With great pleasure we welcome readers to the March 2015 edition (citation: GSLTR 2015/1) of our ground-breaking journal and on-line database (www.gsltr.com): Global Sports Law and Taxation Reports (GSLTR).
Since the last issue of GSLTR was published, we need to mention a major development that has occurred and which will alter – for the better – the future landscape of the organisation and governance of major sporting events and that is the unanimous approval by the IOC of its so-called “2020 Agenda” – an initiative of the new IOC President, Thomas Bach.
We set out below the 40 (20 + 20) recommendations, which were finalised and approved by the IOC at its 127th session in Monaco on 8 and 9 December 2014. Together, they lay out the strategic roadmap for the future of the Olympic Movement.
These recommendations are the outcome of a year of discussions and consultations with all the stakeholders of the Olympic Movement, as well as external experts and the general public. They were also debated by the 126th IOC session in Sochi; two Olympic Summits; and the IOC Commissions. More than 40,000 submissions were received from the public during the process, generating some 1,200 ideas.
The IOC Executive Board is now tasked with determining the priorities for the implementation of the recommendations, which are as follows:
20 + 20 recommendations to shape the future of the Olympic Movement
1 Shape the bidding process as an invitation.
2 Evaluate bid cities by assessing key opportunities and risks.
3 Reduce the cost of bidding.
4 Include sustainability in all aspects of the Olympic Games.
5 Include sustainability within the Olympic Movement’s daily operations.
6 Cooperate closely with other sports event organisers.
7 Strengthen relationships with organisations managing sport for people with different abilities.
8 Forge relationships with professional leagues.
9 Set a framework for the Olympic programme.
10 Move from a sport-based to an event-based programme.
11 Foster gender equality.
12 Reduce the cost and reinforce the flexibility of Olympic Games management.
13 Maximise synergies with Olympic Movement stakeholders.
14 Strengthen the 6th Fundamental Principle of Olympism.
15 Change the philosophy to protecting clean athletes.
16 Leverage the IOC USD 20 million fund to protect clean athletes.
17 Honour clean athletes.
18 Strengthen support to athletes.
19 Launch an Olympic Channel.
20 Enter into strategic partnerships.
21 Strengthen IOC advocacy capacity.
22 Spread Olympic values-based education.
23 Engage with communities.
24 Evaluate the Sport for Hope programme.
25 Review Youth Olympic Games positioning.
26 Further blend sport and culture.
27 Comply with basic principles of good governance.
28 Support autonomy.
29 Increase transparency.
30 Strengthen the IOC Ethics Commission independence.
31 Ensure compliance.
32 Strengthen ethics.
33 Further involve sponsors in “Olympism in Action” programmes.
34 Develop a global licensing programme.
35 Foster TOP sponsors’ engagement with NOCs.
36 Extend access to the Olympic brand for non-commercial use.
37 Address IOC membership age limit.
38 Implement a targeted recruitment process.
39 Foster dialogue with society and within the Olympic Movement.
40 Review scope and composition of IOC commissions.
Few will quarrel with these sporting aims and ideals and it will be interesting to see how and how quickly these ambitious plans are put into action by the IOC.
For more detailed information on the IOC 2020 Agenda, log onto the official IOC website at www.olympic.org.
Another important and recent development that also needs to be mentioned is the dramatic resignation from the FIFA Ethics Committee on 17 December 2014 of the New York lawyer, Michael Garcia, following the submission on 5 September 2014 of his Report on the results of his two-year investigation into the controversial awarding by FIFA of the 2018 and 2022 World Cup to Russia and Qatar, respectively. This, in itself, provoked controversy with claims by Garcia that the summary of his Report, which was published on 13 November 2014, did 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, even with the names of the “whistle blowers” redacted, may not happen, although FIFA has stated that it will publish the Report in an “appropriate form”!
The 430-page Report criticised FIFA, calling for a “culture change” and recommending that FIFA should improve the bidding system for future World Cups, by adopting a “more open and transparent rotation system”.
The Report also stated that members of FIFA’s Executive Committee should be forbidden from visiting bidding nations and that they should also report any gifts that they have received. These, incidentally, are the procedures followed by the IOC for hosting the Olympics.
In a statement, FIFA welcomed the Report and its findings and recommendations, and added that they had “already revised the host selection process” to be followed for future World Cups. The final decision on the host country will be taken by the FIFA Congress and not by the FIFA Executive Committee.
The standing of FIFA has come under other attacks in recent times and, in particular, its lack of transparency, and this has led to the convening by a coalition of stakeholders, led by some European and British parliamentarians, of the so-called Brussels Summit held at the European Parliament on 21 January 2015, calling for a new and more open FIFA. The Summit issued a ten-point plan for change and launched a Charter for FIFA Reform. For more information on this bold campaign to reclaim football, log onto the official website at www.newfifanow.org.
One further significant development also worthy of mention are the new FIFA Regulations on Working with Intermediaries, which come into force on 1 April 2015. Under these Regulations, the present system of licensing football agents will disappear, allowing anyone to become a football agent. This development is quite controversial and there is much opposition from existing FIFA football agents, whose licenses will cease to have effect on 1 April 2015. For more information and comment on these new Regulations, see the article of 21 October 2014, entitled, “The End of the Licensed Football Agent?” by Nick de Marco (sportslawbulletin.org/2014/10/21/the-end-of-the-licensed-football-agent).
