Sports Law 101
Sports law refers to the body of law that relates to the regulation of both professional and amateur sports. This area of law includes the regulation and control of relationships between teams, event promoters, governing bodies, sponsors, broadcasters, agents, players, participants and even fans. Sports law also encompasses the regulation of contracting, labour relations, the protection of intellectual property, risk management, negligence, liability, insurance, product liability and competition and antitrust laws.
In effect, the study of sports law serves as a lens through which the intersection of business, law and sports can be analyzed. Even though the law about courts and tribunals governing sport is not always phrased in legal terms, judges will refer to titles and concepts of private law. Such titles will include tort, contract , equity and property. Many of the issues that arise in the law of sports are very closely related to the law of agency, commercial law, media law, constitutional law and administrative law.
The proliferation of business and commercial interests in professional sports has led to an increasing regulation of these sectors, a trend that is reflected on both a national and international level. The European Union, for example, has recently issued a number of directives dealing with various aspects of sport. These can be seen as the first steps taken by the relevant bodies to attempt to cope with the more complex commercial and legal problems that are faced by the sports industry. Moreover, the increasing scale of sport such as the Olympics and FIFA World Cup has led to the creation of transnational, sports governing bodies which regulate the industry in all of its aspects.
Contracts and Agreements in Sport
Athlete Contracts and Agreements involve a wide range of considerations depending on the particular sport or league involved. Contracts usually refer to agreements between players and/or management of professional teams or organizations. They cover a wide variety of topics including duration, payments, performance incentives, minimum requirements, causes for dismissal, and dispute resolution mechanisms. For example, players and teams are bound by rules and regulations of governing bodies, such as the National Football League Players Association and the Players Associations of the National Hockey League, the National Basketball Association, and the Major League Baseball Players Association, with which they have collective bargaining agreements. The association members have a right to veto any new player contract that ultimately is executed. And, as discussed in other parts of these articles, disputes often get referred to arbitration for resolution. Disputes between leagues and player associations have also been subject to litigation in some cases.
Once players retire from professional leagues or organizations (and sometimes even before their careers end), they must address issues involving benefits from public and private pensions, the Players Retirement Security Plan, long-term disability, and Workers’ Compensation. They periodically consult with lawyers on issues arising from their participation in the game and in association with former employers.
Amateur athletes also have contracts with colleges and universities and professional sports teams. There is often considerable dispute about what the rights and obligations of colleges and universities, athletic departments and coaches are at what point and when those relationships begin and end.
Policies on Anti-Doping
The legal framework governing anti-doping is set out in the World Anti-Doping Code, which is an integral part of the overall sporting structures at both national and international levels and comprises, in addition to the International Standards, the mandatory provisions of the Code, which each NADO must sign up to. The Code came into effect on 1 January 2004 and was the first of its kind to establish global anti-doping standards for sport enforceable under a single code. It was revised in November 2015 and the revised Code came into effect on 1 January 2016. The Code sets out in detail the prohibited list, the list of banned substances, drug testing procedures and the rules governing sanctions. It provides that anyone submitted to anti-doping policies must disclose to the anti-doping organisation in charge of the case all therapeutic use exemptions that he has received for the use of drugs on the banned list. The anti-doping organisations are the organisations responsible for implementing anti-doping policies within their respective sports and countries or territories. They are responsible for enforcing the anti-doping rules of the Code and creating policies specific to their sport, whilst adhering to the mandatory provisions of the Code. There are over 600 NADOs worldwide, governed by the Code. There are sporting bodies, which have been involved in some high profile doping cases. Recurring issues in the media are the use of performance enhancing drugs (PEDs) and the enforcement of bans following doping offences. The World Anti-Doping Agency ("WADA") has led the way on the use of the newer types of drugs on the market. There have been issues with such new technology relating to detection practices, however, WADA is ‘always on the ball’ and reviews the banned substances list every year to address new trends or developments in drug use.
