Tuesday, August 25, 2009

CAS Publishes Beijing 2008 Decisions

The Court of Arbitration for Sport (CAS), based in Lausanne, Switzerland, has just published (July, 2009) a Digest of the Awards made by its Ad Hoc Division (AHD) - a kind of circuit tribunal of the CAS - during the  Beijing Olympic Games held from 8 – 24 August, 2008; and, as usual, they make very interesting reading. They are published in the two official languages of the CAS: English and French.

Writing in the Foreword, the President of the CAS AHD, Dr Robert Briner, had this to say:

The caseload of the ad hoc Division was comparable to those of the last Games. The most important aspect of the role of the ad hoc Division of CAS in the Olympic Games ….. is, however, not the number of cases decided but the fact that there exists an independent body which in a very short time is able to render and independent and fair judgment in the interests of the athletes and all other participants and thereby uphold the integrity of the Olympic Games. This was the seventh time CAS set up an ad hoc Division at Olympic Games. The presence and activity of CAS has therefore become a mature, traditional element of the Games. It has established and refined its working methods and is universally accepted throughout the Olympic Movement.’

The CAS AHD has operated at all the Summer and Winter Games since and including those held in Atlanta in 1996 (the so-called ‘COKE Games’); and will again be in session at the Winter and Summer Games in Vancouver and London in 2010 and 2012 respectively. Under the CAS AHD rules, the proceedings are free of charge and awards must rendered within twenty-four hours of a case being brought before the CAS AHD. Of course, if the services of a lawyer or a translator are engaged in the proceedings, their fees must be paid by the party concerned. 

The jurisdiction of the CAS AHD is derived from the provisions of article 59 of the Olympic Charter, the latest version of which dates from 7 July, 2007, as follows:

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.’

To give effect to these mandatory and exclusive provisions, the Supreme People’s Court of the People’s Republic of China issued on 10 June, 2008 to the relevant People’s Court in Beijing and also to the co-host cities, with the exception of Hong Kong (SAR), the following directive:

The period of the Beijing 2008 Olympic Games, pursuant to the stipulations under the Host City Contract for the Games of the XXIX Olympiad in the Year 2008 executed by and between us and the IOC, and provisions under the Olympic Charter, the Court of Arbitration for Sport will set up an ad hoc division in Beijing to conduct arbitration of three types of sports-related disputes concerning the events of the Beijing 2008 Olympic Games.’

The types of disputes concerned are as follows:

• eligibility disputes;

• doping test results; and

• event results or referee penalties.

To guarantee the exclusive jurisdiction of the CAS AHD, the above directive also included the following provision:

The People’s Court will not accept any legal proceeding instituted in regard to the aforesaid disputes; provided that a party is dissatisfied with the arbitration award made by the Court of Arbitration for Sport in regard to the aforesaid disputes and thus requests that the People’s Court withdraw such award or applies to the People’s Court for enforcement, the People’s Court shall not accept.’

As far as the athletes and other participants in the Olympic Games are concerned, they are required, in their entry form, to submit all disputes to the CAS AHD whether they wish to do so or not; otherwise they will not be allowed to participate. Quaere: is this a valid consent to arbitration? An interesting subject and one for another occasion!

Eleven cases were filed with the CAS AHD in Beijing; and, surprisingly, there were no doping cases. About half the cases raised eligibility issues and the other half concerned decisions taken by officials during the competitions. The sports concerned included field hockey; swimming; tennis; wrestling; and sailing.

The cases were handled by a team of 12 CAS arbitrators drawn from the five continents of the world and they were supported administratively by members of the CAS Office.

Two of the Awards made by the CAS AHD in Beijing were appealed – unsuccessfully – to the Swiss Federal Tribunal and the text of the Judgement of the Tribunal delivered on 22 January, 2009 is included in the CAS Digest. The Digest also usefully contains the AHD Rules for the Beijing Games and the CAS Application for AHD Arbitration Form.

A copy of the Digest of the Beijing CAS AHD Awards and further information on the CAS generally may be obtained from:


Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne


Tel: + 44 21 613 50 00

Fax: + 44 21 613 50 01

E-Mail: info@tas-cas.org

Website: www.tas-cas.org


Ian Blackshaw, Sports Lawyer

TMC Asser International Sports Law Centre, The Hague

Monday, August 24, 2009

Weekly Twitter Update

Premier Rugby is to bring in new injury checks following the discovery that Harlequins faked a blood injury. http://tinyurl.com/kp5spc

The BHA has dismissed an appeal from trainer Karl Burke against a 1yr ban for alleged race fixing. http://tinyurl.com/mtdkql

IRB extended a 3yr ban on Harlequins officials from ERC competitons to all rugby union, for faking a blood injury. http://tinyurl.com/l9wu34

Australia alerted the ICC that a player was approached during The Ashes by a man suspected of illegal bookmaking. http://tinyurl.com/nozb9e

Six Australian Celtic Crusaders rugby league players are to be deported for breaching immigration rules. http://tinyurl.com/kpzqvb

The IAAF has asked new womens 800m champion Caster Semenya to take a gender test. http://tinyurl.com/kq4vtl

Bath duo appeal against nine month ban for avoiding drug tests under employment contracts outside of WADA's remit. http://tinyurl.com/qg8bbr

Wenger: European league in 10 years, "especially if the rules become too restrictive for these clubs". 6+5 anyone? http://tinyurl.com/lfbpah

Harlequins' coach Dean Richards was banned by the ERC for three years due to his part in faking a blood injury. http://tinyurl.com/qnfhku

The European Rugby Cup is to decide on Harlequins' future in the cup today, after the team faked a blood injury. http://tinyurl.com/lboxfm


Follow World Sports Law Report on Twitter here.


