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A B C D E F G H I J K L M N O P R S T V W Y

Sports Law

Firmino cleared by The FA
Wednesday 28th February 2018

The Liverpool Derby on 5 January 2018 may seem a distant memory, especially for Everton fans who probably wanted to quickly forget their ousting from The FA Cup third round by their cross city rivals. The FA on the other hand have been deliberating over an incident in this match for over 6 weeks, and it shows how seriously The FA continue to take allegations of discrimination.

Everton’s Mason Holgate made an allegation that Roberto Firmino had used a discriminatory term against him after the Toffee was a little over-zealous in a tackle that ended with Firmino in the front row of the crowd at Anfield. Holgate followed the necessary procedure and alerted the match day referee and fourth official. The allegation was escalated following the match and The FA launched a full and comprehensive investigation.

This review included interviews with Firmino and Holgate themselves plus 12 other players and officials who were present for the incident. The FA went further too, and employed the services of two Portuguese lip reading experts who examined footage of the incident from different camera angles and Portuguese linguistic experts to give detailed advice on the words allegedly used by Firmino.

During a formal interview with The FA, Firmino admitted insulting Holgate in Portuguese but denied that he used a discriminatory word. The FA found on 21 February 2018 that, “having considered all of the available evidence, we consider it is not sufficient to raise a charge against Firmino.”

Firmino’s manager, Jurgen Klopp, has since publicly praised the midfielder for the way that he handled the lengthy investigation. Indeed The FA has praised all parties for their conduct throughout their review and confirmed that they were satisfied that Holgate brought his claim in good faith with no suggestion of an “intentionally false or malicious allegation”.

This is not the first time this season that The FA have taken such an approach. On 8 February 2018, Jay Rodriguez of West Bromwich Albion was charged by The FA after a 3 and a half week investigation into allegations that he racially abused Brighton’s Gaëtan Bong. Rodriguez is currently preparing his defence to the charges but it is safe to assume that we can expect to see this thorough and comprehensive approach by The FA  moving forward.

It will be interesting to see how FIFA handles any allegations of discrimination at the World Cup in Russia this summer. They have faced criticism for the disbandment of their “Anti-Racism Taskforce” in September 2016, declaring that it had “completely fulfilled its mission”. FIFA will instead be relying on their new anti-discrimination monitoring system and the launch of their “Good Practice Guide” to maintain standards at the event. Many will be watching with interest to see how these are implemented on football’s grandest stage.


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The new Code for Sports Governance has high uptake in its first year
Thursday 25th January 2018

Sport England and UK Sport have revealed that out of the 58 national governing bodies for sport involved with the implementation of the new Code for Sports Governance (“the Code”), 55 have already met all of its requirements. These requirements are considered to be the most advanced in the world and cover important changes designed to increase transparency and diversity in UK sport whilst also ensuring that each sport’s governing body board has ultimate decision-making authority rather than local councils.

It is expected that that the three remaining sports organisations involved will be Code compliant by April 2018 in what has been described by Sport England as “one of the most advanced and large-scale governance reforms in the world”.


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Landmark European Commission decision could impact sports sector globally
Wednesday 3rd January 2018

In a significant ruling which has the potential to affect all international sports federations, the European Commission (EC) issued a decision on 8 December 2017 stating that the penalties imposed on athletes by the International Skating Union (ISU) are unlawful under EU competition law.

Since 1998, the ISU eligibility rules have provided that speed skaters who participate in competitions which have not been approved by the ISU face severe sanctions, including a possible lifetime ban from all international speed skating events (at the sole discretion of the ISU). The EC decision stemmed from complaints by two Dutch speed skaters, Mark Tuitert and Niels Kerstholt, after they were deterred from entering lucrative South Korean Ice Derby events by the ISU’s severe sanctions.

The EC’s decision highlighted three main points from its investigation:

1.     The ISU has absolute discretion to impose these penalties, even where there is no risk to legitimate sports objectives (such as the safety of participants or the integrity of the sport);

2.     The restrictions allow the ISU to pursue its own commercial interests to the detriment of athletes and other event organisers (in particular, athletes may be deprived of additional income from independent competitions); and

3.     The rules prevent independent organisers from arranging their own competitions, as they would be unable to attract top athletes.

