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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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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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Two bites of the legal cherry?

July 23, 2009

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Source: Full case report: (WESTLAW), see also the original tribunal hearing report in the Yorkshire Post containing more detail about the specific allegations: http://www.yorkshirepost.co.uk/news/Black-employee-wins-her-race.1253995.jp

Campbell v. Leeds United Association Football (in liquidation) [2009] EW Misc 4 (EWCC)

The case (heard in Leeds County Court) concerned a claim for psychiatric damages by Yvonne Campbell, a waitress and later banqueting manager at Leeds Utd Football club. Yvonne had earlier won two claims for damages for direct discrimination on the grounds of race, sex, victimisation and harassment at two employment tribunals in 2005 and 2006. She was awarded £5,000 by the first tribunal, and a remedy hearing was directed to be convened for the second tribunal, but in the end was never held (The Schedule of Loss for this second claim included psychiatric loss and loss of earnings and amounted to at least £110,000).

The problem is that in May 2007, Leeds United went into creditor’s voluntary liquidation and no return is therefore expected for unsecured creditors like Mrs Campbell. Although Leeds Utd were insured against claims by employees for personal injuries caused by negligence / breach of statutory duty, they were not insured against employment tribunal claims. The case is therefore Mrs Campbell’s attempt to secure damages via an alternative method. Indeed, the court noted at [11] that it is common ground that the allegations made are the virtually the same as those made before the Tribunal. The only difference is that the court case is based on a breach of regulations 3(1), 3(3), 3(6)(a), 4, 5(1), 5(2), 6, 7, 10 and 13(1) of the Management of Health & Safety at Work Regulations 1999, which led to a foreseeable risk of injury attributable to stress, rather than the Statutory direct discrimination actions argued at the Tribunal.

Although Leeds Utd tried to argue that Mrs Campbell was barred by estoppel from arguing essentially the same points, the Court held that a finding of discrimination was an entirely separate issue from negligence [24]. The court also ruled that Henderson v. Henderson (a principle that a party should not be allowed to reopen old cases to introduce new evidence) did not apply to the Tribunal’s assessment of psychiatric loss as no assessment had in fact taken place [36], and it would amount to a denial of justice if Mrs Campbell’s claim was struck out [37].

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Sagen & Others v. VANOC 2010 (case report)

July 22, 2009

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Sources: see an interesting blog account of the trial: http://vanessapierce.wordpress.com/ or read the full case report here: http://www.vancouver2010.com/dl/00/69/78/-/69784/prop=data/1y2401t/69784.pdf

The facts of the case of Sagen & Others v. Vancouver Organizing Committee for the 2010 Olympic & Paralympic Winter Games (VANOC) has been reported in brief earlier on the blog. Here is the full case report.

The case was brought by 16 highly-ranked (current and retired) female ski jumpers who all claim that female ski jumpers are being excluded from competing at the 2010 Winter Olympic Games because of their sex, in violation of their equality rights under s.15 of the Canadian Charter of Rights and Freedoms. [1]

They argued in the Supreme Court of British Columbia that as the VANOC is a federally incorporated organisation, it had duties under the Charter to make provision for women’s events if it is also hosting male ski jumping competitions. The claimants therefore wanted VANOC to stage a female ski-jumping event, or alternatively to remove the male ski-jumping event (although the claimants suggest at [6] that the IOC would authorize VANOC to host a female event rather than cancel the male event).

By contrast, VANOC suggested that the claimants were suing the wrong defendants and that they were sympathetic to female ski jumping (and indeed remained ready to host an event), but their hands were effectively tied by the IOC [4].

Although the Court ruled that the exclusion of women’s ski jumping from the Winter Olympic was discriminatory and was for no other reason than their gender [7], her Honorable Madam Justice Fenlon then went on to state that as not every discrimination is actionable, and given the degree of IOC control, VANOC was not in breach of the Charter.

The main arguments of the case can be summarised by the following two questions:

1)       Does the Charter apply to VANOC?

Broadly speaking, the Charter only applies to government responsibilities [10]. For the claimants to succeed, they therefore had to argue that VANOC was either controlled by government, or carrying out a governmental program.

The problem for the claimants was that although the Canadian, British Columbia, Vancouver and Whistler governments were all represented on VANOC, there was no evidence of any governmental day to day governance [24] or control over VANOC finances [29], and indeed VANOC operated ‘more like a franchisee of the IOC, than a purchaser of a product’ [39]. Even the degree of control operating under s9 of the Trade Marks Act was not conclusive evidence [48].

