Tuesday, April 29, 2014

Decisions of the CAS ad hoc Division at Sochi 2014

This article summarises the four decisions of the Court of Arbitration for Sports ad hoc Division at the Sochi 2014 Winter Olympics. This article was originally published in the Australia and New Zealand Sports Law Association (ANZSLA) Commentator.

The CAS ad hoc Division

The Court of Arbitration for Sport (CAS) has operated an ad hoc tribunal at each Olympic Games since 1996.

The purpose of the CAS ad hoc Division is to resolve, in an expedited manner, legal disputes which arise during the Olympic Games (and during the 10 day period leading up to the Opening Ceremony).  A temporary office is established in the relevant host city to facilitate the CAS ad hoc Division.

At the recent Sochi 2014 Winter Olympics, the CAS ad hoc Division heard four cases, all involving skiers.

Case summaries

A summary of the cases considered by the 2014 CAS ad hoc Division is provided below.

Clyde Getty v. International Ski Federation1

Clyde Getty claimed that he was eligible to compete at the Sochi 2014 Winter Olympics in the men’s aerials competition after the International Ski Federation (FIS) originally allocated a quota place to the Argentinian NOC. Less than 12 hours later (and after Mr Getty had been informed of the quota place) the FIS withdrew the allocated place on the basis that it was erroneously attributed because no Argentinian athlete was eligible to participate in the event.

The CAS Panel found that the wording in the provisions of the Freestyle Skiing Qualification System was clear and unambiguously required a competitor to meet the individual eligibility requirements to be eligible to compete at the Olympic Games. This included a requirement that the individual have a minimum of 80 FIS points at the end of the qualification period. Mr Getty had not obtained 80 FIS points by the end of the qualification period, therefore the Panel held he was not eligible to compete, even if the Argentinian NOC had been allocated a quota place.

The CAS Panel noted that FIS qualification requirements were supported by Rule 44.5 of the Olympic Rules which provides that ‘the NOCs shall send to the Olympic Games only those competitors adequately prepared for high level international competition’. Mr Getty was unable to point to any instance in the past where an athlete was allowed to compete at the Olympic Games without meeting the eligibility requirements.

The CAS Panel also rejected Mr Getty’s other arguments, including his claim that he should be allowed to compete because, amongst other things, it would be in the spirit of the Olympic movement, Mr Getty was the only male freestyle skier representing South America, Mr Getty had shown dedication to the sport and was popular amongst the freestyle skiing community were matters of policy for the FIS to consider and not questions of law for the Panel to consider when asked to apply the existing rules.

Daniela Bauer v. Austrian Olympic Committee & Austrian Ski Federation2

Daniela Bauer filed an application against the Austrian Olympic Committee (AOC) and Austrian Ski Federation (ASF) seeking an order she be selected in the Austrian Olympic team to compete in the women’s freestyle ski halfpipe.

Unlike Mr Getty, Ms Bauer had met the minimum FIS qualification requirements so was prima facie eligible to compete, subject to selection by the AOC. The AOC however, on recommendation of the ASF, declined a quota place for a female halfpipe freestyle skier which had been offered to it by the FIS and could be filled by Ms Bauer. Ms Bauer asserted she had previously been given the impression that because she had met the minimum FIS qualification standards she would be selected through the use of the quota places. The ASF however decided not to recommend her for selection because they thought her performance, results and technical skill level were not sufficient to allow her to achieve a positive result at the Olympics, notwithstanding she had met the minimum qualification standards.

The CAS Panel found that under the ASF’s regulations the ASF had a significant degree of subjective discretion in making recommendations which did not contain any qualification rules (i.e. there were no objective criteria which would qualify a freestyle skier for the Austrian Olympic team if those criteria were satisfied). The CAS Panel held that the ASF did not exercise this discretion in an arbitrary, unfair or unreasonable manner because it had a legitimate sports performance justification for not recommending that the AOC nominate Ms Bauer for an allocation quota in women’s halfpipe. In coming to this conclusion the CAS Panel held that the ASF did not discriminate on grounds of race, religion, politics, gender or otherwise as against Fundamental Principle of Olympism 6 of the Olympic Charter.

The CAS Panel did however make it clear that it did not condone the lack of published qualification criteria and strongly recommend that the ASF establish, identify and publish clear criteria to enable athletes to determine the qualification standards they are required to meet to be recommended for selection by the AOC.

