f a s Ma a at g UKA D’s an Th ïç a th se th a “[ Hall eS c ev bu do t Th oB n la ment S ti sugg es ment me regul ma do can my s sa ti in UK In lool o ust a uch orre th nd nd it c v unday g o Dr. ck ek ti t] e ey idenc n at c t ping n, e ey n ion le inly on k r not tors h ior ve st iga tio n qu ir y i a a ts Ge i o inv mor UK iv nq u ing w tes they i it ined e ated: on Ca e In Q&A d We p l wom Di in v spon t m r in

IN THIS ISSUE m may ea explain of th er he ts a an ew AD ’s Sport ata ay is G ter n aut es ner gen c Tim s atte e ig est Uni a a gue Lc e the esti ga te i s dea th rge h y ir go v as ara the d al crimi a wa s ab nd nto to nd as sis t isd jur is e d oB nar, an dlin g di nd hori “in n en g at u al nati c th by a op rs . Th du a es ver ot ov les an ture r or re s La l ng ie f ot e at tio nal a ans w bl ed or the owners hip at s o ’s e . rn Me monit fe in s.” the thw th e adeq ty er y ha fo UK AD e he ona n tie re E le al an ce si ty e w na it Br m Stru in me re r soccer r in to t ic th me c g xt e Amn esty nm ev s self otball problem op r all ve ooper at e to r di t s Dr sul do pi n 3 Io in lo ng sp Overdue he atr at er tio i er of , l ge o t ion Weara di at endnde p ent iew rep ort h uate ly nt ca l ab hi rd ish s l ju f vo .” anids, cture e e -regu la êä Ç aw alleg . nal tr ord e A th of ave t t ort d ca l ed ca se nsur nt an n cri rarg e di ri s sen Ioan nid is es s ilpr in lau nched She lvi ei run , of by enfor 08 Cou US WA DA on 0 pla d min ali d in ve st patr i es, tdc o or, r di c board . regul 12 a by ati on s. a ng es 05 ep 3 ce oping i e to ble arises stat ldfie and nv 16 iw t legal ye r ho into tio th at tion th at and Th and ar nc UK it Dr. th th e ce es ng of a e g w t i is s, n h il a e e ------, he T Age t t n an off w in pol li orga ind my wh W in On w P dea J f inv co wer du Co sha ob a per No Ap pr on re J ex the d s ban s ph Me exp ëé çê irm, ax a ion ou r ub ub n nk o ie Sp Cl l or nua por i cr e id ov nf d ta pi t bbe a ic i ri nso e en s. ri it ldo rd e ia li i hi M lai e sta sta au 3 n nc m r s otr r st idu v S an na ni in l id ng t d i ng ad e an ti o al On ed l mad ci a h Mossa Ap r h üd stor to te r el d i n gime a it de y A d gat s ed n nc nc t e y as it u r e s li e ony ca re p s s: d he e Wo n ia nt t w iu (‘ Not de st n w w me by ly subs le es ha Pa on a e e por t R of a the oki i a “as WA y cl i ay s, ti m i s e by m a been l ls i on n da ut n nd t m am h pa r t DA mo i s s ld r t n m r a s ic e i ni f mber h pub d s f l ck h (‘ I i cam Pa u orme in if r sch the i am a ne o ce ts s 1 e a t f e no in s e Ger DA’) m t t i in an ‘ a ar rs o am l l 7 nd ma t wh CI a nc h Pana ia o us clud na patr Fonse o b ic nd ic t ni, 2 ow co e of h lic to wh e f to t f proc ig l ce e w as a e J av s ma ma Me na ich I f Ze p s Aoi-D nt ’) , r s. an P s t r ic t kine ges . ir I a t hi of ntnat e r s s t is so s io h of 1 es icular ic h os to d e do h nve ap T e h an d I m nd t m. ge 1. c i ’ ell su l ch akehol d n e ldo ca, e t n es he ult s is Lib am urce revea l no om t iti ve b s un e a ide ers FI FA eni ha 5 cum in form a b da t ed it xcepti on as e t o sed ig st ne of he com a an. in on ni u cu and rec m nl fro m Pap g ra s hel ped pan nti fied im publ ta awar fs as wsp a r on of d ine il ion , rr fro m eve a iat bee en p h pe La Me ord m, h eT lea fo r lio and a s nti- thi but law p ing er the t o ent th e t er s nd ies a 13 he he ts, ve of w, ar to a a re al ic al e, íë n n n s’ k 1 a e - - - s s P or Fon re Panm no ex p per a ra t ch a co u Li ma n t men CON thr Ec br cu co co UEF Gi Ser te Fi UEF i NAD comm fo c i sub ur sub lo Ne it w h sub qui cu ns ssu n iga lear t ow Fo am R n fe gue r w one r mp a a o Goo i a r nt ann rr e lt l ua t ape t ed v n ou v u hou t so he rge sta sta sta la i ti r ren e se er r e d e i ti A A, ag t re ly dc t c ian dor a on O’ Ste ME nt na li dec lo l g he ca ns, on th f t es an c o b nc nc nc i c oni ed s, un d ny ä c o e o ce h onc a in ast e a t n ng o s Mess csho k t ma r r el es oni as by wh phe n r I h at ed e e e C o, ~ï êÉ d isi BOL , nfan tie it h is ta ne of c a P incl u 3 po s or is an d y e hol w ma ham u ma owev t y, c ank UE i 1 en resid n US fo o in it o im st Pap i fsho s an i D note s s, ed r n o-sig an im le n g n p n i, r D Ma a rm I men in ioat n r t y ro ot e e as y ti s Ho t Fs c FA ll e r d t it li n xc n e au ag he d p fo an tc e o r no, w t hat e b o e ht ig r rr t T re m re er, a p rs tl ate o e y er i ing s rs. ion’s g e ret e n par t nd THE ho an e rn nt tw r th e k y V in app wh i fo edl d um ti o c is r fo d e i-dant o co r t Pre si u f be Me clar oc the k on or to sby n ha tm e r o r ind i a du ai nd t q gh un d o y s au L i m i th in ho ears MONTHLY of um si b m i u n s t cu of Hnsbo r y t ed r L t in ld Mo re ax Eu ri , det if c ts . e e ite i and by clu p h o d e to stud t P P es. o de n ‘s t Le w du r han lat s to i la h ng o co a f av e , sp sa cati artn ent n i i r i ge ma t F e ni it fr n La g e d ec n n r ssa n or e d “was de agu th p ive rp A e no w e le I y tsor yiar so v au d iff i wa t um nio FA, ing the the the ie th the te ne eve f fo s h lso e on s. an ck o o o of t to in er d’ s ly ic le is is s. ” d o excretion a e e r r - - - s f o l l le JOURNAL an an d se sho ex th t ou fu c bo abou UE S mi a su th and th dic wealt Me “t of co su pro ma a b ni ben of for cas e to sat fic no w san the VOLUME ha f om wi ut Th e In W her e lec fsho sin e nd at at is per bsta cla ss nfi ati hi di es sly ssi io ath Meld ti t y in d FA m si ct a ve ss u t AD efi ten ad d s,” “ “se ran o th hg par ti ns ld l t o g In r g ng io h fo f th e f ow vi s au den i n re v o m let e on éç wh et t ind d n nc re ive s ‘N al th ep hea FOR e e an ic i ce A’s ns s e r fan l r - be si s s sa sh f rc t t ling ef e tic at th on r ro in o o pi e e ey to WWW.E-COMLAW.COM e bri p y el at 14 p pu o ju en o uri a and d pa s a c wa po ial UE rgan o i o No to dq ed re ssu o n. b a ti fo ula r on m c c ti it a F iu her r di SPORTS a u wh f e co d ri bes. bl i ce ISSUE ef on h s ne n nti i n t ault o ion s at ap dds y sdi c rmat ) topp ld e e ua end m s FA w H t ti o, m ar n o to a ve r a nt us ie ti is sh e l.” o , i is u cen ig r ce an o o spo -d op p re of hi c c o li n s re tr i n y o de ur s, b So f n f h iw t er wh re ing l Ho rn s t or ti te s er ” c p ra is e re y e conc pro e vo co hat t co ed ht d io u t on nc e t 04 na h c ci on t garde w rs e wh h s rt he e i s ar ti no n a rt ett o h rso fo o te N a e rn s n n by REGULATION ing lv i sio s ho rru ro s diffi se . su by w me the devr o ble vid n APRIL ta s t “t t d g e ba r i m ho r in ji g n qu e en ra sby ch ng as n s glig n o to ” ul d on al ega ch - n ki betwe ag he ithou w s u p po ks g êí n a v d n o 6 es g u c W cu sa t low s ti rpr i o n d y to e ra r t t al rg a r enci es . pr UEFA e sh gg s A a using e r ju n on rd cl ar g o a enc si ig r AD t w ho u ti a lt hav s w nin u w co g now i h (t ti pri l. i 2016 ev ded ie p est tive dds o ri n i se t t th e ni er ses it ho o . n en he he he by p ” ns ht to to ld g, s e’, A i i i n h ll g g a e e e e - - - - - s s t ïçêäÇëéçêíëä~ïêÉéçêí THE MONTHLY JOURNAL FOR SPORTS REGULATION VOLUME 14 ISSUE 04 APRIL 2016 WWW.E-COMLAW.COM

