“Play on, play on. Pretend it didn’t happen”, the tag rugby referee insists, as that week’s newbie makes a blatantly forward pass. Outraged that they aren’t allowed their own free pass (pardon the pun), experienced players often question why referees are so lenient with players new to rugby. Why aren’t they held to the same standard? The recent High Court decision of Czernuszka v King [2023] EWHC 380 (KB) appears to answer that question.

Facts

On 8 October 2017, the claimant, Dani Czernuszka, was left paraplegic and wheelchair-dependent following a spinal injury sustained in her first competitive rugby game. She alleged negligence against the defendant, Natasha King, who tackled her.

The claimant, playing as an openside flanker, filled in for the scrum half at a ruck that had formed. The claimant was bent at the waist with her head and neck exposed. Upon the ball bobbling out of the ruck, the defendant came round the side of what was the ruck and appeared to place her bodyweight onto the claimant’s back. The claimant’s legs were out in front of her, whilst the defendant’s hands were on her legs.

Negligence

Mr Justice Spencer was persuaded by the claimant’s argument that the legal test to be applied was whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances, which was the same test endorsed in Condon v Basi [1985] 1 WLR 866. The Condon test provides that the defendant’s duty is “to exercise such degree of care as was appropriate in all the circumstances”. Paragraph 38 of the judgment outlined how, in Condon, the court observed that “the standard of care was objective, but objective in a different set of circumstances; thus there will be a higher degree of care required of a player in a first division football match than of a player in a local league match”.

The judge was not persuaded that there was a principle to follow in Blake v Galloway [2004] 1 WLR 2844, and instead found that there was no conflict between the Condon test and the Blake reasoning or decision. Blake concerned an injury sustained during horseplay between two 15-year-old boys, where the high standard established was that “there is a breach of the duty of care owed by participant A to participant B ‘only where A’s conduct amounts to recklessness or a very high degree of carelessness'”. The judge found that the Blake standard was not applicable in this case, as Blake was in the context of horseplay and not of sport.

Decision

Mr Justice Spencer found entirely against the defendant, save for one aspect mentioned at paragraph 61 of his judgment. He found that the defendant was not offside, and therefore was allowed to contest for the ball. However, the defendant “should have modified her conduct because it was or should have been apparent that the claimant was treating the situation as though there was still a ruck”. In essence, the defendant should have recognised that the claimant was not aware that the ball was out of the ruck. Instead, she should have allowed the claimant time to make a decision. This sets a precedent that in a developmental game such as this, any reasonable, regular rugby competitor should ‘go easy’ on newer players and not play the game with full force. They should not capitalise on a new player’s misunderstanding or inexperience.

The judge’s reasoning can be found at paragraphs 58(ix) and (x). There, he explained that the defendant’s manoeuvre was “obviously dangerous and liable to cause injury”, and that the tackle “was executed with reckless disregard for the claimant’s safety in a manner which was liable to cause injury and that the defendant was so angry by this time that she closed her eyes to the risk to which she was subjecting the claimant, a risk of injury which was clear and obvious”.

The standard expected of more regular players is shown at paragraph 29: “at this level of rugby, with the claimant bending over in the position of acting scrum-half as though the ball was still in the ruck, he [Mr Edward Morrison, an eminent retired referee and the claimant’s expert] maintained that the defendant would or should have known that the claimant was treating the ball as in the ruck, that she would be completely unaware that she was about to be tackled and in those circumstances, the defendant should not have persisted in tackling the claimant but should have desisted”. This highlights the greater care those familiar with the sport should exercise towards new players.

Going forward

It comes as no surprise that those with a higher level of experience must exercise a greater duty of care. A lot of this case turned on its particular facts, and much attention was paid to the defendant’s alleged conduct in a previous game and the game on 8 October 2017 prior to the injuring tackle.

If the incidents leading up to the tackle are stripped away, this is a simple case of a competitor playing on the edge of the rules of the game and being too eager to assert their physicality upon the other team. The facts leading up to the tackle itself do not add anything salient as to whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances. It is the tackle that is important, not whether the defendant swore at her opponents or tried to intimidate them.

The defendant’s alleged behaviour in the previous game raises the question of what ‘evidence’ should be admissible in sporting personal injury (PI) cases such as these. It could be argued that the defendant’s alleged previous conduct was not relevant in assessing whether she had failed to exercise such degree of care as was appropriate.

This is a seismic decision in that it is a first for the women’s game and sets a new precedent for sporting injury claims. The women’s game is expanding rapidly and this case hopefully assists clubs and players in safeguarding against similar injuries.

