Ross Wenzel, Kellerhals Carrard
Ross Wenzel at Kellerhals Carrard discusses recent developments in the Swiss sports market, including changes in regulation, the growing role of the media in the sector and the rise of e-sports.
In an anti-doping context, the case law of the Court of Arbitration for Sport (CAS) has continued to provide clarification with respect to a number of the new issues arising out of the 2015 World Anti-Doping Code. For example, the concepts of intentional violations (with increased sanctions) and contaminated products have been fleshed out by recent decisions. However, as certain aspects of the 2015 Code remain contentious (for example, the question of whether it is necessary for an athlete to establish the origin of a prohibited substance in order to prove that a violation was not intentional), our firm continues to see an increase in the number of anti-doping disputes.
With respect to our football practice (which has recently been boosted by the arrival of Irish barrister and football specialist David Casserly), the third-party ownership (TPO) ban generated a significant amount of work, in particular in advising clubs and funds. Although there has not been a legislative change, the recent increase in FIFA’s scrutiny of the issue of minors in football has also led to numerous instructions from football club clients.
We have recently handled disciplinary cases arising from the publication of inappropriate comments through social media.
We have also acted in defamation suits brought against a number of our institutional clients that have resulted from, eg, the publication of investigation reports, press releases etc. In general, we have noticed an increased willingness on the part of individuals to bring civil actions against sports federations.
We see e-sports as an exciting industry and a growth area that will generate interesting legal work. We have recently hired an associate with specific experience and interest in this area. One significant challenge for e-sports will be in bringing the various commercial stakeholders and teams together under a uniform regulatory system. We have seen with other sports that have grown organically and are comprised of disparate stakeholders and commercial interests that the process of coming together under a common regulatory structure can involve a number of tensions and disputes along the way.
One of my partners, Francois Carrard, was the chair of the FIFA reform committee and led the process that resulted in the significant regulatory reform that FIFA has introduced.
A number of our other international federation clients have conducted governance reviews, resulting in regulatory changes to better prevent, detect and sanction violations of an ethical nature. In particular, we have advised a number of clients with respect to the introduction and/or bolstering of their ethical and electoral codes and, more generally, how to improve their structures and processes so as to improve transparency and prevent abuses.
Within the specific context of doping, one immediate consequence of the revelations of alleged state-sponsored doping in Russia was for WADA to develop a new regulation setting out the consequences of a failure of their stakeholders (including national anti-doping organisations, laboratories and international federations) to comply with their obligations under the World Anti-Doping Code. We have also advised international federations who have introduced collective sanctions on their member federations where there is evidence of a systemic failure (eg, due to a high number of doping cases).