EDITORIAL GSLTR December 2014

Once again, it is our great pleasure to welcome readers to the December 2014 edition (citation: GSLTR 2014/4) of our ground-breaking journal and on-line database (www.gsltr.com): Global Sports Law and Taxation Reports (GSLTR).

Another year has passed and brought with it its own veritable crop of interesting and important developments in sports law and sports-related taxation law and, no doubt, the new year 2015 will also be full of other challenging sports legal and tax issues. Many of this year’s developments we have covered on our dedicated website and also in our journal, which all goes to show the need for our GSLTR journal. We hope that existing subscribers will spread the word about GSLTR, amongst their colleagues and contacts, to encourage new subscribers and help us to increase our global footprint and continue to provide a must-have resource for the international sporting community and their legal and tax advisers.

Sports TV rights have again featured in the news this year, including the record US$ 7,75 billion NBC broadcast deal for the US Olympic TV rights until 2032! Indeed, it is fair to say that, without the mega sums generated by sports broadcasting, such major sporting events could not take place and consequently sport – and sports’ fans – would be the losers. See Chapters 13 and 14 on Sports TV Rights Agreements and Sports New Media Rights Agreements in the book Sports Marketing Agreements: Legal, Fiscal and Practical Aspects, by Prof. Dr. Ian S. Blackshaw (The TMC Asser Press, The Hague 2012). In this respect, the commercialisation of sports broadcasting rights may be considered as the “oxygen of sport”. There is a symbiotic relationship between sport and TV broadcasting.

In this issue, we publish the first part of a major two-part article by Prof. Steve Cornelius, the Director of the prestigious Adams & Adams Intellectual Property Law Centre at the University of Pretoria, South Africa, on “The legal lature of ledia rights in sport” – the second part will be published in the March 2015 issue of GSLTR. In his article, Prof. Cornelius addresses three fundamental issues:

–   whether any media rights with respect to sports events do in fact exist and enjoy legal recognition and protection;

–   if such rights do exist, what is the nature and extent of them; and

–   who owns them and who is entitled to dispose of them and collect the profits, which, as already mentioned, are huge.

It is interesting to note that we have come a long way from the beginnings of sports radio and television broadcasts as Prof. Cornelius points out in his article:

The first live radio broadcast of a sports event took place on 4 April 1921 when a radio station in Pittsburgh broadcast live commentary on the boxing match between Johnny Dundee and Johnny Ray from the Pittsburgh Motor Square Garden to listeners in the Pittsburgh area. This was followed in 1936 by the first live television broadcast of sport when sports enthusiasts at 21 public television halls in Berlin and Potsdam watched the 100m sprint during the Olympic Games in Berlin and saw how the legendary Jesse Owens won the first of his four gold medals. Eventually more than 72 hours of live broadcasts were televised to the television halls during that event.

Also this year, the 2022 Winter Olympic Games have come under some pressure following the withdrawal of several host bidding cities, because of the high costs of organising and staging the Games, leaving only two contestants, namely Beijing, China, and Almaty, Kazakhstan. The IOC will decide at their meeting in Kuala Lumpur, Malaysia, on 31 July 2015 between these two candidates – neither of whom, it may be added, is an established winter sports country! The IOC is in the process of overhauling the bidding process for hosting the Olympics in the future.

Another noteworthy development has been the publication on 18 September 2014 of the Council of Europe’s Convention on Match-Fixing, a perennial problem which undermines the integrity of sport. The Convention has been generally welcomed by the European regulated betting industry as a cross border measure, which requires international cooperation, bearing in mind that match-fixing emanates primarily from the activities of organised international criminal gangs.

On 11 and 12 September 2014, the Judge delivered her long-awaited verdicts in the Pretoria High Court in the Oscar Pistorius murder trial, which has dominated the international media throughout this year. He was found not guilty of murder, but guilty of “culpable homicide” – in other words of “manslaughter”. He was sentenced for this offence on 21 October 2014 to five years’ imprisonment. In passing sentence, following a painstaking and clear enunciation of the relevant legal principles and considerations on punishment, Judge Thokozile Masipa told him:

I am of the view that a non-custodial sentence would send a wrong message to the community. On the other hand, a long sentence would not be appropriate either, as it would lack the element of mercy.

The prosecution had called for a ten year jail term and it has been reported subsequently that they are appealing against the manslaughter verdict.

Also, on 13 October 2014, a summary of the findings by the New York lawyer Michael Garcia, following his two-year investigation into the controversial awarding by FIFA of the 2018 and 2022 World Cup to Russia and Qatar, respectively, was published. This in itself has provoked controversy with claims by Garcia that the summary does not accurately represent his findings set out in his detailed report. Although FIFA has been called upon to publish the Garcia report in full, this, by all accounts, may not happen!