Sadly, this isn’t the first time a player has been paralysed as the result of a tackle, and it certainly won’t be the last. Meaningful change remains needed to the game’s tackle height laws, whilst referees need to exercise greater control over developmental games such as in this case to ensure safety of new players. If necessary, referees should consult both captains if a game threatens to boil over.

It is expected that the Rugby Football Union (RFU) will foot the damages in this case, as they insure all players at all levels through a mandatory scheme. The RFU will continue to pay for similar cases unless and until they set higher standards.

Christian Mills is an aspiring barrister currently studying the bar course at BPP University in Leeds.

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Last Saturday, the boxing world was left stunned by Josh Taylor’s split-decision victory over Jack Catterall. Many of the world’s top fighters and pundits condemned the judges’ decision, described by Catterall’s coach as “disgusting”.

It appeared to all watching that the unified light welter-weight champion Taylor had met his match, getting outboxed by Catterall who scored the contest’s only knockdown in the eighth round. But the three judges saw it differently and they are the only spectators that matter. Two judges awarded Taylor (aka the Tartan Tornado) the win by 113-112 and, most surprisingly from the former professional boxer and seasoned judge Ian John-Lewis, 114-111.

As the dust settles from the fight, the British Boxing Board of Control (BBBC) have announced that they are investigating the scoring. Regardless of its outcome, Catterall will almost certainly remain, in his words, an “uncrowned King”. He will be left without even a right to know the reasons why the judges scored the fight in Taylor’s favour and, notably, without legal recourse against the BBBC, the independent organisation which regulates professional boxing in the UK.

This is because the law currently does not allow judicial review claims to be brought against sports governing bodies such as the BBBC. Established in the 1993 case R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan, English public law is global outlier in this regard, with New Zealand, France, Spain, Canada, South Africa, and even Ireland and Scotland, which share to a larger extent in England and Wales’s cultural perspective on sports governing bodies, all recognising a right to review sports bodies.

The reason for this is to do with the doctrine of amenability. In other words, some organisations are amenable to judicial review, whilst others are not. English law currently only allows bodies that perform public law functions to be subject to judicial review. The problem, then, is differentiating between institutions that have public law functions and those that do not.

This used to be resolved by limiting amenability to bodies whose power derived from statute (or in rarer cases the exercise of the Royal Prerogative). But the scope of amenability was expanded in R v Panel on Takeovers and Mergers, ex parte Datafin, where it was held that judicial review could be brought if “the body in question is exercising public law functions, or if the exercise of its functions have public law consequences”.

This functionalist approach saw not only the Panel on Takeovers and Mergers (then a self-regulatory body that did not derive its powers from statute), but also the Advertising Standards Authority and the Bar Council be found amenable to judicial review. So bodies governing City deals, advertising standards and lawyers were now considered to be performing a public law function. Even private companies, such as Hampshire Farmers Markets Ltd, have been found in certain circumstances to satisfy amenability. But not sports governing bodies.

Instead, in Aga Khan, the Court of Appeal appeared to return to an essentialist approach, stating that “the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body”. It held that “while the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental”. This somewhat artificial repositioning of the goal posts from ‘public’ to ‘governmental’ reflects the perception and position of sports governing bodies in society at the time. Implicitly, sports was not on the same level of public interest as business deals, advertising regulation and legal services.

The judges described how the Jockey Club functioned like a contract between the body and its members. Accordingly, the relationship was limited to the confines of contract law with members only able to bring claims when an express or implied term of that contract had been broken, without the broader rights of judicial review that demand good administration (such as procedural fairness and legitimate expectation) and can be brought by any sufficiently interested party (in the case of sports, this might include passionate fans).

To my mind, this essentialist approach misses the functional reality of these bodies. This was a concern first raised by Lord Denning in his dissenting judgment in Russell v Duke of Norfolk back in 1949. He recognised the Jockey Club’s functional reality was that it had monopoly control over the sport and therefore had the power to destroy an individual’s livelihood by taking actions such as imposing bans. Such monopolies make it impossible to freely agree to a sports governing body’s rules, as one does in a contract. These rules are imposed like a “legislative code” as Denning later put it in Enderby Town FC v Football Association Ltd.

If the functional reality of sports governing bodies was not convincing enough in 1949, the expansion of government sports policy provides convincing evidence of the public and governmental nature of sports bodies today. Over the past couple of decades, these bodies have collaborated with government to implement policies on doping, corruption and gambling. The courts have also acted in a deferential way to bodies governing contact sports, granting them the responsibility for regulating what might otherwise fall under criminal jurisdiction.

Furthermore, as governments aim to tackle public health issues such as obesity and seek to enable national teams to perform well at large sports events such as the World Cup or the Olympics, sport has come to be viewed as socially beneficial and important to government objectives. Indeed, we have already seen this involvement of politics in sport in Catterall’s situation, with the Speaker of the House of Commons Lindsay Hoyle swapping castigating MPs for rebuking boxing judges, when he indicated that he would raise the conclusion of Saturday’s world title bout with the Minister for Sport.

