Thursday, June 27, 2013

Increased funding crucial to anti-doping

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

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

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

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

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

Andy Brown


Friday, June 21, 2013

Training Compensation and Contract Termination in Portugal

Felix Majani, a consultant with Coelho Ribeiro e Associados, examines how training compensation and contract termination in football is regulated in Portugal.
 

The two major regulations governing the payment of solidarity mechanism and training compensation in Portuguese football are the collective labour agreement for professional football players (CCT)1, and the regulations of the Portuguese Football Federation on the status and transfer of players (PFF Transfer Regulations). The amount of training compensation that shall be due to the training club immediately following the signing of a first professional contract by a player is mandated by Article 28 of the CCT, as well as by Article 20 of the PFF Transfer Regulations.

The rules of the federation 

Under article 20 of the PFF Transfer Regulations, training compensation is payable to all the club(s) involved in the training and development of the player:

• When the player signs his first professional contract.

• Each time the professional player transfers to another club up to the end of his 23rd birthday.

• When the professional is transferred between clubs or two different associations (whether during or t the end of his contract), before the end of his 23rd birthday.

Annex 4 of these regulations establishes a table similar to the one contained within the FIFA regulations for training compensation. Training compensation is not due when:

• the training club terminates the player's contract without just cause2;

• the player is transferred to a category 4 club;

• the professional re-acquires amateur status upon being transferred.

In accordance with Article 3 annex 4 of the PFF Transfer Regulations, the duty to pay training compensation lies with the club which registers the player as a professional for the first time. It must pay all the clubs which contributed to the training and development of the player from his 12th birthday.

Calculation 

Article 5 Annex 4 of the PFF Transfer Regulations mandates that the amount due to all previous clubs involved in the player's development is calculated on a pro rata basis by multiplying the number of years the player spent training from his 12th birthday to his 21st birthday. In case of subsequent transfers, the same is calculated on the basis of the training costs incurred by the new club multiplied by the number of years of training spent by the player at the former club. For players aged 12-15, the training costs are assessed on the basis of the training and education costs of category 4 clubs.

The CCT provisions 

Annex 3 Chapter 2 of the CCT foresees the indemnification of all training clubs for the development and training of players in two situations:

• When the player signs his first sporting professional contract.

• Compensation in situations besides this.

Annex 3 Chapter 2, Article 33 of the CCT entitles all the clubs involved in the training and education of amateur players to indemnity (compensation) immediately following the signing, by players, of their first professional contract. The minimum conditions entitling the training club to receive such payments are set out in Annex 3 Chapter 2, Article 33.2 of the CCT, and are as following:

• The training club must have communicated in writing to the player, before 31 May of the year in which the player's training period is due to end, informing him of its desire to enter into a professional contract with him on the terms, conditions and minimum remunerations that have been fixed for players by the competition in which the club has been integrated.

• The training club must submit a copy of this letter of intention to contract the player to the Portuguese professional football league and the Sindicato dos Jogadores Profissionais de Futebol (SJPF) no later than 11 July of the following year. The SJPF is the Portuguese professional footballer's union.

• The player must not, as at the 31st of December of the year when his 'contract' with the amateur club has come to an end, have reached the age of 24 years.

These minimum conditions must correspond to the value of the remuneration due under the previous 'amateur contract'. To this value, 10% is added from the list of compensation maintained by the Portuguese professional football league.

This amount must always, if possible, be agreed in writing between the clubs and the said agreement must be registered at the offices of the Liga Portuguesa de Futebol Profissional (LPFP). Annex 3 Chapter 2, Article 32.3 of the CCT requires the compensation to be paid within 30 days following the registration of the said agreement.

Pursuant to article Annex 3 Chapter 2, Article 33.6 of the CCT, in cases where the training club has terminated the amateur's contract without just cause, it is not entitled to receive any training compensation from the player's new club as and when the player signs his first or subsequent professional contract(s) in future.

The amount

Pursuant to Annex 3 Chapter 2 article 33.4 of the CCT, the amount of training compensation due to the former club shall not be less than 20 times the amount of salaries received by the player under his new professional contract. In cases where the player has played for more than one club during his training period, this amount shall be distributed proportionately among all the clubs involved in his training, according to the number of seasons spent by the player with them.

The LFPF maintains an annual list containing the names and amount of compensation due to the training clubs of all the players listed therein. This list must be sent no later than 15 June each year by the LFPF to the SJPF and the PFF. Annex 3 Chapter 2, Article 36 of the CCT requires any club which signs professional contracts with any of the players listed therein to communicate in writing to the player's training club(s) and submit relevant documentation to the LFPF.

Both rules are more or less similar and are applied in parri passu, with each making up for the other in situations of doubt or in cases which are unclear.

Solidarity mechanism 

This is provided for by the rules of the PFF on the status and transfer of players. They are similar to and modelled around the FIFA regulations for the status and transfer of players.

The buying club must deduct 5% of the transfer fee agreed between it and the selling club. It must then distribute this fee (5%) to all the clubs for which the player played between his 12th and 15th birthday. For the clubs which the player played for during his 16th-23rd birthday, the buying club must pay them 10% of the transfer fee and not 5%.

It is the duty of the buying club to pay the solidarity mechanism to the previous clubs. This amount (5%, or 10% where applicable) is distributed equally among all the clubs involved in the training and education of the player. Pursuant to Article 20 of the PFF's Statutes, solidarity mechanism payments are paid on each occasion the player transfers, but only before the expiry of his contract and not for transfers effected by players who are out of contract. No payment is due for players who transfer on 'Bosman' free transfers.

Annex 5 of the PFF's Statutes establishes a table similar to the one maintained by the FIFA regulations on the status and transfer of players clarifying the different percentages used for calculating the amount (5% or 10%) according to the ages during which the player spent at each club.

