Professional Contractors & Employees as Sports People➔ Employing Professional Sports Players

◆ Are professional sports players employees or independent contractors?➔ General Principle

◆ Employee works under a contract of service◆ Independent contractor works under a contract for services◆ Difficulty arises in distinguishing between the two.

➔ Main Common Law Tests◆ Control Test: test to determine if someone is an employee

● Factors: Is someone controlling an individual's conduct? Is the control continuous? ● Walker v Crystal Palace Football Club [1910] 1 KB 87

◆ Multiple Test: also looks at taxes along with control to determine if employee● Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497 eg tax◆ Singh v FA & FL (2001) ET case

● Football player thought he was being discriminated against bc of his race● Had to be an employee to bring a discrimination case ● Linked his contracts together and determined he was an employee

➔ Common Clauses (Explicit)◆ Contract offer may be subject to satisfactory medical examination◆ Remuneration (salary, performance/match bonus)◆ Insurance arrangements◆ Agent’s fees◆ Expenses (relocation, accommodation, flights)◆ Image rights◆ Duration (period of fixed term)◆ Obligations – employer/employee◆ Disciplinary/grievance◆ Governing body regulations/competition regulations◆ Termination

● How can K be terminated? Term? Disciplinary issues?➔ Common Law Implied duties on ER & EE under English law

◆ Employer ● duty to provide work● duty to take reasonable care ● duty to maintain mutual trust ● confidence

◆ Employee● duty of obedience● duty to take reasonable care● duty of fidelity

➔ Conduct by Employee◆ Serious/Gross misconduct◆ Bringing game into disrepute

● UCI Regulations- the Employer may terminate the present contract, without notice or liability for damages, in the event of serious misconduct on the part of the Rider or of the suspension of the Rider under the ROAD RACES

● 113 E0212UCI CYCLINGREGULATIONS terms of the UCI regulations for the remaining duration of the present contract. Serious misconduct is considered to include refusal to ride cycle races, despite being repeatedly called on to do so by the Employer.

➔ Player Restraints◆ Rules restricting signing of players◆ Reserve list◆ Salary caps or luxury tax◆ Player draft◆ Roster limits (agreed squad sizes)◆ Registration & transfer system

➔ Challenges to Legality of these Measures● They act in restraint of trade ● Contrary to competition law: Sherman Act/Article 101 TFEU● Contrary to freedom of movement provisions within Europe

◆ Subject to Legal Test: (restraint of trade) ● must be reasonable● reinforcing K stability at expense of mobility ● must be proportionate

➔ Restraint of Trade◆ House of Lords in Nordenfelt v. Maxim Nordenfelt Gun & Ammunition Co [1894] A.C. 535, 565,

[1891-4] All E.R. 1 (H.L.).◆ “reasonable, that is, in reference to the interests of the parties concerned and reasonable in

reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public.”

◆ So to be lawful, labour restraints must be justified by some employer interests that courts recognized as legitimate.

Scenario The University of Lowlands has a majority share in Lowlands Rugby Union (LRU) team who play in the English Premiership. You have just read a story in the newspaper that an ex-player, Steve Lawson, who played for the team for a number of years before he switched codes and went to play for a major rugby league side, has just signed for your local rivals, Grantchester RUFC. You foresaw that he might want to come back to play rugby union and incorporated a clause that Lowlands would have first refusal. This state of affairs particularly riles you as you have recently discovered that Grantchester has made an approach to one of Lowlands’s star players, Jim Love. This is contrary to a rule of the English RFU, Regulation 7.1 which states it is illegal for a club to make an approach to a player who has at least 6 months left on a contract.

Love has indicated that he wants to leave and play for Grantchester. You have been told by some of his team mates that he wants to go because he believes that Lowlands themselves want to get rid of him. He has cited

the facts to his team mates that he was not provided with any wet-weather training kit for pre-season training nor taken on a pre-season training camp to the Bahamas as examples of Lowlands lack of desire to keep him.

You are legal counsel for the LRU. Indicate which legal remedies Lowlands may have against Grantchester and Lawson and provide an evaluation of Rule 7.1 and whether you will be able to keep Love contractually bound to Lowlands.