Generally, such sporting rules will be compatible with EU law provided that they pursue a legitimate objective and any restrictions are inherent and proportionate to that objective. However, the EC views the restrictions imposed by the ISU as disproportionately punitive; if similar restrictions are to be maintained they must be transparent and non-discriminatory, and not intended simply to exclude competing event organisers.

The ISU issued a statement in response to the EC’s decision, rejecting the EC’s “commercial” approach and stating that the rules exist for the safety of participants and integrity of the sport. The ISU argues that it should not be forced to allow skaters to participate in competitions where the organisers refuse to adhere to its standards, and points out that it does in fact authorise independent competitions as long as they agree to comply with its rules.

The EC decided not to impose an immediate fine alongside its decision, but the ISU now has until 8 March 2018 to amend or abolish its eligibility rules to comply with the EU competition rules, otherwise it could face daily fines of up to 5% of its average daily worldwide turnover. The ISU has stated that it intends to appeal the decision through the European courts.

While the EC’s decision only applies directly to the ISU, it could have a profound effect on sport governance globally. Many international sport federations and organisations have constitutions with event sanctioning provisions similar to those of the ISU, and have enjoyed a long period of exclusivity over the conduct of sporting events and the participation of athletes; this decision could set an important precedent for future decisions both within the EU and outside Europe.


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Reinforcing, crossing, and transcending borders: Soccer in a globalised world
Tuesday 24th October 2017

After acting for Evangelos Marinakis, owner of Greek footballing giant Olympiacos, on his acquisition of Nottingham Forest in May, I was fascinated to receive a very kind invitation to attend his Greek club’s joint conference with Harvard Business School in Athens in September. The tantalisingly entitled conference looked at a wider-angle of social impacts football has and could have in “the global village” from global fandom to helping to raise aspirations in areas of Africa like Ghana, to the plight of refugees fleeing into Europe and football as a tool to inspire and promote female confidence, participation and equality.

The academic excellence on show throughout the conference was immense, but the lasting memories for me were three aspects of the opening night dinner at the Acropolis Museum overlooking the Parthenon in Athens.

The cradle of democracy and civilisation was a fitting setting for the official launch of the Athens Principles on the Right to Participate in Sport (see link attached), the fantastic work of the Greek people through the football club to help the most vulnerable refugee communities fleeing into that part of Greece and finally the humble address given by Senator George Mitchell (who was a key architect of the Northern Ireland peace process).

The key theme across these three elements was that power and influence in whatever field (be it football, any other sport or indeed in the world generally) brings with it an obligation to use that power and influence with a humble and liberal attitude and as a force to help chip away at the world’s injustices.


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Divorce with 2.2million Twitter followers
Wednesday 18th October 2017

Social media is undoubtedly now very much a part of daily life and as family lawyers we have seen an increase in the influence Twitter, Facebook and Instagram is having on the breakdown of relationships and divorce proceedings.  For those in the sporting public eye this can lead to very personal matters being played out in front of millions of ‘followers’. 

The separation of boxer Amir Khan from his wife, Faryal Mahkdoom, for example has become a very public dispute with Khan having around 2.2 million Twitter followers.  Both active Twitter users have used the platform to voice their views on their relationship; from Mahkdoom often publicising the fact that she does not have a good relationship with Khan’s family to various allegations of cheating and of course Khan stating that he only became aware of his wife’s pregnancy through social media.  Others have also become embroiled in their social media feud, most notably fellow boxer Anthony Joshua who was accused by Khan of having an affair with Mahkdoom.  Khan later apologised to Joshua after apparently realising that he was mistaken.  

What is clear is that any divorce petition based on ‘unreasonable behaviour’ may well include a number of references to social media posts and this is becoming increasing more frequent in divorce proceedings.  Most recently, Khan is reported to have snubbed an olive branch apology made by Mahkdoom (again on social media) to his family in the hope of a reconciliation. 

Khan is believed to have a net worth in the region of £20million and could still go further in his sporting and media career.  Financial matters are seemingly yet to be resolved, meaning there could be many more Tweets to come in this process if an agreement cannot be reached.  How assets will be divided will depend on a number of factors listed in the Matrimonial Causes Act, but the court would start by looking at an equal division before deciding whether to depart from that for any particular reason.  In addition, the pair have a young daughter and a second child on the way, so arrangements for the children will also need to be resolved as Khan has repeatedly expressed on social media how much he missed his daughter. 

