Tag Archives: football

What the global ban on Third Party Ownership (TPO) means for football?

December 8, 2015

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By Joe Nelson – Staffordshire University, BA Sports Journalism Student

Following FIFA’s worldwide ban of Third Party Ownership (TPO) on professional footballer’s contracts earlier this year, it is hoped that football clubs across the globe will now be urged to invest more time into their players, nurturing their well-being and talents to procure better deals for all parties involved.

The new law, introduced in May 2015 by FIFA, put forward by FIFPRO (The Professional Football Players Union) received huge backing, including the likes of Michel Platini, who had likened TPO to ‘slavery’.   Although currently suspended from footballing activity, at the time, Platini explained in a UEFA statement how young players are vulnerable and could be exploited using TPO: “UEFA and FIFPRO therefore call on the European Commission to investigate the practice of third-party ownership and to fully endorse FIFA’s decision to prohibit such arrangements.”

A study in 2014 by KPMG showed that 90% of player’s economic rights in South America were partly owned by third party investors. TPO gained mass coverage when it was announced that Santos, a Brazilian football club would only receive €17.1 Million from the superstar, Neymar’s transfer to Barcelona, where €40 went to N&N, a company owned by Neymar’s parents.

It was also found by audit firm, KPMG, that investors and ‘third parties’ owned stakes in the contracts of up to 1100 professional footballers in Europe. For example, world class talent such as Radamel Falcao has been in the spotlight over the dealings, as two of his previous clubs (Atletico Madrid and Porto) have been found guilty of selling a percentage of their player’s contracts to raise funds. Porto, the Portuguese giants had previously been linked with other TPO dealings, and another recent study showed that as much as 36% of professional football players in Portugal were co-owned by third-party. Most recently publicised was Sporting Lisbon’s William Carvalho, whose transfer to Arsenal was said to have broken down due to the ownership problems.

The first breach in the new law was made by second division Belgian club, Seraing United, who failed in their appeal to FIFA’s ban in court in July 2015. The club have been banned from signing players for two years and fined 150,000 Swiss francs after agreeing to third-party ownership deals. FIFA welcomed this legal win as they stated it was “Indispensable for preserving clubs.” FIFA’s executive committee agreed to the ban in May following the campaign by UEFA and FIFPRO.

FIFA have agreed, due to the vast quantity of players involved in third-party ownership that they cannot prosecute each club, as there will be a natural ‘transitional period’, which may cause unrest within numerous leagues due to the nature of the proposal. Where one team may be severely punished, another club from the same league may not be investigated as deeply, which could cause unrest and numerous cases being appealed. For instance, if FIFA had simply cut all ties, expressing that all third party owners must be bought out immediately, it would have made for a far more straightforward command and consequence: You buy out the third parties, or pay a severe fine and be given a transfer embargo.

FIFA have announced that any deals made before 2015 will be allowed to expire under the current circumstances, and any made between January 1st and April 30th will be subject to a maximum one year time limit.

However, any new TPO deals agreed will be punished immediately, which is explained in more depth here. This ‘transitional period’ means that numerous transfers will still require buying out a ‘third party’ in the coming months due to the clauses still within the contracts. For example, recent Premier League acquisitions such as Eliaquim Mangala, Lazar Markovic and Marcus Rojo all involved an external source receiving funds for the transfers, along with the players’ previous clubs.

Inquisitions into TPO in English football is not a new concept. The Kia Joorabchian case brought a lot of light to the situation nearly ten years ago. In that instance, the  problem arose after Joorabchian was said to have represented four separate companies who owned shares in the Argentinian stars, Carlos Tevez and Javier Mascherano during their moves to West Ham United from Corinthians in 2006 (although Joorabchian has publicly declined to discuss the details of Tevez’s ownership and his buying, loaning and selling of the player, citing confidentiality agreements). The Premier League did however fine West Ham a record £5.5 million, and took steps to outlaw TPO in England in 2008.

Joorabchain later claimed that multiple other Premier League clubs use TPO and conceal their involvement in it. He also defended the use of TPO, expressing that it was: “a way of bringing outstanding players to clubs that would not be able to afford them ordinarily.” The Iranian believed it was a ‘South American model’ being used all over Europe.

These third party agreements are understandable, especially with the poorer clubs in the poorer leagues across the world, who need the revenue badly. However, the change means that football clubs should now become more invested in their sides, and not see their players simply as commodities and potential profits.

This process also means that, when the likes of Barcelona or Madrid come swooping in for the next showstopper from South America, they need not fret about complications in the contact and can focus solely on the player’s footballing ability and what he has to offer, along with paying his club 100% of the transfer price. Santos, in this scenario, would receive the full transfer sum for one of their prized assets, thereby giving them more money to invest in their club.

The ban on TPO now makes the game a fairer playing field for all involved, and will produce happier playing professionals across the world. There are still several cases to be sorted across South America and Europe, and we are bound to see numerous cases involving loopholes in the law crop up in the coming months, but it’s another big step towards making football clubs realise they’re still running a team, not a business.

 

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NCAA football player sues university for failure to educate

November 17, 2014

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By Mitchell Smith – Thompson Rivers University 3L JD Student

Michael McAdoo played football at the University of North Carolina (“UNC”) from 2008 to 2010. In 2010 McAdoo was found ineligible to play and dismissed from the football team because he was accused of having a tutor do improper work on one of his papers and breaching NCAA eligibility requirements.

McAdoo later became one of the first players to shed light on a supposed 18-year academic scandal that was used in order to keep athletes eligible to play sports. The scandal involved the creation of fraudulent classes that never met or taking “paper classes”, where the only requirement was completing a single paper. The classes were then used to inflate players’ grade point average or GPA.

