The Sport Lawyer's top 5 sports law cases of 2012

Published 05 January 2013 By: Andrew Nixon

The Sport Lawyer's top 5 sports law cases of 2012

It has been an incredible year of sporting success on the field of play, the highlight of course being London 2012 and a record haul of medals.

It has, however, also been a fascinating year from a sporting legal perspective and to round off 2012 we highlight what we consider to be the five most significant cases and trends of the year. We hope you have enjoyed reading our articles and have found them relevant and useful. As always, we welcome any feedback.

1. BOA lose bye-law appeal - April 2012
2. The Karen Murphy case - April 2012
3. To select or not to select... – May and June 2012
4. The John Terry case – September 2012
5. Lance Armstrong - October 2012

1. BOA lose bye-law appeal - April 2012

The build up to the Olympics was dominated by selection disputes and concerns about doping and one dispute in particular touched on both subjects.
The British Olympic Association (BOA) lost its appeal against WADA's ruling on lifetime Olympic bans for athletes found guilty of doping offences. The ruling opened the door for athletes serving BOA bye-law bans (such as Dwain Chambers who did compete and David Millar who, despite the ruling, did not) to compete at the London Olympics, subject to meeting relevant qualification criteria.

The hearing took place in March 2012. The BOA's key submissions were, amongst others, that the bye-law was a selection criteria and it was entitled, as an autonomous governing body, to create and implement its own selection policy. WADA argued that the question was whether or not the bye-law was characterised as an additional sanction over and above sanctions provided for in the WADA Code (and if it is characterised in this way it breaches Article 23.2.2 and is therefore invalid).

The Court of Arbitration for Sport (CAS) found without hesitation that the BOA was not entitled to pursue its own policy. The BOA is a signatory to the Code and therefore as a matter of contract law agrees to limit its autonomy. In particular, Article 23.2.2 of the Code requires its signatories not to make any additional provisions which could change the substantive effect of the Code: which is to harmonize throughout the world a doping code.

The decision was not a surprising one. You cannot have a situation in which a signatory NOC is entitled to operate independently of the Code: if it could, athletes would not be treated the same throughout the world. The Code comes under review in 2013, and discussions have taken place around extending the mandatory first offence sanction from two to four years. Whether or not a rule not dissimilar to the defunct IOC Rule 45 and the BOA bye law will eventually be written into the Code remains to be seen.

2. The Karen Murphy case - April 2012

Karen Murphy used a Greek decoder card to show live Premier League matches to her pub audiences for which she was prosecuted by Media Protection Services Ltd in 2006.

She was prosecuted because the use of the decoder card infringed PL's intellectual property and BSkyB's licensing rights whereby broadcasters are appointed exclusively in each EU Member State. Murphy appealed to the High Court on the grounds that she, as a consumer, should not be prevented from finding and taking advantage of the best deal (a primary objective of EU competition law). In 2008 the High Court sought interpretation from the European Court of Justice (ECJ) as to whether UK laws conflicted with EU legislation. This followed the merging of two separate actions: Murphy's and QC Leisure; prosecuted by the Premier League for supplying the decoder cards to UK pubs.

EU membership requires UK courts to interpret national legislation in line as far as possible with EU legislation. The ECJ had to balance the need to safeguard fundamental EU freedoms (Murphy's case) against IP protection for the rights holder (the Premier League). The decision was handed down in February 2011 in favour of Murphy and QC Leisure. Territorial protection could not be justified because partitioning the internal free market was not deemed essential to protect the subject matter of the licence (the live broadcasts).

The ECJ then ruled upon which legislation (UK or EU) was to prevail: it was held that:

EU free movement rules took precedence over the subsisting IP rights in the UK;

Live transmissions of sporting events were not capable of copyright protection, but pre-game cinematics, Premier League anthems, logos and highlights ('additionals') were;

Showing these to the public breached copyright protection; and

Granting licences on an exclusive territorial basis did not infringe competition law, but the further obligation to prevent an authorised Premier League broadcaster selling the service to a Member States citizen outside the allocated territory did.

