Updates

Aljaz Bedene and ITF Nationality Qualification – He Fought the Law but the Law Won

The debate over sportsmen and women changing their nationality is nothing new. The selection of Prince Alexander Sergevich Oblensky on the wing for England’s Rugby Union side in 1936 raised many heckles. He may have been naturalised British but he was not a British subject.

Since then international federations have invested a great deal of time and effort in codifying what nationality means for their sport. In recent years they have had to balance the principles of European free movement legislation and economic globalisation with the protection of sporting integrity and tradition.

Some have been more successful than others. Handball’s nationality criteria came under scrutiny in 2015 as Qatar hosted the World Championships. Qatar did not have a long tradition of Handball excellence yet they made their way to the final of their home World Championships. Only four members of the team were actually born in Qatar, whereas the majority hailed from the heartlands of Handball in France and Spain. As for Taekwondo, Aaron Cook managed to compete in one Olympics for Great Britain and another for Moldova.

Whilst many have benefited from the way the nationality rules have been structured, the tennis player Aljaz Bedene certainly has not.

Aljaz Bedene

Bedene was born in Slovenia, but moved to the UK in 2008 to pursue his tennis career and train at centres of excellence in Hertfordshire. After a number of years, and as his ranking improved, he found that he could qualify to play for Great Britain and began the process of qualification in 2012. At that time, with a world ranking of around 45 he would have been ranked British Number 2 behind Andy Murray.

He had played junior tennis for Slovenia and in a handful of senior ties between 2010 and 2012. However, the rules allowed him to represent Great Britain provided he had a British passport, had lived in the country for two years and hadn’t played for another senior national team for three years.

Bedene, having already lived in Britain for well in excess of two years, applied for a British passport, cut ties with the Slovenian team and planned to qualify for selection for Great Britain in 2015, three years after he had last played for Slovenia.

Unfortunately, in October 2014 the ITF announced that nationality rules would change with effect from 1 January 2015 to a “one nation rule” – i.e. players could only represent one country at senior level. No transition period was put in place to grandfather those players already engaged in qualifying for second nations under the old rules. Applications for exemptions were entertained but Bedene’s application was rejected.

Last month, Sport Resolutions hosted an arbitration between the ITF on one hand and the LTA and Bedene on the other to determine whether the ITF had acted lawfully in (i) introducing the new nationality rule without formal transition provisions and (ii) refusing to grant Bedene an exemption given he had already entered the qualification process and cut ties with Slovenia in reliance on the old rules. In other words, he simply ran out of time to finish the process.

Charles Hollander QC was appointed arbitrator.

Sport Resolutions Arbitration

Mr Hollander acknowledged the principle of EU law that the courts should not concern themselves with rules of a purely sporting nature (Meca Medina v Commission of the European Communities (C-519/04 P) [2006] ECR I-6991). However, the ITF’s rule, which dictated “changes in nationality” and in particular sought to deter “cheque book nationalism”, where one country effectively bought talent from a poorer nation, was not of a “purely sporting nature” and was subject to the provisions of EU law.

In the opinion of Mr Hollander, Mr Bedene’s position was most unfortunate. He observed [25–26]: “I have no doubt that Mr Bedene’s desire to settle in the UK has been genuine and that he has a genuine desire to play for Great Britain. He has been in the unfortunate position that the ITF change in rules has come at precisely the wrong time for him. He cannot be characterised as one of those players who desire to adopt a ‘flag of convenience’.”

Unfortunately, the ITF could not be compelled to grant an exemption to Bedene. Furthermore, although for example, World Rugby (then the IRB) ensured a three-year transition period when they adopted a one nation rule to protect those already in the system, it was not unlawful for the ITF to simply rely on their discretion and refuse to grant exemptions to “right wrongs”.

Comment

Thus Bedene is left betwixt and between. He has cut all ties with Slovenia and offended the Slovenian Tennis Association but is denied the ability to finish his qualification process for Great Britain.

Every sport is entitled to determine their approach to nationality and defending the integrity of international competition is of course laudable. However, sport in the modern world is a professional business and comprises the livelihood of its participants. Therefore, sensitivity, proportionality and fairness need to be front of mind as governing bodies consider rule changes. Occasionally the impact of these rule changes on individuals can be lost as international congresses vote through paper after paper at their annual meetings.

In his conclusion, Mr Hollander QC suggested the possibility of a further application to the ITF for an exemption, commenting [80]: “I hope that the passage of time […] will be sufficient to persuade the ITF that Mr Bedene is a worthy candidate for an exemption”.

Time will tell, but we hope so too.

Jamie Singer of Onside Law advised the LTA and Aljaz Bedene on the Sport Resolutions Arbitration. Tom de la Mare QC of Blackstone Chambers acted as lead counsel supported by Maurice Holmes of Crown Office Chambers.The arbitral award is accessible via the following link:

https://www.sportresolutions.co.uk/uploads/related-documents/02_03_2017_Bedene_LTA_ITF_-_Award.pdf   

 

 

Staying Onside: Why Don’t Clubs Sack Players Who Go On Strike?

Welcome to our new video blog Staying Onside - where our specialist sports team takes a look at the biggest legal and business issues in the world of sport. This week we’re looking at player power in football!

