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World records: a thing of the past?

For those familiar with recent major sporting headlines, few will have missed this one.

The International Association of Athletics Federations (“IAAF”), the international governing body for athletics, is to debate proposals containing new ratification criteria for all athletes competing in approved international events. The new criteria will require the:

  1. athlete to submit to an agreed number of doping control tests before competing in the event; and
  2. athlete’s urine and blood samples to be stored and made available for re-testing for up to 10 years after the event.

Since the IAAF has only stored these samples from 2005, the impact of this could be extraordinary. Many historical world records, such as Radcliffe’s 2003 marathon world record, Zelezny’s 1996 javelin throw, Powell’s long jump record in 1991 and El Guerrouj’s 1500m and 1-mile records in 1998 (amongst others) could be at risk of being declared “unofficial”, or even wiped from the record books entirely (a BBC article listing further examples at risk can be found here).

The proposals, put together by a project team commissioned by the European Athletics Council (“EAC”), are scheduled to be discussed when the IAAF meets in London in August. To date, the proposals have fuelled sensationalist media headlines and sparked criticism, major debate and threats of legal action. This article discusses the motive and potential impact of the proposals, and reviews whether this is the best solution available.

Motive and Background

In recent years, global athletics has suffered repeated setbacks over its credibility and integrity. Last year’s McLaren Report (copy available here), commissioned and published by The World Anti-Doping Agency (“WADA”) uncovered a doping epidemic across a range of sports. It is feared that athletics (a sport built upon pushing the limits of physical human capability) will become discredited if people don’t believe, or doubt, that the records are legitimate. A sport that is “rigged” is, arguably, not a sport at all.

Spectators must remember that, whilst sport has been played for thousands of years, doping control is a far more modern intervention, dating back only as far as the 1960s (the IOC’s establishment of its ‘Medical Commission’ in 1967). WADA was only established in 1999, 11 years after Ben Johnson famously tested positive for a banned substance (stanozolol) in the 1988 Seoul Olympics’ 100m final. Since then, WADA created its World-Anti-Doping Code in 2004 (the “Code”) to incorporate an agreed list of prohibited substances, uniformity around doping offences, common standards of sample collection and analysis, and harmonised sanctions. 2005 marks the critical point when athletics’ governing bodies and doping control organisations began storing samples for re-analysis. By 2007, 40 governments had committed, politically, to the Code and WADA by ratifying a UNESCO Convention against doping in sport.hist of sport

However, these EAC proposals go further than the existing regulatory framework: they call for higher technical standards of, and increased, doping control measures and new personal integrity requirements for record holders[1].The effect could be to create new household names in athletics, and expand the sport’s appeal after what has been a prolonged period of negativity (that’s the theory). Conversely, the effect could also be to totally alienate both the sport from the fans and the IAAF from its athletes.

What is a “record”?

These proposals will, if approved, re-calibrate our understanding of a “world record”.

Traditionally, an athletics record was [relatively] straightforward: the highest leap, the longest throw, or the quickest time (for example), was recorded against a name and the event (the author recognises that some records have previously been made subject to conditions, such as Geoffrey Mutai’s 2011 Boston Marathon world record being discredited due to the track gradient being too much in his favour, but as a rule most records stand). Going forward however, a new concept of “record” will be introduced. A record will no longer be simply about who is the fastest, or who jumped the furthest. Under the EAC proposals, a ‘record’ will only stand if the holder satisfies a set of performance, qualitative, quantitative, regulatory and integrity-based criteria. If the proposals are ratified, in their current form at the time of writing, a new “record” may only be official if:

  • the time/distance/height (or other measurement) is greater than any previous performance for that same event, recorded anywhere in the world (performance criterion); provided that the:
  • performance was achieved at a pre-approved competition, where the highest standards of officiating and technical equipment can be guaranteed (qualitative criterion);
  • athlete has submitted to, and passed, an agreed number of doping control tests in a specific period prior to the performance (quantitative criterion);
  • athlete has submitted a blood and urine sample for testing after the performance, and made the sample available for retest for up to 10 years (regulatory criterion); and
  • athlete has not committed any other doping or integrity violation during any performance in any event, anywhere in the world, at any time (integrity criterion).

Any “record” that does not satisfy the above will, we understand, remain on the “all-time list”, but will not receive official recognition as, and the associated prestige of, a world record. Many would be forgiven for thinking that modern athletes will need to meet excessive standards to hold an official world record in future.

Contractual position

As discussed later, ratifying the EAC’s proposals may expose the IAAF to legal challenge. In its simplest form, a contract will exist between a competitor and the event organiser when a competitor enters, and competes in, any sporting event. Typically, the contract will comprise the event entrance form and will incorporate (either expressly or by participation) any codes of practice or ethics guides for athletes issued by the event organiser, the relevant governing body and/or anti-doping agency for the sport (such as WADA and the Code).

