Thursday, 22 December 2022
Professor Jürgen Bröhmer at the Murdoch University, School of Law reviews the 4th Edition 2022 of Sports Law By David Thorpe, Antonio Buti, Paul Jonson and Jack Anderson which introduces the body of law that regulates all sporting activities in Australia. It examines the areas of law that apply to sport including governance, torts, criminal liability, intellectual property, marketing, behavioural misconduct, doping, trade and competition. The fourth edition is updated to reflect major legislative and case law changes in sports law, and has extensive content on corruption, gambling and doping.
An ebook can be purchased here.
The authors have presented the 4th edition of their treatise on sports law. The first edition was published in 2009, so we are now looking at a 13-year history of this comprehensive compendium. The four authors are Australian based. That impacts the selection and depth given to some of the topics. A brief look at the table of contents of this book immediately reveals the fascination exerted by this area of the law. Sports law is a quintessential cross-sectional area.
The book begins with the question of whether there is even such a thing as sports law. Whatever the answer to that question, it cannot be disputed that the area of sports law touches on many other areas of the law. It touches on practically all other areas of the law, and one would be hard-pressed to name one that is irrelevant in the context of sports. For the authors of the treatise, that presents an inherent difficulty at the outset: what topic areas to select and how much scope and depth to allocate to the selected reference areas. There can never be a satisfactory answer to these selection questions. A lot will depend on where the reader stands regarding their interests in the law in general and sports law in particular.
The book is subdivided into 17 chapters, for which the authors are individually responsible. Only chapter 3 on sports tribunals and chapter 8 on doping are co-authored. The compendium comes close to 1000 pages. The longer chapters, for example, the chapters on doping and sports tribunals, are allocated about 100 pages; other chapters stand at around 50 pages. That gives an idea of where the authors thought the main foci should lie. It is certainly not surprising and very adequate that the chapters about sports tribunals and doping are the longest. The chapter on behavioural misconduct also received profound attention, undoubtedly driven by a range of incidents in Australian sports in recent years.
The book is an authored book. It is not a compilation of various excerpts from other publications, court decisions and the like. Of course, the authors also use such excerpts; they do so sparingly and only when needed and value is added. The reader always knows whether the author is speaking or whether it is some external source.
One aspect often treated with neglect but so very important is the layout and formatting. This book is a pleasure to hold in your hand (apart from its sheer weight), and reading it is a pleasure for the eyes. Whoever was responsible for matters of design and formatting did a superb job.
Toni Buti’s introductory chapter 1 is perhaps a bit of a victim of the need to control the book’s size. It is impossible to address the question of whether sports law is indeed its own area of law, then give a brief history of modern sport and, on top of that, deal with the impact of the COVID-19 pandemic on the six pages allocated for that exercise.
Paul Jonson then looks at the organisational structure and governance of sport. The gist and value of this chapter lie in practical questions that would be relevant for those wanting to organise sports activities on the ground. The institutional framework of professional and amateur sports in Australia and the world are dealt with relatively briefly.
The third and first major chapter is dedicated to sports tribunals, i.e., the sports judiciary, and is a joint effort by authors David Thorpe, Paul Jonson and Jack Anderson. The sports judiciary is a centrepiece of sports law. It touches on one of the core aspects: the extensive autonomy of sports bodies and institutions and the limited oversight exercised by governments when this autonomy is exercised. The question becomes paramount when the core rights of athletes are at stake, given that sometimes their livelihoods depend on being able to exercise their sport. The chapter concentrates on the Australian situation, although it also contains a significant subchapter on the Court of Arbitration for Sport (CAS), which is the pinnacle of the international sports judiciary. The integration of the CAS into this chapter demonstrates how intertwined the national and international sports world has become. That is particularly true in light of the professionalisation and commercialisation of sport and the intense globalisation that has occurred as a result. The chapter devotes considerable space to the legal saga of German speedskater Claudia Pechstein and her various legal challenges of a doping ban instituted against her by the International Skating Union. This case is a prominent example of what is at stake for individual athletes. It also amply illustrates the interplay between sports organisations, sports arbitration, including at the CAS, domestic courts up to supreme and constitutional courts and international courts such as the European Court of Human Rights. Just after this book was published, the German Constitutional Court rendered a decision (BVerfG, 3/6/2022, 1 BvR 2103/16,) in favour of Claudia Pechstein and her right of access to justice, which stood against the institutional autonomy of sports organisations and their dispute resolution mechanism. The decision will have a significant impact on sports arbitration worldwide.