CECILE PARK PUBLISHING Editor Sophie Cameron editorial board [email protected] Associate Editor Percy Wilman MICHELE BERNASCONI [email protected] Law at the ISDE program at Columbia [email protected] Baer & Karrer AG University and St. Johns University. Subscriptions Alastair Turnbull Michele A.R. Bernasconi is a partner at PAUL J. GREENE [email protected] [email protected] Baer & Karrer AG. He advises sport Global Sports Advocates LLC, Portland telephone +44 (0)20 7012 1387 associations and federations with regard Paul J. Greene, the founder of Global MIKE MORGAN Design MadeInEarnest to litigation, transfers, and other matters. Sports Advocates LLC, is recognised by Morgan Sports Law LLP www.madeinearnest.com He has experience with broadcasting, Chambers USA and Super Lawyers as a Mike Morgan founded Morgan Sports media, sponsoring, match-fixing and leading US sports lawyer. Paul has Law LLP after spending over eight years World Sports Law Report is published by advises clubs and athletes in connection handled sports law matters around the working within the Sports Law Group at Cecile Park Publishing Limited, with transfer agreements, doping and world, including numerous hearings an international law firm. He advises on 17 The Timber Yard, Drysdale Street, image rights. Michele is a member of the before the Court of Arbitration for Sport. regulatory and disciplinary issues, with London N1 6ND CAS and is Academic Co-director of the [email protected] particular experience advising on doping, Telephone +44 (0)20 7012 1380 Master on International Sports at the corruption and selection disputes. www.e-comlaw.com University of Zurich and of the UEFA OWE HJELMQVIST [email protected] © Cecile Park Publishing Limited. Football Law Program. Setterwalls, Sweden [email protected] Owe is a partner and head of Setterwalls WARREN PHELOPS All rights reserved. Publication in whole or in Law Firms Sports, Media and K&L Gates part in any medium, electronic or otherwise, MICHAEL BRADER Entertainment Law Department. He has Warren is Head of the Global Sports without written permission is strictly prohibited. Wiggin LLP acted as counsel for the media and Practice. He specialises in business ISSN 1742-0040 Michael is head of the of the sports entertainment industry in Sweden issues relating to sport: in particular group at Wiggin LLP. He advises sports including organisers of events, TV rights ownership and exploitation; CECILE PARK PUBLICATIONS clients, including rights holders and channels and newspaper magazines. He corporate structuring and strategy; joint Cyber Security Law & Practice sports rights management and has also acted as counsel for the ventures; commercial; betting and Monthly: launched April 2015 investment companies, specifically about Swedish Football Association. gaming and media. He is co-author of Cyber Security Law & Practice provides a broadcast and new media rights. He [email protected] Butterworths: Sports Law & Practice, multi-disciplinary view on cyber security regularly advises on joint ventures and and is also a Director of the European challenges and real-world insight into how strategic partnerships between sports- GREGORY IOANNIDIS Sponsorship Association. businesses at the forefront of cyber security based interests. Michael was a Partner at Sheffield Hallam University and Kings [email protected] are operationalising change. Olswang from 1995 and before that Chambers PRICE £510 (£530 overseas / £345 Govt). practised as a solicitor in Hong Kong. Gregory is a sports lawyer recognised for ANTONIO RIGOZZI [email protected] his expertise in anti-doping litigation and Lévy Kaufmann-Kohler, Switzerland E-Commerce Law & Policy other sports regulatory matters. One of Antonio is a founding partner and heads Monthly: launched February 1999 PROFESSOR LORNE CRERAR his most notable cases was the Greek the sports law and arbitration practice at E-Commerce Law & Policy is a unique source Harper Macleod Sprinters case, where he acted as Lévy Kaufmann-Kohler. As an advisor to of analysis and commentary on global Professor Crerar LLB (Hons) NP is a Counsel for Mr Kenteris and Ms Thanou international federations, clubs, teams, developments in e-business legislation. founding partner of Harper Macleod and before the CAS and negotiated a multi- athletes and others, he specialises in PRICE: £525 (£545 overseas). is presently its Chairman. He is retained million pound out-of-court settlement acting as counsel before the CAS, the by several institutions as their principal with the IAAF. He is a senior lecturer at BAT and other tribunals, as well as in E-Commerce Law Reports legal advisor. Formerly a senior rugby Sheffield Hallam University. related court proceedings. Six issues a year: launched May 2001 referee, Lorne is advisor to The Scottish [email protected] [email protected] The reports are authoritative, topical and Rugby Union on legal issues regarding relevant, the definitive practitioners guide to e- discipline and their Discipline Panel AMRUT JOSHI MICHAEL STIRLING commerce cases. Chairman. He is an International Rugby Gamechanger Law Advisors Global Sponsors PRICE: £525 (£545 overseas). Board ‘elite judge’ and was the Judicial Amrut is the Founder of Gamechanger Michael Stirling is retained as an advisor Officer for the Rugby World Cup 2011 Law Advisors, a sports consulting firm by Champions League football clubs and E-Finance & Payments Law & Policy [email protected] with a presence in Bangalore, India and across sport. He provides analysis for Monthly: launched October 2006 Singapore. Amrut advised athletes, BSkyB, CNN, BBC, Bloomberg TV and E-Finance & Payments Law & Policy provides MAX DUTHIE management companies, league ITV. He has been published in the Wall all those involved in this evolving sector with Bird & Bird, London promoters in a previous role as a lawyer. Street Journal, the FT, Forbes, practical information on legal, regulatory and Max is a partner in the Sports Law [email protected] Newsweek and BusinessWeek. policy developments. Group at Bird & Bird. A former [email protected] PRICE £649 (£669 overseas). professional rugby union player, Max has GREGOR LENTZE advised on sports law issues in the UK Lentze Stopper Rechtsanwälte, Germany RICHARD VEROW eHealth Law & Policy and Australia. Max has acted for Gregor is Managing Director of Lentze Sky Sports Monthly: launched November 2013 governing bodies, event organisers, Stopper Rechtsanwälte. He was Richard is Commercial Director - Sky eHealth Law & Policy delivers analysis on the rightsholders, sponsors, clubs and previously Managing Director of FIFA Sports. Previously a commercial lawyer for legal and regulatory developments in eHealth athletes. Marketing & TV Germany and Head of the International Cricket Council; has and on the evolving technological solutions [email protected] Legal Affairs at FIFA Marketing AG. He worked in entertainment, media and sport that are transforming healthcare. advises international sports federations and was senior counsel for UEFA. PRICE £649 (£669 overseas / £345 Govt). JON ELLIS and clubs on commercial sports rights. [email protected] Charles Russell Speechlys [email protected] Data Protection Law & Policy Jon is a commercial litigator who TREVOR WATKINS Monthly: launched February 2004 specialises in sports law. He advises the PROFESSOR RICHARD MCLAREN Pinsent Masons Data Protection Law & Policy is dedicated to Football Association (‘FA’), and also has Western University Canada Trevor is Head of Sport at Pinsent making sure that businesses and public experience in cricket, horseracing and Member of the Faculty of Law at Masons. He led the rescue and services alike can find their way through the Formula One. He acted for the FA in its Western University Canada. Chairman of restructuring of AFC Bournemouth regulatory maze to win the rewards of case against Paul Stretford and in the Advisory Board Marquette University before becoming Chairman. He advises effective, well-regulated use of data. implementing the current Player Agents Sports Law Institute. Founding Co-Chief clients in the fields of horse racing, rugby PRICE £510 (£530 overseas / £345 Govt). Regulations; acted for the Indian Premier Arbitrator of the Sports Dispute and motor sport. He represents League (‘IPL’) in prosecuting its first ever Resolution Centre of Canada. Arbitrator sponsors, rights holders, governing World Online Gambling Law Report doping case; and advised Yorkshire for National Hockey League salary bodies and investors. Monthly: launched April 2002 Cricket Club on disciplinary matters. arbitrations & NHL Players’ Association [email protected] World Online Gambling Law Report provides [email protected] agent disputes. President of FIBA’s up-to-date information and opinion on the key Basketball Arbitral Tribunal. DAVID ZEFFMAN issues confronting the industry. LUCA FERRARI [email protected] Olswang, London PRICE £649 (£669 overseas). Withers LLP David is a partner and head of the sports Luca joined Withers LLP in 2014. His DR. LAILA MINTAS practice at Olswang. His clients include World Sports Law Report practice focuses on contracts, regulatory Consultant Attheraces, the British Horseracing Monthly: launched September 2003 and disciplinary issues, labour and Laila is a Lawyer and Consultant. Authority, Eurosport, FIFA and the RFU. World Sports Law Report is designed to commercial arbitration, disciplinary Previously, Laila served as Director of He has previously advised the address the key legal and business issues proceedings, corporate and international Sports Integrity at CONCACAF and Government on the future funding of that face those involved in the sports industry. commercial transactions, personal Head of Legal and International British horseracing. PRICE £649 (£669 overseas). insurance, antitrust, copyright, media Development for FIFA's Early Warning [email protected] licensing and production contracts. System. She is a professor for Sports DataGuidance Launched December 2007 The global platform for data protection and privacy compliance. 02 www.dataguidance.com DISCRIMINATION US women’s soccer dispute could jeopardise Rio entry the competing claims could have requested bargaining prior to the The United States Women’s significant implications for the commencement of March training National Soccer Team, arguably the immediate future of US women’s camps. most successful women’s side in soccer and the upcoming the sport, has recently rallied Olympics. USSF brings suit against the US Soccer Federation’s The parties met on 3 February The 2005 CBA 2016, and during that meeting, policies on player compensation The USSF and USWNT were USWNT allegedly refused USSF’s that results in lower pay for female parties to a CBA entered into in request for assurance that USWNT players. The discussion could have December 2005 (the ‘2005 CBA’) players would not engage in a overarching implications for soccer which contained a no-strike/no- strike prior to December 2016. lockout provision, providing that USWNT’s position provides it with not only in the United States but ‘[n]either the [USWNT] nor any substantial bargaining leverage in around the world. Frank Ryan, player shall authorize, encourage, negotiations for a new CBA, as a Harriet Lipkin, Kevin Harlow and or engage in any strike, work strike could jeopardise the team’s Matthew Ganas of DLA Piper stoppage, slowdown or other participation in the 2016 explain the origin of this concerted interference with the Olympics. USSF has acknowledged activities of the [USSF] during the this, stating that “[g]iven the confrontation, the proceedings term of this [CBA].’ The CBA extreme consequences [of a strike], initiated by each party and the expired on 31 December 2012. the only alternative for US Soccer potential consequences for the would be to accede to National Team’s participation in the The parties’ MOU unreasonable negotiation demands In subsequent negotiations, the from the [USWNT] to avoid such upcoming Rio Olympic Games. parties agreed to a Memorandum detriments.” Thus, USSF filed suit, of Understanding (‘MOU’) with seeking a judicial declaration that a In a dispute that may affect the various provisions concerning binding CBA is in effect (consisting future of women’s soccer and the compensation and other terms and of the terms of the 2005 CBA and Summer Olympics, on 3 February conditions of employment, but the MOU) through to December 2016 the United States Soccer without a no-strike/no-lockout 2016, including the no-strike Federation (‘USSF’) filed an action clause. According to USSF, the clause. for declaratory relief against the parties contemplated that the 2005 USWNT claims that USSF has United States Women’s National CBA and the MOU would known of USWNT’s position since Soccer Team Players Association Frank Ryan eventually be combined into a July 2015; that if the parties’ intent (‘USWNT’) requesting that the single document, and agreed that, was to incorporate the terms of the Illinois Federal District Court until then, the new CBA would 2005 CBA, they would have done declare that a binding Collective consist of the terms of the 2005 so; and that USWNT has not Bargaining Agreement (‘CBA’) is in CBA (including the no-strike threatened to strike (it merely effect between the parties, clause) as modified or amended by reserved the right to strike). preventing the USWNT from the terms of the MOU. USSF The court has granted an striking in order to gain bargaining contends that the term of the new expedited discovery and dispositive leverage during negotiations in CBA was four years - expiring after motion schedule. If the court is advance of the 2016 Summer the 2016 Olympics - as set forth in able to resolve the case on Olympics. a provision that reads ‘Term of summary judgment motions to be On 30 March 2016, the USWNT WNT Contract - 4 years.’ argued in May 2016, a decision countered by filing an In December 2015, USWNT may follow shortly thereafter. But if administrative claim with the notified USSF of its intention to a trial is necessary, the matter may United States Equal Opportunity terminate or modify the MOU, and not be resolved before the 2016 Employment Commission to challenge the existence of a Olympics. (‘EEOC’), alleging that USSF binding CBA. In a series of emails, discriminates against female soccer USWNT expressed its position that USWNT counters with pay players by paying them no CBA was in place, that the discrimination claim significantly less than their male Harriet Lipkin MOU is terminable at will, and On 30 March 2016, in the midst of counterparts without any valid that USWNT was considering the federal lawsuit, five prominent legal justification. The outcome of terminating the MOU. USWNT female players on behalf of the

