The Sports Law Review: United Kingdom - England & Wales

Organisation of sports clubs and sports governing bodies

i Organisational form

The exact legal structure that a sports entity adopts will broadly depend on its purpose and mode of operation. The legal structures such entities usually adopt are one of the following:

  1. private and public companies limited by shares;
  2. companies limited by guarantee;
  3. charitable or community interest vehicles; or
  4. unincorporated associations.

A company limited by shares is likely to be the preferred format for sports clubs engaged in commercial enterprise seeking to generate profit for shareholders or raising finance from external investors.

A company limited by guarantee is often the legal form adopted by governing bodies. While governing bodies might undertake activities which generate profits, those profits are normally reinvested by the governing body in its particular sport and therefore such entities have no need to distribute profits using share capital.

ii Corporate governance

While there are no existing governance laws that apply exclusively to sports organisations, general guidance is available to provide sports bodies with suggested elements for good governance that they are encouraged to follow. For example, the Sport and Recreation Alliance produced a Voluntary Code of Good Governance, setting out seven principles of good governance that it recommends that sports bodies implement to perform their role effectively. It was announced in July 2020 that the Code is undergoing a general review, with particular focus on good governance and equality, diversity and inclusion in sport.2

Similarly, certain governance requirements are set out by public funding bodies (such as UK Sport and Sport England, who have established a Code for Sports Governance relating to levels of transparency, accountability and financial integrity)3 that are prerequisites to receiving funding or for validly participating in a sporting competition. As an example, the three main governing bodies in English football (the FA, Premier League and EFL) now administer an Owners' and Directors' test to ensure that individuals seeking to take control of a football club meet required standards to demonstrate their adequacy and suitability to run such a club. This has become a significant aspect of modern football and is fraught with controversy (particularly in light of more recent ownership issues arising for clubs such as Bury FC, who no longer exist as a football club, and Wigan Athletic FC, each of whom has faced punitive sanctions from the EFL as a result of poor ownership and mismanagement). Similarly, the takeover bid by a Saudi Arabian-backed consortium for Newcastle United recently fell through after the proposed £300-million deal had come under significant scrutiny under the Owners' and Directors' test,4 largely in light of Saudi Arabia's human rights record and its handling of TV piracy. The process suffered a significant delay as a consequence of the Premier League failing to establish the exact links between PIF (the prospective buyers) and the Saudi Arabian government, particularly in light of the country's involvement in extensive piracy of broadcast rights through illegal streaming services.

Aside from the above guidance and regulatory requirements, sports bodies are required to comply with the general legal framework that govern their specific legal form (e.g., the Companies Act 2006 (CA 2006) in the case of private or public limited companies).

iii Corporate liability

There are no specific legislative provisions in place that apply solely to officers of sports clubs or governing bodies. However, directors of sports bodies (provided such bodies are structured as companies) do remain subject to the general directors' duties set out in the CA 2006 – these include:

  1. acting within their powers (Section 171);
  2. promoting the success of the company for the benefit of its members as a whole (Section 172);
  3. exercising independent judgment (Section 173);
  4. exercising reasonable care, skill and diligence (Section 174);
  5. avoiding conflicts of interest (Section 175);
  6. not accepting benefits from third parties (Section 176); and
  7. declaring interests in proposed transactions or arrangements (Section 177).

Such directors will also be subject to further legislation governing companies in the UK (e.g., the Insolvency Act 1986) and will need to comply with this accordingly. Failure by directors to abide by such statutory provisions may result in a director being held personally liable for a breach of their obligations as a director of the company.

Existing rules within football in particular have caused controversy in respect of insolvency issues in recent years. For example, the Football Creditors Rule, set out in the EFL's articles of association,5 provides that, where an insolvent club cannot afford to pay each of its creditors in full, 'football creditors' (including players and other football clubs) should receive priority in respect of outstanding payments owed to them by the club. In effect, this means that the UK tax authorities (HMRC) do not receive preferential treatment and are treated as an ordinary unsecured creditor. Accordingly, this has led to a series of disputes brought by HMRC against football clubs and the EFL itself, with the 2012 claim against the latter being brought on the basis that the prioritisation of football creditors breached the fundamental insolvency principle that any unsecured creditors should be paid on a proportionate, pari passu basis.6 This claim was rejected as there was deemed to be no deliberate intention by the EFL to evade insolvency law.

The dispute resolution system

i Access to courts

Parties may choose to resolve their disputes either before national courts or before an arbitral tribunal. Where the parties have not agreed to arbitrate, national courts are competent. However, the majority of sporting governing bodies in England and Wales have internal dispute resolution mechanisms, which usually need to be exhausted before external courts or tribunals can be competent.

