Sports Law Notes PDF

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Professor Sehrat Yilmaz...

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Sports Law Week 1 ! "

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Traditional Characteristics of the Framework! - Self-regulatory framework (Top-Down)! - Jurisdiction: Relationships based upon private contractual agreements! - Autonomous structure! - Dispute Resolution Mechanics! - Court of Arbitration for Sport (CAS)! - International/National Disciplinary/Appeal Panels! FIFA STATUES ! Article 13: Member’s Obligation:! …to comply fully with the Statutes, regulations, directives and decisions of FIFA bodies at any time as well as the decisions of the Court of Arbitration for Sport (CAS) passed on appeal on the basis of art. 66 par. 1 of the FIFA Statutes;! …to ensure that their own members comply with the Statutes, regulations, directives and decisions of FIFA bodies;! …to ratify statutes that are in accordance with the requirements of the FIFA Standard Statutes;! Article 61: Judicial Bodies:! The judicial bodies of FIFA are: ! a) the Disciplinary Committee; ! b) the Ethics Committee;! c) the Appeal Committee.! Article 66: Court of Arbitration for Sport (CAS)! …FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, Members, Confederations, Leagues, Clubs, Players, Officials and licensed match agents and players’ agents.!

Article 13: … you need to follow their rules … Confederation and NGB need to make sure players and clubs follow the rules set by FIFA ENGLISH FA: THE RULES OF THE ASSOCIATION! Rule A.1: Association! …All Clubs and Affiliated Associations shall play and/or administer football in conformity with these Rules and also:! (a) $The Laws of the Game (as defined in the Articles); and ! (b) $the statutes and regulations of FIFA and UEFA which are in force from time to time. ! Rule K.1: Arbitration! …any dispute or difference between any two or more Participants….! shall be referred to and finally resolved by arbitration under these Rules.!

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Rule K.3: Tribunal! …In these Rules, “Tribunal” means the arbitrator or arbitrators appointed pursuant to these Rules to determine the dispute. Subject to the appointment of a single arbitrator under Rule K (3)(d) below, the Tribunal shall consist of three arbitrators.! FIBA GENERAL STATUTES! Article 9: Obligations of Members:! 9.2. National member federations must observe all regulations and decisions of FIBA and ensure their members and their various bodies (including leagues and clubs) also comply with them.! 9.3. The statutes and regulations of national member federations must comply fully with the General Statutes and Internal regulations of FIBA.! Chapter 7 - Judicial Bodies and Other Bodies! Article 36 – The Ethics Panel! Article 37 – The Nominations Panel! Article 38 – The Disciplinary Panel! Article 39 – The FIBA Appeals’ Panel! Article 40: Court of Arbitration for Sport (CAS)! Any disputes arising from these General Statutes, the Internal Regulations and other rules and regulation….shall be definitively settled by a tribunal constituted in accordance with the Statutes and Procedural Rules of the Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland). The parties concerned shall undertake to comply with the Statutes and Procedural Rules of this Court of Arbitration for Sport and accept and enforce its decisions in good faith.!

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Law’s Intervention with Sport! • Commercialisation - Set rules in order to commercialise sport! • Commodification - eg. SKY, first you needed to go to the stadium! • Lack of Stakeholder Representation - Court!

National Sports Laws! • In the UK the laws are imposed by acts of parliament! LOOK AT THE SLIDE! Week 2 Sports and EU Law! • EU law is the same for everyone! EU & Sport: A Paradox! - Article 5 of TEU:! - THE LIMITS OF union competences are governed by the principle of conferral! - Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein! Competences not conferred upon the Union in the Treaties remain with the Member States.! - Under the principle of proportionally, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties!

- This represents a paradox because the country needs to give the approval to EU! - Why does the EU intervene in sports? Because it represents a paradox because -

according to the treaties EU can act only on things that are given authority by the member states! Member states have authority on several things such as sport, legislation and they need to confirm to the EU their intervention if not EU can’t intervene! EU is a collective unity of member states! Storically EU didn’t have authority on sports until 2009!

