Key sports law cases of 2016 - Europe, Middle East, Africa, Asia and Australia


Published 05 January 2017 By: Manali Kulkarni Sean Cottrell

Title image Key sports law cases of 2016 - EMEA, Asia, Australia

As we begin the new year, we are running a series of articles reflecting on the key legal issues in different jurisdictions and regions around the world.

For this article we have approached some of the leading sports lawyers in the Europe, Middle East, Africa, Asia and Australia to share their views on what they think was the key sports law issue of 2016.

We would like to thank all of the contributors to this article for taking the time out of their busy schedules to share their views with us. 

Featured lawyers:

  • Katarina Pijetlovic, Senior Lecturer, Liverpool Hope University, Law Department
  • Dr. Emilio García, Head Of Disciplinary and Integrity, UEFA
  • Dr Marjolaine Viret, Associate, Bird & Bird
  • Luca Ferrari, Global Head, Sports practice, Withers
  • Nandan Kamath, Principal Lawyer, LawNK
  • Aahna Mehrotra, Head, Sports and Gaming Laws at TMT Law Practice
  • Yoichiro Kuriyama, Associate, TMI Associates
  • Kei Ikuta, Associate at Nagashima Ohno & Tsunematsu
  • Richard Wee, Partner, MahWengKwai & Associates
  • James Kitching, Head of Sports Legal Services, Disciplinary, and Governance, AFC
  • Hongjun Yao, Associate Professor, Shanghai University of Political Science and Law
  • Steven Bainbridge, Head of Sports Law & Events Management, Al Tamimi & Company
  • Jake Cohen, Lawyer, Mills & Reeve
  • Professor Deji Adekunle, Director General of the Nigerian Institute of Advanced Legal Studies
  • Hayden Opie, Senior Fellow and Director of Studies, Sports Law Program, Melbourne Law School
  • Cassandra Heilbronn, Senior Associate, MinterEllison 

Featured sports business professionals:

  • Jaimie Fuller, Executive Chairman, SKINS
  • Tracey Lee Homles, Australia & The World, Host of 'The Ticket', ABC News Radio

We hope you enjoy the article. If you think there’s anything you would have liked to have seen be mentioned please feel free to tweet us @LawInSport or email us with your suggestions at This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it..


 

Europe

Katarina Pijetlovic

Senior Lecturer, Liverpool Hope University, Law Department

Katarina PijetlovicAccess to Rio Olympic Games and the treatment of the issue of wide-spread doping by Russian athletes by both the WADA and the IOC marked the 2016. Specifically, the WADA recommendation to impose a blanket ban for all Russian athletes from the Olympic Games in Rio, and the subsequent (correct) reaction by the International Olympic Committee to allow the rules of natural justice to which every human being is entitled to be applied instead. This case illustrated that there is no such thing as collective responsibility resulting in collective punishment of the individual athletes for the actions of other athletes. Importantly, the issue was highly politicized and politics should not be allowed to pollute sporting justice.

 

Dr. Emilio García

Head of Disciplinary and Integrity, UEFA

Emilio UEFADefinitely, the Court of Arbitration for Sport (CAS) decision on Klubi Sportiv Skënderbeu v. UEFA (CAS 2016/A/4650) will have a relevant impact on the fight against match-fixing in sport. In a nutshell, the case is about the admission of a club into the UEFA Champions League 2016/2017. The club had been involved in activities aimed at arranging the outcome of football games. The case was solely prosecuted based on the irregular betting patterns detected by the highly sophisticated UEFA-Sportradar monitoring system. For the first time and considering the analogies with the Athlete Biological Passport, a CAS panel has recognized that the UEFA Betting Fraud Detection System is valuable evidence that, particularly if corroborated by further evidence, can be used in order to conclude that a club was directly or indirectly involved in match-fixing.

 

Dr Marjolaine Viret

Associate, Bird & Bird

Marjolaine ViretAfter 2015 and the publication of the first WADA Independent Commission report on claims of widespread doping in Russian athletics, 2016 should go down in history as another annus horribilis for the anti-doping community.