However, national courts may still have jurisdiction even where an agreement to arbitrate has been concluded – albeit to a limited extent. Indeed, a party may appeal a governing body's disciplinary sanction before domestic courts, who will take on a supervisory role and subject governing bodies to a standard equivalent to that applied by the courts to public bodies.7 Domestic courts will ensure that:

  1. the relevant regulatory or contractual framework gave the governing body the authority and power to act as it did;
  2. the governing body did not abuse its power;
  3. the decision reached is rational; and
  4. the governing body acted fairly as regards the process by which a decision was taken (i.e., in accordance with the principles of natural justice).

ii Sports arbitration

Under English Law, the Arbitration Act 1996 authorises parties to resolve their disputes through arbitration, provided that all parties agree in writing. These disputes tend to be more beneficial to parties owing to the speed, confidentiality and cost of the process. However, exceptions such as criminal law, employee rights to enforce statutory rights in the Employment Tribunal or insolvency proceedings must be resolved through litigation before domestic courts.

In practice, arbitration provisions are usually contained in the rules of governing bodies (e.g., the FA, the Premier League, the EFL), thereby forcing participants to engage in arbitration. Similarly, athletes' employment or representation agreements often require parties to submit disputes to arbitration. If a domestic court is seized with a claim in breach of an arbitration agreement, it will stay its proceedings in deference to the arbitration agreement.8

While an arbitral award may be challenged before domestic courts, it is limited to the following:

  1. The tribunal was not competent to rule on the dispute.9
  2. There is a serious irregularity affecting the tribunal, the proceedings or the award that has or will cause some injustice.10
  3. The appeal is on a question of law arising out of the award (although this ground for appeal may be excluded in the arbitration agreement.11

Where there are no specific arbitration rules relating to a particular governing body, parties may adopt those of Sport Resolutions (UK), an independent dispute resolution service that provides sport-specific ADR services. The Court of Arbitration for Sport may also be competent depending on the requirements of the relevant national or international governing body.

iii Enforceability

Sports governing bodies may enforce sporting or financial sanctions themselves through provisions of their own rules. However, a party may also use enforcement powers available in litigation procedures and in the Arbitration Act 1996 to enforce decisions in their favour.

Organisation of sports events

i Relationship between organiser and spectator

Despite the dramatic increase in the value of sports events, it remains the case that there is no proprietary right in an event12 itself. Indeed, as an event cannot be 'owned' in the ordinary sense of the word under English law, there is no recognition of a tort of unfair competition that would protect organisers from individuals seeing and describing an event. Hence sports events remain principally protected by the laws of property controlling access to a venue and a variety of contracts controlling rights around the event.

Organisers may protect their interests through the issuance of tickets and strict enforcement of their terms. While these terms may include restrictions (such as limits on sharing footage of the event or the resale of tickets), any condition must be made clear to the spectator at the time of purchase and comply with consumer protection laws.13 Organisers may restrict access or evict individuals who breach the terms of the ticket, while also suing for breach of contract, trespass or both.

ii Relationship between organiser and athletes or clubs

In most sports across England and Wales, a pyramid structure is implemented with a national governing body (i.e., the FA) at the top and athletes or clubs connected lower down. Where the governing body is also the competition organiser, the relationship with athletes or clubs is regulated through the governing body's participation agreement or rule book.

Where the competition organiser is a distinct entity from the governing body (as the Premier League or Premiership Rugby), then a shareholder model may be used to allow participants to engage in collective decision-making regarding the rules of the competition and any commercial arrangements between competitors.

iii Liability of the organiser

Event organisers may be liable from a civil perspective on the grounds of negligence if they breach a duty of care that they owe. Although it is frequent for event organisers to limit their liability contractually, for instance in participation agreements or ticket terms, certain elements cannot be excluded. Indeed, the common law principle of duty of care requires event organisers to take reasonable care in preventing a person's injury, for instance by providing appropriate medical equipment within sufficient proximity of the event location.14

The civil liability of event organisers may also arise out of the Occupiers' Liability Acts of 1957 and 1984. The 1957 Act provides for the duty owed by an occupier (a party who exercises an element of control over the premises) 'to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises',15 while the 1984 Act provides a lesser protection towards trespassers.

Additionally, the Safety of Sports Grounds Act 1975 provides that, in relation to stadiums with a capacity of over 10,000 or over 5,000 for the Premier League and EFL,16 it is a criminal offence to admit spectators into such sports grounds in the absence of a safety certificate from local authorities.

iv Liability of the athletes

Athletes' liability towards spectators is limited as spectators are considered to have consented to a risk of reasonably foreseeable events. While some incidents are clearly unforeseeable, it is rare for these cases to reach the courts as athletes or clubs tend to handle them directly with the concerned spectators.