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Single Market Regulation of Sport

Socio-Cultural Regulation of Sport

Based upon the negative integration of economic unity

Based upon the positive integration od social unity

Sport is subject to EU law as long as it is an economic activity (Walrave, 1974)

Sport has got socio-cultural values that need to be protected and promoted by the EU

The juridification of sport: EU’s free movement and competition rules under its Treaties apply to sport

The EU law must be sensitive to these characteristics in its application to sport

The Bosman ruling in 1995 is most significant

A consolidated approach to sport developed based upon separate territories: Sport autonomy - Legal intervention

The CJEU’s jurisprudence: develop a distinctive legal approach recognising specific nature of sport

EU currently support projects that enhances the socio-cultural values of sport

Meca-Medina judgment in 2006: case by cas approach needed

Lisbon Treaty: Article 165: The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function!

- When EU was established the key objectives was to have an economic unity so that economies can function well and hopefully we don’t fight!

- Therefore they created the internal market! - So if you want to establish a business in Italy there is no one stopping you but you need to follow the rules EU created!

- Since 2000 EU start to intervene in sport in socio-cultural prospectives - this means -

that it is a business sport but it brings positive values such as cultural differences, health in people! These are 2 different approaches of EU towards the relationship with sport: Single Market Regulation and Socio-Cultural Regulation!

The European Sports Law! Sources Free Movement Rules! Article 45 (ex Art. 39) of TFEU! - freedom of movement of workers to work in another member state! Article 49 (ex Art. 43) of TFEU! - freedom to establish in another member state! Article 56 (ex Art. 49) of TFEU:! - freedom to provide services in another member state!

Competition Law! Articles 101 (ex Art. 81) of TFEU:! - Use of restrictive practices in a specific market! Article 102 (ex Art. 82) of TFEU:! - abuse of a dominant position in a specific market!

Forums European Court of Justice! Article 267 (ex Art. 234) TFEU:! - usual procedure to invoke jurisdiction of the CJEU ! - Preliminary ruling application by National Courts

European Commission! Article 7 of Regulation (EC) 1/2003! - only available for competition law provisions ! - Appeals to the CJEU

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Sport is an economic activity! If we want economic unity then we need people to move ! Article 101: any restrictive rule that restricts or distorts competition is prohibited! Article 267: if you think that you need to go by court with something you go first to your national court of justice!

Application of Free Movement Rules! Article 45: Freedom Movement for workers! - the provisions starts with your right: therefore you have the free right to move ! - What cannot be done against your right? Your freedom of movement cannot be restricted based on any discrimination or nationality! Walrave Case (1974)! - 2 dutch pacemaker! - Historically pacemakers and cyclists could have been from different nations (dutch pacemakers and Italian cyclists)! - UCI changed the rules: from now on the pacemaker and the cyclists need to be of the same nation for national and international competitions! - What is the issue here? People are restricted to work with people of the same nationality - restricted employment from article 45 ! - From UCI perspective, though, is right because of the creation of national teams ! - There are objectives we are trying to achieve for this international and national competition ! - The court said although this is a economic activity there is a sporting objective! - Outcome of the case: composition of national teams is actually compatible with EU law! Bosman Case (1995)! - Bosman is a football player from Belgium ! - Club can ask money for you to go in another club despite your contract has finished! - Bosman decided to challenge the system because they are restricting his free movement ! - Belgium court referred to the European court of justice ! - There is economic activity therefore EU law applies ! - There is a direct discrimination based on nationality ! - All football stakeholders came together and they implemented certain changes to the system - approved by the European Commission in 2001! The impact of Bosman Case! - Birth of free-agent concept: No transfer fees for out of contract players! - Training compensation: payable for players under 23! - Abolition of discriminatory nationality quotas for EU players! - Led to social dialogue between stakeholder and EU! - Compensation for breach of contract rather than a transfer fee! - Buyout clauses instead of transfer fees! - Decision extended to players of countries signed Association Agreement with the EU Kolpak Case (2003) and Simutenkov case (2005)! Article 56: Freedom to Provide Services! Deliege Case (2000)! - she’s a judoka but she want to compete in olympic games! - Her national federation operated this selection system where in each 8 segments they restricted the number of athletes they’re gonna look at in order to select for the national team! - Deliege never made in the national team! - This selection rule is somehow a way of restriction for her ! 6