The revelations surrounding institutional doping and cover-up practices in Russia, first in athletics and then in other sports, have affected the credibility not only of Russian sports, but of international sport competition worldwide. The full implications of the completed Independent Person (‘McLaren’) Report – published in December 2016 – are still to be assessed. The IOC announced on 23 December that it has initiated disciplinary proceedings against 28 Russian athletes mentioned in the McLaren report. Meanwhile, Russia has not been reinstated in its position for international events yet. If 2016 thus confirmed shortcomings in the doping control system that the World Anti-Doping Agency is responsible for monitoring worldwide, these developments are significant beyond anti-doping.

Equally, or perhaps even more, significant were the reactions of the international sports governing bodies – the IOC, IPC and International Federations – in the preparation of the Rio 2016 Olympic and Paralympic Games. At the Games this summer, the Ad Hoc CAS Division had to deal with the intricacies of the legal status of Russian athletes and their national federations. The case law produced on this occasion indirectly highlights legal ambiguities in the allocation of responsibilities among sports governing bodies, in the delimitations between each body’s authority to take coercive measures, as well as the risk of conflicts of interests within these bodies. What is at issue here is the reliability of governance in sports and the capacity of sports bodies to handle the challenges of regulating doping, and also the role of nation states in implementing and enforcing regulations within their jurisdiction.

 

Luca Ferrari

Global Head, Sports Practice, Withers

Luca Ferrari2016 has witnessed the announcement of one of the most troubling facts ever in the sports world. The findings drawn by the two-part Investigation Report released by Professor Richard H. McLaren on 18 July and 9 December 2016, which revealed the existence of a systematic and centralized cover up and manipulation of the doping control process in Russia, shook the industry deeply. It is now for the International Olympic Committee, the International Paralympic Committee and the International Federations – which are being provided by WADA with an ‘Evidentiary Summary’ of the McLaren Report – to review, under WADA’s monitoring, the respective available evidence and determine whether anti-doping rule violations will be imposed. Such sanctions may go as far as the cancellation of international sporting events scheduled to be held in Russia, as the International Bobsleigh and Skeleton Federation has already done by moving the world championship scheduled for February 2017 from Sochi to Königssee (Germany). It will be interesting to see what position FIFA takes in respect of Russia’s right to host the 2018 FIFA World Cup. Furthermore, in 2017 WADA’s investigatory function will be strengthened, starting with the launch of its ‘Whistleblowing Program’, aimed at incentivizing individuals to come forward with valuable information on suspected anti-doping rule violations. Yet, much is left to do before the trust in Russian athletes and authorities’ compliance with the WADA Code and sports ethics is regained.

 

Asia

India

Nandan Kamath

Principal Lawyer, LawNK

Nandan Kamath 2016Judicial review of sports governance has, undoubtedly, been the key sports law issue of 2016 in India. The R.M. Lodha Committee submitted its report to the Supreme Court of India in early January 2016, recommending wide-ranging reforms to the Board of Control for Cricket in India (BCCI) governance structure, membership criteria and operating norms. In July 2016, the Supreme Court of India adopted the committee’s material recommendations, more or less wholesale, in its orders. Through the rest of the year, the binding nature of the Supreme Court’s directions slowly seemed to reveal itself to the BCCI and its functionaries, despite their best efforts to stave-off the inevitable. 

Many saw this step – the judicial oversight of otherwise ‘independent and autonomous’ bodies – as being long-overdue and essential, given the ‘public functions’ sports bodies carry out and the track record of their governance lapses and mishaps. In these quarters, the reforms were seen as encapsulating basic principles of good corporate governance, based on acknowledged industry standards in comparable sports bodies worldwide even if these were not backed by any specific law or statute. The critics, not least of them the current office-bearers of the BCCI, cried themselves hoarse characterising the orders as a prime case of ‘unjustified and illegal’ judicial over-reach by the country’s highest court, further arguing that the Lodha Committee recommendations were not only unfairly targeting what is, unarguably, the most successful Indian sporting federation/association but also asserting that the Court’s orders were both incapable of implementation and an unacceptable compromise of the operational autonomy of the BCCI and the state associations. Agree or disagree with the Supreme Court and the Lodha Committee, the sheer impact the recommendations have already had, and the potential for more changes to come, makes this far and away the most significant development in Indian sports law in a very long time.

