UEFA open disciplinary proceedings against AS Saint-Étienne: A Review of Article 16 of the UEFA Disciplinary Regulations, Strict Liability & Determining Sanctions

Image source: PA

UEFA opened disciplinary proceedings against French side, St Etienne, on Friday after a number of fans set off flares during their Europa League fixture with Manchester United, on 16 February 2017.

The club has been charged with three offences under Article 16(2) of the UEFA Disciplinary Regulations (DR):

• Setting off fireworks (flares)
• Throwing of objects 
• Improper conduct of supporters

UEFA has not indicated that any action will be taken against host club, Manchester United, in relation to their organisation of the match under Article 16(1) of the UEFA DR - action may have been taken if the governing body considered that the club failed to put in place adequate security measures, that were reasonably expected, prior and during the match.

Under Article 16(1) "host clubs and national associations are responsible for order and security both inside and around the stadium before, during and after matches. They are liable for incidents of any kind and may be subject to disciplinary measures and directives unless they can prove that they have not been negligent in any way in the organisation of the match."

Court of Session issues judgement in 'Tartan Army' trade mark case

Image Source: Famous Tartan Army Magazine

Last week, Lord Glennie issued his judgement in the case of Tartan Army Limited v Alba Football Fans Limited [2017] CSOH 22 whereby the owners of the trade mark "Tartan Army" attempted to prevent another company using the phrase, without its permission, in publication of a magazine that offered football travel services, under the name "Tartan Army". However, the case failed as Lord Glennie ruled that the defender's magazine, The Famous Tartan Army Magazine, was not "identical" to the pursuer's trade mark and it was unlikely that fans would consider the magazine to be connected to the pursuer.

I have a look at the case and judgement below:

The 'Tartan Army' Brand & Business

The Tartan Army is the name given to fans of the Scotland national football team and first came into popular use in the 1970s. The origin and the development of the brand 'Tartan Army' was explored by Lord Glennie in determining his judgement. Although the name first came into circulation in the 1970s, no trade mark application was submitted until the run-up to the 1998 World Cup (in which Scotland qualified). It was at this point that trade marks were successfully registered for the words "The Tartan Army" and "Tartan Army", by a Glasgow businessman who was not party to the action. The Tartan Army Limited was incorporated in 1997 and the trade mark was used to produce supporter-esque merchandise including t-shirts, scarves, banners and cap as well as releasing a national team song, "Scotland Be Good". The success of the brand was limited, however, to the success of the national team and was also limited to the football season. 

In 2005, the business was approached by a Mr Iain Emerson & a Mr Tannock. The two gentlemen wanted to publish a fan-zine type magazine and ensure that there was no objection to using the trademarked phrase "Tartan Army" in the title of the magazine, 'The Famous Tartan Army Magazine'. No objection was raised and they received written consent, as The Tartan Army Limited was not involved in any written publications, at that time. Between 2005 and 2008, five issues of the magazine were published but the businessmen soon started to develop other ventures, including travel services, under the company name SFM Promotions Limited.

In May 2006, The Tartan Army Limited was sold to Robert Shields and Donald Lawson which included the right to use the trade marks. Despite the lack of success from the national football team thereafter, the company continued to pursue any improper use, with protection of the brand one of their top priorities. Whilst they did not object to local fan groups using the marks, their aim was to prevent commercial use without permission - they cited two successful attempts to prevent two breweries from using the name "Tartan Army", without permission, on products and promotions. Further, they also pointed to sponsorship agreements that had been made with Belhaven Breweries and Tennents, that allowed use of the marks.

The NFL & Texas' Bathroom Bill: The effect on NFL Clubs, in Texas & Future Sporting Events

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In January 2017, Texan Republicans revealed a proposed bill (Senate Bill 6), known as 'The Bathroom Bill' with the aim to regulate bathroom use and prevent transgender people from using the bathroom of the gender which they identify.  The bill overturns existing legislation that extends protection to lesbian, gay, bisexual and transgender people. It means that a transgender person will be unable to use the bathroom of the sex in which they identify unless they have successfully changed their birth certificate.

