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Fair Use, GIF’s, and the NFL

December 15, 2015

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By Kelly Melnyk – Thompson Rivers University JD Student

Reproduction of a broadcast in a private dwelling is not seen to infringe copyright. However, when the broadcast is seen to be made to the public, an infringement of copyright occurs. The problem facing the sports arena is the increased use of GIF’s, images and short clips pulled from a game that is shared among Internet users. These images can then be edited to be used for other purposes. For the NFL, use of GIF’s by other media outlets has created a challenge to fair use in copyright.

The American framework for fair use, 17 US Code § 107, is similar to that of the Canadian Copyright Act, RSC 1985, c C-42, s 29, fair dealing exception to copyright. Both pieces of legislation allow for copyrighted work to be reproduced for the purposes of criticism, news reporting, research, education, or parody and satire. In theory, a person could take a clip from a TV show and reproduce it without infringing copyright so long as the use is for one of the allowed purposes under the respective countries legislation.

The use of NFL GIF’s by Deadspin and SBNation demonstrates the challenge that new technology is creating for the realm of fair use in America. The GIF’s are small clips of a play from a league game and have been posted under the fair use policy, potentially falling under the category of news reporting. The NFL did not agree and requested that the Twitter accounts be closed and material taken down.

While this matter is still being decided, it raises an interesting question. If a two second GIF or 20 second vine highlighting a play is not considered to be fair use, then should not every sports reporter using a clip of the game also be receiving a take-down notice? There appears to be an arbitrary line being drawn between the use of a clip on a news broadcast and a GIF highlighting the same play.

The amount of revenue generated by broadcasting licenses is huge and obviously the NFL is not unaware of this. However, the use of copyrighted work for one of the purposes outlined in the legislation does not infringe copyright and showcasing an amazing play could easily find itself in the news reporting category of the American statute.

As the mediums used to deliver broadcasts increasingly diversify, the method in which news of plays, injuries, trades, or incidents on the field will also expand. It has become easier and much more commonplace for the average fan to take clips and images and disseminate them with rapid speed, just as Deadspin and SBNation have. Creating a “meme” or GIF from an exciting clip or image can be done by anyone with access to a computer, potentially making themselves a target of organizations like the NFL.

The highly public nature of professional sports has been greatly regulated by the private industry for the majority of the history of sport. However, as noted above, technology has been breaking down the walls that the private industry has built. The possibility of fans and alternative media outlets accessing the exclusive content is very much a reality, challenging the formal agreements for rights to broadcast or control the images. The use and dissemination of GIF’s by Deadspin and SBNation highlight the gap that the NFL thought they had filled by maintaining an official NFL Twitter account to control the use of GIF’s.

Shan Wang noted in her October 13 2015 article, “Fair use or copyright infringement? Deadspin and SB Nation get tossed off Twitter for NFL GIFs” that the NFL should look to the benefits created by further dissemination of a great play by other accounts and I would agree.

Creating greater awareness of something amazing that happened in the game last night through Deadspin could easily drive fans to find the full story through the traditional media sources that hold those exclusive rights. Fair-weather viewers may find themselves wanting to watch games more regularly to avoid missing the next great play. Rather than shutting down the site, organizations should build on the publicity being built and encourage a cooperative relationship with the alternative source. By working collaboratively, the NFL could benefit from reproductions and increase their audience from the followers of Deadspin and SBNation.

 

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FIFA Considers Move to Winter for Qatari 2022 World Cup

October 4, 2013

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By Chelsea Dubeau – Thompson Rivers University 2L JD Student

In 2010, FIFA, the international governing body of football, awarded the 2022 World Cup to Qatar. The agenda on this week’s meeting of the FIFA Executive Committee meeting is a discussion of the “period of the competition” of this event.

According to the FIFA Statutes, the Organizing Committee follows a “fair and transparent bidding procedure” with “the objective of securing the best possible hosting conditions.”The temperature of Qatar in the summer can reach up to 50 degrees Celsius, prompting concern from the FIFA medical chairman.In the interest of safety for all participants, FIFA is considering moving the month-long tournament to the winter. FIFA’s upcoming decision is unprecedented, as the World Cup has been held during the months of May through July since its inaugural event in 1930.

Football Federation Australia (FFA) recently declared their intention to sue FIFA if the games are officially moved to the winter.Australia was one of the unsuccessful countries that lost during the 2022 bidding process. According to FFA Chairman Frank Lowy, the Australian bid was put forward according to the FIFA requirement that the tournament must occur in June and July. Thus, their bid was put forward under false pretenses.

FIFA has responded to the FFA allegations by saying that the Committee is acting within its governing authority. FIFA’s President, Joseph S. Blatter, has stated that all bids were put forward under the same Bid Registration Agreement, which does not outright say that the games must take place during the summer.Therefore, FIFA does not owe Australia compensation, nor will they owe any other party affected by the move.

FIFA is relying on issues of interpretation. As the Bid Registration Agreements have not been made public, the exact terms of the contract are unknown. However, Blatter has stated that the Agreements refer to FIFA’s wishes for the event to occur in summer, not that the event must be held during this time. As such, no representations were made by FIFA that the World Cup is only a summer event.