Regarding other athletes, liability may arise out of assault or negligence. The former requires assault or battery to be intentional, which is a strict test to pass and has reduced successful claims. On the other hand, while negligence requires 'something more serious' than a mere sporting error,17 a vacuum still exists and cases remain very fact-specific in light of the specificity of sport. In terms of liability, an athlete's employer may be liable for damages through vicarious liability although this would require a close connection between the athlete's tort and their employment.18

v Liability of the spectators

Following a surge in hooliganism in the 1970s and 1980s, the aim of the Football Spectators Act 1989 was to keep sporting events safe from violence and disorder. The Act gives the courts the power to impose a banning order against specific supporters and restrict them from attending football matches nationally and internationally to help prevent violence or disorder in connection with any regulated football matches.

vi Riot prevention

As mentioned above, legislation was passed to address hooliganism and rioting. Legislation made it illegal to stand at specific types of football matches and made it a criminal offence to dispose of tickets to football matches without authorisation.19

Further, clubs are required to fund special police services for their home matches. The police can only charge clubs for the cost associated with operations being conducted inside the stadium, rather than directly outside the club's premises.20 Several judges have expressed concern over public funds being spent in relation to safeguarding an event that is held on a commercial basis. It is, however, unclear whether Parliament will change the law to require clubs to pay for police services in the immediate vicinity of their home stadiums.

Commercialisation of sports events

i Types of and ownership in rights

For sports organisations, there are various rights available that can be exploited for commercial benefit – in particular, sponsorship, broadcasting, merchandising, sports data, hospitality, and ticketing possess significant inherent revenue-generating potential.

In relation to sponsorship, there is scope for both sponsor and rightsholder to benefit from the popularity and viewership of sport. Sponsors traditionally look to promote their brand in the hope of enhancing goodwill through association with the rightsholder. In recent years, sponsors have increasingly looked to access and exploit rightsholder data to support their businesses. As for sports rightsholders, they can market the sponsorship rights attached to a sport event or entity in exchange for sponsor investment. The structure of this will usually be a straightforward contractual relationship between sponsor and rightsholder.

Broadcasting rights similarly offer an opportunity for broadcasters to make significant profits as a result of consumer subscriptions or viewership and advertising, while sports rightsholders will attract significant financial investment from broadcasters in return for packages of rights that permit the broadcasting of the relevant sport, usually on an exclusive basis. For example, the FA Premier League collectively sold packages of rights to broadcasters in 2018 for the three seasons 2019/20 to 2021/22, with BT Sport purchasing the rights to 52 PL fixtures, Sky Sports acquiring 128 fixtures and Amazon obtaining 20 fixtures21 through the Premier League's sales process.

The sports event organiser typically grants a licence to the broadcaster to access the venue to create the broadcast. The copyright in the images of the sporting broadcast will be owned by the producer or director and similarly by the producer in the sound recordings of the broadcast.22 It is therefore standard for the ownership of the copyright to be assigned by the broadcaster to the sport event organiser, and in turn for the organiser to license the broadcasting rights back to the broadcaster to be broadcast in a specific territory.

The Premier League have encountered resistance to their tendering process for the purchase of the broadcasting rights to the Premier League fixtures, both in 2006 when the Premier League was pushed into making revisions to the process by the European Commission23 and in 2014 when Ofcom launched an investigation into how the Premier League sells its broadcasting rights (albeit Ofcom then dropped their investigation in 2016)24, both largely on anticompetitive grounds. Specifically, the Premier League's rights packages were preliminarily viewed to be foreclosing access to the market and limiting the choice for consumers, while the joint selling arrangements of such rights were viewed as amounting to illegal price-fixing in breach of Article 81 of the EC Treaty.25 The limited number of broadcasters that acquired broadcasting rights to Premier League fixtures, as well as the significant inherent value attached to such rights, has thus attracted significant scrutiny from Ofcom in recent years.

ii Rights protection

The main sports-related rights fall within the protection of a framework comprising image rights, trademarks and copyright or database rights.

Image rights

In the UK, there is no existing legal recognition for image rights, save for tax purposes.26 Rather, an individual's image rights can be protected by relying on various IP rights, such as trade marks and copyright and the common law doctrines of confidentiality and of passing off. Passing off protects an individual's image rights by preventing third parties from selling their own goods or services using the relevant individual's image rights. The individual must demonstrate: existing goodwill in the offending goods or services; that the offending party has made a misrepresentation in respect of a link between the individual and the relevant goods or services, and this has lead to confusion of either existing or potential customers; and damage or the likelihood of damage as a result of the offending party's misrepresentation.27

There is also no specific right of privacy afforded to individuals.28 Should a sportsperson be photographed in circumstances that were intended to be private,29 provided the photograph is not then being used in a fair and lawful way,30 then the sportsperson can look to bring actions for breach of confidence, misuse of private information or infringements under the Data Protection Act 2018 (DPA).31

Ensuring that the relevant sportsperson's image, as well as the accompanying rights attached to their image, are defined clearly, and including appropriate provisions within any player transfer agreement involving the individual and a sports club, will aid in clarifying the position on their image rights and avoid future uncertainty.32

