|
Is the Sports Industry ready to repel the pirates?
The turn of the millennium saw the music industry battling for survival as the likes of Napster and Grokster spearheaded unlicensed downloads of music files.
Technology has moved on and pirate downloading, or streaming, is no longer restricted to files that require downloading before they can be accessed. The current technology allows users to access files as they download them. This means that pirates can now stream live sporting content (of ever improving quality) and has led to hordes of websites, principally in weakly regulated territories such as China, springing up to illegally stream virtually all major sporting events.
The websites and the users accessing the stream, together, potentially, with the ISP’s hosting the pirate websites, are all copying the broadcast feed and consequently infringing copyright in most jurisdictions. However, identifying the perpetrators and enforcing proceedings against them is a difficult task.
The music industry had various representational bodies to centralise their response and to lobby governments on their behalf. The sports industry has traditionally been a very disparate group. It needs to come together and develop positive strategies such as developing licensed revenue models (in much the same way that itunes did for the Music industry) as well as coordinating policy for pursuing infringers.
THE FA Premier League are now leading the way by initiating meetings, in which onside law has participated, to establish the Sports’ Rights Owner Coalition. Hopefully this entity can now launch the first “broadside” against the pirates!
Banned Sponsors – Who’s next?
The implementation of the EU Tobacco Advertising Directive in July 2005 spelt the end of tobacco sponsorship in the UK.
During Bernie Ecclestone’s infamous meeting with Tony Blair, it’s claimed that suggestions of 50,000 job losses and the collapse of sports such as F1 in the UK may have been bandied around in opposition to the ban. As it turned out, the impact was nothing like as dramatic as some parties had anticipated. Nevertheless, smaller sports such as snooker were badly hit. The World Snooker Championship lost Embassy after a 30 year relationship and the Masters struggled to replace their title sponsor Benson & Hedges.
With tobacco off the agenda, lobbyists and regulators are turning their attention to other industries. Alcohol, gambling and junk food are all in the firing line.
The French have had a total ban on alcohol sponsorship of sport, through their Loi d’Envin, since the early 90s. Certain Scandinavian countries have followed suit but the UK has stood firm. However, the first in-roads in the UK were made by the regulatory body ofcom in January 2005 with a new ruling that campaigns should not imply a link between the consumption of alcohol and sexual success or attractiveness. This has already resulted in a number of billboard campaigns being withdrawn.
The Fast Food industry has been hauled in front of Parliamentary select committees to defend its actions and with a view to imposing curbs on their advertising, particularly when focused at youngsters. The gambling industry as a whole will be subject to comprehensive consolidated legislation under the new Gambling Act 2005.
Concerns over the impact that sponsorship has are of course legitimate. However, if the stable of available sponsors continues to dwindle, rights holders will find it increasingly difficult to secure adequate funding. The entrance of a new formidable sponsorship property, in the form of London 2012, will only exacerbate this problem as it diverts sponsorship budgets and sponsors from other properties.
Apple Computer “pips” Apple Corps
Apple Computer, the manufacturer of the iPod, has successfully defended a High Court action instigated by Apple Corps, the Beatles' record label. Apple Corps alleged that Apple Computer was in breach of a trademark agreement agreed by the parties in 1991 relating to the use of the "Apple" name and logo.
Under the 1991 agreement, it was agreed that Apple Corps may use the “Apple” name and logo on "creative works whose principal content is music". In return for the payment of US$ 26 million to Apple Corps, Apple Computer was allowed to use the name and logo on its "goods and services ... used to reproduce run, play or otherwise deliver such [musical] content". The agreement did however expressly prevent Apple Computer from distributing content on physical media such as CDs and tapes.
Technology has since moved on. Apple Corps took Apple Computer to court on the basis that the restrictions also applied to more recent inventions such as digital music files (e.g. iTunes) or devices used to play them (e.g. iPod). However, the Judge ruled against Apple Corps concluding that Apple Computer used the apple logo in association with the online store and not the music it sold, and therefore did not breach the agreement. Apple Corps are expected to appeal.
The case illustrates the difficulties that arise as advancing technology supersedes previously clearly defined product categories.
Club vs Country: the debate moves from the rugby pitch to the football field
While the club vs country debate is experiencing a temporary lull in rugby following the RFU’s settlement of its dispute with Premiership clubs over use of their players on the last Lions tour, the debate has been gathering pace in football.
Article 37 of the FIFA Regulations for the Status and Transfer of Players states that any club that releases a player for national representative matches shall not be entitled to financial compensation where the release dates for international duty are within permitted time limits set out in Article 36.
