstone Chambers Sports Law Bulletin blog.
Ian Mill QC and Nick De Marco represented the ECB in the Kaneria case.
The full judgment in the case can be found here

Following the release of the Australian Crime Commission report in February 2013, the Australian Sports Anti-Doping Authority (ASADA) has commenced investigations into doping in Australia's National Rugby League (NRL), as well as the Australian Football League (AFL). Although these investigations have received wide spread media attention, there has been considerable uncertainty as to how these investigations will be conducted and the powers of ASADA generally.

What is ASADA?

ASADA was established in 2006 and power is conferred on it by the ?Australian Sports Anti-Doping Authority Act 2006 (Cth).

Some of ASADA's functions include:

• establishing a National Anti-Doping scheme (NAD Scheme);
• compliance with World Anti-Doping Code (WADA Code); and
• ensuring that sports administration bodies adopt anti-doping policies that comply with the NAD Scheme and the WADA Code.

ASADA and the relationship with the NRL

The NRL implements an Anti-Doping Policy of the Australian Rugby League Commission, which explicitly adopts the WADA Code and the National Anti-Doping (NAD) scheme. The policy is reviewed annually to ensure it remains Code compliant with the requirements of both the WADA Code and ASADA. ASADA has the power to advise the NRL to issue notice of an alleged breach of the NRL Anti-Doping Policy. The notice must set out the player's options in accepting a nominated penalty under the WADA Code or proceeding to a hearing before the NRL Anti-Doping Tribunal.

What breaches are currently being investigated?

As the investigation is being conducted confidentially, it is difficult to know the substance of the allegations. However, at this stage, it appears that the investigation relates to breaches of the NRL Anti-Doping Policy and does not extend into criminal sanctions.

The primary breaches being investigated arise out of Article 2.1 of the WADA Code, which provides that the presence of a 'Prohibited Substance' will constitute an anti-doping rule violation. This is a strict liability offence. In relation to what constitutes a Prohibited Substance, the World Anti-Doping Agency (WADA) publishes a prohibited list annually.

Further anti-doping rule violations include:

• refusing to submit a sample (Article 2.3);
• tampering with a sample (Article 2.5);
• possession of Prohibited Substances (Article 2.6);
• trafficking or attempted trafficking of Prohibited Substances (Article 2.7); and
• assisting in or covering up anti-doping violations (Article 2.8).

Burden and standard of proof

The NRL's Anti-Doping Policy adopts Article 3 of the WADA Code, which provides that the relevant Anti-Doping Organisation (in this case, ASADA) has the burden of proof in establishing that a violation has occurred. This must be proved to the 'comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation made'. The standard is greater than the balance of probabilities, but does not require an offence to be proved beyond reasonable doubt.

What penalties can be imposed?

For Prohibited Substances, the WADA Code imposes a period of ineligibility of two years for a first offence and a lifetime ban for subsequent offences. There is a suggestion that ASADA is offering a reduced six-month suspension for any players that confess to administering banned substances. However, Article 10.5.3 of the WADA Code only allows for the 75% reduction in the ineligibility period in circumstances where 'substantial assistance' is provided to the investigations, which would require a player to disclose information that leads to other anti-doping violations being discovered. Admitting their own guilt alone would not be enough.

The timing of any admission is also important. Were a player to admit to their own anti-doping violation before ASADA is to that point aware of the breach, the standard two-year penalty can be reduced by up to 50%. This only applies where the player comes forward voluntarily and not in circumstances where the player knows that they are about to be caught in any event.

The NRL's Anti-Doping Policy provides that if more than two members of a team are found to have committed an anti-doping rule violation, the NRL shall impose an appropriate sanction on the team, such as loss of points or disqualification, in addition to the sanctions imposed on the individual. This is derived from Article 11 of the WADA Code.

Are there any defences available and what must players and clubs do to comply?

The following defences can be raised. However, some defences are only partial defences or will lead to a reduction in sentence.

1. No fault or negligence - If a player can establish that they could not reasonably have known or suspected that they had used or been administered the Prohibited Substance then no suspension will apply. It is a completely exculpatory defence, but is extremely difficult to prove and requires the player to admit the presence of the drug in their system.