Unilateral termination of contract

The rules governing the compensation due in cases where contracts are terminated with just cause for gross misconduct are provided for by the PFF Transfer Regulations and the Collective Labour Agreement (CLA) between the LFPF and the SJPF published in chapter 5 of the Portuguese labour official gazette3. The PFF transfer regulations contain no specific provision with regard to calculation of compensation in cases of termination with just cause. This relevant provision (Article 14) only says that: 'a contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause'.

The calculation of compensation is foreseen in the CLA. The rules of the CLA provide, under Article 48.1, that in cases where it is the player who has terminated his contract with just cause as a result of the club's gross misconduct, the player will be entitled to compensation equivalent to the amount he would have received had the contract been performed to its end. If the player signs a new contract, the amount that he will receive as from the new contract, and from the new season, should be deducted from the amount which he was allowed to receive from the original contract.

Pursuant to Article 48.2 of the CLA, the compensation only includes the basic remuneration and the eventual bonus due under the season in which the contract was terminated. This is without prejudice to the player's right to sue in civil courts for more compensation in case the damages he has suffered are greater than the amount he would have received under the contract, as provided for under article 48.3 of the CLA.

Under article 51.1 of the CLA, in cases where it is the club which has terminated the contract with just cause as a result of the player's gross misconduct, the club will be entitled to compensation for the damages suffered. In case the club benefits from the said termination (because it did not replace the player or it gets a new player with a lower monthly salary) the financial benefits received there from will be deducted from the damages suffered.

 

Felix Majani
Consultant
CRA - Coelho Ribeiro e Associados, SCARL, Lisbon
felix.majani@cralaw.com

 

This article was originally published on Coelho Ribeiro e Associados' website, here.

 

1. Published in the Boletim Do Trabalho e Emprego (the Portuguese labour official

gazette) 1st serie number 33 of 8 September 1999.

2. Annex 4, Article 2(ii) of the PFF Transfer Regulations.

3. Ibid. footnote 1.


Thursday, June 20, 2013

Tough Love for Accidental Dopers

Lawyers representing athletes face a difficult task in convincing the Court of Arbitration for Sport (CAS) and National Anti-Doping Panels that their client did not intend to take a substance included on the World Anti-Doping Agency’s Prohibited List. Tom Mountford, a Barrister with Blackstone Chambers, examines how the CAS has taken differing approaches to interpreting Articles 10.4 and 10.5 of the World Anti-Doping Code, which allow an athlete to reduce his sanction if they can prove how a substance entered their system.
 

Kutrovsky and Qerimaj; Oliviera and Foggo: these are cases all too familiar to sports lawyers representing athletes who have accidentally (or allegedly accidentally) fallen foul of the anti-doping regime. These cases represent two conflicting branches of Court of Arbitration for Sport (CAS) authority on the proper approach to intent and reductions of periods of ineligibility when an athlete says that he accidentally consumed certain prohibited substances, and they have continued to exercise the National Anti-Doping Panel in recent cases.

Specified substances under the WADA Code

The problem stems from the special provision under the World Anti-Doping Agency (WADA) Code for the consequences of a doping offence in respect of certain ‘specified’ prohibited substances (being a particular subset which is only banned in competition). If an athlete fails a drug test for a specified substance, he or she may be able to argue that he or she should benefit from one of either rule 10.4 or 10.5 of the WADA Code, which allow for a lesser penalty than the usual penalty for a first time doping offence of two years’ ineligibility.

Rule 10.4

Rule 10.4 provides that where a doping offence relates to a specified substance and the athlete can show how it came into his body and/or came into his possession, then the athlete may qualify for an elimination or reduction of the period of ineligibility – to somewhere between a reprimand and no period of ineligibility up to a maximum period of ineligibility of two years – if the athlete can establish ‘to the comfortable satisfaction of the hearing panel, the absence of intent to enhance the Athlete’s sport performance or mask the Use of a performance-enhancing substance’.

This test has led to a number of conflicting decisions on the question whether for an athlete to benefit from Rule 10.4, the correct question was whether he intended to take the specified substance to enhance his performance or whether he intended to take the product which contained the specified substance to enhance his performance. If, for example, an energy drink contains amphetamines, is the correct approach to ask whether the athlete intended to enhance his sporting performance (a) in taking the energy drink or (b) in taking the amphetamines?

CAS decisions: Oliviera and Qerimaj

In Oliviera, the CAS Panel hearing the case opted for the second of these potential answers, holding (at paragraph 9.14): ‘The Panel does not read clause two of Article 10.4 as requiring Oliveira to prove that she did not take the product (i.e., Hyperdrive 3.0+) with the intent to enhance sport performance. If the Panel adopted that construction, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADC, would render Article 10.5 inapplicable even if the particular supplement that is the source of the positive test result contained only a specified substance…’. This reasoning was agreed with by two further CAS Panels in the subsequent cases of Kolobnev (29 February 2012) and Lapikov (10 July 2012).

In Qerimaj (decided on 12 September 2012; shortly before Kutrovsky), another CAS Panel followed Oliviera in holding that nutritional supplements are usually taken for performance-enhancing purposes, which is not per se prohibited and that ‘…the primary focus can obviously not be on the question whether or not the athlete intended to enhance his sport performance by a certain behaviour (i.e. consuming a certain product), but moreover if the intent of the athlete in this respect was of doping-relevance’.

CAS decisions: Foggo and Kutrovsky

By contrast, a subsequent CAS Panel in Kutrovsky (3 October 2012) elected not to follow the Oliveira, Kolobnev, Lapikov decisions, and instead to follow the earlier case of Foggo (3 May 2011), in concluding that the mere fact that an athlete did not know that a product contained a specified substance did not itself establish the relevant absence of intent under Rule 10.4. This had not produced particular harshness in the Foggo case, as the CAS Panel concluded that Mr Foggo’s use of an energy drink called Jack3d was not intended to enhance his sporting performance. Likewise in Kutrovsky, the CAS Panel concluded that although the athlete could not come within Rule 10.4 (despite his ignorance that the Jack3d contained a specified substance), he could still benefit from Rule 10.5.2 on the basis that he was not significantly at fault.