Friday, August 14, 2009

Weekly Twitter Update

London 2012 has appointed that London Marathon to work on the 2012 Olympic and Paralympic marathons. http://tinyurl.com/on5lo2

The IOC has taken action against five equestrian riders for doping of horses at the Beijing 2008 Olympics. http://tinyurl.com/odrfaa

Sheikh Hamdan bin Mohammed al Maktoum has been banned from riding after his horse tested positive for steroids. http://tinyurl.com/pcqd8f

The IOC has approved new sports for the London 2012 Olympics. Golf and rugby will have to wait until 2016. http://tinyurl.com/5692f

Harlequins' Tom Williams will appeal against a year ban for feigning a blood injury. http://tinyurl.com/lboxfm

Middlesbrough's Andrew Taylor launched a site designed to help footballers avoid getting ripped off by salesmen! http://tinyurl.com/ngtlnd

The FA has suspended Accrington Stanley's Peter Cavanagh for betting on his own team. http://tinyurl.com/ljm2sy

Cardiff City form a 'strategic marketing alliance' with Malaysian group Football Focus Asia wiping out £24m debt. http://tinyurl.com/m74n4y

Harlequins RU to face a second ERC inquiry into injury fabrication in order to bring on a kicker near game end. http://tinyurl.com/lboxfm

Birmingham City's Chairman and Managing Director are cleared of tax irregularities following a 2yr investigation. http://tinyurl.com/ku4sjo

Follow World Sports Law Report on Twitter here.


Friday, August 07, 2009

Weekly Twitter Update

Bath rugby union players have set up a five-man group designed to self-police against further drug taking. http://tinyurl.com/nj28xp

English rugby union players will become the first in the world to be tested for social drugs out of competition. http://tinyurl.com/njjzux

The FIA and Formula One teams have signed a new Concorde Agreement, governing how the sport is run until 2012. http://tinyurl.com/kj7sjo

Bath Rugby players consider appeal against RFU drug ban. http://tinyurl.com/lcnw9c

The IOC agrees not to suspend Kuwait after it pledged to amend a local law which had threatened sport's autonomy. http://tinyurl.com/krmrot

Indian cricketers are refusing to sign the new WADA Code due to whereabouts requirements. http://tinyurl.com/ly9tju

Tour de France stage 16 winner Mikel Astarloza has been suspended by the ICU after a positive test for EPO. http://tinyurl.com/mb6vbs

Follow World Sports Law Report on Twitter here!


Tuesday, August 04, 2009

FINA bans bodysuits from 2010 but records to stand

The Fédération Internationale de Natation (FINA) has amended its rules to ban all bodysuits from swimming from 2010, after world records were broken using new generation non-permeable swimsuits which critics allege provide an unfair advantage by aiding buoyancy. Records set using bodysuits will stand. As well as mandating that all swimsuits shall be 'constituted only by textile fabric', the 28 July FINA Bureau decision bans all male swimsuits extending 'above the navel' or 'below the knee', and for women 'shall not cover the neck, extend past the shoulder, nor extend below knee'.
The full version of this article appears in the August edition of World Sports Law Report.


Tennis players seek compensation for ATP's suspension for online gambling

Five tennis players are seeking compensation from the Association of Tennis Professionals (ATP) and online gambling operator Interwetten, alleging that their suspension for online gambling was engineered to satisfy public and media concerns over corruption in tennis. The players also allege that Interwetten's ability to sponsor future tennis events was conditional on it providing information about the betting activities of players to the ATP.
The full version of this article appears in the August edition of World Sports Law Report.


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.


Opinion: EHFA and IHRSA: promoting health through fitness

Traditionally, the health and fitness industry has looked to the United States for its leadership. Based in Boston, USA, the International Health and Racquet Sportsclub Association1 (IHRSA) has led the industry for over 25 years with its programme of business education, networking and advocacy.
The full version of this article appears in the August edition of World Sports Law Report.


Formula One: The legal status of Formula One's proposed budget cap

Formula One has proposed a cap of £40 million on team budgets from 2010, a move initially opposed by its teams. Elizabeth Mehdevy, a Partner with Field Seymour Parkes, examines the economic reasons for the cap, the damage that the threat of a breakaway series has already done to the sport and whether the Fédération Internationale de l'Automobile could ban drivers from competing in any rival series, should it be launched.
The full version of this article appears in the August edition of World Sports Law Report.


Player Contracts: Greek FA accepts nationality restrictions violate EU law

The Hellenic Football Federation has accepted an argument raised before the Court of Arbitration for Sport (CAS) that a rule requiring six players in second division squads to be eligible for the national team contravenes EU law. Dr. Gregory Ioannidis, who acted as Counsel for the Appellant at the CAS, outlines the arguments raised at the CAS against the rule, and examines the implications for similar restrictions, such as FIFA's '6+5' rule.
The full version of this article appears in the August edition of World Sports Law Report.


Doping: Drug testing under club employment contracts

England's Rugby Football Union (RFU) told four former Bath players to appear before an RFU disciplinary panel, where they will be charged with 'conduct prejudicial to the interests of the game', following allegations that they took prohibited substances and refused to take drug tests. Stephen Farrow, an Associate at Norton Rose, examines the legal obligations for clubs wishing to test employees for drugs outside of World Anti Doping Agency procedure.
The full version of this article appears in the August edition of World Sports Law Report.


