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How the EU’s newly proposed Digital Services Act could benefit the sports industry

Tue, 2021-01-12 02:25

In a bid to achieve "technological sovereignty", the European Commission has unveiled a wide-ranging package of proposals that will provide a new rulebook for online platforms offering goods and services in Europe. The Digital Services Act (DSA) package published in Brussels on 15 December is the boldest initiative to date in an ongoing global conversation about the role and responsibilities of online platforms.[1]

Two linked proposals are contained in the legislative package: a Digital Services Act, which proposes new content moderation rules and could give media companies new tools in their fight against illegal content online; and a Digital Markets Act which proposes ex-ante rules for very large "gatekeeper" platforms and is designed to complement competition law.

This article explains the key measures proposed in the DSA, which will introduce a horizontal framework for all categories of content, products, services and activities on intermediary services. The article also considers how some of the measures could have positive implications for the sports sector, as well as areas where sports rights owners are likely to press for more clarification. Specifically it looks at:

  • Overview of the Commission’s proposal
  • Reasons for introducing the DSA
  • Potential impact on the sports industry
  • Next steps towards implementation
AuthorFrancine Cunningham Conor Hume

Addressing Participant Welfare And Safeguarding Issues In Sports Disciplinary Investigations

Mon, 2021-01-11 06:24

Anyone who is the subject of a disciplinary investigation will, almost inevitably, be placed under a degree of stress. The exact degree of stress in each case will obviously vary depending on a number of subjective and objective factors, including the individual’s circumstances and characteristics (e.g. his/her sensitivity, age, maturity and understanding of the disciplinary process), the support available to the participant, the seriousness of the alleged conduct under investigation, the seriousness of the potential consequences to the individual if that conduct is later proven, and so on.

This is all as true in sport as it is in any other disciplinary context, although a participant’s stress in a sports case might be exacerbated if there is public/media interest in his/her case.

This article considers:

  1. the importance of participant welfare and safeguarding in conducting disciplinary investigations;
  2. practical considerations in addressing participant welfare and safeguarding during disciplinary investigations in respect of:
    1. all participants;
    2. participants with identified physical and/or mental health issues;
    3. child participants; and
  3. the desirability of making provision for participant welfare and safeguarding in advance.
AuthorRichard Bush

Fired for breaching coronavirus rules: key points from the Joshiko Saibou case

Mon, 2020-12-21 05:40

The authors’ prior article (available here[1]) discussed how German professional basketball player, Joshiko Saibou, had his employment contract terminated by his club, Telekom Baskets Bonn, for publicly stating that he disagreed with coronavirus restrictions and attending a rally protesting against the same.  The case was controversial as the Baskets fired Saibou with immediate effect and without first giving him a warning notice about his behavior (which is generally required under German law prior to the extraordinary termination of an employment contract).  The reason the club appeared to rely on for taking such drastic action was that Saibou posed an immediate health risk to their players, staff and competitors.[2] 

At that point in time, Saibou had appealed his dismissal to the local labour court in Bonn claiming that the extraordinary termination was unlawful because (1) he was exercising his constitutional rights to free speech/expression, and (2) he had not been served with a warning notice.  Rather than asking for his contract to be reinstated, Saibou instead claimed compensation for the time remaining under his contract (i.e. 11 months’ pay) as both parties agreed that the relationship of trust between them was severely damaged and that Saibou’s services were no longer required by the club. Saibou also wanted the court to state that his behaviour was legal and that he should not be branded as a “walking” health risk to others as it affects his employment opportunites.[3] On 19 November 2020, after the second day of the hearing, Saibou and Telekom Baskets reached a private, out-of-court settlement in the matter.[4]  

Despite the fact that the case ended behind closed doors and without a full judgement, there are a few interesting points to discuss arising out of the court’s initial directions – especially, considering how the settlement was reached.

AuthorAnsgar Faßbender Dwayne Bach

Copyright in tattoos: U.S. court rules for artist in Randy Orton / WWE 2K case

Thu, 2020-11-26 01:33

A recent United States district court decision on copyright infringement has brought the issue of recreation of tattoos in video games back into the spotlight and has diverged from an earlier ruling from another district court in a different judicial circuit.

The case concerned the digital depiction of five tattoos on professional wrestler and current WWE champion, Randy Orton, in the “WWE 2K” professional wresting video game series.  The plaintiff[1], tattoo artist Catherine Alexander, filed the lawsuit against the defendants (collectively, “Take-Two), who develop the WWE 2K video game series and sought to recreate Orton’s tattoos in a digital format. 