Mark Clattenburg swaps the Premier League for Saudi Arabia

Mark Clattenburg announced yesterday that he has resigned from his position as a Premier League referee to take up a new role in the Middle East for the Saudi Arabian Football Federation (SAFF). Mr Clattenburg had been part of the “Select Group” of elite referees in England for a number of years and his departure marks the first high profile referee to leave the Premier League to officiate abroad. A couple of legal points in the wake of this announcement worth bearing in mind:

How is Mr Clattenburg’s resignation possible midway through the season?

The Premier League’s transfer window (or “registration period” as it is described in the FIFA Regulations) closed at the end of January and won’t open again now until 1 July. However, the restrictions only apply to the transfer of players. As has been the case since the transfer window was compulsorily introduced by FIFA for the 2002-2003 season, coaches and managers have been free to move outside of the transfer windows and referees unsurprisingly also fall outside these transfer restrictions. As a result, subject to Mr Clattenburg giving his employer the required notice under his employment contract, his move is able to take place immediately.

What sort of compensation can the Professional Game Match Officials Board expect?

Premier League referees are some of the highest paid referees in world football so what type of transaction fee might have been payable to secure Mr Clattenburg’s services? Actually, probably not that much. His employment contract was with the Professional Game Match Officials Board (PGMOB), a body which represents top-flight referees in England and provides match officials for all games in the Premier League, the Football League and FA Cup competitions. The referees on PGMOB’s “premier league panel” command a salary comprised of an annual retainer fee plus an additional match fee for each match officiated. As referees are not tied down to long term, multi-year contracts like football players, the likelihood is that Mr Clattenburg would have only been required to buy out the remainder of his annual retainer for the 2016-2017 season (and SAAF may have even agreed to pay this for him by way of a “golden hello” in his new employment contract). All things considered, not bad business for the services of a referee who officiated the Champions League Final and the European Championship Final last year, and with speculation in the media that the deal offered by SAFF to Mr Clattenburg may be worth as much as £500k a year tax free, not a bad deal for “Clatts” either!

As to what this means for how PGMOB contract with their high profile referees moving forwards and whether this move marks the beginning of a migration of European football’s top officials to richer climbs remains to be seen, but it is without doubt an interesting and landmark development in world football.

Corporate Lawyer needed – 4/5 PQE

Onside Law is a market-leading specialist sports law firm with a head office in London.

Our clients are some of the biggest names in sport, including many of the leading national and international governing bodies, broadcasters, clubs, sponsors, investors and high profile individuals.

Our practice is thriving and we are seeking to bolster our team by recruiting a lawyer to assist with a broad range of corporate (entrepreneurial) work as well as some commercial matters. Prior sports/media or private equity experience is helpful, but not essential. Ideally you will have between circa 4/5 years of PQE although all candidates with demonstrable experience to fulfill the role will be considered.

Applicants are asked to submit a cover letter and CV by email to zoe.fitt@onsidelaw.co.uk by no later than Friday, 13 January 2016.

Bite sized reminder: PSC Register

Since 6 April 2016 most UK private companies have been required to produce, keep and maintain a register of people with significant control over that company (a PSC register).

Common examples of an individual exercising significant control over a company are when that individual who holds, directly or indirectly, more than 25% of the shares or voting rights in the company. This is not exhaustive and the rules also contain other conditions that constitute significant control.

Also remember that in certain circumstances the ownership and control of an intermediate controller must be “looked through” in order to disclose the individual(s) holding the ultimate significant control.

A company must supply Companies House with the information on its PSC register at the same time as filing its Confirmation Statement (which has replaced the annual return).

Failure to produce a PSC register has been a criminal offence since 6 April 2016 which should be incentive enough to comply. More practically, if your annual filing date for the next Confirmation Statement is approaching, you need to ensure you have produced and maintained a PSC register so that the details can be supplied to Companies House.

A company’s PSC register cannot be empty. If the company knows or reasonably believes that there are none, this fact must be stated on the register. Where a company is taking reasonable steps to identify its PSCs but has not yet identified them, that fact should be entered on the PSC register.

New Dawn for Sports Governance

With £1 Billion invested in sport over the last four years and nearly 16 million adults playing sport, sport is ever more important to the fabric of British society. Against this background, the Government has launched its new Code for Sports Governance which sets mandatory requirements for receiving funding and government support. The code comes into effect in April 2017 and will require:

  • A dramatic increase in diversity on Boards both in terms of skills and experience and in particular in targeting 30% female representation;
  • Greater transparency with much more information to be made publicly available
  • Reform of traditional models and councils to ensure the Board of Directors is the ultimate decision maker for the governing body

Many smaller governing bodies have reformed in anticipation of the new Code and are well placed to be compliant.

However, some of the larger federations with traditional governance models, often hundreds of years old, are struggling. The FA for example has only one woman on its Board and an, arguably, out dated and undemocratic Council that still retains its role as the ultimate decision making body for the FA. Unless they reform, their multi million annual investment from Sport England is in jeopardy. Perhaps more importantly, given their wealth, would be the withdrawal of government support which could mean no more fast track visas for players and visiting teams, no more collaboration on bids for international tournaments and a host of other unintended consequences.

It is perhaps the less tangible non-financial government support that might persuade the “old guard” that modernising governance in accordance with the Government’s requirements is not meddling but simply good practice in the 21st Century.