Tough love before the National Anti-Doping Panel (NADP)

The Oliveira-Qerimaj line of authority was therefore promising for athletes who had failed doping tests in cases where they were unaware that the product contained a specified substance. Unfortunately for those athletes, in recent cases the NADP has rejected the attempt to rely on that line of authority and has instead endorsed the Foggo-Kutrovsky line, adopting a strict approach to the interpretation of Rules 10.4 and 10.5 (which allows for a reduction of the sanction in cases where the athlete was not or ‘not significantly’ at fault).

In the case of Whyte (NADP Decision 22 January 2013), a Panel of the NADP (noting that the prospective draft of the WADA Code and Commentary favours the Foggo/Kutrovsky approach) applied the Kutrovsky approach to find that the athlete had intended to enhance his sporting performance in using the same energy drink (Jack3d) as had been in issue in Foggo and, accordingly, that he could not benefit from Rule 10.4. However, contrary to the decision in Kutrovsky, the Panel concluded that the athlete could not benefit from a reduction on the basis of no significant fault under Rule 10.5.2 either, by reference to his inadequate investigations into Jack3d. Mr Whyte appealed to an Appeal Tribunal of the NADP. The Appeal Tribunal dismissed the appeal noting the duty of utmost caution imposed on athletes in the advisory opinion in FIFA v WADA (CAS 2005 IC.976 & 986). The Appeal Panel expressed doubt as to how the CAS Panel in Kutrovsky had reached its decision that Mr Kutrovsky was not significantly at fault, and dismissed Mr Whyte’s appeal on the basis that the inadequate inquiries made meant he could not benefit from a reduction for no significant fault under Rule 10.5.2. The Appeal Panel also set out a general warning and reminder stating:

‘This case emphasises, yet again, the dangers of athletes taking supplements which contain MHA. These risks have been the subject of a public warning by UKAD following the publication of the decision in UKAD v Wallader made on 29th October 2010. A number of sports governing bodies have issued warnings about MHA. On 28th August 2012 the Medicines and Healthcare Products Regulatory Agency removed Jack3d containing MHA from the UK market, following serious concerns about the safety of this substance. A list of supplements which have been tested to proper standards is available at www.informed-sport.com. Any athlete who uses a supplement which is not on that list is running a serious risk of attracting a doping violation.’

In similar vein, in the case of Llewellyn (14 February 2013) an eminent Appeal Tribunal composed of three Queen’s Counsel rejected the Qerimaj approach and took the exceptional step of expressly doubting the CAS decisions in both Oliviera and Qerimaj, stating at paragraph 5.42, ‘Suffice it to say that the Appeal Tribunal is of the view that Qerimaj and Oliviera should not in future be followed.’ This is a comment which James Segan has already discussed in his blog post on the need for a Grand Chamber of CAS to avoid the confusion of conflicting CAS decisions – see here. Despite having no power to overrule a decision of CAS, the NADP has therefore sent a clear message of its tough new intent. Some will argue this is the tough love the anti-doping system needs to be effective; others that this is harsh justice for individual athletes who through ignorance or naivety test positive for a prohibited substance through use of an energy drink or similar product.

Tom Mountford
Barrister
Blackstone Chambers, London
tommountford@blackstonechambers.com

Members of Blackstone Chambers have been involved in a number of the cases above.  Nick De Marco and Tom Mountford acted for the athlete in the NADP’s first decision in Whyte; Ian Mill QC and James Segan acted for the athlete in Lapikov; Robert Englehart QC was a member of the Appeal Tribunal in Llewellyn; Charles Flint QC was the Chairman of the Appeal Tribunal in Whyte; and Michael Beloff QC was a member of the CAS Panel in Kutrovsky.
 

This article originally appeared in the Blackstone Chambers Sports Law Bulletin here.


Wednesday, June 19, 2013

'11 of Hearts' Trademark: Why Bale Should Consider a Transfer to Guernsey

In recent years, sport has been no stranger to bizarre trademark claims, especially in the US. As World Sports Law Report highlighted in its April edition, National Basketball Association (NBA) star Jeremy Lin last year sought to trademark 'Linsanity', a phrase coined following a winning streak. He has been followed by another NBA star, Antony Davis, who has sought a number of copyrights based on his trademark 'unibrow'; and National Football League star Tim Tebow, who has trademarked his touchdown celebration as 'Tebowing'.

It appears that Tottenham Hotspur player Gareth Bale - or more likely agents who represent him - has been watching. Bale has sought to trademark his '11 of Hearts' goal celebration with the UK's Intellectual Property Office. Whether the IPO will accept such an application remains to be seen, however there is a jurisdiction where such an application would be welcomed - Guernsey.

The Channel Island, just off the coast of French Normandy, is a British Crown dependency, but as it is not part of the United Kingdom or the European Union, creates its own laws. At the end of 2012, the Channel Island of Guernsey created the world’s first registrable image right that can register a person’s image, nicknames, videos, mannerisms and distinctive characteristics. Tennis's Heather Watson has registered her image, and law firm Collas Crill IP was behind the deal.

'The very notion of image rights is hugely problematic from a UK perspective', wrote David Evans and Jason Romer of Collas Crill IP in the June edition of World Sports Law Report. 'Under UK law, there is no definition of an image right per se, and the Courts have struggled with various ways in order to try to fill this gap. The Guernsey Image Right allows your clients to register their images, nicknames, videos, mannerisms and any distinctive characteristics that identify them. These rights will be registered on the register and can include all of those features that are so difficult to define in a contract. We have all grappled with what a ‘gesture’ or ‘mannerism’ means in that definitions section before - now it really means something and can be directly referred to in relevant contracts'.