Trademarks

A rightsholder may wish to register a UK trademark (a badge or indication of the trade origin of the relevant goods or services) with the UK Intellectual Property Office to obtain an exclusive right in the mark,33 whether this is a word, logo or other brand indicator. Obtaining a trademark registration permits the owner of the mark to take action against any third party that attempts to use the trademark without the owner's consent.34

The restrictions surrounding what can be registered as a trademark are regularly examined in a sporting context; in September 2019, Liverpool FC failed to obtain a trade mark registration for the word 'LIVERPOOL'35 on the basis that it possessed such vast geographical significance that Liverpool FC were not permitted to monopolise the word. Conversely, Chelsea FC, Southampton FC and Tottenham Hotspur FC successfully registered geographical place names as trademarks, reflecting the often fine margins between what is acceptable for registration and what will be rejected under the Trade Marks Act 1994 (TMA).

The advantages of trademark registrations for sports entities and individuals are evident; as well as the exclusive right to use the mark, the owner also starts in a strong position when bringing an infringement claim against a third party, since the claimant does not need to prove reputation in the trade mark (thus making claims for trade mark infringement easier and more certain than passing off claims). However, care should be taken to ensure that a desired trademark will be registrable prior to using the associated brand widely without sufficient protection.

Copyright and database rights

The law of copyright is intended to protect the results of creative ability. It does not require registration, meaning that it arises automatically, and provides protection for 70 years from the death of the copyright owner in the case of literary, dramatic, musical or artistic works36 and 50 years for broadcasts37 and sound recordings.38 Unauthorised use of copyright will constitute an infringement, unless the copying party can raise a legitimate defence. The most common defence is the defence of 'fair dealing', which can permit works protected by copyright to be used for, by way of example, criticism and review,39 depending on the purpose and extent of the copying. Recent UK sport case law has further highlighted that mere similarity (unless it is so obviously similar as to constitute clear copying) will be insufficient to demonstrate infringement.40

In respect of database rights, the recent case of Football DataCo41 highlighted that the sui generis database right (SGDR) will subsist in a database of live match data42 provided there has been substantial investment in obtaining, verifying or presenting its contents,43 despite not subsisting in a fixture list.

iii Contractual provisions for exploitation of rights

Broadly, the crux of any agreement entered into between a sports rightsholder and a commercial partner, such as a sponsor or a broadcaster, should be to set out the commercial intentions of the parties in writing, and to clearly identify the rights being granted to the commercial partner, as well as the consideration the rightsholder will be receiving in exchange.

In this respect, the most important issues to address in such an agreement will be those that address the rights being granted to the respective parties. Some of the primary issues to be considered in this vein will likely be:

  1. the exclusivity of the partner's rights;
  2. the applicable territories in which the partner will be able to exploit the rights;
  3. the category or brand sector in which the rights may be covered;
  4. any reserved matters or exclusions relating to the rightsholder or its other commercial partners; and
  5. any approval rights the rightsholder may have over any of the goods produced by the partner.

In instances where the contracting rightsholder may be a sportsperson, it might be wise for the partner to consider including a morality clause to cover instances in which the sportsperson's behaviour may fall below the standard expected by the partner (and thus indirectly reflect poorly on the partner by virtue of their association with the sportsperson). In such situations, the extent and flexibility of any termination right attributed to the morality clause will likely be a point of negotiation between the sportsperson and the partner. From a commercial partner point of view, the precise wording of such a morality clause should ideally avoid listing the specific acts deemed to trigger the clause, but rather include more flexible wording relating to how the rightsholder's conduct has resulted in a loss or reduction in the commercial value of the rightsholder.

Another often contentious contractual issue will be the post-expiry rights of the partner. The partner may be entitled to a right of first refusal or an exclusive renewal negotiation period, or they may exercise a matching rights clause present in the contract, an issue that has been considered in greater detail recently after Liverpool's victory over New Balance44.

Beyond the above, there are no existing mandatory statutory provisions in such agreements. The bulk of such contracts will contain provisions and boilerplate normally found in other types of commercial contracts.

iv Professional sports and labour law

Mandatory provisions

In the UK, the governing bodies of football, rugby and cricket set and prescribe standard form contracts to be used in their respective sports to govern the relationship between sports clubs and players. The governing bodies produce these standard form contracts after consulting with the relevant stakeholders within the sport. Accordingly, the majority of the provisions contained in the contract will not be negotiated between the player and the club, since the standard contract will deal with the primary obligations of the player and the club, as well as confidentiality obligations, termination rights for each party, etc. Notwithstanding that these provisions will remain the same across the standard contracts, the parties will obviously have the ability to negotiate more bespoke terms, such as salary and image rights payments.