If the FFA decides to pursue their legal challenge, it will be up to the courts to rule whether FIFA’s interpretations of the Agreements fit within a fair and transparent process. FIFA’s choice to rely on semantics is questionable, and this argument may not succeed in a court of law. Every tournament in the history of the World Cup has occurred in the summer, and the upcoming events that have been scheduled uphold this tradition. The logical conclusion of a reasonable person, or in this case a reasonable bidder, would be that FIFA intends the games occur in the summer, even in absence of the word ‘must’ in the document.

In addition to the FFA, there are many other interested parties that may pose a challenge for FIFA and the Executive Committee if the decision is made to move the World Cup to the winter. The move will interfere with the season for the European leagues, and the IOC has expressed concerns related to the timing of the Winter Olympics.

FOX Sports won the American broadcasting rights to the 2018 and 2022 World Cup, paying over $1 billion for the deal.Due to the fact that it has never happened before in the history of the event, it is not likely that FOX considered the change that the broadcast could happen in the winter. With this change, it is now possible for the month-long event to interfere with the NFL schedule, and it could even overlap with the Superbowl. Would FOX have put forward such an impressive bid, knowing that it would be competing for viewers against the most-watched sporting event in the United States? It would not be surprising if FOX proceeds with an action based on a misrepresentation of the contract. FOX can assert that they were induced to enter the contract based on an untrue representation that the event would occur in the summer.

While the decision has not yet been made to move the World Cup, it is clear that there are multiple considerations that FIFA must keep in mind before the final decision is made. Regardless of the outcome, one can expect that this will not be the only challenge faced by the Committee leading up to the 2022 World Cup.

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Is Sepp Blatter the new poster boy for “sports law”?

November 18, 2011

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Photograph licensed by Agencia Brasil under the Creative Commons Attribution 2.5 Brazil license.

In recent days it has been difficult to avoid the furore surrounding Sepp Blatter (President of FIFA)’s recent comments concerning what he sees as the new approach to treat racism in sport:

“I would deny it. There is no racism.  There is maybe one of the players towards another – he has a word or a gesture which is not the correct one. But the one who is affected by that, he should say that this is a game. We are in a game, and at the end of the game, we shake hands, and this can happen, because we have worked so hard against racism and discrimination.”  (http://www.guardian.co.uk/football/2011/nov/17/sepp-blatter-fifa-racism-rio-ferdinand?newsfeed=true)

In the current UK climate where two high-profile premiership footballers are currently being investigated by The Football Association over, as yet unproven, allegations made against them of making racist comments (which both players vehemently deny), Blatter’s recent interview is at best ill-informed, at worst it represents an attempt to trivialise and condone racist language.

Many players (current and former), pundits, administrators and politicians have rightly come out and strongly condemned Blatter’s comments, however until the commercial sponsors also seek to distance themselves from FIFA, I fear that the status quo will continue and this will not be the last controversial statement emanating from FIFA house. After all, President Blatter offended female players in 2004 with his suggestion to enhance the women’s game through players wearing:

‘tighter shorts and low cut shirts… to create a more female aesthetic.

and his 2008 assertion that:

‘there are gay footballers, but they don’t declare it because it will not be accepted in these macho organisations. Look at women’s football – homosexuality is more popular there

Indeed, he clearly warmed to this theme of homophobia, returning to it in 2010 with advice to gay rights campaigners to ‘refrain from any sexual activities’ to avoid breaking any laws and offending the World Cup hosts in Qatar!

What are the odds then on Blatter offending disabled footballers next in his attempts to discriminate against everyone equally?

 

Much ink, column space and tweets have been spilled dissecting his most recent comments, but everybody seems to be missing something, is Sepp Blatter not in fact the new poster boy for “sports law”?

So what do I mean by this? It has long been a perennial (and somewhat dry) academic debate as to whether sports law exists. Is sport special, where what happens on the pitch stays on the pitch, immune from the laws of the land (sports law)? Or should offences be punished wherever and whenever they occur irrespective of the fact they might occur on a sportsfield (sport and the law)? Or is there some sort of middle ground where we take into account the context of the game being played (applied sports law).

When the latest player gets carted off injured, there is inevitably a reluctance for the law to become involved for fears that it might lead to a sterilization of the sport and the vigour with which it is played. However is this not what Sepp is also clumsily advocating (only in the context of racism rather than personal injury), as such, is this not simply a manifestation of an extreme view of what could happen if we allow sport to completely self-regulate itself?

While his comments on racism are rightly condemned, we can see similar language already exists in relation to personal injury, for example, compare Blatter’s later comments on the FIFA website:

“My comments have been misunderstood. What I wanted to express is that, as football players, during a match, you have ‘battles’ with your opponents, and sometimes things are done which are wrong. But, normally, at the end of the match, you apologise to your opponent if you had a confrontation during the match, you shake hands, and when the game is over, it is over.” 

With the well-known Canadian criminal law ice-hockey case of Agar v Canning (1965) 54 WWR 302, 304:

“The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse.”

Isn’t Blatter merely taking this Agar personal injury concept to the next level and attempting to apply it to every incident on the sports pitch (or on this occasion as an ill-thought out and unacceptable attempt to try to excuse or condone racist behaviour).

Speaking to BBC Radio 5 live, former player turned pundit, Garth Crooks was quoted as saying that:

“Football has to be very careful. It’s the one industry that somehow sees itself as above the law. It is not. Players, however glorified, are employees and have to abide by the law. Sepp is a man out of time and out of touch.”