 Perhaps Bale and his advisors should consider an IP transfer from the UK to Guernsey…

Andy Brown


Tuesday, June 18, 2013

NFL Commissioner Says Redskins Is A 'Positive' Nickname

National Football League (NFL) commissioner Roger Goodell has said the Washington Redskins's nickname has 'a positive meaning' in a letter to 10 members of Congress, who had earlier urged team owner Daniel Snyder and the NFL to change the name because it is offensive to many Native Americans. The members of Congress sent their letters to Snyder, Goodell and the other 31 NFL franchises in May. Goodell's response was sent June 5, a copy of which can be viewed on the Indian Country Today Media Network.

'The Washington Redskins name has thus from its origin represented a positive meaning distinct from any disparagement that could be viewed in some other context', Goodell stated. 'For the team's millions of fans and customers, who represent one of America's most ethnically and geographically diverse fan bases, the name is a unifying force that stands for strength, courage, pride and respect'.

Betty McCollum (D-Minn.) and Eni Faleomavaega (D-American Samoa) responded to Goodell's letter with statements of their own. McCollum said Goodell's letter was 'another attempt to justify a racial slur on behalf of Dan Snyder and other NFL owners who appear to be only concerned with earning ever larger profits, even if it means exploiting a racist stereotype of Native Americans'. Faleomavaega said that Goodell 'completely missed the point regarding the Washington franchise's name'.

The letter to Snyder said that 'Native Americans throughout the country consider the "R-word" a racial, derogatory slur akin to the "N-word" among African Americans or the "W-word" among Latinos'. The nickname is the subject of a long-running legal challenge from a group seeking to have the team lose its trademark protection. The team’s owner has vowed he will never change the name.

W. Gregory Guedel
Attorney
Foster Pepper Pllc, Seattle
guedw@foster.com

Greg is chair of Foster Pepper's Native American Legal Services Group and edits its blog, where this post originally appeared here.

 


Friday, June 14, 2013

May Editorial: Moving the goalposts

Would you spray a product derived from deer antler velvet into your mouth in order to aid recouperation from a back or knee pain? You would do that without question? OK. If you were a professional athlete, would you use such a spray if you knew it came from a company called Sports With Alternatives To Steroids (SWATS)? Comfortable with that? OK. How about if you visited the SWATS website and were greeted by background pictures of bodybuilders ‘feeling the burn’ and stocked with products such as ‘Jacked Spray’. Still comfortable? If you looked at the people behind SWATS and found they were bodybuilders and not scientists. Still unconcerned? How about if you checked the ingredients of the spray and found that it contained IGF-1, which features on the World Anti-Doping Agency’s Prohibited List?

Vijay Singh’s lawsuit is surprising, because under the strict liability conditions mandated by Article 2.1 of the Code, he has been very lucky. Professional athletes know that they are responsible for what goes into their body and that ignorance is not a defence for violating the World Anti-Doping Code. Singh’s lawsuit claims that he checked the spray bottle and SWATS said that their products were all-natural and didn’t contain any banned substances. There is a raft of case law in anti-doping which illustrates that this is no defence.

However, the lawsuit again highlights the difficulties that international sporting federations face when the World Anti-Doping Agency (WADA) moves the goalposts. Singh’s lawsuit arose because the PGA Tour was forced to drop its charges against him after WADA confirmed that it no longer considers ‘deer antler spray’ to be prohibited. This was news to the PGA Tour. It now faces a legal battle which if Singh wins, will undermine the anti-doping process and in which it is accused of 'recklesss administration and implementation of its Anti-Doping Program'.

If Singh’s lawsuit is successful and he is awarded damages, the danger is that this case could embolden athletes who have (arguably) not carried out sufficient checks on the substances they are using. Currently, the onus is on the athlete to check that the substance they are using is not on any prohibited lists. Do we really want to put the onus on international federations to check with WADA that their lists have not been amended? This will be something for the court to decide…

For more on the Vijay Singh lawsuit, see this news article and this feature, from Stacey Shevill of Squire Sanders.

Andy Brown


Thursday, June 13, 2013

Henning Berg v Blackburn Rovers: Contract Termination

In the case of Henning Berg v Blackburn Rovers Football Club, the High Court determined that a contractual payment due as compensation on early termination of a fixed term contract was enforceable. Liz Ellen and James King, of Mishcon de Reya's Sports Group, examine the ruling and its implications.

Blackburn Rovers terminated the three-year fixed term contract of their manager, Henning Berg, in December 2012, after just 57 days in the job. There was a contractual provision in Mr Berg's contract giving Blackburn the express right to terminate early, provided that the Club paid Mr Berg a sum equal to his gross basic salary for the unexpired balance of the fixed period as 'liquidated damages' – totalling £2.25 million. The Club initially admitted liability and agreed to pay Mr Berg the remainder of the contract, but later sought to argue that the contractual provision was a so-called penalty clause (a pre-determined amount disproportionate to the financial loss likely to be suffered on a breach of contract) and that it was therefore unenforceable. The reason for raising this argument was that if the clause was deemed to be a penalty, payment under it could not be enforced by Mr Berg, who would only be entitled to damages for breach of contract under normal contractual principles (meaning he would be required to mitigate his loss, i.e. limiting his entitlement to damages by requiring him to find alternative employment).

It is established law that payments due on an event, such as the exercise of an express right to terminate a fixed term contract early, which is not a breach, cannot be invalidated as penalties. Applying existing law, the High Court found that because the payment to Mr. Berg was due on the occurrence of an event other than a breach of contract, the relevant clause was valid. The agreement expressly granted Blackburn the right to terminate the fixed term early. As such, termination in accordance with it could not be a breach, and thus could not engage the law on penalties.