According to a CNN report, McAdoo is now suing the university in federal court. He is accusing the university of breaking its promise to provide an education in return for playing sports. His lawyers are attempting to represent a class of North Carolina scholarship football players who played between 1993 and 2011.

The lawsuit stems from an independent report, which was released last month. The report demonstrates how academic counselors in UNC’s athletic department pushed its athletes into these no-show classes. The report further discusses an example of classes in the African-American Studies department being organized by a student services manager. In these classes students never had interaction with faculty and the student manager assigned grades without considering the quality of work. Often times the student manager was told what grade the player should receive in order to reach the NCAA academic eligibility requirements.

The NCAA outlines its academic eligibility requirements in the form of GPA as follows:

• Division I

“Student-athletes must achieve 90 percent of the institution’s minimum overall grade-point average necessary to graduate (for example, 1.8) by the beginning of year two, 95 percent of the minimum GPA (1.9) by year three and 100 percent (2.0) by year four.”

• Division II

“Based on a 4.0 scale, Division II student-athletes must earn a 1.8 GPA after 24 semester or 36 quarter hours, a 1.9 GPA after 48 semester or 72 quarter hours and a 2.0 GPA after both 72 semester or 108 quarter hours and 96 semester or 144 quarter hours.”

The African-American Studies classes were seen as GPA booster courses. It was found that the average grade for student athletes was a GPA of 3.55 as compared to 2.84 in the regular classes.

McAdoo’s class action claim alleges that UNC breached its contract with football players, violated the state’s consumer protection law, and committed fraud when recruiting athletes. McAdoo expressed particular distaste for the fashion UNC conducted it recruitment, as that was one of the main reasons he had decided to attend UNC. He stated that when the coaches and academic staff came to visit they did not discuss football but instead talked about academics. This promise turned out to be false.

This suit is another hit to the NCAA who has been heavily targeted by former and current players for its treatment of student athletes. The NCAA is prohibited from remunerating its players for revenue and sponsorship it earns from college sports. Instead the NCAA believes they compensate student athletes adequately for their services by providing scholarship funding for an education that would otherwise cost $80,000 or more. McAdoo and his fellow claimants have been deprived of this benefit and UNC in turn continues to earn the substantial profits.

Is UNC the only university that conducts itself in such a manner? Skeptics say no; NCAA football is big business. Coaches are paid a substantial amount of money to win games. It is not unrealistic to conceive that they are motivated to ensure by whatever means possible that their student athletes meet the minimum academic requirements. To me this represents a moral hazard issue where the coach could very well be more concerned with losing his position rather than helping his student athletes both on and off the field. The reality is the majority of student athletes will not make a cent in the professional leagues and in turn will rely on the supposed education they were supposed to receive at university.

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Dangerous Soccer Celebrations Raise Questions About the Future of Goal Celebration Rules

November 9, 2014

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By Brittany Corwin – Thompson Rivers University 3L JD Student

Late last month, Peter Biaksangzuala, an Indian soccer player from the Mizoram Premier League, celebrated an equalizing goal against Chanmari West FC with several flips. He landed one of these backflips on his head, leaving him unconscious and with severe spinal cord damage. Several days later, on October 19, 2014, Biaksangzuala tragically passed away due to complications from the injury.

In response to Biaksangzuala’s death, FIFA’s Medical Committee warned that it would be pushing for a new rule to ban such celebrations as backflips and somersaults because they pose a safety risk to players.

Currently, “Celebration of a goal” under Law 12, ‘Fouls and Misconduct’ of the ‘Laws of the Games’ currently states:

“While it is permissible for a player to demonstrate his joy when a goal has been scored, the celebration must not be excessive. Reasonable celebrations are allowed, but the practice of choreographed celebrations is not to be encouraged when it results in excessive time-wasting and referees are instructed to intervene in such cases.”

Further, this section of the ‘Law of the Games’ specifically mentions that players should be cautioned for such actions as making provocative or inflammatory gestures, removing one’s shirt or climbing on a perimeter fence, to name a few.

As you can see, the current rules are focused on avoiding excessive celebration and celebration that may be considered as wasting time, unsportsmanlike or inappropriate. There is no indication of safety as a concern relating to players’ methods of goal celebration.

The lack of safety consideration is eye opening, since Biaksangzuala’s tragic death is an indication that goal celebrations can be dangerous and can result in catastrophic outcomes. However, this raises the question of what FIFA should do in response to events like Biaksangzuala’s and prevent them from occurring again.

FIFA stated that it would be issuing a “directive” warning players not to perform such celebrations. Afterwards, the FIFA Medical Committee will then begin writing a proposal to ban celebratory somersaults and backflips. However, Dr. Michel D’Hooghe, chairman of FIFA’s Medical Committee, stated that he presumed the directive would not be effective in ensuring players avoid these actions, but instead he suggested that these celebrations need to be made illegal.

If FIFA makes backflips and somersaults illegal in the celebration of a goal, it would definitely help deter players from performing them and reduce those specific injuries as result. However, what about the other celebratory actions that result in injury but do not involve flips of any sort?

While Biaksangzuala’s celebration tragically resulted in his death, other sports have recently seen injuries during athlete celebrations as well. For example, on October 26, 2014, defensive end Lamarr Houston of the National Football League Chicago Bears suffered a season-ending ACL tear in his right knee while celebrating a sack against the New England Patriots. A month prior in another NFL game, Stephen Tulloch of the Detroit Lions similarly tore his ACL after celebrating a sack against the Green Bay Packers, rendering him unable to play for the year.

These sack celebrations were little more than a couple skips and jumps, which is quite the opposite of Biaksangzuala’s backflip. However, they resulted in significant injuries that left the athletes out for the season or year.

