Tag Archives: contract

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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World Sports Law Report’s: Tackling Doping in Sport 2011 (in association with UK Anti-Doping & Squire Sanders Hammonds, 16-17 March, London [DAY 2]

March 25, 2011

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If there are any errors or inaccuracies these are from me rather than from the speakers. The official WSLR review of the event can be found here: http://e-comlaw.com/sportslawblog/template_permalink.asp?id=386

Day 2  (http://www.tacklingdopinginsport.com/)

  1. Anti-Doping at the Olympic Games. Richard Budgett (London 2012). The first lecture discussed the planned anti-doping provision at London 2012. Just listening to the statistics in particular outlined the sheer logistical task ahead, indeed London plans to undertake the most number of blood and urine doping tests yet (6,200 tests total split as 5,000 at the Olympics, 1,200 at the Paralympics), reaching an expected peak of 400 on one day! (To put this into perspective, UKAD only conduct 7,500 annual tests!). For the first time at the Olympics, Blood and Urine will also be collected in the same room hopefully speeding up the process. One problem that was however raised in light of David Howman’s speech the day before was that all the Doping Control Officer’s (DCO) will be volunteers and the potential for this to lead to bribery?
  2. Anti-Doping at the Commonwealth Games. David Grevemberg (Glasgow 2014). This lecture presented an overview of the planned anti-doping provision at Glasgow 2014. What was noticeable was the stark contrast between the statistics for the two events: Glasgow will have 17 sports, 25 disciplines, 250 medal events, 71 Nations and territories and 11 days of competition, indeed the costs of the Olympic stadium alone would fund Glasgow’s entire budget. One issue that hasn’t yet been decided though was whether the DCOs were coming from London, foreign jurisdictions or from training Scottish medical staff and providing an anti-doping legacy after the Games.
  3. Keynote Speech – Legacy for Anti-Doping. Hugh Robertson MP (UK Minister for Sport and the Olympics). The Keynote Speech has been widely reported by the media (http://www.guardian.co.uk/sport/feedarticle/9550585; http://www.reuters.com/article/2011/03/17/us-olympics-london-doping-idUSTRE72G43Z20110317) however it is still worth highlighting a number of points the Minister made. The first point to note is that he felt that sport was facing twin threats from doping (possibly from more individual sports) and from corruption (possibly from more team-based sports). Combating these two threats was vital if sport was to retain its integrity. One throwaway comment that perhaps jars with the current England FA coverage is that he viewed all Olympic sports stars as role models [whether this is enforceable though is another matter!]. The Minister praised UKAD and encouraged its close relationship with law enforcement, interestingly though he suggested that they should focus not just on target athletes but on stemming the entire flow of drugs at the source. He also seemed amenable to pass legislation on this issue if it was needed in the future, and in echoes of David Howman’s speech called for a strengthening and harmonisation of clearer doping rules across Europe.
  4. Using intelligence to combat doping in the run up to the Olympic Games. Nicole Sapstead (UK Anti-Doping). This lecture developed the theme from both David Howman and Travis Tygart’s earlier presentations. Somewhat provocatively, the talk opened with the statistic that there were 498 days until London 2012, but 0 days to combat cheats and their entourage! An interesting rhetorical question was whether UKAD had failed if they detected a BALCO-esque scandal just before / during the Games, or whether this in fact represented a success? What was interesting from this presentation was how UKAD collates information, trends and intelligence into a central database in order to analyse doping patterns. Nicole also outlined how UKAD used both a tactical (directly focused) and strategic (wider education) approach to combating drug cheats. She also highlighted the success of the recent anti-doping reporting hotline (run through the independent Crimestoppers): 0800 032 2332 where callers can anonymously pass on information to authorities 24/7 (http://www.ukad.org.uk/news/report-doping-in-sport)
  5. Background to and experience of the [Biological Passport] programme. Michael Ashenden (SIAB Research). This lecture explained how doping cases no longer involved positive tests, but also now involved ‘non-analytical positives’ where other evidence / interviews / suspicions could be considered indicators of guilt. One such area is Biological passports. The passport relies on two cornerstones, the initial software filtering which highlights deviances from the norm, and the subsequent review of this data by a series of experts to rule out pathological or other non-doping factors. The presentation concluded with an exhortation to discover even more markers within the blood to test for in order to block any potential loopholes.
