Sports law never sleeps, is immune to global pandemics, and always has something new for us sports lawyers to learn from. In another year some may rather quickly forget, we considered the following sports law matters and broader issues to be our 'Top 10' of 2021:
10. Salazar v USADA
In the Arbitral Award CAS 2019/A/6531 Alberto Salazar v. USADA of 15 September 2021, the Court of Arbitration for Sport (CAS) considered an appeal by Mr Salazar, a long-distance runner and (later) Head Coach of Nike's 'Oregon Project', (together in a consolidated award with Dr Jeffrey Brown, a physician to several Nike Oregon Project athletes and to Mr Salazar personally) against several Anti-Doping Rule Violation (ADRV) charges by USADA dating from 2008 - 2016, for which he had received a four (4) year sanction. Mr Salazar was seeking that the original decision be reversed and that no ban be imposed, while USADA requested that the 4 year period of ineligibility bu increased.
Interestingly, the 2003, 2009, and 2015 World Anti-Doping Code (WADC) applied to the various ADRVs, and by the time the CAS appeal was heard in March 2021, the 2021 WADC was in force. Obviously, the wording in the versions of the WADC has changed over the years. Of interest to us was the consideration by the CAS of the appellant's arguments regarding the principle of lex mitior. Here the appellant was seeking to rely upon the principle to benefit from the changes to the WADC.
The appellant referred to the principle of lex mitior as set out in the CAS decision in Fenerbahce v FIFI (21 June 2013) “a subject cannot be held liable for a disciplinary offence on account of an act which no longer constitutes an offence under a new law”. The CAS Panel considered [at 78] the application of lex mitior and made reference to an earlier definition in UCI and CONI (Digest of CAS Awards (1986-1998), p. 477 at 491.
USADA challenged the appellant's interpretation by referring to the CAS decision in Drug Free Sport New Zealand v Kris Gemmell (1 December 2014), in doing so maintaining that lex mitior applies only to the issue of sentence and sanction, not to the wording of substantive offences.
The CAS Panel upheld the 4 year period of ineligibility imposed by the original decision. With the principle of lex mitior re-stated, we hope that future matters involving the application of sanctions over a time period and under various versions of rules to be less complicated. The 115 page Award is worth a detailed read to understand these arguments fully, as well as to consider the future direction of such matters before the CAS.
9. Private Equity investments
Though certainly not new in sports in 2021, this year saw several high profile investments that made sense on a commercial level and/or offended the traditionalists and die-hard fans. It's this nature of the discussion surrounding private equity and sport that provides a mixed bag for any spectator and for many stakeholders.
Of note to us were:
Spain's LaLiga clubs approval of CVC Capital Partners EUR1.9 billion capital injection;
Silver Lake's agreement to acquire a 12.5% stake in New Zealand Rugby's commercial rights arm, investing up to US$273 million - yet to be approved by the NZ Rugby Players association; and
Sliver Lake's acquisition of a 30% stake in the Australian Professional Leagues (new league body established to run professional football in Australia and NZ) for AU$130 million.
While these deals can assist a sport (governing body, organisation, league, or club) to commercialise and reinvest in the sport, unless these deals are true partnerships, the for-profit nature, debt restructuring, and short-medium term financial returns expected of this class of investor may result in pain for the sport and its fans in any future unwinding.
We see a greater concern being that unless a focus on protecting the integrity of the sporting nature of the investment comes with the capital injection and other benefits, then the sport may lose more than it can ever gain. After all, sport sells integrity.
8. Mercedes AMG Petronas F1 Team's protest at the 2021 Abu Dhabi Race Classification
We wrote about this as the events were unfolding in early December 2021 - read our article here.
With Mercedes taking the step of withdrawing its appeal to the Fédération Internationale de l'Automobile (FIA) International Court of Appeal (ICA), Sir Lewis Hamilton's push for a record 8th Formula One World Driver's Championship title officially ended and we were denied the opportunity for such a body to consider the various arguments, including the anticipated thrashing out of the 'Field of Play' doctrine.
Of sharper focus for the sport of Formula One (and other elite motor sport categories) going forward is the need to ensure that its rules are interpreted and applied in a fair and consistent manner. In this regard, the FIA has announced that a 'detailed analysis and clarification exercise for the future with all relevant parties' will take place, where the intervention of the Race Director in the conclusion of the 2021 Abu Dhabi Grand Prix and the consideration of the Race Stewards of Mercedes protest will be discussed and addressed.
