The Specificity of Sport Its uniqueness has the law compromised its general principles for the sporting context?

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1 Topic 1 Introduction What is sport? - Activity must it be physical? o Could it be mental chess; bridge e-gaming o Must it be organised? - Competition Must it be played to win? - Scoring system o Must it be objective? E.g. highest, fastest etc o Can it be subjective e.g. diving, figure skating - Our notion of sport changes over time - How to categories: o Amateur/professional o Winter/summer o Team/individual o Contact/non-contact o Competitive/friendly o Indoor/outdoor - Bridge is not a sport Bridge Union The Specificity of Sport Its uniqueness has the law compromised its general principles for the sporting context? - According to Anderson: o A mystique has always attached to sport generally, and professional sport in particular; this mystique has contributed to minimising sports exposure to the general law. - Structurally different self-regulatory o Beyond government control o This is more a symptom that a reason - Need uncertainty of outcome o Underdog needs to have a chance - Social/cultural importance to sport o Sometimes in more country s than others o Euro soccer championship (10% of Iceland population travelled to watch Iceland beat England: 330,000 = rest in town squares/homes watching) - Eg of sports minimal exposure to the law: o Competition law issues of salary caps o Employment law when K expires normally, an employee is free (subject to restrictive covenants) to find new work with another employee cf. retain & transfer system Need uncertainty of outcome competitive balance for regulation exemption o Criminal law immunity for deliberate infliction of injury (boxing) o Tort law doctrine of implied sporting consent o Sex discrimination institutions gendered discrimination in competitive sport o Disability discrimination Paralympic games o Scope of WorkCover does not cover sportspeople or conduct that would be considered workplace bullying (i.e. racial sledging ) o Special legislation to facilitate events: ticket scalping, exclusion zone around Grand Prix What is law? - Functional role o Ethical/moral values o Shared values o Constitutional/democratic values 1

2 - Expressive role o Shapes (prevents/encourages behaviour) o Facilitates private arrangements/government functions o Adjudicates Between private entities Between private entities and gov ts Between gov ts Regulation - Regulatory space is never (rarely?) completely empty - Regulatory space is often crowded, complex and contested o Occupied by multiple actors o These have their own and different values, vested interests and perspectives o They compete for control in the space o Actors are often interdependent They operate as regulatory networks, regimes, systems Rely on each other for their existence o Some are in it for the purity of sport, others for the money to be made - Regulator in one context can be a regulatee in another context - It is important to understand the environment in which law and regulation takes place o Social, economic, cultural, political Role of sport in society - Sport permeates society and community - 65% of Australians aged 15 years and over participate in physical activities for recreation, exercise or sport. o Men - 66% o Women - 64% o year-olds - 78% o Over 65 50% - 95,590 people whose main job is in a sport or physical recreation occupation - Not just culturally important for our nation, but integral part of the fabric of our society Sport and culture through the eyes of the court Adamson; Ex Parte West Australian National Football League (Australian case) - Per Barwick CJ: In my opinion, the presentation of a football match as a commercial venture for profit to the promoting body is an activity of trade I can see little difference between the presentation of a theatrical spectacle and the presentation for reward of the spectacle of a football match played by professionals as a major source of their income and the income of the promoter. o Ie: activity of trade o Treating it not different to any other business = commercial venture decided on those terms Flood v Kurt, 309 F. Supp 793, 797 (SDNY, 1970) (US case) - Baseball's status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody's business. To put it mildly and with restraint, it would be unfortunate indeed if a fine sport and profession, which brings surcease from daily travail and an escape from the ordinary to most inhabitants of this land, were to suffer in the least because of undue concentration by any one or any group on commercial and profit considerations. The game is on higher ground; it behooves every one to keep it there. 2

3 o Baseball is everybody s business so much of integral fabric of American society. Justice of NY SC doesn t treat on commercial ground = sport above commercial considerations and should be treated differently Sport and business - Broadcasting rights o AFL - $2.508 billion over 5 years (2017 to 2022) o NRL - $1.8 billion over 5 years ( ) o A-League - $160 million over 4 years (2013/ /17) o Big Bash million over 4 years ( ) Sport and government - How does government support sports? o Grants, scholarships, funding Grassroots children/local suburban sports Fund infrastructure, build stadiums, maintenance Sponsor institutes of sport designed to support excellence: AAS, VIS o Public holidays election commitment: Grand Final Day, Melbourne Cup Day o Governments influence over Formula 1, golf sailing = have a bid for your country to represent o Subsidies events and competitions o Pass special laws to facilitate sporting events and competitions AFL tax status = not for profit organisation so doesn t pay any tax Allowing sporting institutions to take advantage of existing laws such as not-for-profit Special laws for drugs and sport (doping) Gambling on sport Match-fixing (is this a concern of government, arguably yes if there is a social-cultural dynamic if a game is fixed) In Victoria major sporting legislation that restrictions marketing rights with respect to major sporting events Where grand prix = exclusion zone around the prix Extends monopoly geographically to stop replica sales Ticket scalping to declared events Government to legislative to secure profitability from competition o Host big events = tried to host world cup in soccer - Rationale for government providing each of the supports o Social utility/capital Engage the community By being involved in sport, we develop better citizens who understand the value of teamwork, respect, following the rules, compromise, adjustment etc. o Promote healthy lifestyles Health benefits from benefitting in sports Having a healthy fit strong populace post WWII, UK hosted 1948 conscious government policy to improve physical well-being of the population. Why was this so important? Germany discussing super-being invested in physical well-being of the people that gave them a military advantage British army made up of pasty weak men no investment in England through depression era For England, sport was an issue of national security to build up the stock of the people Most of our Olympic sports evolve from military activity sport in the era of the Greeks and Olympics = mechanism to keep soldiers fit (javelin 3