However maybe it is actually the rest of us that have to be very careful. With every reaction against verdicts like:

  • the Bosman ruling, or Karen Murphy’s recent European Court victory in her challenge against the Premier League and Sky Sports,
  • the 2010 case of Sagen v. VANOC where Canadian courts upheld womens ski-jumpers argument that their ban from the Winter Olympics was discriminatory but ultimately held that there was nothing that could be done in the face of a lack of constitutional jurisdiction over the International Olympic Committee (IOC)
  • government ‘meddling’ in the governance arrangements of national governing bodies
  • and perhaps more importantly the impending FC Sion legal dispute

maybe we are actually inching ever closer to Blatter’s extreme view where it is unaccountable sporting authorities that control what happens on the pitch unregulated and effectively immune from any national or international legislation?

The reaction against Blatter’s comments from all walks of life gives me some hope that maybe we are not as far down this route as we might have initially appeared to be, the question now for the public and administrators to decide is how ‘special is sport’ and to what degree do we expect it to meet minimum standards of governance, transparency and equality? Or put simply how far do we trust sport to regulate itself?

Quia Custodet Ipsos Custodes?

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Nodar Kumaritashvili’s death at the 2010 Vancouver Winter Olympics – Let the finger pointing begin!

February 9, 2011

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I have consistently been critical of VANOC’s handling of the death of Nodar Kumaritashvili on the opening day of the 2010 Vancouver Olympic Winter Games. In February 2010 I wrote in The Globe and Mail, ‘Shame on VANOC for blaming Georgian luger Nodar Kumaritashvili for his tragic death while conveniently absolving themselves of responsibility.’ In October 2010 I wrote in the National Post that the BC Coroner’s Report was ‘off-base in pointing the finger of blame at Nodar Kumaritashvili, stating that his relative lack of experience set the backdrop for the incident. This track was intentionally engineered for world-record-breaking speed and high G-forces. A high-speed corner was named “50-50” due to the odds of making it without crashing. World-class lugers were crashing in their limited training runs. What happened was not just due to the inherent risks of the luge or to Mr. Kumaritashvili’s inexperience. VANOC’s shortening of the race course and building up of the walls is implicit recognition that the course was too fast and that its speed played a greater role than Mr. Kumaritashvili’s inexperience in his death.’

The Globe and Mail reported (read article here) two days ago that Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) CEO John Furlong ‘expressed concern that an athlete could get ‘badly injured or worse’ on the high-speed track and organizers might be accused of doing nothing to prevent it. Mr. Furlong’s unease, outlined in a startling, March 2009 e-mail … came after he received a copy of a letter to the luge track’s designer from the worried president of the International Luge Federation (FIL), Josef Fendt.’

FIL Secretary General Secretary Svein Romstad stated that, ‘Our goal is always to have tracks around 135 kmh, and that was what the designer projected. Instead, we suddenly got to 154 kmh. That was never our intention.’

In a letter written to IBG Designs, FIL President Fendt wrote, ‘Most of the athletes were able to cope with these extremely high speeds. Nevertheless, overstepping this limit would be an absolute unreasonable demand for the athletes …. This causes me great worry.’

Having received a copy of Mr. Fendt’s letter, Mr. Furlong e-mailed members of his senior management team writing, ‘An athlete gets badly injured or worse and I think the case could be made we were warned and did nothing. That said I’m not sure where the exit sign or way out is on this. Our legal guys should review at least.’

Tim Gayda, VANOC Vice-President of Sport, responded, ‘I don’t believe there is anything to do.’ This was echoed by VANOC Executive Vice-President of Sport, Paralympic Games and Venue Management Cathy Priestner-Allinger who wrote, ‘FYI, no action required at this time.’

I wonder if VANOC’s foreknowledge of the track’s dangerously high speeds was disclosed to Nodar’s family when they accepted $150,000 from a private insurance ostensibly to compensate a grieving father and mother for the loss of their son due to a tragic accident. On the world stage of the Olympics, VANOC blamed Nodar Kumaritashvili for his death while conveniently absolving themselves of responsibility. It is assumed that VANOC carried on with the line that Nodar’s inexperience caused his death. If Mr. Furlong didn’t tell them about their concern over ‘extremely high speeds’ which presented an ‘unreasonable demand’ on the athletes when the main cause was in fact a track that was too fast that they knew about in advance and did nothing about, then Mr. Furlong has some explaining to do.

Lastly, parroting VANOC’s position at the time, the BC Coroner’s Report pointed the finger of blame at Nodar Kumaritashvili stating that his relative lack of experience set the backdrop for his death. The report conveniently ignored correspondence it had from VANOC and International Luge Federation executives who were worried that the unintended extreme speeds were unreasonable and that athletes could get injured or killed as a result. Cover-up, incompetence, or honest mistake? Let the finger pointing begin!

Read the e-mails here – VANOC Luge e-mail 1 + VANOC Luge e-mail 2

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Can a ‘Tweet’ be defamatory? Chris Lance Cairns v. Lalit Modi [2010] EWHC 2859 (QB)

November 26, 2010

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Read the full case here: http://www.bailii.org/ew/cases/EWHC/QB/2010/2859.html

The case concerned a tweet on 5 January 2010 from the defendant, Lalit Modi, who at the time was both Chairman and Commissioner of the Indian Premier League (IPL) and Vice-President of the Board of Cricketing Control for India (BCCI). Modi was later suspended from these positions in April and ceased to occupy them from September 2010. The case was further complicated by a claim against an online cricket magazine – Cricinfo UK who repeated the defendant’s words (although a New Zealand News site [http://tvnz.co.nz/cricket-news/chris-cairns-pushes-twitter-libel-case-3900692] states that Cricinfo has now paid Cairns unspecified damages).

