The complex web of commercial and regulatory issues that surrounds sport is occupying an ever-increasing amount of lawyers’ time. That was evident at the Law Society’s Sports Law Conference, held at Chancery Lane last week. It may be true that, as Charles Russell partner Simon Johnson told the conference, ‘a sports right as such does not exist’. But that has not stopped the rights and laws that affect sport from developing into a unique combination of problems whose resolution requires a growing cast of legal minds.

Ambush marketing, jurisdiction-specific broadcast rights, sponsorship deals, employment law, disciplinary proceedings, selection panels - all these involve arrangements that may or may not sit neatly and compliantly with the existing law. The 2012 Olympics will acquire its own piece of UK legislation to sort out some of the organisers’ key legal headaches. Most advisers cannot hope for such a dramatic solution to their clients’ woes.

New territory

The civil test case FAPL v Karen Murphy, where broadcast rights clashed dramatically with competition law, makes the point well. Murphy, a pub landlord, can have had little idea what she was unleashing when she bought a satellite decoding card from Greece, intended for residential use in Greece, to circumvent the need to pay Sky Sports for permission to show Premier League football matches in her pub.

There was a lot riding on Murphy’s attempt to save a few pounds. Her case was the result of a campaign by the Premier League to crack down on such apparent abuses. Put simply, if there were alternative ways to view the games then the Premier League would be unable to license the right to broadcast its games at the high premium it sought - and large amounts of cash would be lost to the league, affecting its members’ ability to invest in the beautiful game. In a sign of the case’s significance, UEFA and the Motion Picture Association of America were among the parties which unsuccessfully sought to intervene in the case.

Brick Court Chambers barrister Marie Demetriou represented Murphy. The defence, she recalls, rested on EU competition law. An attempt to use the conditional access directive as a defence failed, but the defence had better results relying on EU legislation on free movement. It was argued that Murphy should not be prevented from obtaining services from other member states.

The court concluded, Demetriou relates, that protection of the league’s copyright ‘should not be disproportionate’. Sky had paid to have the internal market divided - ‘a definite no-no’ - and that there could be ‘no guarantee of territorial exclusivity’. That was good news for Murphy, but created an international problem for the Premier League. As Johnson explains: ‘This case was important because it was all about value. Rights go to value, which goes to exclusivity.’ And, Johnson notes, its significance goes wider than sport: ‘This is part of a pattern - an attempt by the European court on copyright as we know it.’

The likely solution, Johnson says, is that rights can be language-based, but greater ‘overspill’ between jurisdictions will be inevitable. Johnson, who previously worked at ITV and the Premier League, predicts that the league will find a way to make its licences work post-Murphy, but argues that less well-funded rights owners will encounter problems.

Drug offences

Broadcasting is not the only area where sport’s own structures and needs sit uneasily on the existing legal landscape. The ability to select and discipline sports people is of central importance to any sport’s institutional stakeholders. The key flashpoint for this issue is doping. The World Anti-Doping Code has 600-plus signatories, including 164 governments, all of which are committed to putting in place domestic structures to support compliance with the code.

So far, so good. But as Andy Parkinson, chief executive of UK Anti-Doping, notes, ‘there are compromises’ in what has been a ‘harmonisation’ process. To achieve agreement, ‘the WADA [World Anti-Doping Agency] code gets watered down,’ he explains, ‘especially on compliance reporting’.

That may be a problem for jurisdictions whose sports governing bodies or governments want to go further than the code. The UK now imposes a lifetime, or ‘indefinite’, ban for a doping offence, which WADA claimed ‘violates’ its code. Within the last month the British Olympic Association (BOA) went to the Court of Arbitration for Sport (CAS) to challenge this. If CAS rules in favour of WADA, sprinter Dwain Chambers and cyclist David Millar will be eligible to compete at the 2012 Olympics.

BOA chair Lord Moynihan wants Chambers and Miller kept out of the team, preserving, as he puts it, the Olympics as ‘a big celebration of sport and not a competition between chemists’ laboratories’.

The CAS case, Moynihan insists, is about us having the right to select ‘clean athletes for a clean games’, and the autonomy of the national Olympic committees ‘to select who they think are right to represent their countries’. Set against that is WADA’s argument that the BOA has imposed a ‘separate sanction’.

It is a topic on which much hinges - not only in respect of the athletes affected, but also the country’s medal count. The BOA’s critics point out that Christine Ohuruogu who won the 400m gold for the UK at the Beijing Olympics, would have faced an indefinite ban under current BOA rules, even though she won her appeal against a ban based on three missed drugs tests.

The CAS case is not the only one where the crucial ability to select at will has been challenged so close to the 2012 games. In Rhythmic Gymnastics Group v British Gymnastics, poor wording saw an arbitrator decide that British Gymnastics had not adhered to its own criteria in its nomination process. To prevent such challenges succeeding, Ed Proctor, executive chair of Sport Resolutions, says: ‘You need clear and unambiguous language in selection policies. And bear in mind that the athletes won’t always read the small print.’