Sports-Related Intellectual Property
As Bradley (2017, p. 12) states, intellectual property rights play an important role in the business of sports since their presence creates economic value by providing a return on investment for those who create and publicize sports events. As described by Bradley (2017, p. 12), "intellectual property rights are the primary means whereby sports teams and administrators seek to generate additional revenue through branding, merchandising, sales and licensing of logos and images, broadcasting and gate receipts." The various areas of intellectual property rights in the sports world are trademarks, copyright, trade secrets, image rights, and patents (Bradley, 2017, p. 16). This section will provide a brief overview of these categories.
The trademarks that drive branding and merchandising in sports are logos, names, slogans, and the like. As Mather (2019, p. 250) notes, a trademark within the realm of sports is primarily used to differentiate one team or athlete from another by providing a protected unique "look and feel." It is not uncommon for a single professional sports club to utilize more than one trademark (Mather, 2019, p. 254).
Copyright protection can be granted to sports broadcasters for logos, jingles, mascot voices, and jingles and even for a single photograph (Mather, 2019, pp. 258-267). As Bradley (2017, p. 18) notes, copyright protection in sports enables and protects the creation of images and recognizable icons that receive wide public exposure or become associated with specific teams or events.
Professional athletes often sign lucrative endorsement deals that transfer their image rights to sponsors (Bradley, 2017, p. 21). Image rights refer to "the right of an individual to control the commercial exploitation of his identity—his image, his name, his likeness, his personality" (Mason, 2017, p. 27). Although image rights are governed by statutory law in some jurisdictions, in others they are derived from the broader legal concepts of privacy, intellectual property and consumer protection (Bradley, 2017, p. 22). For example, with regard to the right of publicity, courts have provided varied interpretations of the applicability of one-state doctrine to publicity rights and have reached different conclusions about the nature of publicity rights in different commercial contexts (Mason, 2017, p. 41). The United States generally allows an athlete’s publicity rights to be protected, though the provisions differ among the states (Bradley, 2017, p. 22).
Sports equipment such as baseball bats and football helmets can be patented (Bradley, 2017, p. 25). In the European Union specifically, sports equipment is subject to patentable design, such as golf balls (Bradley, 2017, p. 26).
The foregoing intellectual property rights, when used in the context of sports teams, athletes, or sporting events, can lead to increased revenues—either through merchandise sales or indirectly through increased ticket sales (Mason, 2017). As Bradley (2017, p. 16) notes, four key areas of intellectual property rights have a "significant role in generating revenue streams for sporting bodies whose profits are not driven solely from gate receipts."
Litigation and Dispute Resolution in Sport
Dispute resolution in sports has developed into a sophisticated system and process including dispute resolution provisions in laws and regulations, independent arbitration including arbitration databases; rules of arbitral institutions, sports federations rules and regulations including tribunals and courts of sports, principles of alternative dispute resolution including arbitration and mediation and special sports dispute resolution bodies including at the continental, regional and international level.
The unresolved disputes are directed to the relevant arbitral tribunal or independent specialized Court where the parties or their agents appear before one or more arbitrators or judges who listen to the speakings of the parties and pass considered decisions usually in the context of awards made after the hearing process. Sports law disputes are also solved through mediation where a qualified mediator assists all parties to achieve a mutually agreeable solution. Mediation is not binding which means that the mediator cannot propose a solution without the consent of the Parties but is to attempt to facilitate a resolution between the concerned parties . In order to refer the dispute to arbitration, a written petition must be made by the party initiating the complaint or claim in accordance with the specific set of rules, institutions or rules laid down by the arbitral tribunal to which the claim is introduced. It is important to note that for a sports arbitration tribunal to exercise its powers, the parties to the dispute must give their consent in writing. In essence, it is voluntary and it does not apply to disputes like victimization, inhuman and degrading treatment and fundamental human rights like the right to life, no matter the concert so obtained. The arbitral tribunal is independent, impartial and competent at examining and hearing the proceedings. The arbitrators ensure that the parties have the right to be treated with fairness, equality, equity and impartiality whilst prior independence is a crucial precondition to the office. In the process of a sports hearing, the arbitrators must take into account the prevailing circumstances in a bid to expedite to quickly decide the case, maintain confidentiality and avoid any expected costs and expenses second to delay.
