STATE AID IN SPORT: A REVIEW OF PAST & PRESENT CASES

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In July 2016, the European Commission published its decision in state aid cases concerning several Spanish and Dutch Professional Football Clubs. It held that tax payers money granted to seven professional football clubs, in Spain, were to be paid back as the funds gave those clubs an unfair advantage over other competing EU football clubs. On the other hand, in the case of five Dutch professional football clubs, the EU Commission concluded that the case would be closed with no further action as it found no evidence to support that the state aid received was illegal.

But what is state aid? Are their exemptions to the rules and what cases have we seen thus far, not just in football but across all sports?

This blog post will attempt to answer those questions and review sport-related state aid cases and examples, both past and present.

CAS issues decisions in cases of Tatyana Chernova, Ekaterina Sharmina and Kristina Ugarova

CAS RELEASE:

The Court of Arbitration for Sport (CAS) has issued decisions concerning the Russian track and field athletes Tatyana Chernova, Ekaterina Sharmina and Kristina Ugarova. All three athletes have been found to have committed an Anti-doping Rule Violation (ADRV) pursuant to Rule 32.2 of the International Athletics Federation (IAAF) Competition Rules after analysis of their Athlete Biological Passports (ABP) showed evidence of blood doping. 

Tatyana Chernova is sanctioned with a period of ineligibility of three years and eight months, beginning on 5 February 2016. Ms Chernova’s period of suspension from 22 July 2013 until 21 July 2015, previously imposed by the Russian Anti-doping Agency (RUSADA), is to be deducted from this sanction. All results achieved by Tatyana Chernova between 15 August 2011 and 22 July 2013 are annulled and the athlete will forfeit any titles, awards, medals, points and prize and appearance money obtained during this period. 

Ekaterina Sharmina is sanctioned with a period of ineligibility of three years, beginning on 7 December 2015. All results achieved by Ekaterina Sharmina between 17 June 2011 and 5 August 2015 are annulled and the athlete will forfeit any titles, awards, medals, points and prize and appearance money obtained during this period. 

Kristina Ugarova is sanctioned with a period of ineligibility of two years, beginning on 7 September 2015. All results achieved by Kristina Ugarova between 26 June 2012 and 25 December 2012 are annulled and the athlete will forfeit any titles, awards, medals, points and prize and appearance money obtained during this period. 

The collection of the blood samples for these athletes started many years ago (dating back to 2009 for Ms Chernova, to 2011-2012 for the others), but the analysis of the blood values and of the Biological Passports were conducted in 2015. 

In February 2016, the IAAF, with the agreement of the athletes, referred the cases to the CAS in order for it to act as a first instance decision-making authority, substituting for the All-Russia Athletics Federation (ARAF), which was suspended at the time these matters were ready to be adjudicated (and which remains suspended). 

The Arbitral Awards are to be published on the CAS website shortly.

World Rugby announces revised foul play sanctions and disciplinary processes

PRESS RELEASE:

World Rugby has announced details of an enhanced and modernised Regulation 17 framework following an extensive review of the sport's disciplinary processes.
 
The approval of a revised sanctions table and disciplinary structure by its Council reflects the international federation's commitment to reviewing key regulations between Rugby World Cups to ensure a process that is relevant and appropriate within a rapidly evolving and expanding sport.
 
Significantly, to drive greater connection between the disciplinary process and the modern rugby environment, a new judicial policy will apply under the merit-based appointment scheme for elite 15s international matches, whereby World Rugby will appoint three-person judicial committees, wherever practicable, comprising one lawyer and two individuals with recent experience in the modern professional game (playing, coaching or refereeing).   
 
While this process is also encouraged at other levels of the game, single judicial officers can continue to be appointed to deal with cases in those competitions as necessary, applying the same regulatory processes and sanction table in order to ensure all levels of the game are dealt with appropriately, proportionately and consistently. 
 
Simultaneously, the Council resolved to expedite the scheduling and resolution of judicial hearings as quickly as practicable following a red card, citing or other disciplinary matter in order to provide teams certainty as early as possible for the purposes of team selection and travel arrangements for subsequent fixtures.
 
A revised sanctions table will be effective from 3 January, 2017 and will be accompanied by game-wide education of disciplinary personnel to drive greater consistency of application across multiple competitions and jurisdictions. These were recommended by representatives of the playing, coaching, officiating, media and judicial fraternity at the judicial review workshop in June this year. 

