2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any.

The Court of Arbitration for Sport challenged by German Courts 

The more discrete SV Wilhelmshaven ruling came first. It was not even decided in 2015, as the ruling was handed out on 30 December 2014. Yet, unless you are a sports law freak, you will not have taken notice of this case before 2015 (and our blog). It is not as well known as the Pechstein ruling, but it is challenging the whole private enforcement system put in place by FIFA (and similar systems existing in other SGBs). Indeed, the ruling foresees that before enforcing a sanction rendered by FIFA, the national (or in that case regional) federation must verify that the award underlying the sanction is compatible with EU law. The decision has been appealed to the Bundesgerichtshof (BGH) and a final ruling is expected in 2016.

Later on, in January, the Oberlandesgericht München dropped its legal bomb in the Pechstein case. The court refused to recognize the CAS award sanctioning Claudia Pechstein with a doping ban, as it was deemed contrary to German antitrust rules. The reasoning used in the ruling was indirectly challenging the independence of the CAS and, if confirmed by the BGH, will trigger a necessary reform of the functioning and institutional structure of the CAS. Paradoxically, this is a giant step forward for international sports law and the CAS. The court acknowledges the need for CAS arbitration in global sport. However, justice must be delivered in a fair fashion and the legitimacy of the CAS (which relies on its independence from the Sports Governing Bodies) must be ensured (see our long article on the case here).

We will see how the BGH will deal with these cases in 2016. In any event, they constitute an important warning shot for the CAS. In short, the CAS needs to take EU law and itself seriously. If it truly addresses these challenges, it will come out way stronger.

The new World Anti-Doping Code and the Russian Doping Scandal

On the doping front, 2015 is the year in which the new World Anti-Doping Code (WADC) came into force (see our Blog Symposium). The Code introduces substantial changes in the way the anti-doping fight is led and modifies the sanction regime applicable in case of an adverse analytical finding. It is too early to predict with certainty its effects on doping prevalence in international sports. For international sports lawyers, however, it is in any event a fundamental change to the rules applicable to anti-doping disputes, which they need to get closely acquainted with.

The new World Anti-Doping Code was largely overshadowed by the massive doping scandal involving Russian sports, which was unleashed by an ARD documentary (first released in 2014) and revived by the crushing report of the Independent Commission mandated by the World Anti-Doping Agency to investigate the matter. This scandal has shaken the legitimacy of both the anti-doping system and the International Association of Athletics Federations (IAAF). It has highlighted the systematic shortcomings of the anti-doping institutions in Russia, and, the weakness of the control exercised on these institutions at a transnational level, be it by IAAF or WADA.

In 2015 again, doping proved to be a scourge intimately linked with international sports. The confidence and the trust of the public, and of clean athletes, in fair sports competitions is anew put to the test. WADA, which was created in the wake of another massive doping scandal in the nineties, has shown its limits. In practice, the decentralization of the enforcement of the WADC empowers local actors, who are very difficult to control for WADA. Some decide to crackdown on Doping with criminal sanctions (see the new German law adopted in December 2015), others prefer to collaborate with their national athletes to improve their performances. The recent proposals at the IOC level aiming at shifting the testing to WADA can be perceived as a preliminary response to this problem. Yet, doing so would entail huge practical difficulties and financial costs.

EU law and sport: 20 years of Bosman and beyond

2015 was also the year in which the twentieth anniversary of Bosman was commemorated through multiple conferences and other sports law events. The ASSER International Sports Law Centre edited a special edition of the Maastricht Journal of European and Comparative Law and a book celebrating the legacy of the ruling is forthcoming with the publisher Springer. The ruling did not have the dramatic effects predicted at the time of the decision, since football is still alive and kicking. Surely, it has given way to new challenges and sharply accelerated the transnationalization of football (and sport in general). A key legacy of Bosman is that this transnationalization, which goes hand in hand with the commercialization of sport, cannot side-line an essential category of stakeholders: the athletes.

It is with this spirit in mind, and a little push of the ASSER International Sports Law Centre, that the European Commission decided to open an investigation into the rules of the International Skating Union (ISU) barring, under the threat of a life ban, speed skaters (and any other affiliate) from joining speed skating competitions which are not condoned by the ISU. Though the case is rather low profile outside of the Netherlands, this is an important step forward for the EU Commission, as it had not opened an EU competition law investigation in sporting matters in almost 15 years. Many other competition law complaints (e.g. TPO or Formula 1) involving sport are currently pending in front of the EU Commission, but it is still to decide whether it will open a formal investigation. 2015 is also the year in which we have desperately expected the release of the EU State aid decisions regarding football clubs, and amongst them Real Madrid, but in the end this will be a matter for 2016.

FIFA and the chaotic end of the Blatter reign

FIFA is not the only SGB to have put an abrupt end to the (very) long reign of its great leader (think of the messy downfall of Diack at the IAAF). Yet, when talking about FIFA and football, the resonance of a governance crisis goes well beyond any other. It is truly a global problem, discussed in nearly all news outlets. This illustrates very much how a Swiss association became a global public good, for which an Indian, Brazilian, American or European cares as much as a Swiss, who is in traditional legal terms the only one able to influence FIFA’s structure through legislation. The global outrage triggered by the progressive release by the US authorities of information documenting the corrupt behaviour of FIFA executives has led to two immediate consequences: a change of the guard and a first reform of the institution.