Poland: Euro 2012: legal preparations for hosting

 Poland has introduced a number of legislative changes designed to prepare the country for its joint hosting of Euro 2012 with Ukraine. Piotr Majer, a Senior Associate with Laszczuk and Partners, examines the special legal status of projects, the legal status of special purpose vehicles relating to Euro 2012, why the European Commission objected to proposed changes in its public procurement legislation and proposals to levy an extra tax on gambling to finance Euro 2012.

The full version of this article appears in the August edition of World Sports Law Report.

Ticketing: WIPO decision: use of sport trademarks to sell tickets

A World Intellectual Property Organization (WIPO) panel rules that Official Tickets' use of club trademarks in connection with 'official tickets' in domains creates a likelihood of confusion that the websites are authorised by the clubs. Rohan Massey, a Partner at McDermott Will & Emery UK LLP, analyses WIPO's decision to allow a consolidated complaint.
The full version of this article appears in the August edition of World Sports Law Report.


Comment: Ofcom pay-TV consultation: regulating pay-TV football

Ofcom intends to require BSkyB to wholesale pay-TV content at regulated prices to all. Stephen Hornsby, a Partner with Davenport Lyons, examines the plans, the Premier League's objection that Ofcom's proposal would undermine competition for its rights, the regulation difficulties that Ofcom may face in implementing its plans and possible delays to them.
The full version of this article appears in the August edition of World Sports Law Report.


Opinion: Money laundering and tax evasion in football

 Football is not only the world's favourite game, but also the world's most lucrative sport. In fact, it is actually a product in its own right according to Sepp Blatter, President of FIFA. Therein lies its success and also the seeds of its potential downfall, if it loses touch with its sporting objectives and also its constituents.

The full version of this article appears in the August edition of World Sports Law Report.

Friday, June 19, 2009

Sports Law Round Up: Player Contracts

The news story that most intrigued me this week was that Manchester United has implemented a policy that the club will not sign players over 26 years of age, in a move apparently designed to generate value for the club at the end of a five or six year player contract when that player is sold. I am sure that this article screamed out to the sensibilities of sports lawyers as well, as clear discrimination contrary to Article 6 of the Employment Equality Directive (2000/78/EC).

Manchester United are not silly enough to put such a policy in writing, and when questioned by World Sports Law Report, denied its existence. “We sign, and will continue to sign, players of all ages and abilities”, said a club spokesperson. “There is no such policy”. The European Commission also indicated that if the policy doesn’t rule out the signing of older players but submits each proposed signing to a cost against investment calculation, then that may not be illegal. “The Employment Equality Directive forbids discrimination in the workplace on grounds of race, religion, disability, age or sexual orientation”, said a Commission spokesperson. “However, as far as I can understand from the Guardian’s article, you are actually referring to a policy decision based on a cost/investment calculation which does not rule out the signing of older players, but will submit any new recruitment to an assessment of its longer-term financial viability”.

Given that Deloitte’s recent Annual Review of Football Finance revealed massive levels of club debt – which is not a good position to be in given the precarious nature of banks’ lending abilities in today’s economic climate – the above story illustrates that clubs are beginning to carefully examine every investment they make (unless you are Real Madrid). This shift in policy could perhaps have more of an effect that any proposals to limit overseas signings to protect national teams, such as FIFA’s ‘6+5’ idea. A good example of where this has already happened is Scotland. Following the collapse of ITV Digital and a massive reduction in TV payments, Scottish clubs were forced to re-evaluate their economic situation, and many realised that training up young players was cheaper than signing players from overseas. The Scottish national team – which is currently 22nd in FIFA’s rankings – has benefited as a result (although the Scottish Premier League could be put under massive economic pressure if Setanta collapses).

There is a forum where you can discuss these issues further. As you can see from the article below, World Sports Law Report and Hammonds LLP have organised an excellent line up of speakers for Player Issues: Regulations & Contracts 2009. It would be great to see you there.

Andy Brown


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.


Friday, May 29, 2009

Sports Law Weekly Round Up: 29 May

 Other than reading and analysing the Matuzalem case, one of the most interesting articles I came across this week turned out to be a non-story. The South African Law Reform Commission (SALRC) confirmed that South Africa’s consideration of legalising prostitution to prevent people trafficking and under-age coercion was not in response to the 2010 FIFA World Cup, as media reports had suggested.

“The release of the Discussion Paper on Sexual Offences: Adult Prostitution is not in response to the 2010 World Cup”, said Dellene Clark, Principal State Law Advisor for the SALRC. “However, being released at this time, it is a matter of discussion. No legislative proposals are contained in the Discussion Paper, as we need to embark on a public consultation exercise to discuss the various possible models available.”

These are: total criminalisation of prostitution (status quo); partial criminalisation; Non-criminalisation; and regulation. A report on adult prostitution will follow containing legislative proposals which once approved by SALRC, will be handed to the Minister for Justice and Constitutional Development, Jeffrey Thamsanqa Radebe. SALRC is accepting comments on the four proposals until 30 June 2009.

However, there is media concern that the World Cup could fuel demand, which probably prompted news articles on this subject in the first place. ‘Demand for sexual services can be linked to sex tourism, a growing industry where individuals seek commercial sex as part of the travel experience’, read the Discussion Paper (0001/2009), released by SALRC on 6 May. ‘The upcoming FIFA World Cup in 2010 has reportedly sparked specific concerns around both internal and cross-border trafficking for the purposes of sexual exploitation’.