World Sports Law Report - April 2016 03 DISCRIMINATION

USWNT filed an administrative By reserving position is ultimately successful, it negotiations, the parties’ claim with the Equal Employment its right to has certainly increased the bargaining history, and their Opportunity Commission strike, the USWNT’s bargaining leverage and informal correspondence. If such (‘EEOC’), alleging that female USWNT can position in renewed CBA evidence is disputed, the case may potentially players are paid significantly less jeopardise negotiations. Although US not be conducive to resolution on than their male counterparts the United women’s soccer has been steadily a pre-trial summary judgment without any valid legal States’ increasing in popularity, public motion, which means that, unless justification. The claim alleges that participation attention is most focused around the parties settle out of court, there the women’s team has enjoyed in the 2016 the World Cup and Olympic is a considerable chance that the Olympics much more on-field success, that and, to some Games. By reserving its right to lawsuit will not be resolved before the women’s team members extent, the strike, the USWNT can potentially the 2016 Olympics. If, however, the perform substantially the same immediate jeopardise the United States’ USSF were to prevail on summary duties as the men’s team, and that future of participation in the 2016 Olympics judgment, the USWNT will lose women’s the women’s team is more soccer in the and, to some extent, the immediate the current ace in its pocket - profitable for the USSF than the United States future of women’s soccer in the threatening to strike before the men’s team, yet the women are United States. According to the 2016 Summer Olympics. paid substantially less than the USSF, should the USWNT strike In the EEOC charge, the USSF men. In response, the USSF after the time passes for the USSF will likely bear the burden to prove emphasised its efforts to advance and the United States Olympic that bona fide factors other than the women’s game, including its Committee to submit an alternate sex explain the pay disparity. In campaign to introduce women’s player roster, the USSF may be response to the players’ claim of soccer into the Olympics, the unable to name a replacement substantially less overall inclusion of prize money for the Olympic team and could be forced compensation, the USSF’s press women’s World Cup, and its to withdraw from the Olympics ‘to releases suggest that it will argue founding of the National Women’s the substantial embarrassment, and that revenue, profit, and popularity Soccer League. It also criticised the financial detriment, of US Soccer, drive the pay differentials. accuracy of the figures cited by the Kevin Harlow the USOC and the United States.’ Although the mere existence of a female players, claiming that the While the pay discrimination CBA is not an absolute defence to men’s team produced revenue and charge is unlikely to immediately pay discrimination, the USSF’s attendance figures about double impact the USWNT’s participation counsel has also noted that there that of the women’s team, and that in the Olympics, it has increased are CBA variations more men’s team’s television ratings were the pressure on the USSF by favourable to women, such as higher. drawing significant public health, injury, and severance If the parties are unable to resolve attention to the pay disparity at a benefits, as well as maternity leave. this dispute through a mediated time when the USWNT’s Regardless of which side ultimately settlement, the next step will be for popularity is peaking. The timing prevails, the charge and any the EEOC to investigate the charge. is also opportune from a legal and subsequent lawsuit are unlikely to Given the magnitude and scope of political standpoint, as there is be resolved quickly, further the charge, that investigation is currently substantial debate over strengthening the USWNT’s unlikely to close before the 2016 the interpretation and application bargaining leverage in continued Olympics. If the EEOC finds of equal pay laws and a renewed negotiations. probable cause of pay push for strengthened protections. discrimination, it may then As to the merits of the competing Frank Ryan Partner Harriet Lipkin Partner prosecute a federal court action on claims, the outcomes remain Kevin Harlow Associate the female players’ behalf, or the uncertain. In the federal court Matthew Ganas Associate players can pursue the case action, from the filings to date, it DLA Piper, New York through private counsel. Even if appears that the written terms of [email protected] [email protected] the EEOC finds no probable cause, the MOU do not expressly provide the players can still pursue their that the terms of the 2005 CBA will claim in federal court. continue in effect, and that the Matthew Ganas parties anticipated completing a Practical implications of the full successor CBA at a later time. actions The case will depend largely upon Whether or not the USWNT’s testimony of those involved in

