State of Play Conference (2005, April, Preston)


‘State of Play’ Conference UCLAN 27-28th April 2005 Day 1: Programme for Wednesday 27th April (revised)

Arrive UCLAN Foster Car Park/Reception

Registration and Buffet Lunch 10am -12.40 Foster Building Scholars Restaurant and Bar

Opening Plenary 12.55 - 1.25 Ian Blackshaw The Court of Arbitration for Sport Comes of Age Adelphi TVI Lecture Theatre

Panel 1: Doping 1.30 – 3.30pm Richard Cramer Hazel Hartley John O’Leary Andy Miah Adelphi TVI Lecture Theatre Chair: Hilary Findlay

Panel 2: Civil/Criminal Liability 1.30 -3.30pm Dave McArdle Mark James Viv Ivins Adam Pendlebury Adelphi LT 114 Chair: Simon Boyes

Coffee: 3.30 - 3.45pm

Panel 3: Image and Spectacle 3.45 - 4.45pm Susan Fletcher Sefletcher2@uclan.ac.uk Paul Boylan Adelphi TVI Lecture Theatre Chair: YvonneWilliams

Panel 4: Post -Fandom 3.45 – 4.45 pm Simon Gardiner Robin Manser Jonnny Magee Adelphi LT 114 Chair: Paul Wilson

Close of Day 1: Deepdale Wine Reception 6.30pm –Dinner 7.30pm

Day 2: Programme for Thursday 28th  April (revised)

Panel 5: E.U Freedoms 9am – 10-15am Geoff Pearson Clifford Stott Simon Boyes

Adelphi Conference Room Chair: Steve Cornelius

Coffee: 10-15am -10-30am

Panel 6: Discrimination 10-30am -11-55am John Wolohan Yvonne Williams Steve Cornelius Adelphi Conference Room Chair: Mark James

Closing Plenary 12- 1pm

Hilary Findlay

Adelphi TVI Lecture Theatre

Weds

Image and spectacle

Sports celebrities

Golfer Doug mccormack

Justification for right of privacy in US

Tort of passing off in uk (since 2002, before ‘deformation’ only course of action, and relies on negative), protects (no right of privacy in uk)

2 types of practice - product endorsement (celeb assoc w product) character merchandising (product is about celeb buut not clear whether endorsed, not protected by copyright – de minimus principle – too trivial to be protected) need to register celeb name as trademark as early as possible

trademarks -    photos and other portraits (is possible to register as a trademark) – image that I registered is trademarked, not all images of that face – must be capable of distinction

photos of people at work – eg cantona scoring goal – diffi to estab, since other traders might want to use them

justice lavey – elvis presley case – where there is trade….that person has no right to stop others..legit trading in image

must use images that are distinctive

with endorsements -    goal of advertiser is to use recognition factor to draw on ‘halo’ effect – eg. Because beckham is brilliant footballer, if used for Gillette, tht must be brilliant too

talksport commissioned agency to produce 3 box sets – shorts w skidmarks eddie Irvine on front – without permission – no issue w photo, since itw as purchased from agency, photo had also been changed – mobile phone transformed to radio – justice lalley decided it was passing off – ref mccullock v may (where same line of business imp) – ‘common for famous people to exploit their images….reason why large sums are paid for…those in .believe that..endorsee takes benefit – upheld by Court of Appeal, despite criticisms on judgement

need to clarify whether good will

need to show actual damage

diffi to bring action on passing off

in this case, it increased pay off from £2000 to £20000 because Irvine said that was minimum he would accept for this kind of endorsement – often, ends up this way, so can take the risk

David Bedford – 2 lookalike figures- directory inquiries service 818 – he had not endorsed. But if he had tried this on passing off, would have had problems – that image is no longer viable, and it wasn’t actually his image that was good, it was look-alikes

If you had personality rights, it would have a remedy

Justice Lalley in Talksport and Irvine talked about modern commerce, but Art 8 of ECHR might have worked – celeb endorsements: any negative publicity, might be transferred back to product, thereby reducing brand equity, so imp that reputation be maintained.