David Thorpe addresses the problem of violence in chapter 4. When this reviewer, being from Europe and taken to football (soccer), read the chapter heading for the first time, it was immediately and without reflection assumed to be about violence off the sporting field. However, the chapter is concerned with the rules of the game, whatever that game might be, and the consequences of the breach of these rules, particularly in contact sports where force is a factor. The foul is an inherent part of sports. That said, not every foul can just be booked exclusively as a violation of the rules of the game. Hence it must be determined when matters go beyond the rules of the game and enter the sphere of liability and perhaps even prosecution. The chapter features many illustrating examples of the dark side of sport, including the intentional pursuit of injuring opposing players. A reader’s first reaction to a chapter titled “violence” might be a suspicion of hyperbole, but after one has read the chapter, one must conclude that the title is – sadly – justified.
The book, primarily concerned with sport in an Australian context, does not address violence off the field. That is also an area where interesting legal questions loom. For example, whether sports associations or sports clubs could be made to contribute to the cost of the necessary policing around their events, at least insofar as that policing exceeds what one would deem as necessary for comparable other public events.
David Thorpe then turns to negligence and civil liability in chapter 5. Most sports entail risk. Engaging in such sports will therefore require an alternative approach to risk allocation, to what constitutes negligence and what adequate standards for duties of care should be. Two aspects in this context, different though they are, deserve and are given special attention. One is the position of volunteers. Sport and culture are two areas where little would happen if it weren’t for the army of volunteers who offered their time and commitment to make such events happen. The other is the relatively new finding of long-term health risks associated with some very popular sports. The concussion and CTE problem that first arose in the American NFL but has since also arisen in the context of popular Australian contact sports and is now entering the sport of soccer is undoubtedly the most prominent example. David Thorpe gives this topic the attention it deserves. Jack Anderson closes off this topical criminal and civil liabilities segment by looking at intentional torts, insurance, and risk management (chapter 6).
The following two chapters are, in a way, also linked; both could run under the banner of corruption, the scourge affecting many areas of society, including sports. The corruption dealt with by David Thorpe in Chapter 7 is corruption in the narrow sense ranging from match or race fixing and bribery to gambling-related corruption. The corruption dealt with by David Thorpe and Tony Buti in chapter 8 is competitive corruption, aka doping. Corruption in sports is as transnational as the sport it seeks to corrupt, and both chapters avidly illustrate that. Elite athletes are constantly on the move; doping tests cannot be limited just to the competition venues and times. The laboratory infrastructure needed to administer the doping system is beyond the means of most countries, both financially and technologically. The interplay presented by the authors of domestic legislation, codes of conduct, such as the World Anti-Doping Code, and international treaties, such as the Macolin Convention of the Council of Europe, will be of great value to any reader. One might also note that another level of law plays a role: fundamental rights as protected in the bills of rights of various countries and human rights treaties. These rights are significant, particularly in Europe, as has come to the fore very visibly in the Pechstein affair mentioned above and addressed in the book.
The employment and agency law side of sports has been among the most prominent and occasionally reaches the public debate like no other. The famous Bosman decision by the Court of Justice of the European Union all but revolutionised the rules of employment in one of the biggest professional markets of sports. Underlying the legal disputes was, as so often is the case, the extent of the autonomy of sports organisations to regulate their conduct and the impact of the general law and its ability to regulate that autonomy. Author Tony Buti keeps the employment chapter very practically to questions that would arise in an Australian or broader common law context. That will make this important chapter very useful for readers dealing with employment law questions that might arise in Australia. The passage at the end of the chapter about free agency in the AFL is shocking. It is an example of oppressing regimes that own their survival to an exaggerated allowance for autonomy. It is simply unacceptable to limit a player’s choice of who he wants to play for in a professional context. It is even more unacceptable to make this contingent on whether or not that player is in a particularly high salary bracket.
Author Tony Buti then turns to player agents (Chapter 10). it is not surprising that in the professionalised sports world, players need someone to represent them in their dealings with or clubs they wish to play for, even if their choices in that regard might be limited. The chapter is relatively short because it would appear that the problem is relatively small and can largely be dealt with by the general rules of agency. Australian sports, especially the big-ticket items like AFL, are largely restricted to Australia, which is a relatively small market in the scope of things. At the end of last year, FIFA published a report stating that in 2021 just over USD 500 million were paid as service fees to agents in a woefully underregulated environment.