The NFL Response

 

An NFL spokesman advised on Friday, that such discriminatory legislation could be taken into account in any decision-making on where the league hosts major-events, in the future. Texas has just recently hosted this year's Super Bowl but it may be their last if the proposed plans go ahead, according to the NFL.

The NFL prohibits discrimination based on age, gender, race, religion, sexual orientation, or any other improper standard, which is enshrined in the league's policies. As such, the proposals from the State of Texas is indirect contrast to NFL values.

Here's what the NFL had to say on the matter:

"If a proposal that is discriminatory or inconsistent with our values were to become law (in Texas), that would certainly be a factor considered when thinking about awarding future events...The NFL embraces inclusiveness. We want all fans to feel welcomed at our events, and NFL policies prohibit discrimination based on age, gender, race, religion, sexual orientation, or any other improper standard."

Cricket Australia's Pregnancy Clause v Netball Australia's Pregnancy Policy

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Prior to Christmas 2016, it was heavily reported that Cricket Australia was coming under fire as a result of a 'pregnancy clause' requiring elite female cricketers to confirm that they were not pregnant, upon signing a contract with the governing body. The clause is now being investigated by Australia's Fair Work Ombudsman and negotiations are also reported to be underway between the Australian Cricketers Association and Cricket Australia, with female player involvement.

What is the pregnancy clause?

 

The relevant clause can be found under section 8.3 of the employment contract and reads:

"The player warrants that, to the best of her knowledge, she is not pregnant as at the date of signing this contract and undertakes that upon becoming aware that she is pregnant, she will notify the details of the pregnancy (in writing, where practicable) to the Cricket Australia medical officer (or such other appropriate representative of Cricket Australia or other person designated by Cricket Australia) as soon as reasonably practicable."

What is the problem?

 

Employment law in Australia (and the UK) states that employers cannot discriminate, either directly or indirectly, on the grounds of pregnancy, or on the basis of sex, and any attempt to do so is thus unlawful.  

The pregnancy clause requires a female player to confirm that she is not pregnant, at the time of signing the contract. It is unclear as to what the ramifications would be if a player advised that they were pregnant at the time of signing the contract, but Cricket Australia maintains that a player being pregnant, at the time of signing, would not influence its decision on whether a contract was offered or not. Yet it is difficult to see why such a pregnancy clause, as worded above, is required if that is the case.  Perhaps changing the wording of the clause to require players to notify the medical officer of any 'condition' they may develop, during the length of their contract, and that may affect their health during physical activity, would be more appropriate. This would thus cover male and female players and not discriminate against pregnant players or females in general.

Additionally, the clause has also received intense criticism with the suggestion that the governing body may be trying to avoid paying out on maternity leave - this is a position that has been voiced by advocacy group, Women Sport Australia.

Four year ban imposed on Russian athlete, Mariya Savinova-Farnosova

Media Release: 

The Court of Arbitration for Sport (CAS) has issued its decision in the arbitration procedure between the International Association of Athletics Federations (IAAF), the Russian Athletics Federation (RusAF) and the Russian middle-distance runner Mariya Savinova-Farnosova. 

On the basis of clear evidence, including the evidence derived from her biological passport (ABP), Mariya Savinova-Farnosova is found to have been engaged in using doping from 26 July 2010 (the eve of the European Championship in Barcelona) through to 19 August 2013 (the day after the World Championship in Moscow) and accordingly to have violated Article 32.2(b) of the IAAF Competition Rules (the IAAF Rules) which concerns “Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method”. 

As a consequence, a four-year period of ineligibility, beginning on 24 August 2015, has been imposed on Mariya Savinova-Farnosova and all results achieved by her between 26 July 2010 and 19 August 2013, are disqualified and any prizes, medals, prize and appearance money forfeited. 

The CAS acted as first instance decision-making authority for this matter, substituting for RusAF, which was suspended at the time the matter was ready to be adjudicated (and which remains suspended).