All competitors are normally required to complete the form accurately and in full as a condition of entry. In practice, such forms are often completed by the federation or team represented by the athlete, which bind the athlete to them. However, the leading case of Modahl[2] confirms that simple participation in an event is enough to bind the athlete both to the event’s rules, and the rules of any other relevant authority (such as WADA and/or the IAAF). An athlete competing in an event agrees (as implied by their participation) to be bound by, and subject to, the event’s rules and the relevant authority’s rules.

In its simplest form, the EAC proposals (if ratified and adopted by the IAAF) would equate to a unilateral variation of the contract that existed between the athlete and the event organiser, over 12 years after the contract was performed. Athletes entering events are legally bound to compete, honestly and ethically, under a duty of good faith. Athletes who do so have a legitimate and reasonable expectation to receive equal treatment from both the event organiser and any governing body (including verification as a world-record holder, if applicable). Ratifying these proposals, on the basis that the IAAF cannot prove the athlete would have failed a drugs test had they taken one at the relevant time, would be contractually unlawful and unethical for those athletes who have competed honestly and ethically.

Reputational

It is arguable that athletes who cheat effectively defraud event organisers, sponsors, spectators and fellow athletes. For clean athletes, drug testing is a critical validation tool that can enhance and preserve their reputation.

These proposals will, however, attack athletes’ performances indiscriminately and arbitrarily based on the date and time of the event. Both legitimate and illegitimate performances by athletes (whether proven or otherwise) are in danger of being discredited. This risks substantially damaging the reputations of many global athletes who have subsequently become ambassadors for their sports, charities and organisations worldwide on the back of these performances (such as Michael Johnson and Jonathan Edwards). The consequential damage this could have for the athletes who have had their legitimate performances de-classified, and the not-for-profit organisations they are associated with, will be seen as unjustified.

Proprietary rights

Several potentially affected athletes have added fuel to this debate by threatening high profile legal action against the IAAF over these proposals. Many claims will be borne out of abuse of process arguments and breach of contract (the breach being the unfair unilateral variation of the contract by the IAAF).

The Code specifically states (Article 8) that, before any sanction can be enforced, any athlete suspected of committing a doping violation must [in summary] receive a fair and impartial trial, time to prepare and the right to call and question witnesses and evidence. Further, the burden of proof of establishing a violation rests with the anti-doping organisation (Article 3). Readers can be re-assured that simple ratification of these proposals may not wipe world records from the books overnight.

English law does not recognise the existence of proprietary intellectual property (“IP”) rights in a sports event. IP rights that arise in events or performances arise under copyright and related ‘performer’s’ rights. However, sporting events are not considered “dramatic works” in which copyright may subsist because they cannot, legitimately, be re-performed in the same way (such as a stage play). This means that, under English law, athletes will not be able to assert any infringement of any proprietary IP right in the world records they hold against the IAAF should their records be stripped.

IP rights (copyright) in the broadcast of a world record performance will remain vested in the broadcaster, as will personality rights in the athlete’s image, name, likeness and reputation arising from the relevant performance. However, the world record itself will remain an attribution or accreditation issued or verified by the relevant event’s governing body (such as the IAAF), and issued subject to the governing body’s rules in force at the time of the event. It would seem, therefore, that it can be taken away by the governing body for a breach of its rules, or any applicable anti-doping code. However, removing a world record as a result of a unilateral and subsequent rule change really tests our understanding of “fairness” under ordinary principles of natural justice. Any breach must be proven as a result of a fair trial and fair process. The EAC’s proposals do not presently reflect this. Athletes cannot be expected to compete in an event bound by rules or criteria not yet in force, or train to be judged by technology that does not yet exist.

Applying similar logic, are we now to say that the outcome of the 1966 FIFA World Cup final should no longer stand because Geoff Hurst’s controversial goal in extra time would [arguably] not have been given had goal-line technology been used (as it now can be…50 years later)?

The only solution?

Hand waving a red flagRemoving or de-classifying previous world records is one example of a sanction imposed to try to eradicate doping in sport by deterring athletes from doping (and it is the writer’s view that it sits at the extreme end of the spectrum). Similarly extreme (and arguably fanciful) actions include more vigorous and regular testing (possibly on a daily basis), housing athletes in sterile environments prior to events, or storing samples to await technology being available to show an athlete was drug free at an undefined point in the future (a more extreme form of modern “biological passporting”). Alternative deterrents include giving those honest athletes legal aid to challenge doping athletes in claims for losses of earnings and opportunity (on the basis they can prove they competed drug-free). Lottery funding could, perhaps, be refused to those athletes found to have committed doping offences, for example.

