The Sport Lawyer - Olympics Edition
Published 27 July 2012 By: Andrew Nixon
The Sport Lawyer and everyone in the Sports Group at Thomas Eggar LLP wishes Team GB and all the athletes competing at London 2012 the best of luck for the coming fortnight. It is sure to be a great celebration of sport and competition.
In this Olympic special edition of The Sport Lawyer blog we share our views on topcia Olypmic issues:
- To select or not to select....
- Disputes at the Games?
- The Sports Resolutions Pro Bono Legal Service
- Fighting ambush marketing – Paddy Power V LOCOG
- Use of Twitter by competitors at the Games
To select or not to select....
The lead up to the Games has raised a number of interesting legal issues, particularly in relation to selection. From the successful challenge by the rhythmic gymnasts back in February, to Aaron Cook's unsuccessful appeal in May, a number of column inches have been devoted to athletes who have sought to challenge their governing body's approach to the selection process. Indeed, TE Sports Group's Andrew Nixon represented athletes from judo and fencing respectively on selection challenges.
The number of selection disputes was hardly surprising, for two reasons. Firstly, host nation status allows for many more home athletes to be selected than usual. Secondly, an athlete who has strained every sinew during the four year cycle will understandably leave no stone unturned in pursuit of his or her opportunity to compete at not just any Games, but a home Games.
One of the problems has been not only a lack of consistency of selection, but a lack of consistency between sports on selection policies and in relation to how appeals against selection are dealt with. The application of discretion (and the influence of internal politics) in selection has also been much debated and was brought to the fore during Aaron Cook's appeal against British Taekwondo. Cook was unsuccessful, but the outcome nevertheless left many wondering why an athlete who was world number one was not selected when the overriding objective of a sport that receives considerable funding from UK Sport is (or should be) to achieve medal success for Team GB. Equally, how selection challenges are dealt with varies from sport to sport. In judo, for example, an appeal against selection must be brought before an internal appeals body, whereas fencing (rightly, in the writer's view) refer appeals to Sports Resolutions, an independent arbitral body with considerable experience in dealing with precisely this sort of issue.
The challenge will be for the BOA to address these issues before Rio 2016 (although the lack of home nation places next time around will inevitably reduce the spate of appeals). In particular, there has to be some sort of uniformity built in, both in relation to selection and how selections are challenged by athletes. Clearly, all sports are different, and the procedure where by governing bodies nominate athletes for selection for ratification by the BOA is absolutely correct because those sports have the requisite knowledge and expertise to make the call, and invariably get it right. However, the BOA will in the future need to more closely scrutinise the selection policies and appeals procedures, and may, as the body ultimately responsible for selecting Team GB, have to adopt more of a governance role in relation to overseeing the selection process.
Disputes at the Games?
The lead up to the Games may have been dominated by selection disputes, but as the Games gets underway how will disputes that arise during the next fortnight between dealt with?
One of the key issues is ensuring that hearings are convened quickly and on an expedited basis. In order to achieve this, disputes covered by the Olympic Charter will fall under the jurisdiction of the Court of Arbitration for Sport, in so far as the disputes arise during the Games or during a period of ten days preceding the opening ceremony.
How it works is that an ad hoc Division of the CAS is established which is in place to provide for the resolution of disputes by arbitration, with the panel being drawn from a list of specialist arbitrators. The CAS shall also establish a Court Office of the ad hoc Division on the main site of the Games, which shall fall under the authority of the CAS Secretary General, and the language of the Court shall be conducted in English or French as determined by the President of the ad hoc Division. The Arbitration panel shall rule on the dispute pursuant to the Olympic Charter and a decision shall be given within 24 hours of the lodging of the application. Only in exceptional circumstances can the time limit be extended by the President of the ad hoc Division.
The types of disputes that will fall under the jurisdiction of the ad hoc Division will be varied and wide ranging, from in competition and rules disputes, through to failed doping tests. Indeed, selection disputes can also fall within the jurisdiction as was the case with Peternell v South African Sports Confederation and Olympic Committee. In that case, South African horse rider Alexander Peternell challenged the decision of the SASCOC not to select him for the Games. A CAS panel constituted before the ad hoc Division opened ruled that Peternell had indeed met qualification criteria to be selected in place of the previously selected Paul Hart, but despite the ruling SASCOC failed to select Peternell (although withdrew Hart). Peternell then filed a new request for arbitration, this time before the ad hoc Division that had since been convened, seeking an order to oblige SASCOC to enter him into the Games: his request was upheld the same day.