- She decided to challenge them ! The Four Stage Test! - Is the rule a restriction under art. 45, 49 or 56? If rule inherent or a purely sporting rule it will fall outside the Treaty! - If the tule is a restriction, can it be justified objectively? The justification is based on a legitimate objective sought by the rule or practice adopted! - The tule must be necessary in promoting the legitimate objectives pursued! - The rule must be a proportionate means of achieving the legitimate objectives! Application of Competition Law! - Art. 101: prohibits agreements between undertakings and decisions made by associations of undertaking (or businesses) which have as their object or effect the prevention, restriction or distortion of competition within the EU! - eg. Contract sponsorship with another sport organisation (arsenal with adidas)! - Adidas can only sell their shirts ! - Art. 102: prohibits a monopoly or market-dominating undertaking from taking an unfair advantage by abusing its dominant position! - In sport NGBs and ISFs are undertaking at least part of the time and tend to be monopolistic within their sport ! Article 101 & 102! Plau Case (2005)! - historically Fifa had a regulations where if you wanted to do the agent you needed to have a licence! - People were subject to restriction and plau felt that it have anti-competitive ! - He argued that this goes against art. 101 and art. 102! - Court said “yes but this regulation comes from Fifa that has a monopolistic power”! - Fifa said that is a qualitative restriction not a quantitative because they wanted to make sure the right people become agents! Meca-Medina Case (2006)! - 2 swimmers after competition were positive anti-doping! - They were banned for 2 years! - They didn’t know they were banning ! !

Week 4 ! 7

Commercial Issues in Sport!

- Commercialisation in sport: ! - Broadcasting of sport —> you can watch everything you want on tv, phones, laptops (broadcasting rights)!

- Sponsorship —> companies start to show interest in sport due to broadcasting (sponsor teams)! !

- Broadcasting is the largest revenue of all! 8

- Followed by the commercial (eg. Selling t-shirts)!

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Contracts: Important Principles! - Importance of the notion of a contract. Not every business arrangement will be enforceable as a contract, e.g:! - Difficult to establish binging agreement without the contract; Sports Network Ltd v Calzaghe (2009) - The court had difficulties in establishing legal contracts for insufficient funding! - In boxing your agent promotes your game! - Agent plays an important role! - They meet up in his office, they decide on the game, both Calzaghe and the agent will be involved in promotional activities, they shake hands! - The game took place, significant revenue! - When it comes to the splitting of the revenue Calzaghe says that he has done more promotional stuff so he gets more money than his agent! - They couldn’t agree so it went to court! - For court it is a difficult perspective because who is telling the truth?! - Calzaghe won the game because the court said that it was a work of his agent to create a written contract! - Its difficult to establish a binding agreement with no written contract - On oral agreements, see White v Bristol Rugby (2002) - White decided to sign for Bristol Rugby! - Here we go 20,000£ before you sign the contract! - He takes the money but then in the process he changes mind and goes in another club! - The court said by taking that money it is defined by agreement by conduct because by taking the money you committed to the contract! - Your actions can turn into a piece of agreement! - Will all terms of a signed contract be enforced? See Proactive v Rooney (2011) - His manager brought him to Manchester United! - He used to be part of the company ProActive! - Left the company and brought with himself Rooney! - Had a contract of sponsorship valid for 10 years! - The problem of a contract of 10 years to Rooney —> the court said that this is illegal because Rooney can’t move - Written, signed, contract, clearly formed with the intent to create a legally binding relationship - e.g. s.P(7) EPL Handbook Sponsorship! - The term sponsorship describes an investment in cash or kind in an activity in return for access to the exploitable commercial and marketing potential associated with the activity! - Sponsorship has historically enabled more accurate targeting of the public than television and radio advertising! - Well established brands have long used sports sponsorship to maintain public awareness, e.g. Coca-Cola with the Olympics and FIFA! - In the UK sponsorship rights are ‘controlled’ through a series of contracts involving the event owners! Sponsorship Contract! The Parties! - The sponsor should ensure it is contracting with the right party, i.e. the owner of the rights! 10