Despite media hysteria on this subject – which perhaps says something about the industry that I work in – there is scant evidence that sporting events fuel a rise in people trafficking due to prostitution. A report adopted by the European Parliament on 17 January 2006 urged Germany to prevent trafficking of women and forced prostitution ahead of the 2006 FIFA World Cup. However, the Council of the European Union reported (5006/1/07) that of 33 cases involving human trafficking for sexual exploitation reported to the Federal Criminal Police Office during the tournament, only five involved a link to the tournament.

The Matuzalem ruling continues to cause rumbles in the world of football. One aspect that has not been fully explored is how the ruling will impact buy-out clauses in player contracts. The Court of Arbitration for Sport rejected FC Shakhtar Donetsk’s claim that it was due €25 million due to a clause that bound the club into releasing the player should an offer be received for €25 million as not being a buy-out clause, however the CAS did not fully explore the legitimacy of buy-out clauses.

In reporting on the ruling, one of the aspects I could not cover – unfortunately – was the extravagant terms of Matuzalem’s contract with FC Shakhtar. As well as agreeing to pay the Brazilian €96,925 per month, the club also provided him with a car ‘with an estimated cost from $23,000 to $26,000, bear all charges on service and maintenance’, a ‘habitation (two bedroom flat)’ and to ‘compensate the player the cost of the apartment rent in Donetsk by adding monthly €1,533’ to his salary. Those are expenses which a UK MP could envy.

In other news;

• All Formula One teams submitted entries to take part in the 2010 Formula One championship, reports AFP, presumably ending complaints over the £40 million budget cap.

• West Ham United have been hit with a six-figure demand from an agency claiming to have arranged the Premier League club’s sponsorship agreement with SBOBET, reports The Guardian.

If you would like to discuss any of these issues further, then please get in contact by clicking on my name below. The next edition of World Sports Law Report will be up on our internet site next week, and we are always looking for new authors and topics.

Andy Brown

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.

Friday, May 22, 2009

Sports Law Weekly Round Up: 22 May

Since the creation of the European Union enshrined free movement of workers across borders, there have been a number of important sporting rulings testing these principles. Bosman, Webster and Kolpak immediately spring to mind, however I am sure that sports lawyers can name many more. Perhaps we should have a competition. The name of Matuzalem must be now added to that list, after the Court of Arbitration for Sport ruled that the Brazilian must pay Shaktar Donetsk €11.86 million for unilateral breach of his contract.

The CAS’ ruling is here. FIFA praised the decision as supporting its regulations that Article 17 of the FIFA Regulations on the Status and Transfer of Players does not allow players to unilaterally breach their contracts. FIFPro, however, disagreed, stating that the ruling emphasises that FIFA’s Regulations breach freedom of movement principles. “Implementing these new specificities is most certainly outside of the boundaries set by the European Commission”, said Theo van Seggelen, General Secretary of the international players’ union.

In other news;

• The Football Association is to deliver its response to government questions on the future of football next week, reports The Guardian.

• The Presidents of both FIFA and WADA had a telephone conversation on Monday, after which FIFA confirmed that it has ratified the WADA Code, but that a couple of points relating to team sports need to be resolved. However, FIFPro – which has already launched legal proceedings against the requirements under the new version of the WADA Code – reiterated its opposition.

• The England and Wales Cricket Board has called for new legislation against ticket touting, after its investigation revealed over 1,900 ‘black market’ tickets for the ICC World Twenty20 tournament, reports The Guardian.

• UEFA instigated disciplinary proceedings against Chelsea FC for the improper conduct of players and supporters during the UEFA Champions League semi-final against FC Barcelona, and against Didier Drogba and Joseph Bosingwa for breach of the principles of sportsmanship. The case will be heard on 17 June.

• The Football League has written to the government proposing scrapping the transfer window domestically and a transfer ban on clubs that fall behind in tax payments, reports the BBC.

• FINA, the international swimming federation, has revised its approval of swimming suits following the breaking of a number of records by swimmers wearing high-tech suits recently, reports The Guardian.

If you would like to discuss any of these issues further, please get in touch by clicking on my name below.