Modi was alleged to have made comments in a tweet that the claimant had been sacked from an Indian Cricket League team (Chandigarh Lions) because of match-fixing, and not as Cairns states because of knee problems from a charity walk. While the original tweet was removed from LalitKModi’s profile 16hrs later, a cricketing blog [http://shortofalength.wordpress.com/2010/01/05/chris-cairns-banned-from-joining-the-ipl-yes-says-lalit-modi-on-twitter/] has uploaded an alleged screen capture of the tweet from cache – can anything ever be deleted anymore?!

Cairns, quite understandably perhaps, argued that this tweet was offensive and a libellous body blow; by contrast, Modi denied that any real or substantial tort occurred within the jurisdiction and brought proceedings to have the claim set aside [2] for abuse of process given its ‘trivial’ nature and speculative effect.

The High Court were therefore asked to draw a line in the crease, and in particular to answer whether a ‘tweet’ could be published and if so, how its readership could be calculated? Although Mr Justice Tugendhat heard conflicting evidence from two experts as to how publication could be determined from Modi’s followers on Twitter, ultimately Tugendhat J decided that the actual number of direct followers was irrelevant given the sensational nature of the allegation within the tweet [30] and the risk that these allegations might be further published elsewhere. Indeed, he held at [42] that the number of publishees was only one factor in an abuse of process claim. Cairns is therefore free to continue with this action to trial in order to protect and vindicate his reputation, any damages that follow this decision are very much a secondary consideration.

Watch this space, or should that be wicket…..?

Youtube Video of “Lalit Modi ‘On The Record’ – Full Interview”:

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Robert Dee, dubbed the “World’s Worst Tennis Player” loses…..his libel case against the Daily Telegraph

November 22, 2010

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Read the Full case report: http://www.bailii.org/ew/cases/EWHC/QB/2010/924.html

and the Daily Telegraph article about the case: http://www.telegraph.co.uk/sport/tennis/7644181/Worlds-worst-tennis-player-loses-again.html

Robert Dee’s own website contains an extraordinary collection of 40 apologies, corrections and reports from Newspapers that printed the same story as the Daily Telegraph but ultimately settled or offered apologies: http://www.robertdee.org/apologies_and_corrections (indeed he even goes as far as scanning onto the website the cheque for £12,500 that he received from the BBC in damages!)

The case concerns an article published in the 23rd April 2008 Daily Telegraph about Robert Dee, a 23yr old British Tennis Professional. The article suggested on both a paragraph on the front page and on the back page of the sports supplement that Dee had lost 54 matches in a row on the International Professional Circuit and was therefore the “world’s worst tennis professional”.

Dee sued the newspaper for defamation on 21st April 2009, 2 days before the expiry of the 1yr limitation period. His solicitors claimed £500,000(!!!!) and claimed that the front page item could blight his potential future career as a tennis coach [8] as while the claimant had lost these matches, he had had some success in the domestic Spanish league.

The newspaper denied that the article was defamatory, but in the event that it was, it relied upon a fair comment defence.

The Court held that, following Charleston, the key question was whether various (front and back page) articles were “sufficiently closely connected as to be regarded as a single publication” [29], not whether these articles were separate, on multiple pages or written by different authors. Given this, it quickly became apparent that the front and back page articles needed to be taken together. Mrs Justice Sharp DBE did however note at [30] that in reality many people may only have read one of the articles, and it was theoretically possible to argue that in more controversial cases, this issue could be determined at trial.

Whether the article was capable of a defamatory meaning was fairly straightforward, as it could suggest that the claimant lacked talent or “unreasonably and unrealistically persists in a career as a professional tennis player which is an expensive waste of money and doomed to failure” [38]. The problem was in evidencing that this caused Dee to be shunned or avoided. In the end, although the claimant argued that the focus of the complaint was that the article suggested incompetence or a lack of skill, the real complaint was one of exposing Dee to ridicule by making him look “absurdly bad at tennis” [55].

It is worth noting Sharp J’s comments that: “In my view it is not easy to translate these principles to the sporting arena, even though I entirely accept that many sportsmen and sportswomen, and the Claimant is one of them, are professionals who earn their living through their sporting skill, or endeavour to do so. It is difficult to characterise an allegation of relative lack of sporting skill, even if it leads to the bottom of whichever league the person or team participates in as necessarily imputing incompetence, quite apart from the question which could plainly arise as to whether such a suggestion is purely a value judgement. Such as allegation might be said to dent someone’s pride rather than their personal reputation, depending of course on the context. In every race, match or other sporting event, someone has to come last: that is the nature of competitive sport. Losing in sport is, as Mr Price [Defendant Counsel] submits, an occupational hazard” [49].

Sharp J was also highly critical of the suggestions both that the article could affect a future career as a coach at some unspecified time in the future because of the paper’s criticism of his athletic ability [53], and of the claimant’s pleaded case. Indeed at [58], She states that a claimant must “state clearly what his case is so the relevant issues are properly delineated in advance of trial and so the defendant has a proper opportunity to defend itself against what the complainant is really complaining about.”