- Both parties must have capacity and authority to enter in to the contract! - For unincorporated associations, people must by verified by checking the rules to confirm their power to contract and bind the association! -Where a sponsorship packages being bought from an agent, it must be absolutely clear that s/ he has all rights purporting to sell! The Term! - The duration of grant of right can be agreed in a number of ways! - Sponsorship should provide for number of events and specified term! - Any renewal option should be specified as absolute or conditional! The Territory! - Generally a sponsor will require world-wide rights! - Ideally the sponsor will not want the event owner to split the sponsorship rights territorially! The Sponsor’s Rights! - Most event sponsorship arrangements include the following rights:! - Naming: to incorporate the sponsor’s name in the event title! - Official supplier! - Advertising and branding rights! - Hospitality, merchandising, presentation, association marketing, filming, approval! Merchandising and Licensing! - Generic names given to agreements which provide for the use of the name, logo, trade marks, livery colours and other properties of and relating to a sports person, club or organisation! - The potential licensors of rights in this context include governing bodies, tournaments, clubs and sports organisations, individual players, teams and others. One of the growth areas of debate is whose rights are involved in any merchandising activity and who does the deal! - As a simple example replica football kits would be included, but the types of licensed merchandise is bounded only by the imagination! - Licensor receives a royalty on products sold! Intellectual Property (IP)! - IP provides rights of protection for: innovators, inventors, authors and holders of goodwill and reputation! - IP in sports is relevant in, for example: event organising, merchandising and broadcasting —> whole merchandising concept based on this! 11

- The sale of increasing amounts of merchandise offers potential for sport clubs to increase their income!

- Secondary markets have sprung up as alternatives for consumers of these products and in many instances in opposition to primary rights holders!

- A number of potential routes exist to protect the rights!

Copyright! - Regulated by the Copyright, Design and patents Act 1998! - https://legislation.gov.uk/ukpga/1988/48/contents! - Definition of Copyright: The copyright exists in (s.1(1) of the CDPA 1988): Orginial literary, dramatic, musical and artistic works; Sound recordings, films, broadcasts and cable programmes; Typographical arrangements of published editions! - Definition continues: ! - Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded in writing or otherwise! - Owner has exclusive rights to copy, issue copies, rent or lend it, broadcast it and others! - Automatic protection, no registration required! - Protection for 70 years after the author’s death (or 50 years from creation of a computer program, broadcast and musical work)! In context of sport these are the things that are copyrighted:! - Musical works: The music itself and sound recording. (e.g. official theme tunes and anthems)! - Premier League anthem in authorised broadcasting: FAPL Ltd & Others v QC Leisure & Others (2008)! - Photographs and graphic works: e.g. photographs of venues, teams logos, mascots, etc! - FA’s copyright of 1966 World Cup mascot ‘World Cup Willie’! - Sound recordings: e.g. interviews, digital files of broadcasts, audio files! - Films: Recordings of a match or nay part of it. Importance of licence of the events organiser! What happens if you infringe the copyright of someone?! - Many commercial deals are based on copyright by licence for royalty or by authorising by assignment. Can be limited by time, activity or geography! - Infringement of copyright if (wholly or partly):! - Copying the work! - Issuing copies to the public! - Adapting the work! - No infringement if:! - Fair dealing (news reporting, incidental, private or educational use)! - (Chapter 3 of CPDA1998)! - Remedies for infringement:! - Damages! - Injunction to prevent further infringement! - Seizure and detention of infringing copies! - Can be a criminal offence! Trademarks! - The Trade Mark Act 1994 created a new framework of protection for signs designating the trade origin of a product! 12

- Definition of trademark: S.1(1) … any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings! - A trade mark may, in particular, consist of words (including personal names), designs, letters, num...