Who’s Who Legal brings together two leading experts to discuss issues facing sports and entertainment lawyers and their clients in the industry today.
Michele Bernasconi: It has had a very important impact indeed. Betting and in particular match-fixing have opened a new and challenging set of issues that need to be dealt with effectively by the sport movement, by governments, by schools and by parents. UEFA, for instance, has always been a leader in the fight against match fixing; as legal adviser to UEFA I had the privilege of being involved in many cases of procedures against match fixers: players, coaches, officials of clubs and even referees. These kind of cases are complex, and in fact they can be very different one from another: some cases may involve naive young players, accepting to fix a match for little money. Other cases may involve real criminal organisations. For sure, I never expected that sports would bring me back to criminal law.
Benoît Keane: I agree that the prevalence of betting, in particular online betting, is giving rise to serious challenges for sport. Sports governing bodies should be mindful of European and competition law principles when regulating betting activities. That said, they arguably have a wide margin of discretion to protect the integrity of sport – including the right to ban certain betting activities. The recent proposal by Italy to ban betting advertising, including at sports events, may well become a test case under EU law (freedom of services and related legislation) as to what extent EU member states can protect citizens from betting.
Michele Bernasconi: Probably the most important one has been the recent ruling of the European Court of Human Rights (ECHR) in relation to the cases between the speed skater Ms Pechstein and the football player Mr Mutu on one side, and Switzerland on the other side. Both athletes filed appeals at the ECHR in 2010 against judgments of the Swiss Federal Tribunal which confirmed the previous awards rendered by the Court of Arbitration for Sport (CAS) in these matters. In my view, it is of huge importance for the uniform and equal treatment of athletes, players and clubs of all over the world that the ECHR recognised that an arbitral dispute resolution mechanism, with a possible appeal, even limited, before a state court, as a last instance, is appropriate in the area of international sport. Of course, the fact that the ECHR has also confirmed that the CAS fulfils the requirements of independence and impartiality is also a very important step for sports-related arbitration.
Benoît Keane: By coincidence, another major development for sports law also arose from speed skating. The European Commission (EC) adopted a decision against the International Skating Union (ISU) finding that its eligibility rules, which prevent skaters from participating in unauthorised events, infringed European competition law. In particular, the EC condemned the potential lifetime sanction for any breach of the rules and the lack of a clear authorisation system. Crucially, however, the EC acknowledged that the ISU (who I represented in the case) was entitled to operate an authorisation system provided it pursued legitimate objectives such as integrity, health and safety and the good functioning of the international calendar. This finding is essential to the governance of sport and shows that competition law does not require a regulatory race to the bottom. The new authorisation system and ethical rules put in place by the ISU for the vetting of independent events may well serve as a useful precedent for other sports federations.
Michele Bernasconi: I notice an increase in the number of lawyers that are interested in working in this field. I also see an increase in the quality of the legal work, both within sport organisations and in respect of party representation and advocacy before sports adjudicatory bodies.
Benoît Keane: The globalisation of sport provides many opportunities but also challenges for sport governing bodies. The financing of football is already regulated at a European club level through mechanisms such as UEFA’s Financial Fair Play Regulations to ensure that investment is sustainable. It may well be that similar rules will be developed in other regions and perhaps even at a global level. When it comes to developing such rules, competition law is an important consideration. Investment in new sports or sporting events may also require a careful balance between encouraging investment on the one hand and maintaining sufficient competition on the other.
Michele Bernasconi: I don’t think there will be major changes, but I expect the increase of sports-related legal work to continue. Talented sports lawyers will have good work on their plate.
Benoît Keane: An interesting change has been the increase in sports law courses, which is helping to grow the sector. The practice of sports law remains a highly specialised one, often involving practitioners who are experts in a particular legal discipline then applying those skills to the sport sector.
Michele Bernasconi: I can answer by referring to the Olympic motto of the Baron Pierre de Coubertin: citius, altius, fortius, which is Latin for “faster, higher, stronger”. International sports lawyers are probably well advised to use these three words as a programme for their daily work. Personally, I would add also a fourth, very important word, probius, which means “fairer”.
Benoît Keane: In The Simpsons, there is a classic scene where the lawyer Lionel Hutz says, “If there is one thing America needs, it’s more lawyers. Can you imagine a world without lawyers?” It then cuts to an imaginary world without lawyers where everyone is singing and dancing happily. My prediction is that sport will need more lawyers as it becomes increasingly professionalised and commercialised – even if those in the world of sport would be much happier without us!