04 World Sports Law Report - April 2016 ESPORTS eSports: league ownership, structures and growing pains The global phenomenon of digital entertainment company) in The growth of eSports has competitive gaming that has the summer of 2015. outpaced the development of facilitated the rise of eSports over The potential for conflict of commercial, legal and integrity the last few years has meant that interests and competition law structures. As often happens with the value of prize money, concerns are clear in both MLG technology driven business, eSports sponsorship and streaming and ESL’s ownership structures. opportunities have risen MLG controls access to some of is several steps ahead of any exponentially alongside the sport. the major games that are used in attempt to regulate and organise This has coincided with major eSports and could in theory create the activity. Nick White and Daniel investment by well known names anti-competitive rules such as only Alfreds of Couchmans LLP review and organisations including Mark licensing Call of Duty to the Cuban 1, the entrepreneur and tournaments and leagues operated the issues arising from the growth of owner of the National Basketball by Activision Blizzard. On the eSports, particularly the need for an Association’s (‘NBA’) Dallas other hand, a large media adequate league structure, and the Mavericks, and Amazon, which of conglomerate like the Modern integrity issues and conflicts of course purchased Twitch 2 in the Times Group, which has also interest in this constantly changing summer of 2014 for around $1 acquired the biggest Scandinavian billion. eSports event organiser arena. The revenue increase for those DreamHack 4 and presumably may involved has grown at a startling be looking to acquire others, could pace compared with traditional make it harder for smaller leagues sports. Whilst the increase in and competitions to compete and funding at all levels is a boon for survive potentially causing eSports, there is a much greater competition law complaints. risk of quick growth leading to Another area of concern is the problems like conflicts of interest possibility of a single owner and competition law issues. controlling more than one team. If teams sharing a controlling owner Conflicts of interest, are able to compete in the same competition law and integrity tournaments or leagues, this may At the moment, unlike most lead to integrity concerns as the traditional sports, eSports has no teams could meet each other, and centralised governing body to the owner could theoretically apply and enforce a standardised arrange matters in favour of one or set of rules across the industry to other team. In some traditional prevent competitive conflicts. This sports regulation is in place to has meant that the ownership and address this possibility. For running of leagues and example, Rule I.5 of the Rules of tournaments has been left to the the English Premier League (‘EPL’), market. Within the last year, two of prohibits the holding of more than the biggest operators, Major 10% of the shares in any EPL club League Gaming (‘MLG’) and the by anyone who has shares in any Electronic Sports League (‘ESL’), other club. have been acquired by very different kinds of entity. MLG is Possible model ownership owned and operated by Activision structures Blizzard which produces many Unsurprisingly perhaps in this popular eSports games like Call of increasingly digital and connected Duty and Starcraft whilst the ESL, world, eSports is at present the self proclaimed ‘world’s largest developing and consolidating eSports company,’ had the majority considerably quicker than of shares in its holding company, traditional sports ever did. It is not Turtle Entertainment, bought by unreasonable to imagine the the Modern Times Group 3 (a organisation and ownership

World Sports Law Report - April 2016 05 ESPORTS

structure of the major leagues The owner investors of successful tasks like UEFA licensing) the converging with those found in teams are rewarded in the first shareholders are the ultimate traditional sports. In the absence of place by an increase in the decision making body. a unified worldwide governing management fee rather than Both the clubs and the EPL body to administer eSports, we through an increase in the value of propose rules with each club being look below at three ownership the club they operate. If the league entitled to a single vote. All rule models and structures currently as a whole does well, the owner changes and major commercial found in traditional sports that we investors - and the non-owner agreements require the votes of could find eSports leagues, Nick White investors - will all benefit from an two thirds of the clubs (14 in total) tournaments, publishers and teams increase in the value of their to be agreed. All commercial developing: investment. revenues are then divided equally 1. the single owner model; The integrity of the structure in between the members with 2. the team ownership model; terms of sporting competition is additional funds being granted and seldom questioned. All teams are based on TV appearances and 3. the franchise model. essentially in the same position in finishing league positions with that they have a common owner. individual club revenues being 1. Single ownership of the teams This structure was challenged in retained. Major League Soccer (‘MLS’) is the US courts in Fraser v. Major The integrity of the league is kept probably the biggest league to date League Soccer 5, however, in which in check by each team having an that has successfully applied a eight MLS players claimed that the equal weight of vote and internal single owner model. MLS and its investors acted as a rules like Rule I.5 mentioned Under this structure the MLS single entity and unlawfully above. owns outright each team that lessened the value of its players’ participates in the league and services and conspired to 3. Franchise therefore has the sole power to monopolise the first division of The MLS aside, the major recruit players, negotiate their soccer. The District Court (and professional sports in the US tend salaries, pay the players from later the Court of Appeals) to be based on a version of this league funds and to a large extent dismissed the claim based on the model. The NBA for example is an decide which team the players play fact that the MLS was both unincorporated body, run as a for. competing with other soccer joint venture between the teams. The league itself is owned by two leagues in the US and soccer Each team is licensed by the NBA distinct groups, owner investors leagues around the world. A single to associate itself with the league and non-owner investors. These ownership model has not to our and operate in accordance with the groups form the MLS knowledge been tested in Europe. NBA Constitution and Bylaws (the Management Committee which is ‘Rules’), usually in an exclusive in charge of running and 2. Team ownership of the league territorial zone. Team owners organising the league. Variations on this model are fairly together own a corporate entity The owner investors have signed common. Perhaps the most called NBA Properties that has operating agreements with the famous example is the EPL. exclusive control over the licensing MLS allowing them to operate Under this structure the EPL is a of the league itself and the teams. teams, for example AEG with the private limited company that has The Rules set out what the league LA Galaxy and Stan Kroenke with 21 shareholders. Each of the 20 together with each team can do. the Colorado Rapids. Whilst both clubs that are playing in the The NBA has a Board of AEG and Kroenke might be competition at any given time is Governors which is made up of a referred to as ‘owners’ of the teams granted a share (together with the representative from each team. they only in fact have stakes in the English Football Association’s Whilst in general the league itself MLS itself. ‘Golden Share’). sets its own rules the Board of The MLS Management Each member club is Governors can vote on certain Committee pays a management fee independent from the others and is issues such as new franchises and to each team operator which is run in accordance with the rules of the removal of a franchise owner 6. usually based on a share of all football. Whilst the EPL is The financial model has varied sponsorship and local broadcast responsible for the day to day over time but usually means that revenues and approximately 50% running of the competition (as all of the franchises place a certain of any match day revenue received. well as various other administrative amount of their individual revenue

