The Beautiful Game

With the World Cup looming in June, Jennifer Currie examines the not inconsiderable involvement of lawyers in the smooth running of our national sport


It may only be a game, son, but football means big business to the legions of lawyers who take their sports law very seriously. Considering how simple the game actually is – it’s only 22 people belting a ball around a muddy park, after all – the amount of lawyers who are involved in every match is mind-boggling.

Acting for a football team has its advantages, of course (complimentary season ticket anyone), and sports law is by far one of the more glamorous sides of the legal profession. So it is not surprising to find that some recruitment consultants have registered an upsurge in the number of lawyers vying to work in the area.

But it’s not just the players’ antics on and off the pitch that keep lawyers busy. For every player, there will be individual sponsorship deals – some for the club, others for the stadium they play in and the tournaments they compete in.

Then there are the intense contract negotiations to ensure the club gets its money’s worth out of the players it had to pay through the nose for only a few months earlier. Not to mention the strips they wear, the merchandise and the small matter of image rights, which could spell all sorts of trouble for lawyers if Mr Beckham gets his way and is awarded an additional 20,000 a week from Manchester United.

Some have poured scorn on the concept that there can be such a thing as a sports lawyer. Last year the Bar Council rejected suggestions for a new Sports Law Bar Association, for example. But with the World Cup Finals looming, sports specialists will have a real chance to let their lawyering do the talking.

Image Rights

England skipper David Beckham is not the first to enter into tricky negotiations over image rights.

The oldest cases of passing off were actually fought between rival milkmen over attempts to poach customers from different beats, according to Robert Stoker, head of the sports unit at Addleshaw Booth & Co.

“We have a fairly undeveloped law on image rights in this country. You can’t find a piece of legislation that expressly protects image rights for personalities.”
Footballers are also at a disadvantage in the legal arena because they are not considered to have a ‘business’, a necessary requirement for protection under this area of the law.

“It is not passing off if someone puts Michael Owen on a packet of sweets without his permission, because Michael Owen is a footballer, he does not have a reputation relating to sweets,” says Stoker.

Footballers are best advised to register their name as a trademark and rely on existing legislation in that area to defend them. Stoker says the trick is to register before you get too famous. “Then if someone was to use your name you have got a weapon that is a lot more potent,” he says.

Broadcasting rights

Next time you’re watching football on TV, spare a thought for the hard-working lawyers who make sure that it actually gets shown. In 1999, the Office of Fair Trading took the Premier League, BSkyB and the BBC to the Restrictive Practices Court after it was claimed that the multimillion pound arrangement between the three parties was anti-competitive.

Only a couple of years earlier, BSkyB had bought up four years of live rights to Premier League football for approximately 650m, while the BBC had snapped up the rights to show highlights on Match of the Day for a further 75m. But the OFT’s director-general said it was unlawful for the Premier League to sell the broadcasting rights collectively on behalf of every club, describing it as a “cartel”. The fact that BSkyB had broadcast only 60 out of 380 games each season, while the BBC showed the highlights from only three games each match day, led the OFT to believe that customers were dissatisfied with the restricted service.

The OFT thought every club should be able to sell their TV rights to the broadcasters of their choice. Gautam Bhattacharyya, the litigation partner at Richards Butler who acted for the BBC, says: “Football is the national game and it draws a good audience. The rights are extremely valuable. So the broadcasters had to win the case full stop. If they lost, it would mean that other contracts would have to be torn up and renegotiated as most sporting rights are sold collectively.”

Broadcasters across the land gave thanks for the safety of their contracts when in July 1999, the court ruled that it was not unlawful for one broadcaster to have exclusive rights because it allowed them to invest in the programming and give the public a good service.

While he felt “pretty good about the case” throughout, Bhattacharyya, a devoted football fan, said it could have brought an end to Match of the Day as we know it. “You can never take too much for granted in litigation. You only know at the final whistle.”

Hooligans/human rights

Even before the Human Rights Act 1998 came into force on 2 October 2000, the media were predicting the demise of responsible society and the rise of a rights-obsessed culture. The public’s imagination was particularly captured by the possibility that speed cameras, school uniforms and working on bank holidays could all constitute a violation of the right to private life.