While Take-Two had obtained permission to use Orton’s likeness in the video game, Alexander claimed copyright infringement pursuant to 17 U.S.C., § 501 with respect to Orton’s tattoos, and argued that her consent to include Orton’s tattoos was required, but was not provided.  Importantly, Alexander had earlier registered copyrights for each of the tattoos at issue.

Alexander filed a motion for partial summary judgment on the issue of copyrighting. Take-Two simultaneously filed its own cross-motion for summary judgment, arguing that Alexander’s copyright claim was insufficient as a matter of law, and requested that the Court dismiss the claim accordingly.  

Judge Staci Yandle in the US District Court for the Southern District of Illinois (Seventh Circuit) granted Alexander’s motion, but denied Take-Two’s motion (see here[2]).

This article examines the case, looking at:

  • The Copyright Act of 1976,
  • The Court’s decision on summary judgment,
  • The conflicting judgment in the NBA 2K case
  • The position under English law
AuthorAndrew King Carlton Daniel

Top 10 tips on how to become a sports lawyer 2.0

Mon, 2020-11-16 02:02

LawInSport · How to become a sports lawyer with LawInSport, Founder, Sean Cottrell

This article was updated with Episode 97 of the LawInSport Podcast to accompany this article on 16 November 2020 added with the 2.0 version being published on  01 May 2019. 

I spend a fair amount of time speaking, mentoring and coaching enthusiastic law students, athletes and professionals who are considering becoming a sports lawyers. In my experience there are some basic, but effective, steps that aspiring sports lawyers can take that will get their career off to a flying start. However, these steps can be easily overlooked. Therefore, I thought I would take the opportunity to share ten tips on how to start a career as a sports lawyer. This is an updated take on the original "Top 10 tips on how to become a sports lawyer" I wrote back in 2013.

The following advice comes from my personal experience having worked in the legal sector for over 20 years and having worked with hundreds, if not thousands, of lawyers from all parts of the world since launching LawInSport back in 2010 and LawInSport Recruitment in 2018. A lot of this work has consisted of helping sports lawyers to articulate the value they bring to sports clients and in turn, help them to build their profiles and their careers. I have also been fortunate enough to receive the benefit of advice from some of the most prominent and influential sports lawyers across the world that I have interviewed or worked with during this time.

AuthorSean Cottrell

Indian sports law update: BCCI conflict of interest cases and IPL’s Covid-19 rules

Fri, 2020-10-09 03:40

With the recent and much anticipated return of the Indian Premier League (IPL), this Indian sports law update examines a number of contemporary issues from the world of, namely:

  • IPL’s Covid-19 procedure;
  • BCCI conflict of interest cases relating to:
    • Sourav Ganguly; and
    • Virat Kohli
  • The result of arbitration proceedings between:
    • BCCI and World Sports Group relating to IPL broadcast rights; and
    • BCCI and the owners of IPL team Deccan Chargers relating to the terms of a bank guarantee.
AuthorManan Agrawal

Discrimination in football: a guide to The FA’s new charging policies and sanctioning guidelines

Wed, 2020-10-07 02:29

In August 2020, after consultation with various stakeholders, The Football Association (The FA) published new charging policies and sanctioning guidelines for discrimination by participants and spectators in English and Welsh football, effective for the 2020-21 season. 

This article reviews the new guidance, looking in turn at:

  • The FA charging policy for discrimination; 
  • The FA sanction guidelines for discrimination by an individual participant (aggravated breaches);  
  • The FA sanction guidelines for discrimination by crowds (conduct of spectators). 

The guidance documents are available here.[1] They interact with The FA’s Rules and Regulations, which are available here.[2]

AuthorNick De Marco QC

WADA v. Sun Yang & FINA: Reflections of a Chinese lawyer & lessons for sports in China

Fri, 2020-10-02 04:58

This article examines the Sun Yang case from the personal perspective of the Author, a Chinese lawyer based in Beijing who made her way to Montreux, Switzerland and attended the 9-hour Court of Arbitration for Sport (CAS) hearing in person.  It offers the Author’s analysis of how the case unfolded, the conduct of the hearing, and most importantly, the lessons that can be learned for athletes, sports regulators, lawyers, and anyone caring about sports in China.  Specifically, it examines:

  • The reasons why Sun Yang lost his case
  • The factors that contributed to the eight-year ban
    • Conduct at the proceeding
    • Implausible case theories and lack of sincerity
    • The difficulties of a public forum
  • Could Sun Yang have argued his case differently?
  • Main lessons
    • Education for Chinese athletes and support staff
    • The win at all costs mentality and learning to deal with disputes
    • Constructive proposals for Chinese sports
  • Concluding remarks

For readers wanting a detailed review of the background, legal arguments and decision in the case, please refer to the LawInSport article[1] by Prof Jack Anderson.

AuthorGuo Cai