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Listed events – time to move the goal posts?
The lack of any match day terrestrial coverage of England’s emphatic 4-1 win away in Croatia once again brought the debate on “listed events” out of Westminster and into the public domain. MPs and fans alike called for, at the very least, highlights to be made available on free-to-air TV. In this instance Setanta, the Irish broadcaster who owns the exclusive live rights to England’s away qualifiers, were unable to strike a deal with either the BBC or ITV in time for the non-subscribing public to witness Theo Walcott’s hat-trick on a same-day delayed basis.
We saw this topic discussed over the summer when the question was asked whether or not the European Football Championships held in Switzerland and Austria would be the final time that British fans enjoyed watching the entirety of this tournament on TV free of charge? The tournament currently enjoys the governmental protection of being a listed event, a ‘crown jewel’ in the international sports calendar which is deemed to be of such national importance that live coverage of the entire event must be made available to free-to-air channels.
UEFA questions why all 31 games at the ‘Euros’, which this year featured none of the home nations, must be shown on terrestrial TV in the UK. They have put forward their case to the European Union questioning the national importance in Britain of games such as Austria v Poland (as opposed to Croatia v England in a crucial World Cup qualifier). They claim that their inability to market television rights to pay TV broadcasters, like Setanta and BSkyB, infringes its property rights and is an unfair restriction resulting in the loss of more lucrative rights deals. Will the UK be forced to follow the way of other European countries such as Germany, who have split the ‘Euros’ into two categories with the opening game, semi-finals, final and all games involving the national team remaining protected as listed events while all other games are made available to all commercial broadcasters. With the qualifiers already sold to the highest bidder, will the World Cup itself be next?
ATP survives trial by jury
In early 2007 the ATP attempted to streamline its tennis calendar and downgraded the Hamburg event from its Masters Series status (the tier just below the four Grand Slams).
The German Tennis Federation took umbrage and filed an anti-trust claim alleging anti competitive activities against the ATP and claiming damages of US$ 79.4 million. The case questioned the fundamental right of the ATP to run men’s tennis and given the size of the claim, threatened its very existence. It was heard by a jury in Delaware in August who decided the ATP had not acted illegally and recognized the ATP’s right to control its calendar and events. Following the vindication of its position the ATP announced further details of the eight “1000” events that will replace the Masters series and be mandatory for all players. “1000” relates to the ranking points on offer for the winner.
The squeeze on sponsorship revenue
West Bromwich Albion versus West Ham United on 13 September 2008 took us back to the good old days of football: unbranded shirts! The credit crunch is hitting sport. With the collapse of travel company XL, West Ham find themselves without a shirt sponsor and newly promoted West Brom were unable to secure a shirt sponsor on their return to the Premier League. Manchester United came close to a similar predicament until the US Federal Reserve stepped in to save AIG. As ever, Marketing budgets are often the first victims of an economic slowdown. Perhaps all clubs should take a more philanthropic approach to shirt designs like Aston Villa and Barcelona who proudly promote Acorn Children’s Hospice and Unicef respectively? Barcelona’s commitment of $1.9 million dollars per year over five years to fund UNICEF programmes was recognised with the Spirit of Sport Award at last year’s Laureus Sports Awards. While they hope that football can help change the world it seems that the financial world is not returning the favour.
As well as football, Snooker seems to be experiencing this squeeze at first hand. 888.Com and Saga have both terminated their major sponsorships of the World Championships and the Wembley Masters respectively, leaving a shortfall in prize money of around £1.5 million.
This squeeze on budgets comes only a few years after European legislation cut off the sport’s most lucrative sponsorship industry, namely tobacco. Now legislators are turning their attention to other industries such as alcohol and snack foods, currently regulated with “a light touch” by the Advertising Standards Association and self regulatory bodies, but not by legislation. Various select committees in the UK and Europe continue to review the situation, but could sports such as snooker survive further limitations on their ability to generate sponsorship fees?
Franchise football
Wimbledon FC’s move to Milton Keynes, the increase of foreign ownership of English football clubs, and financial hardship, has sparked a mini revolution in lower league football, where a new wave of super-powers, including the likes of AFC Wimbledon, FC United and AFC Liverpool are charging up the leagues. Elsewhere, FC Halifax has emerged from the ashes of Halifax Town, and whilst these clubs are new legal entities with their own colours, logos and names, Gravesend & Northfleet FC simply changed its name and owners and was rebranded Ebbsfleet United.
Which begs the question, what is a football club’s identity - the ground, players, fans, owners or the crest? Romania may have the answer. A lower league club, known as “Poli Timisoara”, was bought a decade ago and moved to Bucharest, retaining its original name and colours. AEK Bucharest moved the other way, but crucially it rebranded itself as “Politechnica AEK Timisoara”, mimicking the original Poli’s crest and colours. In essence there were two Poli Timisoaras, playing under the same or very similar colours and crests - the original one now in Bucharest in the lower leagues and the new top flight club based in the town. The old Poli sued the new Poli for breach of copyright and unlawfully staking a claim to its history. As a result, the new Poli changed its name to FC Timisoara, renounced its rights to the original Poli’s honours and added black to the purple colours they shared. On appeal, the Court of Arbitration for Sport held that insufficient black had been added and the new Poli, or FC Timisoara as they are now known, were docked 6 points. It is unlikely to end there.