2. No significant fault or negligence - Sanctions may be reduced by up to 50% where a player demonstrates that they bear no significant fault or negligence. Again, if the player wishes to use this defence, there must be an admission that the substance was in their system.

3. Substantial assistance - This was referred to above and requires a player to provide full disclosure of all information that leads to the discovery of an anti-doping violation by another person. Factors to be considered include the number of individuals implicated, the status of those individuals in the NRL and the seriousness of the violation.

4. Therapeutic use - Athletes with documented medical conditions may request a therapeutic use exemption. However, this must be requested within 21 days of becoming aware of the medical condition and therefore is unlikely to apply to the investigations involving the NRL.

In addition to the specific defences available under the WADA Code, athletes have previously alleged failures in the process arising out of issues such as lack of procedural fairness, or defects in the evidence against them. Sections 102 and 103 of the NRL Anti-Doping Policy require all players and other interested parties, including coaches, trainers and agents, to co-operate with any ASADA investigation. The scope of this obligation is currently the subject of debate and has held up the current investigation after the completion of only one interview.

Although all parties have an expressed a desire to complete the investigation as quickly as possible, the potential consequences of the investigation are very serious and further issues will undoubtedly arise.

Brendan Hoffman Partner
Gadens Lawyers, Sydney
bhoffman@nsw.gadens.com.au

This article was originally published on Gadens Lawyers' internet site here: http://tinyurl.com/bw6ton2

The body representing all of Australia's commercial free-to-air television broadcasters, Free TV Australia (Free TV), has released its proposed amendments to the Commercial Television Industry Code (Code). The amendments, which are supported by the Government and commercial and subscription broadcasters, aim to reduce and control the promotion of live odds during sports broadcasts.

Promotion of live odds by commentators

Commentators will be the most impacted by the amendments, which restrict the promotion of live odds by commentators at certain times before, during and after play. In particular, the proposed amendments prohibit commentators and their guests from promoting live odds as part of a broadcast of a live sporting event:

• At any time during play.
• During scheduled breaks (e.g. half time in a match).
• During unscheduled breaks (e.g. when play is suspended due to rain).
• 30 minutes before play commences.
• 30 minutes after play has concluded.

Promotion of live odds by other persons

The promotion of live odds will be permitted, where the promotion is an advertisement or clearly identified sponsorship segment, delivered by a person other than a commentator:

• Before play commences.
• During schedules breaks.
• During unscheduled breaks.
• After play.

Rules for the promotion of live odds

The proposed changes, require that a promotion for live odds contains, or concludes with, a responsible gambling message. The proposed changes also prohibit the promotion of live odds that 'are directed at children', that 'portray live odds betting as a family activity', that 'promote betting on live odds as a way to success or achievement' or that 'associate a bet on live odds with alcohol'.

What the changes will not cover

The changes do not restrict promotion of live odds for other sports events occurring live at the same time. The changes will also not apply to commercials or sponsorships relating to gambling or betting organisations that appear during a live sporting event, as long as there is no specific reference to live odds relating to the sports event being broadcast. The ban does not cover live sporting events that consist of horse, harness or greyhound racing.
The Code will not cover contracts entered into before 27 May 2011. The proposed amendments to the Code are available for public consultation until 20 May 2013.

Judith Miller Partner
DLA Piper Australia
judith.miller@dlapiper.com

This article originally appeared on DLA Piper's Sports Law Blog, at http://tinyurl.com/dxbbnmf

The use of polygraph or lie detector evidence in sports law cases has been much debated. Given that evidence beyond adverse analytical findings is being used more frequently to prove doping violations pursuant to the World Anti-Doping Code, there are calls for the use of such evidence, both to prove cases against and to exonerate athletes accused of doping. In cricket, in a bid to fight corruption, Steve Waugh, ex Australian captain, has led calls for the use of lie detectors. He 'convincingly' passed a test to 'demonstrate' that he had never been involved in match fixing. The Marylebone Cricket Club released a statement: 'The World Cricket Committee accepts that the use of polygraph tests is a sensitive subject, but their potential use should now be widely debated in the game'.