In summary

A contractual payment on early termination will not be a penalty and will therefore be enforceable. Penalty clauses can only apply in circumstances where the trigger for payment is a breach of contract.

In Practice

When drafting or negotiating service agreements and contracts of employment, to increase certainty and reduce the risk of a penalty argument being raised, avoid describing non-breach payments as 'liquidated damages'. Damages are only relevant where there has been a breach of contract. For employers looking to limit the payments to be made on termination, it is better to expressly provide for a reduction in the contract, rather than later trying to rely on a penalty argument.

 

Liz Ellen, Associate
James King, Solicitor
Mishcon de Reya, London
liz.ellen@mishcon.com
james.king@mishcon.com

 

This article was originally published on Mishcon de Reya's internet site here.


Wednesday, May 22, 2013

UEFA's Financial Fair Play Regulations and compliance with EU law

On 6 May, Belgian player agent Daniel Striani lodged a complaint with the European Commission challenging whether UEFA's Financial Fair Play Regulations comply with European Union law. Andrew Nixon, a Partner with Sheridans Sports Law group, examines previous challenges to sporting rules based on EU competition law grounds, and assesses how the European Commission may view the Financial Fair Play Regulations

In 1995, the case of Jean-Marc Bosman came before the European Court of Justice (ECJ) and changed the face of football in Europe. The case involved (amongst other issues) a challenge to the legality of the transfer system for football players. The ECJ found in favour of Bosman and against his club, RFC Liege, the Belgium FA and UEFA, determining that transfer fees for out of contract players were illegal where a player was moving between one EU nation and another.

Almost 18 years later, a Belgian football agent called Daniel Striani has lodged a complaint with the European Commission on the basis that UEFA's Financial Fair Play Regulations (FFP) are anti competitive and will negatively impact on his ability to generate income. It is a challenge that may yet have an impact as significant as that of the Bosman case.

Background to the Financial Fair Play Regulations

The spending of football clubs, particularly those licensed by and under the jurisdiction of UEFA has long been an issue and a point of debate within the sport. In England, whilst commercial revenues have continued to rise (the Football Association Premier League sold the broadcast rights for seasons 2013-2016 for £3.018 billion), that has not necessarily reflected itself on the balance sheet, with many clubs having experienced falling operating profits and pre-tax losses. Some clubs have been able to operate as normal and, indeed, expand squads and wage bills, as losses were underwritten by wealthy investors and benefactors. Other clubs have operated at levels above their means, gambling player wages against receipt of broadcasting revenue, a strategy which has on more than one occasion led to insolvency events involving high profile clubs.

In September 2009, the first steps were taken to positively address the spiralling debt within European football when UEFA's Executive Committee approved the concept of financial fair play. The objectives were as follows:

  • to protect the long term viability of European club football;
  • to introduce more discipline and rationality into club finances;
  • to decrease pressure on salaries and transfer fees and limit inflationary effects;
  • to encourage clubs to compete within their means;
  • to encourage long-term investments in academies and youth infrastructure; and
  • to ensure clubs settle liabilities on a timely basis.

The overriding obligation on clubs licensed by UEFA is, over a period of time, to balance their books or break even. Under the rules, clubs cannot, repeatedly - as part of a multi year assessment - spend more than their generated income, thereby enabling a longer term view to be formed. The UEFA Executive Committee approved the creation of a Club Financial Control Body in June 2012 (replacing the Club Financial Control Panel), which oversees the application of the Financial Fair Play Regulations alongside the Club Licensing System and is competent to impose disciplinary measures. Clubs have had their accounts monitored since summer 2011, with the break even assessment covering financial years ending 2012 and 2013, to be assessed during the 2013/2014 season.

The principles behind FFP were also adopted domestically in England, initially by the Football League, which has had to deal within a number of insolvency events and administrations. In the Football League Championship (the division below the Premier League), clubs have agreed to introduce a break even approach based on the UEFA FFP model, whilst in League 1 and League 2(the two divisions below the Championship), clubs will implement the Salary Costs Management Protocol, which (broadly) limits spending on total player wages to a proportion of each club's turnover. Just last month, the Premier League ratified its own financial fair play regulations which, amongst other elements, will mean that clubs with a total wage bill of more than £52 million will only be allowed to increase the wage bill by £4 million per season for the next three seasons (restrictions applying to broadcasting income only).

The Striani Challenge

The overall objectives of FFP are, on the face of it, in the interests of the game and its future as a self sustaining sport. Indeed, the licensee clubs themselves agreed to the implementation of the rules. Why, therefore, has Striani launched this challenge?

There are real issues of sporting regulation that will need to be addressed and analysed by the Commission. The key arguments that Striani will employ will be that the break even rule (Article 57 of the UEFA Financial Fair Play Regulations):

  • will restrict outside investment in football clubs;
  • effectively preserves the dominance of clubs that do not operate losses by preventing clubs operating at losses in order to break through(I wonder if the point here is that it preserves the dominance of clubs that have previously operated at a loss - e.g. Chelsea and Manchester City - by preventing other clubs from doing the same?); and
  • will dampen the transfer market and salary levels, with a knock on effect on Striani's ability to generate revenue and income.

The merits of the complaint

The reality is that the competition rules of the Treaty on the Functioning of the European Union (TFEU) were drafted with more orthodox industries in mind than sport and, perhaps, the key document when assessing the Commission's attitude to sporting rules is its 2007 White Paper on Sport. This addresses, amongst other matters within sport, governance and licensing.

Indeed, at paragraph 4.7 of the White Paper, the Commission acknowledges the usefulness of robust licensing systems for clubs as a 'tool for promoting good governance in sport'. The Commission stated that these licensing systems generally aim to ensure that all clubs respect the same basic rules on financial management and transparency. However, such systems must be compatible with competition laws and the Internal Market provisions and must have at their heart a legitimate aim and objective.

