Review: World Sports Law Report Players Issues: Regulations and Contracts 2010

Unsurprisingly UEFA and FIFA figured heavily throughout the day, as is the norm for most Sports Law conferences. However, it was surprising to learn that the level of debt of European football clubs in 2009 had reached €568m. These levels of debt have meant that UEFA’s introduction of Financial Fair Play regulations have been met with much enthusiasm; with most people we have spoken to in football expressing their support of UEFA’s initiative. Brian Kennelly of Blackstone Chambers gave an absorbing presentation urging that if the regulations are not implemented fairly and proportionally there is, in his view, a risk that smaller lower league club may challenge the regulations on the grounds that they are being prevented from receiving funding from wealthy backers. This, in turn, would stop the clubs rising through the leagues, therefore blocking their opportunities to compete with ‘top league’ clubs. This is a very real concern for the smaller clubs and one will have to see what effect this will have on the competitiveness of the leagues.

Auréllien Hammelle of Metzner Acsscoiés, presentation provided insight into the events surrounding the PSG Nike case. Football continued to be the topic of the morning with Luca Ferrari of LCA law firm finishing the morning sessions with a presentation focused on how to construct players’ contracts in Italy.

Moving away from football, attention shifted to corruption in sport and the John Higgins case that shook snooker to its roots. I am sure most people have an opinion about the case, in particular whether or not the ban handed out to Higgins was too lenient. My own opinion changed slightly after listening to the presentation from David Douglas, the Chairman of the WPBSA Disciplinary Committee, who gave a refreshingly frank and honest insight into the experience of being involved at the centre of this investigation.

On the theme of corruption in sport Jim Sturman QC raised concerns over how evidence is gathered by the media and how expert witnesses are used by prosecutions in the criminal courts drawing on his recent experience in the infamous Kieran Fallon case.

After a quick refreshment interval we were presented with an update on the success of the Athlete Biological Passport by Michael Stow of UK Anti-Doping. The introduction of the biological passport has been a useful additional to the weapons in the fight against the use of performance-enhancing substances in sport. However, not everyone agrees that the anti-doping agencies can be left alone to decide what should be on the banned substance list or what should be a strict liability offense. Mike Morgan of Hammonds presented a stimulating presentation on the banned substance clenbuterol which can be used by athletes as a bronchodilator while increasing muscle and decreasing body fat. Clenbuterol has been used in farming to increase the size and leanness of the meat. Although this practice has been banned, it is widely believed that some countries continue to unofficially overlook the use of clenbuterol in farming. Morgan put forward a case for more research to be conducted into the levels of clenbuterol found in food and water and the impact this may have on athletes failing drugs tests due to the presence of clenbuterol in their system.

After a nice lunch, which gave the attendees a chance to network, we moved to the hot topic of the moment, FIFA’s proposal to remove the need for player agents to be licensed. Roberto Branco Martins of the European Football Agents Association (EFAA), a representative body for national agents associations in 15 European countries, was very concerned with the decision made by FIFA to remove the licensing system. On the other side of the argument, Paolo Lambardi of SportsTeam and former Head of Disciplinary & Governance at FIFA, felt this move to reduce the regulation of agents was not detrimental as some people think, instead being the start of further regulation with FIFA focusing on individual transactions via the new Transfer Matching System and the Financial Fair Play Regulations. The opinions remained divided.

The afternoon sessions are never the easiest for speakers, however Jacob Dean, Barrister from 5RB did his best to give a lighthearted practical guide on the protection of personal information. Dean covered misuse of private information and the benefits of the Super Injunction. It was a succinct presentation with a more detailed paper included within the pack which gave the attendees the gentle start into the afternoon session.

Phillip Hall of HCC Specialty - London, gave an overview of the FIFA stance on insurance for players on international duty. Hall questioned the rational of FIFA’s decision to distribute money to the national associations for them to insure players on international duty, which Hall suggests reduces the ability for most associations to acquire adequate cover to insure the top players. Hall would rather all the money is placed into one pot and see FIFA taking out one insurance policy for all players on international duty increasing the likelihood that clubs will be compensated fairly for their players who are injured on international duty. Hall’s view was supported by Peter Limbert of Hammonds who went on to state seven recent cases of players injured on international duty from Rob Van Persire to Michael Essien. Limbert thinks it is only a matter of time before clubs challenge the status quo in the courts.

Stephen Sampson discussed the training compensation in English football with particular reference to the Oliver Bernard case. It was a detailed presentation which finished with a critic of the English football system of compensation which awards damages on a detailed list of factors opposed to being aligned with the actual loss suffered. Adam Lewis QC of Blackstone Chambers then went on to review how compensation is calculated under FIFA’s regulations for breach of contract under Article 17 of the FIFA Regulations on the Status and Transfer of Players followed by a brief overview of the main cases in this area such as Ortega, Webster, Matuzalem, El-Hardy, Appiah, and Mutu.

The event was well organised and it was obvious that thought had been put into the structure of the day, however, it would have been enhanced if there were more experts from sports outside football to help provoke more discussions at the panel sessions. Overall this was a good event with distinguished speakers and lots of opportunities to network.