Celebrating one’s success, whether it is a goal or an amazing play at just the right moment, is inherent in the sport. Everyone wants to celebrate their successes and I am certain that in that moment these players do not consider the dangers that may arise from their celebrations.

Celebration is spontaneous and players take their own risk when choosing how to celebrate. It is such an exciting moment for the player, team and his or her fans and thus, making a long list of celebratory actions illegal takes away this spontaneity.

Even if backflips and somersaults were banned, as Dr. D’Hooghe suggested, there are no changes to rules of celebration that could address all the dangers that could possibly result from a player celebrating his or her success. The NFL sack celebrations are a prime example of this.

Celebration is inherent in the game of soccer, and sports in general, and backflips and somersaults should not be made illegal. Players take their own risk when they choose their celebration and while all possible injuries cannot be preventable or foreseeable, these players need to be aware of the possible dangers that could arise. Hopefully, Biaksangzuala’s tragic death will open players’ eyes to the real dangers that can materialize and they will think twice about taking the risk of throwing a flip and opt for a lower risk celebration instead.

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To Grass or Not to Grass: Gender Discrimination at the FIFA Women’s World Cup Canada?

October 7, 2014

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By Fei Kang – Thompson Rivers University 3L JD Student

Canada will host the 2015 FIFA Women’s World Cup. Exciting, eh? The Canadian Soccer Association (CSA) will see this world-class tournament played from June 5th to July 6th in 6 cities across the country next summer. FIFA, the international governing body of football, agreed to a “2-star recommended football turf” as part of Canada’s bid deal; yes, artificial turf. Once this announcement was made, confusion and public outrage began. This is because the men’s equivalent of the event has only ever been played natural grass. My egalitarian Canadian roots tell me there must be a reason for this difference … but there doesn’t seem to be one.

Abby Wambach, a striker and leading goal scorer for the US Women’s Team, has been leading the public protest. She decided to take it public when nothing came of private complaints from the players to both FIFA and CSA. Wambach is not alone in her disdain either. International male players, US congressmen and even celebrities such as Kobe Bryant and Tom Hanks have given their two cents on the matter: “Hey FIFA, the women deserve real grass. Put in sod!”

There seems to be a consensus among soccer players that artificial turf is a second class surface and inferior for international soccer. Most can attest that turf is unforgiving on the players’ bodies, especially where recovery time is precious. Grass holds moisture, turf cannot. As a result, turf tends to get unbearably hot when the air temperature rises, which can lead to less-forgiving injuries, including second degree burns. Indeed, robust biomechanical data suggests that torque and strain may be greater on artificial surfaces than on natural grass. Recent data by Drakos et al. in 2013 suggest that elite athletes may sustain injuries at increased rates on the newer 3G surfaces. Some also say that the ball simply travels differently on turf and affects the game negatively.

FIFA states that while turf has been unsuccessful in the past, recent developments have made football turf a qualified and viable “best alternative” to natural grass. FIFA only certifies 3G systems, which fulfill quality requirements like playing performance, durability and quality assurance. Turf has financial advantages as well, which is where CSA likely stands, due to the resistance to weather, ability to endure intense use and multi-sport purpose. FIFA has stated that the particular geographic and climatic conditions in Canada mean it is more expedient to play on artificial turf, and that it is “the surface of the future.” In short, FIFA a is turf cheerleader.

The protesting athletes say the decision to play the tournament on turf amounts to gender discrimination because the men would never be forced to play the sport’s premier tournament on fake grass. In fact, there are no plans to shift future men’s World Cup tournaments to turf through to 2022. In late July, 40 top players and their lawyers joined in a letter of protest to FIFA and CSA. As of Sept 27th, FIFA has yet to respond and CSA has deferred comment to FIFA. The players are now poised to take legal action in Canada. Under the Canadian Charter of Rights and Freedoms, Section 15(1) states:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on … sex.”

Additionally, under the BC Human Rights Code (and similarly enacted in every Province and Territory), a person (Section 8) or association (Section 14) must not discriminate against any person or member because of sex. The players will likely bring an action under both the Charter and Code.

Overall, it just doesn’t make sense. Even FIFA’s website out-rightly states that its certified turf is a best alternative to natural grass. So use grass? It’s the World Cup and we are not in 1915. Many questions remain: if turf is the future, why is it not incorporated in future men’s tournaments? Will the 40 players’ legal action be successful under anti-gender discrimination laws in Canada? Whatever the court says, and whatever FIFA and CSA may say, the fact is that it looks like turf is being used as experimental surface in a world-class women’s tournament. Women are being singled out. I am proud of the protesting players for their unwillingness to accept less than they deserve. We should not accept gender discrimination in international sporting events. We can do better, Canada.

 

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The FIFA World Cup – #SayNoToRacism, #SayYesToConcussion?

June 20, 2014

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Last night’s FIFA World Cup football raised two important duty of care issues, concerning whether, and if so when, athletes have the right to continue playing? The first issue, concerning Uruguayan (and Liverpool FC) striker, Luis Suarez was whether he would be fit to play following minor surgery to the meniscus in his knee in late May. While meniscal injuries can have comparatively quick recovery periods, it is important to differentiate between full match fitness and the graduated stages of functional rehabilitation immediately preceding that. Why is this important? Put simply, if a player returns to play too quickly, or for too long, this will increase the risk of subsequent injury. It is interesting to compare the example of Suarez with that of the French winger, Franck Ribery who refused to allow the French medical team to administer cortisone injections immediately prior to the World Cup (http://bit.ly/1oMsFYx ). Indeed, FIFA themselves argued in 2012 that the ‘”abuse’ of painkillers could put the careers and long-term health of footballers in jeopardy” (http://fifa.to/1jBQpqi – although some of the headline conclusions from this study have been criticised: http://bit.ly/1idT5jb) so whose decision is it to allow athletes like Suarez to play? Ultimately, there are four decision-makers:

  • The athlete themselves – they must have an informed consent as to the risks of participation, or sub-optimal rehabilitation on their long-term health. It has however been argued that this consent could not truly be regarded as wholly voluntary, given the employment pressures that they may (or may not) be under
  • The medical team – in all matters concerning the health of the player, ultimately the responsibility of determining the fitness of an athlete to play must be down to the medical staff. While this may be straightforward in the case of family doctors, the sports medical practitioner may be faced with conflicting duties to ensure the welfare of the player, and obligations towards the team (see http://bit.ly/1nnSqZZ and the Bloodgate incident for discussion of the difficulties in enforcing professional ethics in elite sport environments)
  • The Manager – As the designated responsible person in charge of controlling their players, the final decision as to whether an athlete should be allowed to play will be down to the manager.
  • The rule-making body, FIFA will also retain an element of responsibility through their “agent” (referee’s) control of the match – at present, it seems that there are no explicit FIFA rules governing the rehabilitation of players and the use of pain-killers, beyond a reference to the respective WADA policy. This policy [effectively on the medical best practice of supporting Therapeutic Use Exemptions (TUEs) for Musculoskeletal injuries – http://bit.ly/1lFDcB7] allows medical staff a comparatively wide discretion to prescribe glucocorticosteroids and narcotic analgesics depending on individual clinical need.

So why is this a problem? Eight retired American Football players are currently suing the National Football League (NFL) claiming that the “unethical (substitution) of pain medications for proper health care led to addiction and long-term medical complications.” (http://nydn.us/1gOtbSC) The case is currently ongoing and unsurprisingly is being contested by the NFL, however given FIFA’s own admittance of the problem in their 2012 report, another governing body may be vulnerable to a similar class-action case….

Is it a knock-out round or the group stages?

The second related issue concerns the liability for concussive (or sub-concussive) injuries. Plenty has been written on both the risks of traumatic brain injury in sports and the recent 4th International Conference on Concussion in Sport (held in Zurich, November 2012). Indeed, FIFA was an active participant in this process and contributed to the final consensus statement (http://bjsm.bmj.com/content/47/5/250.full.pdf+html). The FIFA website also clearly lists the Pocket Concussion Recognition tool: http://fifa.to/1m1ypKD which helps to diagnose concussions in athletes.

Why therefore did this process go so badly wrong in last night’s match between Uruguay and England. In the 60th minute, Alvaro Pereira looks to be temporarily unconscious and appears groggy when he is escorted off the pitch a few moments later by the Uruguayan medical staff (http://yhoo.it/1w0zdmg) (see also an excellent analysis of the collision at: http://read.bi/1pOaqBt).  The problem is that when the Uruguayan medical staff clearly signal for a substitution, Pereira is adamant that he should return to the pitch and he subsequently plays out the game. This decision to return to play is clearly wrong. It could be defended if Pereira was assessed and did not exhibit any symptoms, but both lying motionless and an athlete’s subsequent unsteadiness on their feet are visible signs of concussion and the protocol states (in bold) that:

“any athlete with a suspected concussion should be IMMEDIATELY REMOVED FROM PLAY, and should not be returned to activity until they are assessed medically”

Does a cursory pitchside argument with medical staff constitute sufficient assessment? I would argue no. FIFA is supposed to have neutral doctors at every venue to intervene and/or overrule the team doctor, but it appears that no substitution or challenge was made in this case. After the match, ABC News & AP reports that Pereira was checked by team doctors. He is also quoted as saying:

“I said sorry a thousand times to the doctor because I was dizzy. It was that moment your adrenaline flowing in your body, maybe without thinking … what I really wanted to do was to help get the result….What really matters is that everything is OK. Nothing happened. It was just a scare” (http://abcn.ws/1nRUdIm)

Pereira is right to say that nothing happened this time, but sports officials have a duty to protect the athlete from themselves, and if the team cannot, this duty should fall on the referee. The situation echoes the similar ‘Hugo Lloris’ incident in November 2013 (http://bit.ly/1w0ueSx). At the time, Professor Jiri Dvorak (FIFA’s Chief Medical Officer) was quoted as saying:

“The player should have been substituted. The fact the other player needed ice on his knee means it’s obvious the blow was extensive, When he has been knocked unconscious, the player himself may not see the reality. I do not know the details but I know that the Premier League doctors are extremely good and I can imagine that the doctor may have recommended he be replaced. We have a slogan: if there is any doubt, keep the player out.”

Brazil 2014 may have disappearing sprays and goal-line technology, but ultimately these gadgets are sideshows to the main event. Until officials and teams can enforce FIFA’s own medical rules, football seems very vulnerable to a negligence action, given the widely identified and foreseeable risks to health. Sport may have an immunity for ‘playing rules’ but this immunity does not extend to unjustifiable risks, see for example: the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage. Indeed, the Pereira incident only gives greater impetus to the cross-party call for a UK Parliamentary Inquiry into concussion in sport (http://bit.ly/1qjXUaI). Published earlier this week, the document calls for five clear steps to be taken:

  1. A full parliamentary enquiry into concussion in sport
  2. A coherent set of concussion protocols covering all sports
  3. Independent peer-reviewed research into concussion and British sport
  4. Better co-ordination between sports, schools, colleges and doctors
  5. A clear message that concussion can kill.