There are a number of industry nuances which are recognised and will be applied when assessing compliance with Community law. For example, sport must involve uncertainty of outcome and there must therefore be a degree of competitive balance and equality within competitions which, of course, sets it aside from other industries in which - unlike sport - there is no interest in competitors retaining economic stability.

However, despite these accepted nuances, the Commission will not reject the complaint simply because FFP purports to maintain competitive balance - indeed, one of Striani's key arguments is that it does the exact opposite). The ECJ has long since rejected the 'sporting exception' argument on the basis that, as determined in Meca-Medina & Majcen v the Commission1, sporting rules do not fall outside the scope of EU competition law simply because they regulate sport. In Meca-Medina, the ECJ ruled unreservedly that although the doping ban was proportionate in the circumstances and doping rules were a legitimate means of protecting sporting integrity, all sporting regulations which produced appreciable economic effects must be subject to review. The objective of the anti doping rules was to ensure fair competition, a level playing field for all and were 'inherent in the organisation and proper conduct of competitive sport'. However, will the Commission (and, if necessary, the General Court and the Court of Justice of the European Union - as it is now named) view FFP in the same light?

The Commission has produced a methodology as to how it will apply competition law to sport. The first question to be considered is whether or not the body that adopted the rule is an undertaking, or an association of undertakings. The second question will be whether or not the FFP regulations (specifically the break even rule) restrict competition, or indeed constitute an abuse of a dominant position. In answering this question the Commission will give consideration to the overall context of the rules, whether or not the rules are inherent in the pursuit of the body's objectives and whether or not - in light of the overall objective - the rule is proportionate. Thirdly and fourthly, the Commission will consider if the rule affects Member State trade and if the rule fulfils the conditions of Article 101(3) TFEU, which lists exceptions to the prohibition on restrictions to free trade.

What broad conclusions can be reached by applying this methodology to FFP? Is UEFA an undertaking? An undertaking is described as an entity engaged in economic activity and there is no doubt that UEFA, and its member clubs, are undertakings within the meaning of Articles 101 and 102 TFEU. Indeed, UEFA would be considered to be an association of undertakings.

Do the FFP rules restrict competition or constitute an abuse of a dominant position? Rules drawn up by a sports governing body will constitute a decision by an undertaking, or an association of undertakings. Therefore, on that basis, those rules may have the effect of distorting competition, even if the objectives are not such and there is merit in any argument that FFP has a distortion effect.

Do the FFP rules pursue a legitimate objective (the impact of which is proportionate to that objective)? The ruling in Meca-Medina discounts any reliance on the sporting exception argument. However, legitimate objectives will relate to organisation and proper conduct of competitive sport and, arguably, FFP complies with this requirement in that its objective is to safeguard the financial stability of the sport. However, the Commission will need to analyse whether or not FFP goes further than is reasonably necessary to secure the objective of financial stability.

Will FFP affect inter-Community trade? The answer to this question will almost certainly be yes and it is generally accepted that rules adopted by international sports governing bodies will affect trade when an economic activity is involved. In this case, FFP will inevitably have an impact on the transfer market and player trading between Member States.

Is the restriction justified? It will be, but only if the beneficial effects of the rule outweigh its restrictive effects, and there is merit in any argument that it does not. The purpose of the break even rule is to ensure that clubs spend within certain limits, thereby ensuring they do not overstretch themselves financially. From a competition perspective, this will inevitably dampen the player transfer market, which will have a knock on effect on the ability of agents such as Striani to generate income. The rule will also prevent investment in clubs by third parties which will arguably preserve the dominance of certain clubs, as opposed to making the competition fairer and more balanced. That reduced investment will also have a direct impact on playing squads, both in terms of the level of player remuneration and the size of those playing squads.

The Commission responded positively to complaints raised with it in relation to the FIFA Player-Agent Regulations in the late 90's, eventually issuing a statement of objections in which it asserted that the FIFA Player-Agent Regulations contravened then article 81(1) of the Treaty by limiting access to the player-agent market. Notably, the Commission took the view that the objectives of the regulations could be achieved by less restrictive means, stating that:

'The Rules prevent or restrict natural or legal persons with the necessary vocational skills from having access to a job. The Commission recognises that there must be checks on access to the profession and that some rules are necessary in order to ensure the smooth operation and to prevent deterioration in the ethical values in sport. However, the rules must be in proportion to the objective pursued. There are clearly other rules which could ensure professionalism on the part of agents without being unduly restrictive.'

A key question will therefore be: are there other feasible rules which could ensure financial fair play in European football, which meet the objectives, but are less restrictive? Arguably, these less restrictive, objective-meeting rules are already in force. It has always been the case that clubs are required to demonstrate, as part of the licensing criteria, that there are no overdue payables to other clubs, their employees, or to tax authorities. Indeed, it will also inevitably be argued by Striani that there are other, better means of redressing competitive imbalance, such as a restructuring of the revenue sharing mechanism between clubs, with perhaps the adoption of a form of 'tax' on the higher spending clubs.

It is the writer's view that employing a regulatory system of financial control is a justified means of ensuring that football clubs compete within their own commercial boundaries and the objective of FFP is therefore credible and justifiable. However, it is entirely possible that the challenge will find its way to the Court of Justice of the European Union (as it is now known) and it will not necessarily be a comfortable ride for UEFA. Whether or not Striani can take his place alongside the likes of Bosman and Meca-Medina remains to be seen and will be watched with interest.

Andrew Nixon Partner
Sheridans, London
anixon@sheridans.co.uk


1. (Case 519/04) ECR 2006 1-6991.


