Insurance

'Workers’ Compensation and Injury Insurance in Australian Sport: The Status May Not Be Quo' by Eric Windholz in (2022) 32 Insurance law Journal 106-126 comments 

This article examines the exemption from workers’ compensation of professional sportspersons. This examination reveals the exemption is complex, with numerous jurisdictional differences, exceptions and qualifications. The examination also reveals that many of the arguments originally advanced in support of the exemption are redundant in a world in which sport has been corporatised and commercialised. This conclusion raises numerous questions. Should the status quo remain, or should professional sportspersons receive coverage under workers’ compensation legislation or some form of bespoke injury insurance scheme? What limitations (if any) should apply to professional sportspersons’ claims for compensation? What type and level of benefits should apply? And how and by whom should it be funded? These (and other) questions make this is an important issue worthy of further investigation. 

Identity and Lex Sportiva

'Rules of the Game, Gaming The Rules' by Bruce Baer Arnold in Miroslav Imbrišević (ed), Sport, Law and Philosophy: The Jurisprudence of Sport (Routledge, 2023) comments 

 Competitive sport, just like law, is a matter of identity. The centrality of identity results in rules about who gets to compete and therefore who gets rewarded through medals, public recognition, sponsorship and other benefits. As a consequence it results in imperatives for subverting requirements about identity, for example through changing nationality (something encouraged in some national sports policies), through impersonation (‘ring ins’) and use of prohibited substances to illicitly boost performance contrary to notions of fairness. 

That subversion of requirements in turn results in policing, centred on the verification of identity claims regarding nationality, gender, status as an amateur (‘shamateurism’), age or freedom from substances that have not been used by a competitor’s peers. Policing of subversion, and more broadly the administration of sport, is a matter of authority. That authority is the entitlement to do or demand of others certain things by virtue of the role as a referee, sports administrator or government official. Just as competition can be understood as matter of rules about who has the identity that enables participation as a competitor, the governance of sport is intelligible as rules about who gets to make and implement rules regarding sport. Both are analogous to H.L.A Hart’s conceptualisation of primary and secondary rules (Hart 1994). 

This chapter construes professional and quasi professional sport (such as the national football and basketball leagues, the Olympics, America’s Cup and Tour de France) in terms of rules about identity. It suggests that the creation, subversion and policing of identity in sport through the articulation and implementation of rules results in a jurisprudence that offers insights about sports law per se: what has been characterised as the lex sportiva (Kolev 2012; Beloff 2012). That jurisprudence more broadly offers insights about the nature of identity as an artefact in law, something that can be understood through lenses provided by justice theorists such as John Rawls, Alan Gewirth and Martha Nussbaum rather than merely rules theorists such as H.L.A. Hart, Hans Kelsen and contemporary scholars such as Schauer. 

From an identity perspective the lex sportiva provides a lens for considering the nature of rules in legal systems, including questions of authority in the making, day by day enforcement and contestation of rules. Some judicial decisions in the lex sportiva for example deal with disputes about process, including what is acceptable evidence in a claim that an identity has been subverted through doping or that individuals such as Caster Semenya and Billie Jean King have been improperly allowed to compete contrary to rules restricting participation to people with a specific gender. Some are matters of disputed norms regarding bodies and behaviours, where there may be conflicts between sports law as private rules and state law (Di Giandomenico, this volume). 

Such disputes can be understood in terms of Hart’s emphasis on rules of recognition and adjudication, founded on identity rather than morality (Hart 1994; Hart 1958). They can also be understood in terms of expectations regarding the public and private spheres, with public law potentially reshaping private rules to address concerns relating to safety, discrimination and exploitation by oligopolies. 

The theorists also offer insights about how and why we value ourselves, others and legal frameworks that create/enforce identities. Nussbaum, Rawls and Gewirth offer a jurisprudence that allows us to evaluate rather than merely taxonomise the working of the lex sportiva and the rules of each game (Nussbaum 2006; Nussbaum 2011; Rawls 1971; Rawls 1999; Gewirth 1998). That evaluation emphasises fairness, aspiration and encouragement of flourishing. Their view of justice is antithetical to a ‘winner takes all’ ethic that fosters both the rewards and subversion noted above. The view values participation in sport and achievement of excellence that is not determined by blood substitution, performance enhancement drugs or other mechanisms for cheating. It questions the fairness and thence legitimacy of rule makers that are tainted by corruption or indifferent to harms such as concussion-based injury and sexual abuse by competitors, bringing the rules and the sport into disrepute. It more subtly involves disquiet about rules of a game in which participants in search of rewards accept rules and integrity mechanisms that erode the dignity attributed by liberal democratic states to all humans. 

This chapter begins by characterising identity: a status under a sport’s rules (and more broadly under public law) that is typically signified by identifiers. It then discusses the centrality of identity for sport, including the identity of sportspeople and the identity of the institutions or individuals that make the rules. That discussion is applicable for understanding other fields such as the professions and, more broadly, citizenship as a status that embodies rules regarding reciprocal rights and obligations. It argues that rules regarding identity in professional sport frame the achievement of rewards, including benefits for those who play and those who manage the rules. 

The chapter next examines the subversion of identity and thus subversion of rules regarding identity, for example a competitor gaining an illicit advantage by using a prohibited substance and thereby breaching rules regarding non-use of such substances. Unsurprisingly, where there are rewards and where people may consider that achievement is imperative some people will choose to break such rules and on occasion subvert rules that are meant to detect illicit performance enhancement, for example to defeat substance-detection tests by swapping urine. Legal systems are typically responsive and the administration of rules regarding identity in sport is no exception. The chapter accordingly discusses both rulemaking and practice that seek to detect and deter misrepresentation of identity, for example through testing for performance-enhancing substances. 

The chapter concludes by looking beyond Hart’s concern with rules as a matter of form, arguing that we should further assess sport through reference to a fairness that encompasses dignity and autonomy (Hart 1994; Rawls 1964; Rawls 1971).