These sorts of enquiries are much needed, but these recommendations are only a starting point. The media and the public have already shown themselves able to recognise concussive events and there was widespread disapproval on twitter of the decision to allow Pereira to continue  (although admittedly it is interesting to see ow much of this disapproval came from international commentators, medical professionals or from followers of other codes of ‘football’). Without some form of enforcement mechanism though – whether through tighter regulations from FIFA, self-enforcement by the teams themselves, or a fear of lawsuits brought by players – this type of incident will continue unchecked at all levels of the game. Until something fundamental changes, sadly we will be making similar comments in another six months….

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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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Restoring Respect: Why Mediation could have provided a better solution to the Suarez/Evra case

February 19, 2012

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Report of the Independent Regulatory Commission: http://nav.thefa.com/sitecore/content/TheFA/Home/TheFA/Disciplinary/NewsAndFeatures/2011/luis-suarez-written-reasons

See also: http://www.guardian.co.uk/football/blog/2012/feb/12/liverpool-apologies-luis-suarez-manchester-united; http://www.guardian.co.uk/football/2012/jan/01/fa-report-luis-suarez-patrice-evra

Rightly (or wrongly), the Suarez/Evra case has dominated discussions in the media since November, while the FA may have felt that Liverpool FC’s decision not to appeal the Commission’s verdict meant that they could draw a line under the incident; following ‘handshake-gate’ last week, the controversy has re-ignited once again. This article will examine whether the use of mediation instead could have provided all parties with a much more effective and lasting solution.

 

RACIST LANGUAGE

The original incident was sparked by a foul during the 15th October 2011 Premier League fixture between Manchester United FC and Liverpool FC at Anfield. The match was always likely to be fiercely contested, however on this occasion Luis Suarez (Liverpool striker) fouled Patrice Evra (Manchester United captain / left back) in the 58th minute. On the 63rd minute, as Evra was marking Suarez for a Liverpool corner, heated words were exchanged in Spanish between the two players over the earlier foul. Evra subsequently alleged that racist language was used by Suarez towards him.

Following an investigation, on 16th November, the Football Association (FA) charged Suarez with Misconduct contrary to FA Rule E3:

  • using abusive / insulting words and/or behaviour towards Mr Evra contrary to Rule E3(1) [A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour]
  • and inclusion of a reference to Mr Evra’s ethnic origin and/or colour and/or race in breach of E3(2) [In the event of any breach of Rule E3(1) including a reference to any one or more of a person’s ethnic origin, colour, race, nationality, face, gender, sexual orientation or disability (an “aggravating factor”), a Regulatory Commission shall consider the imposition of an increased sanction…..]

Suarez denied all the charges and requested a personal hearing.

An independent Regulatory Commission met between 14-20th December 2011 to hear the charges, and after lengthy deliberations, found the charges proved (although not in their entirety). The panel imposed a £40,000 fine, suspension for eight first team matches and warned Suarez as to his future conduct as well as ordering him to pay costs [8].

Last Saturday, having fully served his suspension, Luis Suarez was back in the team to play Manchester United at Old Trafford. In the customary Premier League pre-match handshake, Suarez deliberately bypassed Evra’s outstretched hand and in doing so exacerbated what was already an incendiary situation.

So what could have been done differently?

 

MEDIATION & RESTORATIVE JUSTICE

This article will suggest that had the FA used mediation, instead of, or indeed to supplement their traditional disciplinary mechanism, then the conflict could have been resolved.

The initial Suarez case effectively turned on which player’s account of events you believed. While both players agreed on how the incident started, there was considerable divergence on what exactly was said, when, in what context and by whom. Rightly or wrongly, when the affair then became publicly aired through the media, positions hardened, and given the prospective penalties if either accusation was proved (Suarez is a racist, or Evra is a liar), it is perhaps unsurprising that many people came out in support of their respective favourite (resulting in the now infamous Tshirts worn by the Liverpool players and the Klu Klux Klan mask printed in the Manchester United fanzine). The problem is that each action taken immediately after the match escalated the dispute, raising the stakes and firmly entrenching the battle-lines between each side. By the time of the hearing, the solution was always going to be win-lose.

In light of these tensions, the key question therefore becomes was the disciplinary commission hearing the right solution to this problem, or at worst, did it further inflame the situation? This article will suggest the latter. To understand why, it is worth pausing for a second to define mediation. Essentially mediation is one of the oldest forms of conflict resolution and uses neutral third parties to facilitate discussions with all parties in order to resolve the issues in dispute, in a non-binding process. While it is true that the disciplinary commission was comparatively informal, it could not be further removed from mediation.

By its very nature, the disciplinary commission was inherently adversarial and arbitrary. The commission decided any facts in dispute, whether the FA charges had been proved or disproved, and what sanctions, if any, should be awarded. The victim (Evra)’s role in the process was limited to giving evidence on behalf of the FA (witness), while the offender (Suarez) effectively spoke through his legal counsel who made excuses on his behalf (spectator). At no time was there the opportunity to examine and challenge the underlying motivation that led to Suarez’s comments. Instead, once the charge(s) had been proved, a penalty was imposed and the case was closed. Is it any wonder then that after the penalty was spent, tensions between the two players still persisted?

In reality, none of the stakeholders achieved a successful resolution to the conflict:

  • Evra did not receive an apology, indeed he was accused of fabricating malicious lies [327], slighting Suarez’s regional identity (later rejected by the panel [363]) and was ultimately held by the Panel to have initiated the confrontation [240] and used an offensive phrase towards Suarez [87]
  • Suarez was held to have spoken abusive and insulting words which had racial elements to them [392] and was branded as a racist in the media, although the FA [223], Commission [454] and Evra [232] all expressed a belief that Suarez was not a racist
  • The incident flared up again the next time the teams played, causing damage to the FA Respect campaign.