Andy Brown

Thursday, May 21, 2009

London 2012: athlete image rights

 Top British athletes are to meet with UK Sport and the British Olympic Association (BOA) to try to settle a potential dispute over the use of their valuable image rights. UK Sport wants athletes to sign a contract to be part of a sponsorship scheme to cover a £50 million shortfall in the government's £300 million funding package in connection with the London Olympics in 2012.
The scheme is designed to bring in private investment and would require athletes to promote its commercial partners. But athletes are concerned that the deal could affect their exploitation of their individual image rights with other companies and firms.
UK Sport has responded to these concerns by claiming that any work required will not compromise private deals; and is hoping to discuss the matter with the athletes and their agents as soon as possible, to put a stop to any potential row breaking out between them. All 1,400 publicly-funded athletes must agree to the terms to qualify for UK Lottery Grants, but there are believed to be around 80 athletes who are opposing the proposed scheme.
A UK Sport representative has remarked in general:
"The majority of athletes have not had any questions over this, and we are committed to finding resolution with those that have".  
Currently, athletes who receive Lottery Funding, are required to give up three days each year for promotional activities, and UK Sport insists that the new arrangements will not significantly increase those demands.
"The three days we are asking for is on the back of the very substantial public funding being invested in the athletes already, and we would not want to have to consider that investment," he added.
BBC sports news correspondent, Gordon Farquhar, has explained that the deal has been put together to try to fill a shortfall in funding ahead of London 2012 and adds:
"The Team 2012 initiative is designed to bring in private sector investment to plug a £50 million funding hole. It's hoped that it will develop into a significant funding stream in the future for elite sport."
But private companies are concerned that the new sponsorship scheme could devalue their deals with the individual athletes that they are sponsoring by putting conflicting pressures on them. In other words, diluting their valuable image rights for which not insignificant sponsorship fees have been paid.
UK Sport hopes that the situation can be clarified and any misunderstandings ironed out in an explanatory meeting with the athletes concerned. Furthermore, UK Sport justifies its plan in the following terms:
'Team 2012 is a crucial part of the fundraising for elite sport and it needs everyone involved to get behind it. It is a new approach, and it is not surprising that some higher-profile athletes want a better understanding about what it means for them. But it also offers a real opportunity for sponsors to help support the whole mission through to 2012. It would be disappointing therefore if that meant we did not have a positive response from athletes, and we believe that once the issues about it have been fully discussed there will be a much better understanding.'
This spat between top athletes and UK Sport is a classic clash that crops up, from time to time, between the commercialisation and exploitation of individual athletes' image rights and the use of them to promote wider group interests - in other words, collective exploitation of their image rights. As usual, it is a balancing act between competing interests and a fair compromise, therefore, needs to be found. It is, in certain respects, analogous to the exploitation of footballers' image rights on an individual basis compared with their exploitation on a team or collective basis. So, perhaps a compromise in the athletes' case can be reached along the lines of clause 4 of the standard English Football Association Premier League Contract of Employment (FAPL Contract), which was introduced at the start of the 2003/04 season to deal with this kind of potential conflicting situation and seems to be providing, in practice, a suitable and workable sharing of the image rights of players in a so-called 'Club Context' (as defined in the clause) and in their individual context. Apart from all these arrangements, footballers are allowed to have their own boot sponsorship agreements and goalkeepers their own glove deals with sponsors who are not team sponsors and to wear the corresponding branding, which would otherwise conflict with the team branding.

Ian Blackshaw Sports Lawyer
TMC Asser Instituut International Sports Law Centre, The Hague

For further information and comment on the detailed provisions of clause 4 of the FAPL Contract and their application, and, in particular, sub-clause 5, which deals with a player's general freedom to conclude individual image rights deals outside the scope of clause 4 generally, see 'Sports Image Rights in Europe', Ian S Blackshaw & Robert C R Siekmann (Eds), 2005 T M C Asser Press, The Hague, The Netherlands, ISBN 90-6704-195-5, at pp 338 - 343.

Friday, May 15, 2009

Sports Law Weekly Round Up: 15 May

There have been plenty of interesting articles this week regarding the Premier League’s 30-page plan to reform its business model in response to calls from the government for the competition to reassess its relationship with money, including its decision to implement a home-grown players quota.
It appeared to be a week for big news, such as Ferrari’s threat to withdraw from Formula One in protest against new rules capping team budgets at £40 million. More should be known next week following a team meeting today between the teams and the Fédération Internationale de Automobile. Analysis of the new rules will appear in a future edition of World Sports Law Report.
In other news;

• Senior football figures in Argentina and Brazil are lobbying FIFA to introduce regulations banning third-party ownership of players, reports The Guardian.

• Authorities leading the investigation into corruption in football will bring and end to the inquiry in September, reports The Guardian.

• The World Anti-Doping Agency (WADA) has adopted a revised version of its International Standard for the Protection of Privacy and Personal Information (ISPP), after the Article 29 Data Protection Working Party said it does not ensure an adequate level of data protection, reported DataGuidance, World Sports Law Report’s sister publication. The Guardian reports that the reason for the revision is that Governments threatened to cut WADA’s funding if it continued to fight European data protection legislation. WADA has also made it clear that FIFA will not have a concession from the whereabouts requirements.

• FIFA is to push ahead with its ‘6+5’ proposal at its congress in June, reports Soccer Investor.

• Video games have reared their head again. Former quarterback Sam Keller is suing the National College Athletics Association (NCAA) and its video game partner, EA Sports, claiming that they are unfairly creating players within games that resemble real players, reports USA Today. You guessed it – college players are prevented from sharing in the profits.

• An interesting case is developing around the transfer of Jonas Gutierrez to Newcastle United, after the Magpies were ordered to pay £5 million to his former club as compensation, reports Sky Sports. It appears that Real Mallorca decided to resolve the case in Spanish courts rather than resort to FIFA’s Dispute Resolution Chamber and the Court of Arbitration for Sport. It is not yet known if Newcastle will appeal, as Gutierrez claimed to have legitimately left the Spanish club under FIFA’s Article 17, which allows players to terminate their contract outside of the ‘protected period’, if the contract is unspecific with regard to compensation for unilateral termination of a player contract.