There is considerable disagreement as to the accuracy of polygraph testing. Claims as to its reliability seem to range from 60 - 95% accuracy. In the case of Alberto Contador at the Court of Arbitration for Sport (CAS), the Panel heard evidence from two leading professors who suggested an accuracy of 95% with 5% false positives i.e. people said to be lying who were not, in fact. Nonetheless there must always be a degree of self-interest in assessing the validity and value of one's own expertise.

In the UK, polygraph evidence is not used in courts, but it has begun to impact upon other legal procedures. The use of lie detector tests for certain criminals, subject to licence conditions, has been legalised and sex offenders can now be assessed for release based in part on such investigations. Polygraph evidence is used in criminal proceedings in some US States, although it is often said that the role of the jury in deciding the truth should not be usurped by scientific devices and the like.

The polygraph measures a person's physiological responses (e.g. pulse, respiration, blood flow etc.). The theory is that a person's natural fear of being caught out in a lie will result in increased physiological responses when answering the relevant questions as opposed to when answering the control questions.

Opponents of the testing suggest that it can be defeated in a number of ways including by the adoption of 'counter measures' (such as the use of drugs and hypnosis) to reduce the variance in physiological response, but also by the self-infliction of pain to derail the control response. Indeed, a statement from Lance Armstrong's lawyer in 2012 said that the cyclist would be willing to take such a test to prove his innocence suggests that he was massively confident of successfully defeating it. Armstrong's nemesis, Tyler Hamilton, even admits in his book 'The Secret Race' to having beaten the lie detector machine.

The position of CAS with regard to the admissibility of this type of evidence has shifted. In 2008, the Swiss athlete Daubney sought to rely upon a successful polygraph test to prove his innocence of knowingly taking cocaine. CAS ruled that such evidence ws inadmissible under Swiss law and, accordingly, any statement made to the expert by Daubney was purely admissible as a personal declaration. The expert scientific evidence was not admissible. Subsequently in the case of Alberto Contador, he successfully argued that, pursuant to WADC Article 3.2, 'facts relating to an anti-doping violation may be established by any reliable means' which had not been in force at the time of Daubney, led to such evidence being admissible. The admissibility was not challenged by the other parties. CAS ruled that the evidence added 'some force' to Contador's 'declarations of innocence, but do not, by nature, trump other elements of the evidence'.

The Chinese judoka Tong Wen also sought to rely upon polygraph evidence at CAS. Both Wen and Contador were represented by Mike Morgan of Squire Sanders. The Respondent objected, but CAS did not ultimately make any finding about this aspect of her case. They ruled that the Respondent had not proved the doping violation because the B sample had been tested without the athlete being present and, accordingly, the adverse analytical finding was inadmissible.

Mike Morgan has reportedly made the point that such evidence should only be admissible where the athlete has consented to the procedure. Compulsion to take the test is, he argues, likely to skew the results of the test and accordingly render it unreliable in any event.

It is therefore more than likely that this type of evidence will prove more useful - but to a limited degree - to the accused athlete, rather than the prosecuting authority.

Phil Gibbs, Barrister
KCH Garden Square, Leicester
pgibbs@kchgardensquare.co.uk

This article was originally published on Phil's sports law blog, http://gibbsbarrister.blogspot.co.uk/

An Italian sports psychologist has filed a claim with the British Columbia Supreme Court, claiming that the Vancouver Canucks are responsible for damages relating to wrongful dismissal and mental distress.

The psychologist, Mr. Demichelis, claims that the Vancouver Canucks and co-owner Mr. Aquilini induced him to leave his employment with the Chelsea Football Club in the United Kingdom and to work for the Vancouver Canucks in Vancouver.

Mr. Demichelis claims that he initially declined the Canucks offer of employment but that he later accepted it after sustained efforts on the part of Mr. Aquilini and the team. Mr. Demichelis specifically states that the Vancouver Canucks stated to him that he was the person the Canucks needed to improve the players' physical and psychological well-being. Mr. Demichelis also claims that he was told that his expertise was essential to winning the Stanley Cup.

Mr. Demichelis further alleges that he agreed to a two year contract with the Canucks starting July 2012 for a salary of $700,000, along with a signing bonus of $400,000. He also states that the Canucks agreed to market Mr. Demichelis' expertise to other professional clubs in North America.