Monday, May 20, 2013

Cricket disciplinary appeal is an Arbitration

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


ASADA investigates the NRL - a legal perspective

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


Thursday, May 09, 2013

Free TV Australia proposes ban on the promotion of live odds

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


Friday, May 03, 2013

Liar, Liar - Should Polygraph Evidence be used in Sports Tribunals?

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/


Thursday, March 21, 2013

Former Chelsea Football Club Sports Psychologist sues Vancouver Canucks over work permit dispute

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


Wednesday, March 20, 2013

Newcastle could appeal to FIFA against FA’s decision not to sanction McManaman

 A summer agreement between football’s stakeholders prevented retrospective action from being taken against Wigan Athletic’s Callum McManaman, following a horror tackle on Newcastle United’s Massadio Haidara on 17 March. This is despite the FA’s own regulations allowing retrospective action to be taken. However Newcastle United, which called the FA’s disciplinary procedures ‘not fit for purpose’ in a 19 March statement, may have a case to appeal to FIFA.

 

‘Following consultation with the game’s stakeholders (the Premier League, the Football League, the Professional Footballers’ Association, the League Managers’ Association, Professional Game Match Officials Limited and the National Game) in the summer, it was agreed that retrospective action should only be taken in respect of incidents which have not been seen by the match officials’, read a 19 March statement from the Football Association (FA).

 

However, the FA’s rules do allow retrospective action to be taken. Section A, Regulation 8(j) (Rule E3) of the FA’s Disciplinary Handbook states: ‘A charge of Misconduct…may be brought against a Player in relation to an incident whether or not the same incident has been dealt with by the referee’.

 

FIFA regulations would allow a Newcastle appeal. Although Article 72 of the FIFA Disciplinary Code mandates that the referee’s decision is final, it also provides that ‘in certain circumstances, the jurisdiction of judicial bodies [Disciplinary Committee, Appeal Committee & Ethics Committee] may apply’. These ‘certain circumstances’ are defined in Article 77 as ‘sanctioning serious infringements which have escaped the match officials’ attention’ and ‘rectifying obvious errors in the referee’s disciplinary decisions’. Newcastle may have a case here.

 

Further salt has been rubbed into the wound with the news that the FA is to charge Newcastle’s Assistant Manager John Carver with misconduct in relation to the match against Wigan. The club is understandably upset. ‘Newcastle United, along with other clubs, have had players suspended for incidents reviewed after the game’, read its 19 March statement. ‘Whilst not trivialising these incidents, they were not, in our opinion, of the seriousness of Callum McManaman's tackle on Haidara. Whilst we understand that the current procedures give the FA limited options, it cannot be correct that the most serious offences - those which have the potential to cause another player serious harm - can go unpunished, even if the original incident was seen by match officials. We will now be making a strong representation to the FA and the Premier League to see how a more appropriate, fair and even-handed disciplinary process can be introduced at the earliest opportunity to prevent incidents of this nature going unpunished in the future.’

 

If that doesn’t work, a FIFA appeal may be the next option.

 

Andy Brown


Friday, March 15, 2013

Education and Intervention Key To Tackling Doping in Sport

 

Sport should focus more on education and intervention rather than increased testing to combat doping, heard delegates at Twickenham Stadium for the sixth edition of Tackling Doping in Sport. The 250 delegates present also heard that while international sporting federations are doing more than ever before to take anti-doping efforts to remote jurisdictions, the system needs to punish those who do not correctly implement the World Anti-Doping Code.

 

“WADA needs to evolve with the Code”, said Andy Parkinson, Chief Executive of UK Anti-Doping in his opening address. “Should WADA have investigative powers? Yes, but it should investigate uninvited countries and sports that are not correctly implementing the Code. We want WADA to be more than just a service provider.”

 

Rob Koehler, Director of Education and Program Development at the World Anti-Doping Agency (WADA), highlighted that while the Code places emphasis on testing, very few anti-doping organisations are carrying out education programmes. He revealed that WADA will attend a May meeting with the International Olympic Committee (IOC), international federations, UNESCO, International Fair Play and more on educating young people about anti-doping. This problem was further highlighted by Stephen Watkins of the Rugby Football Union, who raised significant issues regarding supplement use amongst young rugby union players.

 

Speakers also highlighted difficulties with the current testing-focussed regime and how they are being overcome. Thomas Capdevielle of the International Association of Athletics Federations pointed out that WADA's requirement for sample collection under the Athlete Biological Passport to be analysed in 36 hours by an accredited laboratory can be problematic in certain jurisdictions. The IAAF is launching a satellite laboratory in Eldoret, Kenya, using staff from the accredited Lausanne laboratory.

 

Hannah McLean of UK Anti-Doping gave a fascinating example of how cooperation with law enforcement worked to combat doping in the case of an athlete and coach whose house had been raided to find 60,000 steroid pills. The case revealed that if anti-doping authorities can prove that an athlete intended to cheat by taking what they believe to be a prohibited substance, then analytical evidence showing that a substance had prohibited drugs in it is not essential. She also revealed that an athlete can renounce possession if they make a mistake and buy a prohibited substance by immediately informing the national anti-doping authority concerned.

 

Anti-doping authorities also face a challenge presented by the European Union's revision of its data protection laws. Lars Mortsiefer, Head of Legal at the Nationale Anti-Doping Agentur Deutschland, said that WADA's requirements “cannot be reconciled” with the wishes of the Article 29 Working Party of data protection regulators.As reported in World Sports Law Report, the Art. 29 WP wrote to WADA last week with a 13-page list of issues with the Code. Dan Cooper, WADA's External Privacy Counsel, said that international transfer of data could “prove problematic” and that blood profiling would be “impossible” if current issues were not resolved.