  6. Advancements in the use of biological markers in anti-doping control. Paul Scott (Scott Analytics). This lecture could best be described as a critical analysis of the current biological passport scheme and how it could be improved in the future. Some of the suggestions raised privacy / freedom issues, such as the ability to test at any time of day or night, but this must be balanced against the fact that athletes are not currently tested between 11pm-6am and if they declared their whereabouts for later the following day, it was possible to flush certain substances from their body. Tightening the window for analysis of samples would have financial and complexity implications, but effectively sport needs to decide whether it wanted to prohibit doping or to trade-off lower costs with less reliability. A greater use of “non-starts” rather than full doping violations was also suggested.
  7. Procedural issues in anti-doping proceedings. Antonio Rigozzi (Levy Kaufmann-Kohler). This lecture compared and contrasted the admissibility of evidence under Swiss law and the WADA Code, in particular whether the WADA Code could be supplemented by IBA Rules on evidence (www.ibanet.org). Some doubts still exist over the admissibility of polygraph tests, however there is a suggestion that CAS has applied the criminal rather than civil test and therefore its decision in this area is open to challenge.
  8. Potential civil liabilities arising from doping control. Stephen Sampson (Squire Sanders Hammonds). This lecture explored whether athletes could bring civil claims against an Anti-Doping Organisation (ADO) and/or Governing Body for irregularities or problems with the doping control process. A number of case studies were discussed, as was the position in the event of a material departure from WADA rules, however it was also noted that such an action was very unlikely to succeed, particularly if the ADO / NGB had acted fairly, proportionately and justly in accordance with the rules. Interestingly while the WADA Code has been used as a ‘shield’ to protect athletes from abuse, this proposition envisages it being used as a ‘sword’ to attack for a breach.
  9. Contaminated meat: A threat to athletes subject to doping control. Mike Morgan (Squire Sanders Hammonds). This lecture discussed whether clenbuterol from contaminated meat was behind a string of recent doping results, and if so what could be done about it. Arguably the problem lay both within the agricultural sector in particular countries (Taiwan, China, South Korea and Mexico in particular) [but clenbuterol was not at levels harmful to the health of the general population], and also inconsistencies in the legal treatment of the athletes contaminated by the drug. One interesting argument from the questions was whether meat could be treated along similar lines to supplements? Taken to its logical conclusion, this would suggest that under strict liability, an athlete could be to blame if they didn’t convert to veganism?
  10. The risks – recent experiences of a NADO. Aurora Andruska (ASADA). This session was a multimedia presentation on the recent Australian experience with the supplement Methylhexaneamine.  The presentation also analysed the media reporting of the issue and the subsequent repercussions for the four athletes that tested positive for the substance.
  11. Reducing the risk. David Hall (Informed Sport – HFL), Jeni Pearce (English Institute of Sport, England Cricket), Graham Arthur (UKAD). This final section was less a lecture and more a question and answer session on supplements. Two interesting things came out of this session in particular, the first is that there were two main areas where contamination occurred: Using contaminated raw ingredients; and where third party manufacturers had cross-contaminated the product with a prohibited substance. It was also useful to hear about the current EIS policy on supplements, where athletes can receive specialised nutritional advice, guidance and support for supplement use on condition of signing up to an agreed code of conduct. Importantly, the EIS did emphasise though that this programme was one of risk management and that athletes remained liable for what substances entered their bodies; indeed, it was impossible to test every sample although the EIS could minimise this risk by only using approved suppliers and by keeping a record of what supplement batch was taken in order to trace any contamination.
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Proactive Sports Management Ltd v. 1) Wayne Rooney, 2) Coleen Rooney (formerly McLoughlin), 3) Stoneygate 48 Limited, 4) Speed 9849 Limited [2010] EWHC 1807 (QB)

October 16, 2010

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Proactive Sports Management Ltd v. 1) Wayne Rooney, 2) Coleen Rooney (formerly McLoughlin), 3) Stoneygate 48 Limited, 4) Speed 9849 Limited [2010] EWHC 1807 (QB)

The case essentially concerns the image rights contract between Wayne Rooney and his former agents (Proactive Sports Management Ltd). Proactive were seeking unpaid commission and invoices totalling between £1-3m against Wayne and over £200,000 against Coleen.

