Nick Bitel, CEO London Marathon & Chair of Sport England talks about the challenges facing sports governing bodies - Episode 28
In this interview Nick Bitel, Lawyer, CEO London Marathon & Chair of Sport England talks to Sean Cottrell, CEO of LawInSport about his career as a sports lawyer and sports business executive, the challenges facing sports governing bodies including good governance, sports data, piracy and what makes a good sports lawyer.
SEAN: Nick, thanks for taking the time out for what is a ridiculously busy schedule. You’ve got a fascinating story about how you got into sports law and how you ended up becoming the CEO of the London Marathon and now chair of Sport England. Could you give us a quick run through of your career up to date if you can?
NICK: I always had a love of sport; I played rugby at a fairly decent level. I originally went to university in America, at a small college called Davidson, North Carolina. When I was there, I remember that the local UNC team lost in the final of the NCAA basketball to Marquette. A few years later, they won, after I left, because a young boy called Michael Jordan played for them. I was always fascinated since then with Michael Jordan but also the difference, there seemed to be a really small difference, that one person or one thing could make to a team. Throughout my career I’ve always seen that is absolutely true in the playing field, but I also think it is true for lawyers and what lawyers could do for sports. Sometimes it is not the massive changes that you think that you going to be affecting, it is the small incremental changes. But they can make such a significant difference to the sport, the club, or the player. I think that I always felt that what was fascinating about Sports Law, was the way we can have a major effect.
As a lawyer I was very fortunate, I started in practice and saw fairly early on, 1984 seems like a long time ago, that there might be a gap in the market; that the larger firms traditionally the people like Farrer & Co always acted for Sports organizations, but there weren’t really much in the way of competition. I was in a smallish practice and I thought here was a point of difference that we could use, and that we could compete. The very large firm in those days I believed found that the returns for them usually were not adequate. A Little later, really, I came across Steve Townley, who a number of people in our industry will remember, and I thought, there’s a business model we can go for. My first sports Law client was the London Marathon in 1984. We acted for them for five years until I really understood I think a bit more about the Sports market. I also had a client called Keith Prowse who in those days was an independent company that did sports and travel and hospitality at major sports events. Through them I got introduced around and I am pleased to say I made some very good connections.
SEAN: So what would you say from 1984 is the key difference? What was the Sports Market at the time like? I am presuming there wasn’t a top of money around as is banded about as there is now, and it wasn’t such mass participation activity.
“I first started acting for the Ryder Cup in 1989 and for Wimbledon in 1990, both of whom are still clients today.”
NICK: There certainly wasn’t the money in it. It wasn’t seen as a distinct discipline. Edward Grayson who is thought of as the doyen of Sports lawyers originally, had just written a book I think in the mid-80s about what he said was Sports Law, but I think people thought he was a bit odd at the time. I think people always thought Edward was a bit odd, but I liked him. No one at that time really thought there was such a thing called Sports law.
I started to pick up events after that, so I first started acting for the Ryder Cup in 1989 and for Wimbledon in 1990, both of whom are still clients today. We saw them as a slightly different commercial operator. These weren’t the federations. I think the federations still in those days were stuck in an old mindset; they weren’t particularly commercial as you say. Yet, these big events like Wimbledon, like Ryder Cup were thinking in a commercial way, they were thinking in a business sense. That is why they needed lawyers who can help them see a future, see a way through, and we started acting for them on those occasions.
“I’m afraid far too many of our sports really do not understand their customers”
SEAN: And so, it is fascinating to think that these stand alone events helped you blood into the sports law sector, and then surely that experience then did help with some of the conversations and then working for international federations and national governing bodies as they started to cotton on that they could commercialize and should commercialize. How did that impact?
NICK: It did help, but national governing bodies still struggle with this idea of them being a commercial operator. In my new role as chair of Sport England one of the things I’ve tried to do, one of the first changes I’ve made was to try and bring in an insight function into Sport. Because in my experience national governing bodies and international federations have been really slow to adopt what you would think is a fairly standard business practice. And I’m afraid far too many of our sports really do not understand their customers, not in the way that really fast expanding sports or events like Tough Mudder do, that has been a fantastic success story, that really do analyze and understand what their customers want and how they are going to interact with them as a customer/business relationship. British cycling probably out of our national federations do it better than most. Sport England started this insight function doing a lot of the basic research that if sport was a business it would be doing, but the sports haven’t done that, so we are doing that for them. Now we are rolling it out to them whether it is for youth, a big piece of work we have on young people taking part in sport, women in sport, and trying to then get sports to understand this, and operate with this insight in mind. I still find that today as a lawyer that very often federations still don’t think, very commercially I am afraid to say.