There are now very few FIFA Executive Committee members left who were present in 2010 for the election of Qatar as host city for the 2022 World Cup. The long-time key figures of FIFA, Blatter, Platini and Valcke, are unlikely to make a comeback any time soon. And, the upcoming February election of the new FIFA president is more uncertain than ever with five candidates remaining. Simultaneously, FIFA has announced some governance reforms, which aim at enhancing the transparency of its operation and the legitimacy of its decision-making. We are living through a marvellous time of glasnost and perestroika at FIFA. The final destination of this transformative process remains unknown. There are still some major hurdles to overcome (starting with the one association/one vote system at the FIFA congress) before FIFA is truly able to fulfil its mission in a transparent, accountable and legitimate manner. We hope it will be for 2016!

The ASSER International Sports Law Blog in 2015

Finally, a few words on our blog in 2015. In one year we have published 60 posts, our most-read-blog concerned the Pechstein ruling that was read 3054 times.

Our peak day was reached on 4 September with 621 page views (thanks to a great post on the Essendon case by @jrvkfootball).

Our readers are based all around the world, but the majority is based in the EU and the US.

We hope to be able to keep you interested and busy in 2016 and we wish you a great year!

The ASSER International Sports Law Blog Team

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

The end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval.

The CAS award in Real Madrid CF v. FIFA

At the end of the month, the CAS finally published its award delivered in the arbitration procedure between the Spanish club Real Madrid CF and FIFA regarding the transfer of minor football players. Mr Michele Bernasconi, sitting as a Sole Arbitrator, partially upheld the appeal filed by Real Madrid CF against the decision rendered by the FIFA Appeal Committee on 8 April 2016. The Sole Arbitrator reduced the ban (registering new players both on a national and international level) imposed on the Spanish club by the FIFA Appeal Committee from two to one entire transfer period. Moreover, Real Madrid CF is now obliged to pay CHF 240,000 instead of the original fine amounting to CHF 360,000. 

UEFA incorporates human rights and anti-corruption criteria into bidding requirements

UEFA has recently made available the Bid Dossier Template for the 2024 European Championship that will be held either in Germany or Turkey. Amongst other things, the two remaining candidates shall describe in their bid dossiers a global strategy for integrating the United Nations Guiding Principles on Business and Human Rights in order to protect, respect and fulfil universal human rights, including child rights and the rights of workers. On this occasion, UEFA President Mr Aleksander Čeferin stated that ‘it was imperative […] to introduce specific articles on the respect and protection of human rights in the bidding requirements for all our competitions.’ By incorporating human rights criteria into bidding requirements, UEFA joins the International Olympic Committee and FIFA in their efforts to tackle human rights abuses associated with mega sporting events.

The return of Claudia Pechstein: Bundesverfassungsgericht edition

Claudia Pechstein is back! For those who have already forgotten the case, this is a dispute involving a German Speed Skater and Olympic gold medallist challenging the validity of a CAS award imposing a doping ban (for greater detail see our previous blogs here and here, and the article by Antoine Duval and Ben van Rompuy). Nothing less than the survival of the CAS, at least as we know it, is at stake. While Claudia Pechstein lost in front of the Bundesgerichtshof, the decision was harshly criticized (here and here) and she decided to challenge the ruling in front of the German Bundesverfassungsgericht (constitutional court). Since last month, we know that the Bundesverfassungsgericht will hear and decide the claim, this as such is already a sign that the judges deem the case worthy of consideration and should be cause for concern for those wishing to keep the CAS as it currently is. The silver lining for CAS might be in the Bundesverfassungsgericht’s Solange jurisprudence, which could find a new expression in this peculiar context (as suggested here), it would preserve the CAS’s existence while forcing it to change.

Sports Law Related Decisions

• CAS – Award delivered in the arbitration between Arijan Ademi and UEFA
• CAS – Award delivered in the arbitration between IAAF and All Russia Athletics Federation & Vladimir Mokhnev
• CAS – Award delivered in the arbitration between Real Madrid and FIFA
• Supreme Court of Spain – Decision concerning the Spanish cyclist Roberto Heras

Official Documents and Press Releases

• CAS – CAS maintains the temporary bans imposed on six Russian athletes until 31 October 2017, at the latest
• CAS – CAS reduces the sanctions of football players Enrique Luis Triverio and Pablo Cesar Aguilar Benitez
• European Commission – State Aid: Commission approves Slovak support of EUR 36 million for the construction of the national football stadium in Bratislava
• European Commission – The Council approves the new work plan for sport
• Federal Constitutional Court of Germany – Pechstein's constitutional complaint to be heard in 2017
• FIBA – FIBA’s mid-term congress ratifies new headgear rule
• FIFA – Circular no. 1583: Amendment to Article 78 of the FIFA Disciplinary Code
• FIFA – FIFA welcomes outcome of NCP mediation process on workers’ welfare in Qatar
•  FIFA – Member associations release reports on intermediaries
• FIFA – Outcome of second meeting of Governance Committee
• FIFA – Suspension of the Malian FA lifted
•  IOC – Joint statement following the meeting of IOC President, Professor Richard McLaren and WADA President
• Tennis Integrity Unit – Junn Mitsuhashi banned for life for match-fixing offences
• UEFA – Bid Dossier Template for EURO 2024
• WADA – WADA Foundation Board takes decisive action on the Way Forward for the Agency and for Clean Sport