Mr. Demichelis was told in December 2012 that his employment would end at the end of January 2013. He claims that the club explained to him that, as part of the process of trying to secure him a work permit, they found Canadians that were able to fulfill the requirements of his role.

Mr. Demichelis claims that he has suffered significant damages in part because he gave up his employment in the United Kingdom and moved his family to Vancouver.

The Vancouver Canucks have yet to file a Statement of Defence.

What does this mean for employers?

This case demonstrates the potential pitfalls in the employment of foreigners. In particular, employers can face significant liability when disputes arise from the hiring and/or employment of temporary foreign workers. This issue is becoming increasing commonplace in large part because of the exponential growth in the number of temporary foreign workers in Canada. There are now approximately 250,000 individuals entering Canada on an annual basis under a temporary work permit, and 500,000 temporary foreign workers in the country at any given time.

Employers should accordingly ensure that they receive adequate employment and immigration advice to ensure that all matters relating to the hiring of foreign workers are addressed adequately and in a seamless fashion. This can help to ensure that employers are in the best position to defend against claims should disputes arise.

Sharaf Sultan
Associate
Heenan Blaikie LLP
ssultan@heenan.ca

This article was originally published on the Heenan Blaikie website here

There have been a number of significant developments in the ongoing battle against match-fixing this month. However, what is interesting about them is how well they illustrate the lack of a coordinated approach to tackling match-fixing. All the different bodies involved are operating in silos, rather than talking to each other.

Europol revealed details of a large-scale investigation into match-fixing. FIFA pointed out that many of the cases revealed by Europol have been dealt with - it has its Early Warning System GmbH to help with this - and launched a website for whistleblowers with information on corruption. Interpol held a conference on match-fixing that illustrated how law enforcement needs to cooperate to tackle match-fixing, yet has made no concrete moves towards this itself. Legislators drew up new plans to regulate operators on the premise of protecting consumers from corruption. Gambling operators bemoaned attempts to further regulate them, yet also complained about lack of consultation with regards to attempts to tackle match-fixing.

This may sound strange coming from the Editor of World Sports Law Report, but sport is unique as a legal discipline in that a debate exists as to whether 'sports law' exists at all, or whether sport is simply governed under a number of established legal disciplines. As with all legal disciplines, sport is regulated through criminal and civil law, but also through the various rules of international federations and national associations that govern different sports. Tradition dictates that sports organisations regulate on a national level with loose international governance. The European Commission has even recognised that sport regulations can have 'special characteristics' which might fall outside of normal law in its White Paper on Sport.

The number of bodies involved in regulating sport is therefore huge. As there is nothing connecting them, they all operate under their own codes and traditions. They are also interact with civil and criminal law, and the bodies involved with policing that area. This situation might be described as a 'lacuna', and goes some way to explaining why sport has failed to get to grips with tackling match-fixing.

This is why initiatives such as the International Olympic Committee and Council of Europe initiatives against match-fixing are so important. Somebody needs to take control of the process and set guidelines as to how all the bodies involved should interact together to regulate an international problem such as match-fixing. As pointed out by the European Sports Security Association in this edition, if sport wants to continue to exist in parallel with the normal rules of law, then it needs to get its house in order before somebody else does it for them.

Andy Brown

Cairos Technologies AG today became the third company licensed by FIFA as a Goal-Line Technology (GLT) provider, after agreements were signed with Hawk-Eye and GoalRef in November last year. FIFA has also launched a tender for these three companies to bid to become official GLT provider for the FIFA Confederations Cup 2013 and 2014 FIFA World Cup, both of which will be held in Brazil.

FIFA was initially opposed to GLT, however changed its tune in Summer 2010. It was widely reported as a u-turn by football's governing body, however as regular readers of this blog will know, I believe that FIFA has played a far cleverer game. When announcing its approval for the Hawk-Eye and GoalRef systems, the International Football Association Board (IFAB) 'was keen to stress that technology will only be utilised for the goal-line and no other areas of the game'. This statement kills any other attempts to use technology to make football fairer stone dead.