A brief mention should also be made of a another legal development in the long-running saga concerning the German speed skater, Claudia Pechstein, and her on-going attempts to clear her name and claim damages of € 4.4 million in the German courts and also in the European Court of Human Rights against the International Skating Union (ISU) in connection with her doping ban, which she has claimed all along to be unlawful. For the latest legal situation in the further pending proceedings in Germany, please log onto: www.dw.de/german-court-admits-pechstein-doping-case/a-18192737. As will be seen, her claim for damages was admitted on 15 January 2015 by the Munich Higher Regional Court (Oberlandesgericht München). The ISU has one month in which to appeal before the German Federal Court (Bundesgerichtshof) gives its final ruling. This Court is expected to uphold this latest ruling and refer the case back to the Munich Court for it to decide on the amount of the damages’ claim! We will report, in due course, on the final outcome of these proceedings, which challenge the existing sports dispute resolution system, especially the position of the CAS.
In this issue, we publish the concluding part of the 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 nature of media rights in sport”.
Sports broadcasting rights generate mega sums for international sports bodies and make it possible for major sports events to be organized and staged, for the benefit of sports persons and fans alike.
Prof. Cornelius concludes his “tour d’horizon” of sports media rights and their legal recognition and enforcement in several major sporting jurisdictions around the world as follows:
“Modern sport is only possible as a result of the huge investments media networks make in sport due to the fees they pay for the acquisition of media rights in sport. The goodwill that sports federations or sports clubs accumulate and the astronomical amounts of money media networks are prepared to pay for the right to broadcast sports events are a clear sign that a proprietary interest in sport exists; that such an interest can be traded by sports bodies; and that the right should be legally protected in the hands of the particular sports body or the media network to whom the interest has been traded.”
We also include the first part of a two-part article – the second part will be published in the June issue of GSLTR – on the controversial subject of fox hunting as a sport by Laura Donnellan of the Law School of the University of Limerick in the Republic of Ireland, entitled: “Fox hunting and developments in the nineteenth and twentieth century”. To whet your appetite for these two articles, she writes in her introduction to the first one:
“Fox hunting is an ancient sport that dates back centuries. Initially, their status as “vermin” meant that foxes were not subject to any game laws. With the decline of the deer, fox hunting came about by default rather than design. While hunting was an old sport, the fox emerged as a new quarry in the seventeenth century. Fox hunting was never about subsistence as its origins suggest it was primarily a sport. When the fox threatened to go in to decline concerted efforts were made to increase the numbers thus dispelling the argument that fox hunting served a utility purpose in the eighteenth century. At the same time the increased professionalisation and commercialisation of fox hunting resulted in the sport becoming more regulated. Fox hunting was inclusive in many ways and showed itself to be highly adaptable to the changing environment. Perhaps its longevity can be attributed to the fact that many modern sports have evolved from hunting and there exists a partiality to the sport that has superseded sensibilities. While there may have been diversity in the field in regard to status, fox hunting would not have survived to the twentyfirst century had it not been for the “absorption of new classes into the hunting community”. For all sectors of society where hunting was woven into the fabric of the area, it was argued that a ban on hunting would have disastrous economic, social and political effects, not to mention the effect on the biodiversity of the area.”
Now read on!
We also feature an article on “Brazilian sports disciplinary justice” by Prof. Leonardo Andreotti Paulo de Oliveira, an attorney-at-law in Brazil and Academic Coordinator of the Master in Sports Law at the “Escola Superior de Advocacia” of the Bar Association of Brazil. After describing the interface between the disciplinary rules and regulations of sports bodies and the general Brazilian law, he reaches the following conclusions on this fascinating subject:
“[…] sports law, as a set of standards that guide the organization and practice of sport, is surrounded by principles and laws, regulations emanating from the various different forms of sport, and aims to highlight, and enforce, discipline and make the mode of practice of sport universal, as well as the legal structures which originate in it.
In relation to sporting justice, we may conclude that its purpose is to regulate the relationships within sports, their discipline and competitions, in accordance with the law, and the rules and regulations of the game, so that disputes are based on principles capable of ensuring the coherence and order essential to the practice of all sports.
Sports justice must reflect the agility and speed of sport and is, therefore, in constant evolution. The process follows the same guideline of speed, however, in its complexity, and has the effect of applying the law in pursuit of justice.”
We also include an article by Prof. Dr. Ian Blackshaw on the thorny subject of letters of intent, heads of agreement and preliminary agreements, which are so beloved of sports marketers, and, in particular, their usefulness and enforceability. Whilst acknowledging that such documents may serve as a useful “aide memoire” for the terms and conditions to be included in the actual sports marketing agreements that will ultimately be entered into by the parties, Prof. Blackshaw sounds a warning that such documents may not be legally binding on the parties, particularly under English Contract Law, where “an agreement to agree” is not usually considered to be a binding legal contract!
Also in this issue, on the sports legal side, there is an article by Roberto Carmina of the University of Palermo on the perennial problem of fighting doping in sport; and also a very topical article by Belgian lawyers Jonathan Himpe and Samuel Vinck on the FIFA ban on third party ownership, which comes into force on 1 May 2015, in which they question whether such an outright ban is a move too far!
On the sports tax side, we include two articles on changes to art. 17 of the OECD Model Tax Convention and its Commentary, both of which have spawned much controversy by tax experts. The first one is contributed by members of the International Tax Entertainment Group and the second one by Dr. Dick Molenaar, who reaches the following main conclusion:
“The 2014 Update to the OECD Model Tax Convention has much text about art. 17 for sportspersons. After the 2010 Discussion Draft, the OECD has considered the deletion of the article, which was proposed by The Netherlands, but the Member States have decided to keep it. With incorrect arguments, it seems that the Member States did not want to follow the example of The Netherlands and many major sports events to return to the normal allocation rules. Unfortunately, this means that the tax problems will remain for sportspersons, which leads to excessive or even double taxation and relatively high administrative expenses.”
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 March 2015 edition of GSLTR!
Dr. Rijkele Betten (Managing Editor)
Prof. Dr. Ian S. Blackshaw (Consulting Editor)