Legal Challenges Surrounding Gender Equality
The legal issues in gender equality have gained increased attention from practitioners over the past several years, including approximately the last five/six years. This stems from the progress that has been made in this area over this period in specific instances at the collegiate level and a few at the professional level. The biggest development in the gender equality discussion in sports has been towards Title IX of the U.S. Education Amendments of 1972 (20 USCS § 1681 et seq; 86 Stat 373), which is a federal law that prohibits sexual discrimination in education programs and activities receiving federal funding. However, while Title IX has been the most visible on a national level and focused on at the various collegiate levels, there have been some other local equality issues, mainly in high school athletics.
In reviewing federal and state cases, it seems that Title IX has largely been upheld and recognized as the cornerstone statute for gender equality in the educational system in the context of sports, where even in one case where the Second Circuit Court of Appeals offered an exhaustive review of the legislative history, purpose, and interpretation of Title IX and determined that "athletic disparity was logically related tomens’ and womens’ competitive abilities (not simply gender)," and determined that such a legal challenge brought under Title IX was dismissed because it alleged disparate treatment, and not disparate impact, for which there was no evidence established in discovery.
However, in reviewing other federal and state rulings in the past few years, these courts may be more receptive to legal arguments of disparate impact. These cases have found that equality among athletes can be measured for such things as the frequency of contests an interscholastic athlete can participate in, and what they stated in one case, "a student’s ability to participate in extra-curricular activities is often considered a primary gauge of his or her social success," and that as a result, there may exist disparate impacts among male and female athletes.
The one recent case that has received the most attention in this area is at the professional level, in the United States WNBA, v. U.S. Women’s Soccer League, et al., where the Central District of California dismissed claims against the women’s professional soccer league’s in that they were seeking equal pay to their male counterparts in the USMNT.
Because of the mere fact that there are FMNP and FMWS teams that compete at such a high level, this will continue to be a very hot area of legal discussion and litigation.
Sports and Labor Employment
When considering how the law impacts sports, many people automatically think of the event or the athlete, but their is another consideration – that of employment. In how many professions do we see the employee earn a bonus based on his performance, the performance of his co-workers and even the performance of the business team? Consider a football coach who is "due" for a contract extension. Throughout the course of the season, it is not uncommon for sports reporters and analysts to comment on whether this coach will be retained, especially if the coach’s team has a chance to go to a Bowl game or make it to the Superbowl. An athlete’s contract with a team may also be negotiated during a season. Contracts are just the tip of the iceberg when considering employment law as it applies to the workplace of an athlete or coach.
Additionally, the concept of unions is prevalent. Teams have unions. Athletes have unions. Coaches have unions. Issues arise in negotiating collective bargaining agreements, strikes, lockouts and other disputes that involve labor relations. The professionalism of an athlete or coach can be protected by contracts, insurance, grievance proceedings and arbitration – but these protections fall short in the area of workers’ compensation. Injuries, which are common among athletes, are not always covered by workers’ compensation. The most example is that of professional wrestlers. Due to the nature in which these wrestlers obtain their income, they are generally independent contractors. When injured, the majority of wrestlers struggle to have coverage for what would be considered workers’ compensation injuries.
Labor disputes within teams and unions can also be vast. Although union laws vary throughout the nation, rules and regulations pertaining to overwhelming majority of these contracts are governed by federal law. Aspects of dispute resolution also fall under federal law.
Use of Modern Technology and Innovation in Sports Law
Advancements in technology are revolutionizing the field of Sports Law. A significant issue we are seeing is the use of data analytics in sports and how that may impact the legal responsibilities and duties of Team Directors and Officers. Additionally, the use of social media gives rise to issues regarding the management and treatment of athletes and other employees. Some team owners have had their love for their favorite teams shown to the public through their use of social media , but essentially that has opened the door for possible workplace lawsuits against the team owners. We are witnessing the evolution of the use of social media in relationship to workplace conduct and its reporting as well as the impact that has on the publication privilege.
The use of technology in sports law is continuing to evolve at a rapid rate. I will update you with any new developments.