While the parties will have discretion to negotiate the term of the contract, there is a risk that contracts of an excessive length will be held to be unenforceable and will constitute an unfair restraint of trade. Parties should therefore consider ensuring that longer term contracts contain certain recourse elements (e.g., break clauses after a set period of time) to allow the contracting sportsperson to terminate the contract earlier in extremis. Such elements may help to reduce the likelihood of a contract becoming unenforceable on the basis of an excessive duration.

Free movement of athletes

In line with existing EU law (notwithstanding that the UK's adherence to such law is unlikely to remain, or will at least be likely to deviate, once the post-Brexit relationship between the EU and the UK has been finalised)45, any restriction on free movement within the EU is required to: be justified on the basis of a legitimate objective; and be proportionate. The Bosman ruling,46 in particular, demonstrated this principle by removing the ability for football clubs to command a transfer fee for players in the EU moving to another club at the end of their contract with the previous club. An attempt to obtain a transfer fee for a player in such circumstances is likely to be deemed an unlawful restraint of trade on the part of the club.47

Currently, the UK visa administration system requires applicants to have both a sponsor and a governing body endorsement in order to obtain a UK visa. The decision on whether a player seeking a UK visa is eligible on the basis that they have a sponsor and governing body endorsement lies with the relevant governing body.

Application of employment rules of sports governing bodies

It is at the discretion of contracting parties to negotiate provisions contained in a sportsperson's employment contract, provided there is no requirement on the employer to use standard form contracts (and thus be required to include mandatory provisions).

The year's most high-profile sports employment law case arose from the Employment Appeals Tribunal (EAT) in a decision regarding Jess Varnish, which defined the relationship between a cyclist and British Cycling.48 It was found that a cyclist that signed an Athlete Agreement with British Cycling and received various services, equipment and the right to apply for funding in exchange for agreeing to train, compete and fulfil various other commitments, did not receive the status of an employee. Indeed, it was found that the support Ms Varnish received to train and compete did not amount to remuneration, highlighting that having the option to take up a benefit or not (i.e., coaching services from British Cycling) pointed away from remuneration. Further, the EAT ruled that British Cycling was the service and not Ms Varnish. At the time of writing, Ms Varnish still has the possibility of appealing the EAT's decision.

Sports and antitrust law

The leading European Law legislation is at Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), with these provisions having been integrated into national law through the Competition Act 1998.

Article 101(1) TFEU, which is materially identical to Section 2 of the Competition Act 1998 at domestic level, prohibits agreements between undertakings or decisions by associations of undertakings, which have as their object or effect the prevention, restriction or distortion of competition between Member States. Article 102 TFEU, which has been materially reproduced in Section 18 of the Competition Act 1998, prohibits any abuse by one or more undertakings of a dominant position affecting trade between Member States.

The Meca-Medina49 case is the landmark case in relation to the distinction between purely sporting rules (to which European Law does not apply) and rules that have enough proximity to economic activity (and to which European Law therefore applies). The applicable test is that the 'purely sporting rule' must be limited to its proper purpose and pursued proportionally, meaning that the restriction of competition is necessary, the desired effect could not be achieved through less restrictive means50 and the rule is applied in a transparent, objective and non-discriminatory manner.51 This test was recently applied by Sport Resolutions (UK) in a rugby dispute, finding that a salary cap imposed on clubs operated in a pro-competitive manner by promoting the financial viability of clubs, controlling inflationary pressures, providing a level playing field, ensuring a competitive league and enabling clubs to compete in European competitions.52 However, a margin of discretion may be awarded to sports governing bodies in assessing the legitimacy of the purpose pursued as well as the proportionality of the rules implemented.53

It is worth also considering the common law doctrine of restraint of trade, which is seen as a form of domestic competition law.54 In Dwight Chambers v. British Olympic Association55 for instance, the courts considered the effect of anti-doping rules on an athlete's ability to exercise his or her trade. First, a claimant must establish that his or her ability to earn a living is being restricted by a given rule. If so, the governing body must then demonstrate that the legitimacy of the restriction's aim as well as its proportionality of such restriction.

Although the place of European Law in the UK is uncertain from 2021 onwards, the current position is that where there is a conflict between the doctrine of restriction of trade and the application of Article 101 TFEU, then courts are precluded by European Law from applying the restriction of trade.56

Sports and taxation

In the case of collective sports, players are most often employees and fulfil their fiscal obligations according to the jurisdiction of their club. Although non-UK residents athletes who are contracted with a foreign club may occasionally be required to play matches in the UK, such circumstances would not qualify as employment exercised in the UK according to Article 15 of the OECD Model Tax Convention on Income and on Capital (MTCIC).

In relation to sports where prize money, appearance fees and other such non-regular revenues are the norm, such as tennis, athletes would be taxed for the fees earned in the UK. Article 17 of the OECD MTCIC athletes in this category would also be taxed in the UK on any sponsorship agreements, with the taxed value being proportional to the appearances in the UK in a given fiscal year.