At 821 paragraphs long though, it is a truly mammoth judgment. Below is a précis of the most important points. (You can read the full case report at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/1807.html&query=rooney&method=boolean)

Why was the case brought?

Essentially Rooney signed an Image Rights Representation Agreement (IRRA) with Proactive Sports Management Ltd, to represent him in his commercial affairs for the next 8 years. Midway through this contract, when his agent (Paul Stretford) was fired from Proactive and set-up a new sports agency, the Rooney’s followed him across and purported to sever links with Proactive on the 18th December 2008. Proactive sued Wayne and Coleen for liquidated damages and commission that they felt continued to be owed to them on the various sponsorship contracts negotiated on their behalf by Proactive.

The Rooney’s successful counter-claim against Proactive was based on their view that any contract between them is ‘void, invalid, unenforceable and of no effect’ as the 8yr term represents a restraint of trade.

Aren’t there rules governing Player Contracts?

On-field representation agreements are comparatively well regulated by the FA: they are limited to a maximum term of two years and must be in writing. Essentially these contracts are dependent on a player’s skill and given this, an agent would normally take an average fee of 5% to represent their one-off role in negotiating the contract.

By contrast however, contracts governing off-field activities (such as image rights) are wholly unregulated by both the FA and FIFA, although the Inland Revenue is now looking into this area closely (see http://www.dailymail.co.uk/sport/football/article-1311210/Wayne-Rooney-facing-crisis-taxman-gets-set-chase-1million.html). Unlike on-field agreements, these commercial contracts need constant servicing and brand protection / management, therefore agents will usually charge an average fee of 20% to reflect the additional work undertaken. It was this type of contract that formed the basis of the case.

  • 17th July 2002, Rooney signed an 8yr, on & off field agreement with Proactive (this was later varied on the 16th Jan 2003 to strip out off-field components)
  • 19th September 2002, Rooney again signed an 8 yrs agreement, however this was quickly  torn up and replaced with Dec  version (below)
  • 14th December 2002, Rooney signed a 2yr on & off field agreement with Proactive, which was renewed in 2004 and 2006. Critics have suggested that this was only signed so a copy of the contract could be lodged with the FA.
  • 16th January 2003, Rooney signed over his commercial rights to Stoneygate. Stoneygate in turn signed an 8yr representation agreement with Proactive.
  • 1st Feb 2003, Rooney signed a playing contract with Everton FC (actually executed on  or about 15th Feb 2003)
  • 23rd August 2004, Rooney transferred to Manchester United FC in a £27m deal (the MUFC Image Rights contract was later varied to extend the contract to 30th June 2012)

 

Who was involved in the case?

Essentially, there were five main companies involved to some degree:

  • Proform Sports Management Ltd is the agency that Wayne was signed to as a 15 yr old by Peter McIntosh. This agreement was later held to be unenforceable (Proform Sports Management Ltd v. Proactive Sports Management Ltd [2006] EWHC 2903 (Ch)).
  • Proactive Sports Management Ltd is the agency that Wayne moved to at 17 and remained with for the majority of his professional career.
  • Stoneygate 48 is the limited company set-up to manage Wayne’s Image Rights
  • Speed 9849 is the limited company set-up to manage Coleen’s commercial affairs (Harper Collins, OK! Magazine etc). Although there was no formal contract between Coleen and Proactive, the Court implied this from past conduct [775] and calculated commission on the basis of a 20% rate.
  • Triple S Ltd – is a new company informally appointed July 2009 to act as Stoneygate’s Agent in relation to image rights following Paul Stretford’s move from Proactive.