Sports Betting in the USA - The Legal Position

Image source: Wheretogamble.com

Today is Super Bowl Sunday in the United States, a day where Americans will unite to watch the Atlanta Falcons take on the New England Patriots in a bid to win the National Football League championship. In the UK, sports betting is an integral part of watching your favourite sport and placing bets on who you think will win or how the game will play out, is very much routine even with half time adverts encouraging viewers to gamble on the result with in-play odds. However, in the United States, it is very much a different picture as sports betting in the vast majority of states is prohibited and a federal offence. Despite that, it is reported that Americans will likely use a variety of methods to place illegal bets, with tonight being one of the most profitable events for the illegal gambling market. It is estimated that a turnover of $400bn, per year, is made by what is arguably the world's largest black market for gambling and 97% of those who place bets on tonight's Super Bowl will do so illegally.

The Law

 

The Professional and Amateur Sports Protection Act (PASPA) 1992 (also known as the Bradley Act) was introduced in the early 1990s and supported by some of the most powerful men in American sports. It's implementation had three goals in mind: (1) to stop the spread betting of state-sponsored gambling; (2) maintain the integrity of sport and (3) reduce the promotion of sports gambling amongst youths. 

PASPA states the following:

"It shall be unlawful for:

(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorise by law or compact, or

(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity,

a lottery, sweepstakes, or other betting, gambling or wagering scheme based, directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes, participate, or are intended to participate, or on one or more performances of such athletes in such games."

The Act prohibits sport gambling across all states but carries an exemption under section 3704 for those states that allowed or operated some kind of sports betting scheme at any time between 1976 and 1990. The states that fell under the exemption were Nevada, Oregon, Delaware and Montana. However, it was only Nevada that operated a full range of sports betting which meant that other states were limited to what they had on-offer prior to the enactment of the legislation.

Court of Arbitration for Sport upholds FIFA decision in Calhanoglu case

 

Media Release:

The Court of Arbitration for Sport (CAS) has issued its decision in the dispute between the Turkish football player Hakan Çalhanoğlu and the Turkish football club Trabzonspor FC. 

Hakan Çalhanoğlu is ordered to pay €100,000 to Trabzonspor FC. Furthermore, the four-month ban imposed on Hakan Çalhanoğlu, by the FIFA Dispute Resolution Chamber (FIFA DRC), which was suspended at the beginning of the CAS proceedings, is reinstated with immediate effect. 

In April 2013, Trabzonspor lodged a claim before the FIFA DRC arguing that Hakan Çalhanoğlu had breached the terms of their employment contract without just cause when the Player signed a contract with the German team Karlsruher SC. In January 2016, the FIFA DRC issued a decision in which the Player was found to have terminated his employment contract with Trabzonspor without just cause within the protected period and a sanction of a four-month period of ineligibility was imposed on him. 

Upon receiving the grounds of the FIFA DRC decision in March 2016, both Hakan Çalhanoğlu and Trabzonspor FC filed appeals at the CAS. Hakan Çalhanoğlu’s appeal was accompanied by a request to stay the execution of his four-month ban, pending the outcome of the CAS proceedings, which was granted. The Player sought the annulment of the FIFA DRC decision, whereas the club sought the return of a €100,000 advance that it had made to the player as well as compensation of €1 million. 

The two appeals were consolidated and treated as one procedure by a Panel of CAS arbitrators: Mr Mark A. Hovell, UK (President), Dr Michael Gerlinger, Germany, and Mr Hendrik Willem Kesler. 

The Panel conducted a hearing on 5 October 2016 and confirmed that Hakan Çalhanoğlu had breached the FIFA Regulations on the Status and Transfer of Players (FIFA RSTP) and recognised that Trabzonspor FC did not comply with due diligence requirements in this matter. 

The Panel dismissed Hakan Çalhanoğlu’s appeal, but partially upheld the appeal of Trabzonspor in ordering that Hakan Çalhanoğlu pay €100,000 to Trabzonspor FC as reduced compensation for breach of contract without just cause.