 

Aahna Mehrotra

Head, Sports and Gaming Laws at TMT Law Practice

Aahna MehrotraBCCI – Lodha Committee

The ongoing legal proceedings in the Supreme Court of India against the Board of Control for Cricket in India (BCCI). Ever since the Justice Lodha Committee recommended a drastic overhaul of the BCCI, in its Report dated January 4th, 2016, the cricketing environment in India is at the brink of uncertainty. The Court accepted the recommendations of the Committee in its judgment dated July 18th, 2016 [in Board of Control for Cricket v. Cricket Association of Bihar & Ors., C.A. 4235/2016, with C.A. 4236/2016 and C.A. 1155 of 2015], and thereafter a number of Status Reports were filed by the Lodha Committee citing non-compliance by the BCCI. The Court, needless to say, was not pleased with the nonchalance and non-committal attitude of the BCCI and took some strict measures against them like freezing its bank accounts. Apart from all other recommendations, one of the major points of contention is the recommendation for appointment of a board of administrators in place of the office bearers. The judgment has been reserved in the case, and it now remains to be seen what the verdict will entail for the BCCI and how the changes will affect the present structure of the body. 

Sushil Kumar vs. Union of India

Another notable case in Indian sport law was the brief, but fiercely contested legal battle in the High Court of New Delhi, between two celebrated wrestlers, Sushil Kumar and Narsingh Yadav. The Court’s stand of not interfering with selection procedure disputes, in this case, was a major reason why the Ministry of Youth Affairs and Sports (MYAS) immediately after the conclusion of the case issued guidelines to all National Sport Federations (NSFs) to establish an effective ‘Grievance Redressal System’.

The dispute found its genesis from the ad hoc manner in which the Wrestling Federation of India (WFI) selected athletes for representation at major international competitions. The WFI does not have any written guidelines or procedure in place, and coupled with the lack of an internal dispute redressal mechanism, formed the essence of the contentions raised by Sushil Kumar. The matter was heard at length since it pertained to representation of the country at the Olympics, and was given national attention, as the outcome of the case would affect athletes throughout the nation, and could change the way NSFs function.

Narsingh Yadav

The developments in 2016 would be incomplete without the mention of Narsingh Yadav having tested positive for metandienone after having won the battle in the High Court of New Delhi against Sushil Kumar. He was acquitted by the National Anti-Doping Agency (NADA), which acquittal was ultimately overturned by the Ad-Doc Division of the Court of Arbitration for Sport, established during the Rio Olympics. While overturning the decision of the NADA, the Tribunal relied upon the testimony of experts to arrive at the conclusion that Narsingh Yadav could provide no satisfactory explanation as to how he ingested the prohibited substance, or its source. Narsingh Yadav was ultimately handed a four-year ban for being guilty of having consumed a prohibited substance. The case has now been referred to the Crime Bureau of Investigation and its report is still awaited.

 

Japan

Yoichiro Kuriyama

Associate, TMI Associates

Yoichiro KuriyamaOne key sports law issue is the Japan Professional Football League (J.League) has signed a 10-year (from the 2017 through 2026 seasons) 210 billion yen (about £1.4 billion) online broadcasting rights agreement with Britain-based Perform Group in July 2016. The agreement is worth seven times as much from previous agreement and said to be the longest and largest deal in the Japanese sporting history.

Another issue relates to the sponsorship program of Tokyo 2020 Olympic and Paralympic Games. In addition to using the standard structure of category exclusivity, whereby there is only one sponsoring company per product or service category, the Tokyo Organising Committee of the Olympic and Paralympic Games (the “Committee”) will allow multiple sponsors for certain product or service categories. In 2016, according to the Committee website, joint sponsorship rights have been granted with respect to the following categories: (1) “Newspapers” (four companies), (2) “Travel agency services and national trip hospitality services” (three companies) (3) “Passenger Rail Transportation Services” (two companies), and (4) “Printing Services” (two companies). This new structure is anticipated to cause record sponsorship revenues and possibly change the direction of future sports sponsorship deals.

 

Kei Ikuta

Associate, Nagashima Ohno & Tsunematsu 

Kei IkutaThe key sports law issue in Japan in 2016 is an investigation into the bribery scandal concerning the Tokyo 2020 bidding committee in connection with the successful bidding process for the Tokyo 2020 Olympic and Paralympic Games. On 11 May, 2016, the Guardian alleged that a payment of about €1.3m was made from the bidding committee to a Singaporean consulting firm which was linked to the son of the former influential IOC member and president of the IAAF, Lamine Diack, and that the French authorities had been investigating whether the payment was a bribe[1]. In response, the Japan Olympic Committee established an independent investigation panel that was composed of two lawyers and a certified public accountant, to find out what happened in the bidding process.