• Tougher sanctions for dangerous play relating to the head
• Revision of entry points to reflect modern game
• Minor adjustments to other entry points to make them more practical for the aggravation and mitigation element of the sanctioning process
• Equivalent, consistent adjustments to the underage sanctions table taking into account shorter seasons and other disciplinary measures at that level

World Rugby Chairman, Bill Beaumont said: 

"We continue to ensure that our structures reflect and support a modern, growing and thriving game by reviewing all aspects of our regulatory framework between Rugby World Cups. We know there is increased scrutiny of rugby's laws and regulations from fans and the media. Player welfare and upholding the values of the game are of paramount importance as we reach out to more men, women and children around the world. I am confident that the revised Regulation 17, dealing with foul play, delivered following the full consultation of our member unions, is representative of a sport that is founded on the values of discipline, respect and integrity. It will allow for greater consistency across the board, while recognising the practical differences between elite and community rugby. I would like to thank the unions for their full commitment and enthusiasm to a process that will deliver an enhanced and strengthened regulation that will further promote consistency, protect our players and serve the game well at all levels as the sport grows in popularity and appeal."

Serge Aurier: UK Immigration & Criminality

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Paris Saint-Germain (PSG) defender, Serge Aurier, was today denied entry to the UK and will now miss his Champions League match against Arsenal. 

A visa had been granted for Aurier back in October but this was revoked on 16 November, following Aurier's two month suspended prison sentence, in September, for assaulting a police officer. After numerous arguments, PSG were finally told today that Aurier would not be granted a visa.

It has been reported by news outlets that Aurier had applied for a Tier 2 Sportsperson visa which is granted to internationally established sportspersons and allows them to remain within the UK for a period of three years. It is one of the most common work permits for sportspersons entering the UK and can also lead to indefinite leave to remain, for those who wish to reside permanently.

IP: The Adidas & FC Barcelona Trademark Dispute

FC Barcelona have found themselves locked in a trademark dispute with German sportswear brand, adidas, after the sportswear giant opposed FC Barcelona's trademark application with the US Patent and Trademark Office (USPTO).

What is a trademark?

A trademark is defined as being 'any sign capable of being represented graphically and which is capable of distinguishing the goods or services of one undertaking from those of other undertakings.' Trademarks can take a number of forms including logos, badges, phrases and distinctive patterns & designs, such as the five golden rings associated with the Olympics.

The registration of a trademark provides the owner with an enforceable property right regarding improper use. Any infringement of a trademark allows the owner to claim compensation from the infringer (usually the profits earned from the selling of goods) and request an injunction prohibiting them from further use of the trademark, along with handing over any counterfeit goods.

Conor McGregor & UFC Ownership: The Legal Issues

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Following his historical fight at UFC 205, Conor McGregor made two announcements. The first was that he was expecting a child with his long-term partner and the second was that he wanted a piece of the business.

This is what McGregor had to say at the post-fight press conference:

"They've got to come talk to me now because no one's came and talked to me since the sale has happened, as a businessman. I've been approached as 'Hello' and that type of stuff, but i've earned something. Who owns the company now? People have shares. Celebrities Conan O'Brien, and others, own the UFC now. Where's my share? Where's my equity? If i'm the one that's bringing this, they've got to come talk to me now. I've got both belts, family on the way If you want me to stick around, if you want me to keep doing this, let's talk. But I want ownership now. I want the equal share. I want what I deserve, what I've earned."

This isn't the first time that McGregor has grown tired of his contract. He was also looking beyond his role, as just a fighter, back in Spring when he announced his early retirement.

McGregor also commented that he had outgrown his previous contract and understood what his brand worth meant to the company. He stated that he was looking for a deal that set himself up for the foreseeable future. He did not see himself as merely one of the roster but he wanted to be "on board for real" and "all in on this proper ... a stake in the company."

Ahmed v MacLean - Liability attaches to mountain bike instructor

On 10 November 2016, the High Court issued its judgement in the case of Ahmed v MacLean, finding a cycling instructor 80% liable for a cycling accident that left a solicitor paralysed, during a mountain-bike lesson.

The Background

Ahmed (The Claimant) booked a beginners mountain bike tuition course at a cost of £79.00. He had owned a mountain bike for 12 years but was a novice when it came to mountain bike skills. 

The Course commenced on 25 March 2012 at 10am and was due to last a period of six hours. Three other individuals had also booked a place on the course with two of those arriving on time. By 10:15, the fourth member had still not arrived and the instructor, MacLean (the defendant) decided to commence the course and the group set off, ascending to the top of Holmbury Hill, in Surrey. No assessment of the individual capabilities of the group was carried out prior to embarkment.

The group, thereafter, set off on a relatively level section, prior to travelling downhill towards a bisecting highway known as Radnor Road. At this point, another section of the route commences which is known locally as "Barry knows best". This section is a downhill, single track trail, and within a few hundred metres of its commencement, a point is reached whereby a steep downward slope is encountered. Barry knows best is considered a "blue trail" and not "ideal" for teaching novice cyclists on.

