LawInSport Yearbook 2019-2020

LawInSport Yearbook 2019-2020

Welcome to the fourth edition of our Yearbook.  Regular readers will note that we have now published all ten chapters on the website and this therefore is an overlay to bring together the full series and to properly thank the authors. 

While Covid punctuated our season, one consolation of the timing is that it allowed us to provide some early commentary on the virus and its effects on the sports sector.  No doubt the fallout from the pandemic will continue to be the main issue that most sports have to grapple with over the coming months. Other notable themes of the year include an increased focus on equality and athletes’ rights, particularly within the context of broader political unrest and the upcoming Olympics. 

An excerpt from each chapter is set out below, and the full chapter is accessible via the hyperlink. International readers should note that while the Yearbook is UK-centric, we have tried our best to identify and summarise wider global themes.  This is an issue that we will continue to work on in the future.

LawInSport would like to extend its sincere thanks to the authors (listed below) who have each put in a considerable amount of time and effort to write their respective chapters.  They are leaders in their field and as always it is a pleasure working with them. 

If you have any related questions or feedback, please don’t hesitate to contact us.  

Chris and the LawInSport team.

Chapters:

  1. Governance
  2. Competition law
  3. Intellectual property
  4. Commercial law
  5. Employment law
  6. Equality & discrimination
  7. Integrity (betting and financial corruption)
  8. Anti-doping
  9. Disputes and disciplinary procedures
  10. Safety and participation 

1.    Sports governance

Written by Professor Jack Anderson, Director of Sports Law Studies at the University of Melbourne 

As with any review of 2019/2020, the unprecedented public health and economic crisis and trauma associated with the Covid-19 pandemic globally must first be acknowledged. While at first instance, the concerns of the industry, business and law of sport seem, and are, small compared to that being suffered in wider society, the impact of the pandemic on sport will be felt for quite some time and particularly in terms of finance, participation and, to a certain extent, upon the governance of sport.

With regard to the immediate impact of Covid-19, some analogy can be drawn to what sport encountered in 2008 on the occurrence of the last global financial crisis (GFC). Commenting on that crises, the investor Warren Buffet equated the GFC to the tide going out for many businesses and that when it did go out, and stay out, it was quickly revealed who had been swimming naked all along[1].

Similarly, Covid-19’s impact on the capacity of sports leagues globally to hold and broadcast their competitions meant that the financial dependency many sports had on such sources of income was starkly revealed.  The accompanying impact in terms of sports governance was, at least in the author’s base Australia, that a number of CEOs of leading sports bodies (rugby union and league for example) resigned[2] and the decision-making of such sport’s executive boards came under significant scrutiny[3].

The correlation between good governance practice in a sport and its capacity to meet the unprecedented challenges presented to sports of all kinds by the pandemic, will be one of the learnings and future reflections for sport. This chapter is confined to happenings in sports governance over the past year or so and, after a brief note on compliance and monitoring, reviews the 2019/2020 season in sports governance by way of three case studies, namely: 

  • US Olympic & Paralympic Committee;
  • UK Athletics; and
  • International Paralympic Committee.

The full chapter is available here

2.    Sport and competition law

Written by Benoît Keane, Solicitor & Avocat, Keane Legal and Consultant, Northridge & Ben Foster, Associate, Northridge

Reviewing the competition law issues of the last year, one is struck by the realisation that many of the issues at stake will soon be eclipsed by the seismic events that are now transforming sport.  The world around us is in the process of being re-shaped in response to the COVID19 global pandemic, an unprecedented public health challenge in the post-war era.  Major sports events have been cancelled or suspended.  Organisers, federations as well as sportspersons now face extraordinary challenges in getting the show back on the road.  The competition law questions arising this summer were almost inconceivable just a few months ago.  Yet the last year has not sunk into irrelevance: the lessons from the key competition cases will inform many of the decisions that will have to be made in the coming months.  

Given that much remains in flux with respect to competition cases arising from the COVID19 pandemic, this review focuses on recent developments with regard to:

  • Salary caps and financial fair play;
  • Independent events and sportspersons’ rights of exploitation;
  • Status of amateur athletes

The full chapter is available here.

3.    Sport and intellectual property

Written by Alex Kelham, Head of Sport Business Group, Lewis Silkin

Perhaps the greatest shift[4] we’ve seen in the IP space over the last 12 months is in the approach to athletes’ rights to exploit their own image in more traditionally amateur contexts.

The Fair Pay to Play Act, signed into law in California in September 2019, lit a fire under the National Collegiate Athletic Association (NCAA) on Name, Image and Likeness (NIL) rights.[5] Whilst the law will not take effect until January 2023, with reportedly 30 states following suit and the issue gaining bipartisan federal traction, the NCAA has had little choice but to enter the modernising fray.