FIFA could have utilised the big screens now present in nearly every professional stadium for referees to instantly review any goal-line situation, as fans watching on TV do. This would have been a cheaper solution to the problem, but one that FIFA chose not to use. Why? Because FIFA can't generate money from technology that already exists in football, but companies providing new technology will be happy to pay FIFA.

This financial motive is underlined by page 3 of FIFA's 'Application as a Licensee for GLT' document, which reads: 'The FIFA licensing scheme for goal-line technology offers two options to licensees: a non-commercial option containing the authorisation to install licensee's goal-line-technology systems worldwide which can be used in official matches, and a commercial option which additionally provides the licensee with certain marketing rights in relation to the FIFA quality programme for goal line technology to communicate its status globally as an official FIFA licensee for goal-line technology. Both options are presented by FIFA to the applicant at the initial meeting. An administration fee is payable by all licensees which contributes to the expenses incurred for the licensing/certification and registration of goal-line technology systems and installations. In addition, where the commercial option is taken, a licence fee will also be due.'

This is why I am sceptical of suggestions that FIFA has 'seen the light' regarding GLT use in football. FIFA is a shrewd commercial operator and I believe that its so-called 'u-turn' on GLT is a licensing exercise to make money. As I have stated before, GLT will only make football marginally fairer. During the 2010/11 FA Premier League season, just four incorrect goal-line decisions were logged, compared to 151 incorrect decisions on goals related to the offside rule. The evidence for this is here.

If the introduction of technology into football was about making football fairer, a better solution would be to use TV replays. Both rugby codes manage this without ruining the flow of the game, however if the football authorities are worried about this, perhaps a system similar to that used in cricket - where players are allowed to seek reviews of a decision - could be used. Football is faster flowing than cricket, so I would advocate a system where the Captain of each team is allowed to refer three decisions per game to the video referee. This would be a better solution than GLT and would also be cheaper. However it won't make money for football, so FIFA and the IFAB have ensured it will never be introduced.

Andy Brown

The jury is still out on whether Lance Armstrong is playing a clever game. As was pointed out by Anti-Doping Denmark following Michael Rasmussen's subsequent confession to doping, Armstrong decided against confessing to anti-doping authorities, instead choosing the medium of a TV interview. In terms of the way that the anti-doping community normally operates, he has yet to 'confess' to doping.

Armstrong chose not to contest USADA's evidence against him in an arbitration hearing, after a Texas Court granted USADA's motion to dismiss his appeal against the charges. This was despite the judgment stating that arbitration is the correct forum for the issues around USADA's evidence relying on witness testimony to be discussed. 'The deficiency of USADA's charging document is of serious constitutional concern', reads the judgment. 'It appears USADA's evidence will revolve more around eyewitness testimony than lab results. The Court must presume the arbitration panel will discount the weight of those results to the extent it finds them unreliable or unpersuasive. Armstrong will be able to call into question the reliability of any witness testimony, by affidavit or otherwise, that was not subject to cross-examination'.

Yet despite this, Armstrong chose a TV interview over arbitration and did not call the evidence into question. Unsurprisingly, Oprah Winfrey did not press Armstrong on this crucial issue.

As pointed out by Kris Lines and Jon Heshka in this issue of World Sports Law Report, USADA has acted as 'judge, jury and executioner' so far in the Armstrong case. The evidence against him has not been independently examined by any authority, let alone a court of law. He has not even confessed, as such. All we have is that he says he doped in winning his seven Tour de France titles, but "the last time I crossed that line" was in 2005.

It is important that Armstrong has put a time limit on his doping activities, despite USADA's evidence suggesting he was doping as late as 2010. He has publicly stated that he wants his lifetime ban reduced to eight years, which means he would be free to compete - at the latest - in 2014.

Armstrong has rejected approaches from USADA to cooperate and has focussed instead on giving evidence to a WADA and UCI-led truth and reconciliation commission for cycling. This now looks unlikely to happen, due to ongoing arguments between the two bodies over who should establish and fund such a commission.

Armstrong also faces lawsuits from a number of individuals and companies keen to recoup money. As he hasn't confessed and USADA's evidence has been criticised by a court of law, these lawsuits may prove difficult to pin down. The most important of these is a lawsuit brought by Floyd Landis under the Federal False Claims Act, which alleges that by accepting sponsorship money from the government, the US Postal Service Cycling team was defrauding the government.