➔ Tort of inducing a breach of contract◆ Lumley v. Gye (1853)

● D persuaded or induced br. of con.● D at the time knew of existence of contract● D had intent to persuade or induce br.● Claimant had suffered more than nominal damages● Claimant could challenge any defence of justification on part of D

➔ RFU rule 7.1◆ Potential disciplinary action against G & L◆ LRU/Grantchester

● A) action against G for inducing br.of con.● B) action against L for br of con. And possible injunction to stop him leaving.● Love- has he been subject to br. of con. by ER if so could walk and claim ‘constructive

dismissal. If not could be seen as ‘contract jumping’

➔ Transfer System ◆ Is clear player restraint but justified◆ Justification: identifying/developing talent, promoting stability in Ks, distribution of resources

(transfer fee is a financially beneficial to club)◆ Evidence of how it works◆ Future- legality?

➔ Applied to the soccer transfer system◆ Eastham v. Newcastle United FC (1964) case in UK – restraint of trade◆ Lord Lord Wilberforce stated that the pervasive use of this system by sports league employers

justified careful judicial consideration of whether the rules went "further than is reasonably necessary to protect their legitimate interests.” Nonetheless, he acknowledged that, if richer teams could acquire most of the better players, this would be "to the detriment of the... whole., Thus, the league had a special and legitimate interest in maintaining the overall quality of the sport through competitive balance.

➔ Restraint of Trade◆ Restrictive Covenants

● A restrictive covenant is prima facie void as being in restraint of trade.● An employer has a legitimate business interest to protect e.g. trade secret or goodwill or

trade connections; and● It is reasonable.

◆ **Leeds Rugby Ltd v Harris & Bradford Rugby [2005] EWHC 1591

● Similar to scenario → when player argued restraint of trade, employer proved they had a legitimate business interest to protect and it was upheld

● Club would win bc business interests are legitimate and outweigh player’s interest in this case therefore would need possible remedy

◆ Analysis: Possible Remedies if Player breaches ● Breach of K → damages remedy/negative enforcement of Ks

○ Damages → determined by loss of services of comparable player (difficult to determine)

○ Injunctions are pretty rare → can get an injunction to stop him/delay him from playing for other teams

○ Gardening leaf injunctions → recognize a period of time that that person cannot work

○ Tortious Breach - Sue other team for damages (if player is broke) → must prove a tortious relationship, must satisfy all the elements: (see Lumley)

◆ Player must actually breach contract first before bringing tortious interference action for inducing breach of contract

➔ Termination- Wrongful Dismissal◆ Will lead to termination of contract e.g. employee claims that the employer has breached an

express or implied term of the contract (Wrongful dismissal and Constructive dismissal)◆ Macari v Celtic Football and Athletic Club Co Ltd [1999] I.R.L.R. 787◆ Kevin Keegan v Newcastle FC’ (2009). Premier League Manager’s Arbitration Tribunal◆ Curbishley against West Ham (2009) Premier League Manager’s Arbitration Tribunal

➔ Unfair Dismissal◆ e.g. employer dismisses employee due to ‘gross misconduct’◆ Wise v Filbert Realisations EAT/0660/03 (2004)

➔ CASE STUDY: FOOTBALL◆ History of transfer and registration system◆ Eastham (1964)◆ Bosman (1996) case in Europe (equivalent to Flood v. Kuhn in US basketball) –

● i) introduction of ‘free agency’ at end of contract & reform of transfer system● ii) Abolition of quota system

➔ NEW FIFA TRANSFER RULES◆ The current FIFA transfer rules enhance player mobility by enabling a player over the age of 23

unilaterally to terminate his existing contract to move to another club once the appropriate protected period has expired (for player under 28 this is 3 years – over 28 it is 2 years).

◆ The player who wishes to move must pay compensation to ER club➔ Player of 26 ON FOUR YEAR CONTRACT

◆ __1__ __2__ __3__ ** __4__ Free Agents◆ PROTECTED PERIOD 2 WEEKS AT END OF SEASON

➔ Webster case◆ Webster case is the 'new Bosman' ◆ Player union leaders say the decision to allow Andy Webster's contract break with Hearts is a

"landmark" case set to rival the Bosman ruling.