 

Other issues raised included;

• Interpretation of Article 10.4 of the Code by administrators at the Court of Arbitration for Sport (CAS) can be problematic;

• The 2015 Code needs to clarify whether CAS Arbitrators can still work for sporting organisations, or if they need to be truly independent;

• The US Equestrian Federation is using polygraph (lie detector) tests in anti-doping cases already;

• Clarification is needed as to what constitutes 'substantial assistance' to reduce an athlete sanction under Article 10.5.3 of the Code.

 

Tackling Doping in Sport is organised by World Sports Law Report, Squire Sanders (UK) LLP and UK Anti-Doping.


Tacking Doping in Sport Day 2: Code Revisions Need Closer Examination

  Planned revisions to the World Anti-Doping Code need closer examination before the 2015 version is published, heard delegates at day two of Tackling Doping in Sport 2013, which took place 13-14 March at Twickenham Stadium. The 250 delegates from over 30 countries held a lively round-table discussion on contentious areas of the new version of the Code, with suggestions to be submitted to the World Anti-Doping Agency as part of its Code Review process next week. 

 

Joseph de Pencier, CEO of the Institute of National Anti-Doping Organisations kicked off the day by highlighting seven main areas of change in the 2015 Code. The audience was split over whether the standard two-year ban for a first time offence should be increased to four years, as proposed in the 2015 Code. Under the 2009 Code, sporting organisations wishing to prosecute an athlete who has intended to cheat for longer must push for 'aggravated circumstances' under Article 10.6 to scale a first time offence ban up from two years to a maximum of four. However, UK Anti-Doping (UKAD) pointed out that they are often curtailed from doing this by a caveat to Article 10.6, which allows an athlete to 'avoid the application of this Article by admitting the anti-doping rule violation'.  

 

Under the current 2009 Code, the onus is on the international federation (IF) to 'scale up' the ban under Article 10.6. Under the 2015 Code, the onus is on the athlete to scale the standard four-year ban down. There was much debate over whether it is right to place the onus on the athlete to reduce the ban, especially now that athletes face having to pay costs at the Court of Arbitration for Sport should they lose a case, if the IF delegates sanctioning to the national association concerned. “I must now advise athletes that they could face having to pay CAS costs as well as legal costs”, said Antonio Rigozzi, Partner, Levy Kauffmann-Kohler. 

 

Concerns were raised that this could deter appeals from athletes who had inadvertently ingested prohibited substances with no intent to cheat and, conversely, that a four-year ban was so lengthy that it would result in endless appeals from athletes keen to avoid the end of their career. John Ruger, Athlete Ombudsman for the US Olympic Committee, highlighted that between 40% and 60% of US doping cases are inadvertent. “Most athletes have made silly mistakes and for those that have not, penalties can be upscaled”, said Athlete Lawyer Howard Jacobs. “A four year default ban places the burden on the athlete to prove they are not an intentional doper rather than on the IF to prove intentional doping”.  

 

“In cases of inadvertent doping, rank injustice should not be allowed”, said Adam Lewis QC, of Blackstone Chambers. “Where everybody accepts that there has been no intention to cheat, the Code should provide for this”. 

 

It was also pointed out that the 2015 Code doubles the initial doping sanction for competing while banned. Ruger pointed out that if a four-year standard is used, this could result in some athletes facing an eight-year ban for competing in a competition they did not realise they were banned from taking part in. 

 

Issues were also raised around the drafting of certain changes within the 2015 Code. De Pencier pointed out that Article 8.1 of the 2015 Code entitled athletes to a 'fair hearing as set forth in Article 6.1 of the European Convention on Human Rights and comparable principles generally accepted in international law' and clarification is needed as to what this means in practice. He also said that provisions in Article 10.4.2 on contaminated products need clearer definition. Athlete lawyer Howard Jacobs pointed out that the definition of 'contaminated product' in the Code as 'A product which an Athlete or other Person could not have known contained a Prohibited Substance' has the potential to undermine the whole purpose of the contaminated products rule. 

 

Practical issues were also highlighted, such as those involving regulation of drugs for 'therapeutic use' (therapeutic use exemption - TuE. It was pointed out that if an IF doesn't recognise a National Association's TuE, then that can cause issues for the athlete who qualifies for international competition when competing at the national level, as they may find they fail to qualify again due to competing against NA athletes who have that TuE. 

 

Away from the Code revision debate, a fascinating insight into how the media can work with anti-doping authorities was presented by freelance journalist Hajo Seoppelt, who has been carrying out an investigation into doping in Kenya for German state broadcaster ARD. The International Association of Athletics Federations (IAAF) had highlighted how this problem is being resolved through the use of mobile doping units in areas such as Kenya on day one of the conference. 

 

Brett Clothier of the Australian Football League showed that while the Australian Crime Commission's report into doping in Australian sport had highlighted the involvement of organised crime in doping, it has also revealed a number of other issues. These involved the role of anti-ageing parlours in the supply of drugs into the Australian market; and how Australian sport has been using drugs not regulated under the Code, such as drugs not yet tested on humans. 

 

In wrapping up the conference, Mike Morgan of Squire Sanders (UK) LLP said that the event had provided a “balanced discussion” between those arguing for longer sanctions for doping and those arguing for redemption. “Everyone has different ideas about policing integrity, and that's why this conference is worthwhile”, he said. 

 

The conference was covered by media organisations including The Independent, Reuters, The Guardian, the Washington Post and more. Tackling Doping in Sport is an annual event organised by World Sports Law Report, Squire Sanders (UK) LLP and UK Anti-Doping. World Sports Law Report also organises conferences on Betting in Sport and Player Contracts. For more information, visit www.CecileParkConferences.com 


Tuesday, March 12, 2013

February WSLR Editorial: Silo-busting: integrity's new frontier

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


Tuesday, February 26, 2013

FIFA Licenses Goal-Line Technology Companies

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


Friday, February 22, 2013

Media circus

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