The investigation panel concluded that the members of the bidding committee did not know of any link between the Singaporean consulting firm and the son of Lamine Diack and that the payment did not breach any Japanese laws, the penal code of France, or the IOC code of ethics[2]. However, according to the investigation panel, although they interviewed members of the bidding committee and analysed the relevant documents, they were unable to speak with any of the relevant persons who were overseas residents (i.e., the head of the Singaporean consulting firm, the son of Lamine Diack and Lamine Diack himself) in their investigation process. This investigation case is a good example of the difficulties faced by a private panel without any authoritative power in investigating a legal issue of an international nature arising from international sport events.

 

Malaysia

Richard Wee

Partner, Dispute Resolution, Head of Sports Law Practice Group, Head of Real Estate Practice Group, MahWengKwai & Associates

Richard WeeGenerally in Asia, but particularly in South East Asia, we were gripped by the Olympics and the state-sponsored doping scandal by the Russian athletes. Such issues have made the Sports Law movement here acutely aware of the importance of maintaining integrity and goodwill, which forms the framework of sports.

For this reason, the Sports Law Conference 2016 was themed “Play By The Rules”, to highlight the value of rules in sports. I had the honour of leading this annual conference for the 4th year running. The issues of football transfers, doping and stadiums were heavily discussed at the conference. In tandem with the Kuala Lumpur Regional Centre for Arbitration’s (KLRCA) position as an appointed alternative hearing centre for sports disputes under the Court of Arbitration for Sport (CAS), KLRCA had organised a Certificate Programme in Sports Arbitration as its first step towards creating the pioneering batch of specialised sports dispute resolution individuals.

 
 

James Kitching

Head of Sports Legal Services, Disciplinary, and Governance, AFC

James Kitching BWThe fight against match manipulation was the key sports law issue in Asia in 2016. This was noted in particular by the Asian Football Confederation (AFC) when it launched its Vision and Mission at the start of the year, with recognition of "good governance" and "integrity" as key pillars of its strategy moving forward. As part of its current agreement with Sportradar, the AFC now monitors more than 5100 football matches across Asia for betting-related manipulation.

Sanctions were handed down in multiple sports across a variety of terriories at national and international level. The AFC sanctioned players, officials, and referees from Nepal, Tajikistan, DPR Korea, Thailand, Korea Republic and Laos for various activities related to match manipulation. The International Cricket Council sanctioned a Hong Kong cricketer for failing to report approaches to fix matches.

 


China

Hongjun Yao

Associate Professor, Shanghai University of Political Science and Law

 Hongjun YaoIn 2016, China Sports Law was amended and intellectual property issues attracted extraordinary attention of the public. On November 7th, the Standing Committee of the National People's Congress cancelled Article 32 of the Sports Law, so the review system for national sports records by the central government is broken, and national sports records do not need to be confirmed by the General Administration of Sports any more. 

In the sports related intellectual property area, the copyright transactions have been in an ascending trend and far-reaching episodes concerning trademarks happened one after another. 361° got extensive exposure as an official supporter of Rio Olympics. The phrase “洪荒之力” (pronounced [ hʊŋ huɑŋ tʂɿ li], which means power strong enough to change the universe) from Yuanhui Fu, the bronze winner of 100-meter backstroke swimming, which came after being interviewed in Rio, became so hot on and off the web that it was the subject of quite a few trademark registrations. In December, the trademark “乔丹” (mandarin transliteration for Jordan, pronounced [tɕʻiau dan], which mainly refers to Michael Jordan in China) was ruled by the Supreme People’s Court to be cancelled, and the cancellation will probably benefit Lining, 361° and other companies in sports gear industry.

