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Why Australian publishers & users could be liable for defamatory social media comments (Fairfax V Voller)

Fri, 2022-12-02 05:37

The High Court of Australia in Fairfax Media Publications Pty Ltd v Voller1 considered who is a ‘publisher’ in the context of defamatory material posted on a social media website on the internet and in doing so, restated the long-established Australian common law position in Webb v Bloch.2 In Webb v Bloch, Isaacs J (referring to Folkard on Libel and Libel, 5th edition, [1891], 439) adopted the definition of ‘publication’ in the following words:

"The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication ; since if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him."

Support for this approach was found by Isaacs J in his reference to Parkes v Prescott,3 which in turn referred to the second edition of Starkie on the Law of Slander and Libel which offered the following test as to who may be a publisher:

"All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to that publication, are to be considered as principals in the act of publication : thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected."

This article examines the consequences of Voller (particularly, that social media users are also ‘publishers’ of defamatory material, as well as the social media websites on which they publish such material) as they may affect sporting clubs and groups (and possibly their members) as social media users, rather than the platforms themselves.4 Voller is a timely warning to all social media users and by extension, sporting communities at both the professional and grassroots level as to how sporting organisations and clubs manage communications with members and also communications between members, especially via social media platforms.

AuthorPaul Hayes KC

What does the Genius v Sportradar settlement mean for sports data rights holders?

Thu, 2022-12-01 05:58

It was recently announced that the long-standing dispute between Genius Sport and Sportradar has come to an end because the parties have now settled the case1.

We wrote about this case at the start of 2021, wide eyed and eager to see how exclusive data rights arrangements would fare in the face of the competition claims, and whether rightsholders would continue to be able to rely on ticketing terms, rights of confidence, and the laws of trespass and conspiracy to protect the integrity of their exclusive rights deals against unofficial data scouts2.

The terms of the settlement will remain confidential, but what we do know is that Sportradar has agreed to refrain from posting data scouts in UK football stadiums, and has obtained a sublicence from Genius for an ‘official secondary feed’, which will have greater latency (i.e. a longer delay) compared to the primary feed.

The settlement in Genius v Sportradar follows the settlement in June 2022 of another key data rights case, The Racing Partnership (TRP) v Sports Information Services (SIS). The Supreme Court had granted SIS permission to appeal a Court of Appeal decision in October 2020 which found SIS had engaged in an unlawful means conspiracy by providing an unofficial feed of live horseracing data and associated odds data. While the Court of Appeal’s decision was generally seen as pro-rights holder, unanswered questions remained which were due to be addressed by Genius v Radar.

With settlements now reached in both TRP v SIS and Genius v Sportradar, much remains to play for in the market for live sports data.  Rights holders and their exclusive licensees will need to remain alive to the ways in which they actively protect their rights and to competition law issues which the Courts have still not had an opportunity to comment on in this particular context.

This article discusses the background to the dispute and looks at the issues raised by the dispute that remains unresolved because of this settlement.

AuthorAndrew Cox Toby Bond Saskia King Andy Danson

The Standard of Proof and the Threshold for Appeal in Sports Disciplinary Cases (The FA v Imran Louza)

Wed, 2022-11-30 05:37

The decision of an Appeal Board dismissing the FA’s appeal in the case of FA v Imran Louza1 is significant for three reasons:

  1. it provides useful guidance as to the application of the civil standard of proof in sports disciplinary cases;

  2. it serves as a good example of the appropriate threshold for an appeal where a (new) point of law is advanced; and,

  3. in the author’s opinion, it raises important issues about the responsibilities of the regulator in sports disciplinary cases.

The factual background was simple and less dramatic than the issues discussed on appeal. The Watford and Morocco international midfielder, Imran Louza, had been charged by The FA with an offence of misconduct contrary to FA Rule FA Rule E1.1: it was alleged that near the end of Watford’s match against Swansea City, following an altercation with Swansea’s Ryan Manning, Louza had spat on Manning’s shirt. None of the match officials saw the alleged incident. The video showing the altercation was not conclusive; it did not show spitting. Apart from Manning, who alleged he had been spat at, there were no witnesses. Louza denied spitting. As the Commission found in their decision2 at [35], the evidence was fundamentally “one person’s word against another’s” and as the burden of proof was on The FA to prove the Charge, the Commission dismissed it.

The FA brought an appeal against the decision. The Commission had used language in their written reasons that was uncontroversial between the parties before them, and which has often been used by the courts and highly experienced previous FA Regulatory Commissions and Appeal Boards; language basically to the effect that, while the standard of proof remained the civil balance of probabilities, the more serious the charge, the more cogent must be the evidence to prove it, or, put another way, where the charge was a serious one, there was a need for “clear, cogent and convincing evidence for it to be upheld. The FA (having taken no point about this before the Commission) objected strongly to this language in its appeal, saying it was wrong in law, had “infected” the entire decision, and meant the appeal ought to be allowed and the entire case sent back to a fresh Commission.