Sports Data and trade secrets

'Protecting Big Data in the Big Leagues: Trade Secrets in Professional Sports' by Lara Grow and Nathaniel Grow in (2017) 74 Washington and Lee Law Review comments

The protection of trade secrets within the professional sports industry became a hot-button issue in the summer of 2015, after news reports emerged revealing that officials from Major League Baseball’s St. Louis Cardinals were under federal investigation for having illegally accessed proprietary information belonging to their league rival, the Houston Astros. Indeed, professional sports teams in the United States and Canada often possess various forms of proprietary information or processes — ranging from scouting reports and statistical analyses to dietary regimens and psychological assessment techniques — giving them a potential competitive advantage over their rivals. Unfortunately, as with the rest of the economy at-large, little empirical data exists regarding either the types of proprietary information owned by these teams, or the measures that teams are taking to protect their trade secrets.

Drawing upon freshly collected survey data, this article helps to fill this void in the literature by providing novel empirical evidence regarding the modern trade secret practices of the teams in the four major North American professional sports leagues. Based on the results of a first-of-its-kind survey conducted in the spring of 2016 of the general counsels of teams in the four major leagues, the article sheds light on both the types of information subjected to trade secret assertion by these firms, as well as the methods they are using to safeguard their data. In the process, the article examines the implications of these survey results for the professional sports industry, while also identifying potential new lines of inquiry for future trade secret research.

US sports streaming

'From Meerkat to Periscope: Does Intellectual Property Law Prohibit the Live Streaming of Commercial Sporting Events?' by Marc Edelman in (2016) 39(4) Columbia Journal of Law and the Arts comments 

On February 27, 2015, San Francisco entrepreneur Ben Rubin announced the launch of his live streaming video application, Meerkat. Named after “the cute but carnivorous mongoose native to Africa,” Meerkat allows users to upload video footage from smartphones to the Internet for worldwide, instantaneous viewing. In the weeks following Meerkat’s launch, Twitter unveiled a similar online application, Periscope, which allows users to watch live videos for up to twenty-four hours after their initial broadcast. Twitter’s more recent entry into the live streaming market has enhanced the credibility of this new technology. Furthermore, it has placed live streaming on the radar of major private equity firms.

Although the American business community generally characterizes live streaming as a favorable technological development, the use of live streaming technologies to broadcast (or rebroadcast) commercial sporting events is more controversial. According to one sports network analyst, the advent of live streaming could potentially result in a “Napster-type thing” involving mass infringement of sports enterprises’ intellectual property rights. Another sports industry expert cautioned that “[t]his kind of technology is going to have huge [negative] implications for broadcasters like NBC, which has already paid billions for the Olympics.”

This Article discusses the potential impact of live streaming on the commercial sports industry and analyzes whether commercial sports enterprises have the legal power to stop live streaming of professional and collegiate sporting events. Part I of this Article explores the history of live streaming commercial sporting events. Part II analyzes whether courts are likely to hold live streamers directly liable for their actions under federal copyright law. Part III discusses whether courts are likely to hold manufacturers of live streaming applications secondarily liable for copyright infringement. Part IV assesses the legality of live streaming under right of publicity law. Part V then analyzes the legality of live streaming under unfair competition doctrines. Finally, Part VI concludes that current federal and state laws adequately address all meaningful public policy concerns related to the live steaming of commercial sporting events.

EU sports events and IP

'The Protection of Sports Events in the European Union: Property, Intellectual Property, Unfair Competition and Special Forms of Protection' by Thomas Margoni comments on

some of the legal tools available to organisers of sporting events under EU law and the law of EU Member States. The focus is on remedies based on property rights and contracts, as well as on intellectual property rights, unfair competition rules and so called “special” forms of protection. As it is well known, in fact, following the ECJ ruling in Premier League v QC Leisure, sporting events as such do not qualify as works under EU copyright law. Nevertheless, remedies based on both traditional and new forms of property, IP and cognate rights can still offer powerful forms of protection to sports organisers. First, many sports events take place in dedicated venues on which sports organisers can claim exclusive use rights and thereupon develop conditional access agreements (i.e. “house rights”). Second, the recording and broadcast of sporting events may give rise to a variety of intellectual property rights, especially in the field of copyright and related rights. Third, unfair competition rules, and in particular misappropriation doctrines, have been invoked to protect sporting activities from unauthorised copying. Fourth, special forms of protection have recently been devised at the national level in order to offer an additional layer of rights protecting sports organisers. The article argues that even in the absence of a dedicated EU harmonised right tailored to sports events, the current legal framework is more than adequate to offer protection to the investments that the sport industry is making in this sector. The article also points out that national initiatives in the field have so far proven of little practical relevance and, as a matter of fact, have the potential to clash with the general EU legal framework.

Margoni concludes -

From the analysis developed in this study, it emerged that the exclusivity so constantly sought by sports organisers and the media sector is commonly reached thanks to the mix of exclusive rights to use the sport venue and conditional access contracts. The latter are employed to regulate not only access but also the types of activities that the fans, the media and broadcasting organizations are allowed to perform once in the stadium. EU Member States commonly recognise this default form of protection also known as “house right”. Whereas the “house right” received explicit recognition only in a few Member States it can be safely assumed that it is available in all of them. The reason has been already identified and lies in the fact that the “house right” is nothing else than a “brand name” for a basic hermeneutic construction based on two main pillars of modern legal systems: property rights and contracts. It would certainly be surprising if a EU Member State, or any other country, did not give recognition to basics fundamental rights such as property and personal autonomy. As a matter of fact, evidence points to the opposite direction, that is to say, to a general recognition of the interests of sports organisers based on property plus contracts, as recently confirmed by AG Jääskinen in its 2013 Opinion. If a limit to the “house right” has to be found, it would be in the fact that remedies based on contracts do not generally possess third party effects. This is however a natural and obvious consequence of the basic principle of privity of contracts. Nonetheless, it must be borne in mind that the main feature of the “house right” is that to be based on a mix of real and personal obligations. This mix greatly empowers the effectivity of contracts: while it cannot of course add to them third party effects, it makes them a sine qua non condition for a licit stay in the sport venue.