If it were held that BBBC were amenable to judicial review, Catterall’s misfortune would likely remain unchanged beyond perhaps earning the right to receive reasons. However, the BBBC would be subjected to higher standards that aim at promoting transparency, accountability and good administration. This would go some way to appeasing the many longstanding critics’ complaints following several eyebrow-raising decisions overseen by the professional boxing regulator. Catterall’s fight may be over, but sports governing bodies should be wary of public law’s rumble in the jungle.

Will Holmes is a future trainee solicitor at a magic circle law firm.

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If you’re a football fan, then you must be well aware of the beautiful game’s recent Super League fiasco.

The project took years in the making, and in April this year, 12 of European football’s most prestigious clubs (later nicknamed the “Dirty Dozen”) announced to create their very own elitist football league. Unsurprisingly, this infuriated devoted fans of the beautiful game who dubbed it as the “ultimate betrayal”. Much to the dismay of the billionaire boys (read “owners”) club, the backlash was immediate, relentless and inescapable.

As both a football fan and a student of law, this story holds special significance and is rather intriguing for me. Although the Super League was nothing more than a flash in a pan, the legal issues it has presented will endure. It did not take long for the football ultras to realise that the ambitious Super League was conceived to stage non-competitive games, cashing in on the popularity of Europe’s footballing bigwigs. As staunch supporters of the competitive sport, fans realised that the project was motivated by nothing more than greed.

The legal aspect, however, is an altogether different story. When UEFA, the English FA and other governing bodies announced a ban on the breakaways, it gave rise to questions pertinent to EU competition laws. In Meca-Medina v. Commission of the European Communities (2006), the European Court of Justice (ECJ) held that EU competition laws apply to sporting bodies with regards to economic activities. Prima facie, a ban on the breakaways, constituted a violation of Article 101 of the Treaty on the Functioning of the European Union (TFEU). Many legal experts believe that the ban was motivated to protect economic interests of the governing federations, which was a conflict of interest, and not anticompetitive per se. Legal scholars also pointed out that the sanctions imposed by the regulating bodies were “an abuse of dominance” within the ambit of Article 104 of TFEU. A commercial court in Madrid did consider these issues when it granted interim relief to the Super League founders, preventing FIFA and UEFA from imposing sanctions.

On the flip side, The EU General Court (EGC) decision in International Skating Union (ISU) v European Commission (2020) validates the federations’ decisions in the Super League saga. This ruling prevented athletes from participating in competitions not under the umbrella of the ISU, however, many critics dubbed these as disproportionate and severe sanctions. Another interesting legal dimension of the Super League debacle lies in the principle of ‘unity in regulation’. The regulation structure in football is devised in such a manner that it uses a top-down approach from international (FIFA), through regional (UEFA), to national (FA) level. As easy as it may seem, this structure is complex, and its powers have been a topic of copious debate and multiple arbitral proceedings.

As a fan of football, and even as an aspiring lawyer, one can’t help but notice the emergence of cartelisation in the sport. The founding members of the Super League agreed inter se, to earn hundreds of millions every year without entailing any significant risks. They devised a model to shift the balances of market power and effectively limit any long-term challenges to their dominance. This goes to show the extent to which the billionaire owners are willing to go, in order to increase profitability, seemingly without care for the collective good of the game. In the EU Commission’s MasterCard decision it was held that “unnecessary” measures employed under the “disguise” of effective functioning are a violation of antitrust laws. In similar vein, the Super League had created a mechanism to set up barriers against the lesser privileged teams, which was not only unwarranted, but also anticompetitive.

UEFA more recently has challenged the appointment of the Spanish judge who was adjudicating the dispute and called for his removal, citing irregularities in the court proceedings. In the legal dispute, neither party has a firm hand on the tiller, but commentators agree that this is the beginning of a long and arduous battle. It appears that the Super League may have been delayed rather than being cancelled. This is reflected in the fact that three out of the founding twelve clubs have taken an unyielding stance and are refusing to drop the proposal. It may not be clear what the future holds as to the prospects of a Super League, but what we do know is the popular sentiment surrounding it. One cannot help but remember the words of the great Professor A.V. Dicey, who famously remarked: “Supremacy is limited on every side by the possibility of popular resistance.”

Tanzeel ur Rehman is a second year law student at the University of Sindh, Pakistan.