In the news

Doping

• Andy Brown Russia’s National Anti-Doping Plan denies institutional doping
• Andy Brown Spanish police dismantle new sports doping ring
• Michael Pavitt Russia in danger of missing Pyeongchang 2018 as International Paralympic Committee maintain suspension
• Michael Pavitt Russian race walker Trofimov handed four-year ban
  

Football

• Murad Ahmed FIFA ousts governance chief in ‘night of long knives’
• The Associated Press FIFA says blackface in Sochi parade was ‘inappropriate’
• BBC Sport Gothenburg v AIK: ‘Match-fixing attempt’ leads to Swedish fixture postponement
• Simon Bradley FIFA chief Infantino seeks ‘absolute power’ after ousting ethics heads
• Children Win UEFA incorporates human rights and anti-corruption criteria into bidding requirements
• Simon Evans FIFA’s chief ethics investigator and ethics judge replaced
• Graham Dunbar Two more members leave FIFA governance panel
• Nizaar Kinsella The laws of the transfer market could be rewritten with landmark court case in Italy
• James Lynch FIFA’s chance to show they put people ahead of money is now
•  Francine McKenna Will PwC throw the red card on its Swiss firm over FIFA
• Liam Morgan Palestine threaten to take FIFA to CAS after ‘illegal’ postponement of vote by Infantino
• Tariq Panja and Gaspard Sebag Soccer star homes raided in money-laundering investigation

Other

• Amnesty International Qatar: Abuse of migrant workers remains widespread as World Cup stadium hosts first match
• Graham Dunbar Swim body monitoring VP’s alleged role in FIFA bribery case
• Daniel Etchells American tennis player Kryvonos given 10-year ban for match-fixing
• Richard Martin Cycling: Authorities ordered to pay Heras compensation after appeal fails
• Dave Zirin and Jules Boykoff Los Angeles residents start to organize against the Olympic bid

Academic Materials

• Mark James Sports Law 3^rd edition
• Nancy Leong Against Women’s Sports

Blogs

Asser International Sports Law Blog

• Antoine Duval The Reform of FIFA: Plus ça change, moins ça change?
• Serhat Yilmaz and Antoine Duval What Pogba’s transfer tells us about the (de)regulation of intermediaries in football
• Branislav Hock Nudging, not crushing, private orders: Private ordering in sports and the role of States
• Saverio Spera Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS

Law in Sport

• Phil Bonner Are England’s current home grown player requirements sufficient to produce an elite national team?
• William Clerk The rebalancing of power: The need for greater transparency in sports tribunals
• Daniel Geey What a hard ‘red, white and blue’ Brexit may mean for domestic football
• Philip Hutchinson and Tiran Gunawardena Betting in football: Was the FA’s decision on Joey Barton a fair one?
• Stephen Ridgway The 4 key issues facing sports media rights lawyers in 2017: From Head Counsel, Sky Sports
• Lucien Valloni and Stéphanie Oneyser Player contracts: How contractual stability can override a liquidated damages clause
  

Others

• Andy Brown Pressure builds to secure fair athlete rights and representation
• Matt Hart ‘This does not sound legal’: Inside Nike’s Oregon project
• Bonita Mersiades The past is not another country for FIFA
• Léonard Stoyanov Switzerland to become more attractive for international arbitration

Upcoming Events

• 29-30 June – Sport & EU 12^th Annual Conference, Molde University College, Molde, Norway
• 31 August-1 September – EU Sports Law and Policy Summer School, Business and Law Building, Edge Hill University, Ormskirk, the United Kingdom
• 26-27 October – ISLJ Annual Conference on International Sports Law, T.M.C. Asser Institute, The Hague, the Netherlands (Registration is now open here!)
• 26-30 November – Play the Game 2017: Riding Waves of Change, Eindhoven, the Netherlands

Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.

Introduction

On Tuesday the 12^th of April, João Carvalho passed away in the Beaumont Hospital after sustaining serious injuries from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The fighter was knocked out in the third round of a welterweight fight against Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises a number of interesting legal issues. This opinion piece will discuss the possible civil and criminal liability that may result from the untimely death of the Portuguese fighter.

It is important to note at the outset that MMA has few rules and permits wrestling holds, punching, marital arts throws and kicking. MMA appears to have little regulation and a lack of universally accepted, standardised rules. There is no international federation or governing body that regulates MMA. It is largely self-regulated. MMA is not recognised under the sports and governing bodies listed by Sport Ireland, the statutory body established by the Sport Ireland Act 2015 which replaced the Irish Sports Council. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered.

The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. Currently there are no minimum requirements when it comes to medical personnel; nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17 MMA promoters in Ireland requesting that they implement safety precautions in line with those used by other sports including boxing and rugby.

Despite this lack of regulation, this does not exempt MMA from legal liability as the discussion below demonstrates.

Legal Issues-Civil Liability

The death of Carvalho may expose those involved in the event and the organisation of the sport to liability for lack of due care. Although case law is limited in Ireland, English case law has demonstrated that sports governing bodies, referees and coaches may incur civil liability. The referee in the fight involving Carvalho and Ward could be subject to civil liability if it is found that he failed to stop the fight at the appropriate time, a claim that the referee vehemently refutes. Referees have been held to owe a duty of care to participants. The role of the referee is not just to enforce the rules of the game to ensure fair play but also to ensure that the sport is played according to the rules for the safety of the participants. In the case of English case of Smolden v Whitworth and Nolan ([1997] E.L.R. 249  [1997] P.I.Q.R. P133), the plaintiff successfully sued the referee for injuries sustained as a result of a collapsed scrum in game involving underage rugby players.

