BASL Vol 15 3
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VOLUME 15 · ISSUE 3 · 2007 sport and the law journal ISSUE 3 VOLUME 15 SPORT AND THE LAW JOURNAL Editor British Association for Sport and Law Limited Simon Gardiner c/o The School of Law, King’s College London Strand, London WC2R 2LS Editorial Board Telephone: 020 7848 2278, Fax: 020 7848 2788 Dr Hazel Hartley Murrey Rosen QC www.britishsportslaw.org Dr Richard Parrish Jonathan Taylor Martin Matthews Registered Office Registered in England. Company No. 4947540. Directors Registered Office: 66 Lincoln’s Inn Fields Michael Beloff QC: President London WC2A 3LH. Mel Goldberg: Chairman VAT Reg No. 673 5989 73 Paul Harris: Deputy Chairman Gerry Boon: Hon. Treasurer ISSN 1353-0127 Serena Hedley-Dent: Hon. Secretary Darren Bailey Graphic design Morris Bentata www.heliographic.co.uk Nick Bitel Stephen Boyd Sara Friend Edward Grayson Jane Mulcahy Walter Nichols Murray Rosen QC Sam Rush Jonathan Taylor Maurice Watkins Nick White VOLUME 15 · ISSUE 3 · 2007 Contents Editorial 2 Opinion and Practice Player Quotas in British Polo 4 Richard Bryan Sports Participation in Extreme Heat 7 Simon Gardiner Analysis "To what extent, if at all, should the 10 Gambling Commission seek to impose restrictions on gambling operators' marketing efforts in the sports sector?" Paul Groves Critique of the Regulation 18 of Football Agents Liz Ellen Survey and Reports Sports Law Foreign Update 27 Walter Cairns Sports and the Law Reports 105 1 ISSUE 3 VOLUME 15 SPORT AND THE LAW JOURNAL Editorial By Simon Gardiner, Editor This issue of the Sport and the Law Journal concerns a Secondly, Dwaine Chambers who completed a two-year number of on-going and current issues. The Opinion ban after testing positive for anabolic steroid tetra- and Practice section provides firstly a review of the hydrogestrinone (THG) in 2004 has suggested he might attempts in the minor team sport of polo to protect fight the ban in the High Court before the Beijing itself against the in flux of foreign talent. Richard Olympics. Although he has had a recent dalliance with Bryan’s ‘Player Quotas in Polo’ discusses developments Gridiron football in Europe and currently is involved with in English polo on this familiar issue in professional a rather bizarre attempt to play Rugby League for the team sports where different strategies have been used Castleford Tigers, he states that he believes that he can to work within the legal parameters that have been win an Olympic medal in Beijing in August without drawn by the Bosman and Kolpak cases. Secondly, taking performance-enhancing substances. Simon Gardiner’s ‘Sports Participation in Extreme Environmental Conditions’, concerns potential issues of What are the opposing arguments that the High Court liability especially for sports medical practitioners where would consider if it hears the case? Those that favour sporting activity takes place in extreme conditions such Chambers, would support the view that the relevant BOA as heavy pollution and extreme heat. bye–law is unreasonable in that it provides an additional ban for an individual who has already been punished with The Analysis section features two articles focusing on a ban from the relevant sports governing body. This two new regulatory frameworks. Firstly, Paul Groves’ ‘To reflects the principle of double jeopardy where being what extent, if at all, should the Gambling Commission ‘prosecuted’ and punished more than once for the same seek to impose Restrictions on Gambling Operators’ act is questionable. In addition, the concept of marketing efforts in the sports sector?’, reviews the rehabilitation in that he has ‘done the crime and served implementation of the Gambling Act 2005 with the UK in his time’ would be highlighted. Also his lawyers would a period of significant transformation as the Government point out that only Britain operates such a harsh regulation seeks to execute a comprehensive modernisation of the and it is not part of the ‘global sports law’ of WADA. existing gambling laws and to encapsulate that new system into that one single definitive piece of legislation. However, the BOA will argue that Chambers knew of Secondly, Liz Ellen’s ‘Football Agents: a Critique of the the bye-law when he began taking a prohibited drugs Football Association’s New Regulations’, evaluates these and therore had full knowledge of and intent to the new regulations which replaced a set of rules that had consequences of his actions. The bye-law will be only come into effect in 2006. A fundamental question is presented as a legitimate way to uphold the integrity of why did The FA need to introduce a different set of participation in Olympic sport. regulations, less than two seasons after the 2006 Regulations were brought in? A key point for the Court to