The only fruit? An orange ambush

For sponsors and event owners, ambush marketing has proved to be one of sport’s biggest legal headaches. The ambush itself often provides media-friendly pictures, and stories based on an ambush represent good, cheap copy that generates debate. Well-covered ambushes underline the need for an ambush gameplan, underpinned by pre-event dialogue with broadcasters to minimise exposure.

Famously in the FIFA World Cup in South Africa, Holland fans participated in a widely covered ambush stunt to promote Dutch beer Bavaria (the official beer sponsor was Anheuser Busch's Budweiser). Two Dutch women were arrested after being questioned about the event, though they were later released on bail.

The occasion underlined the challenges of policing events against an ambush. The ambush picture was widely used and the arrest of some participants fuelled a public debate around the suitability of legislation - the Contravention of Merchandise Marks Act - that could be portrayed as draconian. One commentator described FIFA’s rights-enforcement regime as ‘chillingly efficient’.

Bavaria previously clashed with FIFA over supporters wearing its orange clothes to stadiums. Six years ago at the Germany World Cup, FIFA ordered scores of Dutch fans to remove orange lederhosen bearing the Bavaria brand.

Ambush marketing

Around any major sporting event, advertisers and sponsors are alive to the possibility that their ‘exclusivity’ will be ruined by ambush marketing. Owners and organisers are under enormous pressure to pre-empt and prevent such incidences. For the 2012 Olympics, as happened during the FIFA World Cup in South Africa in 2010, there will be extra protective legislation in place this year to assist with the protection of sponsors’ rights. The legislation protects against ‘unauthorised association’ with the Olympics.

According to Andy Korman, partner at Couchmans, the legislation is necessary to preserve the ‘value’ of the games on two counts. First, and most obviously, there is the need to exclude the sponsor’s closest competitors from using the games as a platform to market themselves.

But concerns around ‘quality control’ are just as important. ‘The kudos of rubbing shoulders with other good sponsors is an important part of this,’ says Korman. ‘Increasingly, I try to find a way to get that into contracts.’ He points to the example of the Football Association’s official gingerbread man - a product that was imitated, but not to the quality the FA would demand. ‘Quality control is an important aspect of protecting the brand,’ he concludes.

But Korman notes that the ‘sophisticated ambush’ is ‘creeping up’. In these instances, symbols that are not protected, such as the union flag, are used. Major sponsors of national associations were also becoming more adept at referencing the length of their commitment to various sports - ‘in a way turning a disadvantage into an advantage’ - by underlining the ways in which they had supported the athletes now competing in the protected, sponsored event.

The fact that CAS has some 120 arbitrators on call, including lawyers, other professionals and expert witnesses, is proof of the legal complexity that has grown up around sport

However, even heavy protection does not obviate the need for legal advisers to take a proactive project management role. That is not least because heavy-handed enforcement of a sponsor’s rights against an infringement can also damage their brand.

Euan Faulds, acting legal manager at Glasgow 2014, the 20th Commonwealth Games, suggests a ‘brand reputation programme’. That entails a ‘clean sweep’ before and during the event, and establishing ways to work with event security. Event owners should also look at purchasing media and advertising sites, or at least obtaining an agreement that they have first refusal on advert sites.

Local authorities in the area affected should also be involved in discussions as they commonly organise cultural events to coincide with major sporting events. And a good relationship with broadcasters is crucial. When it is done well, Faulds notes, ambush advertising is eye-catching and newsworthy.

Reigning Supreme: Court of Arbitration for Sport

Often referred to as ‘sport’s supreme court’, CAS’s origins go back to the beginning of the 1980s. The increase in the number of international sports-related disputes and the absence of any independent authority specialising in sports-related problems that was authorised to pronounce binding decisions led top sports organisations to reflect on the question of sports dispute resolution.

Soon after his election as International Olympic Committee president in 1981, Juan Antonio Samaranch (pictured) started work on the creation of a sports-specific jurisdiction. The following year, at the IOC session held in Rome, IOC member Kéba Mbaye, who was then a judge at the International Court of Justice in The Hague, chaired a working group tasked with preparing the statutes of what would quickly become the Court of Arbitration for Sport.

In 1983, the IOC officially ratified the statutes of CAS, which came into force on 30 June 1984. CAS became operational under the leadership of president Mbaye and the secretary general Gilbert Schwaar.

A dispute may be submitted to CAS only if there is an arbitration agreement between the parties which specifies recourse to CAS. In principle, two types of dispute may be submitted to CAS: those of a commercial nature and those of a disciplinary nature.

Finishing line

‘Sports law’ in the past could be simply characterised as the combination of legal challenges that sport’s unique needs required to preserve value for owners, and to ensure fairness for competitors.

But by the time the world descends on London for the Olympics later this year, that picture will have altered somewhat. Not only will the event have its own legislation, but the fact that CAS has some 120 arbitrators on call, including lawyers, other professionals and expert witnesses, is proof of the legal complexity that has grown up around sport. The deliberations of these arbitrators and of the courts, and the centrality of lawyers as project managers, underline the importance of the law in protecting value for owners and sponsors.

And, of course, advisers are also there to underpin something just as important - fair play in a major sporting competition.

Eduardo Reyes is Gazette features editor

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