◆ Webster is the first player to use Fifa regulations to walk out on a club after an established 'protected period'.

◆ The defender left Hearts to join Wigan after being frozen out of the team when contract talks broke down.

◆ "The outcome of this is that football players have increased rights," said SPFA general secretary Fraser Wishart.

◆ Case heard at FIFA DRC and then CAS- Arbitration CAS 2007/A/1298 Wigan Athletic FC v/ Heart of Midlothian & CAS 2007/A/1299 Heart of Midlothian v/ Webster & Wigan Athletic FC & CAS 2007/A/1300 Webster v/ Heart of Midlothian, award of 30 January 2008

◆ Potentially even greater mobility is provided by the ability of a player to terminate a contract for ‘sporting just cause’ even though his club has not committed any breach of contract. In short, what can be perceived as the right to contract-jump is expressly recognised by the FIFA transfer rules.

➔ ‘Sporting Just Cause’◆ If player terminates with just cause then player gets registration rights and is recognized by FIFA◆ Article 15 of the FIFA regulation on transfers states:◆ “An established professional who has, in the course of the season, appeared in fewer than ten

per cent of the official matches in which his club has been involved may terminate his contract prematurely on the ground of sporting just cause. Due consideration shall be given to the player’s circumstances in the appraisal of such cases. The existence of a sporting just cause shall be established on a case-by-case basis. In such a case, sporting sanctions shall not be imposed, though compensation may be payable. A professional may only terminate his contract on this basis in the 15 days following the last official match of the season of the club with which he is registered.”

◆ Determined on case by case basis.➔ Transfer windows

◆ in Jyri Lehtonen & Castors Canada Dry Namur-Braine v Fédération Royale Belge des Sociétés de Basketball ASBL (Case C-176/96)

● Basketball case challenging transfer windows → upheld bc clear legitimate objective, proportionate, and not discriminatory

◆ Support for them based on facts that they aid team and player stability◆ But problem with proportionality

➔ Contract Jumping◆ Nicolas Anelka

● told team he was going to leave in the middle of his contract and decided he was just going to take the consequences of leaving

● He didn’t end up walking out but team sold him at the end of his contract ● Football rules didn’t allow him to leave during his contract (breach of contract)

◆ Ronaldo● Wanted to leave to go to Real Madrid, club manager said no● Star players shouldn’t be treated differently ● He stayed for another season and was sold

◆ Carlos Tevez● Refused to come on to play during a match in Germany

● Frozen out of club● He wanted to leave and tried to argue that he wasn’t being played (but he breached his

contract by not playing when asked/team was justified)● If you walk away from your contract you have a waiting period before you can resign

with another team➔ CONTRACT JUMPING

◆ Warner Brothers Pictures Incorporated v Nelson [1937] KB 209● Contractual limitations/it’s against public policy to force someone to work for someone

they don’t want to ● Can get injunctive relief to delay new contract instead of forcing them to play under an

employer they don’t want to ◆ Warren v Mendy [1989] 1 WLR 853◆ Subaru Tecnica International Inc v Burns & Others (2001) WL 1479740.◆ Crystal Palace v Bruce (2002) QBD (unreported) – ‘gardening leave’

➔ Illegal approaches to players◆ Ashley Cole case◆ Premier League Rule- K5◆ Restraint of Trade?◆ Contract stability – proportionate?

Doping (ch.8): Technological doping

o Speedo LZR Racer Drugs

o History - has it always been an issue?o Recent events

1988 Ben Johnson - Seoul Olympics - Dubin Inquiry 1989 - Fall of Berlin Wall and exposure of East German institutionalized use of

drugs in sport 1998 - Festina and the Tour de France 1999 - creation of World Anti-Doping Agency (WADA) Objectives: waging ‘war on drugs’ and harmonization

o Why ban drugs? Provides ‘unfair advantage’ = cheating Paternalistic approach - health issues

‘parentalism’ is behavior, by a person, organization or state, which limits some person or group's liberty or autonomy for that person's or group's own good.

About upholding the integrity of the sporto But why not have a free-for-all?