What started as a simple “fast track” case about an unseen incident on the field of play, with only a few pages of evidence before a Commission, who had in turn heard the case “on the papers” with no live evidence, ended up with a significant in-person appeal hearing, both sides represented by King’s Counsel (senior barristers), and a bundle of some 1583 pages including 24 authorities many from House of Lords or Supreme Court cases.

Both parties agreed that, irrespective of the outcome of the appeal, it would be of assistance for the Appeal Board to give guidance as to the present state of the authorities on the civil standard of proof so as to reduce the possibility of disputes arising in future cases [at 12].

AuthorNick De Marco KC

What are the key changes to WADA’s Prohibited List 2023?

Wed, 2022-11-23 04:52

The World Anti-Doping Agency’s (WADA) Executive Committee approved the 2023 List of Prohibited Substances and Methods (Prohibited List) on 23 September 2022[1], which comes into force on 1 January 2023.

This article details key changes to the Prohibited List with a focus on the addition of Tramadol and the decision for cannabis to remain on the list.  A full list of the changes can be viewed below the conclusion and on the WADA website

 

AuthorXabier Lopez Hervas Rustam Sethna

Why BrewDog’s ‘Anti-Sponsoring’ World Cup Campaign May Land Them In Trouble

Wed, 2022-11-16 03:41

With the 2022 FIFA World Cup now less than a week away, the minds of the football-watching public are turning to Qatar.  Given Qatar's human rights record and various other question marks hanging over the legitimacy of the country's bid to host the tournament, many outside of the football community (including brands) are paying closer attention than they would be normally.  

As explored in a recent article on the subject by Alex Kelham, this political spotlight provides prime conditions for ambush marketing campaigns.  Ambush is normally associated with businesses trying to pass themselves off as sponsors of an event in order to benefit from the goodwill generated by it. But it is also not uncommon for opportunistic brands to seize upon excitement and interest surrounding events, even if such interest is (as with the Qatar World Cup) largely critical or negative.

Earlier this week, BrewDog (the Scottish brewery) proclaimed itself, through a series of physical billboards and online posts, the "Proud Anti-Sponsor of the World F*Cup".  This punchy strapline is backed up by a claim on BrewDog’s website that it will donate the profits from all sales of its Lost Lager during the World Cup to human rights charities.

This article explores the marketing campaign run by BrewDog along with the criticisms of the campaign and potential legal issues that may arise.

AuthorDavid Cakebread Brinsley Dresden

World Cup Qatar 2022 - Why The UK Government’s Advice To LGBT+ Fans Could Put Them At Risk

Mon, 2022-11-14 06:06

In under a week, Qatar will host the 2022 FIFA World Cup. As English and Welsh football fans prepare to travel to Qatar to support their team, the UK Government is failing to give LGBT+ fans clear advice whether it is safe for them to travel to Qatar. The Government’s mixed messages leave LGBT+ football fans at risk and may expose the Government to legal liability.

This article discusses various advice that the UK Government has published or given LGBT+ fans about their safety in travelling to Qatar for the FIFA World Cup 2022 and considers how the advice given may give rise to liability on the part of the UK Government.

AuthorTom Mountford

ECB Racism Disciplinary Proceedings To Be Held In Public: Open Justice In Sports Disputes

Mon, 2022-11-07 03:32

On 3 November 2022, the BBC announced that in an “unprecedented” move the England and Wales Cricket Board’s (‘ECB’) disciplinary proceedings arising from racism allegations at Yorkshire Cricket will take place in public.1

In the last few years, we have witnessed increased scrutiny of the practice that disciplinary and regulatory proceedings held by various sports governing bodies are in private. Such proceedings often relate to matters of genuine public interest, and invariably are of importance at least to other participants in sport. Why should they be held behind closed doors? How does the principle of Open Justice apply to proceedings in sport?

The recent landmark decision of the ECB’s Independent Cricket Disciplinary Commission (CDC) that its proceedings about allegations of racism in Yorkshire Cricket should be held in public was made following an application we made on behalf of Mr Rafiq, one of the main witnesses in those proceedings. Yet despite the conclusion in that important decision, the actual details of the application, and to date even (somewhat astonishingly) the CDC’s written reasons for its decision, remain in private, and so this article focusses on the wider arguments at stake with respect to this important issue.

In this article, the author, who made the successful application for the proceedings to be held in public on behalf of former professional cricket player and whistle blower, Azeem Rafiq, discusses the wider implications of the case, drawing on key cases and legal principles.

AuthorNick De Marco KC

When Is A Football 'Sell On Clause' Triggered? CAS Decides in Malaga v Brighton

Thu, 2022-09-29 04:37

Those involved with football transfers will be familiar with sell-on clauses given that they are widely used in the world of professional football. The purpose of a sell on clause is simple. They are designed to allow the old club to share the benefit of a subsequent transfer of a player by receiving an additional payment in the event the player is transferred from the new club to another club.