As the sport of F1 continues to commercialise and gain new fans, the integrity of its competition must remain the priority over any concerns regarding entertainment.
7. U.S College Athletes Name, Image, and Likeness rights commercialisation
This matter has been seen by many as being hugely transformative to the treatment of the stakeholder group in U.S. college sports made up of players, the so-called student athletes, and a further weakness of the argument in favour of the concept of amateurism that the National Collegiate Athletic Association (NCAA) claims to b enshrined it the billion dollar business that is college sports in the U.S.A.
In June 2021 the United States Supreme Court handed down its decision in the case of National Collegiate Athletic Association v Alston et al 594 U.S., which had a narrow focus on education related payments, but left open the door to the possibility of future court decisions to address restrictions on direct compensation to athletes. The Alston case followed legislation made in States, including California, Florida, that prohibited educational institutions from punishing athletes who accepted endorsement money with enrolled in tertiary education.
A mixture of new state laws and NCAA rules changes that went into effect on 1 July 2021 have provided college athletes with varying degrees of new protections and opportunities to make money by selling their name, image and likeness (NIL) rights. At a federal level, the U.S. Congress had been mulling legislation to provide better compensation for student athletes after years of inaction by the NCAA.
For today's college athletes (in certain states pending federal laws), the opportunities are obvious, as they are for commercial partners.
6. The European Super League
This super league that was, then three (3) days later wasn't.
In April 2021 a rival to the UEFA Champions League, the European Super League Company, S.L. announced the formation of a seasonal football club competition initially contested by 20 European football clubs, including 12 founding clubs - Arsenal, Chelsea, Tottenham Hotspur Manchester City, Manchester United, Atletico Madrid, Real Madrid, Inter Milan and Milan.
The announcement received widespread opposition from fans, players, managers, and other clubs, as well as from UEFA, FIFA, and some national governments. A day after the official announcement, on 19 April 2021, the President of UEFA, Aleksander Ceferin (a Slovenian lawyer and football administrator) stated that UEFA would be making "legal assessments" and look to ban the 12 founding Super league clubs "as soon as possible". The Super League pushed back, claiming that any planned explosion of the clubs from the 2020-21 UEFA Champions League would be "impossible" and that they were protected under the law.
Arguments against the Super League included a concern that in allegedly creating a protected market for the clubs involved (these clubs being protected from relegation year to year depending upon their standing in their domestic competitions) that restricted others entering, thus reducing competition.
On 20 April 2021 Chelsea announced their intention to withdraw from the competition, followed 30 minutes later by Man City, with Arsenal, Liverpool, Man United and Tottenham Hotspur all following soon after. That same day, Atletico Madrid, Milan, and Inter Milan also announced their exits from the Super league.
The issue lives on in the EU Court of Justice, where the European Super League Company, backed by the 3 remaining teams - Real Madrid, Barcelona and Juventus - are taking action against UEFA and FIFA. The Super league and the remaining clubs have insisted they are within their rights to form a new competition, which would see them withdraw from the UEFA-run Champions League, Europa League and Europa Conference League tournaments. The case will hinge on the interpretation of the legal fiction that is sports governance - do UEFA and FIFA indeed have exclusive organisation of competitions?
5. WADA v Swimming Australia, Sport Integrity Australia, and Shayna Jack
On 16 November 2020 Australian swimmer, Shayna Jack, was found to have violated Article 2.1 of the Swimming Australia Ltd Anti-Doping Policy 2015 in the first instance decision issued by the CAS Oceania Registry (CAS A1/2020 Shayna Jack v. Swimming Australia & Australian Sports Anti-Doping Authority (ASADA)), and was suspended for a period of two (2) years, commencing on 12 July 2019.
The Sole Arbitrator in the first instance decision was "greatly impressed" by Ms Jack as a witness, and in his opinion, "her credibility remained intact" [at 87], going on to say that Ms Jack was "one of the most impressive witness the Sole Arbitrator has seen in his more that 40 years of practice". While finding that Ms Jack had not discharged the onus upon her to establish how the prohibited substance (Ligandrol) entered her system, the Sole Arbitrator did find that Ms Jack had proved beyond reasonable doubt that the ADRV was not intentional, suspending her for a period of two (2) years.
Appeals to the first instance decision were filed by Sports Integrity Australia (SIA) (formerly, ASADA) and the World Anti-Doping Agency (WADA) against the award of the sole arbitrator on 7 December 2020. The key issue in relation to the SIA and WADA appeals was their concern that the decision of the Sole Arbitrator in the first instance decision "sets a dangerous precedent for the administration of anti-doping schemes in so far as it leaves much to impression in lieu of concrete evidence" [at 60. f].