Allow all athletes to take drugs and thereby create a ‘level playing field’ Why ban recreational and social drugs Problem of ‘innocent cheater’

In-class assignment:

For Against

·         Athletes are role models·         Health

·         Testing/prohibition is arbitrary·         Libertarianism (there’s a sort of right to do this and

·         Safety·         Prevent coercion of other athletes into taking it (deterrence to others)·         Consistency·         Preserves the nature of the game·         Paternalism (protecting people)·         Cost issue

people are going to do this)·         Risk·         Privacy

o Who regulates drugs? Governments

use of criminal law e.g. Greece some calls in the UK CAS hears these cases

IOC WADA grew out of Olympic Movement Anti-Doping code

WADA Mission: “to promote and coordinate at international levels the fight

against doping in sport in all its forms” Harmonization across all sports Issues with WADA:

o Should it apply to all sports?o Confidence of ‘athletes’?o Is this the right approach?

ISFs (International Sports Federation) Incorporation of WADA code

NGBs (National Governing Bodies) Delegated power to carry out testing, etc. and initial ‘policing’

Testing bodies public/private e.g. UK Anti-Doping Body

Legal Basiso The UNESCO (United Nations Educational, Scientific, and Cultural Organization)

International Convention against Doping in Sport is the first global international treaty against doping in sport.  It was unanimously adopted by 191 governments at the UNESCO General Conference in October 2005 and came into force in Feb. 2007.  The UNESCO Convention is a practical and legally binding tool enabling governments to align domestic policy with the World Anti-Doping Code

What is banned?o See prohibited list of substances, related substances, and metaboliteso What is a specified substance?

A specified substance is a substance which allows, under defined conditions, for a greater reduction of a two-year sanction when an athlete tests positive for that particular substance.

Purpose: is to recognize that it is possible for a substance to enter an athlete’s body inadvertently, and therefore allow a tribunal more flexibility when making a sanctioning decision.

Specified substances are not necessarily less serious agents for the purpose of doping than other prohibited substances, and nor do they relieve athletes of the strict liability rule that makes them responsible for all substances that enter his or her body.

There is a greater likelihood that these substances could e susceptible to a credible non-doping explanation, as outlined in section 10.4 of the World Anti-Doping Code.  This greater likelihood is simply not credible for certain

substances - such as steroids and human growth hormone - and this is why these are these are not classified as specified

Prohibited Methods:o Blood doping

Altitude training gets the same results Principle of ‘Strict Liability’

o Punishment: 1st violation: 2-year ban

2-year ban to be increased to 4-year ban from 2015 on 2nd violation: life-time ban

o Justification: Gasser v. Stinson (1988) - HELP Raducan v. IOC (2000) CAS

o Exceptional circumstances: no fault or negligence involving ‘specified substances’ See: Aanes v. FILA (2001) CAS and Baxter v. IOC (2002) CAS As it relates to subsequent sanctions (Art. 10 of the COde), the athlete has the

possibility to avoid or reduce sanctions if he or she can establish to the satisfaction of the tribunal how the ‘specified substance’ entered his or her system, demonstrate that he or she was not at fault or significant fault or in certain circumstances did not intend to enhance his or her sport performance

2013 Monitoring Program:o Types:

1) Stimulants: In-Competition only: Bupropion, caffeine, nicotine, phenylephrine, phenylpropanolamine, pipradrol, pseudoephedrine (<150 micrograms per milliliter), synephrine.

2) Narcotics: In-Competition only: hydrocodone, morphine/codeine ratio; tapentadol; tramadol

3) Glucocorticosteroids: Out-of competition onlyo Athletes may have illnesses or conditions that require them to take particular

medications If the medication an athlete is required to take to treat an illness or condition

happens to hall under the Prohibited List, a Therapeutic Use Exemption (TUE) may give that athlete the authorization to take the needed medicine.  This section provides information about the TUE process and is intended for athletes, members of Therapeutic Use Exemption Committees (TUECs) or for anyone involved or interest in this area of anti-doping.  THe purpose of the International Standard for Therapeutic Use Exemptions (ISTUE) is to ensure that the process of granting TUEs is harmonized across sports and countries.