On the premise of protecting the student experience and ensuring amateurism, NCAA athlete scholarships are capped and any compensation that could be seen as payment for playing has been prohibited. This includes an athlete’s ability to commercialise their intellectual property through NIL deals with third-parties. The NCAA has rigorously protected its collegiate model, facing down challenges including the highly criticised ruling of ineligibility of UCF kicker Donald De La Haye in 2017 for profiting from his YouTube videos[6] and the decision to pull the lucrative EA Sports NCAA games in 2013[7] following lawsuits seeking damages for the use of athlete’s likeness without compensation.[8]

In addition to athlete image rights, the last year has brought us more interesting cases, which we’ll examine under the following categories:

  • Trade mark, copyright and passing off cases
  • Data & confidential information
  • Advertising Regulation

The full chapter is available here.

4.    Sport and commercial law

Written by Jon Walters, Partner, Northridge

At the time of writing, it is hard to reflect on a pre-Covid-19 world in which recent deal history would be a cause for bullish optimism about the commercial value of sport. However, rewind to early 2020 and the activity in media rights, sponsorship, and investment / M&A relating to sports properties over the preceding 12 months would justify exactly that.

Real Madrid had announced the most lucrative football partnership in history, a US$1.2 billion kit deal with Adidas;[9] the English Premier League had secured a sale of live rights in Scandinavia to NENT’s Viaplay streaming service at a reported value of £2 billion;[10] and private equity had continued to demonstrate its confidence in the sports and entertainment market, notably CVC’s investment in Premiership Rugby and its cash injection, along with the Jordan Company, of US$600 million into Bruin Sports Capital.[11] 

This review recaps the main commercial and investment trends developing in sports over the past year before looking ahead to see how they may continue to evolve in a post-Covid-19 world.  Specifically, it looks at:

  • The main lesson from Covid-19 for commercial contracts
  • Sponsorship developments
  • Athlete endorsements
  • Investment in sport

The full chapter is available here.

5.    Sport and employment law

Written by Bianca Balmelli, Barrister, Littleton Chambers

Across the board people have been reassessing how the traditional views of what it means to be an ‘employee’ fit within our modern world.

Employment issues in sport differ according to the sport under consideration. In some sports, such as football, there is generally no question that the players are employees. In other sports, such as tennis, the players are traditionally not seen as employees. Between these two extremes lie a number of sports where the answer is not so clear.  This includes, for example, the status of national athletes (like Team GB cyclists) who are funded through world class performance programmes with a national governing body (Funded Athletes).

This chapter reflects on:

  • the latest case law surrounding the question of employee status in sports – including the latest developments in the litigation involving British Cycling and Jess Varnish;
  • the benefits of being an employee, specifically:
  • the right to maternity and paternity leave – including a look at recent collective bargaining agreements in various sports which are starting to cater for maternity rights;
  • equal pay – including a review of recent developments in Australian and US football; and
  • the obligations of being an employee, specifically the obligation to follow lawful and reasonable instructions, including recent examples of how laws prohibiting the making of political statements have conflicted with certain high-profile football players’ support for anti-racism movements.

The full chapter is available here.

6.    Sport, equality & discrimination

Written by Lydia Banerjee, Barrister, Littleton Chambers 

Since the last edition[12] of the LawInSport year in review, two key topics remain at the forefront of discussions, namely:

  • race, and
  • gender equality

Both have been brought into sharp focus by recent global events. The global Covid-19 pandemic has caused hundreds of thousands of deaths, economies to shut down and, importantly for our purposes in this piece, the sport calendar to stop mid-stride. In a matter of weeks business plans were ripped up, funding agreements called into question and most sports were forced to take a long hard look at their business model, including growth agenda (especially the burgeoning growth of women’s sport). 

Within the maelstrom, the death of George Floyd sparked international protests led by the Black Lives Matter movement, highlighting the inequalities and victimisation that are still very much a part of life for many black people.  These two world events provide a lens through which to examine the key issues from the last year and consider what may lie ahead in the coming months.

The full chapter is available here.

7.    Sports integrity (betting and financial corruption)

Written by Louis Weston, Barrister, Outer Temple

In last year’s review[13] it was noted that a big event was the Australian Cricket Team’s involvement in ball tampering[14], which led to the suspension of Captain Steve Smith and Vice-Captain David Warner.  One year on and Ian Chappell, the former Australia Captain, has come forward with the inventive solution that the rules should be changed to allow bowlers to ball-tamper at least to the extent of providing a list of permitted measures[15].

In the UK, as the coronavirus pandemic forced Her Majesty’s Government to impose a lock down and close all retail outlets, the Home Secretary, Priti Patel was pleased to announce that the level of shoplifting had fallen[16].  Not long after the Health Secretary, Matt Hancock, brought in a ‘test, track and trace’ policy[17], although currently only planned for the peoples of the Isle of Wight.