Although social media has led to a rise in traditionally private disputes sometimes being aired in a public forum, we at Brabners recognise that the divorce process is personal and understand the importance of discretion.  Family court proceedings are of course private and we are regularly involved in taking additional preventative measures in the court process to avoid details being disclosed publicly where this is a concern. 

For more information on how we could assist following a separation or divorce please contact a member of the Brabners family team

 


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‘Tapping-up’ in Football Transfers: Rules and Reality
Friday 8th September 2017

After months of seemingly relentless media coverage, the latest ‘window’ in which professional football clubs are permitted to complete player transfers closed last week.  Looking back, this summer’s window was notable for a number of reasons.  Understandably, the record-breaking sums of money spent by clubs once again caught the eye of many – it is estimated that, buoyed by the ever-increasing revenue from television deals, the twenty English Premier League clubs alone spent in excess of £1.41bn on transfer fees during the window.

Aside from the numbers, a significant amount of media coverage during the latest window was afforded to another increasingly common feature of football transfer dealings – the occurrence of a series of (often prolonged) transfer-related disputes arising between ‘want-away’ players (and their suitor clubs), and their current employers.

In such situations, questions naturally arise as to how players (and indeed the media) become aware of the interest of a suitor club in a player, apparently before the targeted players’ current club has received any contact from the prospective purchaser.  This on occasion leads to complaints that suitor clubs have made informal and/or improper approaches to the player (or, more likely, the players’ agent) before contacting that players’ current club to establish whether or not the current club would even entertain transfer negotiations. 

Perhaps the most widely-reported example of such a situation during the latest window arose in June, when several newspapers carried stories that, following discussions with representatives from Liverpool FC, Southampton FC’s Dutch defender Virgil van Dijk had decided that he wanted to leave his current club and sign for Liverpool.  Southampton made a complaint to the Premier League, claiming that there had been no formal contact between the two clubs, and accordingly that Liverpool’s approaches had been improper.  This prompted Liverpool to issue a statement in which they apologised for ‘any misunderstanding’ caused, and that they had formally dropped any interest that they had in signing the player.

Approaches such as those complained of by Southampton are commonly known as ‘tapping-up’, and are expressly prohibited under Regulation 18.3 of FIFA’s Regulations on the Status and Transfer of Players, which states that where a club intends to sign a player who is under contract, they must notify that players’ current club in writing before entering into any direct negotiations with the player.  If English clubs were in any doubt as to the applicability of the rules to the English leagues, this general prohibition on ‘tapping-up’ is clearly replicated in both the Premier League Rules (at section T.3) and in the English Football League Regulations (at regulations 63.1 – 63.2).

However, despite this prohibition, it is evident that the ‘tapping-up’ of players by clubs continues to be a relatively common feature of the transfer market in football.  Indeed, Peter Coates (the Chairman of Stoke City FC) speaking in the Guardian newspaper recently described the process of ‘tapping-up’ players as being so common that he considers it almost part of the “fabric” of the transfer process.  Going even further, Mike Rigg, a former sporting director at Manchester City, QPR and Fulham, recently told the BBC that “if FIFA were to examine every breach [of the ‘tapping-up’ rules], they'd have to investigate 99.9% of transfers”.

Clearly then, the reality of the situation presents a dilemma to football clubs engaged in transfer activity, who must be careful to strike a balance between complying with the strict rules which govern transfers, and managing to remain competitive in the modern market place.  Clubs are advised to respect the regulations which govern transfer activity, and to be aware of the potential consequences of breaching such provisions.  From a legal perspective, both The FA and the Leagues are able to impose sanctions upon clubs which are found guilty of non-compliance (which can include fines and registration bans).  From a commercial angle, clubs should take into account the potential that ‘tapping-up’ has to damage their existing relationships with other clubs - see the potential breakdown of the previously close and mutually-beneficial relationship between Liverpool and Southampton following this summer’s ‘tapping-up’ allegation  as evidence of this.


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Common Goal – Where are the players?
Tuesday 5th September 2017

Streetfootballworld, a Berlin based charitable-organization, has launched a campaign fronted by Manchester United maestro Juan Mata under the name ‘Common Goal’ with the aim of creating a team of XI footballers all pledging 1% of their salary to charity.

