Friday, May 18, 2012

Conference on Law, Policy and the Olympic Movement, Part III

Interesting points about the future of the Olympic movement and its regulation were raised on the second day of Ithaca College's third conference on Law, Policy and the Olympic Movement, May 16-18. Karolina Tetlak, a Lecturer in Tax Law at Warsaw University, explained that any officially accredited person coming to the UK for the London 2012 Olympics will be tax-exempt, as will any athlete.

An interesting discussion was held around how Her Majesty's Treasury can reconcile this exemption with its normal requirement that any visiting athlete must pay tax on any earnings whilst in the UK. It was explained that although it is not a requirement of the IOC that host cities offer tax exemption, its 'Candidate Procedure and Questionnaire' for potential hosts asks questions about what taxes the Olympic Games would be subject to if they were held in that country, whilst requiring cities to sign an 'undertaking' that any statement made in the questionnaire is legally binding. Tetlak explained that it is often difficult for cities and countries to pull out of offering tax exemptions, explaining that Poland's new government had threatened to remove a tax exemption granted to UEFA for the Euro 2012 by the previous administration. UEFA apparently mentioned that Germany would be able to take over their co-hosting duties and the tax exemption remained.

An interesting discussion was had about whether in the future, the Olympics will continue to attract the same number of competing bidding cities, given that whilst the profits of the IOC have been increasing over time, host cities report losses more often than not. It was agreed that it would take either a failed Games or a lack of bidders before the IOC would consider giving some of its profits to host cities.

Keynote speaker Professor Ian Blackshaw, a Member of the Court of Arbitration for Sport (CAS), revealed that a CAS decision that it lacked jurisdiction to hear the case of footballer Ömer Riza is being appealed under Article 6 of the European Convention on Human Rights (ECHR), which protects the right to a fair trial. The basic facts of the case are that Riza terminated his contract with Trabzonspor Kulübü Dernegi, alleging that the Turkish club had breached his contract and joined an English club. After filing a claim against Trabzonspor with FIFA, Riza's case was referred back to the Turkish football association (TFF), as all disputes must be heard by a TFF arbitration board under its regulations. The TFF arbitration board held that Riza had wrongfully terminated his employment contract, resulting in an appeal to the CAS, which held that it lacked jurisdiction to hear the case. Riza then appealed to the Swiss Federal Court, which agreed with the CAS. The details of the case will be explained in more detail in the May edition of World Sports Law Report.

Hilary Findlay of Brock University highlighted how the Athlete Biological Passport works and highlighted a number of potential issues with it. Firstly, she pointed out that the passport reverses the presumption of innocence by requiring athletes to prove their innocence if their biological markers indicate that doping might have taken place. It was questioned whether this is the right approach to policing against doping in sport. It was also pointed out that if athletes can still micro-dose, as long as they stay within their biological markers and that if an athlete is already doping, the biological passport might actually require athletes to continue doping in order to ensure that their biological markers continue to appear 'normal'!

There were many other interesting issues raised - far too many to list here. Thank you very much for inviting me, Ithaca!

Andy Brown

Tuesday, May 01, 2012

Interview with Frédéric Donze, World Anti-Doping Agency

The Court of Arbitration for Sport (CAS) yesterday rejected an appeal from the British Olympic Association (BOA) against a World Anti-Doping Agency (WADA) decision to declare a BOA Bye-Law non-compliant with the World Anti-Doping Code ('the Code'). The CAS ruled that BOA Bye-Law 7.4, which bans athletes suspended for doping for over six months from Olympic selection, "is a doping sanction and is therefore not in compliance with the WADA Code".

In its statement in response, the BOA confirms that it has the support of UK Minister for Sport and the Olympics Hugh Robertson in its call for a return to four-year sanctions for drug cheats, contained within its submission to WADA as part of the Code review. A recent World Sports Law Report poll found that 60% of respondents thought that provisions should be included within the World Anti-Doping Code allowing sporting bodies to ban convicted dopers from selection for future competitions.

Earlier this year, World Sports Law Report organised Tackling Doping in Sport, a two-day conference at Twickenham Stadium designed to coincide with the 15 March deadline for submissions to the Code review. WADA is due to table a revised version of the Code at its Executive Committee and Foundation Board meetings, which will take place on 17 and 18 May in Montreal.

World Sports Law Report interviewed one of the key speakers, Frédéric Donze, Director of the European Regional Office of the World Anti-Doping Agency. You can read his comments on WADA's role in amending the Code, sanctioning, Code compliance, anti-doping in developing countries and whether there can ever be a level playing field for athletes in anti-doping terms by clicking here.

Tackling Doping in Sport, which took place 14-15 March at Twickenham Stadium, brought together over 200 anti-doping experts from 22 countries. For more information on the conference programme, click here.