However, the lawsuit asks for trial by jury. Armstrong's advisors could argue that the jury has been prejudiced by the media circus that ensued around his Oprah interviews.

Is Armstrong playing a clever game? It appears so, but only time will tell.

Andy Brown

The Union Cycliste Internationale (UCI)'s acceptance of the United States Anti-Doping Agency's (USADA) sanctions against Lance Armstrong raises some interesting questions. Although the UCI has denied suggestions that it was complicit in Armstrong's doping, an independent commission appointed by an 'independent sports governing body' will explore USADA's evidence against it. This includes compelling evidence, such as witness statements of conversations with Armstrong suggesting that he believed that a 2002 payment to the UCI was in order to cover up a positive test from the 2001 Tour of Switzerland. If Armstrong is a fantasist, the UCI has an interest in exposing him as one.

By approving USADA's sanctions, the UCI has ensured that such allegations will not yet be explored further by the Court of Arbitration for Sport (CAS) or a court of law. However, the language of the UCI's 22 October statement suggests that it has serious issues with USADA's evidence. The UCI talks about 'incorrect and incomplete statements' and 'UCI disagrees with these statements and criticism'. The investigatory commission will have to explore why the UCI considers witness statements to be false. If this is proven, further lawsuits could follow.

The UCI also states that 'USADA's reference to national law is not appropriate' and contests that USADA has violated Article 17 of the World Anti-Doping Code. This only allows action to be taken within eight years of the alleged anti-doping violation. The UCI rightly point out that 'it is WADA's role and responsibility to ensure compliance with the Code and to appeal to the CAS in order to warrant, as is the mission of WADA, that the Code is applied in a uniform way and that all athletes are treated equally'.

WADA decided not to appeal this point, agreeing with USADA's analysis that the eight-year Statute of Limitations had been suspended 'by Mr Armstrong's fraudulent concealment of his doping and other wrongful acts'. This analysis is supported by a recent American Arbitration Association decision in a doping case, where the panel suspended the Statute of Limitations because the athlete had lied under oath (USADA v Hellebuyck, AAA Case No. 77 190 168 11, Jan 30, 2012).

There is still a long way to go before the issue of whether the UCI was complicit in Armstrong's doping is resolved. Armstrong still has a right to appeal and the IOC has yet to decide what action - if any - to take. It remains to be seen whether by accepting USADA's sanctions, the UCI has dodged a bullet or shot itself in the foot.

Andy Brown

The English Football Association's (FA) decision to investigate allegations that referee Mark Clattenberg racially abused Chelsea players has led to calls that referees should be ‘miked up’, as they are in both rugby codes. The argument is that doing this would create an environment where both players and referees would be less inclined to trade insults, if they knew that their words were being recorded.

While such a system would help players abused by a referee, it is questionable whether such a system would help referees, even if managed correctly. A system whereby what is said can be reviewed by the referee might help them to sanction players for use of offensive language, if such language falls within the coverage of the microphone. However, it could also undermine the referee by allowing a player to call a decision into question. Referees might refrain from sanctioning players for fear of getting it wrong.

You have to also question why football would want to record what is said during the heat of the game. Referees are already linked to linesmen and other officials by microphone, so any inappropriate comments would be picked up by them. The balance of power is already too far weighted towards the player. Referees are routinely abused by players and the crowd (name your chant) during a game, yet no action is taken. When one allegation surfaces that a referee might have abused a player, talks begin about changing the system. FIFA and the FA have already undermined the referee’s authority by employing goal-line technology to assess the four incorrect goal-line incidents that typically occur during a season.

It might also backfire. If players know that their peers are listening, they might compete to see who can record the best insult during a game, or who can get closest to the line of what is deemed acceptable. The ingrained respect for the referee in rugby doesn’t exist in football, as anyone is allowed to contest a decision (in rugby, only the captain can do this).

