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VOLUME 13 VOLUME 13 · ISSUE 2 · 2005 sport and the law journal ISSUE 2 VOLUME 13 SPORT AND THE LAW JOURNAL Editor Registered Office Simon Gardiner c/o Pridie Brewster, 1st Floor, 29-39 London Road Twickenham, Middlesex TW1 3SZ Editorial Board Telephone: 020 8892 3100, Facsimile: 020 8892 7604 Dr Hazel Hartley www.britishsportslaw.org Murrey Rosen QC Dr Richard Parrish Registered in England. Company No. 4947540. Jonathan Taylor Registered Office: 29-39 London Road, Twickenham, Middlesex TW1 3SZ. Directors VAT Reg No. 673 5989 73 Maurice Watkins: President Murray Rosen QC: Chairman ISSN 1353-0127 Mel Goldberg: Deputy Chairman Gerry Boon: Hon. Treasurer Serena Hedley-Dent: Hon. Secretary Graphic design and layout www.finalfilm.co.uk Darren Bailey Nick Bitel Walter Cairns Nic Coward Edward Grayson Paul Harris Tim Kerr QC Peter McInerney Walter Nicholls Fraser Reid Sam Rush Kuldip Singh QC Jonathan Taylor VOLUME 13 · ISSUE 2 · 2005 Contents Editorial 2 Survey and Reports Sports Law International Survey 41 Walter Cairns Opinion and Practice Sport and the Law Journal Reports 101 Settling sports domain name disputes 6 Ian Blackshaw Image rights: Where next? 10 Reviews Stephen Bate Book Reviews 109 Ian Blackshaw and Robert Siekmann, Sports Is there a case for more criminal 13 Image Rights in Europe (2005). justice system involvement in Mark Buckley sporting incidents? Steven Barker Lars Halgreen, (2004) European Sports Law: a Comparative Analysis of the European and Footballers and fixed term contracts 16 American Models of Sport. Graham Shear and Alison Green Richard Parrish, (2003) Sports law and Policy in the European Union. Analysis Robert Siekmann and Janwillem Soek (eds), (2005) The European Union and Sport: Legal and The Death of the Constitutional Treaty: 20 Policy Documents. Implications for Sport Professor Stephen Weatherill Richard Parrish Is there an EU ‘sporting exception’? 25 Juliet Mash The Bosman/Kolpak effect: 33 Has sport got it wrong? Simon Boyes Current case briefing – G14 versus FIFA 36 Ruth Byrne 1 ISSUE 2 VOLUME 13 SPORT AND THE LAW JOURNAL Editorial By Simon Gardiner, Editor This is the first issue of the Sport and the Law Journal in electronic format. This development is part of the on-going evolution of the Journal. One advantage of this electronic form is that the contents are searchable with the use of key words. Over a period of time the archive of the Journal will also be available on the website. This issue has a specific focus on the increasing role to more frequent but less serious injuries than in the that the European Union has in regulating sport. The past. There is no indication that amateur sport is any relevant articles will be discussed below. Firstly different. Might it be that the contested view that however, the Opinion and Practice section has a violence in society is on the increase and the desire to number of articles focusing on other issues. Two of engage with anti-social behaviour has seeped onto the these examine some of the legal measures protecting sports field? Steven Barker who has acted in many IP rights in sport. Ian Blackshaw’s article, ‘Settling sports-related criminal cases suggests an appropriate Sports Domain Name Disputes’ provides analysis of role for the criminal law. recent developments in protecting sporting Internet sites. Secondly, Stephen Bate’s article ‘Image Rights: The Analysis section focuses on European Union policy Where Next? – the Bedford Case’, discusses the in sport. It is clear that the EU has recognised that alternative remedy pursued by David Bedford in his professional sport is subject to regulation as a business. action to OFCOM against the ‘118 118’ advertising In addition the social-cultural dimension of sport is campaign. clearly recognised as being powerful and will continue to be actively promoted. What has emerged in terms of Two further articles focus on topical issues. Firstly, an EU sports law is little ‘hard law’ that has legally Graham Shear & Alison Green’s article, ‘Footballers and binding force, but significant amounts of ‘soft law’, that fixed term contracts’, examines how different the is ‘rules of conduct which in principle have no legally contractual position is of footballers to other employees binding force but which nevertheless may have a on fixed-term contracts. Secondly, Steven Barker significant effect on policy and legal developments’. considers ‘Is there a case for more criminal justice Richard Parrish’s, ‘The Death of the Constitutional system involvement in sporting incidents?’ In early Treaty: Implications for Sport’, examines the latest June, the Crown Prosecution Service held a conference indication of the present position of EU sports policy. on Crime and Sport focussing on the criminal liability of a range of issues including corruption and match fixing, There is recognition that although sport is an economic football hooliganism and on-field violence and abuse activity it is a ‘special’ case. Sport will however have to including that of a racial nature. It was the regulation of ensure that it complies with the provisions of EU law in on-field violence that raised most media interest with areas such in competition law. The dialogue between the CPS indicating that it is reviewing its policy the European Commission and the football federations concerning when and where prosecutions are brought, concerning the changes to the transfer system is a particularly in team contact sports. It is interesting to good illustration of what seems to be a ‘new realism’. It debate why this initiative to clarify the CPS policy on is highly unlikely that there will be a ‘sporting sports field ‘violence’ is occurring presently. It cannot exemption’ from the provisions of EU law. Juliet Mash’s be that sports related violence is on the increase. In article ‘Is there an EU ‘sporting exception’?’ examines Britain, in football and both codes of rugby, the game is the evidence for and against its existence. Two more relatively sanitised in comparison to 20 or 30 years ago practical issues are examined with firstly, Simon Boyes’ with rule changes, the introduction of formal codes of article, ‘The Bosman/Kolpak Effect: Has Sport Got it conduct and more rigorous officiating leading to safer Wrong?’ analysing how sport has responded to the and less violent play. Statistics that indicate increases in impact of these two ECJ cases. Secondly, Ruth Byrne’s levels of injury are misleading. Higher levels of fitness ‘Current Case Study- G14 v FIFA’ considers the legal and physical endeavour in professional sport contribute issues involved in the club versus country debate. 2 SPORT AND THE LAW JOURNAL VOLUME 13 ISSUE 2 Editorial The extent of the involvement of the EU in sport is highlighted in a Review Article by Stephen Weatherill focussing on three recent book publications. In addition Mark Buckley reviews a recent publication on the protection of Image Rights in Europe. Lastly the usual features of the Sports Law International Survey and Sport and the Law Journal Reports are included. The Journal welcomes contributions from all BASL members and other readers in any of the sections of the Journal including reviews of future sports law related publications. Please refer to information on BASL web site and contact the Editor with any suggested offerings. The longer Analysis section articles are peer reviewed by external referees. To help facilitate this process, a small Editorial board is in place consisting of myself, Dr Richard Parrish, Dr Hazel Hartley, Murray Rosen Q.C. and Jonathan Taylor. Simon Gardiner [email protected] www.britishsportslaw.org 3 ISSUE 2 VOLUME 13 SPORT AND THE LAW JOURNAL 4 VOLUME 13 · ISSUE 2 · 2005 Opinion and practice 5 ISSUE 2 VOLUME 13 SPORT AND THE LAW JOURNAL OPINION AND PRACTICE Settling sports domain name disputes By Ian Blackshaw With sport now being big business, disputes over the registration and use of domain names relating to sporting personalities, leading teams, sports organisations and major sports events are on the increase. This article looks at the settlement of such disputes under the Uniform Domain Name Dispute Resolution Policy administered by the Arbitration and Mediation Center of the World Intellectual Property Organization, a specialized UN Agency based in Geneva, Switzerland, with examples taken from some of the recent leading cases. It has often been said by commentators that the Internet The cases are decided by WIPO appointed IP and is a modern example of the ‘wild west’ of celluloid fame, electronic commerce experts, of which there are in that it is a ‘new frontier’ and difficult to police and presently about 400 drawn from more than 50 regulate. This is mainly because of its global nature and countries. These experts, before being appointed in any reach – not being confined by State borders. However, in particular case, are required to sign a Declaration of one respect, at least, to use the jargon, ‘cybersquatting’ – Independence, thereby assuring the parties in dispute the abusive registration of ‘domain names’ – that is, of an impartial and independent decision. The experts internet addresses, many of which are sporting ones, form single or up to three member panels, depending such as ‘fifa.com’ – is regulated internationally, thanks to on the wishes of the parties. the ICANN (Internet Corporation for Assigned Names and Numbers) Uniform Domain Name Dispute Resolution It should be noted, however, that, under the terms of Policy (UDRP) (the Policy), which was approved on the Policy, parties in dispute have the right, if they wish October 24, 1999. To access the Policy, log onto to exercise it, to submit their domain name disputes to ‘www.icann.org/udrp/udrp-policy-24oct99.htm’. Court either before or after commencing the UDRP proceedings (Paragraph 4(k) of the Policy).