In addition to the house right, copyright and related rights are generally available to sports organisers. The decisive factor with regard to these rights, is that they cannot protect the sport event as such , as established by the ECJ. However, most if not all of the forms of use of those sports events (recording, broadcast, webcast, fixation, etc) are in fact acts that are usually protected by relevant copyright or related rights. Among the latter, some Member States feature special forms of neighbouring rights protecting the organisation of events, however, this protection is conditional to the presence of a work of authorship executed during the event. Whereas it could be argued that there is no much difference between the organisation of musical concerts and that of a sport match, the rule is clear and has not given rise to particular interpretative problems, although the situation in Portugal seems still debated.

Unfair competition rules and misappropriation doctrines on the contrary do not appear to offer a sound and stable remedy to sports organisers. While their use in the past has lead to some limited success, recent case law seems to have clearly established the principle that the protection of sports events has been pre-empted by the national legislator who decided not to offer copyright protection to sports events as such. This finding points in favour of the view that unfair competition remedies cannot be used as default substitutes of intellectual property protection.

Finally, five Member States offer additional forms of protection, usually in the form of special provisions in sports codes or in related acts. One of these Member States has amended its copyright act giving formal neighbouring right recognition to such an intervention. It does not seem that these special forms of protection add much, if anything, to what already available to sports organisers, with one significant exception. The French model includes a right to consent to bets, a solution that is currently under discussion at least in another MS, the UK. Putting any consideration regarding the speciality or ethical nature of sports (in particular of grass-root sports) aside one aspect has to be clarified. Traditional copyright theory never contemplated a right to consent to bets. Nor it seems easy to justify its inclusion on the basis of the current structure or of the normative function of copyright law. If a place for such a right to consent to bets exists, it has to be found outside the realm of (intellectual) property rights. Whether this is possible at all in the light of EU rules on competition law and freedom of provisions of services is yet to be proved

new ACT Events Regime

The Australian Capital Territory is to introduce a Major Events Bill 2014 (ACT) to "establish new legislation for security management and commercial protections for major events".

The Bill is an echo of the Major Sporting Events (Indicia and Images) Protection Bill 2014 (Cth) noted here and the more problematical Queensland legislation highlighted here.

ACT Attorney-General Simon Corbell comments that

This legislation is a critical part of the ACT's preparations for hosting games as part of the Asian Football Confederation (AFC) Asian Cup and the International Cricket Council (ICC) World Cup in 2015. 

The Bill repeals the Major Events Security Act 2000 (ACT), introduced ahead of the Sydney Olympics.

The Bill makes "important changes to improve the operation and management of major events in the ACT" by -

• creating a new scheme for major event declarations. 
• allowing additional crowd management security provisions to apply at certain declared events. 
• allowing advertising and intellectual property rights protection at declared events. 
• making pitch invasion an offence. 
• prohibiting ticket scalping. 
• giving police and authorised people improved capacity to effectively manage security, including the ability to search bags and others items including through the use of electronic scanning. 

Corbell indicates that event organisers and corporate sponsors will benefit from

new prohibitions on advertising near major event venues and the use of protected symbols without permission. Symbols such as logos, designs, emblems or words can be declared as 'protected symbols' for a defined period.

Dank

In Dank v Whittaker (No 4) [2014] NSWSC 732 the Supreme Court of New South Wales has stated that the $10 million defamation actions filed by sports scientist Stephen Dank against various media outlets are an abuse of process for non-compliance with the statutory leave requirements and a cap on the award of damages. The Court held that Mr Dank deliberately excluded a corporate media outlet in his defamation suit to defeat the application of the statutory requirements. The Court concluded that it was appropriate to consolidate all defamation suits into three sets and that such a consolidation would not expose Mr Dank to any relevant prejudice.

Insignia and Ambushes

On the heels of the Commonwealth Games Arrangements (Brand Protection) Amendment Act 2013 (Cth) and the Queensland events protection regime noted here the Australian Government has introduced the Major Sporting Events (Indicia and Images) Protection Bill 2014 (Cth), intended to protect three major sporting events -

• Asian Football Confederation (AFC) Asian Cup 2015;
• International Cricket Council (ICC) Cricket World Cup 2015;
• Gold Coast 2018 Commonwealth Games.

The Bill is described as meant to

prevent the unauthorised commercial use of certain indicia and images associated with these events in the lead up, during, and immediately after the events; and 

provide a more secure environment in which the relevant local organising committees can raise revenue through sponsorship and prevent ambush marketing.

The Regulation Impact Statement indicates that -

The Asian Football Confederation (AFC) Asian Cup 2015, the International Cricket Council (ICC) Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games will be significant international sporting events to showcase Australia. As a condition of being awarded the right to host these events, the Australian Government provided written undertakings to protect the unauthorized commercial use of certain indicia and images associated with each of the Events, commensurate with the support provided to the Melbourne 2006 Commonwealth Games, and enact any required legislation by early 2014. 

Traditionally event owners rely on sponsorship revenue to stage their events, reducing the reliance on government financial support. In return for their event sponsorship, sponsors can publicise their support by using event indicia and images. However, businesses that do not sponsor the events may seek to capitalise on the event by using event indicia or images, suggesting a sponsorship arrangement with the event. This is called ‘ambush marketing by association’. 

Precedent for major sporting events legislation has been established by the Sydney 2000 Games (Indicia and Images) Protection Act 1996 and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005. These were enacted to provide legislative protection to event owners for certain event insignia as existing legislative mechanisms were deemed inadequate to prevent incidents of obvious ambush marketing. Both these Acts have since been repealed. 

Problem or Issue Identification 

Event owners and the AFC Asian Cup Local Organising Committee, the ICC Cricket World Cup Local Organising Committee, and the Gold Coast 2018 Commonwealth Games Corporation have sought a commitment from the government to protect against the unauthorized use of certain indicia and images associated with the respective events to help them secure event sponsorship. 