Paul Jonson then turns to intellectual property in chapter 12 and issues around marketing in chapter 13. It is surprising how relatively little attention is given to broadcasting rights, given that the revenue earned from broadcasting rights is the largest single-ticket income item in modern professional team sports. The NFL or NBA and the major college sports in the US, the Premier League and other major European soccer leagues, or even the AFL or NRL in Australia, could not offer anything even remotely similar to what they are offering now if they had to rely only on income generated at the gate or through merchandising.
The marketing chapter focuses on Australian consumer law and a couple of specific issues around alcohol and tobacco advertising and what is referred to as ambush marketing, which has gained a degree of notoriety because a lot of people can be reached via TV audiences.
David Thorpe then turns to athlete selection problems in chapter 14. That is indeed an interesting read. Given the scarcity of rights athletes enjoy in their general employment relationship, including essentially being unable to choose their employer, it is interesting to learn about the legal complexities around athlete selection. This area of law appears to be much more developed in the Australian sports law context. However, it is debatable whether Gibraltar football association’s quest to join UEFA is not entirely different and has little to do with athlete selection.
David Thorpe also addresses behavioural misconduct in chapter 15. That is another prime example of the relationship between the institutional autonomy of the sporting associations, clubs and leagues and the degree of oversight exercised by the government. The issue has gained prominence in recent years because of conflicts between contractual obligations and legal positions that would be considered fundamental rights, such as free speech and the freedom of religion outside of Australia. The matter of rugby player Israel Folau was reported worldwide and also figures prominently in the chapter.
Tony Buti then turns to another burning issue, discrimination. One is inclined to say that racial and gender discrimination has always been an issue in broader society and is, therefore, a problem in sports. The rights of transgender athletes to participate in sports of their newly acquired gender and the discrimination of athletes with disabilities present new challenges. Some “disabilities” can now be overcome by technology; where that is the case, such athletes are now competitive against athletes without comparable “disabilities“. What might have been a disability turns into an ability. Therein lies the legal problem. Discrimination in its prohibited form always requires the lack of an objective reason for the different treatment. Both the transgender and the disability issue in sports now pivot around the question of whether the newly acquired gender or the new tech prosthesis, for example, present as an objective reason to exclude such athletes for having an unfair advantage when all along these athletes were combatting disadvantages. The chapter gives an instructive overview of all forms of discrimination and is a rewarding read, even if one has no interest in sports. At its core, it does not matter where the discrimination occurs.
The treatise finishes with Jack Anderson addressing an area where, arguably, the level of discrimination was insufficient: children. Given the otherwise strict child labour laws in the developing world, it is sometimes surprising to see very young athletes competing at the highest levels. If one subtracts from the competition age the years of extremely hard work necessary to get to these competitions, matters get even more concerning. Often girls are affected even more in problem sports such as gymnastics. As if that was not enough, the problems with (very) young athletes are then compounded by other dangers that children are particularly prone to, such as sexual exploitation. These grave problems are another essential and informative aspect of this book.
As is the case for any treatise, not everything in there is equally relevant for every reader. But every reader will find valuable insight on matters they need, and all will find everything else informative. And as is also the case with every treatise, not everything can find its way into the book, not even at 1000 pages. This sports law treatise is Australia centred (but by no means exclusively); hence, some aspects that are (perhaps more) significant elsewhere have been left out. That is the case with regard to some economic or competition law aspects. The fact that professional leagues are cartels is one such aspect; the factor of state aid (subsidies) plays a significant role. In the EU, subsidising business actors is prohibited unless notified to and authorised by the EU. Several soccer clubs, including Real Madrid, have learned this the hard way. The role of TV broadcasting rights is another aspect that does not figure too prominently in the book, at least not when considering that the generated money keeps the sports wheels turning. E-sports is a growing business and has already reached significant proportions that might warrant a look in a future edition.
The authors have managed the almost impossible very well, i.e., they have provided a work of depth and breadth that cannot be bypassed by anyone working in this area. The book is not only relevant for lawyers in the field though I doubt that there would be any such lawyers who would not have this work on their desks. It is also valuable for those non-lawyers who work in the front and back offices of sports associations large or small, or who volunteer in leadership positions of such associations.
For a flavour of what to expect in the Book, please see this article by Jack Anderson which deals with a summary of the key Australian sports law cases in 2022.
The ebook can be purchased here.
Professor Dr Jürgen Bröhmer