 

Middle East


Steven Bainbridge

Head of Sports Law & Events Management, Al Tamimi & Company 

Steve Bainbridge 12016 has been another event-filled year in the Middle East’s sporting calendar. Both the range and volume of grass roots and high level sporting events has continued to increase and this has brought a number of notable legal issues into focus. In terms of regional sports law issues, a pioneering broadcast rights agreement facilitated the first ever use of live on-board footage and data in professional road-race cycling at the Abu Dhabi Tour[3]. This required a broad willingness by the UCI, Velon and the Tour organizers to approach rights pragmatically to promote the event and the sport of cycling in a delicate legal area where ownership, control and access to cutting edge technology, athletic equipment and governing body oversight can be hotly contested to effectively create multiple party veto rights.

In an Olympic year it can be slightly cynical to look too far beyond the positive growth and development achieved by so many Olympians and Paralympians and the programs that support them from across the Middle East. However, a notable legal issue is Kuwait’s continued ban from Olympic competition[4], which not only resulted in a number of athletes performing under the Olympic banner rather than their national flag[5] but also continues to deprive athletes of access to the resources, facilities and competitions necessary to continue to develop at the highest levels. Hopefully this can be resolved through legislative changes in 2017.

Amongst the legal issues raised in more established markets that have notably gained attention and led to heightened awareness and pro-active measures in the Middle East are the role of corporate governance in sports, anti-doping[6] and concerns regarding fantasy sports and gambling[7]. The focus on these issues has led to more protective drafting and increased attention in terms of education and preparation (e.g., event rights holders establishing more formalized oversight structures, training and vigilance regarding match-fixing, retention of contractors to monitor online cues and crowd activity[8] at vulnerable events, etc.). 

 

Jake Cohen

Lawyer, Mills & Reeve

Jake Cohen1After years of planning, Saudi Arabia’s Council of Ministers announced in November 2016 that it had approved plans to privatise the football clubs competing in the Saudi Premier League.

Currently, every club is state-owned, but in line with the 2030 Vision – an ambitious blueprint for economic and cultural transformation, with privatisation being a cornerstone – the top-division clubs will be sold to private owners.

The Saudi football market is already quite strong – for perspective, the current domestic rights deal for the Saudi Premier League is worth 50% more than Major League Soccer’s on an annual basis and the top clubs (particularly Al-Hilal and Al-Ittihad) are among the most successful in the AFC Champions League – and the hope is that privatisation will drive Saudi football even further forward. Currently, many clubs rely on the traditional revenue streams (broadcasting, commercial, match-day revenue), but are also supported by the government and wealthy benefactors.

Privatisation should help clubs receive initial cash injections to redevelop and/or build new stadiums as well as fund other infrastructure projects. However, it should also force clubs to then maximise the traditional revenue streams, which will lead to sustainability and growth. This should help the top clubs continue to succeed in the AFC Champions League, despite significant investment from Chinese clubs. Additionally, investment in the academy systems and infrastructure will ideally help develop top home-grown talent, which should improve the level of talent both in the league as well as in the Saudi national team.

 

Africa 

 

Nigeria

Professor Deji Adekunle

Director General of the Nigerian Institute of Advanced Legal Studies

Deji AdekunleUndoubtedly the twin issues of governance and dispute resolution stand dominated Nigerian sports jurisprudence in 2016. Despite a 2015 ruling on the matter by the Court of Arbitration for Sports, a contender to the chairmanship of the Nigerian Football Federation (NFF) Mr Giwa instituted in April 2016 legal proceedings at a High court to be re-instated as Chairman of the NFF. The Minister for sports refused to be categorical urging the parties to respect “the rule of law” until FIFA issued a strong letter outlining its views on the matter. The issue demonstrates not only poor understanding of sports governance but also that the rules governing international sports can also restrict the application of basic laws of a country.

Similarly inefficient administration of upkeep allowance and match bonuses featured prominently in 2016, the most remarkable being the failure by the Nigerian Football Federation (NFF) to pay agreed match bonuses of the national soccer teams (male and female) for some international matches. The national female team (Super falcons) came out top at the 10th Women African Nations Cup. In the face of the inability of the NFF to meet its obligations the President directed the Minister for Finance to release funds for the payment. Observers are quick to point out that it is interventions of this nature that rob sports federation of the autonomy that is hardly evident in sports administration in Nigeria.