HRA came into force -    Art 8 and 10, -    Does not fully incorporate ECHR (incl privacy right) -    Though courts have interpreted them in context of eCHR8 and 10

Court considered both 8 and 10 in separation, since neither had priority -    court of appeal found in favour of defendant, The Mirror

A & B and C – footballer – newspaper published details about his relationship Lord Wolf ‘ where an indiv is a public figure, he is entitled to privacy in appropriate circums..though must accept that will be subject to scrutiny by media’

Justice Langley, no interim injunc to publish rev of beckham’s former nanny -    story in clear public interest -    nanny ‘fortune based on them having successful marriage’

are we all entitled to t same degree of privacy? -    athletes, politicians?, is it relevant that sports stars often treated as role models?

Other issues Deformation Data protection

Beckham in junction – analogy w Naomi Campbell case – mirror found out she had taken drugs, when she claimed she had not

V fact that beckhams are unique is because of this marriage, so perhaps it is in public interest

Q&A

Athletes as role models? Evidence? -

negotiator

licensing of computer programming

language concerned – English or Japanese – French as comprormise

spectacle of the sport

the spectacle has become international big money

so much money involved in org sport

challenged by Internet

essence of spectacle is money (as control of spectacle)

control by contract (player contracts in particular)

3 parties to every player contract - player, organisation, trade union

baseball, prob not steroid use, but that contracts arranged by trade unions prohibit testing -    eg of how powerful union can be: unfair labour practice claim -    john mcgee – player contracts out of control – to detriment of players themselves

in each contract, because dealing w people, not product like any other – need meaningful relationship

research opponents

confidentiality agreement essential -    between player and association -    do not want others to know what you are paying -    nobody knows what other players are getting -    to avoid constant battles

other aspects to spectacle -    beckham nanny: she breached confidentiality agreement, failure of lawyer o    lawyer did not write contract to convince nanny that disclosing would be risky o    why did she go to paper? They promised her indenification – paper knew she would breach agreement and they agreed to pay it o    could have used liquidated damages conract – give incentive to her not to go to paper o    lawyers should have realised that someone would come forward

fantasy sports -    who owns statistics? British law says no. US authority say the people who manufacturerd it have a right to exploit it -    in US fantasy football worth $3billion dollars in profit -    it wil not end up before court, because too much to lose for both, so negotiation inevitable -    in UK, says this is public info stats

Q&A

Motorola downloading info, creating more info out of raw data – breach of copyright issue failed -    unjust enrichment for US, not similar to Motorola

for fantasy football – is it fair for someone to profit from something they did not produce -    implied license, so will compromise

Thursday

EU Freedoms

Simon Boyes, SL at NTU Law School Caught behind or following on?

Cricket

Kulpak

English cricket system now moved to permitting 2 overseas players in county teams

Implications -    oppo to play against intnational players, but result is fewer opps for local players to get into team -    lottery funding goes to overseas players

bosman case 2key elements -    transfer fee at end of contract, now in breach of Euro articles treaty (restrtc freedom) -    abolished discrim on basis of nationality on limitations to foreign (EU) players

for cricket, transfer fee not relevant really

player quotas has had a relevance

kolpak, analogous to second part of bosman – right not to be discrim against, once in employment – he was a Slovak handball player and was goalkeeper in second division – was subject to quota inquiry

euro court of justice – if association agreement, gives right not to be discrim against based on nationality –

cottonow agreement – similar to kolpak - kolpack does not give right of access to employment, but merely, once in employment ,not to be discrim against

recent change I work place employment

used to be case that commonwealth citizen could obtain working holiday permit – now changed – acting as sports person is not ok – implic for west Indian states and south Africa – but if can satisfy criteria and state no interest to play test cricket, is relatively easy to get in –

EC sees as imp – new strategy, continue w rules but use incentive scheme – give counties £200 per player per day for evry English player  = £20,000 per year perhaps – trying to drive foreign players out

Not appropriate, since tends towards discrim

Has the effect of discouraging teams to not employ foreign players

Cricket is different and this is making a wrong choice

Symptomatic of sports

Assumes can transplant bosman to other sports

Cricket can argue for some level of discrim

Uk only member state that offers opp to play pro cricket

For bosman, argued would diminish opp for pro players, but dismissed because of reciprocal opps