Maria Belen Simari Birkner v. Comité Olímpico Agentino & Federación Argentia de Ski y Andinismo3

Maria Belen Simari Birkner filed an application against the Argentinian Ski Federation (FASA) and the Argentinian NOC against her non selection in the Slalom, Super G and Giant Slalom events. Ms Simari Birkner’s application alleged she had been discriminated against on a number of bases, including her family affiliation which she described as ‘a legendary family … that has dominated Argentinian Alpine Skiing for over 30 years’.

The CAS Panel, which included Justice Annabelle Bennett from Australia, decided that the CAS Panel did not have jurisdiction to hear the case as the dispute fell before the date when the jurisdiction of the CAS Panel became effective (i.e. 10 days before the Opening Ceremony). In doing so the Panel held that the dispute arose when Ms Simari Birkner was notified of her non-selection and not, as had been held in the Schuler case4,  when Ms Simari Birkner had decided to appeal and filed her notice of appeal. The Panel felt that following the decision in the Schuler case would extend the jurisdiction of the CAS Panel outside the precise and limited frameworks set by the CAS ad hoc Rules.

Nevertheless, the Panel considered the merits of the matter and concluded that the Ms Simari Birkner’s claims on the merits would have failed even if the CAS Panel did have jurisdiction as Ms Simari Birkner had not established that the decision not to select her was discriminatory. Ms Simari Birkner raised a number of matters which she thought showed her non selection had been tainted by bias, including bias against her family, bias in establishment of, and non selection in, the National Team and bias in that she was not informed of the selection criteria whereas others were.

The Panel found that there was no evidence to support any of the claims of bias. In particular, the Panel noted that: 

bias against her family was hard to make out given two of her siblings and a cousin were in the Argentinian team, with her brother being given the honour of carrying the flag at the Opening Ceremony. Her parents were also both selected as coaches and were present at the Olympics;

there was no evidence that the National Team had been formed to ‘break’ her family’s dominance in Argentinian skiing and an inference was open that it was established for the future of skiing in Argentina.  In any event there was a suggestion that her family were not interested in selection in the National Team. Some members of the National Team were not selected for the Olympics, in favour of the Ms Simari Birkner’s siblings;

the selection criteria were not deliberately chosen to discriminate against Ms Simari Birkner and while it was unfortunate that her international results (as opposed to domestic) did not count for selection, the criteria (including consideration of ‘the evolution and projection in the future’) was not applied in an arbitrary or unreasonable manner; and

it appears that none of the skiers or their coaches, and not just Ms Simari Birkner, were notified of the selection criteria in advance.

Although finding there to be no discrimination or bias, the Panel did endorse the statements in the Bauer case to the effect that clear selection criteria should be established, identified and published in a timely manner so that athletes can understand those criteria and the qualification standards they are required to meet.

Alpine Canada Alpin, Canadian Olympic Committee & National Olympic Committee of Slovenia v. FIS & IOC5

The Alpine Canada Alpin and the Canadian Olympic Committee and the Slovenian Olympic Committee filed two applications regarding a decision of the Competition Jury of the FIS. The decision related to protests filed by the appellants regarding the actions of the French team in the Men’s Ski Cross competition where the French ultimately swept the gold, silver and bronze medals.

Under Article 4511.4 of the FIS Competition Rules (ICR) which regulates ski suits ‘[f]astening devices … [of any method] shall not be used to tighten the suit material closer to the body or prevent the natural fall of the clothing’. The applicants claimed that the French competitors should be disqualified because the French support staff tampered with the suits of the French riders to create a ‘fairing’ around the lower leg which provided an aerodynamic effect in contravention of the ICR. The ‘fairing’ involved a change to the lower leg of the ski suit by pulling the fabric of the suit tight around the front lower leg and shaping it in a sharp crease along the back. 

The application was rejected on the basis that the Competition Jury of the FIS had been correct in determining that the protests had been filed late. Articles 3050.1 and 3050.2 of the ICR provided that ‘[n]o Protest shall be considered by the Jury unless’ a written protest is made ‘to a Jury member within 15 minutes of the completion of the last competition run of that phase of competition’.

The applicants admitted their protests were filed out of time but submitted that it was a fundamental breach of natural justice for their late protests not to be considered because the 15 minute time period did not give them enough time to attend to the athletes who had competed, gather sufficient evidence to realise that a formal protest should be raised and then actually provide notice. However, the CAS Panel noted that to lodge a protest under the ICR all that is required is the ‘reason for protest’ and not substantial evidence or proof that the violation occurred. The Panel found that, within an hour and half of the competition (if not sooner) the applicants had sufficient reason to submit a protest (it had been agreed that the Canadian coach had suspicions about the garment prior to the final). As such, there was no reason for a delay in more than six hours for the lodging of their protest.