06 World Sports Law Report - April 2016 ESPORTS

into the league, perhaps 50%, If eSports is become more robust and powerful draw in more sponsors and which then uses a formula to to continue but the sport seems to have a way investors, and may also increase distribute this pot amongst all of to grow and to go yet. There is another competition for the rights amongst the teams based on various flourish, challenge as well: any such broadcasters and/or streaming some of the elements. The result is that more competition structure would need to take into platforms. commercially successful teams may law concerns account and recognise the Speculation of this nature is of in fact be net contributors to the and integrity concerns and demands of the course a recipe to be proven wrong league (as the amount they put in issues publisher as an eSport league or and given the central role played in is greater than what they receive) referred to tournament is nothing without the eSports by rapidly evolving digital earlier in this whilst others will be net recipients. piece will game itself. technologies and networks, we are This more ‘egalitarian’ approach is need to be If eSports is to continue to grow only too aware that making highly characteristic of American tackled and flourish, some of the predictions is an uncertain game to sport and contrasts with the more competition law concerns and play. Right or wrong, the future of ‘free market’ approach of, for integrity issues referred to earlier in eSports is fascinating and we look example, the EPL. this piece will need to be tackled. forward to following and Governance structures and participating in its continuing Conclusion regulatory frameworks will be evolution. There are currently hundreds of needed to develop and mature. At teams worldwide competing in a the same time, eSports will need to Nick White Partner Daniel Alfreds Associate variety of eSport tournaments. find ways of increasing the level of Couchmans LLP, London Even though some teams have certainty and stability around its [email protected] started to establish themselves as leagues and teams. One intriguing [email protected] permanent fixtures on the eSports possibility is that a publisher or scene this is the exception rather tournament organiser will seek Disclaimer: this article was finished and submitted before FACEIT and Twitch than the rule. A striking example of either to establish or acquire its launched the eSports Championship this is shown by Valve’s ‘The own teams thereby potentially Series under a co-ownership model on 6 International’ Dota 2 tournament constituting a single ownership April 2016. in which 72% of the teams that model. Stability would be achieved 1. http://www.polygon.com/2015/11/ competed in 2013 no longer with all of the power and control 23/9782788/mark-cuban-esports-colin- existed a year later 7. over an eSport being consolidated cowherd-idiot-fined Part of the longer term solution in one place. However, such a 2. http://www.bbc.co.uk/news/technolo gy-28930781 to this problem may lie in the structure will also place all of the 3. http://www.turtle-entertainment.com/ structures adopted by the commercial risk on the news/mtg-to-acquire-the-majority-stake- tournaments, leagues and teams. At organisation running it. in-the-worlds-largest-esports-company/ present, the identity of Mitigating this issue, and creating 4. https://www.mtg.com/press-releases /mtg-acquires-dreamhack/ participating teams in most a system whereby some 5. 284 F.3d 47 (1st Cir. 2002). tournaments or leagues involve commercial risk is spread to the 6. http://www.cbssports.com/nba/writer/ invitation, qualification or a teams, may be achieved in part in ken-berger/24657297/sale-of-clippers- combination of the two. In terms the short and medium term to-steve-ballmer-closes-donald-sterling- out of stability and a sense of through evolution from the 7. http://www.dailydot.com/esports/do permanence for the tournaments, Daniel Alfreds current ‘invitation/qualification’ ta-2-prize-distribution-players/ leagues and teams, such a model is model to a version of the more probably less effective than any of robust - if more rigid - franchise the structures looked at above. model. Developers, tournament The team ownership model organisers and perhaps in due whereby the teams own the league course governing bodies will be (like the EPL) seems to be a long able to set clear rules on ownership way off, especially with such and potential conflicts of interest unpredictability concerning which whilst ensuring all eSports teams will still be around in a stakeholders have greater certainty year’s time. A model of this kind over which teams will be may become a more realistic participating in which events next possibility if leading teams year, the year after, and so on. This continue to consolidate and stability should in turn help to

World Sports Law Report - April 2016 07 CASE LAW A year of proceedings on overdue payables in review rent 14 , etc. Where a contract merely What determines the Article 12bis of the Regulations on stipulated the player’s entitlement applicability of Article 12bis in the Status and Transfer of Players to a round-trip flight ticket, the time? (‘FIFA Regulations’) came into force club’s financial obligation was The signing date of the underlying on 1 March 2015. The aim was to valued using the information agreement nor the due date of the establish an efficient and effective provided by FIFA Travel 15 . financial obligations determine the A transfer agreement provided applicability of Article 12bis. The mechanism with respect to overdue for penalties at a rate of 10% for sole decisive element is the date of payables. Sébastien Ledure, each installment of the transfer fee the lodging of the claim: Article Managing Partner of Koan Lorenz, that would be overdue. These 12bis applies to all claims lodged and Wouter Janssens, Associate of penalties were granted as separate after 28 February 2015, even if the principal amounts, themselves underlying agreement was signed Koan Lorenz and Assistant inducing interest 16 . Hence, it and/or the financial obligations Professor of the University of appears to be possible to were due before this date 24 . Leuven, provide a breakdown of the successfully lodge a claim solely published case law on overdue with respect to penalties when the Who can lodge a claim? payables under Article 12bis. corresponding principal amounts It is generally accepted that the have been paid after their due protection of Article 12bis is date 17 . limited to players and clubs. At present, no cases on fast track Nevertheless, it has been asserted Which kind of agreements proceedings handling overdue that coaches would also fall within can be enforced? training compensations and/or the scope of Article 12bis 25 . At Article 12bis paragraph 1 solidarity contributions have been present, no cases on fast track constitutes an affirmation of the published. proceedings involving other basic legal principle of pacta sunt In any event, the club’s financial individuals than players have been servanda : clubs are required to obligations must be fully published. comply with their financial substantiated and unconditional. obligations as per the terms Bonuses allegedly stipulated in the When to lodge a claim? stipulated in their contracts with club’s internal rules but not in the Pursuant to paragraphs 2 and 3 of players and in their transfer employment agreement were not Article 12bis, a club is considered agreements with other clubs. granted in absence of a copy of the as having overdue payables in case The contracts with players are not said internal rules 18 . A signing fee it has delayed a due payment for limited to employment agreements subject to the agreement of both more than 30 days and the creditor but also cover related settlement or the club and the player was not (player or other club) has put the termination agreements 1 as well as retained 19 . club in default in writing, granting private agreements 2. The transfer a deadline of at least 10 days (not agreements include both transfers 3 What is a prima facie business days). and loans 4. contractual basis? It is generally accepted that the Pursuant to Article 12bis default letter can only be sent as Which kind of overdue paragraph 2, clubs can justify from the 31st day after the relevant payables can be claimed? overdue payables by invoking a due date. Hence, clubs are granted The financial obligations resulting prima facie contractual basis. At a grace period of 41 days. However, from the abovementioned Sébastien present, no prima facie contractual a salary payment that was (i) agreements are mainly salaries, Ledure basis was accepted in any of the included in a default letter, (ii) not signing fees 5, bonuses 6, termination published cases. External events delayed for more than 30 days at indemnities 7, transfer fees 8 and like the entry of new the moment of the sending of the loan fees 9. shareholders 20 , financial default letter and (iii) delayed for Moreover, Article 12bis can be difficulties 21 , payment difficulties more than 30 days at the moment invoked with respect to any relating to bank authorisations 22 or of the decision, was added to the financial obligation that is issues following the hosting of overdue payables 26 . Consequently, it contractually valuated: costs of events by third parties in the club’s appears to be possible to transportation (flights 10 , trains 11 , stadium 23 do not exempt clubs successfully put a club in default as taxis 12 ), costs of medical from fulfilling their financial from the 1st day after the relevant investigation (ultrasounds 13 ), and obligations. due date and lodge a claim as from

08 World Sports Law Report - April 2016 CASE LAW

the 31st day after the relevant due date, reducing the grace period to Figure 1: 31 days. Procedural Overdue payables Procedural compensation In any event, the two years statute compensation of limitation following paragraph 5 Up to CHF 50,000 Up to CHF 5,000 of Article 25 of the FIFA Regulations must be respected. Hence, any claim under Up to CHF 100,000 Up to CHF 10,000 Article 12bis must be lodged before two years have elapsed since the due date of the relevant financial Up to CHF 150,000 Up to CHF 15,000 obligation.

Where to lodge a claim? Up to CHF 200,000 Up to CHF 20,000 Claims under Article 12bis can be lodged with the Dispute Resolution Chamber (‘DRC’), the DRC Judge, As from CHF 200,001 Up to CHF 25,000 the Players’ Status Committee (‘PSC’) or the PSC Single Judge as far as they feature a dispute with In default of contractual might be deemed paradoxical that an international dimension. At stipulations, interest is being FIFA’s compensation and workload present, no cases on fast track applied ex officio at a rate of 5% relate inversely. proceedings with the PSC have per annum 28 as from the moment been published. requested (at earliest as from the Which kind of sanctions are With respect to purely national day after the relevant due date 29 but being imposed? disputes on overdue payables, each also as from the day of the lodging Despite their discretion resulting member association was obliged to of the claim 30 ) or, in default of such from the term ‘may’ in paragraph 4 integrally implement Article 12bis request, as from any moment of Article 12bis, the competent into its domestic regulations. At between the lodging of the claim 31 bodies systematically impose present, various member and 30 days after the date of the sanctions to the condemned party, associations have not yet notification of the decision 32 . irrespective of any request from the implemented Article 12bis or prevailing party 38 . The following appointed the competent body to Is procedural compensation cascade of sanctions can be handle fast track proceedings. The being granted? distinguished: position of clubs and players of Neither the DRC 33 nor the DRC G a warning if the club replied such member associations facing Judge 34 grant procedural and is not a recidivist 39 ; overdue payables is being compensation to the prevailing G a reprimand if the club replied jeopardised as a complaint against party. While the PSC Single Judge, and is a recidivist 40 ; such member associations filed ex officio , grants procedural G a fine if the club did not reply before FIFA would not directly compensation to the prevailing and is not a recidivist 41 ; result in the recovery of the club 35 . G a fine if the club replied and is overdue payables. The procedural compensation is a recidivist 42 ; based on the following schedule G an elevated fine if the club did Is interest being granted? (see Figure 1), irrespective of any not reply and is a recidivist 43 ; and Interest can be applied on the request from the prevailing club. G a transfer ban if the club did principal amounts of the overdue The PSC Single Judge consistently not in a timely manner execute the payables as from the moment and grants the maximum amount in decision and is a recidivist 44 . at the rate stipulated in the default of reply by the debtor club 36 contract. However, excessive or and a mitigated amount in case of What fines are being disproportionate rates can be reply by the debtor club 37 . The imposed? mitigated or even rejected. Interest procedural compensation appears The fines, which are allocated rates contractually stipulated at a to be allocated at approximately 100% to FIFA, appear to rate of 12% per annum were 20-35% to the prevailing club and approximate the following accepted 27 . 65-80% to FIFA (see Figure 2). It percentages of the principal