SEAN: And what do you think the problem is there? Because my perception is that there are organisation like The FA, RFU, etc. get a hard time and there a few [of them] getting lightly less of a hard time. Most governing bodies and international federations are there to be shot at and in their mind they are doing a good job, they see to their priority, much like the clubs, is to focus on the activity itself. Do you see it as a lack of expertise, a lack of prioritisation in terms of bringing the right expertise, or are they trying to keep; it was [Michel] Platini or [Sepp] Blatter, one of the two, who was saying you have to have, running an international sports federation, someone who has played the sport to a high level. What do you think about that, and where do you see the problems?
NICK: I think the problem is two fold. One is the design of a national governing body and international federation as well. They are designed largely for rules to govern that sport, officiating, discipline, is obviously a major part of what governing bodies do. They are not really designed for services to the public; they are providing services to their members. And over the years, if we talk about people like The FA; The FA has been hybrid hasn’t it? It has major commercial pieces like the FA Cup and the England team, but actually for too long was not run as you would a major business, because its structure has largely come from the game. So one thing Sports England has been doing is trying to insist on governance changes and about bringing independent experts onto boards, and that has been transformational. We have seen that time and time again with national governing bodies. Unfortunately, I think, international federations don’t have that. However, they have a wider pool to chose from, but far too often if you look who makes up the international federations they are fairly insular, they do not have the experience, the business experience. They have loads of lawyers, every international federation will have a lawyer, but they are not necessarily business lawyers, who I think really do understand what an industry has to do, and sport is an industry, to modernise and improve.
“Lawyers have a really important role to play there, helping sports to understand that model, and other models that are out there, steering them through the process.”
SEAN: I remember you speaking at a conference a couple years ago. I think you stepped in, it was a BASL (British Association for Sport and Law conference, and you stepped in the last minute. And it was a really interesting discussion about governance at the time and entering into the makeup of boards with national governing bodies. It hasn’t been an easy ride, so what lessons have you learned from that? And what would you say was the most challenging components of that? Being on the right side of the curve in that regard, so what do you think the changes have been from the governing bodies since or the change in perception at least, in the importance in the non-executive directors?
NICK: I remember that, I remember talking about the Rooney Rule, which was then almost unknown of, unheard of in this country. Fortunately I think it has been heard of, but unfortunately we have not yet seen the necessary changes that, in the US, the Rooney rule has helped to bring about. Because UK Sport and Sport England have insisted on governance changes and limiting boards, by and large most of our national federations have got there, they understand what a top performing governing body should look like. The trouble is that change has been rather slow, and there are still a number of sports that are struggling with structure where they’ve got a council and they’ve got a board of directors. And that relationship between the council and the board is difficult. When you think of the RFU who had the Slaughter and May Report, which was a very interesting piece of work, and they’ve been working there way through the recommendations but it is taking time. The FA still has to work that out. The LTA has struggled with the council model. Very often Sports understand it at the executive board level, but they haven’t quite worked out their relationship with “the game”, which is very often represented by a council and that is unwieldy. So, I think we are getting there. Lawyers have a really important role to play there, helping sports to understand that model, and other models that are out there, steering them through the process. It is not just process driven, but having knowledge of alternates, and really giving sound business advice, which I think lawyers are very well placed to do.
SEAN: There are a lot of lawyers who I speak to, however they may not be sports lawyers at the moment, or they would love to transition into Sports, or they are Sports lawyers. And they look at you and they think that’s what I want to do. Believe it or not!
NICK: Very hard to believe, yes!
SEAN: They look at you and think; you are a very good case study for becoming a sports lawyer, seeing an opportunity in the market. And I still say there are many opportunities in the sports market.
NICK: I agree with that, definitely.
SEAN: Seizing it (opportunity), creating a good name for yourself, a brand, heavily involved within the sports sector, and embedded within it. And then leading a sports organization like London Marathon and being involved with Sport England and then going on to chair it. So, what do you think the skills or what did you do as a lawyer that you think helped you transition into these roles? And are there distinct skill sets for both, or are there these skills that can be married across both sectors?