If sponsors do not have certainty that they are the only businesses that can directly benefit from association with the Events, they may withdraw their sponsorship or decide not to support the Events. A decrease in sponsorship revenue could increase the need for financial assistance from the Australian Government and/or state and territory governments to stage the events. 

An analysis was undertaken by the Major Events Taskforce in the Office for Sport and relevant government agencies of the existing legislation and the commitments provided by the Australian Government. The analysis identified that:

• The existing Acts do not provide the level of protection committed to. In particular, not all Event indicia can be trademarked as the Trade Mark Act 1995 and the Copyright Act 1968 do not extend to the protection of common words, titles and short expressions. 

• Customs powers in the Trade Marks Act 1995 and the Copyright Act 1968 have been strengthened in the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 since Melbourne 2006 and these should be utilized in the major sporting events legislation to avoid confusion for business, consumers and those administering the measures. 

• Limited legislation exists at the state/territory government level to support ambush marketing with no consistent approach.

The results of a review of the two previous major events legislation undertaken by Frontier Economics in 2007 noted that:

• the effectiveness of these Acts was due to their deterrence and signaling effects and the enhanced ability of the event organisers to enforce their rights by threatening to take action under the legislation thus limiting the number of breaches; and

• greater clarity regarding the existence and scope of property rights enhances competition.

Ambushes

Ambush marketing?

The Commonwealth Games Arrangements Regulation 2013 (Qld) under the Commonwealth Games Arrangements Act 2011 (Qld) prohibits conduct falsely inferring an association with the Gold Coast 2018 Commonwealth Games and unauthorised use of certain images and references for commercial or promotional purposes, with provision for speedy and cost-effective enforcement.

Enhancements

The Australian Crime Commission, going for headlines by tacking a soft target, has released a 43 page report [PDF] on Organised Crime and Drugs in Sport: New Generation Performance and Image Enhancing Drugs and Organised Criminal Involvement in their use in Professional Sport.

Highlights from the report - which like past ACC publications seem to be designed for headlines rather than analysis - are as follows.

The Performance and Image Enhancing Drugs (PIED) Market 

The PIEDs market in Australia is large and diverse, with a wide range of substances being used by a broad cross-section of the community. 

PIEDs previously considered to only be available to elite athletes and used in sophisticated sports doping programs due to the expense and complexity of their administration, are now widely available. A highly profitable and organised market has been established around the sourcing and supply of new generation PIEDs. 

The growth hormone releasing peptide (herein referred to as ‘peptides’), hormone and anabolic steroid markets are assessed by the ACC to be one and the same, with individuals trafficking anabolic steroids also distributing peptides and hormones. 

The Role of Organized Crime 

Organised criminal identities and groups are active in the trafficking of PIEDs that are being used by elite athletes in Australia. Organised crime groups are taking advantage of the current legislative and regulatory situation whereby persons and entities who supply certain substances to athletes which are prohibited under the WADA Code do not commit a crime in Australian jurisdictions. however, athletes who use the substances face substantial sporting bans. This is a significant legislative and regulatory vulnerability. 

Professional sport in Australia is highly vulnerable to organised criminal infiltration through legitimate business relationships with sports franchises and other associations. This is facilitated by a lack of appropriate levels of due diligence by sporting clubs and sports governing bodies when entering into business arrangements. 

There is also increasing evidence of personal relationships of concern between professional athletes and organised criminal identities and groups. 

The ACC has identified widespread use of peptides and hormones by professional athletes in Australia. Given that many of these substances are prohibited for use by athletes by WADA, athletes who use these substances have potentially committed anti-doping rule violations. 

While intelligence confirms the use of peptides in major sporting codes, it further suggests that individuals in a range of other codes may also be using peptides. 

Multiple players across some sporting codes and specific clubs within those codes are suspected of currently using or having previously used peptides, which could constitute an anti-doping rule violation. The level of suspected use of peptides varies between some sporting codes, however officials from a club have been identified as administering, via injections and intravenous drips, a variety of substances, possibly including peptides. Moreover, the substances were administered at levels which were possibly in breach of WADA anti-doping rules. 

The use of peptides and hormones is linked to a culture in some professional sports in Australia of administering untested and experimental substances to athletes in the hope they will provide an advantage in the highly competitive world of professional sport. In some instances, the substances are not yet approved for human use. 

In addition to elite athletes using peptides and hormones, these substances are also being used by sub-elite athletes competing at various levels of competition, for example at the state and club level. Illicit drug use by professional athletes is more prevalent than is reflected in official sports drug testing program statistics, and there is evidence that some professional athletes are exploiting loopholes in illicit drug testing programs. 

The Role of Sports Scientists, Coaches and other Facilitators 

Some coaches, sports scientists and support staff of elite athletes have orchestrated and/ or condoned the use of prohibited substances and/or methods of administration. 

Sports scientists are now influential in professional sport in Australia, with some of these individuals prepared to administer substances to elite athletes which are untested or not yet approved for human use. 

In many Australian sporting codes, sports scientists have gained increasing influence over decision making within the clubs. Some sports scientists and doctors are experimenting on professional sportspersons in an effort to determine if particular substances can improve performance without being detected. 

Complicit medical practitioners are a key conduit through which peptides and hormones are being supplied to athletes and other individuals on prescription. In some cases, medical practitioners who are prescribing peptides, hormones and other PIEDs are engaging in lax, fraudulent and unethical prescribing practices, such as prescribing controlled drugs in false names. 

Some anti-ageing clinics have been identified as a key source of supply of pharmaceutical grade WADA prohibited PIEDs to athletes, in some cases without prescription.

Overall the report is disappointing but sure to be embraced by the mass media in Australia. There is anecdote rather than substantive analysis, few statistics, little guidance for serious readers about prevalence and incidence and seriousness.

In contrast to some sports fans, publicists and administrators (who like Captain Renault in Casablanca are shocked, shocked to discover that there is misbehaviour) I have no reason to doubt that some athletes - especially those in particular sports - are using a range of performance enhancers. There is enough case law to demonstrate that there is consumption. We should however expect more bite from the ACC is it wants to be taken seriously outside the halls of Parliament House and the Attorney-General's Department or the offices of its associate agency the Australian Federal Policy. The report resembles the much hyped reports on identity crime questioned in entries elsewhere on this blog. Colourful imagery but very few facts.