Alternatively, perhaps the idea of having two world records (rather than de-classifying previous records entirely) would be a better compromise. In 2011 the IAAF passed a motion changing the eligibility criteria so that women’s world records must be set in single-gender competitions. Thus, Radcliffe’s 2h 17m 42s performance at the 2005 London Marathon would override her previous world record from 2003. After strong protest, both marks now stand (although the former was surpassed this year at the London Marathon) as world records: “mixed gender” and “single gender” records.

However, just because a solution is arbitrary does not mean it is inherently unjustifiable: a line must be drawn in the sand somewhere. Few would dispute that the use of performance enhancing drugs (“PEDs”) by athletes to gain an unauthorised advantage over their competitors is a low form of cheating (possibly the lowest). Applying this view, a rigorous regulatory response to the problem of drugs in sport would seem to be justified, and the IAAF would be right to protect and preserve sporting integrity. However, the issue with the EAC proposals will likely come down to proportionality and/or plain injustice.

Exposure to breach of contract

Introductory wording to the Code contains the following statement: “Doping is fundamentally contrary to the spirit of sport”. Article 9 of the Code states that an anti-doping rule violation will lead to automatic disqualification of individual results. The EAC proposals, however, do not prompt a re-testing of all athletes pre-2005 to assess whether a violation has occurred (as stated, there are no samples to test); they simply brandish all performances before this date with a permanent mark of uncertainty because they cannot be officially ratified under modern doping rules and technologies. Placing modern credibility of a sport over and above the previous legitimate achievements of hard-working athletes to accomplish a ‘clean-break’ will be seen, by many, as unjust. Further, under common law jurisdictions worldwide, it is a well-established principle in civil proceedings that the party asserting the breach of contract must prove the breach, the loss and the connection between the two. The EAC proposals effectively grant the IAAF the unilateral right to reverse this burden of proof by claiming that because the athletes cannot prove they competed clean, their records should no longer stand as legitimate. This will expose both the IAAF and the event organisers to legal challenge should they pursue any affected athlete on the back of this change.

Removing world records from athletes may also expose the relevant athletes to commercial damages claims as major event organisers seek to recover prize monies paid to those who may now lose their medals. Under English law, any contracting party is entitled to recover reasonably foreseeable losses arising from a breach of that contract. Losses are calculated to put the affected party into the position they would have been had the contract been properly performed. The challenges of retrospective recovery faced by event organisers should not be ignored, and are discussed in a previous article written by Kerman & Co, published here.

On the other side, should the proposals be ratified and the world records stripped or de-classified in the manner proposed, affected athletes would be exposed to declining sponsorship and product endorsement income due to the resulting damage to their reputations as they will not be able to legitimately refer to themselves as the world record holder. As stated above, athletes would have strong defences against any event organiser who seeks to recover prize monies paid to them whose performances are now rendered “unofficial” by these proposals. Statutory limitation periods may also save a lot of these athletes from major financial penalties.

The IAAF must recognise, however, that it may only be able to go so far in pursuing its idea of a drug-free sport. Some commentators argue that the vision of a completely level playing field is a form of inaccessible utopia. Contractually, a fairer and safer approach for the IAAF might be just to let sleeping dogs lie in relation to results pre-2005, or have two records existing in parallel either side of this date.

Value of past precedent?

It is safe to say that the IAAF has a record of altering conditions or rules in athletics events. Take the javelin; in 1986 the IAAF’s technical committee modified the javelin by moving its centre of gravity forward by 4cm and increasing the surface area behind this point. The effect is that the javelin now turns into the relative wind during flight, reducing lift and thus the flight distance by around 10%. Manufacturer modifications to javelins to try to recover some of this lost distance (holes, dimples, rough paint) were forbidden in 1991. Consequently, any javelin records prior to these dates were nullified as it was deemed unfair by the IAAF that future athletes would not be able to break previous world records.

Most recently, Nike’s “Breaking2” world best marathon time of 2h 25 seconds (set on 6 May 2017) does not stand as an “official” record because it did not meet IAAF standards. This is because it relied on a rotating team of pacers who followed a pace vehicle displaying a race-clock that projected lasers onto the track to indicate where the lead pacer should be to set a world best time. Thus, it won’t count.

Prevention better than cure?

There will be many who consider that an anti-doping code that is punitive, rather than rehabilitative, will have a more positive effect on eradicating doping or PEDs. However, it may not need to be this way, as a mere doping allegation can be enough to cloud an entire sporting career. Positive PED tests can be fatal and instil significant insecurity in athletes (again, see Modahl [2001] referred to above), as once a positive result is established, chances of explaining away the results are remote. Consequently, a better approach by the IAAF and other governing bodies, would be to invest time, resources and cost in informative and educative anti-doping programs, particularly at grassroots levels, to preserve and uphold the spirit of sport (as described in the introduction to the Code).

The Code and its provisions are predominantly curative rather than preventative. Programs that inform participants on banned substances, health consequences of PEDs, doping control procedures and their rights and responsibilities as an athlete, would increase awareness and undoubtedly go some way to deterring athletes (especially young and aspiring athletes of tomorrow) from straying from the beaten track of integrity.