Taking the pith from those three events allows these general statements to be made about sport governance and the battle against corruption:

  • What is illicit is only made illicit by enaction of rules and laws. The proposition that ‘all corruption can be cured by legalising it’, has the counterpoint that only if legislated against it can it be found to be an offence or breach of the rules and laws.
  • Whilst indirect means of bringing down crime and corruption may work, they will not meet with much public approval or confidence if no direct measures are in place. The lack of corruption in practice in sport during lockdown will not mean that the corrupters have gone away.
  • Unless there is a system of detection no one will know where the corrupters are or what they might be up to.

The aim of this chapter is to identify and review some the notable cases and events in 2019/2020 and to discuss what trends might be drawn from them. The review is set out under these headings:

  • Key events
  • Disciplinary decisions
  • Impact of coronavirus

The full chapter is available here.

8.    Sport and anti-doping

Written by Richard Liddell QC, Barrister, 4 New Square & William Harman, Barrister, 4 New Square


WADA’s appeal against a decision by the International Swimming Federation Doping Panel to reprimand three-time Olympic gold medallist in connection with an allegation of tampering with a doping control test was always going to generate substantial interest. But the appeal’s box office status was secured when shortly before the substantive hearing in November 2019 the CAS [18]De Bruin v FINA

This chapter surveys some of the most high-profile anti-doping stories of the last twelve months, including the eight-year ban imposed on Chinese sporting icon, Sun Yang. It also identifies various cases which involve less decorated athletes but are no less interesting and significant.

The broad structure is as follows:

  • first, we look at the new Court of Arbitration for Sport Anti-Doping Division before turning to consider some appeals before the Court of Arbitration for Sport (CAS) starting with WADA v Sun Yang;
  • then we identify some interesting UK cases of the last year;
  • then we provide an update on the Russian state-sponsored doping scandal and flag various anti-doping decisions and events to look out for in the coming months;
  • then we consider how WADA is dealing with the challenging and rapidly evolving situation regarding the COVID-19 pandemic; and
  • finally, we refer to a couple of matters ‘hot off the press’.

The full chapter is available here.

9.    Sports disputes and disciplinary procedures

Written by Carol Couse, Partner, Mills & Reeve LLP & Tiran Gunawardena, Senior Associate (Australian Qualified), Mills & Reeve LLP & Rustam SethnaAssociate, Mills & Reeve LLP

Given how COVID-19 has completely dominated everything in life over the past few months, it is somewhat surreal looking back over the last year to what the sports industry looked like.

If you do cast your mind back, you might recall that 2019-20 was a year of high-profile sports disputes and disciplinary cases, with many of those cases frequently occupying the mainstream media spotlight.

As noted by Nick De Marco QC in his article[19], issues relating to independence and the right to a fair hearing in sports arbitration represent an important trend in sports law. While the Pechstein saga was seemingly put to bed in 2019[20], issues surrounding transparency and independence were brought to the fore in other shapes and forms, as highlighted below.

This review seeks to summarise the year gone by through the following overarching themes:

  1. Sports tribunals and their independence
  2. Financial regulation of sport
  3. Other high profile disputes in the media spotlight
  4. New rules and regulations
  5. Issues to look out for

As COVID-19 clearly casts a large shadow over the sports industry, the authors will at the end of this chapter provide a brief overview of some of the sports disputes expected to arise over the next year due to the fallout from the virus.

The full chapter is available here.

10. Sport, safety and participation 

Written by Mark James, Director of Research, Manchester Law School, Manchester Metropolitan University

A number of issues relevant to sports negligence were central to the claims made in Craig v Tullymurry Equestrian Centre.[21] The key points addressed by the judge included what can broadly be described as the playing, or working, culture of an equestrian school, the inherent risks involved in a sport, and the quality of the claimant’s evidence. The claimant argued that the horse selected for her by the defendant was agitated and bad-tempered, as evidenced by its nodding its head and swishing its tail. The horse then attempted to leave the training arena and had to be brought back into it by the instructor. Having completed two jumps, the horse bucked, throwing the claimant and badly injuring her ankle in the subsequent fall.  She also claimed that much of the horse’s behaviour had been missed by the instructor as she was using her mobile phone at the time.  In rejecting the claim, the court held that there had been an exaggeration and/or over-dramatisation of the situation by the claimant and that accident had most likely occurred because of an error on the part of the rider – either a loss of balance or a moment’s loss of attention.

The past year has once again seen some important clarifications in the law of negligence and nuisance and the ways that they apply to sport. In particular, developments in the general law of tort will have significant impact on the way that sports litigation will be run.   In addition, the continuing development of the law relating to vicarious liability and its application to historic sexual abuse cases has begun to take shape and will influence forthcoming cases in the years to come. 

This chapter examines the key UK case law and trend developments affecting sports safety and participation over the past twelve months, together with the themes to watch going forwards. Specifically, it looks at:

  • Developments in the law applying to sports participants
  • Developments in the law applying to sports spectators
  • Developments in the law applying to historic sexual abuse cases
  • Clarification of the doctrine of vicarious liability
  • Developments in the law of private nuisance
  • Developments overseas
  • Looking to the future

The full chapter is available here.

 

Chris Bond

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