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Whilst it might be the ‘beautiful game’, an uglier side of football persists in the form of an undeniably persistent undercurrent of corruption. Revenues are expansive — some €22 billion (£19 billion) in Europe alone, incentivising the use of murky funding arrangements and myriad backroom deals in order to ensure regulatory oversight is kept to a minimum. Such corruption strangely remains a matter of public knowledge, demonstrated by a variety of decisions best explained by reference to an ulterior motive, most recently in the awarding of the 2022 World Cup to the State of Qatar, although historical examples are all but too prevalent.

There is little to indicate that corruption is merely a regional, nor state-wide phenomenon. Instead, since late 2015 more than 40 officials from FIFA — the sport’s international governing body — have been charged with corruption. Outcomes of the trials appear to confirm that such allegations are well-founded, with more than half of those arrested having already pleaded guilty, and other trials ongoing. Whilst it might be somewhat of a cliché to announce that a scandal goes all the way to the top of an organisation, FIFA has managed to fulfil the trope in its stride, with former FIFA president Sepp Blatter found to have made illegitimate payments to a rival for the presidency back in 2011. Investigations into Blatter and other FIFA officials regarding the 2018 and 2022 World Cup Finals remain ongoing.

The question which naturally arises as a result of ongoing corruption is how best to combat such practices. Whilst those that have already occurred are evidently matters for the judiciary, FIFA can be seen to have rolled out a variety of anti-corruption practices in response. At the centre of these provisions is the renewed FIFA Code of Ethics 2018, which aims to give teeth to a previously impotent system of regulation. Infringements which previously had an absolutely discretionary sanction attached now tote minimum and maximum sanction guidelines, with certain infringements, such as inappropriate gambling, carrying potentially unlimited sanctions. Further, the framework regarding match manipulation has been fleshed out, and provisions made to deal with infringements by senior officials more harshly.

Nonetheless, it should be noted that FIFA has seen fit to include an anti-defamation clause covering all who are beholden to the Fédération, a perhaps unsubtle alteration, given the role of investigative journalism in uncovering the most infamous examples of corruption within its ranks. An Independent Ethics Committee with a renewed remit also appears to have arisen in response to the events earlier this decade. This is of little surprise — previous efforts of the Committee can be characterised by both in-fighting and a certain level of wilful incompetence, demonstrated by a decision in 2014 to refuse to disclose the results of its own investigation into the 2018/2022 World Cup bidding process, despite protestations from the author himself.

Finally, and perhaps most importantly, FIFA have submitted to the need for external oversight, having commissioned an independent whistle-blowing organisation to established means by which concerned insiders might reach out. Of course, the success of whistleblowing is entirely dependent on the quality of the whistle-blower themselves, and indeed, if the public justice exhibited in recent years is anything to go by, any corrupt officials who remain will be highly motivated to maintain airtight secrecy.

Unfortunately, the UK also appears to be suffering from its own deficit of proper oversight. 2016 saw scandals involving the apparent possibility of third-party player ownership within the UK, and the dismissal of the England team’s shortest-lived manager as a result. More recently, a culture of deregulation can be seen to have taken hold, with a sharp growth in the size of the economy surrounding player transfers. Nevertheless, it can be asserted that the UK continues to exhibit a substantial framework of anti-corruption laws, helping to combat the growth of any malfeasance, although it might equally be asserted that the UK simply excels at hiding the corruption which does occur. Thus whilst organisations like the Transparency International UK might be engaged in aiding the FA in its efforts to maintain an even playing-field, a more robust framework would arguably benefit the process.

There is little doubt that the UK should take the opportunity to present itself as a model citizen whilst it has the chance. If it were to do so, it would distinguish itself against any background of inappropriate conduct. Even in an ostensibly post FIFA scandal world, football appears to still be tarred with the brush of corruption. The Nigerian Football Federation (NFF) can presently be seen to dismiss allegations of corruption levied against it by the state, indicating that power imbalances can deter even attentive governments. At the same time, state-led investigations into the conduct of Switzerland-based FIFA probes indicate that there are few facets of the sporting world which can remain free from the taint of corruption, despite assertions of virtue.

There remains much work to be done before football might be restored to a status befitting the dedication of its global fans, and whether the events of this decade will become a footnote or a precedent remain to be seen. Given the scale of corruption uncovered to date, it would appear that the future fate of the ‘beautiful game’ must be decided by all parties, big and small.

Naz Khan is a final year undergraduate law student at Staffordshire University and an LLM candidate at Durham University. Upon completion of his masters, he aspires to work as a barrister.

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The simple notion of ‘sports law’ masks a deeper, underlying ambiguity in relation to how we analyse and define the disparate fields of legal study. Debate on this topic centres on whether we should view this enigmatic label as the more traditional ‘sport and the law’ (which encompasses the application of existing legal rules and norms to sporting disputes) or in the more maverick light of ‘sports law’ (a separate corpus of law — a lex sportiva — that boasts an underlying theory in order to piece together the various and highly-technical strands of sporting disputes).