World Sports Law Report - April 2016 09 CASE LAW

Date of decision Reply Overdue Procedural com - Prevailing club FIFA payables pensation

7 May 2015 Yes €1,000,000 CHF 20,000 CHF 5,000 CHF 15,000

11 June 2015 No €95,000 CHF 10,000 CHF 2,000 CHF 8,000

29 July 2015 No €1,070,000 CHF 25,000 CHF 5,000 CHF 20,000

11 August 2015 Yes $690,000 CHF 15,000 CHF 5,000 CHF 10,000 amounts of the overdue payables 17. Ibid. Figure 2: 18. Decision of 2 September 2015 of the (see Figure 3): Procedural Sébastien Ledure Managing Partner Wouter Janssens Associate DRC Judge. G imposed by the PSC Single compensation Koan Lorenz, Brussels 19. Decision of 3 November 2015 of the Judge: 5-15%; [email protected] DRC Judge. imposed by the DRC: 15%; [email protected] 20. Decision of 13 October 2015 of the G DRC Judge. and 21. Decision of 6 November 2015 of the G imposed by the DRC Judge: 1. Decisions of 8 July, 5 October and 26 DRC. 10-25% and up to 40% for November 2015 of the DRC Judge; 22. Decision of 7 May 2015 of the PSC decision of 15 October 2015 of the Single Judge. moderate overdue payables. DRC. 23. Decision of 11 August 2015 of the 2. Decision of 16 September 2015 of the PSC Single Judge. How long do proceedings DRC Judge. 24. Decision of 15 October 2015 of the 3. Decisions of 7 May and 11 August take? DRC. 2015 of the PSC Single Judge. 25. ‘Article 12bis of the FIFA RSTP Proceedings last on average one- 4. Decisions of 11 June and 29 July celebrates its first birthday: an update,’ two months and exceptionally up 2015 of the PSC Single Judge. 15 February 2016, Thomas Geukes to six months. 5. Decisions of 12 June, 3 July and 3 Foppen. November 2015 of the DRC Judge; 26. Decision of 1 October 2015 of the Pursuant to Article 12bis decision of 15 October 2015 of the DRC Judge. paragraph 9, the lodging of a claim DRC. 27. Decision of 11 August 2015 of the under Article 12bis is without 6. Decisions of 2 September, 16 PSC Single Judge. September, 1 October and 3 November prejudice to the application of 28. Decisions of 7 May 11 and August 2015 of the DRC Judge; decisions of 15 2015 of the PSC Single Judge; decision further measures under Article 17 Wouter October and 6 November 2015 of the of 3 July 2015 of the DRC Judge. to the FIFA Regulations. Janssens DRC. 29. Decision of 29 July 2015 of the PSC Considering (i) the grace period of 7. Decisions of 8 July, 5 October and 26 Single Judge; decision of 2 September November 2015 of the DRC Judge; at least 31 days under Article 12bis, 2015 of the DRC Judge; decisions of 15 decision of 15 October 2015 of the and 27 October 2015 of the DRC. (ii) the duration of proceedings DRC. 30. Decision of 8 July 2015 of the DRC under Article 12bis and (iii) the 8. Decisions of 7 May and 11 August Judge. grace period of at least two or 2015 of the PSC Single Judge. 31. Decision of 7 May 2015 of the PSC 9. Decisions of 11 June and 29 July Single Judge; decision of 15 October preferably three months under 2015 of the PSC Single Judge. 2015 of the DRC. Article 17, under certain 10. Decision of 16 September 2015 of 32. Decision of 3 July 2015 of the DRC circumstances it might be an the DRC Judge. Judge; decision of 11 August 2015 of 11. Ibid. option for a player to counter the the PSC Single Judge. 12. Ibid. 33. Decision of 15 October 2015 of the lack of timely execution of a 13. Ibid. DRC. decision under Article 12bis via the 14. Decision of 3 November 2015 of the 34. Decisions of 12 June, 8 July, 2 unilateral termination of the DRC Judge. September, 1 October, 13 October, 2 15. Ibid. November and 3 November 2015 of the underlying agreement in 16. Decision of 11 August 2015 of the DRC Judge. accordance with Article 17. PSC Single Judge. 35. Decisions of 7 May and 11 August

10 World Sports Law Report - April 2016 CASE LAW

2015 of the PSC Single Judge. DRC. 42. Decision of 6 November 2015 of the 36. Decisions of 11 June and 29 July 40. Decision of 26 November 2015 of DRC. 2015 of the PSC Single Judge. the DRC Judge. 43. Decisions of 3 July, 8 July and 2 37. Decisions of 7 May and 11 August 41. Decisions of 11 June and 29 July September 2015 of the DRC Judge. 2015 of the PSC Single Judge. 2015 of the PSC Single Judge; decisions 44. Decision of 27 October 2015 of the 38. So far, only in one case has no of 12 June, 16 September, 1 October, 5 DRC; decision of 26 November 2015 of sanction been imposed: decision of 11 October, 13 October, 2 November, 3 the DRC Judge. August 2015 of the PSC Single Judge. November, 12 November and 30 39. Decisions of 13 October and 18 November 2015 of the DRC Judge; November 2015 of the DRC Judge; decision of 15 October 2015 of the decision of 15 October 2015 of the DRC.

Figure 3: The fines being imposed

Competent body Date of decision Overdue payables Fine PSC Single Judge 11 June 2015 €95,000 CHF 10,000