However the claimants did succeed on the latter argument, and at [58] the Supreme Court held that staging the 2010 Winter Games was a governmental activity, even though it had created a private entity (VANOC) to deliver the actual event.

 

2)       Is VANOC in breach of s15 of the Charter?

Having established this, the next problem to be overcome was whether VANOC was in breach of the Charter. In doing this, the Court considered three issues:

i)                     What was the benefit at issue? – the opportunity to participate in the 2010 Winter Games at an Olympic Ski Jump Event [75]

ii)                   What is the appropriate comparator group? – Male ski jumpers [75], indeed the court held that Lindsey Van holds the facility record at Whistler [66]

iii)                  What is the discrimination? That the claimants are being treated less favourably on account of their gender [75]

Having established that this discrimination exists, it is then important to understand why and this effectively is the crux of the claimant’s case. The IOC criteria for the inclusion of new events were governed by rule 47 of the Olympic Charter (which effectively laid down certain criteria regarding participation and standards of competition). The problem is not that the rule itself is discriminatory (if anything while it applies equally to men and women, the rule sets a lower standard for participation in women’s events), but rather that its application to ski jumping is discriminatory. This is because while women’s ski jumping does not meet the criteria, neither does the men’s events [86], but they are still included under a ‘grandfather clause’ because they had previously been an Olympic event. As women’s ski jumping had not historically been included, this event was not eligible and therefore constituted discrimination.

The problem with this argument is that the claimants were not asking for a women’s ski jumping exhibition event, but rather an Olympic event [108] and this was beyond VANOC’s capacity. Indeed, the claimants agreed at [116] that VANOC does not have the authority to stage an Olympic Event without the consent of the IOC (while VANOC itself could stage a women’s ski jumping event at the venue, without IOC approval it would not be an Olympic event. Similarly, both the International Ski Federation (FIS) and many National Olympic Committees (NOCs) have stated that they will only participate in IOC sanctioned events during the Olympics).

Given this conclusion, and the IOC’s degree of control, VANOC was not therefore in breach of s15 of the Charter by implementing the IOC Programme of events.

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Five female ski jumpers join lawsuit to be included in 2010 Winter Olympics

March 7, 2009

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Source: Winnipeg Free Press

http://www.winnipegfreepress.com/breakingnews/40854992.html

Five female Canadian ski jumpers want to add their names to a lawsuit seeking to have their sport included in the Vancouver 2010 Olympic Winter Games. The women join 10 others who allege their rights under the Canadian Charter of Rights and Freedoms are being violated since male jumpers are allowed to compete in Olympics but they are not. The sport was left off the roster for the 2010 Games because the IOC declared it was not developed enough to merit inclusion in the Olympics. The claimants filed suit against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC).  The women argue that the local organizers must respect the Charter because the Olympic Games are partially funded by the federal government. In their statement of defence, VANOC claims they cannot override the IOC and even if the women’s rights were violated, there are reasonable grounds to do so. The lawsuit is scheduled to be heard in B.C. Supreme Court in April 2009.

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No sex please, we’re representing Singapore!

March 5, 2009

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 Source: http://www.asiaone.com/News/AsiaOne%2BNews/Singapore/Story/A1Story20090202-118804.html

Singapore’s top male (Mok Ying Ren) and top female (Dinah Chan) have been banned from competition after being caught together in a hotel room at the Asian Beach Games.

Although the exact details of the incident have not been revealed, it is believed that “the duo had infringed the Triathlon Association of Singapore’s (TAS) code of conduct for athletes, which forbids male and female athletes from sharing a room and requires the door to be kept open when there is a visitor of the opposite gender.” There is however no suggestion that either athlete were caught in a compromising position at the time.

Other Singapore Governing Bodies support TAS’s decision, and suggest that athletes should behave appropriately when representing Singapore, even if they are dating or married.

This incident also raises a number of interesting questions, for example: is it therefore ok to be a gay athlete as presumably the door would not have had to have been left open? Should Western sports teams also adopt this approach – after all the behaviour of the English Football WAGs (Wives & Girlfriends) was widely seen to be a distraction to the footballers at Euro 2004 Tournament.

For those of you that haven’t seen it, the issue of sex before an important game was an important dramatic conceit in ‘Wimbledon’ (clip below)

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