I adopt the middle ground: there is not, at present, an identifiable, autonomous branch of law that warrants the prestigious title of ‘sports law’. However, it may only be a matter of time before even the staunchest of traditionalists are forced to admit that the law of sport has indeed arrived to the legal scene.

Criteria for a new field of law?

In sketching out the main elements of the creation of a lex sportiva, American law professor Timothy Davis argues that the strongest indication of an area of law transforming into a distinct legal entity is the “unique application by courts of law from other disciplines to a specific context.”

The sui generis nature of sporting disputes is best highlighted by what many sport lawyers term the ‘specificity of sport’. It is this concept that allows a national governing body to prevent men and women competing against each other, that enables the punishment of sportspersons who have increased their athletic ability through the use of performance-enhancing drugs (despite the fact that the athlete may not have demonstrated significant fault or negligence — Sharapova v International Tennis Federation) and that permits participants to inflict a level of injury upon each other that would normally be punished were it to happen off the field (R v Barnes).

As further evidenced by the reluctance of the UK government to criminalise doping under the Misuse of Drugs Act 1971, it appears that there is a unique sports-sympathetic jurisprudence evolving from the decisions of International Sports Federations’ final appeal tribunals and, more importantly, the Court of Arbitration for Sport (CAS).

This is lent further credence by the fact that, although arbitral awards are usually only binding upon the immediate parties in the present case, the awards and judgments of CAS often provide guidance in future cases. In short, they can often function as precedent.

Consequently, it may simply be the traditional values of an anachronistic profession that is hindering the emergence of ‘sports law’. However, this is unsurprising given that the law of sport is not alone in its quest for recognition. Similar difficulties continue to plague the nascent topics of space law and computer law, whilst the same recognition problems initially befell the now firmly established areas of environmental law, company law and healthcare law.

On the other hand, lecturer Jack Anderson believes that sports law may only offer an ‘occasional snapshot of other more substantial areas of law’ (this echoes the comments of Joseph Sommer in relation to cyberspace law, where the author noted that it is “an excellent lens for seeing other things” but it is not a “particularly useful focal plane of legal analysis”). Furthermore, Professor James Nafziger astutely posts that lex sportive is the product of “only a few hundred arbitral decisions within a limited range of disputes over a historically short period of time.”

Why does it matter?

Clearly, this dispute is likely to rumble on for the foreseeable future. Nevertheless, a more pertinent question to consider at this stage is whether, beyond a mere academic concern, it really matters if we classify ‘sports law’ as a separate field of legal enquiry or not.

At first glance, the answer is no. However, if we scratch beneath this superficial surface, we see that the answer is not so clear-cut. Given the increasing frequency (and complexity!) of sports disputes, many associations, clubs and players are likely to seek tailored legal advice. The ongoing Pechstein litigation, which arose in 2009 and has yet to be fully resolved, is just one example of the juridification of contemporary sporting disputes.

If it is correct that parties are actively seeking high quality legal advice to resolve intricate sporting issue, it would be sensible for practitioners to have specialised knowledge of the elaborate association between law and sport. In order to attain this, one may need to recognise that ‘sports law’ is a discrete field of law that requires a dedicated study of its nuances and peculiarities. As such, the current ‘sports law v sport and the law’ debate may have practical implications that reach far beyond the confines of textbooks and journal articles.

Concluding remarks

For many, sports law may not be seen as intellectually rigorous enough to warrant the classification of its own, independent legal field. Sport is arguably seen by many practitioners and laymen as more about enjoyment and leisure, and it is probably correct that we should focus more on the participation in, rather than the litigation of, sports.

Nevertheless, to ignore the rapid emergence of sport (and the concomitant legal disputes that are intertwined within it) since its commercialisation and commodification in the early 1980s would be to brush aside and over-simplify the issue at hand. The law of sport may contain a wide variety of eclectic contents — some might say that it resembles a dog in a field; you never quite know what it might pick up next — but it still deserves respect.

In this light, the answer to whether a lex sportive exists perhaps lies in whether we believe sports law exists ourselves. In other words, the creation of a distinct field of law may be described as little more than a self-fulfilling prophecy. For example, sports law is now offered as an elective at many universities, written about by numerous academics (see, for example, the dedicated section on ‘Sports Law’ on Hart Publishing) and litigated in various courts across Europe.

If sports law does not exist already, it is most certainly on its way.

James Brown is a Keele University graduate. He is the recipient of the Neuberger Prize 2017, a prize awarded to the top four academically performing law students from non-Russell Group universities in the UK.

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The 2016 Rio Olympics is just weeks away, yet the integrity of the Olympic Games continues to be marred by damning allegations of doping.