Scalping and privacy

The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) (Appellant) [2012] UKSC 55 is an appeal from The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) (Appellant) [2011] EWCA Civ 1585.

The Rugby Football Union (RFU) had sought to discover the identity of people who had purchased tickets to football games via an online 'scalping' service, with the service operator claiming that the discovery process was contrary to privacy protection under EU human rights law.

The RFU as the governing body for Rugby Union in England has sole responsibility for issuing tickets for all international and other matches played at its Twickenham stadium. Its terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. That stipulation is printed on the tickets and applicants are warned on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times.

Viagogo operated a site that enabled people to sell tickets for RFU games: sellers would register their tickets with Viagogo, a price would be suggested based on current market data and the service provider would receive a percentage of any sale through that virtual meeting of buyer and seller.

The UK Supreme Court judgment notes that the RFU monitors such sites in an attempt to discover whether and by whom tickets were being sold above face value. "This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo". The RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham.

Tickets with a face value of £20 to £55 were being advertised for sale at up to £1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. xxxxx The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress.

In Norwich Pharmacal Company & Ors v Customs And Excise [1973] UKHL 6 Norwich Pharmacal Co, as owner and exclusive licensee of a patent, brought proceedings against the UK Excise Commissioners to force disclosure of information that would identify unknown importers of its patented chemical. The House of Lords held that where an innocent third party had information relating to unlawful conduct, a court could compel that party to assist the injured person by supplying that information. The case established the Norwich Pharmacal disclosure orders against innocent third parties.

Viagogo argued that granting a Norwich Pharmacal order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 (ie protection of personal data) of the EU Charter of Fundamental Rights.

The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. Interference with the personal data rights of the individuals was proportionate in light of the RFU’s legitimate objective in obtaining redress for arguable wrongs.

The Supreme Court considered whether the grant of the order involved a breach of article 8 of the Charter. It noted that the essential purpose of an order was to do justice in the case. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances, involved a careful weighing of all relevant factors including -

• the strength of the cause of action, 
• whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and 
• the privacy rights of those whose identities were to be revealed 

Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law.

The Supreme Court held that the appropriate test of proportionality under Article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned. Lord Kerr comments that  it was artificial and unrealistic to suggest that the RFU’s aim of discouraging others in the future from flouting its rules should not be considered. Although the facts of each case must be considered individually there was nothing to support  the notion that the wider context for which the RFU wished to have the information should be left out of account.

The court indicated that although there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFU’s ticket policy.

It went on to state that in some  limited cases the particular circumstances affecting a person whose data was sought may displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information.

A Meat Pie Anton Piller Order

A nice instance of the Anton Piller order in Australian Football League & Ors v Hard On Sports & Ors [2012] VSC 475 regarding trade marked sporting memorabilia.

The Court notes that

Australian football is one of the most popular sports in Australia, and attracts a very large number of supporters throughout the country who follow the AFL Competition and support a favoured AFL Club. 

The following may described as the relevant “meat-pie” statistics: in 2011, there were approximately 800,000 registered participants playing the sport in Australia. An additional 45,000 registered participants play Australian football in countries outside of Australia. In 2011, the national television audience of AFL matches was approximately 4.7 million each week. The AFL Grand Final is estimated to attract a worldwide broadcast audience of over 30 million people. An aggregate of 6.763 million people in 2005, 6.736 million in 2006, 7.05 million in 2007, 7.082 million in 2008, 6.985 million people in 2009, 7.147 million people in 2010 and 7.139 million people in 2011 attended matches conducted by the AFL.   

I accept that by reason of the popularity of Australian football, the AFL Competition and AFL Clubs, there is demand amongst AFL Supporters for memorabilia relating to the AFL Competition and AFL Clubs and their players (“AFL Players”), particularly memorabilia signed by AFL Players, including signed guernseys, shorts, football boots and other playing apparel, posters, prints, cards, photographs, lithographs and plaques, many of which are placed in frames for hanging on walls (“AFL Memorabilia”).

The AFL holds 278 registered trade marks relating to the AFL Competition and the AFL Clubs, including the word AFL, the full and shortened name of each AFL Club (eg Collingwood Fotball Club and Collingwood Magpies), the nickname of each AFL Club (eg Magpies) and images of the AFL premiership cup and the Brownlow Medal, each oregistered in respect of a broad range of goods and services that include paper, cardboard, posters, printed matter, albums, autograph books, photographs, mounted photographs, picture frames, works of art, signboards, display boards, display stands and show cases, clothing, leisure wear, sportswear, uniforms, shirts, sports shirts, jumpers, sweaters, guernseys, jerseys and associated wholesaling/retailing.

Hard On Sports [HOS] and its "controlling mind and will" Mr Sumiga are alleged to have engaged in sale of unauthorised AFL products. The Court noted claims that

The memorabilia market in Melbourne has a number of unlicensed suppliers of memorabilia that use AFL Images and AFL Trade Marks and engage directly with players or through their management companies to secure signatures outside of the conditions of the current AFL Commercial Operations Guidelines. The obtaining of these signatures is done without the knowledge or approval of the AFL. … 

HOS has 30,000 to 40,000 pieces of memorabilia on site. The Official AFL Memorabilia program only sells 7,000 to 10,000 pieces of year. While HOS also deals in memorabilia for other sports, its stock holding is 90% AFL products. … 

Australian football supporters who wish to purchase Official AFL Memorabilia knowing that the funds from their purchase will go back to the game and their AFL Club are misled when they purchase unofficial AFL memorabilia. He says on the other hand, no funds from unofficial AFL memorabilia go back to the AFL and by extension to the AFL Clubs. The funds are usually distributed to the players who sign the unofficial AFL memorabilia outside the terms of the official process, the person who arranged for the creation of the product and the retail outlet that distributes the product. [C]onsumers don't easily recognise the difference between Official AFL Memorabilia and unofficial memorabilia especially where they are designed to look the same.