Contrary to what might be morally right, and contrary to what the Poli locals may deem fair, a rule of law has to exist so as to avoid anarchy. In this case, intellectual property law trumped any moral rights the new Poli or the locals may have claimed with respect to the town’s football club. Despite having uprooted the town’s club to another city, the owners control the intellectual property, and with it, it would seem, they retain its identity.
Break-away leagues and the banning of players
References to “break-away leagues” and “the banning of players” have been in the media with increasing frequency. A break-away league is a league that has been set-up without the sanction of the “official” governing body for that sport. Whilst governing bodies may not be able to prevent the operation of such leagues, they may seek to prevent clubs and/or players who play in break-away leagues from participating in sanctioned events. For example, the organisers of the Twenty20 Champions League in India, a competition to be played out by the winners of the domestic 20/20 leagues in India, England, Australia and South Africa, have banned players who play in the rebel Indian Cricket League, and teams who field such players, from taking part. For this reason, Kent, who qualified to play, have been replaced by a team from Pakistan.
Governing bodies or event owners seeking to impose such bans, whether on players and/or their clubs, need to be aware of the restraint of trade doctrine. This doctrine provides that any provision restricting the freedom of an individual, or organisation, to do as they or it likes will be void unless it protects legitimate business interests and is not contrary to public interest.
In light of the Indian Premier League (“IPL”) being a sanctioned ICC event, it will be interesting to see whether any governing body or event owner, seeks to take action against any players who by playing in the IPL, are unable to offer their services to their country or club. Being a sanctioned event, the restraint of trade doctrine may be construed more strongly against the governing body or event owner seeking to impose such restriction.
Fashion labels seek protection
Intellectual property protection was a dominant trend in footwear during Spring/Summer 2008. The season kicked off with Moda In Pelle agreeing to pay luxury footwear brand Gina £100,000 damages plus legal costs of £150,000 after Gina accused it of copying its designs. A strong stance on international brand protection was seen at Gucci who complained that its interlocking GG logo was being used on ladies’ sandals made by a Chinese firm, Senda. The Chinese shoemaker was ordered to pay £13,000 in compensation. Jimmy Choo showed how certain parts of shoes can attract protection as it took action against footwear retailer Office, alleging that Office had copied its metallic framed heel design. Office claimed this was an innocent mistake as the shoe had been bought from a third party supplier, however they still paid £7,500 in compensation.
Other brands who have been taking measures to protect their brands are handbag and accessories brand, Radley, who accused department store group Bhs of copying its Scottie dog logo; and Arrogant Cat, who claimed that asos.com infringed its design right in a pair of shorts.
With more and more high-street retailers embroiling in “catwalk copyism”, fashion labels are making it very clear that challenges of design right and copyright breaches are bang on trend.
Contact
For
further information on onside law please visit our
website at www.onsidelaw.co.uk or contact any of the partners at oliver.hunt@onsidelaw.co.uk;jamie.singer@onsidelaw.co.uk or simon.thorp@onsidelaw.co.uk. |
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onside law celebrated its third anniversary in February and continues to grow at a dramatic pace, with new additions to the team and an ever-expanding client list with several notable appointments.
onside law welcomes:
Compton Hellyer – Compton has been appointed as onside law’s Non-Executive Chairman. Having built Sporting Index into a major business, Compton now sits as a non-executive on various company boards including Opta and Epsom Racecourse. Compton brings vast commercial expertise to the business as well as a wealth of contacts in the sporting world.
Leo Avery – Leo joins as a solicitor having qualified at leading international firm Ashurst where he trained in the commercial, intellectual property and corporate departments.
Shenal Shah – Shenal joins as a paralegal after completing her LPC at BPP Law School and working in Human Resources at KPMG.
Sarah Scarratt – Sarah joins us as office manager having previously run a recruitment business and after working at IMG and in the golf industry.
Legal Directories:
As well as continuing to be recommended in the Sports sections of the legal directories, onside law is a new entry in the Legal 500 Media & Entertainment section: “Onside law combine ‘sound commercial advice’ with expertise in live output including associated rights and intellectual and image rights”. Oliver Hunt (Legal 500) and Jamie Singer (Chambers Directory) are listed as recommended experts in sport.
Since our last Newsletter highlights include:
onside into bat for ECB
onside law was retained earlier this summer by the England and Wales Cricket Board (ECB) to provide advice in relation to its legal affairs. David Collier, ECB Chief Executive, commented at the time of our appointment: “We are entering a very busy period in the development of the ECB’s commercial programme and are very pleased to have the specialist lawyers at Onside Law working alongside us”.