The problem the claimant had is that the following, somewhat damning facts, were uncontroversial:

  • The claimant had a run of 54 consecutive defeats during which he did not win one set, in tournaments under the jurisdiction of the ITF and ATP
  • This consecutive run of defeats is a record equalling worst ever run of defeats in such tournaments
  • While the claimant also played (with some success) in domestic Spanish tournaments, these competitions did not directly award World ranking points

When at [109], the Court concluded that the article did draw a distinction between his performance on the international tennis circuit and the Spanish tournaments, the claimant really had no case left. He could not complain about the central facts of the article, as these were effectively true! As such the Defendant was awarded summary judgment, game set and match to the newspaper.

Youtube News Report of Robert’s Tennis Victory (@ 1:26 onwards):

see also a great blog posting on the case from the Jack of Kent: http://jackofkent.blogspot.com/2010/05/libel-and-tennis-trophies-of-robert-dee.html

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Contemporary Issues in Sports Law and Practice, 2010

November 9, 2010

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Many thanks to De Montfort University (DMU) and the British Association for Sport and the Law (BASL)  for hosting what was once again a very enjoyable afternoon of speakers. The half-day conference heard from five speakers exploring very diverse, but equally key topics:

  • Karen Moorhouse (RFL) discussed the Rugby Football League’s renewable three-year Club Licensing scheme and how this differed from a more American-style franchise system. The talk explored all aspects of this scheme from an overview of the current system and the criteria employed to define the applicable standards, to how the RFL had anticipated any potential challenges (both legal and fanbase). The proof of the pudding will really come in the next licensing round though when at least one Super League club will not have its current licensed renewed….
  • Alistair Maclean (The FA Group) gave an overview of the FA Group’s commercial rights. This was a very informative (and colourful) presentation and provided a thorough explanation of the new commercial strategy (FA Partner Programme 2010-14), blending a comprehensive whistle-stop tour through the FA Rights Inventory with commentary on the practicalities underpinning each branded item.
  • The blog’s very own, Jon Heshka (Thompson Rivers University, Canada) presented a paper on regulating ‘Technological Doping’ in sport. Jon outlined the key issues and controversies facing sport stemming from the current unprincipled approach to technology before analysing what options regulators and governing bodies could take. In particular, the talk debated the use of the WADA criteria for chemical enhancement and Jon posited whether the solution really lay in our definition of what were the essential characteristics of sport.
  • Christopher Stoner QC (Serie Court Chambers) provided a (much-needed) insight into Paralympic Disability Classification. The talk briefly covered all aspects of classification from a historical introduction to the current criteria for assessment, protests and appeals. What became particularly evident at the end of the talk was that while the current classification system has been in operation for a number of years, it is still evolving and being refined. It will be interesting to see what changes (if any) are made to protests ahead of the forthcoming 2012 Paralympics…
  • Ian Lynam (Partner, Charles Russell LLP) evaluated the use of player quotas in UK Sport, in particular, whether leagues could implement caps on the numbers of ‘foreign’ players. Essentially there were two key elements to this presentation, Direct Discrimination (as epitomised by the recently dropped FIFA 6+5 rule) and Indirect Discrimination (as seen in UEFA’s ‘Homegrown Player’ rule. Ian then rounded the event off with practical advice to any governing bodies wishing to implement such a rule.

The date for next year’s Contemporary Issues Event has now been set for 4th November 2011, information on how to book will follow nearer the time.

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Prettiest Ambush I’ve ever seen!!!

August 26, 2010

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Jon and I had the following article, “Ambush marketing: FIFA’s rights protection programme” recently published in the World Sports Law Reports (WSLR).

“Amidst the buzzing of the Vuvuzela’s and the occasional officiating error, the 2010 FIFA World Cup South Africa will also be remembered for the expulsion of 36 orange mini-skirt wearing women from a match and
the subsequent prosecution (and then dropping) of charges against the two alleged ‘ringleaders’ behind the incident. Whilst titillating, this is not just a story about beautiful women being used to market a product. The real story is about the lengths to which companies will go to exploit loop-holes in the existing law and what implications these campaigns have for tackling counter-insurgency actions at future events. The article will conclude by examining how FIFA and Anheuser-Busch (the official beer sponsor) were so comprehensively ambushed that Bavaria rocketed from unmeasurable before the ambush to the fifth most visited beer website in the UK,  while Nike’s unofficial ‘Write the Future’ campaign was widely viewed as the most successful marketing campaign of the World Cup……”

The Editors have kindly allowed us permission to make the full article available on the blog as a pdf download: WSLRaug10lines[1]

The ‘Bavaria’ girls in question:

DimDim girls:

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Definition of Sport

September 29, 2009

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I thought while I was waiting for the quotes to come through for a new computer, I would hang out in the animation studio at the University.

Below is the first of the forthcoming animated sports law shorts. The video is a 3min animation discussing the problems of defining what is a sport. It was first shown as part of the 2009/10 Sports Law LLB (Hons) Degree Programme at Staffordshire University. The video was intended to summarise the latest debates and controversies surrounding academic and government attempts at defining sport in order to stimulate further debate on the topic. Feel free to add to the debate with your own views in the comments section (Here’s what other academics have had to say about it: http://sports-law.blogspot.com/2009/09/defining-sport-illustration.html)

Next video to be released will be an introductory guide to Sports Negligence…..

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2010 F1 rules (if there is a 2010 F1 series that is!)

