Sports law: a ‘state of the union’
As the producers of a publication reporting on and analysing the most current legal issues and trends in international sport, as well as being the organiser of major conferences on some of the biggest areas (i.e. doping, player contracts, integrity, etc.), it’s imperative that we at World Sports Law Report have somewhat of a dual perspective to the legal side of sport. In other words, we need to have a strong appreciation of both the bigger and smaller pictures.
To that end, I thought it might be useful to offer readers a few brief insights into the development of the industry in the recent past, some current issues, and finally a couple of the broader themes to emerge in sports law. The first and the third of those areas will hopefully paint that bigger picture of the industry, whilst the second will give readers a taste of what legal issues are topical at the moment.
1. The context: sports law is an area in its own right
It’s fair to say that we are now at a point where practitioners can confidently described themselves as a “sports lawyer”, in the same vein as a property lawyer or IP lawyer might, and quizzical looks won’t often follow. It’s difficult to catalogue all of the recent changes that have occurred as there have been a lot of moving pieces at once, however I’ll point out just a few noteworthy ones.
First (and this is in no particular order), the sports industry has developed a few unique areas of regulation over the course of the last decade or two, and those are becoming increasingly sophisticated and complex. These areas include doping (the World Anti-Doping Code, for instance, was first introduced in 2004 notwithstanding that there was previous regulation of doping); sports integrity (i.e. match-fixing, which has grown with the proliferation of sports betting on multiple platforms); and sports employment/contract law issues (particularly around the trading and transfer of athletes). This has, in a way, facilitated the development of niche areas for legal advice, and sports lawyers having sought to fill that space.
Another area to develop over the course of the last two decades (but particularly the last 5-10 years) has been sport-specific jurisprudence. Over this period, the jurisdiction of the Court of Arbitration for Sport (CAS) has markedly increased and the institution has produced a large body of ‘case law’ which needs to be understood by practitioners. Moreover, a number of sports bodies have also established their own dispute resolution bodies, generating further jurisprudence for familiarisation.
The commercialisation of sport is not necessarily a recent phenomenon, however in some instances it has taken some time to yield an impact on the legal side. Of course more commercial activity produces more ‘front-end’ sports legal work, however it’s also worth noting that as sports organisations and clubs have grown and commercialised, they have looked to introduce and build their in-house legal teams in response to the business need. We are now seeing more and more in-house sports lawyers, particularly at sports clubs, when once this was largely an area for pure outsourcing.
These factors, among others, have produced a true sub-industry in sports law. The proof is in the very existence of World Sports Law Report, which generates valuable content and puts on important sports conferences, like Tacking Doping in Sport this March, to meet the needs of the sports law industry. Furthermore, it is also increasingly the case that academic institutions are establishing specific sports law programs in recognition of the fact that there are some unique skills needed to being a sports lawyer.
2. Recent developments and current issues
At the start of any year, it’s a bit of a tradition to turn to experts in the field for predictions of the prevailing issues in existence/to come, and 2015 was no different in that regard. A myriad of issues were mentioned, some of which were long awaited and others rather unexpected.
In the ‘predictable’ category would certainly be the introduction (into force) of the 2015 manifestation of the World Anti-Doping Code. International Federations (IFs) are in the process of incorporating the reforms into their anti-doping rules (many of the major IFs have already undertaken this step), and attention should turn very much to compliance now.
In the world of FIFA, the regulations governing dealings with intermediaries (i.e. agents), which are also expected to take effect in April, could fall into the same category. The other major regulatory reform to player contracts that was introduced via FIFA Circular 1464 in December 2014, the ban on Third Party Ownership (TPO), was also expected, although perhaps not so swiftly and with such a broad application. We are now seeing the fallout of its introduction, with a legal challenge launched in the European courts and further proceedings contemplated. On the topic of FIFA reforms, the governing body also entered more directly the regulation of overdue payables, an issue of real importance to the financial integrity of the international football industry. We will be monitoring these areas closely over the coming months (and in some instances have reported on them already).
It is arguable that the world of sports litigation/arbitration has also thrown out a few surprises already this year. In the protracted Pechstein litigation, a Munich Court of Appeal has potentially undermined the legality of certain arbitrations clauses, with real implications for the jurisdiction of CAS, depending upon the ultimate outcome of the litigation. By contrast, two other cases signaled to be of interest at the beginning of the year have fizzled out. A legal claim by a group of female footballers against FIFA in relation to the use of turf pitches at this June’s Women’s World Cup in Canada was dropped by the claimants, whilst Rory McIlroy’s litigation against Horizon, for which he reportedly set aside a significant amount of time from his playing schedule to focus on, settled within about 24 hours of the hearing’s commencement.
Speaking of horizon(s) (pardon the laboured segway), there are indeed several other topics on the horizon to follow closely, although there’s simply not enough time to mention them all. A number of ‘competition law’ related issues are on the agenda, particularly in the US with the UFC and MLS. Linked to competition law issues, in the world of sports media, there is of course the English Premier League (EPL) broadcast auction process culminating in a sizeable deal for the EPL and the shadow of Virgin Media’s Ofcom complaint. Moreover, in Spain we are now seeing tensions rise between clubs and the Spanish Government over the centralisation of broadcast rights for the Spanish league (La Liga), with threats of a strike by La Liga clubs already voiced.
3. Some interesting themes in sports law
Beyond the issues and trends flagged above (and I stress they are just about the tip of the iceberg in terms of what’s going on legally across the industry), to close off I thought it would be worthwhile taking note of a couple of the broader themes playing out in sport that are affecting the legal side of things.
One of the interesting developments (and not necessarily mind-blowing) is the commercialisation (and in turn professionalisation) of sport and the impact it is having on governance in sport. As the industry professionalises, the expectations around how sport is administered and regulated have changed (both from the public and stakeholders with a commercial interest), and this is having a direct flow-on effect to the structuring of sports bodies, representation within those bodies, and their regulation of areas of sport. We have already seen some high profile federations reviewing and amending their internal structures, striving for best practices in governance and increasingly introducing new areas of regulation. This is certainly contributing to the growth of sports law as a sub-industry.
Moreover, in this increasingly commercialised environment, the balance between being a ‘governing body’ (i.e. as regulator of their respective sport) and a commercial entity is more complex. I predict that this will continue to give rise to new legal issues in sport, particular in the competition law space.