Given concerns about loss or 'leakage' of the contested products in litigation involving claims of passing off, copyright infringement, trade mark breaches and other matters the Court made an Anton Piller order as follows -

Interlocutory injunction 

The Defendants and each of them, whether by themselves, their servants, agents or howsoever otherwise, be restrained until the trial of the proceeding or further order from procuring the creation of, keeping, distributing, offering for sale or selling memorabilia which is not authorised by the AFL, including:

(a) guernseys bearing AFL Trade Marks which were applied without the AFL’s consent; 

(b) guernseys, shorts, football boots and other playing apparel signed by current or former AFL Players placed in frames bearing trade marks which are substantially identical with or deceptively similar to AFL Trade Marks including “AFL”, AFL club names, club nicknames, club logos and/or images of the AFL premiership cup or Brownlow or Norm Smith medals; 

(c) posters, prints, cards, photographs, lithographs and plaques: (i) incorporating reproductions of substantial parts of AFL Photographs; and/or (ii) placed in frames bearing trade marks which are substantially identical with or deceptively similar to AFL Trade Marks including “AFL”, AFL club names, club nicknames, club logos and/or images of the AFL premiership cup and/or Brownlow and/or Norm Smith medals.

Search Orders (pronounced on 9 October 2012)

By 10 October 2012, the independent solicitors deliver to the Plaintiffs' solicitors:

(a) all of the things retained pursuant to undertaking (3) given by the independent solicitors in Schedule B to the search order of Justice Vickery made on 10 September 2012 (Search Order) save that the Plaintiffs shall return to the Defendants from who premises such goods were obtained any irrelevant documents, within 7 days of receipt of the above listed things; and 

(b) the keys to the locks to the storage unit rented by the independent solicitors at Kennards Self Storage located at 159 Racecourse Road, Flemington, Victoria (Storage Facility).

The independent solicitors be otherwise released from undertaking (3) given in Schedule B to the Search Order. 

The Plaintiffs' solicitors keep secure each thing delivered up to them pursuant to paragraph 1 of this order and they only use these things for the purposes of this proceeding. 

The Plaintiffs' solicitors are permitted to make copies of any documents or photographs of any things (as the case may be) and may disclose to the Plaintiffs any information that is acquired from reviewing these things and provide the Plaintiffs with copies of such documents or photographs. 

Until trial or further order of the Court, the Plaintiffs' solicitors are to retain the keys to the locks to the Storage Facility.

Fair Game?

'Playing Away from Home: Sportspeople, Privacy and the Law' by David Rolph in 6 Australian and New Zealand Sports Law Journal (2011) 35-62 notes that

The private lives of sportspeople are of considerable interest to many media outlets and their audiences, yet sportspeople may not always be able to protect their privacy adequately by legal means. Focusing on Australian and United Kingdom law, this article examines how sportspeople can indirectly protect their privacy through defamation law. It also examines how breach of confidence and the proposed introduction of a statutory cause of action for invasion of privacy in Australia. Finally, it analyses the recent cases of Terry v Persons Unknown [2010] EWHC 119 (QB) and ‘the St Kilda schoolgirl scandal’ to explore the legal and practical difficulties sportspeople confront in protecting their privacy and managing their image.

In discussing recent developments Rolph notes that

As privacy law in Australia develops in whatever form it takes, sportspeople will confront ongoing difficulties protecting their privacy against media intrusion. For sportspeople who have long been prominent in their sporting careers and therefore of interest to the media, often in relation to non-sporting aspects of their lives, the prolonged media exposure may act to deprive them of expectations of privacy they might otherwise have enjoyed. For instance, in 2010, an escort, Jenny Thompson, gave an interview to the tabloid newspaper, The News of the World, about having sex with Premier League footballer, Wayne Rooney, while Rooney's wife, Coleen, was pregnant. Rooney reportedly considered seeking an injunction to restrain the interview being published but decided against it. The fact that, in 2004, Rooney had voluntarily discussed his use of prostitutes when he was "very young and immature", and, to a lesser extent, the fact that he and his wife sold the rights to their wedding photographs to a women's magazine for an estimated £2.5 million, would have weighed against the success of any application, as this prior media coverage, particularly the former, could be used as the basis of a defence of public interest by a media outlet. In order for sportspeople to maximise the possibility of protecting their privacy against media intrusion, they need not only to be vigilant but also consistent in their dealings with the media.

Interaction with the media can also present another difficulty. In Terry v Persons Unknown, the active "reputation management‟ engaged in on behalf of John Terry, the captain of the Chelsea and the English national soccer teams and 2009 Father of the Year, deprived him of his ability to protect his privacy. In late January 2010, Terry sought an injunction to restrain the publication of the fact of his extra-marital relationship with French model, Vanessa Perroncel; details of their relationship, including its consequences; material leading to the identification of Terry and Perroncel; and photographs evidencing or detailing these matters. Tugendhat J accepted that the information, if published and found to be false, was arguably defamatory. The evidence before the court indicated that Terry‟s solicitors and business partners met to discuss media interest in Terry‟s private life. The business partners arranged for Perroncel to sign a confidentiality agreement. Tugendhat J was concerned about this, as, unlike the solicitors, the business partners owed no duties to the court. His Lordship inferred that the business partners had a clear, commercial interest in protecting and enhancing Terry's reputation, particularly for the purposes of sponsorship. He also had reservations about whether the confidentiality agreement accurately reflected Perroncel's wishes, suggesting a power imbalance between Terry and Perroncel based on their relative public profiles, questioning whether the stated consideration of £1 was the only consideration provided and querying how Terry's business partners came to be talking to Perroncel in the first place. Tugendhat J was also concerned that Terry did not put on any evidence himself. This lack of evidence was apparently because Terry was busy. In his Lordship's words, "[r]espect for the dignity and autonomy of the individuals concerned requires that, if practicable they should speak for themselves". Given that the interest sought to be protected in the proceedings was Terry's personal privacy, this gap in the evidence was telling. It fortified Tugendhat J in his ultimate conclusion that Terry was principally concerned with his reputation, not his privacy. In his Lordship's view, Terry treated the legal proceedings in response to the allegations as "a business matter". Consequently, the restrictive approach to the grant of injunctions to restrain the publication of defamatory matter applied. The newspapers were at liberty to publish the allegations. Terry v Persons Unknown indicates that successful sportspeople, who rely upon professional services to create, maintain and protect their public profiles, need to take a different approach when engaging in litigation to protect their privacy. Given the highly personal nature of the interest involved, courts require sportspeople to demonstrate an active concern for their privacy, rather than devolving that responsibility to others.