Friday, March 09, 2012

Research Backs TV Alternative To Goal-Line Technology

Research undertaken by sports broadcaster Tim Long has logged just four incorrect goal-line calls during the 2010/11 FA Premier League season, compared to 151 goals that should/should not have been allowed for offside reasons. The research backs recent calls for TV replays to be introduced in football - and that is without analysing incorrect penalty/free kick decisions leading to a goal. Of 20 'goal-line decisions', four were incorrect, 12 were correct calls and four were impossible to tell from TV replays. Introduction of a proper TV replay system similar to that used in rugby union and league (rather than viewing broadcast TV replays) could also resolve the remaining four incidents.

Long told World Sports Law Report that his research, conducted for radio documentary Beyond The Goal Line: Football's Technology Debate, involved spending a whopping 250 hours analysing 713 incidents that occurred during the 2010/11 season. These included:

  • 361 penalty claims for fouls or handballs;
  • 151 goals that should / should not have been allowed for offside reasons;
  • 20 goal-line decisions (only four of these were incorrect, 12 were correct calls and 4 were impossible to tell from TV replays).

The rest of the decisions were red cards, second yellows, foul in or out of the box, etc.

Although the International FA Board has recently announced that it is proceeding with testing for goal-line technology, it is not too late for FIFA to listen to what is actually going on in football and change its mind. The amount of money involved in the modern game means that a lot is at stake and pressure is on players to gain an advantage in any possible way. If that means hoodwinking the referee…

In a sterling effort to show how TV replays could impact football, Long compiled a new Premier League table based on correcting the incorrect decisions. Arsenal would have leapfrogged Manchester City and Chelsea to finish second in the table, while Blackpool and Birmingham wouldn't have been related. Wigan and Wolves should have been relegated instead, along with West Ham.

Long's research proves what is at stake. Professional football needs and deserves a better system if FIFA truly wishes to make football a fair game. Regular readers of this blog will know what's coming next…

FIFA has a duty to protect the referee's integrity and allowing the manager or captain to make a limited number of challenges to decisions made during a match would impact the game little, and most professional clubs already have the technology in place to do this. FIFA's argument is that to allow video replays would ruin the flow of the game. I can't see how an instant TV replay the minute the ball next goes out of play would delay the game any more than referral to goal-line technology systems, or more than appeals to the referee by outraged players currently do.

FIFA's motto is 'For the Good of the Game'. It would appear that TV replays fit this motto neatly.

Andy Brown

Monday, February 13, 2012

‘Ambush marketing’ and the 2012 London Olympics

‘Ambush marketing’ is a form of unfair marketing, which has been described as ‘parasite marketing’, although those engaged in it would characterise and justify it as ‘clever marketing’. Basically, a company or firm claims an association with a sports event which it does not have, and - perhaps more importantly - for which it has not paid a penny. In such a case, sponsors do not get value for the considerable sums that they have expended on the particular sponsorship. Sponsorship is a multi-million dollar industry worldwide and sports sponsorship represents some 88% of the total in terms of numbers and value! So, there is a lot at stake.  

‘Ambush Marketing[1]’ not only adversely affects the interests of official sponsors, it also dilutes the value of major sports events and causes confusion to consumers and fans. Depending upon the facts and circumstances of the particular case and depending also on whether the sports event is protected by a special law or statute - in order for a country to host the Olympics, such a law protecting the Olympic marks and designations must be passed - it may be possible to obtain a court injunction or an award of damages in cases of breach of the rules.  


Combatting ‘ambush marketing’ 

There are a number of legal and non-legal methods of combatting ‘Ambush Marketing’. For example, the International Olympic Committee (IOC) has introduced a ‘naming and shaming’ procedure in which offenders are exposed in a press conference! This seems to have been quite effective on occasions, but must be handled discreetly to avoid any claims of defamation – trade libel/injurious falsehood. 

Another method of combatting ‘ambush marketing’, which takes many creative forms, are detailed and sophisticated so-called ‘brand protection programmes’ created and strictly enforced by major sports event organisers. For example, an elaborate scheme was put into action and successfully implemented during the 2002 Salt Lake City Winter Olympics, with particular controls in place to prevent unauthorised advertising around the venues. 

Likewise, strict and comprehensive rules, having the backing of statutory law, have been put into effect by the Organising Committee (LOCOG) of the London 2012 Summer Olympics. According to LOCOG, the legal and also commercial raison d’être for them is as follows: 

The value of the London 2012 brand is vital to the funding of the Games. You can help support London 2012 by understanding and respecting the need to protect the brand, and by not using our emblems or otherwise creating an association with the Games unless you are sure you are entitled to do so. The hundreds of millions of pounds necessary to organise the Games must be raised by the London 2012 Organising Committee from the private sector – by selling sponsorship, official merchandise and tickets. To raise the necessary revenue, the London 2012 Organising Committee must be able to give its sponsors an exclusive association to London 2012 and the Olympic and Paralympic movements in the UK. As such we must prevent other companies undertaking unauthorised activities which damage our sponsors’ exclusive rights. If anyone could use the 'Games' Marks' for free, or otherwise create an association with the Games, sponsors and merchandise licensees would not want to invest in the Games.’
The London 2012 official website ( includes a useful summary of the rules and explains what is permitted and what is not, and also warns offenders of the serious legal consequences that may follow from any breach of the rules. 