And a number of key people:

  • Paul Stretford – formerly chief executive of Proactive until late 2008, Stretford is a Director of Stoneygate and his firm acts as Rooney’s on-field and off-field agent. While Mr Justice Hegarty QC found Stretford to be a highly able and effective agent, he was criticised in court for his failure to be a truthful or reliable witness [311].
  • Mel Stein – a solicitor and football agent who acted as key witness for the claimants
  • Gordon Taylor OBE – Chief Executive of the Professionals Football Association (PFA) who acted as key witness for the defendants

 

So what are Image Rights?

The Court defined these rights as:

“Image Rights means the right for any commercial or promotional purpose to use the Player’s name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated to the Player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/or any other representation and/or right of association and/or any other right or quasi-right anywhere in the World of the Player in relation to his name, reputation, image, promotional services, and/or his performances together with the right to apply for registration of any such rights.”  [187]

Once at Manchester United, Rooney was restricted to signing only 5 sponsorship agreements and 5 merchandise agreements. There were two main reasons for this restriction, the first was to avoid diluting the Rooney Brand, the latter was to ensure that Rooney had enough time to focus on his football rather than the demands of sponsors. At the time of the case, the main sponsors were:

  • Nike, unusually this was a 10 yr contract to take advantage of Rooney’s potential growth
  • Coca Cola (4 yr contract)
  • EA Games (3yr contract)
  • Manchester United FC
  • Asia Pacific Breweries Ltd (2yr contract to promote Tiger Beer)
  • Big Blue Tube
  • Pringles Crisps

 

How did Proactive argue their case?

The first attempt to derail the Rooney case was to cast doubt on the credibility of Paul Stretford. Earlier in 2008, Stretford had been charged with various FA disciplinary offences relating to the 2002 Agreement and terms. These related to making false or inaccurate statements at Warrington Crown Court during the trial of John Hyland, Anthony Bacon, Christopher Bacon for offences of obtaining money by deception (by demanding money from Mr Stretford in connection with Wayne’s move from Proform to Proactive). In Court, Stretford denied Rooney had signed any footballing representation agreement prior to 12th Dec 2002 (even though he knew Rooney had signed two agreements in July and Sept 2002), although he did acknowledge there was an IR agreement. When the truth was later discovered, the Crown decided it could no longer rely on Stretford’s evidence and withdrew its case, while the Jury entered formal verdicts of not guilty for the three men. Subsequently the FA Regulatory Commission commenced disciplinary proceedings against Stretford and decided on 9th July 2008 to fine him £300,000 and suspend him from acting as a player’s agent for 18months (with the final 9 suspended). Although Proactive paid the fine, Stretford later resigned as a director of Proactive on 20th May 2008.

Post-Termination Commission

The main debate in the case was in relation to any right to Post-Termination commission payable at the end of a contract. Essentially the question before the court was if an agent negotiates a sponsorship and is then replaced or fired, are they still entitled to receive 20% commission over the life of that contract, even if the player is represented by a new agent?

[469].….“On the one hand, it might be said that the legitimate commercial interests of the agent could only properly be protected if he was entitled to receive post-termination commission on contracts which he had negotiated. Otherwise, it might be said, he might find himself in a situation in which he had successfully negotiated a highly lucrative, long-term commercial sponsorship agreement just before the end of his contract only to find that his client immediately transferred his business to another agent, thus depriving the original agent of any proper remuneration for the work which he had done.

 [470]. On the other hand, it might be said that if an agent was entitled to post-termination commission notwithstanding that a new agent had been appointed in his place, it would mean that he would continue to receive substantial sums by way of commission without having to provide any further services to his client. By the same token, in those circumstances, the new agent might have to service the inherited contracts without payment or the client might, in effect, have to pay double commission.”

 After very long and at times technical legal arguments, the Court decided that a right to commission in this instance was dependent on a service being provided – no service provided by an agent, no commission [553]. One other factor helped in reaching this decision, that the right to post-termination commission was not explicitly drafted within the contract and this was essential particularly where there was an imbalance between a contract professionally drafted by solicitors (Proactive) and commercially unsophisticated parties without any independent legal advice (Rooneys) [554].