For cricket, this reciprocation not possible

Structure of cricket different from football, impc of test game cannot be overstated – test deal with ECB and sky – stated they needed to do this because test game provides money for grassroots –

Health of England team signif to sport, so more worthy of protection

English high court since 1978 kerry pakka case – test cricket a value worth protecting

Describe as a structural rule

Geoff Pearson, Liverpool Uni, Management School Football related Legal responses to football holiganism, policing of football grounds

Keeping a sense of proportion: Football banning orders and the fundamental freedoms of ‘known’ hooligans

Problem -    English fans reputation for disorder -    40,000 english fans in 1998 -    60,000 man u fans in 1999 -    euro 2004, upto 250,000 attended

serious disorder at france 1998 965 arrests at Euro2000

probs w previous Banning order legislation

Football Disorder Acts -    banning order for hooligans, known to cause trouble -    not new, first introduced in1986, Public Order Act, sect 30 -    Football Spectator’s Act o    If convicted of crim offence relationship to football, prevented from travel when game takes placeabroard

1999 legislation unsuccessful

Football (Disorder) Act 2000 -    Schedule, Sction 14B, new type of banning order to be more effective o    Banning order on complaint (as opposed to conviction) o    If suspected hooligan – big leap! -    If suspected to have contributed to violence, and if court satisfied, magistrate must impose order -    Police watching suspected hooligans, compiling evidence, and proceeding on civil procedure -    ME: how long?

Civil Libertarian concerns w baning orders on complaint -    treaty of EU – right to leave one’s territory -    ECHR – Art 4 liberty and Art 6 fair trial (because introducting punative criminal penality on civil stat case)

Gough a Smith v Chief Constable of Derbyshire (202) QB 1213 -    ECHR (was banning order contravion on Art 6? -    EU treaty (was it proportional) (Does it apply in this case?)

was it applied in gough and smith, and are banning orders on complaint a proprtioanl response?

Proportionality Principle -    must be suff imp to justify limiting a fundamental right o    how serious a prob is football hoolianism? Court don’t like it, though not sure it is really so signif •    every week English fans travel abroad, so number of incidences is quite small •    media hype-up, we don’t see much of uk violence o    Statistics of arrest, conviction, death and injury •    Suggest prob is reducing, no stats on death or injury (1 per year for 25million spectators) •    For Euro2000 arrests, only one was charged w an offence o    Comparison w other cross-border crime (paedophiles, etc) -    measures must be rationally connected o    how imp are banning orders on complaint to t control of football crowds? o    Are those involved in disorder known hooligans? o    Does preventing known hooligans travelling to matches necessarily prevent crowd disorder o    Not actually known hooligans gathering together that causes probl; if properly policed, no probs; but where not policed well, problems arise -    no more than is necessary o    are there other ways to control problem rather than infringing these rights? •    Banning orders on conviction (ME: but can they get convictions? Otherwise, why so few cases?) •    Policing tactics •    More efforts on Fan Policing (support legit expectation of fans) (typically, where a few incidents of violence, police go straight in to entire crowd, rather than select few) • -    De Freitas v Perm Sec of ministry of Agriculture (1999) 1 AC 69 o    This test not thoroughly applied in Gough o    Infringements of civil libs are out of proportion

On strictest version, talks about least restrictive alterantive -    not just whether connected or necessary, but whether is less restrict alternative

ME: what is basis for concluding that courts are so influenced (out of proprtion) by hooligans on tv?

Clifford Stott, Uni of Liverpool

Proportionality in psych of riot

Science of crowd dynamics

Football crowds not just hooligans

Crowd dynamics and riots at international tournaments -    those arrested and convicted are not known hooligans -    identity based processes involving intergroup interrels -    police play pivotal role in structuring these rels

category of being an English fan affects way they are policed -    creating enviro empowers those seeking to create disorder -    they are facilitated by the form of policing -    level forceful and indiscrim forms of policing, based on reputation, rather than behaviour -    English fans arrive and begin to perceive form of policing as illegitimate – see this as affront to rights

When fans perceive policing as legit, then changes dynamics -    eg Scotland fans, emerging sense of leigitmacy in police and self-policing

absense of disorder has little to do with fans, more to do w rels

implics for policing

Euro 2004

collab w PSP (one of portugal’s two forces) create enviro consistant w research

risk is dynamic risk emerges, not fixed interaction of groups influences level of risk

‘balance’ in risk scenario -    police in balance implies low profile deployments, results in spych and behav different

ME: is it difficult for police to target arrest in big crowds?