Russia has been accused of operating an extensive programme of state sponsored doping, and of the systematic concealment of positive drugs tests.

According to a ground-breaking report by the World Anti-Doping Agency (WADA) — which is partially funded by the United States — there was a “deeply rooted culture of cheating” in Russian athletics that ultimately sabotaged the London 2012 Olympic Games.

Former WADA president Dick Pound alleged that these disconcerting findings, reminiscent of practices during the Cold War, are probably just the “tip of the iceberg”, and likely extended to a multitude of countries of and variety of sports.

The report detailed evidence of continuing corruption, as recent as 2015, when the report was published. The sheer scale of corruption and doping uncovered led the International Association of Athletics Federations to ban the Russian Athletics Federation from international competition, including the 2016 Rio summer Olympic Games.

Though the decision was welcomed throughout the sporting world, many are disappointed with the lack of legal action against individuals, public bodies and possible governments that were implicit in what could be construed as fraudulent, deceptive, wholly immoral and illegal activity.

This begs an important question: is illegality in the confines of the sporting world exempt from the law?

The role of The Court of Arbitration for Sport

The Court of Arbitration for Sport (CAS) is an independent, international court that facilitates the resolution of sports-related disputes between a wide range of individuals or legal entities, athletes, clubs, sports federations, organisers of sports events, sponsors and television companies.

CAS is often understood as the Supreme Court in the world of sport. Its decisions are final and binding, but nevertheless the court’s authority does not allow it to legitimise or regulate independent, international governing bodies.

CAS’s primary failure is that it is a court of dispute: a dispute may only be submitted to the court if both parties mutually agree — in writing or contract — on recourse to CAS. Thus, despite having the jurisdiction to adjudicate doping disputes, allegations of systematic doping are outside CAS’s jurisdiction. This narrow scope of jurisdiction effectively overlooks all undisputed, unconstitutional activity.

What about European law?

Sport is generally regarded as an exceptional jurisdiction where the law and the English legal system largely cannot intervene.

International governing bodies such as the Federation International Football Association (FIFA) independently regulate the legal aspects of their respective disciplines through the use of continental and regional sub associations. International governing bodies are ultimately responsible for the imposition of sanctions upon any bodies or persons who violate — or are implicit in the violation of — its constitution.

Despite the business-like operations of international bodies and the undoubted possibility of corruption, this questionable policy of self-regulation is not challenged. It could be argued that sport must come under the jurisdiction of the law and, by extension, competition laws.

Inter-association agreements between continental governing bodies such as The Union of European Football Associations (UEFA) and similar national bodies may arguably reduce sporting competition in European football. This could be construed as a violation of articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) 2007, which it prohibits as “incompatible with the common market”:

All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.

Furthermore, article 102 prohibits:

Abusive business conduct by an undertaking where that undertaking has a dominant position in a given market within the EU.

So if sport governing bodies were treated as businesses, it would be theoretically possible for football transfers of an anti-competitive nature to violate article 101. In addition, hypothetically, clubs that exploit their dominance by purchasing and subsequently loaning players out of the EU in an attempt to starve competitors of quality players could be in violation of article 102.

Despite how ridiculous it may seem, there is precedent to take action. In the case of Walrave v Union Cycliste Internationale, the Court of Justice held that professional sport is undoubtedly a form of economic activity, thus EU competition laws apply.

Apparently aware of the possibility of EU intervention, in 2015 UEFA introduced Financial Fair Play Regulations, in an attempt to reduce monopolistic like behaviour as a means to control competition in European football. Astonishingly, the very regulations introduced to combat anti-competitive behaviour have been widely criticised as anti-competitive under article 101 and 102 of TFEU — potentially indicating European law is not suited to a regulatory role in European sport.

Can athletic doping be made a criminal offence in the UK?

The use of banned performance enhancing drugs in the UK is not currently under the jurisdiction of criminal legislation that prohibits the use of conventional illegal drugs. Their illegality in the sporting sense does not extend to criminal illegality under the Misuse of Drugs Act 1971.

However, earlier this year it was reported that David Cameron had plans to make doping a criminal offence in the UK. Similar legislation has been adopted by Austria, France, Spain and New Zealand, and could see athletes and those implicitly involved in doping prosecuted and imprisoned.

Taking Austria as an example, since 2010, doping has been categorised as serious fraud. Athletes caught doping are liable to a three year prison sentence. If the cost of the fraud exceeds €50,000, they will be liable for up to ten years imprisonment.

Whether or not this could be integrated into the English legal system is highly contentious.

Doping is a strict liability wrong; if an athlete is found with a banned substance in their system, they are automatically subject to a ban regardless of the intentional or unintentional nature of the positive test. In contrast to strict liability, criminal offences in the English legal system require a degree of intentional or negligent action. Any merger of the differing standards would heavily complicate the system of fault and may erode the independence of international associations, which is required to prevent conflicts of interests on the part of governments who may discourage the prosecution of their athletes.