A pair of Derby County fans are fighting back against new police powers that have banned them from travelling when certain football matches are being played.

In October 2000, Carl Gough and Gary Smith were banned from matches for two years after Derbyshire Police complained that they were likely to cause trouble. This ban restricted their movements during Derby home and away games and also required them to report to the police five days before any England away international with a view to surrendering their passports.

But the men complained that the restrictions were so severe that they could not go shopping in Derby town centre on a Saturday, and said they were also prevented from going on a foreign holiday if an international match was taking place at the same time.

Claiming that the order was an infringement on their human rights, they challenged its legality in the High Court last July, but the ban was ruled a “lawful and proportionate restriction” under European Community law.

Mr Justice Laws said football banning orders existed to “protect the public, here and abroad, from the evil of football violence and the threat of it”. More than 500 people are currently restricted by similar orders, which were created under the terms of the Football Disorder Act 2000.

Rhodri Thompson, a barrister at Matrix Chambers, is acting for the Derby fans when they take their case to the Court of Appeal this spring. He believes the case raises some serious points about EC law.

“Can you make these international banning orders simply because they were troublemakers in Derby?” he asks. “When England played in Albania last year, for example, these men would have had to get permission simply to go to Ireland on holiday because the England team was playing abroad. And when the World Cup takes place later this year, there will be a month when they will have to get permission to travel to Eurodisney, simply because there is a football match in Japan.”

One of the men served a six-month prison sentence in 1990 for resisting arrest and the other was involved in a brawl in 1998, but Thompson said that neither had been involved in any football violence for 18 years. “Both had been spotted at football matches but there had been no direct violence,” he added.

Changes to police powers contained in the 2000 act now mean that banning orders can be imposed even if the football fan has not been convicted of a criminal related offence. Under the new regulations, banning orders can be made “if the court believes it would help prevent violence or disorder at football matches”, according to the official literature.

As one of the football fans has a brain tumour and has never been to a football match outside the UK, Thompson thinks it is entirely unnecessary for the authorities to prevent him from leaving the country because he would be unlikely to. Thompson adds: “Legally we have a very strong case. Politically it will be very difficult.”

Hooligans/human rights

A pair of Derby County fans are fighting back against new police powers that have banned them from travelling when certain football matches are being played.

In October 2000, Carl Gough and Gary Smith were banned from matches for two years after Derbyshire Police complained that they were likely to cause trouble. This ban restricted their movements during Derby home and away games and also required them to report to the police five days before any England away international with a view to surrendering their passports.

But the men complained that the restrictions were so severe that they could not go shopping in Derby town centre on a Saturday, and said they were also prevented from going on a foreign holiday if an international match was taking place at the same time.

Claiming that the order was an infringement on their human rights, they challenged its legality in the High Court last July, but the ban was ruled a “lawful and proportionate restriction” under European Community law.

Mr Justice Laws said football banning orders existed to “protect the public, here and abroad, from the evil of football violence and the threat of it”. More than 500 people are currently restricted by similar orders, which were created under the terms of the Football Disorder Act 2000.

Rhodri Thompson, a barrister at Matrix Chambers, is acting for the Derby fans when they take their case to the Court of Appeal this spring. He believes the case raises some serious points about EC law.

“Can you make these international banning orders simply because they were troublemakers in Derby?” he asks. “When England played in Albania last year, for example, these men would have had to get permission simply to go to Ireland on holiday because the England team was playing abroad. And when the World Cup takes place later this year, there will be a month when they will have to get permission to travel to Eurodisney, simply because there is a football match in Japan.”

One of the men served a six-month prison sentence in 1990 for resisting arrest and the other was involved in a brawl in 1998, but Thompson said that neither had been involved in any football violence for 18 years. “Both had been spotted at football matches but there had been no direct violence,” he added.

Changes to police powers contained in the 2000 act now mean that banning orders can be imposed even if the football fan has not been convicted of a criminal related offence. Under the new regulations, banning orders can be made “if the court believes it would help prevent violence or disorder at football matches”, according to the official literature.