Applying the ECJ ruling the High Court concluded the matter in April 2012, ruling that the public showing of a broadcast did not infringe any copyright where the audience had not paid for admission. The publican did not attempt to resell the copyrighted works, and had already paid for a subscription to show the game. Her conviction was overturned and the Premier League could not get an injunction to prevent further copyright infringement. However, if publicans are to purchase cheaper subscriptions from other Member States, Premier League permission is still required to show the additionals.

3. To select or not to select... – May and June 2012

The lead up to London 2012 raised a number of interesting legal issues and one of the most high profile was selection disputes. From the successful challenge by the rhythmic gymnasts back in February, to Aaron Cook's unsuccessful appeal in May, plenty 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 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 allowed for many more home athletes to be selected than usual. Secondly, an athlete who has given everything 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 was 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 were 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 were dealt with varied from sport to sport. In judo, for example, an appeal against selection had to be brought before an internal appeals body, whereas fencing (rightly, in the writer's view) referred 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. 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.

4. The John Terry case – September 2012

This case makes the top five because of the press coverage and profile it attracted ever since the incident that took place involving John Terry and Anton Ferdinand in October 2011. That incident culminated in a criminal trial in July (which resulted in a not guilty verdict) and an FA disciplinary hearing in September, which resulted in a four game suspension and a £220,000 fine for the former England captain for using abusive and/or insulting words and/or behaviour, which included a reference to colour and/or race contrary to FA Rule E3 [2].

Arising out of the same incident, Rio Ferdinand received a £40,000 fine as a consequence of comments posted on twitter referring to Ashley Cole as a 'choc ice' and Cole himself was then sanctioned by the FA's independent regulatory commission following comments (also made on twitter) criticising the FA and received a £90,000 fine.

It was an unedifying episode right across the board, and indeed the level of sanction received by Terry was considered by many to be too lenient (the ban received was considerably shorter than the nine game ban Luis Suarez received for comments of a racial nature directed at Patrice Evra). What however has arisen, partly as a consequence of this case, is a new FA Code of Conduct, the aim being to introduce general principles outlining appropriate and inappropriate conduct by players (including the use of social media), whether representing the national team or not. Furthermore, the Professional Football Association has lobbied for the inclusion of specific reference to racism in player contracts, which would mean that any form of racial abuse will automatically be considered gross misconduct (giving the clubs the option of terminating a playing contract).

5.  Lance Armstrong - October 2012

In October the United States Anti-Doping Agency (USADA) published its Reasoned Decision in the USADA v Lance Armstrong investigation.  The Decision painted a damming picture of Lance Armstrong and his (and his team's) systematic and widespread doping procedures.

The case involved an important jurisdictional issue in terms of sporting governance.  The writers' view is that whilst the international governing body governs the sport from a regulatory perspective, it is difficult to argue that USADA lacks competent authority. Article 15.3 of the World Anti Doping Code states that results management and hearings will be conducted pursuant to the regulations of the Anti-Doping Organization "which discovered the violation". Furthermore, USADA, as a signatory to the World Anti Doping Code has adopted the anti-doping rules from the Code and there is no provision in the Code that permits the international governing body to interfere.

In so far as sport is concerned generally, and in particular professional cycling, the decision to release the evidence against Armstrong was on balance a sensible one.  For many it will be seen as a watershed for the sport.  It also shows that the anti-doping agencies and governing bodies will work together where issues of widespread doping are concerned and where the integrity of sport is at stake.

What about 2013?

As ever, it is impossible to make any predictions for 2013. Perhaps the most significant development will relate to the financial regulation of football. UEFA's Financial Fair Play Regulations are now well into their monitoring season, and the regulations will start to 'bite' when applications are made for UEFA club licences for the 2013/2014 season. The Football League has also since introduced its own version of the UEFA Financial Fair Play model (break even rules for the Championship and Salary Cost Management for Leagues one and two).

The Premier League is now under going its own consultation process, with the majority of Premier League clubs committed to some form of financial control (prompted perhaps by the newly negotiated TV rights deal). The options on the table for the Premier League appear to include the adoption of the UEFA break even model, a type of salary cap (based on wage bill increase limits) or a wage to turnover model. Either way, the desire for reform appears to be there and 2013 is likely to witness the first steps towards formal financial regulation of the Premier League.

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Andrew Nixon

Andrew Nixon

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.

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