Termination Clause within the contract

Most of the arguments made by both parties in relation to the validity and effect of the termination clause within the contract were rejected by the Court. In particular, the Court was not persuaded by the estoppels arguments raised by claimants, or the mistake argument raised by the defendants [600]. The Court also rejected the argument that the contract was ‘affirmed’ by Mr Stretford passing on any knowledge and risks of the unenforceability of the IRRA due to his prior knowledge as a Proactive Director, as he would have been under a duty of confidence not to disclose privileged legal advice [678]. The case therefore effectively turned on the question of Restraint of Trade.

Restraint of Trade (RoT)

“Any contract or contractual stipulation which is in restraint of trade is Prima facie unenforceable unless it is reasonable having regard to the interests of the parties and the public.” [621]

While it is often possible to sever offending RoT clauses from the rest of the contract, this was not possible on this occasion. The Court felt that a number of factors needed to be taken into account, in particular, the fact that there was:

  • No meaningful negotiation
  • A Flat fee of 20% was payable on each sponsorship opportunity regardless of the amount of the contract
  • The Rooney family had no commercial experience and were utterly unsophisticated in financial and contractual matters
  • The Rooney family never took any independent legal advice
  • The Image Rights Representation Agreement was unique in the industry in many respects including its long duration (The Court did however note that a 2-5yr term could have been acceptable  [723])
  • The IRRA imposed substantial restrictions on Rooneys freedom to exploit his earning ability
  • It was irrelevant whether any restriction on earning ability was partial or total
  • The cost of termination represented a significant disincentive to exit and was essentially penal rather than attempt to quantify the damages payable

 Once this RoT conclusion had been reached, all that was left was to conclude was that Proactive were entitled to quantum meruit (a restitutionary award based on objectively valuing the services they had actually provided) for any contract payments falling due before the relationship had terminated. But importantly, nothing after this termination.

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New Sports Sponsorship Report released

October 6, 2010

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Simon Rines from IMR Publications has kindly allowed us to reproduce the following extract from their new Sports Sponsorship Report, which seems to confirm our earlier findings about the importance of addressing Ambush Marketing at sports events:

Recent incidents or allegations involving the Pakistan cricket team, Wayne Rooney and cricketer Kevin Pietersen amongst others might well have caused sponsors to give further thought to their sponsorship contracts. So far most sponsors have stood by those that they have endorsed, although sports goods manufacturer BoomBoom has suspended its sponsorship of Pakistan cricketer Mohammad Amir following the allegations of match-fixing in the Test series. A new report, Sports Sponsorship & the Law, published by IMR Publications, shows that the need for clarity in morality clauses is stronger than ever if sponsors are to minimise the impact on their brand of the bad publicity that often comes with allegations of misconduct of one kind of another. “Sponsors need to be very clear about what type of behaviour they consider might damage their brand,” says report editor Stefan Fabien.

Warren Phelops of K&L Gates LLP, who contributed the morality clause section of the report, points out that there are further complex issues that both sponsors and rights holders need to be aware of. “Behaviour that can be considered to be morally dubious, yet not illegal, or which is alleged, but unproven can be a grey area. This is particularly so where the contract simply states that such behaviour must cause damage to reputation before it comes within the scope of the clause.”

Care also needs to be taken that sponsors’ rights are not inadvertently waived.  “Should action not be taken quickly, or not taken in response to an earlier similar indiscretion, then it might be reasonable to assume such inaction results from the behaviour not affecting brand reputation.” says Phelops.

Even in cases where the morality clauses appear watertight, it can be possible for the sponsor to find it lacks protection. “Many athletes choose to conduct their sponsorship deals through personal service companies (usually for tax purposes) rather than in an individual capacity,” says Phelps. “Where this happens, the contract’s morality clauses must cover the individual rather than the company.”