G14, a group of the most powerful football clubs in Europe, has recently joined proceedings with Belgian Club RSC Charleroi against FIFA arguing that Articles 36 and 37 are an abuse of a dominant market position. The claim originally arose from an injury to one of RSC Charleroi's players in a friendly international which ruled him out for the rest of the season.
The case has now been referred to the European Court of Justice to determine whether FIFA rules (i) obliging clubs to release players for international duty; (ii) precluding clubs from financial reward for such release; (iii) requiring insurance for such release to be a matter for the clubs; and (iv) requiring clubs to be bound by FIFA’s international calendar, are an abuse of EU competition law.
In a further twist, Manchester United argue that FIFA and UEFA should divert some of the large sums of money they make from TV rights and sponsorship deals for competitions such as the World Cup to the clubs who provide the players.
Whether in football, rugby or other sports, the Club vs Country debate has a long way still to run.
Shilton v Clemence
As the dust settles, Theo Walcott’s surprise World Cup call up illustrates how England’s World Cup squad and team is, of course, selected entirely at the manager’s discretion, just as international rugby and cricket teams are. However, selection decisions have always provoked controversy, even before the great Shilton v Clemence debate.
Almost all sports involve some form of selection process, including the Olympics and in individual representative sports, selection is often determined by a governing body and the relevant selection criteria are set out in its Rules and Regulations.
Selection for a representative team can bring financial rewards. Most golf equipment endorsements for example include bonus provisions for Ryder Cup selection. Following its postponement, the 2001 Ryder Cup was actually held in 2002, but the playing field remained the same for the event which remained branded and known as the “2001 Ryder Cup”. This was tough on the players who would have qualified for a 2002 berth, and indeed when the “2001” tournament was held, the chase for Ryder Cup points for 2003 should already have been underway.
Although no legal action followed the Ryder Cup decision, legal challenges do exist. As recently as the Winter Olympics earlier this year, the Court of Arbitration for Sport (CAS) ruled that although a Swiss snowboarder was one of six riders who had fulfilled the selection criteria, the Swiss use of subjective criteria to select the final five was justifiable. Conversely the Italians lost an appeal over another snowboarder as CAS held that their subjective selection criteria had been introduced too late, and that as a result their objective criteria must remain. A rider was “deselected” as a result of this CAS decision.
The exercise of discretion remains relevant, commonly used and difficult to challenge. Paradoxically, where discretion is exercised, disagreement and dispute will always arise.
Happy Birthday Mr President
Marilyn Monroe died more than 40 years ago, yet men are still fighting over her. Her image is worth millions of dollars a year, and the latest dispute is currently being fought out in the US Courts between the descendants of some of her photographers and the ultimate inheritor of her estate.
The image rights in question involve various photographs of the icon, including the famous picture of her white skirt being wafted over a grate. The copyright in the photographs is owned by the photographers and their descendants, but a conflict arises as the commercial use of her image was left to her acting coach.
The dispute hinges on whether Marilyn was deemed a resident of New York or California when she died. If she was a New Yorker, where she was living at the time, then it is reported that any publicity rights will have died with her. However if she is deemed a Californian, where she was born and died, then the estate is entitled to use of those rights for 70 years.
|
|
 |
|
|
onside law celebrated its first anniversary earlier this year and continues to grow at a dramatic pace building on its well publicised launch and plaudits from clients, the media and the Legal 500.
Since our last Newsletter highlights include:
onside in Court
onside law continues to advise the French Tennis Federation on various commercial and strategic matters including their defence of the high profile High Court claim and injunction brought by adidas against all four tennis Grand Slams and the International Tennis Federation.
onside on Court
onside law advises Ace Group on various commercial agreements. We also advise Quintus Group on numerous promotional and sanctioning issues including their new title sponsorship agreement with Black Rock, formerly Merrill Lynch, for the Seniors Tour Masters at the Albert Hall.
onside in the Dug Out
onside law advised both Sven Goran Eriksson and Tord Grip on their settlement agreements with the Football Association, members of George Burley’s coaching team at Hearts on compromise agreements and Alan Pardew on the renewal of his agreement with West Ham.
onside on the Tee
onside law has recently won golf clothing manufacturer Lyle & Scott as a new client. onside law also advises a new high profile golf tournament and we continue to advise Nick Faldo and his companies on all legal matters.