Testing:o Generally required positive test of two samples:

Missing of tests: Rio Ferdinand Christine Ohuruoga

o Legitimacy of Testing Contractual Relationship Need for athletes consent

Implied consent, that by signing your entry into the sport you are consenting to the rules of testing

Cannot refuse a blood test on the podium stand But can be inferred - Wilander v. Tobin

Wilander (tennis) failed a drug test, but argued he hasn’t agreed to the provisions.  But it was inferred he had implied consent when he signed

his agreement to be on the tour and when he signed his participation in the tournament

Modahl v. BAF Argued it was an unreliable test and that there was a break in the chain

Problem with non-athletes e.g. doctors and coaches How far can a sports body reach to penalize wrong doing? Doctors and coaches are significantly involved in the doping trade

o Whereabouts Rule: Led to some controversy and potential legal challenge

Under the revised International Standard for Testing, which went into force on Jan. 1 2009, the limited number of top elite athletes included in the registered testing pool of their IF and NADO are required to specify 1 hour each day (between 6am and 11pm) during which they can be located at a specified location for testing.  

If they are not at the indicated location at the specified time, they expose themselves to the risk of a missed test.

Basically: enforcement is “we’re serious about this and we’re trying to monitor you”

How do you take this to court? This is highly intrusive Privacy argument Employment law

Criminalization:o Some countries have sports-drugs specific legislation e.g. France; Italy; Greeceo Discussion in UKo Increasing emphasis on engaging with issue as organized crime

Pervasive nature of problemo Lance Armstrongo Australian Crime Commission’s ‘Organized Crime and Drugs in Sport’ report

Olympics Games Bando Is Olympic life-time ban justified?

LaShawn Merritt Dwain Chambers

o To what extent should those athletes banned be rehabilitated?o Reliability of laboratorieso Issue of privacyo Whereabout rule - led to some controversy and potential legal challenge

Futureo Will WADA work?o Integrity of sport

Genetic manipulation → This is the future! Scenarios:

o You learn that Smith has failed an anti-doping test after completion of an Olympic cycling race.  The prohibited substance clenbuterol was detected - Smith argues his complete innocence and that he had not taken this substance but an explanation might be had eaten some ‘tainted meat’ the night before the race.  Smith is desperate to ride in the Road Race Final in two days time.  He also fears a complete Olympic Ban in the future.

o Time, a weightlifter, tests positive for a prohibited steroid.  He argues that he has only used a health supplement

o Gary, a 20-20 cricket specialist batter, uses an aluminium bat to improve his assistance hitting.

o Kylie, a 1500m runner, has a blood transfusion with aerated blood two days before a race

o Fred, a snowboarder, tests positive for cannabis during competitiono Amir, a swimmer, uses an all-in-one swimsuit to reduce resistance in the poolo Louise fails to turn up for a doping test after being approached during a training session o Sam, a 400m runner, who has no lower leg limb, uses carbon fibre leg extension - his

ISF bans himo Joanne, a gymnast, tests positive for a banned substance after taking a cold remedy

under supervision of her doctor

Discrimination:It all begins with Policy for anti discrimination provisions:

Most important policy is  ‘Sport for All’ Equal opportunity Rectify historical and cultural obstructions to participation Represent a way to lead society into social change as sports is influential

Discrimination includes sex, gender, disability but our focus today is Race Sporting discrimination rules are tied to the legal field by the Race discrimination act o 1976.

o Similar to the U.S. 1976 Act forbids discrimination based on race, national origin. Direct Discrimination

o When a person (A) discriminates towards another person (B) because of a protected characteristic. A treats B less favorably than he would treat others.

This includes segregating B from others. (Race only) Indirect Discrimination

o A is discriminatory to B if A applies to B a provision, criterion, or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

Criterion1. It puts people who share B’s characteristics at a particular disadvantage

compared to people who B does not share characteristics with.2. It puts B to that disadvantage3. A cannot show it to be a proportionate means of achieving a legitimate

aim. Harder to establish indirect discrimination

1. An example he used in class is the person who advertises a job vacancy but requires applicants to be above 6 feet.

Manifestation of Racism in British Sporto Playing opportunities

Bench a particular more than otherso More general sports related employment

Who is sent out by team for interviews.

o Hostile working environment This can be both from coach, teammates, or from spectators.