With regard to governing bodies, a court may find them liable for negligence due to the fact that they have advance planning for events or the organisation of a sport. Under the “deep pocket theory”, the governing body will be viewed as the more attractive target for a claim of negligence as it will have more money to pay in damages. Total Extreme Fighting organises events in order to promote amateur and professional MMA in Ireland. The Irish Amateur Pankration Association (IAPA), a body established in 2014, is the Irish body that is affiliated to the International Mixed Martial Arts Federation. The IAPA is also affiliated to the Irish Amateur Wrestling Association (IAWA) (which according to the IAPA Facebook page, is affiliated “for its lighter Amateur training and activities (Pankration), which form part of its progressional pathway for participants”). However, the IAWA is a recognised sports governing body and receives direct from the Department of Transport, Tourism and Sport and indirect state funding through the auspices of Sport Ireland.  Sport Ireland exercises quasi-governmental regulation. It provides funding and support to recognised sports governing bodies.

A case that is instructive is the English case of Watson v British Boxing Board of Control ([2001] 2 WLR 1256), the British Boxing Board of Control (BBBC) was held liable for the injuries sustained by Michael Watson.  The referee stopped the fight in the final round when Watson appeared to be unable to defend himself. Watson had sustained a brain haemorrhage and, after returning to his corner, he lapsed into unconsciousness on his stool. Disorder among the crowd ensured and Watson’s trainer suddenly realised that he was unconscious. It took seven minutes for the doctor to arrive to the ring and a further 25-30 minutes before Watson arrived at the hospital. By the time Watson arrived at the hospital, he had sustained serious brain damage. He suffered a subdural haemorrhage which left him paralysed down the left side and with other physical and mental disability. The BBBC argued that it did not owe Watson a duty of care. The BBBC further argued that had the necessary medical equipment and personnel been there on time it would not have made any difference given the nature of the injuries sustained. The BBBC is a limited liability company and is the sole controlling body that regulates boxing in the UK.  All fighters, clubs, agents, match-makers and any person involved in the sport of boxing must obtain a licence from the BBBC. Although the BBBC was not directly involved in the fight (i.e. there was no contractual involvement), it was held to be negligent in not providing immediate resuscitation at the ring side. As the BBBC had sanctioned the fight, the court held that to be sufficient proximity between Watson and the BBBC. In drawing parallels between IAPA, Total Extreme Fighting and the BBBC, a claim for negligence could arise.

In addition to potential liability for a lack of due care, there is a possibility of criminal liability arising. When an individual plays a contact sport, it is reasonable foreseeable that he or she will sustain an injury, as contact sports by their very nature involve contact between the players. Individuals consent to inherent risks that are associated with the sport. However, there are limits to what an individual can consent to. If a sports person deliberately and recklessly disregards the rules of the sport and intentionally goes beyond the limits of that sport, the criminal law may be invoked. A sports person may be charged with manslaughter if the opponent dies as a result of their actions. It would be very unlikely that a sportsperson would be charged with murder as it would require premeditation. Even in a sport like MMA, a participant consents to injuries that are within the rules of the sport, that incidental to the playing of the game by the rules and those which are part of the playing culture, something outside the rules but it has become an accepted part of the sport. If the injuries sustained go beyond what the participant consented to, the opponent could be charged with assault. It is to the issue of criminal liability that the opinion piece now turns.

Legal Issues-Criminal Liability

In Ireland, the Non-Fatal Offences Against the Person Act 1997 governs assault. Section 2 defines assault as the actual carrying out or threat of reckless or intentional, direct or indirect application of force or causes an impact on the body of another without the consent of the person. Section 3 concerns “assault causing harm” with consent being absent. Section 4 relates to assault “causing serious harm”. Serious harm is defined as “injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ” (section 1). Section 4 does not include the provision consent being absent as it does under sections 2 and 3. However, it is extremely doubtful that the defence of consent could be invoked under Section 4 as the offender, if found guilty of the offence, could face life imprisonment. Section 22 (1) provides the following: “the provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission”. Section 22 retains the basic common law rule that consent cannot be an absolute defence to all forms of assault (F McAuley, P McCutcheon, Criminal Liability (Dublin: Round Hall Sweet & Maxwell, 2000), 533).