In Mata’s words, the underlying aim of the campaign is to make football “a tool for social change”. Whilst, the initiative is commendable, some consider it to be long overdue given the unprecedented rise in the revenue associated with football in recent years.

What is slightly disconcerting, however, is the lack of take-up in this initiative and at the time of writing, Mata finds himself playing in a team with just one other player, Mats Hummels of Bayern Munich. Many commentators have even cited the 1% figure as miserly in the context of the weekly salaries of many footballers, which regularly exceed £100,000 a week.

Whilst there is a temptation to criticise, it should be noted that for many people charity is a private thing and the most charitable and altruistic acts are those where no praise or public admiration are to be gained. It would be presumptuous to assume that Mata and Hummels are the only footballers who have taken the time to stop and notice that there are people less fortunate in the world and are trying to do something about it. 

Many footballers have indeed set up their own charitable foundations with diverse objects and these have achieved varying levels of success. Jamie Carragher’s “Carragher 23 Foundation” has been a recent success story – set up in 2010, the Foundation’s aim is to support the youth of Merseyside by combining with local charities, clubs and community initiatives. The Foundation has grown since its inception and now has global reach, with involvement in countries such as USA, Singapore and Poland.

At the other end of the spectrum, it is disappointing to hear that charities set up by Glen Johnson and David James have recently joined the list of footballer charities that have been liquidated. The media exposure and ability to call on supporters, and of course teammates, to get behind initiatives can help propel a fledgling charity and ensure that it raises initial capital to kick-start other schemes. However, a lack of experience in the sector often coupled with a failure to establish a proper administration will often lead to the eventual decline of such charities and it is important to fully consider the structure that needs to be put in place at the outset to give the greatest chance of success.

If you would like to find out more on the topic, please contact Daniel Finn or a member of our Sports or Charities team.


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Support a team that might actually win
Friday 25th August 2017

Channel 4 built anticipation for the Women’s Euros with the tongue in cheek tagline "Support a team that might actually win..." And that’s exactly what 4 million members of the British public did when they tuned in to watch the Lionesses semi-final against Holland.

Although the Lionesses lost 3-0, they raised the interest of a nation still hurting from the Men’s efforts last summer. What was perhaps most exciting about the tournament is that many of the top players, not just for the Lionesses but from across the continent, play their club football in the UK Women’s Super League.

If you look only at the final between The Netherlands and Denmark, a number of the stand out players can be seen in action for Arsenal, Liverpool and Manchester City. The hope is that the success of these Euros will draw bigger crowds to the women’s game. Bigger crowds means greater sponsorship opportunities and in turn more funding for training, facilities and youth programs that will all help develop the sport.

Whilst a number of the Premier League clubs have invested heavily in their women’s teams, some high profile clubs are still notably absent from the Women’s Super League. This reflects the commercial reality that the Women’s game is still lagging in support, sponsorship and exposure. 

The FA is working on this and has this week confirmed they will bid for the Women's European Championships in 2021. In the words of The FA Chief Executive Martin Glenn:

"UEFA share our ambitions to grow the women's game and we believe that together we can host a tournament that would celebrate women's football as well as inspiring the next generation and creating lasting opportunities for all."

Nonetheless, the interest in commercialisation of Womens’ football is growing at a fast pace. Commercial and professional (and not so professional) third parties are attempting to get a piece of the financial pie in this evolving market-place. Clubs, players and their advisors should consider taking the appropriate legal advice before entering into any commercial agreement (which may include licensing and endorsement agreements and contracts with third parties for the provision of professional services (including agents)). Brabners’ specialist Sports Sector team is well placed to advise and support clubs, players and their advisors and to share its experience, industry insight and perspective. Please do not hesitate to contact one of our dedicated team members.

We will be watching with interest to see whether the success of the Euros 2017 will be reflected in greater attendance at Women’s Super League games and investment in the sport over the next 12 months. It remains to be seen whether the the Lionesses can  be the team that “actually wins” at the World Cup in France in 2019.


 

 


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Integrity and Sport
Thursday 10th August 2017

It seems unsurprising that many people who love sport have resorted in recent times to exclaim ‘sport has lost touch with reality’ or ‘sport is just about money’. These hyperboles often derive from a fear that what makes sport great (a concept inherently personal to every fan) is slowly being eroded away through excessive financial gain.