 

Australia

Hayden Opie

Senior Fellow and Director of Studies, Sports Law Program, Melbourne Law School

Hayden Opie"Integrity" has been the dominant theme in Australian sports law during 2016 with prominent examples to be found in doping, cruelty in greyhound racing and salary cap rorts. The Essendon FC saga approached its conclusion when WADA was successful in overturning the 2015 decision of the Australian Football League’s Anti-Doping Tribunal that the 34 accused players had not used the prohibited substance thymosin beta-4. On 11 January 2016, CAS ruled otherwise finding the players guilty: World Anti-Doping Agency v Bellchambers CAS 2015/A/4059. Although CAS does not publish dissenting opinions, the ruling contains an intriguing note that one panel member was not comfortably satisfied that an unspecified number of unidentified players were guilty of the charge. The CAS ruling is likely to become the leading authority for proving anti-doping violations by circumstantial evidence with the panel holding that a violation can be established to the comfortable satisfaction standard if enough factual strands form a cable pointing to guilt, in contrast to requiring an unbroken evidentiary chain of factual links (the latter being the methodology of the AFL Anti-Doping Tribunal). An appeal to the Swiss Federal Tribunal claiming that CAS had not been entitled to hold a rehearing on the merits under the terms of the AFL anti-doping policy was dismissed on procedural grounds: 34 Players v World Anti-Doping Agency, Swiss Federal Tribunal (27 September 2016). In a further development, Essendon FC was fined A$200,000 upon being prosecuted by the Victorian state workplace safety regulator for failing to provide a safe working environment for the players in connection with the Club’s 2012 supplements program: Jessica Longbottom, ‘Essendon Fined $200,000 Over Supplements Program for Breaching Workplace Safety Laws’ ABC News, 28 January 2016. 

There was on-going fallout from February 2015 revelations of the use of live baits in the training of greyhounds for the commercial racing industry. In 2016 numerous industry participants were subject to disciplinary bans and criminal conviction for animal cruelty. The report of an inquiry into the industry in New South Wales by former High Court judge Michael McHugh prompted the State government to introduce a Bill into Parliament to ban greyhound racing and wind up the industry from 1 July 2017. However, in an extraordinary backflip following intense political pressure especially from within the government coalition, the industry was granted a reprieve: Brigid Glanville and Sarah Gerathy, ‘NSW Premier Mike Baird Admits He “Got it Wrong' after Backflip on Greyhound Racing Ban’ ABC News, 11 October 2016. 

The National Rugby League fined the Parramatta Eels A$1 million and deprived them of 12 competition points for calculated salary cap breaches over five years: ‘Parramatta Eels Salary Cap Sanctions Ratified by NRL as 12-point Penalty, $1m fine and Board Ban Kick In’ ABC News, 9 July 2016. It also deregistered five Eels officials including the Chairman, Deputy Chairman and Chief Executive Officer. In what proved to be a bitter and determined resistance mounted by the officials, proceedings in the NSW Supreme Court alleging that they had been deprived of proper process by the NRL were thrown out: Sharp v National Rugby League Ltd [2016] NSWSC 730 (7 June 2016).

An Olympic year would not be the same without a good ambush marketing stoush and 2016 did not disappoint. In Australian Olympic Committee Inc v Telstra Corporation Ltd [2016] FCA 857 (29 July 2016), the AOC alleged unsuccessfully that a former AOC sponsor and the nation’s leading telco, Telstra, had infringed not only the Olympic Insignia Protection Act 1987 (Cth) ss 36, 30 which restrict the unauthorised use of various protected expressions for commercial purposes, but also the misleading or deceptive conduct provisions of the Australian Consumer Law ss 18, 29. Telstra partnered with the Seven Network which was the official Australian television broadcaster for the Rio Games. It heavily promoted to its existing and potential customers Seven’s coverage of the Games which was available on Telstra’s premium mobile telephony services. In essence, the AOC’s case against Telstra turned on whether Telstra would be reasonably mistaken for a sponsor of the Australian Olympic team or the Olympic Games in Australia (a status by then held by Telstra’s main competitor, Optus). The Federal Court rejected the AOC’s claim. It noted that the term ‘ambush marketing’ was a distraction and the outcome rested on the wording of the legislation.

Another feature of the year has been increased attention paid to women’s professional team sports with Australian footballers, cricketers in T20 competition and netballers all securing collective deals with their respective governing bodies. The rugby sevens players also received a financial return following their gold medal performance in Rio. However, the level of payments remains far short of their male counterparts and this is likely to become an increasingly contentious issue.