Mixed Martial Arts are in a precarious legal position. While there are MMA clubs in Ireland, these clubs are not illegal per se, but they derive their legal status from boxing, which is defined in negative terms. Boxing is legal because it is not prize-fighting as prize-fighting caused a breach of the peace. In order to understand the contemporary position of boxing and by extension MMA, it is necessary to examine its origins. Prize fighting and bare-knuckle fighting were not devoid of rules but lacked a uniform set of principles (A formal roped-off section was rarely used, often the ground would be marked with chalk, there was no such thing as rounds and there was no limit on the duration of the fight. See J Anderson, The Legality of Boxing: A Punch Drunk Love (OXON: Birkbridge Law Press, 2007), 15). Prize fighting, as the name suggests, concerned a pecuniary reward to the fighter who had physically overcome his opponent. In 1743 the Broughton Rules were introduced, which became the sport’s first uniform set of rules. The Broughton Rules, while welcomed at first, proved to be inadequate. In 1865 the Queensbury Rules were introduced by the eighth Marquis of Queensbury. Under these rules there would be no wresting or hugging permitted, rounds would be three minutes in length, and one minute’s time between rounds, the ring would be twenty-four feet, gloves of the best quality would be worn and if a glove burst or came off it would be replaced to the referee’s satisfaction (Anderson, 28) Gunn and Ormerod (‘The Legality of Boxing’ in Greenfield and Osborn (eds) Law and Sport in Contemporary Society (London: Frank Cass, 2000), 23) refer to the legal recognition of boxing as being by “default rather than design”. In the nineteenth century, prize fighting became increasingly associated with breaches of the peace. A number of cases came before the courts, which presented the courts with an opportunity to outlaw prize fighting. While prize fighting was banned, a tamer version of the sport, namely boxing, gained judicial acceptance. Boxers differed from their prize fighting counterparts as boxers wore padded gloves and the fight was held in private.

As prize fighters began to wear gloves, the distinction between boxing (sparring) and prize fighting became quite blurred. The courts distinguished between sparring matches and prize fighting on the basis of the likelihood of one of the fighters suffering serious injury (Gunn and Ormerod, at p.24). The courts, finding it difficult to distinguish the two, decided to leave the issue to the jury. In R v Orton (14 Cox CC 226; (1878) 39 LT 293), the court held (at 294) if a fight were a mere exhibition of skill in sparring it was not unlawful, however, if the combatants had met intending to fight until one gave into exhaustion or injury he had received it was a breach of the peace and thus unlawful irrespective of whether the fighters wore gloves.  In R v Young (8 C. & P. 644; (1866) 10 Cox CC 371), a boxer faced charges for the manslaughter of an opponent during an indoor sparring match. Bramwell J (at 373) instructed the jury as follows: “If a death ensued from a fight, independently of it taking place for money, it would be manslaughter, because a fight was a dangerous thing and likely to kill; but the medical witness here stated that this sparring was not dangerous, and not a thing likely to kill”.

In the leading case of R v Coney ((1882) 8 QBD 534), the court established that prize fighting was illegal as it caused a breach of peace. The court did not hold boxing or sparring legal, but declared prize fighting illegal.  The Court of Appeal declared prize fighting illegal as it encouraged a breach of the peace and gambling. The dangerous nature of the sport seemed to be secondary consideration. Judges Stephen and Matthew were the only judges that seemed concerned about the degree of harm inflicted on a combatant during a fight. Stephen J (at 549) held prize fighting to be not only injurious to the public but also the fighters themselves. 

Boxing is a legal and recognised sport.  As a recognised sport, the law provides it with significant protection. If a fight took place in the street, it would be considered illegal as a breach of the peace and charges under the Non-Fatal Offences Against the Person Act, 1997 may ensue.  In the fight that takes place on the street, the combatants could be consenting, they are both adults with capacity to consent, yet their actions are deemed illegal. However, an organised boxing match is legal because boxing is a recognised sport.  The fight in the street would be deemed to cause a breach of the peace. The national governing body for amateur boxing in Ireland is the Irish Amateur Boxing Association (IABA). All local boxing clubs are affiliated to the IABA. Professional boxing is regulated by the Professional Boxing Union of Ireland, which is affiliated to the European Boxing Union, the World Boxing Union and the World Boxing Association.  What distinguishes the example of the two consenting adults settling their differences by fighting out in the street is the fact that a recognised boxing match has rules which must be followed. There is a referee, there are safety measures in place, and the pugilists wear padded gloves.  Rules are devised for sports to ensure fairness and uniformity but they also are devised in a way to ensure that the likelihood of participants being injured is minimised. However, the legality of boxing has long been debated. Over the years there have been calls to declare it illegal. Boxing remains a sport due to its popularity and there is a public interest in it continuing as a lawful sport.

The Law Reform Commission Report on Non-Fatal Offences and its application to Sport

The 1997 Act was largely based on the recommendations of a Law Reform Commission (LRC) Report from 1994 (LRC-45–1994). The Report examined the position of contact sport in Chapter 9. The 1997 Act did not include any of the recommendations relation to sport. The Report acknowledged that contact sports, by their very nature, entail violent conduct. In a fast paced match tempers rise and subsequently rules are broken (para.9.148, at p.272). In professional sports violent conduct is often penalised in the form of a fine or suspension. For the most part, the civil law will provide an injured player with compensation. Quoting from the Canadian Law Reform Commission’s Working Paper, the LRC proposed that the criminal law should be used as a “policeman” of last resort or as an “enforcer” (para.9.148, at p.272) The LRC recommended that no general exemption should be given to contact sports where the victim does not expressly or impliedly consent to the infliction of injury (para.9.149, at p.271).

The LRC summarised the situations in which a person is said to have consented in a contact sport: 

1.              to any contact within the rules of the game;

2.              to any contact of an accidental nature arising from incidentally in the course of it; and

3.              to incidental pain to the risk of hurt or injury from such contact (para.9.152, at p.273). 

In giving the example of a footballer, a footballer impliedly consents to be tackled, to being kicked accidentally and to the risk of being injured, but a footballer does not consent to being punched or kicked (para. 9.153, at p.273). As most sports do not authorise intentional or reckless tackles or injury, there should be no exemption given to contact sports. If a player does not have the requisite intent or recklessness and the contact is within the rules of the sport, it is irrelevant that the force used was likely to cause injury.