On the other hand, clubs that compete in continental or international events in the UK would only be liable for corporation tax if they had a permanent establishment in the UK, which is rarely the case.

Specific sports issues

i Doping

At present, doping does not constitute a criminal offence in the UK. However, some of the substances listed on the WADA Prohibited Substances list57 are also criminalised in the UK, including cocaine and methadone. The World Anti-Doping Agency (WADA) produces a document (the World Anti-Doping Code) that harmonises regulations relating to anti-doping in sport across all sports and all countries of the world, as well as providing a framework for anti-doping policies, rules and regulations for sport organisations.58 The national anti-doping organisation in the UK is UK Anti-Doping, who are tasked with results management and case presentation for the majority of sports in the UK.

In instances of non-compliance with WADA's Code, WADA can report such cases to its stakeholders who, in turn, have authority to impose punitive sanctions. There can also be restrictions on what individual sports are entitled to if they neglect to adopt the WADA Code; for example, sports that do not implement the Code cannot be included in the program of the Olympic Games.59 Similarly, if a country does not ratify the International Convention against Doping in Sport, they can be sanctioned by the IOC and other sports organisations, which can ultimately culminate in losing the right to host the Olympic Games.60

ii Betting

As with doping, betting is not illegal in the UK. However, a number of governing bodies in sport have prohibited betting by individuals within the rules of their respective sport and sanctions will be incurred by those found to have breached these rules. A recent high-profile example of this was earlier this year, when Daniel Sturridge was found to have breached Rule E8 of the FA's Rules61 relating to various betting offences. It should be noted that Mr Sturridge's original sanction of a two-week ban (six weeks, four of which were suspended) and a £75,000 fine was, on appeal by the FA, increased to a four-month ban and a £150,000 fine. This increase highlights the emphasis governing bodies place on betting-related offences within sport, particularly given the integrity issues that can arise as a consequence of sportspersons getting involved in betting.

Betting in England and Wales is governed by the Gambling Act 2005 and this act has provisions relating to the process of information sharing with governing bodies in sport. Sports governing bodies will also look to establish synergy with various betting operators by putting in place information sharing agreements to further increase the transparency and integrity in their respective sports.

iii Manipulation

There is no legal definition of match-fixing under English Law. Instead, match-fixing may be prosecuted pursuant to criminal provisions and sport-specific rules and regulations.

The criminal provisions relating to match-fixing include Section 42 of the Gambling Act 2005, Sections 1 and 2 of the Bribery Act 2010, Section 1 of the Criminal Law Act 1977 and the Fraud Act 2006. These provisions apply to match-fixing by including cheating or enabling others to cheat, bribing or being bribed, conspiracy or fraudulent behaviour. Arguably the most successful match-fixing prosecution in England and Wales concerned spot-fixing in cricket, which led to prison sentences ranging from six to 32 months.62 At international level, the Convention on the Manipulation of Sports Competitions (the Macolin Convention) entered into force on 1 September 2019 following ratification by 38 countries, including the UK.

Sports governing bodies have also implemented provisions aimed at the prevention of match-fixing as part of their rules. Over recent years, we have seen increased cooperation between, governing bodies and betting operators in analysing irregular betting patterns to detect potential match-fixing. As part of their rules, sports governing bodies may suspend or ban individuals that engaged in match-fixing activities. Provisional suspensions or bans may also be used in relation to individuals being linked to match-fixing operations. Additionally, many sports governing bodies require participants to report any approach associated with match-fixing.

iv Grey market sales

Football is the only sport in England for which the law prohibits the unauthorised transfer of tickets. Indeed, rights holders of other sports would need to rely on the tickets' terms and conditions to bring a claim against anyone breaching those provisions. The exception would be where legislation is passed for a specific event, such as the London 2012 Olympic Games.

However, where individuals are authorised to resell tickets to events, the Consumer Rights Act 2015 requires online secondary ticket platforms to provide the buyer with information on the specific seat they are buying. This includes the section of the venue and the seat number, any restrictions on ticket validity and its face value.63 If such tickets are resold without the authorisation of the event organiser, the information available on the platform allows the specific ticket, and the original purchaser to be identified and can help event organisers pursue claims against offenders. Additionally, following a movement in favour of banning individuals from purchasing multiple tickets to instantly resell them at an inflated price, legislation was passed to ban the use of automated software by ticket touts to buy more tickets than permitted.

The year in review

Undoubtedly, the covid-19 pandemic and the accompanying public health and economic crisis have changed the landscape, not just of sport, but of every industry. While this section merely touches upon this, the pandemic and its effects are unquestionably acknowledged by the authors and is discussed in greater detail at Section X below.

i E-sports

The covid-19 pandemic has taken a toll on almost every aspect of society, and the physical nature of sport has meant it has been one of the most negatively affected areas. In spite of this, the impact of the pandemic on the more traditional mainstream sports has not been as heavy on e-sports. As Nicolas Maurer (CEO and co-founder of Team Vitality) has explained, 'from a content and events perspective, the beauty of esports is that it's a digital first product. Physical contact isn't needed between players, and they don't even need to be in the same country to compete'.64 Like almost every other sport, e-sports has experienced an overall slump as a result of the pandemic, but this slump has been on a comparatively small scale.