Who is to blame?

For those who hold a negative view of these proposals, this is one question you will undoubtedly seek answers to. Many [have been led to] believe that modern athletics is in dire straits, and that desperate times call for desperate measures (see the McLaren Report, referred to above). Athletes must of course shoulder some responsibility for the substances they ingest (see Maria Sharapova). However, their coaching, training and medical staff have a duty to advise the athlete correctly and lawfully, at all stages of their careers, so they too cannot be excused from blame.

Athletics federations and national teams also have a duty to the governing bodies and the event organisers to ensure that the athletes they select to represent them in major athletics competitions have complied with any IAAF rules and the Code. Whilst it may be asking too much for national teams to be held responsible for the integrity of its athletes, they can be reasonably expected to shoulder some responsibility when it comes to educating its athletes on the perils of PEDs.

Nonetheless, the IAAF will have a lot to answer for should it proceed to ratify the EAC’s proposals in their present form. A unilateral variation of event rules and applicable anti-doping practices with retrospective enforceability, more than 12 years after the event took place, is both contractually unlawful and competitively unfair.

At the very least, the IAAF should permit these pre-2005 records to stand, and accept that former technology and anti-doping procedures may not have been good enough, and apply these more stringent rules going forward. Failure to do so will tarnish the reputations of many athletes, several of whom are role models to millions worldwide, risk alienating many spectators (and consequently sponsors and broadcasters if viewing figures fall) and place added strain on the relationship between athletes and event organisers with the IAAF. Alienating stakeholders does nothing to enhance the profile of any sport, and governing bodies would be wise to introduce measures that balance their respective interests.

In the quest to eradicate doping from track and field athletics, part of the wider objective of rebuilding its integrity, ratifying these proposals may well be one step forward: In practice, it will more likely reveal itself to be two steps back.

[1] https://www.iaaf.org/news/news/european-athletics-records-plan

[2] Modahl v The British Athletic Federation Ltd [2000] https://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990722/modahl.htm

Players advised to ‘drop the attitude and get on with it’ by new FA conduct rules

The latest round of Premier League games at the weekend saw a number of controversial decisions by referees, most notably involving Stoke City manager Mark Hughes. Hughes (living up to his nickname “Sparky”) was sent from the dug-out for remonstrating about a decision, a sending off that he maligned was a result of Premier League attempting to protect its image abroad.

Nevertheless, Hughes cannot claim that he was not warned. Players, managers, coaching staff and clubs were given advance notice of the FA’s new conduct rules which came into force from the start of the 2016/17 season. In a move to improve player and manager discipline, which is intended to curb “unacceptable levels” of “intolerable behaviour” by players and managers alike, clubs are being advised to inform their staff that they must control their reactions to referees’ decisions without confrontation.

What is new?

The FA’s new rules list a number of new red and yellow card offences which will remain open to varying forms of interpretation by different referees in different games. From this season, “visibly disrespectful behaviour” to match officials, including aggressive responses, face-to-face confrontation and even running towards a referee or an official to challenge a decision, may result in yellow cards for the offending player or manager. Behaviour that is deemed “insulting or abusive”, whether by language or through gestures, and with or without “aggressive or confrontational” physical contact, may now result in a red card.

From the beginning of this season, it is hoped that scenes such as managers charging out of their technical areas or players surrounding referees will gradually disappear.

‘Conduct’ in sport

Football has, particularly in recent years, received a lot of criticism and negative publicity due to the actions of managers and players seeking to gain a competitive advantage by constantly challenging decisions by referees. This may have the effect of undermining the referee’s authority, which is something the FA is actively seeking to put right with these new rules (despite the interesting fact that not one player has been sent off in the English Premier League for “insulting or abusive language” in the last five seasons). Clearly however, that fact is more indicative of a lack of authority of referees to act on such matters (due to the prior absence of a robust mandate to crack down on such offences), rather than players behaving themselves.

The easiest comparison to make is between football and rugby. In the latter discipline, players rarely  outwardly confront referees or question decisions. To highlight how seriously this issue is taken in rugby, the most high profile recent case was Dylan Hartley’s red card for swearing at referee Wayne Barnes during the AVIVA Premiership rugby final in 2013 – a decision that ultimately had a major bearing on the outcome of the match that his team, the Northampton Saints, eventually lost. Such a high profile incident has not been seen in the game since.

Football players have often been criticised by teammates, club staff, fans and pundits for a hysterical reaction when decisions go against them; often likened to disgruntled teenagers or children who don’t get their way. Wayne Rooney famously received a second yellow card in a 2005 Champions League match against Spanish side Villarreal for clapping sarcastically at a referee’s decision that he disagreed with. In the short term, as Mark Hughes has found out, such incidents are likely to receive greater publicity as a result of these new rules until managers and players fully adapt to how these new rules are implemented by the officials.