July 3, 2009

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As close as I can get to a definitive timeline of the F1 dispute

8/1/09 – FOTA unanimously agree to (http://www.teamsassociation.org/press-release/2009-01-08/fota-press-release) :

  • cost reducing initiatives
  • sign a comprehensive Aerodynamic Test Restrictions Agreement (effective 2009)
  • develop and freeze low cost transmissions for 2010-12 seasons
  • reaffirm their commitment to £5m engine supply from 2010 for independent teams

5/3/09 – FOTA Roadmap for the Future of Formula one (http://www.teamsassociation.org/press-release/2009-03-05/fota-press-release). FOTA publishes its proposals for the sport:

  • 8 Engines per driver per season (at cost of £8m dropping to £5m per team by 2010)
  • Standardised KERS
  • 50% reduction in aerodynamics spend, with restriction on development changes through a season
  • Standardised telemetry and radio systems
  • 50% testing reduction
  • New points system (12-9-7-5-4-3-2-1) to differentiate GP winners
  • Radical new points scoring opportunities (1 championship point for fastest pit-stop)
  • Enhanced engagement with public and TV coverage, including Starting fuel loads, tyre specs and refuelling data made public
  • Findings of Global Audience Survey released
  • History of FOTA attached

20/3/09 – FOTA Press Release (http://www.teamsassociation.org/press-release/2009-03-20/fota-statement) objecting to the World Motor Sport Council decision to change the way the Driver’s championship is awarded.

26/3/09 – FOTA Press Release (http://www.teamsassociation.org/press-release/2009-03-26/press-release) claiming that CVC (the Commercial rights holders for F1) owe agreed sums of money to the teams for 2006-08 championships

 

The following letters were all published on the FIA site and can be downloaded at: http://fia.com/en-GB/mediacentre/pressreleases/f1releases/2009/Pages/fia_fota.aspx (bottom of the page, headings 1-4)

28/4/09 – Letter from Luca di Montezemolo (Ferrari / FOTA chair to Max Mosley) agrees in principle to process of cost-cutting started by FIA, but criticises its communication and implementation. In particular:

  • Objected to submission of new 2010 regulations (including the cost cap and difficulties in implementation both technically and for individual teams)
  • Rejected proposals for a two-tier championship
  • Reasserts Ferrari’s rights under the Concorde Agreement

 29/04/09 – Letter from Max Mosley (FIA) in response to Luca

  • Expresses fears that another team will drop out and absence of any legal agreement from any other team to continue. The cost-capped team is therefore ‘an insurance policy to maintain a full field’
  • Wish that any cost-cutting restrictions come in the form of financial measures, rather than the technological restrictions (proposed by FOTA).

 

Interestingly, the FIA approach seems to echo Ross Brawn’s who is quoted by Reuters as stating: One of the difficulties of Formula One is that we are turning into Swiss watchmakers. We are just refining everything to the nth degree instead of being able to make conceptual or innovative changes because the rules are becoming more and more constrictive. To try and contain the costs, we are just closing everything down so much, and I’m not sure that’s what Formula One should be. We can save costs by saying ‘That’s all you are allowed to spend, and have more freedom’. For me, that’s a more exciting Formula One for us and the public and we’ve always supported that concept.” (http://uk.reuters.com/article/motorSportsNews/idUKL815353020090508?feedType=RSS&feedName=motorSportsNews&sp=true)

 

30/4/09 – F1 Cost Cap Q&A and Discussions, Released by FIA (http://www.fia.com/en-GB/mediacentre/pressreleases/f1releases/2009/Pages/f1_cost_cap.aspx)

  • Confirmation of FIA position of cost-cutting through financial spending and leaving technological improvements comparatively unfettered
  • £40m cost cap
  • Establishment of Costs Commission to monitor compliance and enforce the costs cap

6/5/09 – FOTA meeting in Heathrow to examine FIA regulations (http://www.teamsassociation.org/press-release/2009-05-06/press-release). Constructive meeting, but seeks urgent consultations with FIA

At this point, while both the FIA & FOTA are agreed that cost cutting is necessary, the first sticking point seems to be in agreeing the extent. While the headline figure is £40m, there are a number of important exclusions in relation to driver salaries, fines / penalties, engines and corporate hospitality / marketing which actually makes the figure much closer to the team’s position. This is because driver salaries alone in some teams would have swallowed up much of this figure (Raikkonen and Hamilton are paid at least £10-20m) and while Mosley argued substantial salaries could still be paid, but in the form of dividends rather than wages, this was rejected by the teams.

The second sticking point is the team’s unwillingness to disclose their accounts to the governing body. Although the FIA agreed with Deloitte Accountants that the “vast majority of payments are traceable” and that any benefits in kind “can be valued”, the original plan would be that every team is audited by an FIA Costs Commission. This is quite firmly rejected by the teams.

 

At this point the lawyers really start to get involved and the letters become a lot more formal……..

12/5/09 – Letter from Peter (Ferrari Lawyers) to FIA

  • Asserts that Ferrari will be exercising their right of veto in respect of the introduction of any new Technical or Sporting Regulations (apparently given to them by the FIA in a letter, Jan 17th 2005) (it is perhaps just worth pausing for a moment while the implications of this actually sink in – what other sports teams, in any sport, have any special secret veto powers over what rules they do or do not like? There’s  favouritism and poor governance, and then there’s this!)