The LRC acknowledged that it is very difficult if not impossible to ascertain whether a contact is intentional or reckless. The courts, when faced with a sporting case, often refer to the standards of the particular sport in deciding whether or not the conduct is acceptable (para.9.154, at p.274). Such an approach is understandable given that “sports produce valuable social benefits through the practice and example of fair play within an agreed set of rules” (para.9.154, at p.274).

In reference to the amateur nature of Irish sport, the LRC noted that rules of most sports place reasonable limits on the degree of violence which may be consented. Consequently, the LRC concluded that no specific penalties should be devised for sporting violence (para.9.157, at p.274).

It was also concluded that boxing should not be signalled out for exemption. The LRC proffered that any proposed changes to the rules of the sport is a matter for the relevant regulatory sports body in according with public debate and medical evidence (para.9.157, at p.274).

In the absence of any statutory intervention, the LRC concluded that the criminal law would continue to apply in situations where the rules of the sport are breached. It did, however, note its limitations (para.9.158, at pp.275-275). At the time of the LRC Report MMA had just been resurrected by the Ultimate Fighting Championship (UFC) which was founded in 1993. It is interesting that the LRC referred to martial arts which are lawfully recognised sports. The LRC gave the following example: In some martial arts, a serious injury may result from a kick which is within the rules of the sport. Failure to prosecute and attempts to prosecute would both attract public debate. It would seem unjust to hold the opponent criminally liable for conduct that is part of the rules of the sport. The victim had also consented to the risk. Public opinion may call for sports that can cause serious injury, including professional boxing, to be declared unlawful. The LRC recommended that a specific provision be made for consent to injuries inflicted in the course of, and in accordance with the rules of a lawful sporting activity. It summed up its position as follows:               

“Every person is protected from criminal responsibility for causing harm or serious harm to another where such harm is inflicted during the course of, and in accordance with the rules of any bona fide sporting activity” (para.9.159, at p.275)

The above summation could be applied to Charlie Ward, who won the fight against Carvalho. Another factor to consider is that Carvalho consented to the risk of being seriously injured or to a substantial risk of death as defined by section 4 of the Non-Fatal Offences Against the Person Act 1997.

The Legality of Mixed Martial Arts

Mixed martial arts (MMA) are hybrid sports in that they combine traditional martial arts sports with non-traditional ones. MMA is an ancient sport, however, its modern inception dates back to 1993 when the Ultimate Fighting Championship (UFC) was founded. As noted above, MMA is largely self-regulated and it has no international federation or governing body that regulates the sport.

In Ireland, the traditional martial arts (including Aikido, Kickboxing, Tae Kwon Do, Karate, Sumo, Kung Fu, Jiu Jitsu, Tai Chi, Muaythai, Ninjitsu and Bujitsu) are governed by the Irish Martial Arts Commission (IMAC). IMAC, as a recognised national governing body, receives funding from Sport Ireland. MMA is not recognised under the sports and governing bodies listed by Sport Ireland. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered. If these criteria are followed, then MMA will be “at least as safe as boxing as it places so much less emphasis on blows to the head that so concern the British Medical Association” (M James, Sports Law (2^nd ed.) (London: Palgrave MacMillan, 2013), 155).

Concluding Remarks

The death of João Carvalho has brought to the fore a plethora of legal issues. The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. It has taken a fatality for the state to intervene. Currently there are no minimum requirements when it comes to medical personnel present at events nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events but that can vary from one to three. While some have called for the banning of MMA, this may only serve to send the sport underground and have even less safety precautions than present. Also, the issue of consent must be considered. If consenting adults decide to partake in such a sport and are aware of the dangers, then arguably on the grounds of civil liberties such individuals should be permitted to engage in MMA. The most prudent action at the moment would be to reform the sport and for the state to require high standards of health and safety at events.

While MMA could be referred to as a form of licenced thuggery, MMA is legal due to its association with boxing and other lawfully recognised fighting sports. It is now accepted as a mainstream sport. Its legality is somewhat dubious as it derives its legality from boxing. Boxing is legal because it is not prize fighting. Prize fighting was declared illegal as it caused a breach of peace. The death of Carvalho may well change the legal landscape of MMA. It is doubtful it will be banned but it may well be subject to the rigours of the law in criminal or civil proceedings.

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor's note: This is the first blog of our symposium on FIFA's TPO ban, it features the position of La Liga regarding the ban and especially highlights some alternative regulatory measures it would favour. La Liga has launched a complaint in front of the European Commission challenging the compatibility of the ban with EU law, its ability to show that realistic less restrictive alternatives were available is key to winning this challenge. We wish to thank La Liga for sharing its legal (and political) analysis of FIFA's TPO ban with us.

INTRODUCTION

The Spanish Football League (La Liga) has argued for months that the funding of clubs through the conveyance of part of players' economic rights (TPO) is a useful practice for clubs. However, it also recognized that the practice must be strictly regulated. In July 2014, it approved a provisional regulation that was sent to many of the relevant stakeholders, including FIFA’s Legal Affairs Department.

Although initially we felt that FIFA would focus on strict regulation, FIFA finally tilted the balance towards the idea of an absolute ban. FIFA even put an end to the working parties it had put in place to regulate this issue. After verbal and written notices, La Liga has filed a complaint with the Competition Authorities of the European Union, since the prohibition of TPO violates the EU competition rules. In our view, apart from breaching the Treaty on the Functioning of the European Union, it also violates the rules on competition in place in other countries, such as Argentina and Brazil.