If you would like a chat on any of the issues above, please get in touch. Best regards for the weekend;

Andy Brown


Friday, May 08, 2009

Sports Law Weekly Round Up: 8 May

 Two strange sporting results took place during the past week, both of which have implications for the regulation of sport. The first – and the most obvious – was the behaviour of Chelsea players towards the referee in the Chelsea vs. Barcelona UEFA Champions League semi-final. Aside from the fact that UEFA is due to rule on whether to punish Didier Drogba next week, I believe that the situation deserves a deeper examination of the authority of officials in football. In both rugby codes, only the captain of the team is allowed to speak to the referee, which as well as protecting the referee from the sort of unjustified intimidation carried out by Michael Ballack, enforces a sense of team hierarchy that football could benefit from (also, it would have been far more entertaining to see Ballack chasing John Terry around the pitch). Rugby players also know that they do not have to carry out such extravagant appeals to the referee, since their captain can ask for a decision to be reviewed by the video referee. I respect FIFA’s adherence to tradition (yards rather than metres), however in certain instances, it should move with the times.
The second strange result took place last weekend, where Leicester Tigers progressed to the final of the Heineken Cup by beating Cardiff Blues in a penalty shoot out. Yes, they are both rugby union teams. Each team had to pick five players to put the ball over the posts in a method of settling a game that seems borrowed from football rather than following rugby’s principles. Thankfully, The Guardian reports that Premier Rugby will consult the Professional Rugby Players’ Association before deciding on a penalty format for the Guinness Premiership semi-finals on Saturday.
In other news;

• Major European skiing associations have created a European Skiing Association (EuroSki), reports Universal Sports.

• The government is discussing ways in which the FA Premier League can redistribute its earnings on a fairer basis, reports the Daily Mail.

Research from Brand Finance has valued the Indian Premier League’s (IPL) cricket brand at over US$311 million and the entire enterprise at US$2.01 billion. A spokesperson for the brand valuation company told South Africa’s The Times that listings could be possible for some of the eight franchises.

• The Formula One Teams’ Association (FOTA) has asked for talks with the Fédération Internationale de Automobile (FIA) about a proposed £40 million budget cap from 2010, reports the BBC.

• Arsenal told Soccer Investor that they are cooperating with an investigation by the Takeover Panel that relates to Stan Kroenke’s share purchase in the club.

• The England and Wales Cricket Board (ECB) will have to amend its constitution to introduce a woman onto its 12-man board, reports The Guardian!

• Finally, congratulations to former colleagues involved in organising the excellent SportAccord conference, which brings together the world’s sporting federations. The General Association of International Sporting Federations (GAISF – or AGFIS if you prefer French) have decided to change their name to match that of the conference. Well done Fiona, Polly, Anna, Jonny, etc.

The May edition of World Sports Law Report is currently on our internet site. Enjoy!

Andy Brown

Friday, May 01, 2009

Sports Law Weekly Round Up: 1 May 2009

 It has been an extremely busy week in the world of sports regulation, which perhaps explains why most of the sports lawyers I have spoken to this week have been rushed off their feet. In a new feature launched today by World Sports Law Report, here are some of the news articles that we found interesting.

In cricket, county players have been warned against signing contracts for a new competition, the American Premier League, reports CricInfo. The Board of Control for Cricket in India has also offered an amnesty to all cricketers, umpires and support staff connected with the unsanctioned Indian Cricket League, as long as they sever all ties with the competition. There will be more on this in the May edition of World Sports Law Report, to be published shortly.

The Executive Board of the World Anti-Doping Agency (WADA) is to meet on 9 and 10 May in Montreal to discuss the Article 29 Data Protection Working Party’s opinion on WADA’s International Standard for the Protection of Privacy and Personal Information. 

The International Olympic Committee has announced that its retesting of samples taken during the Beijing 2008 Olympic Games has returned positive tests for six athletes, after new tests for CERA, a new type of EPO blood-boosting drug, became available after the Games.

Formula One team McLaren Mercedes admitted five charges of breaching article 151c of the International Sporting Code relating to events at the Australian and Malaysian Grand Prix, which resulted in a three-race suspension. Formula One has also implemented a cost-capping system, which will penalise teams that spend more than £40 million – it is hoped this will facilitate the entry of new teams into the competition.

Six Football League clubs have begun negotiations with the Hero Global Football Fund to borrow money, reports The Times. The Fund was banned by the FA Premier League in January, and there will be more on their reaction to this in May’s World Sports Law Report.

The Telegraph reports that Alain Bernard may be stripped of his 100m freestyle world record by the international swimming federation (FINA), which has yet to decide if such suits comply with its regulations. World Sports Law Report covered this issue in December 2008.

The Rugby Football Union has warned players that if they are unable to guarantee their availability for the 2010 England tour to Australia, they face exclusion from the elite player squad this summer, reports The Guardian.

The UK Government is planning to appoint a task force to tackle perceived issues around sport and gambling, Gerry Sutcliffe told The Guardian’s Owen Wilson in an interview. Further investigation revealed that this is an own-government initiative which will involve the appointment of a high profile figure to liaise with sports. Watch this space.

And finally – bet you thought that we’d forgotten – Serie A clubs have voted to break away from Italy’s Lega Calcio, reports The Times. Serie A clubs currently share their TV revenue with Serie B clubs, and it is understood that the dispute relates to the distribution of that money.

That’s all folks – until next week. Please get in touch with me if you would like to discuss the issues raised by any of the above articles, or if you have other issues that you feel we should be exploring. I would be keen to discuss potential articles on any of the above subjects.

Andy Brown

Monday, April 20, 2009

WSLR Speaker Calls For Action On Player Abuse

Nick Cusack, Senior Executive at the Professional Footballers’ Association, has called on football authorities to 'get tough’ in their efforts to curb abuse from football crowds.