Who will be affected?

Many pundits and fans consider that the modern professional football game is infected with foul-mouthed disobedience and overpaid prima donnas who simply cannot accept when they do not get what they want. To them, this move by the FA will be welcomed.

Others will bemoan the sanitisation of the game, where incidents happen in during fast and highly competitive football, resulting in the emotive passion that fans enjoy and demand.

What is guaranteed is that, for players and managers, this will place increased pressure on them to control their emotions during the heat of the moment; and, in a tightly contested match, this may be difficult and could result in game-changing consequences if a manager or player is dismissed as a result.

For referees, they must strike a balance between the strict interpretation of these rules and the spectacle of a game, which can often be ruined as a result of player dismissals.

Will anything actually change?

The FA hopes that these new conduct rules will prompt a major shift in player and manager attitudes, consequently improving the image of the game as a whole, and the images of players as ‘role models’ to younger fans.

The effectiveness of these new rules will depend firstly on how clubs, coaches and players approach them, and secondly how referees enforce them. There is certainly the potential for some games to reach farcical new depths if players are booked or dismissed from the field, for actions that were previously regarded as minor, such as waving their arms in a manner that is deemed “aggressive” or if they question a referee who fails to book a player for diving, for example.

Naturally, this will place added pressure on referees and likely increase the criticism they receive.

This is an example of a national governing body trying to manage an unfavourable trend that is giving the game a bad name. Whether these new conduct rules will have the desired effect remains to be seen. One thing is certain however, TV highlights programs and pundits will certainly be given fresh new content to discuss each week as Mark Hughes has found to his detriment.

How do you solve a problem like Maria?

What is the story?

Maria Sharapova needs no introduction. A Wimbledon champion at 17, she has become one of world sport’s highest earning athletes of the past decade. But earlier this month, she hit the headlines for the wrong reasons. It has transpired that Sharapova had, since 2006, been taking cardiac-drug Meldonium (commonly used to treat angina (abnormal chest pressure) and reduce a patient’s heart attack risk). This seems innocent enough.

However, notable scientific journals revealed that the substance demonstrates a number of performance enhancing qualities (such as increased endurance, enhanced exercise recovery rates and stress protection). This prompted the World Anti-Doping Agency (‘‘WADA’’), after investigation and testing, to add the substance to its List of Prohibited Substances and Methods (the ‘‘List’’) from 1 January 2016. WADA informed athletes (including Sharapova) of the changes to the List. But the athlete continued to take the drug and compete professionally, and has now publicly admitted to failing a drugs test in the Australian Open in 2016.

Despite the International Tennis Federation (ITF) finding that Sharapova “unintentionally” broke WADA’s rules, she received a primary two-year ban from competitive tennis, along with a number of other secondary sanctions. Predictably, Sharapova has appealed to the Court of Arbitration for Sport.

Did she have a defence?

One source quoted Sharapova as saying that she ‘‘did not know the substance was banned’’. But is this really possible today, in the age where ‘‘Google’’ is both a verb and a number and vast swathes of information is available at the click of a button? Anyone with internet access can find out (if you really want) what substances are on the List. WADA even operates a 24-hour hotline (for those who are especially keen).

We have also now been told that changes to the List were circulated to all athletes via email. On this basis, is it really anyone’s responsibility but your own if you fail to open an email containing important information that is sent to you? The sender can’t do much more to draw your attention to it.

Sharapova’s manager’s evidence (that he hadn’t taken his annual Caribbean holiday in 2016 when he would normally check the List) was comprehensively rejected by the ITF panel. Sharapova’s argument that she did not fully understand the requirement to disclose all medication taken on doping control forms (rather than only medication taken for the past 7 days) was also rejected. Also, the player’s assertion that WADA should have warned her that Meldonium had subsequently become a prohibited substance (because she failed a WADA drug test at Wimbledon in 2015 for Meldonium) was also rejected. Ultimately, it was her responsibility to check whether her continued use of certain medication was permitted, and her team’s job to explain to her what information the forms require if there was any doubt. Despite all excuses, the ITF found that Sharapova only had herself to blame.

In law, confession and admission of guilt are always mitigating factors with the potential to reduce any sentence. Claiming that the substance she was taking was referred to on the List under a different name (‘‘Mildronate’’) carried limited weight, but the fact that no-one in Sharapova’s team picked up on this did not help her case. Ignorance of the law cannot be a defence when you have the level of manpower and resources that Sharapova has at her disposal.

Who should take the fall?

Sharapova is PR savvy, and clearly thought that breaking the news herself (that she had tested positive for the recently banned substance) would be a way of managing the leak. But as one of world sport’s most marketable athletes (estimated to have earned US$20m from endorsement deals in 2015 alone), news of her error undoubtedly gave newspapers around the world fresh headlines (and they wasted no time in telling us all). Sharapova’s image will, therefore, suffer significantly.