 

Cassandra Heilbronn

Senior Associate, MinterEllison 

Cassandra HeilbronnThe key issue for Australia in sports law for 2016 would have to be the outcome(s) of the Essendon Football Club and ASADA saga. Following the appeal loss by James Hird in the Full Federal Court in 2015 many thought that the matter was finalised. However, WADA decided to appeal the decision of the AFL’s Anti-Doping Tribunal relating to the Essendon players to the Court of Arbitration for Sport. In January 2016, CAS found that 34 Essendon players were guilty of committing doping offences throughout the 2012 season and applied a two year sanction which was back dated to 31 March 2015. The decision was significant for a number of reasons, with the two main ones being WADA’s decision to not follow the Tribunal’s decision and initiate its own appeal, and secondly for the findings made by CAS in terms of evidence with WADA changing tact and preferring the ‘stands in a cable analysis’, as opposed to the ‘links in a chain’ which had previously been followed. This changed formed the basis of the appeal of CAS’ decision by Essendon to a Swiss Court, which was ultimately unsuccessful (decision was handed down in late 2016). The CAS decision also led to Jobe Watson (one of the suspended players) returning his 2012 Brownlow Medal to the AFL. Overall, this case has shown players that they do need to take a level of responsibility with supplement programs they choose to be part of.

A ‘would-be’ issue for 2016 if it had gone to trial was the case of William Hopoate and the Parramatta Eels Rugby League Club. This case was reportedly settled in about July 2016, and was interesting for the fact that Hopoate (through his Manager) had entered into a new playing contract with the Eels for a three year extension, one that had been presented by him by the Eels. However, the Eels refused to register the extended playing with the National Rugby League, leaving Hopoate without a Club. The Eels were to argue, amongst other things, that the contract extension was not validly entered into and they were not bound by it. As no findings were made due to the settlement, the arguments pleaded remain to be tested and it is unknown what view a Court will take in response to the claim that an NRL playing contract fails to offer consideration by a player to a Club, and if a unilateral withdrawal of an offer by a Club, without cause, amounts to a breach of contract or misleading and deceptive conduct.

 

Jaimie Fuller

Executive Chairman of SKINS

Jamie FullerWithout doubt the sports law issue in Australia that has grabbed the most attention is the continuing fallout from the dramatic announcement by the former Justice and Sports Ministers in 2013 related to “widespread” use of doping regimes in Australian sport. In the subsequent almost four years, most of the headlines have centered around Essendon Football Club https://watercooler.skins.net/2016/11/28/supporting-the-comeback-story/ (of which SKINS has been a partner since November), and the unfolding legal dramas that went all the way to the Supreme Court of Switzerland.

 
 

Tracey Lee Holmes

AUSTRALIA & THE WORLD, Host of 'The Ticket', ABC News Radio

Tracey HolmesThe long running Essendon/AFL/ASADA/WADA case came to a rather ignominious close in October 2016 with a failed appeal of the CAS guilty verdict in the Swiss Federal Tribunal.

Stemming from the "blackest day in Australian sport" (February 8, 2013) alleging widespread doping in a number of high profile national sports, 34 past and present Australian Football League players from the Essendon club were originally cleared by the AFL anti-doping tribunal (March 2015) only to have the case appealed by WADA and heard de novo in the Court of Arbitration for Sport. It found all 34 players guilty of taking banned substances. The Swiss Federal Tribunal then rejected an appeal led by the Players Association, an appeal described by Sydney Sports Lawyer, Darren Kane, as ‘Essendon players taking a knife to a gun fight’.

Debate continues to bubble as to whether non-Olympic sports should agree to be bound by the WADA code that in turn restricts appeal hearings to the CAS.

 

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About the Author

Manali Kulkarni

Manali Kulkarni

Manali is the COO at LawInSport and executive contributor of the editorial board for LawInSport. She holds an LLM in Sports Law from Nottingham Law School (Nottingham Trent University).

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Sean Cottrell

Sean Cottrell

Sean is the founder and CEO of LawInSport. Founded in 2010, LawInSport has become the "go to sports law website" for sports lawyers and sports executives across the world.

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