‘Unless FIFA and UEFA deduct points or disqualify teams from competitions for this kind of behaviour, players will be forced to take matters into their own hands and refuse to play when abuse occurs’, Cusack told an event hosted by the Crown Prosecution Service at Charlton Athletic's ground, reported The Guardian. ‘This has not happened yet but would be fully justified if this was to continue. The current financial punishments handed down to national football associations hardly send a strong message to players that the football authorities are acting proportionately.’

Cusack, who is speaking at World Sports Law Report’s briefing on The Credit Crunch: Implications for Sport, noted that while efforts to combat racist abuse have been largely successful, homophobic and Islamaphobic abuse are on the increase.

‘As a player, you accept criticism and mild abuse as part and parcel of the game but the more rabid and vituperative it becomes the more you feel that you should not have to tolerate it, and the authorities should be more proactive in reducing excess in that regard’, he said.

For more information on The Credit Crunch: Implications for Sport, which will be held on 8 May at the London offices of K&L Gates, click here, contact me by email or on  +44 (0)20 7012 1383.

Erika Joyce


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.

Friday, March 06, 2009

Salary and player restrictions: new balls please

 Salary caps and restrictions on player transfers have been in the news a lot recently. Michel Platini has said he is keen to limit the amount that clubs can spend on player transfers and wages, and FIFA has sent a report stating that its ‘6+5’ proposal is compliant with European law to the European Commission for analysis – the report will be one of the main topics of discussion at a 17 March meeting between the Commission and European Sports Ministers, as World Sports Law Report unveiled earlier this month.

The underlying principle behind these moves concerns protecting the integrity of sport. In any other business, you work towards the goal of eliminating competitors, however sport doesn’t work like that. Despite what Arsenal fans might tell you, a football fan doesn’t want to watch his team win every game in every season for evermore. Competitors must put up some sort of a fight for sport to remain interesting, or for fans to keep paying to watch it. Sport rightly argues that its circumstances are unique, which forms the basis of its argument that it should be afforded certain exemptions from European law to allow it to preserve that competitive element.

However, football is also unique from other sports. A salary cap is able to operate in US sports effectively because it is a closed market – other countries do not (yet) offer any meaningful competition in American football, basketball and baseball. A salary cap is also able to operate in both rugby codes because countries that play both codes have similar economic status (this is a simplistic analysis – there is an argument that south sea island nations have suffered poaching of players for many years and the salary cap does not prevent this).

As football operates in a variety of economic markets and the wealth of clubs varies dramatically, a salary cap would need to be global and would be difficult to enforce. Likewise, it is unproven as to whether the ‘6+5’ proposal will effectively encourage players to develop their own talent, as the ‘6’ refers to players qualified to play for the national team in the country in which the club is based (if you are over 18 and have been living in the UK for the last five years – or three years if you are married to a Brit – you qualify as a ‘British Citizen’. This principle allowed Lesley Vainikolo to play for England at rugby union, even though he was born in Tonga). The ‘6+5’ proposal also does not include substitutes, which would allow clubs to replace three of the six ‘qualified’ players shortly after the final whistle anyway.

As football is unique, it needs unique methods to reinforce the integrity of the game. As both the ‘6+5’ proposal and the salary cap are based around the same principle – that something must be done to encourage clubs to invest in youth and to limit club spending on wages in order to reinforce the competitive balance in football – then why not tackle both at once?

If sport does have the autonomy to make its own rules, as FIFA claims, then FIFA should grasp the nettle and come up with a bold rule. Why not limit player wages during the first two years of a professional contract (for example, to €400,000 per year) when playing for the starting 11 of a club? That would encourage clubs to develop their own players at a younger age and bring them through the system, rather than sign new players on extortionate wages. Player transfers could still operate, as long as players were prepared to accept a pay cut in order to move clubs. It would also encourage player loyalty in the eyes of the fan, as players would not be able to chase ever-higher wages and would be rewarded for loyalty, as they could be paid whatever amount their club deems fit following two years of service. It would also have less of an effect on smaller clubs than any salary cap based on a percentage of revenue.

While there are no doubt faults with this system, I think it has as much - if not more - merit than any of the proposals designed to protect the integrity of football put forward so far.

Andy Brown

Wednesday, February 11, 2009

Opinion: The negotiating aspects of sports mediation

Sport continues to be big business - it is worth more than 3% of world trade and more than 2% of the combined GNP of the 27 Member States of the European Union - despite the so-called 'credit crunch', which has had little impact as far as the world's most popular and lucrative sport of football is concerned. For example, recently a transfer deal of £100 million and a weekly salary of £500,000 were mooted in respect of the AC Milan midfielder Kaka. So, there is much to play for both on and off the field. Where substantial sums of money are in play, sports disputes are never far behind and are on the increase too. This, in turn, raises the question of how best to resolve them. By traditional means - through litigation in the courts - or modern ones, such as alternative dispute resolution (ADR) processes.
ADR takes many forms and a popular one that is proving very successful for settling sports-related disputes - especially commercial and financial ones - fairly, quickly, inexpensively and effectively is Mediation. However, Mediation is not appropriate in all cases, particularly where injunctive relief is concerned and also in the case of doping, which can never be mediated. However, any financial consequences of doping offences do lend themselves to settlement through Mediation.
Mediation is essentially an assisted negotiation conducted through the medium of an independent mediator or facilitator, whose role is to facilitate the negotiation process and assist the parties to reach an amicable settlement of their dispute. The success of Mediation not only depends on the willingness of the parties in dispute to enter into negotiations, but also on the skills of the mediator, who requires not only an appreciation of the negotiation process, but also negotiation skills.
In order to appreciate how to mediate successfully, it is necessary to understand the process and dynamics of negotiating. So, in this article, we will take a look at the general principles of negotiating, which, although not a science, is certainly an art.