As one of the football fans has a brain tumour and has never been to a football match outside the UK, Thompson thinks it is entirely unnecessary for the authorities to prevent him from leaving the country because he would be unlikely to. Thompson adds: “Legally we have a very strong case. Politically it will be very difficult.”

Stocks and shares

Goals count for a lot more than just a couple of points in the league table these days, with more and more fans investing their hard-earned cash in shares in their favourite team.

A quick scan down the back pages of the financial press reveals that many big-name teams – Aston Villa, Celtic, Leeds United and Tottenham, to name but a few – have all floated on the stock exchange in recent years.

David Hull, head of corporate finance at Hammond Suddards Edge in the Midlands, says that many firms followed Manchester United’s lead on to the stock market five years ago.

“It was seen as a way of getting more money into the football clubs,” he recalls. “But it has been a huge failure. Every single one of them is now trading at a discount.”

Problems can quickly arise for shareholders if the team’s performance on the pitch starts to slip. Shares in Leicester City Football Club have fallen from 110p to around 18p since the club was floated five years ago, and the Foxes were lying perilously close to the bottom of the Premier League table when Lawyer 2B went to press.

At the opposite extreme, clubs that perform well on the pitch and reap financial rewards from the stock market can find themselves under pressure from fans who would much rather they spent the money on top quality players than letting it gather interest in the bank.

As a result, some clubs are opting to shift across to the Alternative Invest-ment Market (AIM), a junior stock market which, according to Hull, is “a lot easier” and has “a lot less restrictions” than the Official UK Listing Authority.
Designed with smaller companies in mind, AIM may be slightly less attractive to investors, but this has not deterred Hull from advising Leicester City to transfer over to it.

While Hull thinks that the football clubs which floated on the stock market did so for all the right reasons, he admits that “times change”.

Back in January, Leicester City’s board agreed that the transfer would be in the club’s best interests, as it would be more cost efficient and would “significantly reduce” the costs of potential corporate transactions because the club could market itself to investors specifically interested in AIM.

Planning

“Moving a football club is hugely complicated,” says David Cooper, head of planning at Gouldens. “I would describe it as an industry of complexity.”

Cooper has overseen Arsenal Football Club’s bid to build a 60,000 seat stadium in Ashburton Grove, north London, a move that will almost double the club’s current crowd capacity. He has worked on the project for 30 hours a week over the past two and a half years, to guide it through the initial stages to the grant of planning permission.

It took “enormous effort and manpower” to produce the documents that show the impact the building will have on local individuals, nuisance, crowd control, car parking, interference with TV aerials, “everything under the sun”, according to Cooper. Extensively detailed sets of environmental impact and traffic impact assessment forms must also be submitted.

The planning application has to stress the benefits the new stadium will bring to the community. Cooper estimates that Arsenal will spend between 40-60m on regeneration projects alone, which include a housing development of more than 2,000 units, a new waste disposal site (to replace the one the stadium is being built on), health centres, shops and improvements to the existing transport systems.

Cooper was first instructed by the football club back in August 1999, and submitted the first planning proposals in November 2000. These were substantially revised and have at last been approved by London’s mayor Ken Livingstone, Islington Council and Stephen Byers, the Secretary of State for Transport, Local Government and the Regions. But local residents have already mounted some legal opposition. The Islington Stadium Communities Alliance (ISCA) claims that the environmental studies carried out on the club’s behalf were not good enough and plans to seek a judicial review of the council’s resolution to approve the application now that the Government has ruled out a public inquiry.

“If the Government had called in the application, the plans could have been set back by about two years and that could have meant the stadium would not go ahead at all,” he says grimly. But, with the end of the two-year red-tape delay almost in sight, Cooper is already planning ahead to the next stage of development. “We have got to get on with things like compulsory purchases and road closure orders. It’s a huge process.”

Employment

Footballers may make front-page news simply by changing their hairdo, but they are not as powerful as they might seem.

Until last autumn, players had few rights as employees and were obliged to stay at their clubs until their contracts ran out.