FPSC Single Judge 29 July 2015 €1,070,000 CHF 60,000

DRC 15 October 2015 $118,750 CHF 15,000

DRC 6 November 2015 $111,400 CHF 15,000

DRC Judge 12 June 2015 €39,000 CHF 5,000

DRC Judge 3 July 2015 $40,000 CHF 10,000

DRC Judge 8 July 2015 €4,500 CHF 2,000

DRC Judge 2 September 2015 €13,600 CHF 4,000

DRC Judge 16 September 2015 €3,080 CHF 1,000

DRC Judge 16 September 2015 €2,451 CHF 1,000

DRC Judge 1 October 2015 $34,200 CHF 5,000

DRC Judge 1 October 2015 $45,000 CHF 5,000

DRC Judge 5 October 2015 $50,000 CHF 5,000

DRC Judge 13 October 2015 291,000,000 (currency redacted) CHF 2,000

DRC Judge 2 November 2015 €5,000 CHF 1,000

DRC Judge 3 November 2015 110,000 (currency redacted) CHF 2,000

DRC Judge 12 November 2015 €5,000 CHF 1,000

DRC Judge 30 November 2015 €8,000 CHF 1,000

DRC Judge 7 December 2015 €15,000 CHF 2,000

World Sports Law Report - April 2016 11 WEARABLES Wearables technology data use in professional sports They are virtually omnipresent and real time to iPads used by The development of wearable seen on the arms of everyday Germany’s coaches and trainers technology to collect live data from athletes chasing goals from walking during training sessions before and training and competition has 10,000 steps during waking hours during the competition. The opened a valuable information to improving the quality of a International Football Association market in the sports industry. night’s sleep. Whether tracking Board (‘IFAB’), the governing body cycling mileage in Prague or caloric that determines the rules of Leagues, teams, players, even intake in Pittsburgh, fans of international football, also agents and the media now demand wearable technology like Fitbit and approved the use of wearable a constant supply of intricate Jawbone, and their many electronic performance and performance information. Brian competitors in the wearable tracking systems (‘EPTS’) in technology sector, are the competition during its annual Socolow, Partner at Loeb & Loeb in consumer face of a global industry business meeting in February 2015. New York, discusses the recent that is expected to be worth in The use comes with two conditions evolution of the use of wearable excess of $53 billion by 2019 (a - that the EPTS cannot be used technology in professional sports more than 11-fold increase over during a real time match until it and raises important questions 2014 sales), according to the has been proven to have International Data Corporation. preventative medical benefits and concerning the legal challenges that But these wrist activity trackers that it does not pose any danger to this new market represents. are just the tip of the wearable players on the field, and that the technology iceberg. Professional data is not transmitted to coaches sports leagues, clubs, teams and during play (although half-time athletes are heavily invested in review of data has reportedly not collecting and analysing the been ruled out by IFAB). In July minutest elements of athletic 2015, FIFA followed suit, performance for an ever-growing announcing its approval of the use list of uses, including enhancing of EPTS and wearable technology training and performance, during matches. At the end of preventing injury, and increasing 2015, FIFA and IFAB were fan engagement and experience, reviewing proposals by wearable whether it’s live, broadcast or technology manufacturers to second screen. establish the companies as FIFA Along with the creation of vast EPTS providers. databases of performance Players throughout Australian measurement, however, comes a Rules football and Australian host of difficult-to-anticipate legal professional rugby use Catapult issues, many of which are the result Technologies’ OptimEye S5, which of technology outpacing the law. utilises satellite reception (both GPS and Glonass), and ClearSky, a Wearables are all about the local positioning system (or indoor chips GPS). A vest fitted with a small Early adopters, such as European device at the top of the back football clubs began to measure the captures data in real time, allowing overall workload placed on players staff to make evaluations during more than six years ago. In fact, a training or competition. There is chip designed by Adidas and also the option to upload data implanted in players’ boots helped from the device’s hard drive Germany take home the 2014 FIFA following a session. World Cup. Fans may have been Once collected, raw data can be surprised to learn that the run through algorithms to miCoach elite team system was translate into information that is transmitting each athlete’s useful to coaches and trainers. A acceleration, heart rate, speed, number of cricket organisations distance, power and other details in around the world use Catapult’s

12 World Sports Law Report - April 2016 WEARABLES

products - including Cricket South Whether and performance for using motion in real time during indoor and Africa, Cricket Tasmania and the to what sensors on player jerseys. The outdoor games, as well as speed, England and Wales Cricket Board, extent teams combination of hardware and acceleration and distance data. according to the company’s website and leagues software provides biomedical data, Zebra’s MotionWorks server can impose - and there is a cricket bowling the collection including impact forces, turn rates software processes the information algorithm that measures the speed of personal and orientation, as well as tactical and produces a variety of statistics. of a ball based on a bowler’s run data on information, such as two- The NFL teams will shortly have up and release, and a goalkeeping players, and dimensional animations of the play access to the RFID data, and each algorithm that monitors dives and what can in real time or post-practice. team will decide how it wants to then be done jumps. This type of analysed data with the As a league, the National Hockey use the metrics. Last year alone, has a number of uses. In 2010, the player data is League (‘NHL’) has been slower to 2,500 players were tagged with Marylebone Cricket Club (‘MCC’), certainly an adopt analytics, but it is coming sensors, netting more than 180 known for its role as the guardian issue to be around. Catapult is developing billion bytes of player position covered by of the Laws of Cricket, began collective wearables that interpret skating data. At the NFL owners meeting funding research into wearable bargaining load and volume, player speed, in Florida in March the league technology to better detect illegal agreements force sustained in collisions and announced that it will provide throwing or ‘chucking’. The MCC and player even which of the skater’s legs is information to each team on its entered into discussions with the contracts working harder - all crucial own players. Additionally, the NFL International Cricket Council to training information for a sport will unveil a platform to crunch further explore the issue and that loses more player time due to the numbers into useful technology as a solution. injury than any other major sport. information for any team that In the United States, wearable An average team loses 242 player wants it. The league’s software will technology is widely used games each season, according to a undoubtedly compete with quite a throughout the National Football Toronto-based research study. It’s few outside vendors selling their League (‘NFL’), National Basketball unclear how the NHL will use the techniques for slicing and dicing Association (‘NBA’) and Major statistics generated by wearable data. At the MIT Sloan Sports League Baseball (‘MLB’). Pitchers technology in the future, but Analytics Conference in March, from at least 27 of 30 MLB teams avoiding injuries will undoubtedly there was significant buzz about are benefitting from the Motus be the main focus as it ramps up the possibility of a new landscape mThrow smart throwing sleeve use of analytics. for the sport, as analytics become and iOS app. In a pocket over the Perhaps the most exciting more mainstream in the NFL. elbow, a small removable sensor’s development in the use of data in While most franchises don’t know accelerometers and gyroscopes American pro sports will occur precisely all the ways that the data track arm movements with an eye after this season’s NFL draft and will be used, a significant number toward maintaining arm health. free agency are completed in May. of analytics professionals are being The device wirelessly transmits the That’s when NFL team general hired by teams that are also three-dimensional motion data to managers will get access to investing in technology systems to an app that calculates stress caused mountains of data known as ‘Next manage metrics. In the most by torque on the ulnar collateral Gen Stats’, which the league profitable of American sports, ligament. Companies including gathered during the 2015 season. wearable technology statistics are Zepp Baseball, Diamond Kinetics The lead-up to this development already influencing everything and Blast Motion have also began when all NFL players agreed from strategy on the field to developed in-bat motion sensors to to wear sensors as part of their scouting and salary cap track and analyse player swings. collective bargaining agreement in management. The combination of Data collected during training 2011. Fast forward three years and scientifically tracking players’ helps trainers, coaches and players the NFL established a partnership competition and practice learn how to optimise performance with Zebra Technologies to outfit performance is viewed as a highly and reduce the risk of injury. its stadiums with radio frequency valued tool. Professional basketball has also identification signals (‘RFID’) embraced the wearable technology technology and accumulate Wearable technology from the revolution. More than two dozen information collected using sensors fan perspective NBA teams use Catapult’s on players’ shoulder pads. The NFL fans taking in the game at the OptimEye (or similar technology) sensors capture precise location stadium or at home are to track and analyse player measurements to within six inches experiencing a radically different

World Sports Law Report - April 2016 13 WEARABLES

event than their grandparents - or Other sports are following suit. overlap certainly exists with the even their parents - did in the past. The NHL’s San Jose Sharks and issues that face professional sports The mountains of new Columbus Blue Jackets and other types of employment, information and statistics about collaborated with tech startup which is especially true of the performance of their teams and Guitammer to develop a fan questions concerning privacy and players, which are made possible by engagement experience that could confidentiality. At what point does the RFID, are broadcast in real one day extend into the wearable the information become so time. Media partners receive data technology arena. When players are personal to the player that the including player velocity, effort and cross-checked into the sensors player’s privacy rights may be fatigue to be used to add to the fan around the rink, their seats in the violated? Does a player have any experience - with real time overlays stadium shake with the impact. A reasonable expectation of and visualisations, as well as Xbox $300-$600 home adaptor kit is confidentiality in any information One’s data enriched replays. available for those fans who want about him - including the data that Thanks to their $400 million to experience more of an arena feel the team or the league collects? contract with the league, Microsoft of the crashes and slams from the In a non-sports context, litigation has also incorporated NGS in a comfort of their couches. around Dutch employee wellness number of ways. Their NGS Pick ButtKicker Live’s 4D Sports began programmes using wearables has ‘Em competition during the 2015 with sensors placed on the boards halted such initiatives in their season encouraged fans to use the at the San Jose and Columbus ice tracks. The Netherlands’ Data sensor driven statistics to select the rinks; the sensors captured and Protection Authority investigated player that would post the best distributed the impact of skater two companies with wearable overall Next Gen Stats and hits to seats in their home arenas technology programmes and ruled awarded tickets to Super Bowl 50 and fans’ homes. Since the NHL earlier this month that employees as part of the prize package. team collaborations, the ButtKicker are financially dependent on their Microsoft’s Xbox One NFL app Live collection of kits has grown to employers and therefore don’t have even features the ability to watch include kits for fans of car racing, the power to give consent when it replays from multiple angles of key the NFL and other live events. The comes to revealing sensitive plays. Those that take their passion potential exists to enhance the fan personal data including movement to the fantasy league level enjoy experience in myriad sports with and sleep patterns. Experts believe access to the same data gathered wearable technology transmitted the Dutch ruling could potentially from wearables. Fantasy football from sensors embedded in athletes’ impact the development of policies coaches have the capacity to drill uniforms and equipment. around the globe with regard to down into the data collected from wearable technology use. each athlete in every play of the Warning: uncharted legal There are also questions unique entire season. territory lies ahead to pro sports. The league is also using data to Data ownership, access and If, for example, the NFL collects enhance fans’ ‘second screen’ privacy the RFID data on players from all experience. In 2014 the NFL found Wearable technology in pro sports of the teams, are teams and players that 60-70% of fans use a second raises a host of issues around who entitled to see and use that data? If screen while watching live games - owns and has access to the data, so, what data should teams have Brian Socolow either in the stadium or at home. and what constitutes acceptable use access to? Their own? Other teams? The league noted spikes in tweet of that data. Currently, the rule Beyond teams and leagues, who traffic that perfectly aligned with appears to be ‘he who collects the in the outside world can - and does the interesting moments in games. data owns the data’ - and it appears - have access to the data, and for At the same time, viewers of the that, at least in major league sports what purposes? Whether - and to live game on TV were at an all- in the US, the leagues and teams what extent - analytical data on time high. At the rollout of NFL own at least the raw data, as well as individual players will be shared Now, an app that collects content whatever aggregation and analysis (with or without confidentiality created 24 hours a day, seven days a they undertake. protections) with broadcast week from all 32 teams, the league Here’s the rub: what can they partners, sports commentators and noted the deep, wide well of acceptably do with that analysts. What about video games information available to fans, information? and fantasy sports - do the including historic data culled from Data collection by any employer individual players have any say in the NFL Films Library. carries significant concerns, and what information is given to game