onside in the Medals
onside law advised Olympic Double Gold Medal hero Kelly Holmes on her agreement to participate in ITV’s Stars on Ice show and also on her arrangements with Sainsbury’s.
onside on the Pitch
Current onside law clients include England legend Teddy Sheringham, Premiership star Matthew Upson, Hungarian International goalkeeper Gabor Kiraly and the former Liverpool cult hero Titi Camara. onside law has also been advising the members of the 1966 World Cup winning team, through World Champions Limited, on various promotional, licensing and merchandising matters and Watford midfield player Jamie Hands on his exit from the club. We are also advising a leading fund manager on the raising of an offshore fund to invest in various aspects of the football industry.
onside as Sponsor
onside law is proud to be the Official Sports Law sponsors of Sheffield FC, recognized by FIFA as the world’s oldest football club.
onside on Track
onside law continues to advise all manner of motorsport clients including the world governing body of motorsport, the FIA, power boat racing company XS Racing, SRO (the owners and organsiers of the British GT Championship), Superbike racer Warwick Nowland and the organisers of a new single seater motorsport series. We are responsible for the legal affairs of the home of European Drag Racing (Santapod Raceway) and have advised on a sponsorship deal for FIA GT Championship driver Tim Mullens.
onside on Screen
onside law has been advising Fractal Films (t/a Camera CHY) on various film production arrangements involving Jodie Kidd and the worldwide distribution of its TV production, Supercar Run. We have also advised Paragon Sports Management on the production of a film relating to the life and times of Phil Tuffnell and two new companies in the film and TV world, Loca Location and Production Space, on their commercial terms and business set up issues.
onside behind the Lens
onside law has been advising world renowned sports photographer Jon Nash on his photography deals relating to the Volvo Ocean Race.
onside in Vogue
onside law advises Storm Model Management on endorsement and image rights matters in relation to a number of their clients, the UK franchisee of the French fashion label Antik Batik and model agency Models 1 on various matters.
onside on Sponsorship
onside law has advised Paddy Power on its sponsorship of a football tournament in connection with the World Cup as well as advising Double Quick Marketing, JAJ Communications and ACMS all on sponsorship consultancy matters. We also advised on Amex’s high profile “Red” Card initiative and on the adrenalin charged Drambuie Pursuit.
onside In-house
onside law continue to act as a quasi in-house commercial advisor to a number of high profile clients including National Express Group plc (various commercial arrangements with its franchise operators), Danka UK plc (deal with Vodafone), Whitehead Man (various large scale tenders), Xprint, 2techvisuals and a large US hedge fund (consultancy arrangements). We have recently acted for a recruitment company successfully settling an Application for a High Court Injunction.
onside on Song
onside law continue to advise Michael Storrs Music on various agreements including UK touring arrangements for Jose Carreras, Chinese tour agreements for Elaine Paige and various commercial matters for Bryn Terfel and Rolando Villazon. Onside law also advises Raw Group in relation to their clients including Jamie Callum.
onside cooks up a Storm
onside law advised Pitch PR client and Volvo Ocean Yacht Race team ABN Amro on its high profile ambassador contract with tv chef Gordon Ramsey. We have also advised Delectables Fine Foods on new investment into its fine foods business.
onside licensed for Brands
onside law has advised a sailing start up on a global licensing deal for the National Hydrographic Office and has recently won a new client with regard to licensing its various Character properties worldwide
|
|
|
 |
|
|
|
 |
|
|
|
Oliver Hunt contributed to February’s edition of Sport Business as a ticketing expert, has had an article on image rights published in the Times and has been appointed to the Board of Kidderminster Harriers FC as Company Secretary. Oliver got married in June!
Jamie Singer spoke on “Exploiting image rights from a third parties’ perspective” at the Institute of Directors on 27 March and on “Making the most out of Sports Sponsorship” at the Westbury Hotel on 18 May. Jamie also contributed a major article to the publication World Sports Law Review.
Simon Thorp will be speaking on the Club v Country central contract debate (G14 v FIFA/UEFA; Premier Rugby v. RFU) at a sport and law conference in October of this year. Simon continues to lead the Men’s first team at Queen’s Tennis Club, who are currently lying in a solid mid-table position!
Club House, the sports network co founded by onside law, held a successful Sport’s Quiz in February and a golf day on 9 May at The Richmond Golf Club. If you are interested in future Club House events please contact us.
Hunt’s Harriers Watch – Kidderminster Harriers are currently 15th in the Nationwide Conference. A season to forget.. |
|
|
|
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. |