Negotiating guidelines
There are a number of useful guidelines to be followed in order to achieve a successful outcome in any negotiations and these general principles apply whatever the nature of the dispute.
In basic terms, negotiating is 'getting to yes'. Like any other form of advocacy - persuading another person to accept your point of view - a negotiation needs to be carefully planned. Before you start, you need to know clearly what your objectives are and how you are going to achieve them. Make sure, however, that your objectives are realistic and reasonably achievable.
An important part of the planning process is to gather as much intelligence about the other side in the negotiation as possible. You will need to know, amongst other things, the kind of people you are dealing with; their strengths and weaknesses; and their aims and objectives.
Again, as part of the planning process, the negotiation needs to be structured into distinct phases. The first phase should identify any points of agreement to get those out of the way; the next, any points of disagreement and the reasons for them. The following phases should be to evaluate - from your own point of view and that of the other side - the importance of these differences and the possibilities for any compromises. Try to identify the matters that are negotiable and the ones that are not negotiable. The points that can be conceded and 'given away' and the ones that cannot - the ones that are 'deal breakers' if not agreed.
Watch out for and try to interpret any 'body language' - that is, non-verbal communications and gestures. This is very important in multi-cultural negotiations. Negotiation also needs time and patience and should not, therefore, be rushed, otherwise bad deals may result.
Every negotiation should be conducted in a courteous and conciliatory manner. When tempers and blood pressures begin to rise, it is time to take a break.
The use of 'role play' - the 'hard' person and the 'soft' one - should be handled carefully. You should decide, in advance, on the particular roles to be played by each of the members of your negotiating team. In particular, you should appoint one of the members of the team to lead the negotiations and someone else to take notes and keep a record of everything that is said and 'agreed' during them. As to the composition of your negotiating team, if the issues raised involve technical, legal and/or financial matters, make sure that there is someone who is qualified and, therefore, can deal with them.
Likewise the imposition of any deadlines, which are designed to move the negotiation along and reach a conclusion more speedily, should also be carefully managed. As in litigation, so also in good negotiation, you should never issue a threat that you are not able and have no intention whatever of carrying out!
Timing is also very important. Choose your moment carefully to press home a particular point. Always know when and how to retreat.
In international negotiations, be aware of and allow for cultural differences and the need, where necessary, for the other side to 'save face'. This is especially important in negotiations with the Chinese and Japanese and also with parties from the Middle East, where pride may be at the heart of the matter or dispute.
Always remember that negotiating is 'getting to yes', and so always try to make it easy for the other side to say 'yes'.

Concluding remarks
You should be aware of all these negotiating techniques not only to use them effectively in your own interests, but also to be aware of any of them when they are being used against you!
In addition to all the other points that I have mentioned, there is one vital or 'golden rule' that should always apply to any negotiation and it is this: Do not insist on getting the last penny!
Also, it is always worth remembering: in a successful negotiation, everybody wins something.

Ian Blackshaw

International Sports Lawyer

Wednesday, February 04, 2009

WSLR Breaks News of WADA Whereabouts Challenge

 World Sports Law Report’s January edition broke news of a legal challenge to the World Anti-Doping Agency’s whereabouts requirements under the World Anti-Doping Code, which requires athletes to state where they will be for one hour each day for out-of-competition testing. The legal challenge, which was launched by Belgian players’ association ACV-Sporta, is being supported by the international association for football players’ associations, FIFPro.

The story received coverage in the Guardian on 22 January and on the BBC on 22 January, however subscribers to World Sports Law Report's e-law alerts, which are free of charge, were informed on 20 January, despite later claims that the story was broken elsewhere (I suppose I should be used to this after 10 years of trade journalism…). The first person two correctly guess which two news organisations also receive the e-law alerts will receive £100 off the cost of a World Sports Law Report subscription! To send your answer, please click on my name below.

Andy Brown

Wednesday, January 28, 2009

177 Sites Illegally Streaming Premier League Football

 The FA Premier League (FAPL) has revealed that during the 2007/8 season, it identified 177 different sites ‘which contained or were connected to unauthorised streaming of Premier League football matches’. The FAPL made its announcement in response to the UK Government’s Department for Business, Enterprise & Regulatory Reform’s consultation on peer-to-peer (p2p) file sharing. The FAPL said that of those sites, 122 (63%) used p2p technology to distribute the content.

The figures illustrate what a tough job the FAPL faces in policing illegal content, and in retaining the value of its rights deal when it comes to renegotiate its rights package for 2010-2013. The value of the FAPL rights deals have continued to rise due to the exclusivity that it creates for its rights holders. If that exclusivity disappears, then the value of those rights could fall, and p2p streaming adds a third threat to the exclusivity of those rights.

The first threat concerns whether decoders can be used to watch matches broadcast by legitimate broadcasters in other Member States. The High Court is currently waiting for a ruling on this from the European Court of Justice. The second threat involves Ofcom’s continuing consultation into the pay-TV market in the UK, which could force BSkyB to allow other broadcasters to screen FAPL football. These potential pitfalls are examined in detail in the January edition of World Sports Law Report.

Andy Brown