NICK: I think one of the fortunate things I’ve had is my time at London Marathon, because that really taught me to think commercially, which I think has helped me as a lawyer. Certainly, I believe, and if you ever talked to my clients I think they’d tell you, that my advice to them is not just legal based, it has a good dollop there of business knowledge and information and advice that I am able to give them. That I think is part of the lesson. If you look at the people out there who are still lawyers, someone like maybe Steve Burton, as an example at Couchmans, who has done a fantastic job at realising the value of data to a sports organization. That role that a good sports lawyer has is not really just about the law. It is much deeper, and that I think must be the secret. So I was very fortunate that I had this relationship with London Marathon that really helped me to develop that side of my knowledge. That is what I think governing bodies especially need and value, and there are some lawyers out there that I can see that do it, but not enough. Sometimes the legal advice that they give is really straight jacketed by the law without thinking in a wider context.
SEAN: I’ve seen you chair sessions at conferences on many occasions; I can’t help but think that that skillset was gained or developed, or maybe you just did it in university or were naturally gifted. Presuming after some professional training in law, that that skill has helped you; and as a head of organisation of a sports body with so many stakeholders to deal with that discipline and structure from law, would you say that has helped?
NICK: Undoubtedly, the legal discipline, being able to analyze and cut through, which I think all good lawyers have that ability, is massively helpful in the sort of work that I do. I am always shocked by the number of times I come to a board and people either haven’t read their papers and certainly haven’t understood their papers; whereas any decent lawyer, and of course not just lawyers, but any decent lawyer will have gone through that and have picked up the salient points very quickly, and be able to drill down. You see it with judges the whole time, where they are faced with an immense amount of paper, and having only had them a short time, can pick out the salient points very quickly. The good judges, that is. That sort of skill, when you are chairing an organisation, or when you are a board member, a nonexecutive board member, that’s a valuable skill. That is one of things a good lawyer brings, and I do see that time and time again at various sports federations. When you really think that person has that training it is valuable. So someone like Ian Metcalf who was a Senior Partner of Wragge’s [Wragge & Co] who is very senior a member of the RFU board, and now chairing the Commonwealth Games of England. Again, you see someone like that who brought all that experience as a lawyer and is exactly the sort of case study I think, that would be a model to follow for other sports lawyers.
SEAN: So you mention cases. I am curious to hear what your favorite case or piece of work you have been involved with. You can use an example of just your favorite sports law case that takes your fancy, or you can talk about an area of work or piece of work that you have been involved with that you think “you know what, I am really proud of this.”
NICK: I’m obviously very proud of winning in the Supreme Court for RFU against Viagogo, I thought that was a very interesting case intellectually, it broke new ground. Viagogo was an odd opponent. It has been reported, I am not giving away secret, that when we won a particular interim costs order against them and they had to pay us 10,000 pounds, they turned up with a wheel barrow full of 1 pound coins to pay the 10,000 pounds. That gives you a little insight about what their mindset was.
SEAN: Just to give some background for people who are not familiar with the case, because it is an important case. Can you?
NICK: Sure. We applied on behalf of Rugby Football Union against Viagogo, which is a secondary ticket-selling site, a platform for others to sell. Because they are not selling, so they say, we felt we couldn’t apply for an order against them to stop them selling. We couldn’t get to the people behind them because it is all shrouded in mystery and secrets to who is the person selling. So we applied for a discovery order, a Norwich Pharmical order, which obviously would be familiar to everybody. Thereafter we had quite a lot of arguments about what is a ticket, what are the contractual terms, what remedies might you have, is it inducement to breach, is it trespass, all sorts of cases. Both the High Court, Court of Appeal and eventually the Supreme Court had to look at all of this. I was a bit surprised actually that the Supreme Court gave permission to appeal to them and took it up, but it was because there had been no cases on these arguments, and some were quite novel and complex.
SEAN: And this was important to our view because their view is that they try to keep the ticket prices static so therefore they can get the most fans essentially into the stadium. And have access to people who play the sport, to have access to watch internationals and other matches.
NICK: I think it is very important to all sports, because when you look at somebody like the RFU or Wimbledon, or The FA, who is in the stadium is a very important part of their commercial mix. It might be that you don’t want to have too many corporate hospitality guests because it changes the atmosphere. Some will remember Roy Keene who famously talked about the prawn sandwich brigade. I don’t think people actually knew it was a dig at sports lawyers because that day we had a BASL Sports Law Conference at Manchester in to which he popped to have a word with us. It felt like it was a particular pointed dig at us. You’ve heard people like Mike Catt in the past talking about wanting to make sure the fans are behind them, and that if there are too many corporates in the stadium it alters it, and they do not feel as if they got that home advantage. It might be things of that nature. It is also important commercially, you are trying to benefit those people who put into the sport on a regular basis. Certainly that’s the RFU view, they want people who are playing in clubs, supporting clubs, or officials. They want to benefit them, to keep them in the game. This is a very important policy, I think for the RFU, and others. And we will see how it develops over the years, because it is still fairly new. Viagogo now claim to be based in Switzerland, and there might be more litigation ahead.