The majority of the CAS Panel disagreed with the reasonings of the Sole Arbitrator but upheld their holding. For different grounds the Panel dismissed the appeals against Ms Jack, finding an ADRV and a two (2) year sanction on that basis that Ms Jack had, on the balance of probabilities, established that she did not intentionally or recklessly consume the prohibited substance and could therefore benefit from a reduction in the period of ineligibility from four (4) years to two (2) years.
In the often un-athlete friendly world of the CAS, this is a key decision going forward for athletes who can mount a solid argument that demonstrates their lack of intent and their regard for the relevant risk of ADRVs beyond a reasonable doubt (to the individual arbitrators).
4. Application of WADA v RUSADA
Though a matter that reached its conclusion in December 2020, the CAS award of WADA v RUSADA (CAS 2020/O/6689 World Anti-Doping Agency v. Russian Anti-Doping Agency) has been applied in 2021, including in the very public forum of the Tokyo 2020 Summer Olympic Games in July 2021.
Following a decision by WADA in December 2019 that banned Russia from all international sport for four (4) years, finding that RUSADA manipulated its data to protect athletes in a state sanctioned doping scheme, Russia filed its appeal to the CAS, with 50 intervening parties, including the International Olympic Committee (IOC), the International Paralympic Committee (IPC), and the International Ice Hockey Federation (IIHF).
In a 163-page decision, the Panel affirmed the facts of WADA's case and harshly condemned Russia's actions, finding "an institutional conspiracy... within the Ministry of Sport and its infrastructure... [including] RUSADA and the Moscow Laboratory" [at 35]. The CAS the Russian authorities, affirming their participation in “deliberate” and “brazen” obfuscation of evidence, “egregious” misconduct, and in orchestrating “a contrived extortion scheme” among other scathing remarks [at 613 - 617].
Despite the sharp condemnation of Russia’s conduct, the CAS Panel shortened the sanctions’ duration to only two (2) years, and determined that Russia as a state would be barred from participating in or attending the Olympic and Paralympic Games (winter or summer) and any world championships organised or sanctioned by a WADA signatory, though Russian athletes could attend and participate on the condition that they are not subject to a suspension imposed by a competent authority, that the uniform worn does not contain the flag of the Russian Federation and contains the words “neutral athlete” (uniforms could still contain the word 'Russia'), and that the Russian national anthem is not played or sung at any official event venue.
As we saw at Tokyo 2020 - Russia wasn't there, but it was, leading many to ponder on the effectiveness of the actions by WADA, seeing the CAS Award as a slap on the paw of the Russian bear.
3. COVID-19 (Delta and Omicron (and related) variants)
It's still here, in one variant or another. It's still playing havoc with sporting leagues and schedules (and people's lives and those of loved ones, as well as businesses, employment, education...). I'm still sick of talking about it.
The big issue for sport going into 2022 is how will they respond against a reportedly even more contagious variant sweeping a world where we now see the removal of public health orders by governments and regulating bodies. Without effective regulations in many jurisdictions, this is now a true test for the 'autonomy of sport'.
2. Allegations of Abuse in Woman's Sports
As women's sport further professionalises, we continue to see further allegations of abuse against female athletes, in some cases involving allegations against governing bodies. The impact of the 'Athlete A' documentary has been felt far beyond the world of women's gymnastics in the U.S.A. 2021 has been the year that many sports have been held to account, bringing about an age of athlete empowerment and organisational accountability for sports.
In May 2021, The Australian Human Rights Commission released its Report on the Independent Review into Gymnastics in Australia (2021), outlining the Commission’s key findings and 12 recommendations for whole of sport change. Gymnastics Australia requested the Independent Review into the sport following a global sharing of experiences of abuse in gymnastics with several former athletes and parents of former athletes coming forward in Australia following the release of ‘Athlete A’. The Commission noted that the implementation of the recommendations "requires engagement and action across all levels of the sport. Such action will be a step towards achieving transformative cultural change and ensuring that the human rights of gymnasts across Australia are upheld". There is much to consider in the Report for all Australian sporting organisations.
In the sport of swimming, in response to allegations made by elite swimmer, Maddie Groves initially via social media, Swimming Australia has "appointed an independent panel of experts to investigate issues relating to women and girls' experiences in swimming. The Panel's report and recommendations are expected early next year."