Spectator Racism (A sub-topic of Racial discrimination in Sports) o The causation of Spectator Racism is complex. o Started in the 1960so 1970s- football became explicit venue for right-wing political groups

National Front (BNP)o 1980s the problem kept growing; government and football officials ignored ito In UK mostly problematic in football. o In US widespread across many sports.o Stems from English Nationalism.o Legal Response

First legal response came in the 1990’s in the form of the Football Offences Act (s.3)

1. Words or sounds that are ‘chanted’  in concert with one or more others which is threatening, abusive, or insulting to a person by reason of his color, race, nationality, or ethnic/national origins.

2. DPP v Stoke on Trent Magistrates Court (2004)3. L’Affaire Cantona (Kung-Fu kick spectator)

o This case is important because it highlighted the limitations of the original act, in which it was targeting groups chanting racist comments. It was later amended (in 1999) and individualized the offence. This now cast a wide net to cover both individual racist chants or remarks and included group chanting.

o By 2006-2007 rates of arrests had dropped down by 25%.o Diversity in UK sport

Afro Caribbean and most other races represented in sports in UK (especially in football)

Most under-represented race in football is Asians.o Racism in the work place

Sterling v. Leeds Rugby League Club and others (2000) Suarez incidents (biting/banned, biting again)

Criminal Law vs. Sports Disciplinary Procedureso Should compare the proportionality with other forms of competition ‘governance’o 2 approaches:

Punitive conflict model Conciliatory consensus model

o Sporting Disciplinary action under English F.A. Rules Charges of Misconduct

1. The player must at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one or a combination of violent conduct, serious foul play, threatening, abusive, indecent, or insulting words or behaviour.

2. If race is a factor in the misconduct it is treated as an ‘aggravating’ factor.o Test Used

Objective test based on whether words were abusive or insulting1. No subjective state of mind needed.2. burden of proof in FA is civil standard of ‘balance of probabilities’

o Exception: The more serious the allegation, the greater the burden of evidence required to prove the matter. (basic civil standard)

o Penalties: Sports Rules

1. 8 match playing ban

o starting point of misconduct is 2 matches (this doubles if there is the aggravating factor of racial discrimination) In analysis use mitigating and aggravating factor.

2. Fine of 40,000 pounds3. Warning as to future conduct.

Criminal Law Rules1. Criminal Trial- Public Order Act 1986 (s.5)

o Used in general criminal law and states that person who uses racial discrimination by abusive words and insults can be punished in legal system.

o Should this be applied to Sporting Field?o Used in Sporting only when Racially motivated incidents occur.

This was added in 1998 and states that if an incident is related partly or wholly to a person’s race or if they demonstrate hostility.

2. Testo In criminal law the objective test needs to be established as well.

After this it differs from the Sporting Ruleso Also need subjective state of mind. (intent) o Is there a belief in the reasonableness of the conduct?o Burden is on prosecution and they need to prove ‘beyond a

reasonable doubt’.o Issue here now is that many believe criminal law is

disproportionate punishment in sporting event. o Example: Nicolas Anelka & the Quenelle

Portrayed to be Anti-Semitic Remarks December 2013 80,000 pound fine required to enroll in FA educational program Dismissed on grounds of ‘gross misconduct

o Justin Sherman And Joel Wilkinson It came out that Sherman had racially vilified a Bulldogs

player Wilkinson. AFL rule 35 No person can engage in conduct that is threatening,

insulting, vilifies, or disparages another human being based on race, color, ethnic background.

Criminal Law Response

Sporting Disciplinary Response Sporting Conciliatory Response

Type Formality of legal adjudication & punitive

E.G. of ADR – formal, conflict-based & punitive

E.G. of ADR – informal & aim of consensus

Values Law and external legal norms

Greater emphasis on Justice and internal norms of sport

Private Justice - confidential

Procedure Due Process important – criminal

Due Process important increasingly – quasi-criminal &

Flexibility with few formal rules

justice rules subject to legal challenge

Sanctions Range of sentencing options

Playing Ban/Fine Education & awareness of race and diversity issues

Frequency

Rare response & symbolic prosecution

Primary Difficult to measure due to confidentiality requirement

Objectives Deterrence Effect Visible & proportionate (but lack of consistency with other forms of comp. governance)

Attempt to bring about lasting  change

Possible Remedies: Anti-Racism clauses in employment contracts of managers and players Rooney Rule applied to UK Sport

o Rooney Rule is US rule; where any person who is hiring a head coach in the NFL must interview at least one minority applicant. (2003)

o 2011 - 25% of NFL head coaches are people of color.