Whilst the purpose of a sell on clause is clear, disputes between clubs over sell-on clauses frequently arise and I recently acted for Brighton & Hove Albion FC (Brighton) before FIFA’s Players Status Committee and the Court of Arbitration for Sport in one such dispute that Brighton had with Malaga FC.

The decision in the case provides helpful clarification as to the meaning of a transfer in the context of whether a sell on clause has been triggered or not.

AuthorJohn Shea

Negotiating athlete endorsement agreements in India

Tue, 2022-09-06 03:32

The Indian sports industry and the surrounding eco-system has undergone a substantial economic transformation in the past two decades. This change can be largely attributed to the advent of franchise-based professional sports leagues in India, commencing from the inception of the Indian Premier League in 2008, and the increasing importance of the Indian sports market to international athletes, especially in cricket. Over recent years, the country has also been witness to professional leagues in various other sports such as badminton, football, kabaddi, basketball and hockey. The investment opportunities afforded by these leagues coupled with an increased interest by the Indian private sector in investing in sports that were previously not financially viable or attractive have facilitated an unprecedented level of growth in the Indian sports industry.  

The availability and consumption of sports content in India has had two key effects. First, it has resulted in Indian sports leagues as well as global sports properties, such as the English Premier League and Formula 1, becoming very popular in the country. Second, it has prodded the Indian sports-loving public to gradually watch, follow and support various sports and athletes, instead of being obsessed purely with cricket. The increased exposure to Indian audiences of athletes from non-cricket sports because of these developments, has meant that such athletes, both Indian and foreign, have become household names in India. In some cases, the popularity of these athletes also dwarfs that of Indian cricketers, who have always been the subject of much adulation. Naturally, this is now starting to encourage Indian brands and companies to consider engaging such athletes, including foreign athletes as brand ambassadors or endorsers to promote the companies’ products and services.

While Indian companies have often engaged Indian cricketers as brand ambassadors, there has recently been a growing trend to engage Indian athletes who have made a mark in other sports. However, the athlete endorsement market in India continues to be dominated by Indian cricketers. Occasionally, Indian companies have also engaged foreign cricketers as brand endorsers, with notable examples being Chris Gayle[1] and Steve Waugh[2]. However, examples of Indian companies engaging foreign athletes from sports other than cricket are few and far between and remain localised to current and retired legends of sports.

The first notable instance of an Indian company engaging an international athlete as a brand ambassador or endorser is that of Tiger Woods[3], who was engaged by the Hero Group, one of the world’s largest two-wheeler manufacturers. Another notable instance is that of Lionel Messi[4], who was engaged in 2016 by Tata Motors as the company’s global brand ambassador for a period of two years. In addition, sportspersons such as Michael Schumacher and Maria Sharapova[5] have lent their name to luxury residential projects, while legends such as the late Diego Maradona[6], the late Carlos Alberto Torres[7] and Zinedine Zidane[8] have made special appearances at jewellery showroom inaugurations, trophy tours and real estate project openings respectively.

In this context, this article aims to serve as a guide for any athlete (whether Indian or non-Indian) that receive opportunities to enter into endorsement deals in India. Further, the article briefly discusses some of the key legal and commercial issues that have cropped up in the realm of endorsements in India from an athlete’s perspective and highlights potential stumbling blocks and pitfalls that are to be avoided while exploring and entering the endorsement market.

Specifically, it discusses the need to:

AuthorRoshan Gopalakrishna R. Seshank Shekar Harsh Malpani Yogitha Ramu Ritu Eshwar

The Right To Be Heard: Why The SFT Rejected A Football Club’s Appeal From CAS

Wed, 2022-08-24 03:28

A typical loan agreement with a purchase option of a football player was brought to the FIFA Dispute Resolution Chamber (DRC), then to the Court of Arbitration for Sport (CAS) and eventually to the Swiss Federal Tribunal (SFT). Both the FIFA DRC and the CAS Panel upheld the Player’s claims for outstanding payments by the Club. Before the SFT, the Club invoked a violation of its right to be heard by the CAS Panel for allegedly failing to examine its argument that the payment of the signing bonus was due only if the player was definitively transferred, which in the Club’s view was not the case. The SFT held that this grievance was nothing more than a disguised effort to review the substance of the case and to question the interpretation of a contractual clause, only reviewable under Art. 190 (2) (e) LDIP.

The SFT also dismissed the argument raised by the Club on the violation of its right to be heard by the CAS Panel for taking into account an argument that the parties did not raise. Specifically, the CAS considered that the employment contract had probably been drawn up by the Club and therefore should be interpreted against it, based on the principle in dubio contra proferentem. Apart from being just one of the elements taken into account by the Panel in order to reach its decision, the SFT considered that the alleged violation of the Club’s right to be heard could not have an influence on the outcome of the dispute, to the extent that the Club had expressly admitted its debt during the DRC proceedings. As such, the real and common intent of the parties was established without the need for recourse of additional interpretational principles such as the one of in dubio contra proferentem.

Note: This was originally published on SportsLegis, a specialised sports law practice run by Dr Despina Mavromati. The original can be found here.

AuthorDr Despina Mavromati