Ultimately, the lack of an independent specific regulatory authority allows quasi-governmental associations — who have tremendous economic power — to create and perpetuate a culture of subterfuge in international sport, undermining the integrity of the Olympics and arguably professional sport.

Joel Padi is a first year law student at Keele University.

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Let’s be honest — the only reason you’re on Legal Cheek is because you’re trying to improve your “commercial awareness”. You don’t really know what that means but law firms bring it up more often than not, and you’re hoping your reluctant reading helps you get to 250 words on the “what recent article has been of interest to you and how is it relevant to this firm?” question that all training contract applications have in common.

Sorry, but this piece isn’t going to help you understand how the Finance Act 2015 affects the legal market.

With the Euro 2016 in France and the Olympics 2016 in Rio de Janeiro just months away, I thought it might be a good idea to write something on sports, especially since it is an area of law that I am genuinely interested in — and because it’s about time I fill up the “achievements” section on my CV.

The Olympics is the biggest and most special sporting event. It has the unique ability to bring together people of all races and ethnicities, and inspire an entire nation to unite. But what role does the law play in all this?

Quite a bit actually.

The International Olympic Committee (IOC) owns the Olympic Games. The city that wins the bid to host either a summer or a winter Olympic enters with the IOC into what is known as the Host City Contract. This leads to the formation of the Olympic Games Organising Committee (OCOG) and the OCOG is responsible for the development and designing of all logos, mascots and policies of a particular Olympics.

The Paralympics is hosted in the same city a short while after the closing ceremony of the Olympics but the Paralympics has separate commercial rights owned by the International Paralympic Committee.

With many participating nations unable to fund their own training and development programmes, and with the IOC’s broader goal of providing a platform for the next generation, cash flow is vital. In fact, it is estimated that only 10% of Olympic marketing revenue is retained by the IOC for operational and administrative costs, with the remaining 90% being distributed to organisations to promote the development of sport worldwide.

The IOC realised that it had an unprecedented number of viewers worldwide (3.6 billion people from 220 countries watched the London 2012 Games) and used this fact to pull in multinational companies seeking to reach unfamiliar consumer bases and increase brand awareness.

The IOC now generates billions of pounds through broadcasting rights, global sponsorship, licensing programs, ticketing and merchandise.

Sponsorship

The reason brands are willing to pay incredible sums to become official sponsors of the Olympic Games is because associating yourself with the Olympics is one of the most effective modern marketing strategies. Not only is the Olympic logo of interlocking rings the world’s most recognisable symbol, it is also synonymous with humanity, world peace, goodwill and inspiration.

Lawyers have a significant role to play when it comes to sponsorship contracts. These agreements need to be drafted very precisely to ensure there is no room for ambiguity in the future, including benefits to the sponsor, payments due under the agreement, circumstances in which the sponsor may use the event’s intellectual property, and termination rights.

An example of a termination right is “morality clauses” which are vital to a sponsorship agreement as they allow termination of the agreement where a sponsor conducts itself in a way which will damage the image of the event.

Although this example is a reverse situation, the practicality of the morality clause can be seen in Adidas’ decision to end its sponsorship deal with the International Association of Athletics Federations (IAAF) in the wake of the doping allegations against it.

Morality clauses have actually been in the headlines in the last couple of weeks. Former world number one tennis star and highest paid female athlete Maria Sharapova announced in early March that she tested positive for a banned substance. This announcement led to Nike, Porsche and TAG Heuer immediately cutting ties with her.

Nike also had to drop Manny Pacquiao, the Filipino boxer, after his homophobic remarks in February this year.

These endorsements are worth millions and were it not for termination rights, sponsors would struggle to protect themselves from being associated with the negative press that comes with these calamities.

Ambush marketing

It’s not that money is the root of all evil, it’s just that unethical practices are inevitable where money is involved.

Ambush marketing is a major issue in world sport and risks the organiser’s ability to fund the event. It is where a competitor of an official sponsor associates itself with an event without paying the requisite fee to the event owner. Counterfeit jerseys are an example of ambush marketing.

The most significant reason for ambush marketing is that the official sponsor is a competitor of the ambush marketer and has a long-standing relationship with the organisation; a high-profile example being that of Coca-Cola’s partnership with the Olympic Games since 1928 meaning that Pepsi will almost certainly never be a sponsor.

Ambush marketing is prevalent in major sporting events. During a game between the Netherlands and Denmark in the 2010 FIFA World Cup in South Africa, 36 Dutch women were asked to leave the stadium for wearing outfits that effectively advertised for an unofficial beer company. Vacating the women did not make a difference as the damage had already been done — the beer company was in the spotlight.

