By Rob Hamblin, Bird & Bird
Ask 100 sports fans what they like about their game of choice and you may well get 100 different answers. What you are unlikely to hear however is “I love the rules of my sport” or “I think the regulations we have in place are just great”. In truth, regulations and so-called ‘red tape’ (as well as those responsible for their drafting and implementation) may all too easily be regarded as an unnecessary annoyance that merely detract from the entertainment of the spectacle at hand.
Whilst the author shares a fondness for a game governed more by moral values than statutes and bye-laws, the way in which sport has developed has made this more of a fantasy than ever before. This is nowhere more apparent than with the rapid commercialisation of sport, which has brought new riches to its participants and new challenges to its governing bodies.
The response of governing bodies has been – in part – to introduce new rules and regulations. This in turn has seen many disillusioned fans complain that sport has now become “over-regulated” or “over-lawyered.”
As set out below however, such concerns are misplaced and overlook both the aims of regulation in sport and the numerous challenges faced by governing bodies in achieving them.
Money in Sport
The arrival of money across virtually all sports is undeniable. In football (by the far the biggest beneficiary) Real Madrid achieved revenues of €479.5m (£433m) during the 2010/11 season alone, while the top 20 European teams generated a combined €4.4 billion .
But the benefits are far more widespread.
The English Cricket Board’s introduction of central contracts for elite players has improved remuneration considerably but still pales almost into insignificance against the amounts available in the Indian Premier League in 2011 the Kolkata Knight Riders paid their players an average of £48,560 per week, while Kevin Petersen earned a reported £750,000 for a 4 week stint with the Delhi Daredevils in 2012.
The development of the Top 14 league in France (free from many of the financial restrictions placed on English Premiership teams) has seen income for rugby clubs and players rise substantially, while in golf Brandt Snedeker took home $10m of the $35m prize fund available for winning the 2012 FedEx Cup – an amount equalled in horseracing by the owners of Monterosso who won last year’s Dubai World Cup Night.
Consequences for Governing Bodies
The impact of money is widespread but two things are of particular importance from the perspective of sports governance.
Firstly, there is a greater need for regulation. The spoils on offer for the victor are greater than ever and participants are prepared to go further to secure them (see for example rugby union’s ‘Bloodgate’ scandal in 2009). However we have also seen, most notably in cricket of course, that rewards are available not just to the winning participants but also to those who help others make money from sport. Governing bodies and their regulations must therefore adapt to these changes.
Secondly, the list of parties affected by regulation in sport has increased as has the ability and appetite of these parties to challenge any rule which prevent them from challenging for the spoils. The recent threat by the Association of Football Agents (AFA) to take FIFA to court over their proposed Global Player Exchange, which the AFA believe to be “anti-competitive” and “illegal”, is a good example of this, as is Mario Balotelli’s decision in December last year to issue arbitration proceedings against his club Manchester City for their decision to fine him 2 weeks’ wages (£340,000) for on-field indiscipline (although it should be noted that Balotelli eventually dropped his complaint and accepted the fine).
Enter the Lawyers
The aim of regulations in sport must be to ensure that sport operates in a competitive, entertaining and fair environment. The changing nature of sport (as set out above) explains why new regulations are necessary in order to continue achieving these aims.
However, as was markedly demonstrated by Jean-Marc Bosman in 1995, governing bodies and their regulations must also operate within the boundaries of the law. This, coupled with the increased chance of a challenge, explains why the footprint of lawyers in sport is larger than it was once.
However, (self-interest aside) this involvement should not be seen as concerning. Whilst beliefs on the best way to govern sport will undoubtedly differ, anyone with a fondness for sport would agree that ineffective regulations help nobody. Indeed one only needs to look at the numerous selection challenges brought by British athletes ahead of London 2012 (including in particular Dwain Chambers’ fight against the British Olympic Association) to appreciate the negative publicity and ill-feeling that can result from regulations which are vague, ineffective or impermissible.
The aim of lawyers in this process is therefore to help ensure the aims of regulation are achieved and capable of withstanding challenge from those who are adversely affected. It is also important to remember that lawyers do not (or at least should not) shape the rules of the game, but rather shape the expression of those rules in a way that is effective and legally permissible.
Conclusion
In summary therefore, whilst the drafting and implementation of regulations happen far away from the pitches, courts and wickets on which sport traditionally takes place, the role of the former in complementing the latter should not be overlooked or forgotten.
Indeed, given the issues, challenges and amounts of money at stake, investing resources at the outset may well prevent much greater expense further down the line.