We have been heavily involved in the reorganisation of England’s international and domestic Twenty20 programmes, advising the ECB in relation to its deal with Sir Allen Stanford (including in relation to the “20/20 for 20” matches in Antigua, the first of which takes place on 1 November), as well as advising on the England player central contracts, 2009 Ashes issues and the 2009 ICC Twenty20 World Cup. Following the announcement of the Stanford deal, David Collier said: ““We have been greatly impressed by the quality of Onside Law’s legal advice and their knowledge of the sports industry. Their experience of high-value commercial deals in the sports sector, combined with their in-depth knowledge of cricket, has been invaluable in enabling the ECB to complete this landmark deal””.
onside scrums down
onside law has been appointed to the RFU’s panel of legal advisors. Onside client Andy Gomarsall starred as England reached the Rugby World Cup final in Paris last October. We have also been advising several Premiership players on their departures from clubs including Harlequins and Sale.
onside’s Grand Slam
onside law is advising the International Tennis Federation and the Grand Slam Committee on preparing uniform rules to deal with match fixing, betting and corruption in tennis. We assisted Sony Ericsson on their landmark off-court sponsorship contract with Maria Sharapova who became the company’s first global brand ambassador. We also advised on HSBC’s Champions Campaign at the Wimbledon Championships.
onside on pole
onside law continues to advise many of the national race team companies in the A1GP World Cup of Motorsport Series. Team Switzerland won the third season and the new car for the 2008/09 season will be powered by Ferrari, who have entered into a 6 year deal with A1GP. We also advised Superleague Formula (a revolutionary new concept combining motor racing and football) on various commercial agreements including numerous broadcast licenses prior to its launch event at Donington.
onside tees up
onside law client Justin Rose won the 2007 Order of Merit Title and finished the season as Europe’s number 1 golfer. We advised European Ryder Cup captain, Nick Faldo, on his recent deals with Citigroup and Taylormade as well as with respect to the Ryder Cup. onside law continues to advise Srixon in light of its merger with Cleveland Golf in respect of the sales channels for these brands in Europe.
onside in print
onside law has been advising Sport Magazine on its legal requirements and advised Peter Phillips and his bride Autumn Kelly on their arrangements with Hello! magazine.
onside inside
onside law provided general legal advice to dunnhumby, global leaders in “relevance marketing” and the company behind the Tesco Clubcard. Partner Oli Hunt was seconded to dunnhumby on a part-time basis throughout the summer.
onside in commerce
onside law advised Danka Business Systems on the sale of its European business to Ricoh and has continued to advise the transferring entity post-completion. We continue to advise Whitehead Mann on various consultancy agreements and exploitation of intellectual property. We also continue to advise National Express on a wide range of matters including new business ventures and supplier arrangements. We have been advising 2tech on various deals with manufacturers in the US and Tinies Childcare on their acquisition of BUPA's emergency childcare business.
onside on the box
onside law still advises Heston Blumenthal and his Fat Duck restaurant on all legal issues including his various television ventures, “Big Chef saves Little Chef” and “Feast”. onside law advise Gok Wan on all his commercial opportunities including arrangements with Channel 4 and for “How to look good naked”.
onside in vogue
onside continues to advise top model agencies Storm, Premier and Independent on their legal issues including high profile campaigns for models ranging from Lily Cole and Erin O’Connor to Sophie Ellis Bextor. |
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Oliver Hunt remains on the board of Kidderminster Harriers Football Club and recently presented to Elite Junior golfers on the legal pitfalls of turning pro. Oliver is recommended as a sports lawyer in Legal 500 and was recently quoted by Bloomberg on football matters.
Jamie Singer will be speaking on “combating corruption in sport” at Management Forum’s International Sports Law Conference at the Institute of Directors in London on 2 December. He has published articles in Sport Business Magazine and World Sports Law Review and is listed as a “leading expert in his field” in the Chambers Legal Directory.
Simon Thorp spoke at the seventh annual Sport and the Law Conference in May, focusing on current regulatory issues in sport including FIFA’s proposed 6+5 rule and restraint of trade provisions imposed by governing bodies/clubs on their players. Simon continues to publish articles for various legal journals including World Sports Law Report on break-away leagues.
Chris Walsh will be speaking on “Player Central Contracts” at Management Forum’s International Sports Law Conference at the Institute of Directors in London on 2 December. The World Sports Report has recently published an article by Chris which analyses the “sporting franchises” phenomenon.
Hunt’s Harriers Watch – Kidderminster Harriers finished thirteenth in the Conference. Sadly no repeat visit to Wembley as they were knocked out of the FA Trophy in the second round.
onside’s baby boom
onside law continues to grow off the pitch too, with new additions to the Singer, Thorp and Hunt households since the last newsletter. All new squad members are doing well. |
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