As an illustration of this, the Esports Entry Advisory conducted a survey in April this year (one of the worst affected periods of time during the pandemic), asking e-sports stakeholders to indicate the status of live e-sports events;65 over half of the live events simply converted to an online-only format, while just over a quarter were postponing to a later date, 13 per cent were still due to take place as a live event and, most significantly, only 8 per cent of the e-sports events were being cancelled altogether. It is this malleability that has held e-sports in a stronger commercial position (both in terms of lost revenue and attracting new sponsorship) than mainstream 'physical' sports. Alongside this, the potential to get creative with marketable content is likely to continue playing a big part in boosting e-sports' profile; indeed, it is difficult to envisage other mainstream sports successfully coupling a sports star in one sport with a sports organisation in another (as was the case at the Vietnamese Virtual Grand Prix, where Ben Stokes represented the Red Bull racing team).66

ii Financial regulation

Financial regulation was a hot topic over the last year in sport and it will almost certainly continue as the industry comes to terms with the short-term impact of the covid-19 pandemic. Although it has made headlines in various sports including rugby with the Saracens salary cap decision, financial regulation has been a topic of particularly lengthy discussions in football. Currently, English and Welsh clubs are bound by specific rules implemented by the Premier League, the EFL and the FA aimed at ensuring their financial prosperity. Clubs participating in UEFA club competitions must additionally comply with UEFA's financial fair play regulations.

In August 2019, Bury FC's EFL membership was withdrawn following the club's impossibility to repay its creditors. A year later, Wigan Athletic find themselves potentially about to be relegated to the third division after administration proceedings were initiated by its owners, just a few weeks after they gained a majority stake in the club, and a 12-point deduction was imposed. At the time of writing, Wigan Athletic are in the process of appealing against the point deduction. Over at the higher end of the pyramid, Manchester City successfully appealed against a two-year ban from UEFA club competitions as the Court of Arbitration for Sport found that the allegations that it had breached UEFA's financial fair play regulations were either not established or time-barred. The club was nevertheless fined €10 million for failing to cooperate with, and obstructing, the investigation against it. With a growing public perception that football is unable to financially regulate itself, it is not excluded that legislation be introduced despite the self-regulation that sport typically benefits from.

Outlook and conclusions

i Brexit

Brexit remains an important issue despite the covid-19 pandemic taking centre stage over the last few months. The UK lost its status as a Member State of the European Union on 31 January 2020 with a transition period lasting until the end of 2020, during which European Law will still be applicable. At the time of writing, and despite the deadline's proximity, the situation remains unknown as to the future relationship between the UK and the EU.

It is difficult to predict how Brexit will impact sport without any details of this future relationship. Therefore, the FA, the Premier League and the Home Office have held talks regarding EU players' right to work in the UK, with reports that EU players would need to go through points-based system,67 as is currently to case for their non-EU colleagues. Another unanswered question is regarding the transfer of EU players over the age of 16, who are currently exempt from FIFA's ban on the international transfer of minors when being transferred between the UK and an EU Member State. It is likely that Jude Bellingham, who was transferred from Birmingham City to Borussia Dortmund during the summer of 2020 at the age of 17, will be one of the last English players to benefit from the exception. Similarly, UK clubs would lose the ability recruit EU players before they turn 18.

Additionally, a consequence of Brexit is the devaluation of the British pound since the 2016 referendum. In the current climate, the pound's value is likely to depend on the UK government's response to the covid-19 crisis, while the EU27 has agreed a €1.82 trillion covid-19 recovery fund and budget.

ii Covid-19

Notwithstanding the partial lifting by the UK government of some of the societal restrictions that have been implemented as a consequence of the pandemic, there is unfortunately some cause for concern, particularly in sport, in respect of how covid-19 will take a toll on the UK in the near future. The pandemic is likely to lead to at least some form of recession within the sports industry, and the world of sport should be, and tangibly is, bracing itself for a period of economic hardship in the wake of covid-19's eventual dissipation.

Looking at football as a paradigm (which seems fitting, given its status as by far the richest sport in the UK), evidence of measures being taken to mitigate the impact of the pandemic are already being seen; the FA have already made 124 positions within the organisation redundant and the FA chairman Greg Clarke has already conceded that all areas of the organisation will be affected. At the club level, the three principal income streams for clubs (matchday revenue, broadcast revenue and sponsorship) will be drastically reduced and will inevitably lead to job losses within these organisations. At the player level, the pandemic is likely to lead to a mass reduction in player wages and transfer fees, with a fundamental rethink of the financial state of play in football seeming the likeliest outcome. Despite this rather gloomy forecast, there is potential to adapt; it has already been shown throughout the pandemic that sports organisations in England and Wales can make adjustments (perhaps evidenced best by the relative success of e-sports in the past few months), and there will likely be further investment and sponsorship opportunities afforded as sports organisations look to explore additional digital and technological avenues.