 

Instead, a better approach would have involved traditional mediation or included an aspect of restorative justice (a Victim-Offender Reconciliation Program (VORP) inspired by the Canadian ‘Elmira case’).

This latter model is based on four key principles (see E Gillman’s paper for more details):

1) Understanding that the wrong was committed against a specific person (Patrice Evra) rather than necessarily society. While it is true that in saying what he did, Luis Suarez undermined the FA Respect and Kick it Out campaigns, any public protection argument should be balanced with the need to reconcile the two players and repair any damage committed

2) Challenging attitudes toward offender – in particular how to re-integrate the offender (Suarez) back into the community as a positive citizen

3) Challenging the retributive response – the focus of restorative justice is on providing a range of opportunities for dialogue, negotiation and problem solving in order to encourage accountability, rather than simply imposing punitive sanctions (£40,000 fine, eight game suspension)

4) Victim participation in process – those who have been harmed (Evra) by the offender should have a primary, active role in determining what needs to be addressed, being given the opportunity to be acknowledged and heard, having a role in how the resolution should happen and receiving support services for healing and closure.

While such a system is becoming increasingly common in the criminal justice system, disciplinary frameworks in sport are still comparatively traditional and punitive. Interestingly, under Article 1 of its mediation rules, the Court of Arbitration expressly excludes mediation from all disputes relating to disciplinary matters. This article is not suggesting that such an approach would necessarily be appropriate for all potential offences, for example prosecuting doping offences would be an obvious example where attempts at mediation might be inappropriate, however there were three distinct opportunities where mediation techniques could have provided a better solution to the Suarez case.

 

MEDIATION BEFORE ANY HEARING

The first opportunity was to have mediation occur before the commission hearing. Professional Footballers’ Association (PFA) Chief Executive (Gordon Taylor) did offer to mediate between the two players immediately after the incident, however his offer was rejected.

While I appreciate that it was important to have a full inquiry into the incident, mediation still has its place. One model that could have been used was the German penal model which integrates VOPR into criminal procedure and sanctioning. Such a system encourages voluntary mediation to take place before trial in order to attempt early reconciliation between the parties. Any apology, restitution or compensation that is agreed between the parties prior to the trial can then be used to mitigate any sanctions that would have been imposed subsequently. Such an approach would have had a number of advantages in this case, as the parties might have been less hostile at any commission hearing. If the prime motivation for Evra was to receive an apology and personal redress from Suarez, he would have been far more likely to receive this in a private mediation session rather than the public and considerably more formal commission hearing. It could have also negated much of the hostile media coverage of the incident; Suarez would have similar incentives for participating, as an early admission of his culpability may have defused many of the tensions thereby improving his position in relation to any penalties imposed by the FA. The speed that mediation can occur would also have enabled the incident to have been defused in a much quicker timeframe.

Of note, is that the Mediation process is still valuable even if the parties ultimately fail to agree any resolution as it enables the key issues to be identified for any later hearing and the parties to have at least heard each other’s point of view. Had the clubs (and players) not been of equal international status and resources, mediation would have also been useful for reducing any potential power imbalances between the parties.

 

MEDIATION DURING THE HEARING

Using mediation during the hearing may have broken down a lot of the animosity and helped the panel to reach findings of fact quicker. It would also have enabled the commission to explore underlying motives leading up to the incident, from all parties. As it was, the Commission was focused (hamstrung?) into making a decision on the Charge (and any penalty) and nothing else [222].

As with anything, mediation is not a complete panacea as it will very much depend on the victim (Evra)’s willingness to actively take part in proceedings and explain his reaction and pain in a neutral environment. As it was, Evra’s evidence before the Commission was challenged by Suarez’s legal team as malicious lies in order to exact vengeance for Suarez’s foul and subsequent failure to offer an unrestricted and unequivocal apology! [327]). Indeed, the Commission itself commented that Mr Suarez made what we considered to be such an unarguable assertion in his witness statement, ie that pinching was an attempt to defuse the situation when it plainly was not [249] and again at [267] once more, we were troubled by the fact that Mr Suarez advanced this case to us and relied on it to the extent that he did, when it was unsustainable. Such actions are inherent though in a legal dispute where the burden is on proving fault and casting doubt on the opponent, but could perhaps be avoided by a skilled mediator.

Although the action was initially framed as an investigation into the use of offensive racist language, by the end of the hearing, the focus somewhat shifted into the acceptability of words spoken in the heat of the moment in order to provoke Evra and cause him to be sent off, thereby gaining a competitive advantage in the game [414]. This is an important distinction, not in the context of the FA Charge (once it is accepted that the offensive word was repeated seven times, sanctions will ensue), but rather in educating future conduct (both Suarez’s and the wider footballing family).

All parties to the dispute ultimately accepted that cultural differences could represent a source of conflict if they are not respected, valued or understood. Indeed, there were language difficulties by both sides; Suarez spoke little English [235], while Evra’s initial allegation that the Spanish word Suarez had called him translated as n**~$%*, was later withdrawn and replaced with black [274]. What made the matter even more contentious though was that while the panel accepted that the Spanish word ‘negro’ can be employed with the intent to offend and to offend in racial terms [171], it is by no means always used offensively. Indeed, in Uruguay, the term can also be used as a friendly form of address [172], however in all situations, it depends heavily on the context in which it is used [201]. In this incident, in the context of animosity, confrontation and hostility, the Panel held that the language was designed to be abusive and insulting [205], although it is clear from the comments that Suarez posted to Facebook and Twitter the day after the incident that he did not share this perception and he was upset at accusations of racism [161]. Unless Suarez himself accepts genuine contrition for the incident (as opposed to cursory apologies issued by the Club on his behalf), feelings of unfairness may still fester.