When seeking to protect their personal privacy, sportspeople also confront real challenges from technology. This capacity and the inadequacy of current Australian laws to protect personal privacy were amply demonstrated by the experience of several prominent St Kilda footballers in late 2010. A seventeen year old girl uploaded naked photographs of Nick Riewoldt and Nick dal Santo to her Facebook page. She claimed that she had come to know the footballers when they visited her school, that a sexual relationship developed with one player, Sam Gilbert, and that she fell pregnant with his child, although the baby was stillborn. She claimed that she took the photographs herself in Melbourne but it was later revealed that they were taken by Gilbert on a team trip to Miami and that she had copied them from his laptop computer. Riewoldt had asked Gilbert to delete them immediately but Gilbert had not done so. The girl threatened to release further compromising photographs of other players from the Carlton and Sydney AFL clubs but this never transpired. The St Kilda Football Club and Gilbert commenced proceedings in the Federal Court of Australia against the girl. Marshall J ordered the girl to take down the photographs and not to post any further ones. However, by then, the photographs were widely circulating on the internet. The girl continued to make allegations via Twitter and Youtube. As a result of the publication of the photographs, Riewoldt was harassed when he went out in public. In January 2011, a settlement was reached whereby the girl agreed to comply with a court order that she delete the photographs and not repost them again in return for accommodation being provided for her for several months. The resolution of the Federal Court proceedings was not the end of the matter. The girl in question attended the St Kilda AFL team's training session, distributing leaflets and heckling players. In February 2011, she also claimed that a sexual relationship developed between her and player agent, Ricky Nixon, during which he supplied her with cocaine. Following an investigation, Nixon was banned by the AFL Players' Association's Agents Accreditation Board from acting as a player agent for two years. In March 2011, the girl gave an interview to 60 Minutes, as a result of which her identity became widely discussed in the traditional media (although it had been readily accessible on the internet from the outset). In the interview, Kim Duthie admitted that she had lied about her pregnancy. Duthie subsequently admitted that she lied about her involvement with Nixon but she may have been lying about her lying. At the time of writing, neither Riewoldt nor dal Santo has taken legal action in relation to the invasion of privacy. As a result of this affair, the AFL Players' Association called for the introduction of effective privacy laws, not only for players but for all individuals. The AFL also conducted a session for rookie players on how to use social media appropriately. This incident clearly demonstrates how vulnerable high-profile sportspeople are to having their privacy invaded and how inadequate existing legal protections are to provide them with a remedy.

Even if sportspeople have the benefit of court orders protecting their privacy, they may nevertheless find their private lives exposed by virtue of internet technologies. The recent experience of Manchester United footballer, Ryan Giggs, underscores this. Initially known by the pseudonym, 'CTB', Giggs obtained an interim injunction, preventing former Miss Wales and Big Brother contestant, Imogen Thomas, from giving an interview with The Sun newspaper about their relationship. Giggs suggested, and Eady J accepted as arguable, that Thomas was attempting to blackmail Giggs – an allegation rejected by those representing Thomas. Even though the court orders extended beyond traditional media, the social media platform, Twitter, allowed individuals to speculate as to the identity of 'CTB'. A large number of names were suggested, although Giggs‟ name predominated. So concerned was Giggs that he commenced proceedings against Twitter for breaching the injunction. Eady J refused to vary the injunction to allow Giggs to be identified on the basis that his identity had become public via Twitter. This was not the end of the matter. The Scottish newspaper, The Sunday Herald, acting on advice that an injunction issued by an English court was not binding in Scotland, published a front page photograph of Giggs with the word, 'CENSORED', written in a black bar across his eyes. Although it did not name Giggs, he was clearly identifiable. The newspaper contained substantial coverage of the case and explained why it had decided to disclose Giggs' identity: it was concerned with the pernicious effect of injunctions and superinjunctions on freedom of the press and open justice. As a result of its conduct, The Sunday Herald was threatened with contempt proceedings. Giggs' injunction was further subverted by John Hemming, a Liberal Democrat parliamentarian, who named Giggs as 'CTB' under parliamentary privilege in the House of Commons. Tugendhat J refused to vary the injunction to allow Giggs to be named on the basis that he had been named in parliamentary proceedings. However, the combined effect of these three forms of disclosure was that Giggs became widely known and reported in traditional media as 'CTB'. Newspapers speculated whether Giggs was "the new Tiger Woods" and whether his sponsorship deals were in jeopardy. The United Kingdom Attorney-General, Dominic Grieve QC warned that tweeters who breached injunctions in privacy cases were exposing themselves to punishment for contempt of court. Revelations about Giggs' private life continue to emerge, with the most recent, at the time of writing, being the allegation that Giggs had an eight year affair with his sister-in-law, as well as liaisons with his mistress' mother and a third, undisclosed lover.

Paradoxically, privacy protections are developing at the same time that internet technologies with the potential to subvert these protections are burgeoning. It may not be possible to protect privacy through absolute secrecy and prior restraint. For lawmakers and legal advisors, the experience of Ryan Giggs provides a salutary lesson. Whilst plaintiffs might prefer to avoid an invasion of privacy in the first place, the balance of competing interests might favour allowing media outlets to publish and then allow plaintiffs to sue for damages, mirroring defamation cases.