Although the CAS Panel did not explicitly say so, it appears that the CAS Panel left open the possibility that had the protest only been filed a few minutes after the 15 minute deadline it may have considered the merits of the appeal. The CAS Panel did however note that:

‘the natural expectation of athletes, sporting governing bodies, spectators, and the public [is] that competition results are final unless promptly and properly protested within a reasonable amount of time after the competition ends.’ 

As such, it was for the FIS rather than the CAS Panel to change the rules governing protests.

Commentary

The cases heard by the CAS Panel at the 2014 Winter Olympics reinforce the following principles: 

• while it is preferable for there to be objective qualifying criteria for athlete selection, if the criteria are based on subjective matters the relevant National Sporting Organisation (NOS) or National Olympic Committee (NOC) will have a large degree of discretion;

• it is preferable for the relevant NOS or NOC to establish, identify and publish clear criteria to enable athletes to determine the qualification standards they are required to meet to be recommended for selection by their respective NOS or NOC;

• if an athlete or country wishes to lodge a protest regarding the result of a competition, such protest must be lodged strictly within any relevant time limits provided in the competition rules; and

• where time limits to lodge a protest are relatively short, protests should be lodged as soon as the applicant has identified a ‘reason for protest’ rather than waiting to gather all relevant evidence to make their case. 

 

Martin Ross Partner

Sally Scott Partner

Mark Lebbon Lawyer

Hall & Wilcox, Melbourne

martin.ross@hallandwilcox.com.au

sally.scott@hallandwilcox.com.au

mark.lebbon@hallandwilcox.com.au

 

1. Clyde Getty v International Ski Federation CAS OG 14/02.

2. Daniela Bauer v Austrian Olympic Committee & Austrian Ski Federation CAS OG 14/01.

3. Maria Belen Simari Birkner v Comité Olímpico Agentino & Federación Argentia de Ski y Andinismo CAS OG 14/03.

4. Andrea Schuler v Swiss Olympic Association & Swiss-Ski CAS OG 06/2002.

5. Alpine Canada Alpin, Canadian Olympic Committee & National Olympic Committee of Slovenia v FIS & IOC CAS OG 14/04-05.

 

This article was originally published on the Hall & Wilcox internet site. You can access the original by clicking here. A search through World Sports Law Report’s internet archives found 19 articles relating to the CAS ad hoc division. To sign up for a free trial to World Sports Law Report, click here.


Thursday, March 20, 2014

Anti-doping needs to confront the issues

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

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

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

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

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

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

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

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


Wednesday, March 19, 2014

Education & targeted testing key to future of anti-doping

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

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

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

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

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

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

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

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

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

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

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

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


Thursday, March 13, 2014

EXCLUSIVE INTERVIEW: Renée Anne Shirley, former Executive Director, JADCO

On 19-20 March at Wembley Stadium, the world’s anti-doping community will convene for the two-day Tackling Doping in Sport conference, organised by World Sports Law Report and supported by UK Anti-Doping. Over 200 delegates from 25 countries will travel to Wembley Stadium to hear the latest techniques in tackling doping in sport, to stay abreast of the latest cases and developments in both testing and educating athletes, and to go over the major cases of the last year, which has been one of the most significant in anti-doping history.

One of the most eagerly anticipated speakers at the event is Renée Anne Shirley, former Executive Director of the JADCO. Shirley was one of four vice-Chairpersons at the first session of the Conference of Parties to the International Convention on Doping in Sport, held in Paris in 2007.

Last summer, JADCO revealed that five athletes had returned positive tests, closely following an earlier positive test by Veronica Campbell-Brown, prompting an outcry in the international media that resulted in most of the athletes being named, and accused of cheating. Veronica Campbell-Brown has recently been cleared of any anti-doping rule violation, however the other cases have yet to reach their conclusion.

Shirley spoke out, revealing that JADCO lacked the staff or funding to adequately test its athletes, prompting a World Anti-Doping Agency (WADA) investigation that resulted in JADCO being offered support in order to improve its testing programme. World Sports Law Report spoke to her about some of the concerns she has over the way in which anti-doping is being conducted at the moment.

These include the disparity caused by the fact that those with money within the anti-doping system can afford the best legal support, but those who don’t have money can’t get that support; issues with the Court of Arbitration for Sport (CAS) not publishing all decisions; the preoccupation with urine tests; the need for testing to be more intelligence driven; concerns over supplements and energy drinks; WADA’s need to move on to the next phase of anti-doping; and issues over the lag time between samples and sanctioning decisions.

To read the full interview with Renée, click here.