It is also worth noting that conflicts may have multiple underlying causes and the incident was perhaps not as one-sided as it was portrayed in the media. While Suarez’s behaviour should rightly be condemned, the fact that Evra was seen to initiate the conflict and use an offensive phrase against Suarez (seemingly condoned by the authorities as the phrase did not contain racial slurs) could leave Suarez feeling somewhat hard done by. This absolutely does not defend what Suarez said subsequently, but certainly could form part of the underlying conflict structure, and was left unaddressed by the Panel and FA. Mediation on the other hand, would have allowed Suarez to express any feelings he might have about this and may have prevented Evra’s exuberant post-match celebrations immediately after the second match (condemned by all sides), which could have acted as a trigger event to a new conflict.

 

MEDIATION AFTER THE HEARING

The Commission announced their ruling (plus findings of fact) at 3pm on 20th December. After hearing submissions from both parties (The FA and Suarez) on penalties, it then adjourned at 4:40pm to consider the appropriate sanction(s). It subsequently announced its decision on penalties at 6:20pm that evening [44].

Is quick justice lasting justice? Indeed it is worth considering what the objective of the Commission actually was and what effect it hoped to have on Suarez? At [454], they stated that “Mr Suarez said in evidence that he will not use the word “negro” on a football pitch in England in the future, and we believe that is his genuine and firm intention”  but does this solve the underlying conflict structure or fulfil Patrice Evra’s needs?

It is perhaps illuminative to look at the FA submissions on what they feel the appropriate penalty should have been: at [408] an increased sanction was required to punish Suarez and also to ensure that it is widely known that the FA deprecates and will not accept racist behaviour. In other words, a deterrent sanction is called for…. [410] aggravated because Suarez is an international footballer of exceptional ability playing for one of the best-known clubs in the world.

Does this mean that the penalty system should be subjective? If you are a rubbish player at a lower league club, and you say exactly the same words, you should be entitled to a lesser penalty? The FA (and ultimately the Commission) view is almost biblical – an eye for an eye, behaviour control through punitive sanctions to act as a deterrent for other wrongdoers.

However, it should be questioned whether alternative approaches would have been more appropriate:

“Much deviance is expressive, a clumsy attempt to say something. Let the crime then become a starting point for a real dialogue, and not for an equally clumsy answer in the form of a spoonful of pain.” (N Christie, Limits to Pain 1981)

If the ultimate aim of the process was to stop the downward spiral and underlying issues, then Suarez should have been re-integrated him back into the football community over a period of time following successful rehabilitation and re-education. It is right that he should be held to account by the community, but he should also be offered forgiveness if he has accepted responsibility for his actions and then expressed genuine remorse. Marking him out as an offender does little to ensure future compliance with rules, although it may be appropriate if public safety was an issue.

It is encouraging that the PFA is once again offering to mediate in the on-going row, but I fear that this may be too little too late. A better future solution would have been to have the hearing if the facts were in doubt, but to mediate before any final sanctioning decision. One model that may be of interest is the Australian approach that referred all AFL cases of racial misconduct to mediation as a key part of the process to educate offenders about the issue of racism.

In particular, T Humphrey gives the example of how in 1999, “Peter Everitt, after abusing Scott Chisholm mid-game, took a compromise settlement at mediation that involved a self-imposed four-week suspension, a $20,000 fine, a racial awareness training program, loss of match payments and a public apology to Chisholm, his family and the aboriginal community.” (Dust in the Balance, ISLR (2008))

If any English post-hearing mediation involved all the relevant stakeholders (the FA, Evra, Suarez and representatives from the wider football community) and guidance was given as to appropriate ranges of sanctions, there is scope for a much more appropriate and agreed solution. Suarez should be punished for what he said, at issue though is how to make him accept that what he did is wrong in order to reduce any risk of re-ofending. Anybody can simply view a punishment as a slap on the wrist and a temporary hurdle to be endured.

Ultimately, the question then becomes: should any or all of these mediation approaches be adopted, would FIFA and the media (as moral arbiters of the game) accept such an outcome?

 

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US football player sues university over weightlifting incident

February 1, 2011

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Former University of Southern California tailback Stafon Johnson filed a lawsuit last week against his alma mater alleging negligence and recklessness on behalf of former assistant strength and conditioning coach Jamie Yanchar and the university in relation to a weightlifting incident one-and-a-half years ago.

Johnson was injured during mandatory team weightlifting workouts on 28 September 2009. It was initially reported (read article here) that Johnson lost control of a bar while bench-pressing 275 pounds causing the bar to drop and land on his neck and throat. He underwent multiple surgeries for the injuries stemming from the incident. Johnson was sidelined for the remainder of the 2009 season, was passed over in the 2010 NFL draft but signed as an undrafted free agent by the Tennessee Titans.

Johnson now claims that he didn’t lose his grip and drop the bar on himself. The suit claims Yanchar hit the bar with his own body before Johnson had a grip on it with both hands thereby causing it to fall across his throat. The lawsuit further alleges that Yanchar was negligently and carelessly inattentive to properly placing the bar into Johnson’s hands and making sure that Johnson was ready for the bar to be placed into his hands.

It further alleges that Yanchar failed to use the care, skill and attention ordinarily exercised in like cases by competent, reputable and reasonable members of their profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and care in the exercise of skill, in an effort to supervise the practice and to safely and properly spot Johnson while he was bench pressing 275 pounds. The bar was dropped, hit, and/or fell – the statement alleges – onto Johnson’s neck as a result of the Yanchar’s negligent, reckless and careless acts and omissions.

USC issued a statement saying that it ‘firmly believes it was not at fault in Stafon Johnson’s unfortunate weightlifting accident. We are sorry that Stafon was injured.’

