Jack Anderson: How sport’s playing fields remain a legal minefield

Snow covers Páirc Uí Chaoimh in Cork, as the main stand casts a giant shadow over the pitch.

Last Friday, the Bar Association of Ireland hosted its first ever sports law conference in Dublin. The brainchild of Cork barrister Tim O’Connor and High Court judge David Barniville, the conference is another example of the growing interest in sports law.

Probably the easiest way to explain the idea of sports law is to imagine attending a major sports event such as a Premier League game. Such games are now as much law in action as they are sport at play.

As you approach the ground, you are subject to numerous football-specific public order offences.

The ticket you use to enter the ground is, in effect, a contract. It has terms and conditions which potentially can restrict your right of entry and if you attempt to tout it to another, you may even be subject to criminal offences.

Once you enter the ground, you are surrounded by merchandising and sponsorship; indeed, the ground itself may be renamed after a sponsor. For lawyers, sports stadiums are concrete bowls of intellectual property.

Once your attention turns to the pitch, you think about the players. Football players in the Premier League are fantastically well paid. The average weekly wage of a Premier League football will soon be twice the average annual industrial wage in England.

Football careers are short and their contracts reflect that abridged career. Complex tax avoidance schemes, mainly relating to image rights, surround such arrangements. Most football contracts are now drafted in expectation that players will try to renegotiate or move to another club ever before the contract expires.

Buyout clauses and related agents’ fees — Uefa has calculated that more than €3bn was paid to agents by Europe’s top clubs between 2013 and 2017 — are among the most litigated topics at sport’s supreme court, the Court of Arbitration for Sport (CAS).

Players in the Premier League are employed by clubs whose ownership and corporate structures have changed radically in the last three decades and now range from plcs to holding companies for foreign billionaires.

The changes in ownership structures of clubs in English football may have an impact on the Football Association’s current investigation into child abuse in football.

Ultimately, many victims will seek to obtain compensation from clubs proven to have employed coaches who exploited them as children.

Such clubs would normally be held to be vicariously liable for the actions of their employees and we are likely to see this in the Barry Bennell case, for example.

Bennell is currently serving a 30-year prison sentence after being convicted of 50 charges relating to abuse of young boys while a coach at Crewe and Manchester City from 1979 to 1990.

In other less well-known instances, the problem might arise that such clubs — as a legal, rather than sporting, entity — may not exist anymore and the victim may be left without any source of compensation, unless the FA decides to underwrite a redress scheme.

Returning to our scenario of the Premier League game, sports specific legal issues can arise when one player injures another on the field of play. The injuring player will be subject to disciplinary procedures including arbitration hearings where the default is now that players are represented by a QC.

If the tackle is a career-ending one, civil and criminal action may follow. Indeed, a leading case in English law on how to calculate damages for future loss of earnings involved a former Manchester United player, Ben Collett.

Eighteen-year-old Collett had his leg broken while playing a reserve game against Middlesbrough in 2003. Middleborough admitted their player had been negligent.

They eventually paid more than £4 million in damages with Alex Ferguson testifying in court as to Collett’s “decade-long” potential as a Premier League player.

From one sporting event then, a wide array of legal issues can be identified and are evolving constantly.

One to watch out for relates to privacy and data protection and may even apply to amateur bodies such as the GAA. Who, for example, owns and stores the biometric and health data (often quite personal in nature) now gathered on players by way of wearable technology?

In an overall sense, the growth of sports law, a bit like the debate on the public funding of sport, tends overly to focus on the tiny elite who play professionally.

A prime example of this is the discussion on head injury assessment (HIA) protocols in professional rugby and the possible negligence actions that might follow for lack of compliance.

As rightly pointed out by Tim O’Connor last Friday, HIA compliance is irrelevant for the majority who play rugby at grassroots level given that the medical and legal approach to such players’ welfare is simple — if in doubt; sit them out.

Sticking with grassroots sport, one thing that I would like to see come out of the recent sports law conference is the establishment, as in other jurisdictions, of a specialised panel
of Irish sports lawyers willing to represent athletes, clubs, and leagues on a pro bono basis.

While the excuses that some international athletes use CAS to evade doping sanctions, or stories about how lawyers exploit technicalities to lift players’ suspensions at late-night GAA hearings, can raise a laugh at a conference; those arguments are reserved mainly for the few who can afford the representation.

Lawyers acting voluntarily can also help bring clarity to sports organisations’ and clubs’ rule books and policies.

From my experience, most sports disputes can be traced back to ambiguous, poorly drafted regulations and policies.

And, let’s be honest, a prime example is the GAA’s Official Guide which is a scout’s knot of loopholes and badly in need of an overhaul.

At present many lawyers do, of course, help their local clubs and leagues, though formally the only place in Ireland that one can go for pro bono advice is probably the innovative sports law clinic run at UCC by law academics Dr Aisling Parkes and Dr Seán Ó Conaill.

The point here is that Ireland, as elsewhere, is an increasingly litigious society. Insurance premiums for sports clubs across the codes are rising and once a dispute or accident happens, it is often too late for the club and legal costs quickly escalate.

A prime example of this occurred here in Australia last year when an U17 Australian Rules player, attempting to take a ‘mark’ near the sideline, landed and impaled his leg on the boundary fence, suffering severe knee damage.

The sideline had been drawn too close to the fence and the player successfully sued his club, the organising league and the council on whose pitch the game took place, receiving Aus$570,000 (aroumd €44,000) in compensation.

A legal case that, literally, is shaping the sporting landscape.

Jack Anderson is professor of sports law at the University of Melbourne.


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