La Liga has raised the following arguments to show the disproportion of the absolute prohibition of TPO:

• FIFA now prohibits undue third-party influence on a team and on players' agents' economic rights.

• The UEFA now regulates the financial aspects of TPO in its Financial Fair Play Regulations.

• Only three professional leagues worldwide have banned TPO.

• The two independent studies commissioned by FIFA do not support the prohibition of TPO.

• The General Assembly of FIFA concluded that TPO is a complex issue that must continue to be studied in detail.

• The FIFA Working Party on TPO held only one meeting before it was banned and adapted no specific recommendations.

• The FIFA Executive Committee agreed to ban TPO with no supporting report or internal proposal.

• FIFA has not consulted governments, authorities or, in particular, the European Commission before adopting the ban.

• The arguments used to ban TPO reveal the lack of proportionality of the measure.

• Independent experts have denounced the lack of proportionality of a TPO ban.

The lack of proportionality of the measure

FIFA’s main argument is that TPO threatens the integrity of sporting competitions. In La Liga’s view, both the integrity of the competition and, where appropriate, footballers' independence could be protected by measures that do not require the full prohibition of TPO. For example, it could limit third-party economic rights to a minority percentage (>50%) together with other measures, such as limiting the number of players from the same club in which a third-party has minority economic rights.[1] Indeed, in its ENIC/UEFA decision, the European Commission took into account that the UEFA rule only prohibits the control of multiple clubs, but not the acquisition of minority stakes in them ("(T)he UEFA rule does not limit the freedom of action of investors that have shares in clubs below the level that gives them control over the club, because clubs with such ownership structure remain free to play in the same UEFA competition”).

Consideration must also be given to the fact that the risk to the integrity of competitions is much greater when two teams controlled by the same investor play against each other compared to when a certain number of players over whom a third party holds economic rights play each other. In the former case, the owner or investor of the clubs may want a team to lose if they can avoid relegation, win the championship or qualify for an international competition. In the latter case, a third-party investor's interest is for players to play as well as possible to increase their economic value, regardless of the result of the match. In fact, there is an increased risk of conflict of interest if a player has been loaned by one club to another and has to play against the club that holds the economic rights. It should be highlighted that neither FIFA nor UEFA have taken steps to regulate loans of players between clubs, despite the fact that loans account for a significant part of player transfer[2] and that independent experts recommend more restrictive regulations for loans.[3] Similarly, we fail to understand why FIFA, prohibits TPO when it is considering deregulating the profession of player agent and accepts that only a few agents represent and share economic interests with star football players.[4]

FIFA further argues that banning TPO will avoid speculation and inflation of transfer costs, preserve economic flows within football clubs, protect players' human dignity, combat economic crime, etc. La Liga is of the opinion that these arguments violate even further the principle of proportionality and are of questionable legitimacy. Therefore, they should be rejected from the outset. 

POLITICAL ASPECTS

As the Association of Spanish Football Clubs, we first and foremost defend a regulation of TPO. Banning it would be denying a fundamental tool for our clubs' funding and competitiveness

Based on the current socio-economic context of the football sector and its practical reality, it seems particularly inappropriate to reject a source of external funding used in every sector of the economy and which, when appropriately regulated, could create greater legal certainty for all concerned.

More specifically, from a political point of view, it is essential to design the regulation of TPO so that La Liga and its clubs maintain or even increase their current competitiveness.

Indeed, there is no doubt about the benefits provided by TPO/TPI since many clubs are in the position to sign players who they otherwise could not afford. Moreover, clubs also profit from the ability to anticipate revenue by selling the rights of the squad players in their team. Thus, in terms of the competitive balance, the use of TPO enables small/medium-sized clubs to maintain their competitiveness against their "bigger" rivals. For example, winning the Spanish league and reaching the Champions League final in the 2013/14 season is an achievement Atlético Madrid would probably not have reached without having recourse to TPO. Furthermore, it makes it possible to increase investment in sports facilities for better training and the development of young players.

The above shows that the private investor also "shares" a risk with the club: when investing in a specific player, the investor also assumes the negative results of the potential investment, which is then shared between the club and the investor, greatly reducing the negative impact on the accounts of the club in question.

And finally, taking into account the economic and financial difficulties currently affecting football clubs, it is necessary to support appropriate financing mechanisms in football to foster investment in the sector, since, at present, most clubs would not be able to survive on their current sources of income.

Should the absolute prohibition of TPO/TPI be maintained, as intended by FIFA and UEFA, it will be very difficult to keep the constellation of star players in our affiliated Clubs. They will most certainly leave their respective clubs for other competitions and clubs that have greater financial resources. It is clear that a large number of Spanish teams will see their competitiveness reduced and, at the same time, the competitiveness of and interest in our competition will plummet. 

In addition, proper regulation of this issue would avoid the risk of compromising the integrity of competitions, since it would provide greater legal certainty for all the involved parties. Instead, the absolute ban imposed by FIFA will lead to the creation of a "black market” that would be out of regulatory control and would therefore endanger the very integrity of the competitions. Thus, it is absolutely necessary to regulate the matter appropriately. 