Referee microphones also fails to address the bigger problem, which is that football has become a game of deception. The competitiveness of the modern game coupled with the money involved mean that players and managers are seeking whatever slim advantages they can gain over their opponents, and football is allowing them to do this by not giving the referee the necessary tools to do his job. I have heard supporters and commentators berating players for not going down during heavy challenges. Fooling the referee, through diving and other methods, has already become a key part of many players' games. The dictionary definition of 'fool' is 'one who is deficient in judgment, sense, or understanding' - hardly consistent with respect.

Football needs to act to empower referees, rather than taking power away from them. As I have suggested before, a fairer system would be to allow team captains to refer three decisions per game for review, either on a big screen or via another method. That way, if there is a disputed incident that leads to a key goal, the referee has a chance to correct incidents of diving, feigning, incorrect offside decisions, handball, goal-line incidents, unseen fouls etc. without undermining his position by taking away his power to make that decision. The Chelsea v Manchester United game might not have been so heated if Clattenberg had the option of reviewing Javier Hernandez’s goal, which was offside.

Almost all other sports allow for decisions to be reviewed by the referee, which means that player attempts to deceive the referee can backfire. The longer football supports a game based on deception, the more ingrained the lack of respect for officials will become.

Andy Brown

The Polish football association (PZPN) confirmed that FIFA took a pre-match decision not to close the roof of the National Stadium ahead of last night’s 2014 FIFA World Cup qualifier against England. The match has been postponed until 5pm local time (4pm GMT) today, after continuous rain left large parts of the pitch underwater. The PZPN also confirmed that tickets for yesterday’s game will be honoured for today’s game.

‘Under the provisions of FIFA (FIFA World Cup Brazil 2014, Article 20, paragraph 5), the decision as to whether the stadium roof will be open or closed is delegated to FIFA after consultation with the teams and the head referee’, reads a PZPN statement. ‘This decision must be announced at the organisational meeting before the game. Before Tuesday’s game, steps were taken to close the roof, however as reported, this was not possible in the weather conditions for technical reasons.’

The FIFA regulations in question are available on the FIFA website here, but link to a blank PDF file. England’s Football Association (FA) is investigating the possibility of compensating fans who had travelled to Warsaw for the game but have had to catch scheduled flights home ahead of today’s rescheduled game. FA Director of Communications Adrian Bevington told press that compensation is “something we are looking into, but I can’t give any final decision on that”. The FA has also set up a refund process for unused tickets.

Andy Brown

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

As attendees at our Tackling Doping in Sport conferences will confirm, catching drug cheats in sport is a complex, ever-changing game of cat and mouse. Athletes constantly discover new substances or new methods that provide an advantage and are either not on the World Anti-Doping Agency's (WADA) Prohibited List, or are harder to detect than previous methods. In attempting to catch the real cheats, there is a danger that athletes with no intention of cheating are caught in the crossfire.

Our two main August news articles are illustrations of this. Although the US Anti-Doping Agency (USADA) has been successful in convicting Lance Armstrong for doping, it is a victory by default. Armstrong has never failed a drug test and has not admitted doping. USADA was able to ban him and annul his results as his failure to contest USADA's charges was seen as tantamount to an admission of guilt. There is even a question mark over whether USADA has the authority to do this, as August's lead news article illustrates.

By refusing to contest USADA's charges, Armstrong has ensured that allegations that he was given prior notice of tests and that test results were covered up may never be fully investigated. His sanction may even be reduced, if the UCI does decide to contest USADA's ability to sanction Armstrong. In other words, has the cat actually caught the mouse, or has the mouse evaded capture?

As dopers discover new substances and methods to cheat, anti-doping authorities amend their regulations in order to keep pace. Innocent athletes must also try to keep up with the pace of change, in order to avoid unintentionally falling foul of the ever-changing regulations. August's second news article concerns methylhexaneamine, a substance that has led to numerous unintentional doping violations by athletes who have either checked the ingredients of supplements against the Prohibited List, or have been told by support staff that a supplement is safe to take. The reason is that methylhexaneamine is also known by a number of other names, yet only methylhexaneamine appears on the Prohibited List. Therefore an athlete checking supplement ingredients such as DMAA or 1,3-dimethylamylamine will not find them on the List, convincing them that the supplement is safe to take. It is not. Both DMAA and 1,3-dimethylamylamine are alternative names for methylhexaneamine.