At the time of the incident Johnson was in his senior year at USC and was the starting tailback and the leading rusher on the football team.

It is interesting that Johnson’s suit is seeking damages for lost earnings and loss of future earnings.

As Johnson missed most of his senior year following the incident, he was not drafted. Players who are drafted sign bigger contracts than those who are not.

In a preseason game with the Tennessee Titans, Johnson suffered an ankle injury and subsequently missed the entire season.

Being undrafted as a consequence of his laryngeal fracture no doubt compromised the size of his contract. Missing his rookie season with the Titans also devaluated Johnson’s future worth to the team.

The court will be challenged, not only to find USC at fault for Johnson’s injury, but to calculate the difference in what he could have earned as a drafted player versus a walk-on and to determine the difference in future income as a result of the weightlifting incident even though Johnson sustained a season ending injury which too will have the effect of diminishing his income generating potential.

None of the allegations have been proven.

Here’s a pdf of the complaint for damages – Johnson v USC and Yanchar

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Punishing the Innocent

June 23, 2010

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http://news.guelphmercury.com/article/649371

On 9 April 2010, University of Waterloo (Ontario, Canada) football player Nathan Zettler was charged with possession of anabolic steroids and human growth hormone for the purpose of trafficking.  In response to the police investigation, the Canadian Centre for Ethics in Sport (CCES) was invited by the university to conduct team-wide drug tests on all its players. 

There were nine adverse findings: one asserted refusal, four admissions of use and three adverse analytical findings.  Mr. Zettler’s trafficking case is being investigated further.

Canadian Interuniversity Sport subsequently suspended first year linebacker Jordan Meredith who had tested positive for Tamoxifen and second year linebacker Joe Surgenor who had admitted to steroid use – both had admitted their guilt, waived their rights to a hearing and accepted a two-year period of ineligibility thereby enabling CCES to disclose their identities.  The remaining cases are pending.

Last week, the University of Waterloo suspended the entire team and cancelled its season. 

Third year linebacker Brandon Krukowski was charged with possession and trafficking of drugs yesterday.

The Waterloo Region Record newspaper just published an article I wrote entitled, ‘University has punished the innocent.’ It was also re-printed in the Guelph Mercury. Here are a few excerpts:

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The university’s suspension of its football team for the upcoming season because nine of its 62 players were caught doping is being portrayed as an act of courage and conviction. The university is being praised in some circles for standing up and doing the right thing. This righteous indignation, however, misses a bigger point.

The innocent are being punished for the crimes of the guilty.

Where does Waterloo get off suspending non-guilty players?

The Canadian Interuniversity Sport (CIS) policy on doping control (Policy 90.10) is silent on punishing innocent players and sanctioning teams for the actions of its individual players.

Affected coaches will be on paid administrative leave — meaning they will be paid to not coach, so other than their egos and, to an extent, their reputations, they will not suffer.

But it’s a different story for the student athletes who did not dope but who are being penalized as if they did. They are guilty of no crime.

Waterloo’s suspension of next year’s season has not only broken the players’ hearts but also possibly a contract between the university and these student-athletes. To wit, these particular student-athletes went to Waterloo to play football and get a university education. In return for representing Waterloo on the gridiron, the university in effect promised a football team to play on and classes in which to enrol. In this light, the season’s cancellation is troubling.

This is not an instance of Canadian Interuniversity Sport suspending the University of Waterloo’s football team because of a systemic failure akin to Southern Methodist University’s suspension in 1987. In a precedent setting decision, the National Collegiate Athletic Association suspended Southern Methodist’s football team because its program was “built on a legacy of wrongdoing, deceit and rule violations.” No such allegation has been levelled at the University of Waterloo. In fact, Canadian Interuniversity Sport chief executive officer Marg McGregor says that they “are not taking the view that this is an isolated problem at the University of Waterloo.”

We live in a country governed by the rule of law. Canadian Interuniversity Sport applied its rules – to which all student-athletes are bound – and suspended the nine guilty student-athletes. What rule was broken that gives Waterloo the right to cancel a season and penalize students who have done no wrong?

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F.O.F.A. (Formula One Fans Association)

June 23, 2009

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Source: http://timesonline.typepad.com/formula_one/2009/03/who-is-formula.html

Here’s an interesting idea, from GaryM on the Times Online Blog, which I haven’t seen repeated elsewhere. He argues that with all the furor about governance issues and how Formula One actually belongs to the fans, not the FIA, FOTA or the teams, why is there not a Formula One Fans Association (FOFA)?

Indeed, following Gary’s suggestion, if motor-racing truly wishes to take the views of fans into account, then there needs to be a mechanism where this can occur. This already occurs at a media level, and fans can post threads and discuss the latest news on broadcasters websites or on blogs like this, however will these really be taken in account when policy is being made? The cynic in me says that F1 is viewed at times by the governing body more as merchandise consumed by spectators and any surveys or view-finding by officials smacks of tokenism. Instead, what is needed is a partnership model where fans can actively engage in dialogue and have an impact on the running of the sport. I am not by any means suggesting that fans should be signatories to the Concorde Agreement, however there should be a mechanism that their views can be represented to the decision-makers at all levels of the sport. See for example the findings of the recent Global Audience Survey from FOTA: http://www.teamsassociation.org/sites/default/files/press_release/FOTA%20Press%20Release%20-%205%20Mar%202009.pdf

Football has official, and unofficial, fan associations and every major club has forums available for fans to engage with, challenge and help form opinions, where are these for F1 or motor racing?

As a number of posts have shown over the last couple of days, following F1 in person in both an expensive and dangerous pursuit! Isn’t it time that fans were received recognition for this (and I don’t mean simply with a branded credit card!)

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