The report also emphasises the need for sponsors to ensure that contracts are specific to the relationship, rather than use templates. “The terms that would be appropriate to one athlete might not be so to another,” says Fabien. “For example, a footballer losing his temper and perhaps being sent off in a match could be very different to a tennis or snooker player acting in a similar manner. When Andy Roddick verbally abused a line judge in the US Open, it made headline news in sports pages around the world. Footballers, however, harangue match officials almost as a matter of course. It is therefore important for sponsors to be very clear about what behaviour is acceptable to them and also to evaluate what would be damaging to their brand.”

The Full report can be accessed at: http://www.imrpublications.com/

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Is Rugby Union soon to follow in the footsteps of Cycling and Athletics?

August 15, 2009

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Sources: http://news.bbc.co.uk/go/pr/fr/-/sport1/hi/rugby_union/my_club/bath/8093596.stm http://www.timesonline.co.uk/tol/sport/rugby_union/article6737649.ece http://news.bbc.co.uk/sport1/hi/rugby_union/8174825.stm

Following several doping related incidents 2009 seems to be a year the RFU and Bath Rugby may want to either put behind them or feel proud of.

It all started in January when it evolved that Matt Stevens had failed a drugs test and then in February was banned for 2 years. (see the following link for the full story https://sportslawnews.wordpress.com/2009/03/06/matt-stevens-starts-2yr-drug-ban/)

Then in June Michael Lipman, Alex Crockett and Andrew Higgins quit Bath following claims that they refused to take drugs tests. It was alleged that Lipman, Crockett and Higgins had taken recreational drugs whilst at an end of season party. As a result their then club Bath requested they take drugs test. The 3 players were said to have dodged these requests. However all 3 deny that they were avoiding tests and in doing so they walked out on the club, claiming “scurrilous and unsubstantiated allegations” had forced their exit.

In July Justin Harrison admitted taking cocaine and was suspended from playing or coaching for 8 months for “actions prejudicial to the interests of the game”. Harrison admitted to taking the class A drug in the toilets of a West London pub and he also confessed to shouting “Class A, it’s OK, everyone’s doing it” on a coach carrying members of the Bath academy.

Now we are in the second week of August and following the goings on in June Lipman, Crockett and Higgins have been suspended by the RFU for 9 months after being found guilty of misconduct for failing to comply with their club’s request for a drugs test. What is interesting is that all allegations that the players had taken the drugs were dropped at the start of the hearing, which then allowed the hearing to focus on whether the club’s requests were reasonable or whether the 3 players actions in quitting the club after being asked to take the tests were reasonable.

The panel chaired by Judge Jeff Blackett fully supported the club’s actions and stated, “If the players had nothing to fear from taking a drugs test then they would have taken them.” They then went on to say, “The reality of the case was that at the time when asked to take a drugs test, the players believed there was a risk of positive results.

“This was either because they knew they had ingested drugs or they had drunk so much alcohol that they could not remember whether or not they had ingested drugs. Each of the players therefore decided to play for time, keep out of contact and then hide behind legal defence.”

Richard Mallett, solicitor acting on behalf of Lipman, Crockett and Higgins, said: “All three players are absolutely devastated by today’s result and that they have now been suspended from playing the game they love.” However, there is no sign of an appeal at the moment. This is possibly because everything that was stated in the panel’s summing up is true and their actions have hit home, after all nothing screams guilty more than refusing or obviously avoiding a drugs test on several occasions. The 3 players will now have a lot to do in repairing their damaged reputations.

Whilst some may feel disheartened that Rugby Union seems to be following in the footsteps of cycling, athletics, swimming etc and gaining a reputation for doping, others may see the shining light at the end of the tunnel. 2009 may be viewed as a breakthrough in tackling drugs in Rugby. Especially with premiership Rugby growing in popularity recreational drugs can no longer be ignored.

“The RFU disciplinary panel takes no pleasure in imposing its sanction as the players involved are decent young men,” the judgment added. “There is also a need for a strong deterrent in this sanction.”