But under the terms of Fifa’s new international transfer system, which came into force last September, football players can terminate their own contracts, giving sports lawyers a good reason to reach for the headache pills.

Fifa’s new system stems from a case in the European Court of Justice six years ago, brought by Belgian player Jean-Marc Bosman. He had been told he could not move to a French team because his club was not getting a transfer fee. Bosman successfully argued that players were ‘workers’ and were therefore covered by EC treaty rules that grant freedom to work.

Scott Duxbury, head of legal and company secretary at West Ham United, admits that transfers are now a lot more complicated.

“Of course players are entitled to employment rights, but this is really a players’ charter,” he adds. “Clubs try to look at the situation from the point of view of a fan buying a season ticket. They pay upfront and expect to be able to see the players for a whole season. Now the players expect to be able to move around. But we need to give the club some certainty that the player is likely to stay.”

Non-EU nationals are required to have a work permit in order to play for a UK team. Permits are only automatically granted if their team is ranked in Fifa’s top 70 teams and if the individual player has played in at least 75 per cent of their national side’s category-A games during the last two years.

Players who cannot meet the official requirements can appeal to a tribunal, where the panel has to be convinced that the player is of an outstanding quality and will have an impact on English football, says Duxbury.
His day-to-day la-wyering also in-volves ensuring that players stick to the terms of their contract – including diet regimes.

“I may have to step in and take action if the player is not at their agreed weight or is not performing well in training. Any action will follow the terms of normal employment law – the players are informed and are given a time frame to set things right, in this case lose weight, before any action is taken.”

Insurance

The events of 11 September posed an unexpected set of problems for the lawyers handling the insurance for the 2002 World Cup Finals.

Shortly after the Twin Towers were destroyed, AXA Colonia terminated its contract to provide Fifa with insurance for the event in Japan and South Korea.

One of the pivotal reasons for pulling out of the deal was the huge number of claims that could be filed if the finals were called off because of terrorist threats. “For a start, everyone who bought tickets would want refunds,” says Jason Smith, a sports right specialist and a partner at James Chapman & Co.

Then there would be the huge number of people who would have been brought in to provide a service at the event, such as security, hospitality and catering, as well as a number of commercial partners such as sponsors, broadcasters and merchandise providers.

“Sponsors will have paid huge amounts of money to be associated with the event, often to the exclusion of their competitors,” says Smith. “For something like the World Cup Finals, sponsors may have paid up to $50m (35m) for an exclusive association and would look to get at least some of their money back.”

Also, broadcasters may have incurred massive costs in setting up facilities, as well as the refunds due to advertisers who have already booked slots. “They could then look to bring a claim against the organisers for lost income,” says Smith. “No one will just have the money sitting around, it will probably already have been spent.”

Lawyers who in the future have to negotiate insurance policies for high-profile sporting events could be faced with a host of new issues as a result of the AXA/Fifa situation.

Event organisers may now ask individual service providers to cover themselves for event cancellation, instead of opting to shoulder the potential of such an enormous insurance claim under their own blanket policy.

Although Fifa managed to find another insurer in time, the new contract is reputed to contain a clause that forbids it from pulling out.

Sponsorship

“I get the feeling that the amount of money that you can get for a football shirt sponsorship or fees from TV rights has peaked and is probably coming down,” says Alan Burdon Cooper, a partner at Collyer-Bristow.

“If you look around a football stadium you will see between 10 and 20 companies advertising and so how do people know which is the important name they are supposed to take away with them? Sponsors are getting concerned about the clutter,” he says.

“I also know that people who were going for shirt deals are not achieving the sorts of prices they were looking for,” he says. “The figures were getting extraordinarily large and only a few very large companies can afford the major events.”

Another off-putting factor for potential sponsors is ‘market ambushing’, where companies that have not paid for the rights still reap the benefits by edging in on their competitor’s limelight.

“There was the case where a manufacturer was providing all the kit for the players. One of their rivals proceeded to get a whole load of vans and set them up outside the venue and they gave hats and bags away to fans as they arrived. So the fans were plastered with the rival logo by the time they got to their seats.”