Footnotes

1 Jamie Singer is a founding partner, Oliver White is a trainee solicitor and Cambise Heron is a paralegal at Onside Law.

3 A Code for Sports Governance, Sport England & UK Sport.

7 Bradley v. Jockey Club [2004] EWHC 2164 QB, upheld on appeal [2005] EWCA Civ 1056.

8 S 9(1) and (4) of the Arbitration Act 1996.

9 Arbitration Act 1996, Section 67.

10 Arbitration Act 1996, Section 68.

11 Arbitration Act 1996, Section 69.

12 Victoria Park Racing v. Taylor (1937) 58 CLR.

13 Consumer Protection Act 2015.

14 Watson v .BBBC (2011) QB 1134.

15 Occupiers' Liability Act 1957, Section 2(2).

16 Safety of Sports Grounds (Accommodation of Spectators) Order 1006 (SI 1996/499).

17 Caldwell v. Maguire & Fitzgerald (2001) EWCA Civ 1054.

18 Gravil v. Carroll (2008) EWCA Civ 689.

19 Criminal Justice and Public Order Act 1994, Section 166.

20 Police Act 1996, Section 25; Harris v. Sheffield United Football Club Ltd [1988] 1 QB 77; Leeds United Football Club Ltd v. Chief Constable of West Yorkshire [2013] EWCA Civ 115; Ipswich Town Football Club Co Limited v. Chief Constable of Suffolk [2017] EWCA Civ 1484.

22 Copyright Design and Patents Act 1988 (CDPA), Section 9.

26 Sports Club plc v. Inspector of Taxes [2000] STC (SCD) 443.

27 Consorzio del Prosciutto di Parma v. Marks & Spencer plc [1991] RPC 351.

28 Douglas v. Hello! Ltd [2007] UKHL 21, Paragraph 293.

29 Campbell v. Mirror Group Newspapers Limited [2004] UKHL 22.

30 Data Protection Act 2018, Section 2.

31 Douglas v. Hello! Limited & Ors [2001] 2 WLR 992, Paragraph 55.

32 Proactive Sports Management Ltd v. 1) Wayne Rooney, 2) Coleen Rooney (formerly McLoughlin), 3) Stoneygate 48 Limited, 4) Speed 9849 Limited.

33 TMA 1994, Section 9(1).

34 TMA 1994, Section 10.

36 CDPA, Section 12.

37 ibid., Section 14.

38 ibid., Section 13A.

39 ibid., Section 30(1).

40 Mr Peter Davies v. Wolverhampton Wanderers Football Club (1986) Limited [2019] EWHC 1252.

41 Football DataCo Ltd and others v. Stan James plc and others; and Football Dataco and others v Sportsradar GmbH and another [2013] EWCA Civ 27, 6 February 2013.

42 ibid.

43 Copyright and Rights in Databases Regulations 1997, Regulation 13.

44 New Balance Athletics, Inc v. The Liverpool Football Club and Athletic Grounds Limited [2019] EWHC 2837.

45 See Section X.

46 Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman (C-415/93) [1995] ECR I-4921.

47 Eastham v. Newcastle United Football Club and Football Association [1964] Ch 413.

48 Varnish v. British Cycling Federation (t/a British Cycling) UKEAT/0022/20/LA.

49 Case C-519/04 P Meca-Medina and Majcen [2006] ECR I-6991, CJEU.

50 Case C-309/99 Wouters [2002] ECR I-1577.

51 SEC (2007) 935/1.

52 Premier Rugby Limited v. Saracens Limited SR/Adhocsport/201/2019.

53 London Welsh RFC v. RFU, Decision of 20 June 2012.

54 Days Medical Aids Ltd v. Pihsiang Machinery Manufacturing Co [2004] EWHC 44, [2004] 1 All ER (Comm) 991.

55 Dwight Chambers v. British Olympic Association [2008] EWHC 2028 (QB).

56 Days Medical Aids Ltd v. Pihsiang Machinery Manufacturing Co [2004] EWHC 44, [2004] 1 All ER (Comm) 991.

59 ibid.

60 ibid.

62 R v. Majeed, Butt, Asif & Amir Cooke J, 3 November 2011; R v. Amir, Butt [2011] EWCA Crim 2914.

63 Consumer Rights Act 2015, Section 90.

64 Mike Stubbs, 'How Esports Teams and Competitive Platforms are Dealing with the Coronavirus Pandemic'.

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