The RFU supports Bath’s tough stance on what seems to be a zero tolerance for drugs, whether they be performance enhancing or purely recreational. In addressing the issues raised players will be subject to a new education programme next season whilst Bath’s head coach wants to push through a new code of conduct for all to abide by, which includes a ban on recreational drug use. Other clubs and sports should perhaps take a leaf out of Bath’s book by taking the initiative and going above and beyond that which is covered by WADA regulations to preserve the quality and reputation of the sport whilst protecting the health and welfare of its players and all those young people who look to professional sports players as role models.

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What’s in a name? well quite a lot actually by the sounds of it…

July 24, 2009

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Sources: Full case report – http://www.employmentappeals.gov.uk/Public/Upload/08_0505rjfhwwDA.doc 

Lambden v. Henley Rugby Football Club & Henley Rugby Football Club Ltd [2009] UKEAT/0505/08/DA

The case concerns the sacking of Jon Lambden, the 54 yr-old Head Coach and Director of Rugby at Henley Hawks Rugby Club on 18th February 2008. The case itself is an appeal from the decision of the 2008 Employment Tribunal in Reading that dismissed Lambden’s claim for unfair dismissal.

At issue in the case, is the nature of the claimant’s employment relationship with the club. The claimant contends that he was employed and therefore because the club summarily dismissed him without going through the full employment procedure, he is entitled to compensation. The Club on the other hand maintains that the claimant was actually self-employed and therefore it was entitled to terminate his services as it did.

Although there was a question mark over whether the Rugby club itself or the limited company set-up to manage the club that engaged in a contract with the claimant, the Appeal  Tribunal agreed with the earlier Tribunal that the Rugby Club had no contractual relationship with the claimant and that any action would be against the limited company [36].

So why was the claimant’s employment relationship so controversial?

The problem was that Henley Rugby Club had merged two previous roles (one self-employed, the other employed under PAYE) and offered the claimant the choice of which tax status he wanted to be [21]. The claimant chose self-employed and set up his own limited company (JKNA Training Ltd) [23]. In doing so, the Tribunals found that the claimant had a clear idea as to the difference in status between the two methods of taxation [26]. This decision was not so clear-cut however when the full facts of the contractual relationship were examined

  • The claimant’s hours of work were all training evenings and match days
  • The work for the club amounted to just under one half of all JKNA invoices
  • The claimant had autonomy over playing and sporting matters (the tribunal held that this was not an indication of self-employment but rather specialist expertise superior to the club [32]).
  • The claimant was under the control of the Chairman of the Club Management Committee
  • A notice period of three months on either side was agreed
  • Salary was fixed at £27,500pa regardless of how many hours were actually worked, with provision for a bonus and importantly, 4 weeks holiday pay
  • Also included was a fully insured, leased car from the Club’s fleet and a Club credit card (although the Tribunal held that provision of a car and credit card were usually indicative of employment rather than self-employment status, it gave little weight to them, preferring the substance of the arrangements instead [27]).
  • The claimant was not expected to provide a replacement or substitute if he was unable to provide his services

Although both Tribunals held that there were aspects that pointed more to employment than self-employment, no single point was decisive and in the absence of an unequivocal finding more weight had to be given to the parties self-description (ie self-employment) [57].

Ultimately though, the decisive point in the case was the fact that the Employment Appeal Tribunal could only overrule the earlier Tribunal decision if it felt that it was in some way perverse or misdirected in law [45]. On these facts, it was impossible to say that they had and the claimant’s action failed.

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Restricted access to rugby ground

July 24, 2009

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Sources: full case report – http://www.bailii.org/ie/cases/IEHC/2009/H191.html; see also an interesting Irish blog report on the case: http://www.cearta.ie/2009/05/rugby-property-and-the-interpretation-of-contracts/

Hannon & Others v. BQ Investments [2009] IEHC 191

The four claimants (Brendan Hannon, Martin Ryan, Declan Cusack & John Meaney) are all trustees of Thomond FC and sued the defendants over an agreement for sale of some land for a student apartment development. As part of the sale, the purchaser also agreed four special conditions (8-11) :

  1. The provision of “two suitable rugby playing pitches, levelled, top soiled and ready for seeding” on the remaining lands
  2. The relocation of the existing floodlights and electricity sub-station to one of these new pitches
  3. The club would have a right of way over the roadway and footpath for use of the pitches and clubhouse
  4. (Uncontested at trial) that the club could connect into the services installed by the purchaser.