In the world of football, Football Australia has established an independent complaints process with SIA following allegations of abuse made by ex-Matilda's national player, Lisa De Vanna. The complaints handling, investigation and disciplinary process will consider complaints on allegations relating to abuse, bullying, child abuse, child grooming, endangering the safety of a child, harassment, sexual misconduct, unlawful discrimination, victimisation and vilification. The process will close on 31 January 2022.
In just these three (3) examples from Australian sports we anticipate that the #MeToo moments in sport may just be the beginning. Or the end, for the abusers.
1. Human Rights
Closely related to the handling of allegations of abuse against women in sport, we saw human rights as the top issue played out in world sport in 2021.
Why are human rights even in sport? Let's ask our friends at the IOC, where in their Olympic Charter we find the Fundamental Principle of Olympism no. 4:
"The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play."
We see that the tension to protect the integrity of the sport without infringing basic human rights is an increasing issue for sport.
We say this for several reasons, chief among them being that 2021 saw an increase of sporting authorities attempting to deal with integrity related issues by introducing ambitious task forces and programmes with a wide range of powers. Often these powers are so wide and/or vague, it could be argued they threaten the protection of basic human rights.
As just some examples we saw in 2021:
Athletes' right to protest - In an era of renewed athlete activism and gestures such as taking a knee, the IOC has struggled to adapt the long-standing Rule 50 of its Olympic Charter: “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.” The IOC issued a new guidance before Tokyo 2020, stating that athletes will be able to express their views on the field of play before competition so long is it is not targeted against people, not disruptive and not otherwise prohibited by national Olympic committees or international federations.
Anti-Doping and whereabouts requirements - whereabouts obligations applicable to Athletes (for the purpose of random drug tests), considered to be an excessive infringement on their right to respect for private and family life, as protected (in Europe) by Article 8 of the European Convention on Human Rights.
Anti-Doping - other problematic areas of the WADC:
Prohibited Association (Art. 2.10, Wada Code 2021)
Failing to submit to sample testing (Art 2.3, Wada Code 2021)
The availability for testing anytime-anyplace (Art 5.2, Wada Code 2021)
The life Ban (Art 10.9.1.2, Wada Code 2021)
Duration of Publication of ban (Art 14.3.5, Wada Code 2021)
Time-limit for commencing proceedings for a doping violation (Art. 17 Wada Code 2021)
The excessive powers of the investigating officers
The double role of the investigating officers as a party as well as an investigating authority in Court case
The athlete’s contract of adhesion with a sports federation
The low standard of proof included in the statutes of sports federations
Venues / Host Cities - Governments, international sports bodies, and industry must take responsibility for barriers to freedoms and health experienced by athletes, officials, attendees, and migrant workers involved in events such as the Olympic Games and FIFA World Cup. FIFA's Human Rights Advisory Board is a good step in this regard.
Trans rights - while sport has the power to set reasonable conditions of entry (Mr Robert Berger v World Anti-Doping Authority (CAS 2010)), the area of trans rights is developing in some sports into situations where there is in fact a clash of rights. In November 2021 the IOC released its 'Framework on Fairness, Inclusion and Non-Discrimination on the basis of Gender Identity and Sex Variations'. Where some sporting organisations may have been hoping for more of a prescriptive or a guided 'prioritised' approach from the IOC, the framework also continues to support the autonomy (and burden) for sporting organisations to develop eligibility criteria. Any clash of rights in attempts to navigate a balanced approach, even where fairness comes first, may increase the burden for sporting organisations as they seek to develop or refine eligibility criteria according to the "particular ethical, social, cultural and legal aspects that may be relevant in their context".
As often for ethically based decisions in sports, the devil will be in the detail found within the values of that sport as it grapples with human rights and other legal issues.
Thanks for reading, and very best wishes for 2022 and beyond!
About the Author:
Mat Jessep is a commercial/corporate lawyer and business consultant with specialist skills and experience in Sports, Esports, Media and Entertainment, acting for clients in Australia, New Zealand, Japan, North America, the UK, and Europe. Mat is experienced in commercial and corporate matters, including transactional, contractual, procurement, company secretarial, governance, integrity, branding, reputational, strategy, regulatory, compliance, and legal project management advice and support. Leveraging off of more than 10 years’ experience as a lawyer and a career in marketing and brand management before that, Mat has established Game Legal and Game Consulting to deliver focused legal, governance, and strategic commercial advice to clients involved in Sports, Esports, and Pop Culture - Gaming, Media, Tech, Internet, Brands & IP, Entertainment, TV, Music, Film, Art, & Fashion - as well as to Businesses and for new Start-Ups.