Tuesday, March 04, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Andy Brown


Tuesday, February 25, 2014

On the scrapheap at 30: are professional football clubs defying the UK’s age discrimination laws?

So there I was, happily watching one of those television shows where journalists sit around a table and talk earnestly about football when suddenly off the conversational subs’ bench leaps a real employment law issue.

The reference was made by Henry Winter (Daily Telegraph Football Correspondent), who claimed that he receives emails on a regular basis from employment lawyers in the City telling him that Premier League clubs are flouting the law by discriminating against their older players. The debate relates to an apparently blanket rule at some of the top football clubs that once a player hits the magic age of 30 he will not be given anything more than 1- year-at-a-time extensions to his contract. One person on the show asked whether it would be acceptable in any other profession to have a policy whereby employees above a certain age are blatantly treated less favourably than their younger co-workers? The general consensus amongst the group was probably not, but “this is football” (i.e. not real life), and if the policy wasn’t committed to writing then the clubs would “no doubt get away with it”.

The Equality Act 2010 is pretty clear on this stuff. A ’30 and out’ policy is a clear example of direct discrimination; treating someone less favourably because of his age. However – maybe something the “employment lawyers in the City” neglected to point out to Mr Winter – direct age discrimination is unusual in that it can potentially be justified, and so lawful. The Act states that direct age discrimination can be justified if it is “a proportionate means of achieving a legitimate aim”. Whether an employer can meet the requirements for this ‘objective justification’ test generally depends on whether the policy can be considered to be appropriate and necessary, looking at the business needs.

Applying these tests, the offending clubs might fancy their chances of defending their approach. With the exception of Manchester United’s evergreen Ryan Giggs and Everton’s Sylvain Distin, it is the conventional wisdom that when a player reaches his thirties, he will not have the ‘legs’ to play as many games in a season and that he becomes more likely to pick up a career-threatening injury or at least to take longer to recover. Given vast player salaries (see Charlie Frost’s recent blog post), it is perhaps understandable that clubs are offering shorter contracts to players over a certain age, the legitimate aim being to mitigate their exposure should that player not make it through the season in one piece. What’s more, it is not a case of the clubs simply getting rid of players once they hit 30; instead there is a proportionate approach taken by treating each case on its merits. Put simply, if the player can demonstrate that he still have enough puff to play then he will be offered a new 1 year deal.

Compare this, however, with the supplying body for Premiership referees, Professional Game Match Officials Ltd. In 2010 the Sheffield Employment Tribunal ruled that PGMOL’s compulsory retirement from top-level matches at 48 was unlawful, as it could not justify that age either on medical/fitness grounds or by reference to common refereeing practice in other European countries. That was an absolute bar while the clubs merely impose a hurdle to be surmounted. Nonetheless, the fact remains that it is less favourable treatment and the likes of Giggs and Distin are the very reason why age-related assumptions and practices of this sort can never be said to be truly safe. Perhaps the reality (even in football) is that no terribly good reason is required not to renew a player contract at all and therefore that it would indeed take a brave player offered a 1-year deal to take legal action about not getting 3.

 

Jim Keogh Associate
Squire Sanders, Leeds
james.keogh@squiresanders.com

 

This article originally appeared on the Squire Sanders Employment Law Worldview blog. You can view the original by clicking here.


Tuesday, February 04, 2014

Your Guide to the Alex Rodriguez Appeal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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


Workers from Sochi systematically exploited

Just over a week from the start of the Winter Olympic Games in Sochi, Russia, the event is facing another scandal. As German TV station ARD and the sports magazine ‘inside sport’ report, the workers of the Olympic construction sites in Sochi have been systematically exploited.

Apparently, thousands of workers have not or not fully been paid for their job. The International Olympic Committee (IOC) has confirmed this to ARD and ‘inside sport’.

A multitude of Russian and migrant workers from Central Asia told the ARD that they are still waiting for their promised salaries. One worker called the experience in Sochi as being "modern slavery". Another worker said: "We never thought that something like this could happen on such internationally important construction sites such as the Olympic ones. We have worked hard, but how should we get our money?"

Semjon Simonov, Sochi representative of the highly acknowledged human rights non-governmental organisation (NGO), Memorial, for the first time classified the dimension of the problem. He confirmed the findings of ARD and ‘inside sport’ in respect to over 100,000 workers in Sochi, saying: "Ninety per cent of all workers on Olympic construction sites in Sochi have either not received any salary at all, or not the full amount. The Olympics have only been made possible through the efforts of these workers. But they were not even given documentation necessary to work and in the end, they were forced to leave the country without their money."