Discrimination

? South Africa

Chances of aids transmission in sports arena v slim so not subject to compulsory testing, since is unnecessary and in legal context of south Africa, is v precise about rights to eg human dignity, privacy, equality, choice of profession

Chalk v California -    Judge: plaintiff will have to estab that defendent sporting body is receiving funding from gov and that enjoys public patronage

Aids now (since last week) considered a form of disability, which changes sitn somewhat.  Justice jones: confidentiality vital to public and private health

Recog right to dignity, intrinsic value of human – respect and concern

Diffi to force athlete to undergo a test

X v Y and Another

Cf hiv testing and doping? -    hiv more invasive and less accurate

Steve Cornelius, Uni of Johannesburg, Centre for Sport Law

South African Measures to Combat Unfair Discrimination in Sport

Assumed that in SA apartheid implied merely racial, but also concern about gender and disability

Bill of Rights (starting point for all law in SA) -    s 8.2 – binds everybody -    matter of public law

right to non-discrim -    s 9.4 -    no person may unfairly discrim -    not all discrim is bad o    s9.4 prohibits unfair discrim (implies that there is fair discrim) -    s 36.1 – limitations clause (law of gen applic; based on human dignity, equality and freedom, in democratic soc) -    s9.2 – affirimative action measures

legislation -    prom of equality and prevention of unfair discrim act o    if unfairly refuse to consider applic, then unfair •    provides for action, do not need to show actual harm o    denying access to club o    failure to promote diversity in selection of rep teams

SA Sports Comm Act -    coordinate provision and upgrade of facilities in disadvantaged areas -    assist in development (lot of emphasis on women in sport)

Yvonne Williams

Do volunteer coaches have right to refuse responsib to coach people w disabilities?

DDA1999, part 3 – sports coaching is a service, so cannot discrim against a disabled person by refusing to coach or way they do it.

Direct discrim  - treat less favourably then how treats/would treat others

Indirect discrim – same activ offered to all, but disabled treated less favourably or put at disadv

Case in US, using computer aids to hunt

John Wolohan

Discrim laws in us

Racketball player w disability, wants to play w able bodied, and instead of one bounce in the game, he wants to have two – adjust t rules to accommodate a disability

Child w disability takes longer through highschool – rule that only under 19 can play in school sports – so cannot play – but rule is discrim disability?

Casey martin – pro golfer, trying to qual for PGA tour, to get card need to go to qualifying school – he has made it to stage 5 until which he has been allowed to ride a cart – requested for final stages and pga tour – pga tour reject request –

Supreme court grant right to use cart

Walking in golf not really fatiguing and deven if it is casy martin’s fatigue getting in and out of cart is greater than well-athlete

Decided that essence of golf was shot making

Does pga have right to set rules? If pga says it is essential, who is the court to say otherwise?

Asking to modify game just so you can play is not reasonable – it is creating a new game -    able bodied player will have to learn how to play you in different ways, this is not fair

is it a ‘reasonable accommodation’?

Closing Plenary

Hilary Findlay

Canadian Independent Dispute Resolution Programme

Genevieve Turninkey? -    ‘dispute resolution’ ‘real growing activity’

ian blackshaw author of book on ‘mediation in sport’

rules of an arbitration process as instrument of sport policy

what is approp scope of review for sport dispute? -    how broad are grounds of review? -    What is standard of review? -    What scope of authority, when error found?

Appeal layer

If appeal panel has made error, then judicial review (v narrow)

April 2004, dispute res intro to canadian sport

Doping infraction for horse, trainer acknowl that horse given substance by vet that was prohib – this was not raised in hearing, since accepted by all – rules state where horse doped, trainer responsib – but held that vet responsib – strict liability, so trainer liable – parties waived internal appeal process – q about scope of arbitration – hearing de novo (everything relevant should be seen – argued this was too broad –

Second athlete not selected – went directly to arbitration – include first and second round or only second, where issue

Broader scope of review, further usurps authority of sport org

What standard of review to determine whether error?