A stark example is the upcoming ‘boxing fight’ between the boxer Floyd Mayweather and the UFC fighter Conor McGregor. While both are highly decorated champions in their respective disciplines, their upcoming fight is increasingly becoming a symbol of the pursuit of money as the pinnacle of sporting success. This has led the two individuals to new levels of ostentatious behaviour during their respective promotion campaigns. Such behaviour far from being ridiculed, will result in  them both being lavishly rewarded. It begs the question whether their boxing fight is simply a ‘money making exercise’ as opposed to a ‘sporting event’. The Neymar transfer saga is a further example where the pursuit of money has appeared to override sporting logic.

In contrast, we have the humble cricketer Moeen Ali. In the centenary test at the Oval he become the first English spinner to claim a hat-trick for 79 years. In the process, he became only the fourth bowler in history to seal a test victory in such dramatic fashion. This was then followed up by a man of the match performance at the Old Trafford test which led former England test captain Nasser Hussain to conclude that Moeen is ‘arguably England's number one player at the moment’. Yet, it is not just his spin bowling (which has helped plug a dearth of such bowling in the English game), nor his audacious batting, but his humility which has helped him gain so many admirers. This is because away from  the pitch he has shown a determination to use his cricketing skills to promote racial harmony and social mobility. Moeen also exudes a love and respect for the sport which has provided him with so much.

Sport holds a unique place in society, balancing a concoction of entertainment, social responsibility, unbridled passion and hard profit. All those in sport have a responsibility to ensure that this pursuit of hard profit does not come at the ‘cost’ of all the more intangible, but equally important facets which sport represents, and which all sport fans love. Do you believe   we have come to a point where the hard profit element has become overwhelming? 

If you would like to find out more on the topic, please contact Joshua Oxley or a member of our Sport team


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Virgil van Dijk submits transfer request: What does it mean?
Tuesday 8th August 2017

From a legal perspective, a ‘transfer request’ (a formal and open statement that a Player wants to terminate his Player Contract early) could be treated by a Club as an anticipatory breach of contract, entitling that Club to accept that breach of contract, terminate the Player Contract and pursue the Player (and possibly any Club that enters into a new Player Contract with him/her) for the appropriate damages. However, from football and commercial angles, a transfer request means something completely different. In reality, and notwithstanding the additional protection afforded to the Player Contract relationship pursuant to the FIFA Regulations relating to ‘contractual stability’, a Club is unlikely to terminate the Player Contract after receiving a formal transfer request from a Player.

The transfer request is an open and clear statement of intent by a Player that he/she no longer wants to be at that Club. Its impact is likely to be nothing short of a physical (for example: a refusal to train or even play) and psychological divorce between the Player and the Club and its fans. In the likely event of a future transfer the Club will no doubt use the transfer request as a legal argument to refuse to pay any future unpaid contractual payments due to the Player (for example loyalty bonus payments or unpaid signing on fee instalments). However, if a Player is on the verge of a big money move then it is unlikely that this will be a major factor for the Player and his/her advisers. The significant impact of a transfer request is that there is now no doubt as to what the parties’ intentions are. There is no more ‘paper talk’, no more ‘agent talk’, there is a Player wanting to leave and a Club refusing to sell. The pressure that the unwilling selling Club will face is now likely to increase significantly. The fans, fellow players and club staff will be applying pressure to the Manager and the decision makers to sell a Player ‘who does not want to be at the Club’ and an unsustainable toxic environment will likely be created. The buyer Club will know this and may even reduce and / or withdraw its previous offer.

It’s now a game of poker. How long will a seller Club hold out for the transfer fee it wants and how long will a buyer Club hold out until it meets those expectations, which will no doubt shift as the transfer deadline draws nearer. It’s not only a question of money, the seller Club will want to get a replacement player (or players) in quickly and the Manager will want to be working with that player (or players) on the training ground as much a possible before the next game.

Despite the legal position likely being different from the football and commercial positions, the impact of formally submitting a transfer request can be significant. Brabners advises Clubs, Players and Intermediaries on a range of legal, regulatory and commercial issues during a busy transfer window and can help advice a party, who may be faced with a similar scenario, to formulate a sound and appropriate strategy from a well-informed position.

If you would like to discuss this or any other related matter further then do not hesitate to contact a member of our Sports Sector Team.


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