The London 2012 Olympic Games marks and their legal protection 

So, what are the ‘Games marks’ that sponsors pay substantial sums to use and be associated with and that need, therefore, to be legally protected? They are the following: 

  • The Olympic symbol  
  • The Paralympic symbol
  • The London 2012 Olympic and Paralympic emblems
  • The words ‘London 2012’ and ‘2012’
  • The words ‘Olympic’, ‘Olympiad’, ‘Olympian’ (and their plurals and things very similar to them – e.g. ‘Olympix’
  • The words ‘Paralympic’, ‘Paralympiad’, ‘Paralympian’ and their plurals and things very similar to them – e.g. ‘Paralympix’
  • The Olympic motto: ‘Citius Altius Fortius’ / ‘Faster Higher Stronger’
  • The Paralympic motto: ‘Spirit in Motion’
  • The Team GB logo
  • The Paralympics GB logo
  • The British Olympic Association logo
  • The British Paralympic Association logo
  • (and various derivatives)

In what ways are the ‘Games marks’ legally protected? Some of them are registered as trademarks in various goods and service classes under the Nice Classification, whilst others benefit from copyright protection, particularly as ‘artistic works’. Additionally, in the UK, special laws have been passed to give extra protection to some of the ‘Games marks’ The Olympic Symbol etc. (Protection) Act 1995 (OSPA) protects the Olympic and Paralympic symbols, mottos and various words, including Olympiad(s), Olympian(s) and Olympic(s).
The London Olympic Games and Paralympic Games Act 2006 (the ‘2006 Act’) prevents the creation of any unauthorised association between people, goods or services and London 2012.
Thus, the Games Marks can only be used with the express authorisation of LOCOG. Such authorisation has been granted
to official sponsors, suppliers, licensees and non-commercial partners. Of course, such parties must act strictly in accordance with the terms and conditions of their respective agreements[2]. Sponsors and others, who have been granted rights to be associated with London 2012, are listed in the statutory register which LOCOG is required to maintain under the provisions of the 2006 Act.
However, as regards the use of the name ‘Olympic’, businesses that have traded under an ‘Olympic’ name for many years (pre-1995) are allowed to continue to do so under the legislation. In other words, such businesses enjoy so-called ‘grandfather rights’.

Also, the words protected by OSPA can be used in editorial news pieces without LOGOC authorisation and journalists are, in certain circumstances, able to use the LOCOG emblem to illustrate an editorial piece about the Games. But, this exception does not apply to businesses that produce newsletters, client bulletins or other marketing material.  

Furthermore, the use of marks and logos that are confusingly similar to the ‘Games marks’ is also prohibited. So watch out any potential ‘ambush marketers’!

Legal remedies and issues 

LOCOG is prepared to take legal action against infringers in order to protect the ‘Games Marks’, which includes obtaining Court orders for the seizure of unauthorised merchandise and the payment of damages for breaches of the rules. You have been warned! 

But what about local traders and businesses that operate on a relatively small-scale and wish to enter into the spirit of and promote the Games in their communities? They could fall foul of the ‘Ambush Marketing’ rules if LOCOG adopts a zero tolerance approach in all cases.  

Hopefully, in such cases, LOCOG will take into account the particular facts and circumstances of each case and exercise a certain degree of discretion, and not adopt the strict and unbending approach of FIFA in the 2010 World Cup in South Africa and take legal action against all infringers, irrespective of the circumstances. The South Africa World Cup local organising committee brought 450 Court cases against ‘ambush marketers’ of all kinds and were criticised for doing so, especially when picking on small traders! Rightly so, in the opinion of the author of this article. Discretion, as they say, is the better part of valour! 

Again, what about the use of the protected word ‘Olympian(s)’ which, under the OSPA, may not be used without LOCOG authorisation? Supposing an advertiser wishes, in the advertising of their goods or services, to congratulate ‘so-and-so’ as a fine Olympian during the Games, this, technically speaking, is prohibited. A number of commentators consider that this goes too far and is an infringement of the right of free speech, which includes ‘commercial speech’ (i.e. advertising)! In any case, would this actually amount to ‘ambush marketing’. Once more, there is a need for some discretion. 