13/5/09 – Letter from Mosley to Peter in response

  • Suggests that as the teams have failed to deliver sufficient cost cuts and given the fact that Ferrari cannot stop itself from overspending(!), FIA has no choice but to act to protect the Championship [1]
  • Rejects any suggestion that the cost cap was improperly introduced [2]
  • Confirms existence of the 2005 agreement between FIA and Ferrari, and that it also included FOM. States that loyalty was an essential part of the contractual consideration and by Ferrari leading FOTA to seize control of significant aspects of the regulatory and financial functioning of Championship, and threatening to leave the Championship, it was not complying with these terms [7]
  • Rejects that any Ferrari exists, but if it did do so, the FIA suggest that these would only apply to any Sporting or Technical Regs that require Ferrari to alter its car (which does not apply here), and that this veto should have been applied before any regulations were adopted [10].

Ironically though, Reuters reports that Ferrari was the most cost-efficient Formula One team last season! Although F1 teams increased their overall budgets by an average of about 10%, the report estimates that Ferrari invested 328.2 million euros to win eight races and gain 172 points last season, while Japan’s Toyota and former Honda teams sit at the bottom of the list in terms of cost efficiency. (http://uk.reuters.com/article/motorSportsNews/idUKLO58544420090324?feedType=RSS&feedName=motorSportsNews) The report says nothing about absolute spending however.

 

15/5/09 – Letter from Peter to FIA

  • Doesn’t accept the description of the 2005 agreement and any conditions and suggests the only qualification to the agreement is on safety grounds (inapplicable here) [2]
  • Rejects FIA suggestion that the new regulations do not affect Ferrari [4]

 

20/5/09 – Ferrari v FIA in Tribunal de Grande Instance in Paris (no access to the official resource). From Press releases and news reports, seems that the court refused to strike out the 2010 regs, but suggested that Ferrari did have a potential veto.

23/5/09 – Another Letter from Peter to FIA

  • Rejects any suggestion that the 2005 Agreement with FIA means that Ferrari have a binding contractual obligation to compete in 2010 [1]
  • Confirms that under another 2005 Agreement with FOM that Ferrari extends their participation until 2012, subject to a condition precedent that a new Concorde Agreement is signed by FIA, FOM and Ferrari (this hasn’t happened yet) [2]

26/5/09 – Letter from FIA to Peter

  • Unsurprisingly, the FIA rejects all the claims and demands made in the previous Ferrari letters
  • Suggests that internal inconsistency between arguments in letter (that Ferrari did not have any contractual obligation to compete) and argument before French Courts / World Council (that Ferrari received 2005 consideration in return for agreement to compete)
  • By entering into the 2005 agreement, FIA argues that Ferrari accepts the obligation under the Concorde Agreement to participate in the Championship, in addition to any rights it feels it might have (veto)
  • Suggests that Ferrari’s opportunity to object to any regulations or use its veto had passed and no longer existed in relation to the 2010 regs
  • Seeks clarification regarding the status of the 1998 Concorde Agreement
  • Reasserts that Ferrari is contractually bound to enter the F1 Championship up to 2012

 

Then we get the following concessions from the FIA:

 

26/5/09 – Letter from Max to Luca

  • Proposes a cap for 2010, which could be as high as €100m (£86m) [1]
  • Proposes a Cap for 2011 at £40m [2]
  • Scraps proposal of separate rules for cost-capped teams [3]
  • Facilitate know-how transfer between new and old teams [4]
  • One employee per team (eg Chief Designer) in addition to drivers can be outside cap for 2011 [5]
  • Draft of proposed Concorde Agreement sent by the teams is broadly acceptable [6]
  • Cost cap can be renamed as “financial regulation” or any other term [7]

 

Before going back to all the lawyer’s letters……

26/5/09 – Letter from Peter in response to Max’s Letter

  • Ferrari accuses FIA of breach of contract in relation to the adoption of the 2010 F1 Regs in contravention of the 1998 Concorde Agreement
  • Confirms that the French Courts (20/5/09) recognise Ferrari’s veto right
  • Suggests that FIA refusal to recognise this right of veto over the 2010 regs is also a breach of contract
  • Suggest that as the FIA breach of contracts have created significant damages for Ferrari, the only sensible way for Ferrari to mitigate their damages is to immediately withdraw its proposed amendments to the existing F1 regulations, and that should the FIA continue to ‘refuse to honour its contractual obligations, Ferrari will be forced to consider its options, including holding the FIA liable for the losses sustained as a result of the various breaches by the FIA of its contractual obligations.’
  • Ferrari enters a conditional entry to the 2010 Championship

29/5/09 – FOTA Press Release (http://www.teamsassociation.org/press-release/2009-05-29/press-release) confirming that all FOTA teams have entered for 2010 season on basis of:

  • FOTA revision to 2010 regulations apply
  • New Concorde Agreement is signed by all parties before 12th June 2009

8/6/09 – Letter from FIA to Peter

  • Disagrees (again unsurprisingly) with all previous Ferrari points
  • Confirms that the French Court decision ruled that any veto that Ferrari had over 2010 regulations should have been used before this date
  • Rejects any suggestion that the FIA should have used the Concorde Agreement to make rule modifications
  • Rejects any claim that the FIA has breached any contract
  • Reiterates claims that Ferrari has breached agreement with FIA by threatening to withdraw from the Championship (suggests that the instability caused by this gives rise to damage, but that FIA has not decided what action to take although this is under active consideration)

