Sports Law Issues for 2010:SPORT AND LAW Jack Anderson outlines how players, clubs, TV companies and governing bodies are increasingly turning to the law to protect their interests
THERE HAS been a deepening of the law's influence on sport, and particularly on professional sport in 2009.
TV companies, who pay millions in securing the exclusive broadcasting rights to sports events and clubs, who pay dearly for the exclusive services of players, have both resorted to the law in efforts to protect their investments.
BSkyB, for example, has taken aggressive legal action against publicans who broadcast live Saturday Premiership matches from unofficial sources. Arsenal are considering suing the Dutch FA for the loss of Robert van Persie as a result of injuries sustained by the striker while on international duty with Holland.
This year has also shown however that, although the legal concerns of those at the elite professional level may appear distant for those who play recreationally, on occasion there can be a "trickle-down" effect for sport as a whole.
The elite business end of sport is best illustrated by the fact wage levels in the English Premier League continue to rise despite the general economic downturn. It is unsurprising therefore when a Premiership player suffers what they believe to be a reckless tackle and one that brings their career to a premature end, they consider a claim for compensation for future loss of earnings.
Former West Ham United striker Dean Ashton last month announced his retirement from football at the age of 26, following his failure to recover from an injury sustained in 2006 during a training session with England. Ashton is considering taking an action against the tackler, Shaun Wright-Phillips, and the player's then employer, Chelsea FC. At one point, West Ham were said to be also contemplating a claim against the FA for the loss of a player who they bought for over €10 million.
The Ashton claim must be seen in the context of a decision by the English Court of Appeal in June which confirmed that a former Manchester United trainee, Ben Collett, was entitled to €5 million in damages, arising from a career-ending tackle sustained during a reserve match against Middlesbrough.
Another recent English Court of Appeal decision, this time involving ill-discipline on the rugby pitch, is also of note. The case involved an off-the-ball punch-up between opposing players, which led to the claimant suffering extensive injuries.
The players were semi-professional and the court held that the culprit's club should also be held liable in damages to the victim. The court said that holding clubs "vicariously" liable for the misconduct of players would serve as a deterrent.
Maybe this idea of holding clubs and coaches partly responsible for the ill-discipline of individual players should be considered by the rugby authorities as a means of dealing with incidences of eye gouging.
Eye-gouging incidents, and the infamous "bloodgate" scandal involving Harlequins and Leinster in this year's Heineken Cup quarter-final, put the focus on rugby's various disciplinary mechanisms and the need for the speedy, impartial resolution of disputes and appeals.
One of the more extraordinary disciplinary systems in rugby is that which surrounds the Magners League, which holds that where a player is cited for misconduct, the subsequent hearing is in front of a panel drawn from the player's home union. Although there is no doubt the overwhelming majority of these panels are scrupulously fair, the system as a whole is well out of line with good practice in other sports.
In terms of the resolution of sports disputes more generally, the agenda for all sports is now being set by the Court of Arbitration for Sport based in Lausanne. Cases at CAS remain dominated by doping-related disputes or, more specifically, by athletes seeking to evade or reduce doping-related suspensions.
For instance, at a CAS hearing in November, the French tennis player, Richard Gasquet, offered one of the more creative excuses for testing positive for a prohibited substance when he explained he had ingested cocaine only as a result of kissing a young woman who had consumed the drug at a Miami night club. On Thursday last, CAS announced it had accepted the Frenchman's explanation.
An imminent CAS case is one involving Chelsea and their signing of Gael Kakuta. In September, Fifa announced they had banned the London club from signing players for the next two transfer windows due to their alleged involvement in inducing the then 16-year-old Kakuta into breaching his then contract with French club Lens in 2007.
The case will focus on what the football industry calls the "tapping up" of a player. More broadly, it might shed light on the murky world of the international transfers of minors.
Uefa president, Michel Platini, has used the provocative phrase "child trafficking" to describe some of the practices used by certain agents in attempting to sign very young players, especially those of African background, to oppressive long-term contracts.
In sum, 2009 has demonstrated that the law's influence on sport is now coming from many sources: litigation, arbitration, and even child protection. In 2010, one further source will again come to the fore, and that is the influence of EU law. Under the terms of the recently-enacted Lisbon Treaty, the EU has, for the first time, been given legal powers in matters of sports policy.
This provision has huge potential for all levels of sport and particularly in light of the fact over the past number of years the European Commission has begun to view sport as one of the most effective means of implementing key social, educational and public health objectives such as combating childhood obesity, promoting greater social integration and facilitating volunteerism at a local level.
Not only does the Commission appreciate sport's virtues, it also has, thanks to the Lisbon Treaty, been given greater powers to direct funding towards realising its sports-related objectives. The Lisbon Treaty may not have been the most inspiring of reads but if it helps in encouraging more people to get involved in community-based sport, then it will have done us all some service. Jack Anderson lectures in sports law at Queen's University, Belfast.
CAS Doping Cases
The World Anti-Doping Agency faces difficult challenges in the years ahead in the shape of gene manipulation technology, micro-boosting techniques and designer or third generation versions of existing performance-enhancing drugs.
Already this has seen a swift response from Wada in the form of the so-called "whereabouts" rule for athletes; the introduction of "biological" passports and the retrospective testing of blood and urine samples. All of these schemes are likely to encounter legal challenges in 2010.International Transfers of Minors
International transfers involving young footballers are now discussed largely with regard to African players heading towards European countries.
In Ireland the FAI, mainly thanks to its players' support service manager, Eoin Hand, has been to the forefront in ensuring the interests of young talented Irish players are protected.
The FAI's worthy new set of regulations relating to the role of scouts and players leaving Ireland for trials with professional clubs came into force on on January 1st.The Lisbon Treaty
The Treaty text empowers the EU to promote European sporting issues, notably by taking account of sport's unique popularity, its health benefits and deep community-based roots.
The European Commission will present its ideas and make calls for funding proposals on the optimal use of the new powers in the course of 2010.
These proposals are set to highlight sport's capacity in the areas of social inclusion, as an educational tool, and in combating racism and sectarianism in wider society.
Financial Crimes in Sport
In November, German prosecutors announced that about 200 European football games were under investigation in a match-fixing inquiry.
The biggest match-fixing scandal in European football thus far apparently involved a large criminal gang bribing players, referees and officials to fix games. The gang then made money by betting online on the predetermined outcome.
Uefa has since introduced an early-warning system, which is sensitive to unusual betting patterns.