4 learning to throw spear, running to meet enemy, pole vaulting leaping over barricades) Originally tied in with issue of cultural but also national defence Today the physical specimen is not so important o Status of a country in an international arena o Political People feeling good and more content less likely to vote you out of next election Policy questions - Is sport different to other commercial ventures? Should sport enjoy special privileges? - Is there such a thing as sport law? 4

5 Topic 2: Administration of Sport - Sporting clubs can be organised in various forms - Directors of clubs owe duties - People aggrieved by decisions may hold the sporting club to account Organisation of sport Focus is on: - Professional v Olympic v Amateur - International v National v Local Amateur Sports - At least 95% of sport in Aus is played in amateur organisations - Two forms: o Unincorporated entities Unincorporated clubs have no separate legal identity, can t own property, can t sue in the name of the club The individuals behind the club will be sued and will have to sue on behalf of the club. Joint and severable liability organisers are joint and severally liable for debts In reality, no unincorporated sporting organisations exist, too risky o Incorporated entities State/Territory legislation: Associations Incorporation Reform Act 2012 (Vic) Eg: Maccabi Soccer club Can own property Members are not jointly and severally liable Members have limited liability Operates to a set of internal rules/constitution/memorandum or articles of association The rules of a sporting organization (by way of constitution for example) are a binding contract. The commercial realities of modern sport mean you need to be an incorporated organization Office holders owe duties to members Government funding usually requires you to be incorporated Professional - All entities are incorporated under the Corporations Act o FFA, AFL are companies limited by guarantee Members of company promise to guarantee the debts of the company up to a certain amount of $ o Run by volunteer boards elected by members (e.g. AFL Commission, head is Mike Fitzpatrick) o Run by volunteers and paid professionals - Club-level o E.g. Melbourne Victory is a public company (limited by shares, for profit) Melb Victory members = shareholders o E.g. Essendon Football Club is a public company (limited by guarantee, not for profit (all AFL clubs are NFP) Essendon FC members = paid up club supporters o Staffed by paid professionals and volunteers o Players: Full-time professionals Employees (contract of service) 5

6 Olympics - Many avenues to qualify for Olympics o E.g. through International Federations (International Basketball Federation, FIFA) o Through an Australian association to nominate through Australian Olympic Committee o AOC Incorporated NFP Independent from govt Athletes are a mix between professionals and amateurs - IOC most powerful sporting organisation in the world o Charter operates as a contract between members o Generally contractual disputes heard in Swiss Courts o Enforces power through a complex web of contracts o Contractual relationship, prima facie can be enforced in a court Government run sports - Horse racing, harness racing, greyhound racing - Form o Statutory bodies Established pursuant to the Racing Act 1958 Members of the bodies are appointed by Governor-in-Council on recommendation of the Minister Exercise to a degree PUBLIC power - HRV Role o To control the sport of harness racing (i.e. regulate sport and participants within the sport); and o To conduct harness races (i.e. develop and promote the sport) - GRV role o To control the sport of greyhound racing (i.e. regulate sport and participants within the sport) o To carry out research into aspects of greyhound racing to assist in planning future development o To promote the sport of greyhound racing o To promote and improve animal welfare within the sport of greyhound racing o To promote and monitor compliance with the rules o To conduct greyhound races (i.e. develop and promote the sport) - Is there a conflict of interest? o Asking the body (both promote of the sport and earning an income) to control and regulate the sport (ensure rule compliance) = surely some conflict here o Does this change their accountability (subject to administrative law mechanisms)? 6

7 Governance - All of these people have competing interests. Must tailor their duties to each stakeholder. - Balancing the need to win with the interests of other stakeholders can be very difficult for directors of sporting clubs. Directors Duties Directors owe duties to members, people who have contracts, players, the club, staff, employees, contractors, creditors, sponsors, the league or governing body - Good faith - Best interests - Proper purpose - Duty of care/skill/diligence - Disclosure/transparency - Avoid conflicts How do for profit clubs make money? - Sponsorship - TV rights - Merchandise - Ticket sales - Outside investments (eg: Collingwood owns a travel agency) - Player sales DISPUTE RESOLUTION ways that sporting orgs are held to account - Judicial o Judicial review o Merits review (external) o Breach of contract o Statutory members remedies - Non-judicial o Merits review (internal review) o Shame/criticism (social media) o Commercial isolation sponsors retract support o Spectators don t turn up to games, reduced revenue o External gov regulators (ASADA) o Gov denies funding o Player strikes o League-imposed sanctions o Board changes 7