Quite what Sharapova’s coaching team have been doing whilst this has been going on is unclear. Whilst her team perform a number of functions (from fitness to technique to public relations) a priority has to be the monitoring of the substances that she was putting in her body, which includes periodic reviews of the List. This should also have been high on the list of priorities given the doping scandals to have rocked world sport in recent years (for example, Lance Armstrong and Justin Gatlin together with a great number of Russia’s athletics team).

What next for Sharapova?

Almost overnight, the foundations of the players’ empire began to shake.

Sponsors (such as Nike, Porsche and Tag Heuer) wasted no time in announcing that they would be suspending their relationship with Sharapova. The speed at which sponsors moved to distance themselves speaks to something of a hyper-zealous brand management approach taken by international corporations (yet Nike still sponsor Justin Gatlin, so things maybe aren’t quite so cut and dry). Players will always risk losing a key sponsor (and significant income) if they act in a way that damages their own image or the image of their sport. Whether Sharapova’s guilty face would stop the author buying a pair of Nike shoes, or (if he could afford it) a Porsche is another matter. But sponsors cannot be seen to associate with banned or cheating athletes for risk of being seen to endorse or approve of such behaviour. Event organisers also take the same approach.

Sharapova has, to her credit, not tried to claim that something was slipped into her water bottle, or that she had kissed a third party who (unknown to her) had taken a banned substance (see Richard Gasquet case). However, her admission was not altogether clean. The ITF therefore had the freedom to impose anything from a fine to a lengthy ban, and with Sharapova’s current age (29), recent form (without a grand slam since 2014) and falling rankings, there is a chance her career may never fully recover.

So, first cycling, then athletics, now tennis….where next for sport?

World sport is, without question, facing a major challenge to its integrity (and rightly so). Competition is flawed if competitors cheat, or the outcome is biased. But doing so is viewed by other clean players as effectively sticking two fingers up at the sport and its values.

This is not the first time a major tennis star has been caught using a banned substance (see Andre Agassi in 1997 (crystal ‘meth’) and Richard Gasquet in 2009 (cocaine)). Whether or not it is the last time depends on how WADA acts in dealing with Sharapova, and whether or not athletes bother to pay attention to the List: no doubt the former will heavily influence the latter.

What can we learn from this?

For athletes, the message is simple – stay on the right side of WADA’s List, and employ a manager, trainer or physician who keeps up to date with any changes.

For event organisers, the key thing is to put distance between your event and any threats to sporting integrity. Tightening up on competitors by getting their consent to tighter doping controls (such as in competition entry forms) are steps in the right direction. Any costs of this will, however, have to be met by the event organiser.

For governing bodies, wider threats to sporting integrity brought by doping have to be dealt with from the bottom up. Support and awareness needs to be given to young athletes starting out on professional careers, and more should be done to eradicate agents, doctors or physios who seek to influence athletes toe the line.

For sponsors, brand protection is key. By ensuring all sponsorship or endorsement contracts have appropriate protections and exit rights (including refund rights), if your chosen athlete tests positive for a banned substance you can get out of the contract without being out of pocket.

For fans, the temptation is to lose faith in the integrity of sport. For every high profile failure, there are multiple fully compliant athletes. Once again, it is the actions of the minority tarnishing those of the majority. In this example one thing is certain: the problem is clearly not just with Maria.

Football clubs reminded to tread carefully when signing players under 24 on ‘free’ transfers

Clubs, managers and scouting teams casting eyes across the pitches of France for talent on display during the upcoming Euro 2016 Championships should think carefully, and budget accordingly, when considering approaching a player – particularly one who is out of contract and under 24. A recent decision of the Professional Football Compensation Committee (“PFCC”) between Liverpool F.C. and Burnley F.C. in relation to England striker Danny Ings has confirmed that signing players ‘out of contract’ does not always mean they will be ‘signed on a free transfer’. Players out of contract may come with a price tag even though they are not employed by a club at the date of transfer. This will serve as a sharp reminder to clubs seeking to sign players under 24 after their contracts expire, and as a warning to players who don’t wish to renew their contracts in order to secure a move elsewhere.

The ‘free transfer’ principle

Since 1995, it has been an established principle of the European football transfer system that players can move between clubs as ‘free agents’ (i.e. without any transfer fee for the player’s services) when their contracts expire. This became known as a ‘Bosman’ move (after the player, Jean-Marc Bosman, successfully challenged his club, the Belgian F.A. and UEFA in the European Court of Justice (“ECJ”)). The underlying principle was that it prevented clubs holding onto players after their contracts expired – a practice that did take place prior to the Bosman ruling. Bosman himself (who has been known as sport’s most famous ‘freedom fighter’) was unable to leave his club (unless another club was willing to pay for him and met his current club’s price tag), and consequently he was left in the reserves with a reduced salary and no chance of earning performance bonuses until someone else would pay the price his club wanted for him. The ECJ agreed that this was an unacceptable restraint of trade and the game’s transfer system changed significantly (rightly so).