Concluding Remarks 

Whilst there are strong legal and commercial grounds for cracking down on ‘ambush marketing’, LOCOG would be well advised to remember the old age that ‘circumstances alter cases’ and apply the rules with a certain degree of discretion and common sense. 

Otherwise, there will be PR disasters and the valuable goodwill associated with organising and holding the London 2012 Olympics, which have been described as ‘the greatest sporting show on earth’, will be damaged and undermined! 

Finally, the line between ‘ambush marketing’ and ‘clever marketing’ is not always easy to draw in practice. But that is where the lawyers come in! 


Ian Blackshaw 

[1]. For further detailed information on this important topic of ‘Ambush Marketing’, see Chapter 11 by Ian Blackshaw in ‘Sports Law’ by Gardiner et al, 2006 Third Edition, Cavendish Publishing, London, ISBN 10: 1-85941-894-5. 

[2]. On the subject of Sponsorship Agreements, see ‘Sports Marketing Agreements: Legal, Fiscal and Practical Aspects’ by Ian Blackshaw, 2012, TMC Asser Press, The Hague, The Netherlands, ISBN 978-90-6704-792-0. 

Monday, January 30, 2012

Football Needs TV Replays

Queens Park Rangers Vice Chairman Amit Bhatia has become the latest person within football to call for video replays to be introduced. "I'm convinced it's time to allow the challenge system in football", he Tweeted, reported The Guardian. "We have to have some kind of video replay system so that harsh decisions can be reviewed. So much is at stake in every game. Mistakes are made. Decisions are difficult and that's fine, but why not allow those difficult decisions to be reviewed? One challenge per half per manager wouldn't slow the game down by any more than 30 seconds. I think it's got to happen. Every fan and player in the land would appreciate a fair review of a difficult decision. It's not rocket science. And my rant isn't about today's decision. It's a general observation about football and applies to us all who want fairer decisions."

This is not the first time that clubs have advocated video replays (as this blog posting proves), and I have been arguing for their introduction for a long time. Allowing the manager or captain to make a limited number of challenges to decisions made during a match would impact the game little, and most clubs already have the technology in place to do this. FIFA's argument is that to allow video replays would ruin the flow of the game, however I can't see how an instant TV replay the minute the ball next goes out of play would delay the game any more than appeals to the referee by outraged players. As I have recently pointed out, FIFA is driven by generating money for football and I suspect that it cannot see any commercial value in mandating a system where the technology to be used already exists. Compare this with goal-line technology, where FIFA has a number of companies queuing up to become an official supplier.

Put simply, if Bhatia is to be successful in gaining FIFA support for video replays, he needs to gain support for a system that can generate commercial value for the game, and pitch it to FIFA. Perhaps a system could be introduced similar to that used in Australian rugby league, where companies pay to sponsor video replays. Otherwise FIFA will continue to pursue its expensive and ineffective goal-line technology solution, which is not 'for the good of the game'.

 Andy Brown

Friday, January 20, 2012

FIFA’s actions consistently undermine its motto

FIFA’s motto is ‘For the Good of the Game’. However, I am increasingly thinking that this should be changed to ‘For the Good of Our Own, and Big Business’. Not as snappy, but perhaps more realistic.

Firstly came a damning letter from a number of professional journalists, who have refused an offer from FIFA to become involved with FIFA’s interestingly-titled Independent Governance Committee. Basically, they have refused to become involved because they allege that the Committee is far from independent. Even more interestingly, they also accuse FIFA President Sepp Blatter of trying to personally delay publication of the report by Zug Investigating Magistrate Thomas Hildbrand into kickback corruption at FIFA, which they allege ‘destroys’ his claims to have been cleared by the investigation. ‘We are advised that there is no legal impediment to Blatter putting his copy online today’, reads the letter, which is contrary to FIFA’s claims that the document cannot be released due to legal measures taken by one of the parties involved. The Canton of Zug agrees with the journalists, and has ordered the release of the document. All of this smacks of an organisation trying to protect its own.

FIFA has also been trying to protect its sponsorship deal with Budweiser by forcing the organisers of the Rio 2014 World Cup to break Brazilian law by allowing the sale of beer in its stadiums. This is understandable, as FIFA needs to protect the interest of its sponsor, Budweiser. However, FIFA also wants to change a Brazilian law that mandates half-price tickets for students and OAPs. There is also a reason for this – FIFA now sees ‘For the Good of the Game’ to mean that cash is more important to the football family than social responsibility, and is willing to take money from pensioners and students.

FIFA consistently places its need for ever-more cash above its responsibility of choosing what is best for football. As I have pointed out before, the only logical reason for FIFA’s insistence on goal-line technology when video referees can do the same job is that it sees a system it can license to companies for money.

Perhaps it is time to ask whether FIFA is for the good of the game, or for the good of itself.

Andy Brown