What is needed to prevent either situation from happening again in the future is clear regulation. We may never get to the bottom of the Lance Armstrong situation because of USADA and the UCI's failure to work together, due to unclear regulation about who has jurisdiction for sanctioning retired riders, the burden of proof required and how far back that sanctioning power should stretch. The Medicines and Healthcare products Regulatory Agency's move to eradicate products containing DMAA from the UK market may help prevent UK athletes from committing unintentional doping violations in the future, however athletes from other countries remain at risk. WADA needs to come up with a system that records and logs alternative names for banned substances so that athletes are reliably informed about what they are actually taking. Unless these issues are sorted out, anti-doping could suffer a loss of credibility, and the mouse could continue to evade capture.

Andy Brown

The International Olympic Committee (IOC) has a difficult task. When it was formed back in 1894, founder Pierre Baron de Coubertin didn't have to worry about troublesome things such as human rights and sex discrimination. Such concepts were in their infancy, if they existed at all. Women weren't allowed to compete in the inaugural modern Olympics in Athens in 1896, gaining representation in tennis and equestrian events only, in Paris 1900. Since then, the world has changed, but sport continues to split events into 'men's' and 'women's' categories. It has generally been agreed that determining whether someone is female by examining their genitalia is not acceptable - and not always accurate - yet the IOC is still required to split men and women in the interests of 'fairness' and sporting history.

How should it do this? The IOC has come up with its Regulations on Female Hyperandrogenism for the Games of the XXX Olympiad in London 2012 on 22 June, after the Caster Semenya case forced it to rewrite its rules on eligibility of female athletes. It followed the logic of the International Association of Athletics Federations (IAAF), which told World Sports Law Report "if we don't have rules on this, we will also face legal challenge from other female athletes" when publishing its own Regulations on 1 May.

When writing about this before, I have rightly been warned that dealing with hyperandrogenism is a complex scientific issue. It is, but the logic behind the science isn't complicated, and needs to be carefully considered by sports organisations before following the IAAF and IOC's lead. The IOC is at pains to stress 'nothing in these Regulations is intended to make any determination of sex', so it is taken as given that the IOC accepts that the athlete being investigated is female. Without going into too much detail, the Regulations allow the IOC to examine whether testosterone levels in serum fall within the 'male range' and if so, ban a female athlete from London 2012 if this allows her a competitive advantage.

Stripping away the science, the Regulations allow the IOC to ban a female athlete who has done nothing wrong, but has an advantage due to her genetic make up. It also attaches the added stigma that she is 'male' by comparing her testosterone levels to what the IOC considers to be a 'male' range of testosterone. The athlete has no recompense, since she cannot adjust her genetic make up. She is banned for simply being who she is.

Using this logic, perhaps we should also ban Michael Phelps, Usain Bolt and others? This article explains the genetic advantages that Phelps has over us mere mortals in the pool. This article explains why Bolt can break the 100m world record while I run more like a crazed swan. Bolt also has leptin and insulin insensitivity, which means he can maintain low body fat without his hormonal expression being compromised (as compared to a regular person), which means less weight to carry.

You might have noticed that I have used 'she' and 'her' when referring to the athlete subject to the IOC's Hyperandrogenism Regulations. This is because they apply exclusively to females. The IOC doesn't ban a male athlete with testosterone levels considered above the 'normal' male range, or declare a male with low levels as falling within the 'female' range and forcing him to compete as a female. This may sound crazy, but it follows the same logic employed.

However, the IOC may have been clever enough to avoid legal challenge. By inserting the caveat mentioned earlier that they have nothing to do with determining sex, the IOC may be able to argue that the Regulations do not fall foul of Article 14 of the European Convention on Human Rights. A charge that they fall foul of Articles 23, 27 and 29 of the Universal Declaration on Human Rights will be harder to defend, but possible. If these Regulations are used at London 2012, it will take a brave athlete to cope with the embarrassment and stigma of being banned to challenge them in the courts. Good luck!

Andy Brown

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

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

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

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

Delegates also heard:

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

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

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

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

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

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

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

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

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

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

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

Andy Brown

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.