consider will be that clearly in the current climate of a very punitive ‘war on drugs’ such Additionally the regular Sports Law Foreign Update by a life time ban is within the discourse of the regulation of Walter Cairns and the Sport and the Law Journal drugs in sport. However an important evaluation will be Reports can be found. determination of whether the bye-law is a proportionate response in all the circumstances. The clock is ticking as One on-going issue over the last few months has been the we will see what Chambers decides to do. legal standing of the life time Olympic ban operated by the British Olympic Association. This has been in the context Finally, it must be stressed that the Journal of two leading athletes. Firstly, Christine Ohuruogu’s welcomes contributions from all BASL members successful appeal against her ban from Olympic and other readers in any of the sections of the participation after serving a ban for failing to be available Journal including reviews of future sports law for a number of anti-doping tests, highlighted that where related publications. Please contact the Editor with the doping offence was minor, there were significant any suggested offerings. BASL mitigating circumstances in relation to the doping offence and there was a finding of no fault or negligence or of no significant fault or negligence in respect of the doping offence, a successful appeal is possible. Simon Gardiner [email protected] 2 VOLUME 15 · ISSUE 3 · 2007 Opinion and practice 3 ISSUE 3 VOLUME 15 SPORT AND THE LAW JOURNAL OPINION AND PRACTICE Player quotas in polo Richard Bryan, Clarke Willmott Sports Team Despite the game enjoying new levels of popularity, governing body, stipulates how many non-EU overseas polo is clearly not a game for the masses, it also stands sponsored players (OSPs) are permitted to play in a out from other team sports in that a polo player is only team at different levels of polo. Teams at the high goal as good as his pony and player handicaps exist to end of the sport, 17 to 22 goal, are limited to two create a competitive playing field. To play the game at OSPs, with exceptions made for national teams. the highest level involves a considerable financial However, tensions exist in the British game concerning backing; therefore, the ‘high goal’ professional end of those Argentines who avoid any restrictions due to the game involves teams funded by patrons or possession of an EU passport. corporate sponsors. Indeed, although polo in the UK has a form of professionalism, it is more truthful to describe It is perhaps unsurprising that tensions are high when the top tournaments as pro-am; usually a patron playing the best polo players earn over £100,000 per season in alongside three professionals. An example of England. The perception amongst British players is that sponsorship in polo and the costs involved was too many Argentines play in the UK, limiting the announced in December 2006, with the $1 million chances of young British players, and that some use EU signing of a new all-professional English team by passports as a convenience to allow them to work in Barbadian businessman Sir Charles Williams for the the UK for 5 months before returning to Argentina. 1 Apes Hill Polo Team. There are also accusations of British players being undercut by Argentine players whose fees are less It might seem strange to associate the Bosman case because of a favourable exchange rate and the non- 3 with polo; a case striking at the heart of professional payment of taxes in the UK. This has led to British football and a pro-am sport provided for by patrons. players lobbying both the Government and the HPA for The sport itself seemed to have the same reservations restrictions on the number of foreign players in the and up until 2002 there were still restrictions on all game. Alternatively there is a similar argument as seen foreign players, i.e. non-British players, with only two in other British sports, that the foreign players raise the being allowed in any one team, guaranteeing a British standard of British polo but this benefit is negated when presence in a team. However, a potential legal it suffocates English talent. To put matters in challenge saw polo come into line with the Bosman perspective, Argentina can currently boast ten players ruling, whereby EU players must be allowed to move with the highest rated handicap of 10; freely between EU countries and EU nationals can no Britain by contrast has not had a 10-goal player since 4 longer be described as ‘foreign’ 1945. Britain also boasts some of the most prestigious tournaments in world polo and the most money; so it is As a result English polo now has a problem with an natural that the world’s best players would want to play 2 influx of Argentine players into the professional game.