LEGAL ASPECTS:

In line with the aforementioned political aspects, from a strictly legal perspective, regulating TPO is particularly advisable since:

a. It is a common practice in the football sector and it is a source of funding that promotes the competitiveness of clubs. Moreover, it stimulates competition and allows clubs to attract and retain top-level players.

In recent years, the number of investments in football players has increased. These investments were sought by Spanish clubs in order to finance the registration of the players’ federative rights. Furthermore, the investor’s remuneration is (wholly or partially) calculated depending on the positive economic results that may be obtained through future transfers of the player’s federative rights by the club that received the investment money.

La Liga believes that investments of this nature can constitute a useful alternative source of financing for clubs and investment for funds, especially now that the Spanish financial sector and the Spanish professional football sector are undergoing a profound financial crisis. Accordingly, these investments may foster the competitiveness of Spanish professional football clubs in Spain and outside. Indeed, the signing and retention of players’ federative rights cannot be secured without third-party investments.  

b. TPO requires an adequate regulatory framework to ensure legal certainty and promote the integrity of professional football competitions.

Based on the widespread use of TPO in practice, La Liga considers it appropriate to introduce certain rules and provide legal certainty to both the clubs as well as the investors. This would require imposing reasonable limitations and duties, and providing for the transparency of the TPO transactions, to protect good sportsmanship and the integrity of competitions.

La Liga’s proposal for a regulatory framework is based on the following basic principle:

Compliance with FIFA’s rules on the influence of third parties in clubs, according to which no club may enter into a contract whereby any party to said contract or third party may assume a position that could influence labour issues and transfers in relation to the independence, policies or actions taken by the teams of any club.

Based on this principle, the following regulatory measures are suggested:

• prohibition of certain transactions based on the player's age;

• maximum percentage of participation in the "economic rights";

• quantitative  limitations  on  the  maximum  number  of  players  per club;

• maximum remuneration for the investor;

• prohibition of certain clauses that may limit the independence and autonomy of the clubs; and

• prohibition of transactions depending on the investor's particular status or business (or participation in the same) such as shareholders, directors and managers of the clubs.

This regulatory framework would provide transparency through duties of information and registration of the investors (including full identification of the real owners) and the financial transactions themselves. 

CONCLUSION

There is no doubt that the use of TPO/TPI needs to be regulated in Spanish professional football. However, it is also necessary to acknowledge that the full prohibition of TPO by FIFA will only trigger a search for "creative" alternatives to fulfil the same purpose, using fraud and/or other contractual fictions. Furthermore, the prohibition of TPO will be very difficult to enforce and it will generate a great deal of conflicts, which is obviously not a desirable outcome. This is also without prejudice to the considerable loss of competitiveness and footballing talent for our clubs and our competitions.

Thus, it is necessary to devise an alternative approach to the issue by means of a specific regulation. Indeed, we consider that third-party investment in football is a legitimate financing vehicle for clubs, based on risk-sharing and productive investments through private funds. However, there are also obvious threats that need to be tackled. Therefore, in the view of La Liga, it is necessary to establish a sustainable, secure and transparent regulatory system that encourages sound investment in the sector and provides for a better control of the investors.

The benefits to be gained from regulating TPO/TPI are more than evident and would be shared by all the stakeholders that make up the ‘football family’. We believe that an adequate regulation in this area would pave the way for a secure, reliable and transparent system, allowing the ‘football family’ to safely enjoy the benefits TPO can provide.

[1] See, for example, alternatives to the total ban proposed by Luís Villas-Boas Pires, "Third Party Ownership- To ban or not to ban?, LawInSport,10.12.2013: http://www.lawinsport.com/articles/regulation-a-governance/item/third-party-ownership-to-ban-or-not-to-ban.

[2] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, p. 193: “These operations involve a large number of transfers in Europe – 21% i.e. 1333 in 2011, according to TMS”.

[3] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, study performed for the European Commission, pp. 253-254: "Proposal 4:Regulate the loan transfer

Abusive loan transfer practices contribute to competitive imbalance and unfairness of the competitions. We suggest regulation to limit or prevent such abusive practices. This could encompass:

-  Limiting the number of loans by the lending clubs

-  Limiting to xx the number of loans to the beneficiary clubs

-  Regulating loan contracts between clubs which pose a risk to the integrity of competition (for instance: a contractual clause that prevents a player from participating in a certain competition or a given match). Main stakeholders: International federations, national federations and leagues.”

[4] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, pp. 128-129:

“The second feature of the upper primary segment is the concentration of superstars in the hands of a few agents (individual or agencies). It is a question of knowing what the actual market power of these agents is and what can be done to regulate their actions. For example, let us note that Gestifute, the Portuguese agency led by Jorge Mendes, has in its portfolio José Mourinho, Cristiano Ronaldo, Nani, Anderson, Pepe, Ricardo Carvalho, Raul Meireles and Miguel Veloso.  This agency has generated €369.85m in transfer rights (Poli, 2012). The role of the major sporting agents should be better known, in order to assess whether they are responsible for an increase in the dualisation of the labour market and, therefore, for a deterioration in competitive balance. Small championships can no longer hang on to their stars and the major championships are competing to attract them, thus contributing to the inflation of speculative bubbles regarding the salaries and transfer fees of these stars.

In the lower primary market, as in the higher primary market, the role of agents is decisive in transactions and we once more find the same recommendations:

An analysis of the concentration of wage

-  bills.

-  An analysis of the concentration of transactions at the agent level.”