14 World Sports Law Report - April 2016 WEARABLES

manufacturers or fantasy sports collection of personal data on in wearable technology tends to platforms under agreements with players, and what can then be done outpace the development of rules, sports leagues? with the player data - including regulations or guidelines on its use. Protecting players’ privacy is who has access to it - is certainly an Pro sports leagues and teams will certainly top of mind for their issue to be covered by collective continue to grapple with unions. Representatives from the bargaining agreements and player important issues - privacy, data players’ unions for the major US contracts. For example, the security and ownership, and labour sports leagues reportedly met last announcement by the IFAB and concerns, as the applicable body of fall with the law firm that has FIFA that approved the use of ‘law’ - rules established through represented them for several wearable electronic performance collective bargaining agreements, decades to discuss how technology and tracking systems in matches regulations enacted by governing is being used in their sports and has created an atmosphere that bodies, legislation developed in the many privacy concerns faced favours increased adoption of countries around the world, and by their players. technology in international the inevitable litigation - takes Beyond the sanctioned use of football, but the pace and level of shape around the collection, use data by the league and teams, there adoption remains an open issue to and distribution of information is the very real risk of inadvertent be resolved between leagues, teams gleaned from wearable technology. data leaks and purposeful hacks. and players. For example, while The vast amount of data that Major League Soccer’s most recent Brian Socolow Partner Loeb & Loeb LLP, New York professional sports teams and collective bargaining agreement [email protected] leagues may eventually collect, reportedly calls for the league to store and use would give ‘stealing approve the use of wearable the other guy’s playbook’ a whole devices in consultation with the new meaning. Chris Correa, a players’ union, whether teams can former scouting director of the St. compel players to wear the Louis Cardinals, recently admitted technology at the team level during he hacked the Houston Astros’ matches is an open issue. player database and email system. While player performance Correa pleaded guilty to five statistics and other data have counts of unauthorised access to a always played a role in salary and protected computer from 2013 to contract negotiations, until at least 2014. Correa’s use of the recently the categories of data stolen information cost Astros available have been limited. As the about $1.7 million. The charges availability of data grows, however, carry up to five years in prison so too does the possibility that each; Correa will be sentenced in analytics may reveal information, April. including previously undetectable At the moment, it is still unclear biometric data, minute changes in what regulatory scheme, if any, player ability, or indicators of long- would offer any protection and, in term health and future injury the professional sports realm, what tendencies - information that constitutes reasonable cyber teams may interpret to predict security protection for information future declines in performance, collected from wearable technology even for athletes currently devices. And, as the data becomes performing at the top of their increasingly detailed, the risks games, and use this data in salary increase: hacking by stalkers, and contract talks. And access to improper use by management, this data may be one-sided, if demands by insurers, or requests teams and leagues are collecting for discovery in litigation. but not sharing data.

Employment and labor concerns What’s next for pro sports? Whether and to what extent teams In the world of professional sports, and leagues can impose the as in the world at large, innovation

World Sports Law Report - April 2016 15 Q&A Human rights violations inside the Qatar World Cup site Audrey Gaughran speaks to World Sports Law Report Amnesty International (‘AI’) has released a second report on the We have recommended, however, that FIFA carry out its own conditions of migrant workers participating in the construction independent inspections of labour conditions in Qatar, making of venues for the 2022 World Cup in Qatar: The ugly side of the all inspections, their findings and remedial actions public. beautiful game: exploitation on a Qatar 2022 World Cup site . AI’s Director of Global Issues and Research, Audrey Gaughran spoke Given FIFA’s current standing (regarding allegations of to World Sports Law Report about the role FIFA and member corruption), is it advisable for the organisation to take an active associations should play in monitoring working conditions in stand on Qatar’s commitment to respect labour rights? World Cup construction sites. Absolutely. Having awarded the 2022 FIFA World Cup to Qatar, it is incumbent on FIFA to engage in a robust and ongoing Qatar issued the Workers’ Welfare Standards (‘WWS’) in 2014 process of human rights due diligence that addresses the specific which, according to the report, have not been upheld. Should risks and actual impacts on the rights of individuals. On the Qatar request external assistance to enforce these standards? evidence presented, this is not happening. FIFA’s continued The WWS are enforced by Qatar’s Supreme Committee for failure to take any meaningful action on the issue of labour Delivery and Legacy, which has demonstrated a consistent exploitation means that thousands of migrant workers involved commitment to ensuring the rights of workers on World Cup in World Cup construction sites are at risk of exploitation. sites are protected. However, there are some fundamental Moreover, as football fans who travel to Qatar for the World problems with the Supreme Committee’s approach to Cup will stay in hotels, eat in restaurants and otherwise engage monitoring and enforcing the WWS, as demonstrated by the with service industries in which migrant workers are employed, abuses discovered at the Khalifa Stadium project. FIFA must consider the wider human rights context of migrant The Supreme Committee relies too greatly on compliance workers in Qatar as part of its human rights due diligence. audits, and in some cases self-audits by companies. In Al’s experience corporate self-reporting doesn’t work. The Supreme Should member associations push the newly elected President to Committee has put in place an external auditor - announced in review Qatar’s policies and practices? April. This may provide greater oversight of the WWS, but National associations have a major interest in making sure FIFA auditing alone will not identify or address all of the breaches we takes action. It is their national football teams who will be identified at the Khalifa Stadium. staying in hotels and training camps staffed by migrant workers, It is not so much a question of needing external assistance as a training on pitches grown, laid and maintained by migrant question of changing the approach to monitoring and enforcing workers, and playing in stadiums built by migrant workers. the WWS. The Committee should also take a more investigative Those teams are the pride of their country: nobody, not the approach to identifying breaches of the WWS. The Supreme fans, not the associations, wants to see them playing in a Committee’s focus has been substantially on the quality of tournament built on abuse. accommodation. While this is important, other serious issues National associations should push Gianni Infantino to take the including deception in the recruitment process, the practice of lead. Since our report came out last week, FIFA’s approach has paying workers several months in arrears, and forced labour been the same as always - pointing to vague reforms but have not received sufficient attention. indifferent to some shocking abuses. Infantino is nowhere to be We are calling on the Qatari authorities to end the system seen on the issue, in marked contrast to Qatar’s Supreme whereby employers have any influence over whether a person Committee who at least agreed to take media interviews on the can leave Qatar and to ensure migrant workers can change jobs subject. Gianni Infantino has to publicly ask Qatar to make without seeking the permission of their sponsor. In addition, urgent reforms with a concrete timetable ahead of the expected Qatar must increase its capacity to detect and address breaches peak in World Cup stadium construction in mid-2017. of the country’s labour laws. While the WWS being better enforced would help significantly, the Standards do not address Audrey Gaughran Director of Global Issues Amnesty International the core problem of the sponsorship system. This is something Contact via the editorial team we are calling on the Qatari government to address.

SIGN UP FOR FREE EMAIL ALERTS

World Sports Law Report provides a free email alert service. We send out updates on breaking news, forthcoming events and each month on the day of publication we send out the headlines and a precis of all of the articles in the issue.

To receive these free email alerts, register on www.e-comlaw.com/wslr or email [email protected]

16 World Sports Law Report - April 2016