EU and NA Models EU and Professional Sport

Question is: where the line should be drawn between regulation of sport as a business and non-intervention into the ‘rules of the game’ AND

whether sport should have a specific exemption from regulation. main theme in Europe: the “relationship between a rather pristine European Sports Model… and

the growing commercialization of sport” (“A Comparison of the European and North American Models of Sports Organization” by James A.R. Nafziger)

Preliminary observations (all from Nafziner’s A Comparison of Models) 1) “EU sports model is based largely on just one sports that dominates attention in Europe

(football) - this is a monopolistic national structure” NA model is likewise diversified (there are important variations among the several major

professional leagues within NA and between those structures and elsewhere) 2) “A functional analysis and evaluation of the UE sports model must take account of the legal

constraints of the EU law.” 3) “The actual structure of professional sports in Europe continues to evolve”

EU Social Policy a social activity with too much cultural and social importance for it to be left to market forces Social policy intervention in terms of e.g. public health and social exclusion

EU History Product of WW2 Economic ‘common market’ Political Union- the EU

http://en.wikipedia.org/wiki/European_union Phase One*: Origins of EU intervention

Walrave & Koch v Union Cycliste Internationale [1974] “the practice of sport is subject to Community Law only as far as it constitutes an economic

activity within the meaning of Article 2 of the Treaty Richard Parrish, Sports Law Policy in the EU, MUP (2004)

Donà v Mantero [1976] Held that discriminatory nationality rules within sport were incompatible with EC Law unless

such rules were applied to matters of a purely sporting interest. Phase Two: Bosman [1995]

Single Market 1992 Bosman - What was the ruling Part of greater regulation and focus by EU on professional sport within the ‘Single European

Market’ Post-Bosman impact

Phase Three: Amsterdam Declaration (1998) No legally binding article for sport but acknowledgement of the social significance of sport – has

a role in forging national identity Important documents

The Development and Prospects for Community Action in the Field of Sport (1998) The European Model of Sport (1998) http://ec.europa.eu/sport/index_en.html

Characteristics of Euro Sport Pyramidic Structure Promotion and relegation- open leagues Sport has strong socio-cultural dimension Sport as tool to reinforce social solidarity and combat social exclusion Sport – forging national identity

Comparison to North American Sport Model Horizontal layering

Characteristics Role of Schools and Colleges A closed system of competitions Commercialisation of sport (more restrictions) Extensive system of team and player restraints Collective bargaining system

James Nafziger: - A Comparison of the European and North American Models of Sports Organisation in Gardiner, Parrish & Siekmann (eds.) (2009) EU Sports Law & Policy

Comparison European model = ‘sporting capitalism’ North American model = ‘sporting socialism’

Post Bosman Phase (elements on good governance in sport) The Helsinki Report on Sport (1999)

Partnership approach to regulating sport The Nice Declaration on Sport (2000)

Emphasis on organisation of sport Main Legal Provisions

Art. 45 Treaty on the Functioning of the European Union (TFEU)- Freedom of Movement provisions

Art. 101 TFEU – Regulation of Cartels

Art. 102 TFEU- Abuse of Dominant Position (monopolies) ECJ Cases

Deliège [2000] Legitimacy of selection rules in judo In the case of Deliège, a case brought under what is now Art. 56 TFEU on the freedom to provide

services, the ECJ wrestled with the division between sporting and economic rules and regulations. Deliège was not selected for her national team in Judo, though she argued that her performance and ability made her suitable for selection.

The ECJ reiterated: that the Treaty provisions concerning freedom of movement for persons do not prevent the adoption of rules or practices excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as, for example, matches between national teams from different countries. The Court stressed, however, that that restriction on the scope of the provisions in question must remain limited to its proper objective and cannot be relied upon to exclude the whole of a sporting activity.”