Again, the Court of Arbitration for Sport (CAS), which in June 2014 celebrated thirty years of operations, has been very active dealing with a heavy load of wide-ranging sports-related disputes, including, as usual, many football related cases. Particular mention may be made of two important CAS decisions rendered during this year.

In the first case, the Uruguayan former Liverpool striker, Luis Suarez, appealed to the CAS to have his four-month’ suspension, which was imposed upon him by FIFA for infamously biting Italy’s Giorgio Chiellini during the 2014 FIFA World Cup, halved. On 14 August 2014, the CAS upheld the length of the ban, but varied the terms of the ban, which related to all football and football-related activity, allowing Suarez to train with his new football club Barcelona, to which he was transferred during the summer for the sum of £ 75 million, and also to play “friendly matches” for them during the currency of the ban.

In the second case, on 24 February 2014, the CAS upheld an appeal lodged on 12 February 2014 by Veronica Campbell-Brown, the Jamaican former Olympic and World Champion 200 and 100 metres sprinter against a doping ban imposed upon her on 10 February 2014 by the Jamaican Athletics Administrative Association Disciplinary Panel and the International Association of Athletics Federations (IAAF) Doping Review Board, following the athlete’s participation in an IAAF World Challenge Meeting in Kingston Jamaica on 4 May 2013, because the evidence, on which the commission of the doping offence had been based, was considered by the CAS to be “insufficient”. In other words, the case against the athlete had not been proved to the “reasonable comfort” of the CAS.

Both of these cases demonstrate how quickly the CAS is able to deal with appeals against the rulings of sports bodies in urgent cases; that is, where, as in many cases, sporting deadlines are in play.

In the Campbell-Brown case, the athlete, if successful in her appeal to the CAS, wished to register to participate in the 2014 World Indoor Championships, the deadline for which registration was on or before 23.59 Monaco time on 24 February 2014. So, there was a need for an expedited hearing and decision, which the CAS was able to provide!

Such cases prove the value of using ADR dispute resolution methods rather than resorting to the ordinary Courts. However, where injunctive relief is required, the Courts come into their own, as explained in the article on “Sporting injunctions” by Prof. Dr. Ian Blackshaw, which we publish in this issue.

Also in this issue, on the sports legal side, we feature two articles on doping in sport – a topic, sadly, never far from the sporting headlines. One article by Prof. Barrie Houlihan of the University of Loughborough, United Kingdom, on compliance with the revised WADA Anti-Doping Code, which comes into force on 1 January 2015; and the other a timely article on doping in equine sport, involving one of Queen Elizabeth’s horses, contributed by Laura Donnellan of the School of Law of the University of Limerick, Ireland. We also include an interesting article on “The legal protection of international motor sports events” by Brechtje Lindeboom, the Senior Legal Counsel of the FIA, the World Governing Body of Motor Sports, which, as she points out in her article, cover not only Formula 1, but also the FIA World Rally Championship; the FIA World Rally Cross Championship; the FIA World Endurance Championship; and the FIA World Touring Car Championship. The FIA introduced in September 2014 a new event, the FIA Formula E Championship, which will be at the forefront of motor sport in the future. Finally, there is an article by Lucio Colantuoni, Edoardo Revello and Andrea Cattaneo on the reform of the sports justice system in Italy, which came into force in August 2014.

On the sports tax side, we include contributions on the “Taxability in India on the acquisition of broadcasting rghts between two non-residents” by Vispi T. Patel and Rajiv Shah of Vispi T. Patel & Associates, Chartered Accountants, India; “The taxation of foreign resident sportspersons in Germany” by Christoph Gradl of Price Waterhouse Coopers, Munich, Germany; and “Tax deduction of donations and sponsorship to sports projects in Brazil” by Prof. Dr. Luis Eduardo Schoueri of the University of São Paulo Law School and Vice President of the Brazilian Tax Law Institute. Each of these articles illustrates the importance of appreciating the impact of tax on sportspersons and also on the commercialisation of sports events.

Finally, as always, we would welcome and value your contributions in the form of articles and topical case notes and commentaries for our journal and also for posting on the GSLTR dedicated website at www.gsltr.com.

So, now read on and enjoy the varied and information-packed December 2014 edition of GSLTR and we take this opportunity of wishing all our existing and new readers the compliments of the season and all the best in their sporting endeavours in 2015!

Dr. Rijkele Betten (Managing Editor)

Prof. Dr. Ian S. Blackshaw (Consulting Editor)

 

December 2014