Inappropriate Tweets & The 'Duty Of Curiosity': Why The Swiss Federal Tribunal Ordered The Sun Yang Case Be Reheard
Chinese elite swimmer Sun Yang (the Athlete) has managed to occupy the headlines of international sports arbitration in recent years. After public hearing at the Court of Arbitration For Sport (CAS), which included several motions filed with the Swiss Federal Tribunal (SFT) during the CAS proceedings itself, the SFT’s most recent judgment constitutes the first in the CAS history where the SFT annulled a CAS award for bias of its Panel Chair, Mr. Franco Fratini. The CAS Award had imposed an eight-year ban on the Chinese swimmer Sun Yang due to an anti-doping rule violation. Now the case will be reheard.
This article examines the SFT’s decision and its implications, looking at:
- The Athlete’s requests to the SFT;
- Whether the Athlete should have raised concerns earlier (the “duty of curiosity”);
- How the impartiality of an arbitrator is assessed;
A month ago this week, the English Football League (EFL) confirmed that it would immediately withdraw salary caps for League One and League Two clubs that had been ruled unlawful by an independent arbitration panel. Back in August 2020, League One and League Two clubs voted in favour of fixed salary caps, limiting their budgets for wages, taxes, bonuses, image rights, agents’ fees and various other fees and expenses to £2.5 million and £1.5 million respectively. The new rules went over and above the existing Financial Fair Play Regulations which are designed with football’s long-term financial sustainability in mind.
The successful challenge was brought by the Professional Footballers Association (PFA), which argued on behalf of its members that the EFL had introduced the change without consultation and agreement. In doing so, the EFL breached the collective bargaining agreement that governs the employment of professional footballers in England, the Professional Football Negotiating and Consultative Committee (PFNCC) constitution, by introducing “major changes in the regulations of the Leagues affecting a Player’s terms and conditions of employment… without full discussion and agreement in the PFNCC”. When the salary caps were rushed through last August, there was no consultation and therefore no agreement.
Momentous as it is, the decision – the reasons for which, for now, remain unpublished – means that a very short chapter in the financial regulation of modern English football, prompted in large part by the severe impact of the Covid-19 crisis, has closed almost as quickly as it opened. But it is more than likely that English football is nowhere near the end of this particular tale.AuthorWill Bordell
On 12 February 2021 The FA published the written reasons in the case of The FA v Nathaniel Mendez-Laing. This case concerned charges brought by The FA against the Player under The FA Anti-Doping Regulations 2019-20 (19-20 ADR), following the Player having provided a urine sample after his match for Cardiff City FC against Bristol City FC on 4 July 2020 which subsequently tested positive for metabolites of cocaine.
The Player was notified of his anti-doping rule violation (“ADRV”) on 14 August 2020 and provisionally suspended from participating in all first team and non-first team matches from that date. He was formally charged by The FA on 12 November 2020. Following evidence being submitted by both parties, the case was heard by a Regulatory Commission on 20 January 2021.
This article examines:
- The new Substances of Abuse regime
- The principle of 'lex mitior' (the less severe law applies)
It is important to note that at the time of being charged, the Player was subject to the 19-20 ADR. However, by the time the case was heard, the 19-20 ADR had been replaced with the updated, and significantly amended, FA Anti-Doping Regulations 2021 (2021 ADR). The 2021 ADR incorporated the FIFA Anti-Doping Regulations 2021 (which in turn reflected the 2021 World Anti-Doping Agency (WADA) Code) and came into force on 1 January 2021.AuthorPhilip Hutchinson
Even before the Brexit vote, the UK broadcasting industry has in recent years been faced with a high degree of legal and regulatory change and upheaval. Media rights to sports properties have traditionally been sold on a territorial basis, with a different national broadcaster granted exclusive rights in their official licensed territory. However, this approach has frequently been at odds with European Union (‘EU’) rules on freedom of movement, and specific legal initiatives under the EU’s Digital Single Market programme, which in general terms are aiming to break down territorial boundaries and unify markets across the EU.
On 1 January 2021 the UK’s transition period for leaving the EU came to an end under the terms of the EU-UK Trade and Cooperation Agreement (‘TCA’). This article looks at some of the key areas where EU law has impacted on how sports media rights are acquired and sold, and the resulting impact that Brexit will have on this legal landscape.AuthorConor Hume Craig Giles
Recently, a stir was caused by a press release announcing plans to launch the European League of Football (ELF). From June 2021 onwards, a professional American football league in Europe will commence its first season, with eight teams from Germany, Spain and Poland. Over the long term, the league intends to expand to 24 teams from at least ten European countries. As such, talks are currently being held with several other potential franchises, including the current British champion, the London Warriors. One of the league’s ambitions is to serve as a stepping stone for European players who aim to play in the NFL. Could this be a new start for professional American football in Europe?