Many of the Sochi workers were from countries within Cental Asia, estimated to number over 50,000 workers. A reporter of ARD and ‘inside sport’ has been to Tajikistan, being the first international journalist to do research about the problem in the region where most Sochi workers come from, according to international NGOs such as Human Rights Watch.

In the last few years, several NGOs including Human Rights Watch have reported about the exploitation of workers, but nothing has since been done by international bodies. In the ARD programme, multiple workers accuse the Russian state owned company Olimpstroi, which was responsible for the Olympic construction process. One Tajik worker says: "When we wanted our money we were told that Olimpstroi hasn't paid yet." Olimpstroi - as well as the Organising Committee of the 2014 Sochi Games - refused to comment to ARD and ‘inside sport’.

The IOC stated that 13 companies in retrospect have now paid salaries of approximately €6 million (US$8 million). Although asked by ARD and ‘inside sport’, the IOC didn't say when and how the payment was made, bearing in mind that most workers were not registered and don't even have a back account.

The Chairwoman of the human rights committee of the European Parliament, Barbara Lochbihler, called the ARD findings and the exploitation of the workers a "scandal". "The IOC can't go on like nothing has happened. They should have reacted earlier on this issue. It is now absolutely necessary that the IOC, the Russian government, as well as the engaged companies show responsibility."

 

Florian Bauer
ARD German TV
florian.bauer@fm.wdr.de


Deadlines Set Regarding FCC’s Proposed Elimination of Sports Blackout Rules

As announced last month, the Federal Communications Commission (FCC) is proposing to eliminate its “sports blackout rules,” which allow sports teams to demand that cable systems and DBS providers black out imported distant broadcast signals when they are presenting a live telecast of a local sporting event when that event is not being telecast by a local broadcast television of these rules and setting comment and reply comment deadlines has finally been published in the Federal Register. Comments are due February 24, 2014 and reply comments are due March 25.

Background. The cable sports blackout rules were adopted in 1975 to “ensur[e] the overall availability of sports telecasts to the general public.” The Commission’s goal was to give teams or leagues the flexibility to contract with broadcasters and, through those contracts, control the terms on which events are displayed on broadcast television and cable systems. When the rules were initially adopted, gate receipts were a primary source of revenue for sports teams, and so contracts between teams or leagues and broadcasters frequently prohibited the airing of home games in the local market to encourage attendance at the stadium. Such provisions continue to be included in some contracts today. The Commission extended the rules to DBS providers in 2002.

As a practical matter, the sports blackout rules have become fairly meaningless over the years. The number of distant signals that cable operators carry has steadily declined and the availability of local sporting events on non-broadcast regional networks generally has rendered it unnecessary for cable systems to import distant broadcast signals in order to provide subscribers with access to a local contest that is not available on a local broadcast station. In addition, separate and apart from the sports blackout rules, retransmission consent requirements and compulsory license royalty fee obligations present significant hurdles to any cable operator seeking to import a distant telecast of a local sporting event. Nonetheless, because the rule is often associated with the NFL’s largely unrelated practice of blacking out local telecasts of home games that are not sold out in advance, the Commission has been under pressure to eliminate the rule.

Discussion

The Commission adopted this NPRM in response to comments submitted in support of a petition filed by several consumer groups asking for the sports blackout rules to be eliminated. The NPRM seeks comment on the FCC’s authority to repeal the sports blackout rules, whether the Commission’s initial justifications for the rules remain valid, and what potential benefits or harms would result from the elimination of the rules.

The Commission’s tentative conclusion, based on changed economic circumstances in the sports industry and questions about whether the rules in fact help to ensure that sports programming is available to the public, is that the rules should be repealed. However, the Commission also has acknowledged that if it repeals the rules, the effect would be to leave carriage issues, including blackouts, to private negotiations between the sports leagues or teams, broadcasters, and MVPDs and, thus, it is likely that repealing the rules will have little impact on whether local contests will be blacked out and the availability of imported distant signals carrying the blacked out contests.

Finally, it should be noted that, under the Copyright Act, copyright owners may commence a proceeding before the Copyright Royalty Judges to adjust the statutory compulsory copyright royalty fees in the event the sports blackout rules are modified or repealed. While a strong case against such an adjustment can be made based on the fact that the repeal of the rules likely would have no impact on the availability of blacked out sports contests, the outcome of such a proceeding, if held, cannot be predicted.

Seth A. Davidson
Partner
Edwards Wildman, Washington DC
sdavidson@edwardswildman.com

This article originally appeared on the Edwards Wildman website. You can access the original by clicking here.