Cases C-51/96 and C-191/97 Deliège v Ligue Francophone de Judo et Disciplines Associées ASBL [2000] ECR I-2549.

Lehtonen [2000] (Challenging Restrictions) Legitimacy of transfer widows In the case brought on the basis of free movement rules, a Finnish basketball player sought to

challenge transfer rules imposed by the Belgian Basketball Federation, which effectively prevented him from playing in particular games. Whilst the ECJ accepted that foreign players could be excluded from games for non-economic reasons, the Court was quick to rule out any argument based on the idea of any general organisational autonomy of sports associations. There was a requirement for governing bodies to identify and argue proportionate and objective justification for rules which otherwise offended EU discrimination law.

Case C-176/96 Jyri Lehtonen & Castors Canada Dry Namur-Braine v Fédération Royale Belge des Sociétés de Basketball ASBL.

Kolpak [2003] (rights around quotas) Slovakian handball player gained ‘rights of EU national’ to move within EU to play for other

teams “any citizen of a country with an associate agreement with the EU has the same rights as a

European worker". impacted upon rugby and cricket

Formula I racing & EU Competition Commission Background Compromise Governance

SPORTS GOVERNANCE CHARACTERISTICS

Openness & transparency Integrity Accountability Democracy Compliance Social Responsibility

Implications If improved internal governance then less pressure for external regulation Firstly, Governing bodies need to carefully monitor their roles in ‘managing the game’ on the

one hand and the increasingly valuable commercial interests on the other.

Secondly there is clear relationship between effective internal governance by sports bodies and the ability to exercise a ‘supervised’ self-regulation.

Meca- Medina (2006) Want clarity/certainty Facts: two swimmers that failed an anti-doping test and their sentence was reduced to two

years bc the international rules were less than their original ban. Challenging that anti-doping rules were discriminatory, even though they are inherent

to sport, you can still challenge the rules Held: two year ban was proportional (not discriminatory) bc it had clear objective to

stop unfair advantage/cheating, and there were no other clear alternatives → ban was fair (suitable response)

Analysis: 1. Proportionality of the restriction? 2. Clear/legit objective? If yes… then…

o No other clear alternatives? (more effective ways of achieving objectives) If no… then not discriminatory

concerning whether EU law could intervene concerning anti-doping rules distinction between sporting rules and economic issues not clear to make: anti-doping rules

could be subject to regulation on basis of question of ‘proportionality’. Motoe Case

The recent case of Motoe has confirmed that, irrespective of acceptance by the EU of the ‘specificity of sport’, sport like any other industry must establish grounds for exemption of a particular rule or policy from EU law rather than seek to rely on the notion that it is a special case. Motoe acknowledges that sports regulators oversee specific sporting functions, but, as Weatherill argues, ‘the details of [their] procedures are not immune from the application of EC law in so far as they exert economic effects.’.

Independent European Sports Review http://www.independentfootballreview.com/terms.html “Only a secure and clear legal environment both at European and national level can assure the

fundamental autonomy of sport governing bodies” White Paper on Sport (2007)

Effective sports governance is key Rules that cannot be challenged: selection for national teams (eligibility) Rules that can be challenged: club/team quotas/selection

How is it to be monitored? Who has the right to govern: e.g. EFC v UEFA

EUROPEAN SPORTS LAW Role of EU Commission & relationship with sports bodies: role of ‘supervised autonomy’ Cases such as Deliège & Meca-medina demarcate the relative competency of sports bodies and

EU Approach is essentially one of ‘Soft Law’ & no specific provision or exemption for sport has

emerged Richard Parrish, Sports Law Policy in the EU, MUP (2004)

Lisbon Treaty (most recent) The has finally provided the EU with a formal, albeit soft, competence on sport. Art. 149 TFEU

states that ‘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.’

“A Comparison of the European and North American Models of Sports Organization” by James Nafziger

“The European Commission’s Consultation Document identified 6 specific features that continue to form the core of the European Sports Model:

A) Pyramid Structureo base: autonomous and nonprofessional clubso level 1: regional federations within each countryo level 2: national federationso top: European federations (one for each sport such as UEFA)

B) Promotion and Relegation C) Grassroots Involvement D) National Identity E) International Competitions F) Negative Aspects