A professional American football league has in fact already existed in Europe in the form of the NFL Europe, which ran from 1991 to 2007. As the name suggests, it was organised by the NFL itself. Clubs from cities all over Europe competed in this league, including Amsterdam, Barcelona, Berlin, Edinburgh and London. In its last season, it had an average of 20,000 spectators attending per match. However, the league was ultimately dissolved because the NFL changed their international strategy.
Subsequently, the ELF wants to profit from the growing popularity of American football in Europe, specifically in Germany. They intend to fill this void and ultimately also aim at creating a league in which the best young European players can develop before potentially heading to the NFL.
This article reviews:
- The ELF’s operational structure:
- Teams and leagues;
- Player transfer system;
- Franchise model;
- Broadcasting model; and
- Risks the ELF could face as a new ‘rival’ sports league.
Sports Stadia Development & The Dangers Of Restrictive Covenants: Lessons from the Bath Rugby Club Case
The High Court has held that the land which Bath Rugby Club occupies on a long lease is subject to a historic restrictive covenant, which is still enforceable 98 years after it was first entered into as part of a conveyance.
This article reviews the case looking at the facts, decision and key learning points for clubs/developers.AuthorChristopher Pike Laura Woodward
Can you imagine being sent home without pay for two and a half months by your employer and having to apologize to the whole world because you had an extramarital affair? The punishment seems bizarre and extreme, you may think: what I do with my personal life is none of my employer’s or the public’s business, you may protest. However, that is exactly what happened to the four-time world swimming champion Daiya Seto.AuthorNan Sato
Published by Wolters Kluwer, 2020, available here.
An introduction to the Annual Review by Guo Cai is available here.Table of Contents
Case 1.- WADA vs Sun Yang & FINA
Case 2.- Recognition and Enforcement of a CAS Award by the PRC Court under the New York Convention
Case 3.- Chinese Players vs. Dalian Transcendence Football Club
This is an introduction to Commercial Dispute Resolution in China: An Annual Review and Preview - by Jeff Benz & Guo Cai, published by Wolters Kluwer, 2020. The Annual Review has been republished in full by LawInSport, and can be viewed here.Overview and General Trend of Sports Law Development in China
In September 2020, the Annual Review on Sports Dispute Resolution in China (2020) was published, as the inaugural chapter dedicated to sport, of the Commercial Dispute Resolution in China: An Annual Review and Preview (hereinafter referred to as the “Annual Review”) under the auspices of the Beijing Arbitration Commission / Beijing International Arbitration Centre (hereinafter referred to as “BAC/BIAC”). Since the Annual Review’s inception in 2013, BAC/BIAC continuously updated foreign colleagues about the latest development of dispute resolution in China, notably by publishing the English version of the Annual Review and holding its signature event i.e., Annual Summit on Dispute Resolution in China over the past seven years. Over the years, BAC/BIAC’s Annual Review series has been increasingly recognised across the globe, as the guidebook for dispute resolution in China, and a window for the international community to learn about China’s arbitration developments. At domestic level, the project goes hand in hand with the internationalisation of the nation’s burgeoning dispute resolution industry.AuthorGuo Cai
On 19 November 2020, the FIFA Football Stakeholders Committee (FSC) endorsed reforms to the Regulations on the Status and Transfer of Players (RSTP) which sought to afford greater protection to female players and football coaches. These reforms were subject to the final approval of the FIFA Council.
On 4 December 2020, the FIFA Council approved these reforms, along with other important changes to the RSTP and the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (Procedural Rules). On 14 December 2020, FIFA issued a circular notifying these changes to all member associations, confirming that they would take effect from 1 January 2020.
This article provides an overview of the changes and their likely impact, examining:
- Specific rules to protect professional female players;
- The new regulatory framework for coaches;
- The new exception for the international transfer of minors in the context of Brexit
- Other changes to the RSTP and Procedural Rules that have taken effect from 1 January 2021.
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.
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
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:
- the importance of participant welfare and safeguarding in conducting disciplinary investigations;
- practical considerations in addressing participant welfare and safeguarding during disciplinary investigations in respect of:
- all participants;
- participants with identified physical and/or mental health issues;
- child participants; and
- the desirability of making provision for participant welfare and safeguarding in advance.
The authors’ prior article (available here) 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.
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. 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.
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