Whilst this principle does apply to players and clubs operating in all leagues affiliated with UEFA, the rule operates slightly differently (and, more expensively) in relation to players under 24.

Underlying principles

Clubs spend significant sums of money (and invest time, labour and technology) to train and develop youth players and the academies they train in. FIFA, through its Regulations on the Status and Transfers of Players (the “FIFA Regs”) seeks to protect these clubs by granting them a beneficial interest in the value of the player up to the end of the season of his 23rd birthday. Under the FIFA Regs, a player’s training and education takes place between 12 and 23, and this beneficial interest is triggered each time a player’s registration moves between clubs, either by a transfer or on a ‘Bosman’ (as explained above) during this period. The FIFA Regs are implemented in England by the Regulations of the Football League or the Premier League Regulations (together, the “League Rules”), and have been enforced on a number of high profile occasions by the PFCC, notably involving Daniel Sturridge (between Man City and Chelsea) and now Danny Ings (Liverpool and Burnley).

Both the FIFA Regs and the League Rules make it clear that compensation is payable in the above circumstances, and clubs are aware of this. Compensation will, however, not be payable to a free agent’s former club where that club either agreed to a mutual termination of the player’s contract, or offered the player a renewed contract on less favourable terms than his original contract.

What is always more uncertain is the amount of compensation that may be payable.

Calculating compensation

Under the League Rules, clubs are given the freedom to reach an acceptable figure. Where clubs cannot agree, as was the case here and has been in other cases (such as the dispute over Daniel Sturridge between Chelsea and Man City), they can refer the matter to the PFCC.

Critically, there is no set formula. Quantifying a player’s ability and calculating their value to a club is a fine art. When adjudicating such cases, the PFCC considers:

  • the status of both clubs;
  • the money spent by the former club on acquiring and whilst training the player (such as training and medical facilities, travel, accommodation and staff costs);
  • the time the player spent at the club;
  • the terms offered to him by both clubs;
  • the player’s playing record (including international appearances); and
  • any substantiated interest shown by other clubs in acquiring the player’s services.

In this case, the PFCC (following examination of hundreds of pages ordered Liverpool to pay Burnley £6.5m, rising to £8m  – an amount far higher than Liverpool had initially wanted to pay, and is a record fee issued by the PFCC for a player moving clubs after his contract has expired.

An expensive reminder

This case provides a good example to remind all clubs and players of the principles of the transfer system, as set out in the FIFA Regs. In addition to the relevant employment laws that exist in the relevant country, a player under contract with a club can leave that club on expiry of the contract, or by mutual consent. Transfer fees effectively operate to ‘buy’ a club’s consent and permit the release of the player, who is then free to negotiate the terms of his future before his contract expires during the relevant transfer or registration window.

Alternatively, players can decide not to renew their contracts and simply leave their club after the expiry date, and can move to a new club operating within the EU free of charge (provided they are over 24) – the most recent high profile example being Zlatan Ibrahimović and the upcoming expiry of his P.S.G. contract. This was the principle that emerged following the Jean-Marc Bosman case of 1995.

For players under 24 seeking to secure free transfers, any new club they join following expiry of their previous contract prior to the end of the season of their 23rd birthday will have to negotiate a compensation payment with the player’s former club. Any payment will reflect the value of the player at the date his contract expired, based on the criteria listed in this article. Further payments may be due to any other former clubs at which the player was registered as ‘training compensation’.

For players under 24 who move clubs during their contract (for a fee), 5% of that fee must be distributed to all former clubs who contributed to the development of the player between 12 and 23 as a ‘solidarity payment’. The precise breakdown of how the solidarity fees must be distributed are contained in the FIFA Regs.

It is worth reminding players, clubs and agents that contracts between professional players and their clubs must be observed and need to be respected. It can be very costly to remove a player from their contract prematurely, or even after their contract has expired.

Renewed protection for broadcasters and rights holders of live sports content

Filming sports matches from a TV on a device and uploading the content to a website for others to access can infringe a broadcaster’s or licence holder’s copyright; a recent decision of the High Court in England & Wales has confirmed. This will have significant implications for, and increase confidence to, and protection for, sports rights holders (including broadcasters and event organisers) who licence and pay substantial amounts to broadcast live sports content to audiences around the world.

Broadcasters spend vast sums of money (and invest time, labour and technology) to film or produce live events (by providing ancillary commentary, replays and multiple camera angles). They recoup some of this outlay by charging viewers subscription fees to watch the game. Consequently, it is easy to agree with the court that any website or online application that permitted uploads of near-live footage of such events so that they can be viewed for free by other users of the platform should be prevented from doing so as it would threaten the commercial rights of, and the investments made by, event organisers and broadcasters.