The Sports Resolutions Pro Bono Legal Service
Athletes (such as Peternell) will be entitled to be represented by lawyers during hearings before the ad hoc Division. Many will have their own representatives, but many will not. Those athletes who do not have representation may be able to make use of the London 2012 Pro Bono Legal Service . The Pro Bono Service was set up by Sports Resolutions and provides free of charge legal advice and representation for accredited athletes, coaches, team officials, National Olympic Committees, National Paralympics Committees, International Federations and International Paralympics Sporting Federations participating in the London 2012 Olympic and Paralympics Games. Its purpose is to provide a safety net for those who do not have their own legal representatives in place in the UK and who may have difficulty in identifying representation at short notice.
The Service is available from 9 July to 12 September 2012. It includes a fast track sports advocacy service which is intended to provide representation for parties before the CAS and other expedited sports hearings held during the Games. Help is available in six areas of law: sport, criminal, defamation & privacy, immigration, discrimination, and personal injury.
Fighting ambush marketing – Paddy Power V LOCOG
Ambush marketing is any sort of unauthorised association by a business with a sports event, such as the Games, and the objective of the ambusher is to benefit from the event's goodwill without paying a rights fee. Ambush marketing constitutes a real threat to an event organisor's commercial program because the brands who invest considerable sums to associate themselves with the event expect a clean event.
Ambush activity varies in scale, and it will be for the event organiser to assess the potential threat and take action depending on the nature of the threat. The recent advertising campaign by Paddy Power declaring it was the official sponsor of the largest athletics event in London (London being the French town of London) has caused LOCOG to demand that bill board operator JCDecaux remove the ads. LOCOG then backed down, deciding not to take the matter any further when Paddy Power sought an interim High Court Order to prevent their removal.
There is little doubt that the Paddy Power advertisement was close to the bone. However, on balance, LOCOG has adopted the correct strategy in dealing with it. Firstly, the last thing LOCOG would have wanted on the eve of the Games was an unedifying and costly battle with Paddy Power and secondly, by deciding not take further action they will be starving the campaign of the publicity oxygen it needed.
Fighting ambush marketing is often a commercial balancing act, between protecting the brands legitimately associated with the event, and not helping fuel the publicity surrounding the ambusher. For large brands not associated with the event, it often makes commercial sense to seek to ambush because the publicity that it can create outweighs the risks of facing a claim for breaching the various propriety rights in an event. Indeed, one of the most famous attempts at Games time ambushing came at the Barcelona Games in 1992 when Benetton ran a campaign featuring five rolled up condoms parodying the Olympic rings.
In relation to Paddy Power, lessons were probably learned from the FIFA World Cup, during which a media storm was created around the arrest of the "Barvaria Girls" who had been planted by the German beer brand, Barvaria. Arguably, had FIFA simply ignored the ambush attempts, the campaign would have gone unnoticed. LOCOG will continue to closely monitor ambush activity as the Games rolls into action, as they are obliged to so. If the threat is real, they will take action to protect the interests of their commercial partners, but always bearing in mind the risk of creating a story out of very little.
Use of Twitter by competitors at the Games
Voula Papachristou, the Greek triple-jumper, has been identified as the first athlete to be excluded from the Games for remarks made on Twitter.
Papachristou has been excluded from the Greek Olympic team after posting allegedly racist comments. Although the comments were quickly withdrawn, that did not prevent the Greek Olympic Committee removing her from the team, condemning the comments as being "contrary to the values and ideals of the Olympic movement'.
The swift and decisive actions of the GOC, the national governing body responsible for administering the selection process for Greek athletes, again demonstrates the need for athletes (in all sports) to use social media, and Twitter in particular, responsibly.
The Sport Lawyer has previously published guidance on managing the issues that arise from the social media boom.
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Andrew Nixon is a Partner in the Sport Group at Sheridans. Referred to in this year's Legal 500 as a “very bright and talented sports lawyer” Andrew's practice focuses principally on regulatory, governance, disciplinary, arbitration and dispute resolution within the sport sector. Andrew's clients include governing bodies, sports clubs, sports agencies and individual athletes.