Tackling it is not as straightforward as it may seem. In the UK, the only way ambush marketing can be dealt with is by bringing an action for trademark infringement, but the claimant would need to show that consumers get confused and that the claimant suffered damage because of the ambush marketers.

The Rugby World Cup 2015 in England tried a new approach to counteract this issue. Heineken, the official alcohol sponsor, secured a marketing exclusion zone within a 500 metre radius around venues that meant its lager was the only brand sold in the stadium and within 500 metres of it.

With that said, the Olympics has special legislation which protects its intellectual property and also requires host cities to introduce special legislation to ensure Olympic properties and its official partners are protected. The London Olympic Games and Paralympic Games Act 2006 was introduced in preparing for the London 2012 Olympics.

Licensing

Licensing is where an event owner grants a manufacturer a licence to use the trademarks on its products and sell them as merchandise in return for royalty. It is another method of raising commercial revenue, not least because shirts, hats, key rings, mugs and even towels can be sold as merchandise.

The Organising Committee for London’s 2012 Olympics reportedly raised around £100m from merchandise sales but this figure only represents the Organising Committee’s share — not the total value of merchandise sales.

Adidas, kit sponsor of Team GB, invested £100m to sponsor the 2012 Games and reached its target for sales of merchandise by the end of the event’s first week.

Ticketing

Ticketing also makes a significant contribution to the overall revenue generated by the Olympics, but a significant issue in most jurisdictions is that re-selling tickets for higher than purchase price is not unlawful.

Contract law is very relevant here as all ticket agreements must contain clauses detailing the cancellation policy due to adverse weather conditions, as well as a disclaimer in relation to safety at the venue. However, unusually wide disclaimers are invalid in the UK as the Unfair Contract Terms Act 1977 holds void and unenforceable a provision excluding liability for death or personal injury resulting from negligence.

Intellectual property rights

The commercial success of the Olympics due to merchandise, ticketing and sponsorship would be near impossible were it not for intellectual property (IP) rights. IP laws enacted by the IOC and the World Intellectual Property Organisation protect the Olympic symbols and logos. The Olympic five-ring symbol, the Paralympic Symbol and the motto “Citius, Altius, Fortius” (Faster, Higher, Stronger) are all also protected by special domestic legislation.

Sporting bodies here in the UK rely on the Trade Marks Act 1994 to register a trademark but if a mark is not registered (i.e. it is a common law mark), the bodies can rely on the tort of “passing off”. Team names and logos can be registered as long as it satisfies the requirement of distinctiveness. “Tottenham” FC was able to be registered successfully as the word was proved to be associated with the club and not that geographical area of London.

Additionally, the Copyright Designs and Patents Act 1988 (as amended) can protect musical works, literary works and broadcasts. In the context of the Olympic Games, the theme song and music of the opening and closing ceremony of all Olympics are copyrighted. Even the Olympic anthem is copyrighted.

Protectionary measures

To ensure that official sponsors are protected, the Games are not overly-commercialised. To encourage “Olympic spirit”, the IOC has developed a clean venue policy. The clean venue policy makes use of numbered zones to allow proper application of this policy.

An interesting incident involved Michael Jordan and his USA Dream Team in Barcelona 1992. Zone 1 — the competition and spectator area — prohibits advertising other than logos and symbols that identify manufacturers of sporting equipment and uniforms. Michael Jordan was sponsored by Nike in his personal capacity and so wore his Nike clothing to the medal ceremony. The only problem was that as official sponsor, Reebok was to be given exclusive rights of the event. Had the officials not convinced Jordan to wrap himself in a USA flag so as to cover the Nike logo, the IOC would have suffered from considerable embarrassment for allowing its official sponsor’s rival to share the spotlight.

Sports law: the future

Sports law is a relatively new concept, and compared to traditional areas of law like criminal and tort, it is still finding its feet. The law has had to develop itself to meet the demands of modern society, and one such demand was to use the law to protect any product worth commercialising.

Sport is now a billion dollar industry in its own right which makes it easy to understand why event owners have gone to such great lengths to protect themselves and their commercial partners.

No doubt the marketing industry is responsible for the commercialisation of and unprecedented investment in the Olympic movement but had it not been for the law, governing bodies would struggle to sustain this progression.

What is certain, for now, is that the law can and will only grow to become more relevant in the Olympic movement and in sports more widely.

Ali Farooq is a law student at Leeds Beckett University.

Sources

Gardiner S, O’Leary J, Welch R, Boyes S and Naidoo U, Sports Law (4th edn, Routledge, 2012)

International Olympic Committee, Marketing Report (London, 2012)

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