'Offensive' Behaviour at Football: The Legal Position in Scotland

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What is the legislation? 

In 2012, the Scottish Government introduced a controversial piece of legislation aimed at football supporters and tackling offensive behaviour. For many, this measure was viewed as a tool to target sectarianism that had plagued Scottish football for decades and in particular, the two main Scottish clubs, Celtic and Rangers, whose fan base had a deep association with Ireland and N.Ireland, and the politics within.

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (OBFA) came into force in March 2012 and stated that it was an offence for a person, at a regulated football match, to engage in behaviour which is hateful, threatening or offensive and likely to incite public disorder. The legislation goes on further to state that behaviour is likely to incite public disorder if such disorder would be likely to occur, but for measures put in place to prevent it or for the absence of persons likely to be incited.

Hateful behaviour is defined as 'expressing hatred', 'stirring up hatred' or 'motivated by hatred' of an individual or group of persons based on their membership of a certain group. Such groups can include religious groups and social/cultural groups as well as those falling under race, gender and sexuality.

UFC Star, Jon Jones, receives one year ban after anti-doping violation

UFC star, Jon Jones, has today received a one year sanction following an anti-doping violation.

Jones tested positive for the presence of two prohibited substances, clomiphene and letrozole (contained in Tadalfil), following an out-of-competition test in June 2016. Both substances fall under the category of 'specified' and are prohibited at all times, under the UFC Anti-Doping Policy.

Anti-doping violation punishments, in the UFC, can range from a warning to the standard one-year period of ineligibility, depending on the degree of fault.

The 3 man panel considered that Jones's fault fell at the top end of the scale. Jones was out for dinner with a UFC teammate and during the dinner, the teammate had been talking about a product he was using called Cialis (not banned). Jones understood Cialis to be like Viagara and asked the teammate for one. In coming into possession of the tablet and subsequently taking it, he made no enquiry whatsoever about the tablet or substances within it or whether they were prohibited under the WADA code. Instead, he relied upon a teammate to tell him what the tablet was and that it could enhance sexual pleasure.

FIFA & UEFA's Position on Football & Political Messages

Over the last few months, there has been an increased press coverage of political messages in football, as a result of incidents occurring in and around the game, ranging from the flying of national flags, during fixtures, to national team shirts that bear what could be viewed as potentially contentious political logos/emblems.

FIFA and UEFA both take a strict stance when it comes to political statements in football with FIFA repeatedly stating that football should never be used for political messages and that the focus should be on the game itself and nothing else.

FIFA's position on political messages can be found in Law 4 of the Laws of the Game:

"Equipment must not have any political, religious or personal slogans, statements or images."

"Players must not reveal undergarments that show political, religious, personal slogans, statements or images, or advertising other than the manufacturer's logo."

"The team of a player whose basic compulsory equipment has political, religious or personal slogans, statements or images will be sanctioned by the competition organiser or by FIFA ... A player/team of a player who reveals undergarments that show political, religious, personal slogans, statements or images, or advertising other than the manufacturer's logo will be sanctioned by the competition organiser or by FIFA"

As you can see, Law 4 is wide in scope and does not only cover political messages but a whole range of potentially contentious issues. This position is seen necessary by FIFA as it cannot be held out to be taking one particular side over another when it comes to particularly contentious matters which could be damaging to existing relationships of the governing body.

NEWS: First eSports Arbitration Court announced by WESA

The World eSports Association (WESA) has announced the introduction and implementation of the very first eSports Arbitration Court.

The Court will be an alternative to litigation which can be very costly and often viewed as too lengthy for sporting scenarios whether that be eSports or traditional sports. WESA, which currently governs tournaments for ESL's Pro League, has stated that the Court will be open to everyone involved in eSports, a move which is likely to broaden WESA's reach.

The Court's role will be to resolve a number of disputes, in a timely and cost-effective manner, including contracts, financial pay-outs, player representation and integrity allegations. It will consist of a 3 person panel with the option for a sole arbitrator, if appropriate, and all decisions will be final with no appeals process. That's not to say, of course, that parties are stuck with whatever the panel decides and in some cases, there will be real grounds of appeal via litigation, usually on the basis of:

1. Lack of jurisdiction
2. Serious irregularity affecting the arbitrators, the proceedings, or final award 
3. A point of law

Alternative Dispute Resolution is a good thing and most definitely required in eSports, and whilst the Court may not be completely independent, given it's association with WESA, it is certainly a step in the right direction for providing a body to which all involved in eSports can submit disputes to without the expensive and time-consuming restraints which go hand-in-hand with litigation.

Further information regarding the eSports Arbitration Court and how to submit a complaint can be found here.