SEAN: You’ve got a great insight into the Sports law sector and as we have heard into international federations and the business of sport. What do you think are some of the challenges, or what interests you at the moment when you look ahead and think “this could be an interesting development?” What do you think are the challenges facing the sports industry as whole at the moment?
“My experience is that pirates will always find a way around technology. So what is it that lawyers can do to help and change the dynamic there?”
NICK: The challenges facing the industry, sports industry might be slightly different than the sports law industry, but the challenges facing the sports industry, and I think to some extent therefore lawyers, is really the idea of content for free, which is a massive challenge for sports. Be it television, be it radio, be it news, how do you control that? And there are I think a lot of people who are struggling with that at the moment.
Sports lawyers are absolutely vital to try and help federations to understand those challenges, and what can be done. But as we’ve seen with the Premier League initially fighting YouTube and then trying to make a deal with them, and we’ve seen it time and time again around the world, it is Sports Law that is going to have to help them; there may be a technological solution but we haven’t found it, and everyone is always claiming it is around the corner. My experience is that pirates will always find a way around technology. So what is it that lawyers can do to help and change the dynamic there? Because otherwise all of the immense success that we’ve seen whether it is Premier League, whether it is cricket, whether it is rugby, all of those require exclusivity, and if you lose that exclusivity then there is a danger. So I think that is the thing most people are struggling with. Do you allow people to take photos when they are in the stadia? You know the Ryder Cup used to say no, now they’ve sort of come to a hybrid position. What do you do about drones, which are increasingly becoming a challenge for sports? At the Ryder Cup we did have one betting company threaten to fly an eagle with a camera over it. So these are the sorts of things we need to think about for the future.
“…the conglomeration of allowing others, be it betting companies, or be it others to use our data, and how to do we monetize that, is another serious challenge to the framework of sport.”
SEAN: That is a very good point. We cover a lot of legal issues at the moment on this particular Vine on exactly the same points. It is a challenge because the technology is enabling people to do things that were not envisioned a few years ago. I am not sure as well that the judiciary and lawyers, and some of the people involved in the media sector understand what is happening at the moment.
NICK: There is also data. It is data, which is going to be the core of a lot of businesses. We don’t as an industry use data particularly well, well one or two I can think of, but generally we don’t. And the conglomeration of allowing others, be it betting companies, or be it others to use our data, and how to do we monetize that, is another serious challenge to the framework of sport.
“Trying to understand business models, how business works, I think that’s the sort of thing that transforms any lawyer, sports lawyers especially from being an ordinary technical lawyer to a great lawyer..”
SEAN: So the advice would be to make sure do engage with lawyers early on that front. I’ve heard cases where, classic example, giving away databases to fans, to betting companies without realizing it. That is such valuable information, and giving away for not quite for free, but for very little cost. To finish off with, what would you say is three if could give advice, and I always ask this question to people like yourself because it is really interesting to hear your perspective on it; what three pieces of advice would you give to someone who is an aspiring sports lawyer, so like maybe someone just starting off in their career or in university, or maybe as I meet quite a few senior lawyers in other sectors particularly in-house counsel who then want to work for sports organizations, what would you say are three key skills they should have?
NICK: I think they are certainly the general skills of listening before you speak. That is a general one that lawyers I am afraid tend to forget. I do believe as I’ve said before that lawyers especially in sport need to be more commercially minded. They need to really understand the commercial realities and, that’s probably is the skill set that I see more rarely amongst lawyers, sports lawyers, than any other skill, which is valuable. Trying to understand business models, how business works, I think that’s the sort of thing that transforms any lawyer, sports lawyers especially from being an ordinary technical lawyer to a great lawyer, and there are a number of examples out there. And then finally I suppose, there is no substitute I am afraid for hard work.
Sean Cottrell: That’s excellent advice. Thank you so much; it was a pleasure interviewing you.
Nick Bitel: Thank you.
A special thank you to Jordan Jackson of Pepperdine University for transcribing this interview.