While an earlier Circuit Court case (concerning clauses 8 & 9) was settled for an additional sum, effectively buying out the defendants obligations under the two clauses, nothing was raised about clause 10 until a year later when the claimant’s solicitors sent a letter reminding the defendants about their obligation to construct and light a right of way to the pitches.

The dispute in this case therefore relates to the meaning of the words in clause 10 and in particular when the obligation to build this roadway and footpath became due. The problem is that while the location of the right of way was agreed by both sides, no formal clubhouse actually existed (simply a temporary portakabin). The defendants therefore argued that they did not need to build a new right of way to this land as other pre-conditions had not been fulfilled. By contrast, the claimants argued that their actual use of the land was irrelevant but that any plans they did have for the land was compromised without the right of way, but even if it were not, clause 10 is a stand-alone clause.

Ultimately the court decided that the phrase ‘for use of the’ related to the purpose of the land, rather than any condition precedent  and that as a result the defendants were in breach of contract. The court however reserved any decision on awarding damages or specific performance until after further evidence had been heard about the future plans for the land.

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Calzaghe disliked the least

March 24, 2009

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Source: http://www.independent.co.uk/sport/general/others/boxing-calzaghe-clobbers-warren-for-1632m-1646412.html

 

Read the full case here: Sports Network Ltd v. Joe Calzaghe CBE [2009] EWHC 480 (QB) http://www.bailii.org/ew/cases/EWHC/QB/2009/480.html

 

The High Court has finally decided on the outcome of the Frank Warren (Boxing Promoter, and director of Sports Network Ltd) vs Joe Calzaghe CBE (world champion professional boxer) fight. It was a closely fought battle, but arguably Calzaghe narrowly won on points, and Warren has been told to pay Calzaghe £2m in unpaid fees.

 

If you read the case, it is clear that the Judge (Mr Wyn Williams) is very critical of many of the participants in the case. Both Calzaghe and Warren’s behaviour was shabby at best, and both men were complicit in the deception of the governing body in relation to avoiding fees [62]. Calzaghe’s lawyer (Mr Gareth Williams) was also accused of misleading the court [107], and Calzaghe himself was accused of lying while giving evidence [138]. Warren came off little better and his counterclaim for £1m was described at [155] as a “smokescreen…..to avoid payment by the Claimant to the Defendant of a very substantial sum of money”

 

The facts of the case concern whether an agreement was reached for Warren’s company – Sports Network Ltd to promote Calzaghe’s last (and ultimately successful) fight on 8th November 2008 against Roy Jones Jr. Warren claimed that because Calzaghe promoted this fight himself, he was in breach of contract, and Warren therefore withheld payment of the fees from the previous fight against Bernard Hopkins in compensation for this breach. The issue before the court was therefore whether a contract (oral or written) was in existence for Sports Network Ltd to promote the Roy Jones fight. Ultimately, the court held that this contract did not exist and found for Calzaghe, despite Warren’s claim of an oral agreement and a handshake (or hugs) between the two parties. What was material about the case was Mr Justice Williams’ view that if a contract had been agreed between the two parties, Warren was such an astute businessman that the contract would quickly have been written up and signed. The fact that nothing was ever put in writing, seemed to suggest that an agreement was never actually reached.

 

That said, neither party emerges from the case with any distinction. Indeed, the facts of the case are muddier than a very muddy footpath. It seems not so much that Calzaghe won, rather that Williams J disliked him the least.

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Paying for policing

January 4, 2009

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The Court of Appeal has just held in Chief Constable of Greater Manchester v Wigan Athletic AFC Ltd [2008] EWCA Civ 1449 that the extra cost of policing needed by Wigan Athletic for its home games over and above the services it had expressly requested, was not repayable by way of either restitution or contract. (At least West Bromwich Albion don’t need to worry about this additional cost next season!)

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