9/6/09 – Letter from Peter to FIA

  • Rejects any contention that Ferrari has lost any rights under the 2005 Agreement
  • Suggests that Ferrari voted against the proposed changes at World Motor Sport Council (April 29, 2009), therefore FIA is still in breach of its contractual undertakings
  • States that as the French courts would not decide the issue, it thus remains fully open on the merits

Not written down by either side, but picked up by the Times F1 Blog (http://timesonline.typepad.com/formula_one/2009/06/the-big-bad-wolf.html) is the suggestion that following a meeting of the teams in Monaco, there is an agreement between the five manufacturers to pay each other £50 million each in compensation if they decide to leave FOTA and join the FIA. (The Times also uses the analogy here of a group of fish bolting themselves together to stop a circling shark ravaging them)

 

10/6/09 – Letter from FIA to Peter

  • Suggested that as Ferrari participated in 15 rule changes after the Concorde Agreement lapsed, any use of the Concorde Agreement is irrelevant (although the last paragraph in particular in phrased in somewhat indelicate language and almost guarantees a response back!!!)

11/6/09 – Letter from Peter to FIA

  • Suggests that FIA was misleading the public by suggesting that the Ferrari entry was unconditional and they therefore reserve their rights for the damages caused by this misleading statement. They also threaten to issue their own Press release.

12/6/09 – Two sentence response from FIA to Peter

  • In a nutshell, Ferrari has obligations under Concorde Agreement 98 to participate until 2012, therefore its not misleading or causes loss to announce this.

12/6/09 – Unsurprising Press Release issued by FOTA In response (http://www.teamsassociation.org/press-release/2009-06-12/press-release ) stating that their 2010 entries are conditional.

15/6/09 – FIA Press Release (http://fia.com/en-GB/mediacentre/pressreleases/f1releases/2009/Pages/fota_1.aspx) stating that the FIA and FOTA very close to agreement over technical regs and costs and that there was an element in FOTA who were determined to prevent any agreement being reached.

15/06/09 – FIA Press Release in Response to ACEA Statement (http://fia.com/en-GB/mediacentre/pressreleases/f1releases/2009/Pages/acea_1.aspx)  

16/06/09 – FIA Press Release (http://fia.com/en-GB/mediacentre/pressreleases/f1releases/2009/Pages/fota_meeting.aspx), detailing meeting of financial experts from FIA & FOTA and suggesting an inevitable financial arms race was inevitable if FOTA proposals were agreed.

16/6/09 – Interesting FIA Press Release on what they feel the main ‘philosophical’ issues are: http://www.fia.com/en-GB/mediacentre/pressreleases/f1releases/2009/Pages/fia_fota.aspx

17/6/09 – FIA Letter  to teams (the original teams letter hasn’t been published):

  • Governance – all parties should agree to 1998 Concorde Agreement and then negotiate new 2009 Agreement [1]
  • Finance – Suggested that reputable auditor backed up by signature of main company board member is sufficient, and that any suspected investigation over breach would be carried out by a mutually agreed auditor. Any breach would be subject to an agreed financial penalty (to be agreed) [2]
  • Confirmation that two tier regulations will be scrapped, however the letter also states that: “the Cosworth has to be allowed to run without limitation in 2010 (ie the 2008 duty cycle for a 2006 engine), because Cosworth have neither the time nor the resources to retune for 2010. Any engineer will confirm that this will not give the relevant teams any competitive advantage whatsoever” [3]

The response from FOTA was to issue this Press Release 18/6/09 (http://www.teamsassociation.org/press-release/2009-06-18/press-release) stating an intention to commence preparation for a new championship that:

  • Will have transparent governance
  • One set of regulations
  • Encourage more entrants
  • Listen to the wishes of fans (including offering lower prices for spectators worldwide)

19/6/09 – FIA Press Release in Response to FOTA announcement (http://www.fia.com/en-GB/mediacentre/pressreleases/f1releases/2009/Pages/fota_and_fia.aspx):

  • States that it is not surprised but ‘the actions of FOTA as a whole, and Ferrari in particular, amount to serious violations of law including wilful interference with contractual relations, direct breaches of Ferrari’s legal obligations and a grave violation of competition law. The FIA will be issuing legal proceedings without delay.’

24/6/09 – ‘Peace in our Time?’ Press Releases from World Motor Sport Council (http://www.fia.com/en-GB/mediacentre/pressreleases/wmsc/2009/Pages/wmsc_240609.aspx) and FOTA (http://www.teamsassociation.org/press-release/2009-06-25/fota-press-conference-transcript)

  • All teams have committed to the 2010 World championship using 2009 Technical Rules
  • Teams will, within two years, reduce the costs of competing to the level of the early 1990s
  • Teams agree to FIA as the sports governing body and FOM as the commercial rights holder
  • Teams will adhere to an upgraded version of the governance provisions of the 1998 Concorde Agreement
  • Max Mosley will not stand for re-election in October 2009

 

So the upshot is F1 continues as this year, and Max Mosley will not govern the FIA from October. Phew…….

The 2010 Regs: http://argent.fia.com/web/fia-public.nsf/755774E21C7A8B1DC12575B000326F7C/$FILE/1-2010%20F1%20SPORTING%20REGULATIONS%2006-05-2009.pdf

(for an interesting criticism of the current governance (or not) of the sport see also: http://www.telegraph.co.uk/sport/motorsport/formulaone/ferrari/5320514/Formula-Ones-warring-factions-are-making-the-sport-a-laughing-stock.html)

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