However, it is not always this clear cut. In this case, the website ‘Fanatix’ created an application that allowed users to upload short clips (of up to 8 seconds in length) that they had filmed of live broadcasted sports footage, and allow other users of the website to search for clips of their team or a specific event or match (based on the tags or keywords placed on the clip by the uploading user).

The design for the Fanatix product centred around exploiting a ‘‘fair dealing’’ defence to copyright infringement. This exists where the purpose of showing the content is merely to ‘‘report current events’’. Indeed, this is why TV channels can show match highlights during news bulletins and such a practice is recognised as being legitimate and, as such, has been cemented in the Sports News Access Code of Practice. The market for short-video sharing of critical match content (such as wickets, tries, goals, etc.) through social media is vast. The way content is consumed (on demand and in public using 4G and wi-fi networks) drives the market for near-live short-videos that give fans the best of the action at the click of a button. Fanatix consequently sought to exploit this (and indeed the numbers of website users and clip viewers led to significant advertising revenue).

The court heard that Fanatix considered it could get away with such an offering because it believed that its service and practices constituted ‘‘fair dealing’’ for the purpose of ‘‘reporting current events’’ (as explained above, a defence used by current TV news broadcasters), illustrated by the facts and opinions that:

  • 8 second clips did not amount to a ‘‘substantial part’’ of the rights holders’ copyright, and that the vast majority of the match coverage was not exploited;
  • fair and proper acknowledgement was (in most cases) given to the broadcaster and rights holder (i.e. Sky) in each clip (as filming from a TV would of course include any logos and trademarks that featured on the broadcast);
  • the app restricted the number of times users could view and upload clips and the footage would only be transmitted for 24 hours (thereby allegedly limiting the extent of the exploitation); and
  • the clips merely ‘informed’ the public of the day’s events and therefore the website/app functioned merely as a neutral data processing service (similar, in that sense, to a search engine).

The legal challenge in this case was brought by the England & Wales cricket board (relating to clips of cricket matches uploaded by users) and Sky UK (who broadcast the matches) who successfully argued against all of the above. Notably, it was decided that:

  • given the significant market that exists for critical match content, the fact that the clips were only 8 seconds in length did not matter, as it was this critical content that was uploaded (rather than 8 seconds waiting for a golfer to tee off or for a kicker preparing to take a conversion);
  • the quality of technology (such as smartphone cameras) allowed users to upload sports content that did not substantially differ from the quality of the broadcast itself;
  • Fanatix did not do enough to ensure that each clip gave fair and proper acknowledgement to the broadcaster and rights holder;
  • the usage restrictions merely limited the extent of the use, rather than the basic purpose of the use (which was entirely commercial as evidenced by allowing advertisers to hijack content before viewers could access the clip); and
  • by providing terms of website use, giving general information to users and receiving advertising revenue for the product, Fanatix went substantially further than a neutral data processor or search engine.

Whilst this may offer some room to manoeuvre for those who wish to upload and host content, the above points significantly erode any potential market for that content (as clips would need to be of largely insignificant aspects of the match, of poor quality and covered in acknowledgements of copyright ownership and viewing access would have to be heavily restricted to avoid infringing copyright).

It is therefore clear that distributing user-filmed, on-demand and near-live sports content (from a broadcast as opposed to within the stadium or from the sidelines), for a purpose that is not simply to inform the public of the day’s events (as is done with a news channel) will infringe rights holders’ copyright. This will give renewed protection to rights holders who invest significant time, labour, technology and money into bringing live sports content into pubs and living rooms around the world. Consequently, this will protect the revenue streams of event organisers who licence the broadcasting rights for their events (had judgement in this case gone in favour of Fanatix, the value of those contracts could have significantly fallen).

For individuals who film such clips from broadcasts and upload them to online content sharing platforms (such as YouTube), this case confirms the position that such clips will likely infringe copyright resulting in the removal of offending clips and the suspension of infringing accounts.

It is, however, worth pointing out that English law does not recognise the existence of proprietary rights to a sports event per se. In this jurisdiction, the rights that arise in events, spectacles and performances arise under copyright and its related rights (such as performers’ rights) but English copyright law does not recognise a sporting spectacle as a dramatic work in which copyright may arise. This is the reason why certain websites (such as Vine or YouTube) are able to contain countless short-clips of sporting events filmed by spectators at the event. Otherwise, the main way for the event organisers to seek to prevent the unofficial collection and distribution of data and footage is to control access to the event and impose a condition in the ticket terms and conditions that states that, other than for private and domestic use, any persons attending the event must not record or transmit over any media (including internet, radio and television), any sound, image or recording the event. The ticket terms and conditions form a binding contract between the event organiser and each spectator and the event organiser could therefore rely on the remedies available for breach of contract should the attendee violate any such condition.