Sport and copyright

The cogent 'This Sporting Life: Copyright Law and Consumer Rights' by Matthew Rimmer comments that

Sport occupies an anomalous position under Australian copyright law. A footballer like Gary Ablett Junior is not an author under copyright law. A sporting spectacle like the AFL Grand Final or the State of Origin is not a dramatic work. Sporting events are protected somewhat peripherally as television broadcasts under Australian copyright law. Nonetheless, sports organizations have engaged in special pleading in respect of intellectual property law. This has been particularly evident in the litigation between Optus, the National Rugby League, and the Australian Football League.

He notes that -

It would appear that, in the case of sporting television broadcasts, the Gillard Government is willing to wind back such copyright exceptions. Such a decision reflects the close relationship that exists between the Gillard Government and the elite sporting codes. Sadly, the over-protection of sporting organisations under Australian copyright law may well have inadvertent impacts upon consumers, cloud computing, and technology developers. Unfortunately, the interests of consumers have been forgotten in this corporatist clash over copyright law. 

It is striking Australian consumers do not enjoy the same freedoms and liberties as their counterparts in the United States and Singapore. A number of cloud computing companies – including Beem and MyTVR - have closed down their operations because of concerns about the precedent of the Full Court of the Federal Court of Australia.  Technology developers – with products and services related to time-shifting, space-shifting, and place- shifting – will be anxious about liability for authorizing copyright infringement in Australia.

Gendered

Under the headline 'Olympic Games and the tricky science of telling men from women (Gender tests may be the most controversial obstacle the athletes face. The London Games tries a new approach based on testosterone)' the LA Times last month commented that

Of all the obstacles athletes have had to overcome to compete in the Olympics, perhaps the most controversial has been the gender test. 

Originally designed to prevent men from competing in women's events, it is based on the premise that competitors can be sorted into two categories via established scientific rules. But the biological boundaries of gender aren't always clear. 

Consider the Spanish hurdler Maria Jose Martinez-Patiño. A gender test revealed that she had a Y chromosome, which normally makes a person male. She also had complete androgen insensitivity syndrome, or CAIS, which prevented her body from responding properly to testosterone and caused her to develop as a woman. 

The Spanish Athletic Federation got her test results in 1986, just before a major competition that would have set her up for an Olympic run. Though she won the 60-meter hurdles, the federation declared her ineligible for the 1988 Summer Games in Seoul. 

The International Olympic Committee has struggled with cases like these, variously using hair patterns, chromosomes, individual genes and other factors in their long-running attempts to distinguish men from women. All of these tests have been discarded. 

For the London Games, officials are going by a new set of rules that shifts the focus from DNA to testosterone, a hormone that aids muscle development, endurance and speed. 

To a group of increasingly vocal skeptics, the very notion of gender testing is flawed and efforts to measure it biologically are doomed to fail. But some experts said they had to try anyway. "There is no single metric for sex or athletic potential," said Eric Vilain, director of the Center for Gender-Based Biology at UCLA. But he called the new testosterone-based test a pragmatic solution to a real problem. "I have talked to many elite female athletes, and I haven't found one who is comfortable with the idea of having no testing," he said.

The IOC's new gender regulations disqualify from women's events those athletes who "have testosterone levels in the normal male range, which is 7 to 30 nanomoles per liter of blood". [PDF]

Nothing in these Regulations is intended to make any determination of sex. Instead, these Regulations are designed to identify circumstances in which a particular athlete will not be eligible (by reason of hormonal characteristics) to participate in 2012 OG Competitions in the female category. In the event that the athlete has been declared ineligible to compete in the female category, the athlete may be eligible to compete as a male athlete, if the athlete qualifies for the male event of the sport.

 Jon Bardin in the LAT reports that

Athletes with complete androgen insensitivity will be allowed to compete. 

It's impossible to say how many athletes in London will be affected by the new test ... Unlike past tests, which were given to all competitors in women's events, this one will be administered only when the chief medical officer of a national Olympic committee or a member of the IOC's medical commission requests it.  Ljungqvist said the test had a narrow purpose: "We are not determining the gender in an individual. What we are talking about is athletic eligibility."

The article notes that

Accusations of men masquerading as women in the Olympics go back at least as far as 1936, the year questions were raised about American sprinter Helen Stephens after her upset win at the Berlin Summer Games. Stephens passed some sort of gender test — the details are lost to history — and was awarded a gold medal. 

The Cold War raised tensions between the U.S. and Soviet-bloc teams. Whispers about men posing as women were rampant on both sides, leading the IOC to devise a testing procedure in the 1960s. Athletes had to parade nude in front of physicians, submit to genital exams and have their hair patterns analyzed before they could receive certificates of femininity. 

In 1967, that gave way to a more scientific test based on DNA. In people with two X chromosomes, one of them is inactivated and curls up into a tight ball, which the test detects. But the test proved inadequate in cases of conditions like complete androgen insensitivity syndrome, in which athletes had an X and a Y chromosome but the biological appearance of a woman. ... [T]he IOC switched to a test based on a gene called SRY, which initiates testes development. But since the gene is on the Y chromosome and merely tests for that chromosome's presence, it suffered the same flaws. Eight female athletes failed the SRY test at the 1996 Atlanta Games, though all had androgen insensitivity and were ultimately cleared to compete. 

That convinced the IOC to drop routine gender testing, but it and the International Assn. of Athletics Federations retained the right to test those suspected of competing under false pretenses or with medical conditions offering an unfair advantage. 

That's how South African runner Caster Semenya came to be tested at the 2009 World Championships in Athletics in Berlin. ... The international association conducted an inquiry and cleared her to race after a 10-month ban. She carried her country's flag in the opening ceremony for the London Games. 

Association officials were criticized for the seemingly arbitrary nature of their inquiry. The new IOC policy is crafted to be more transparent. ... 

To Martinez-Patiño, now a professor of sports science at the University of Vigo in Spain, the new rules echo the old — they just use a different metric. "Over time they will conduct research and demonstrate the ineffectiveness of this test," she said, "just as has happened with the others."

Footy Marks

'American Needle Inc. v. NFL' (Marquette Law School Legal Studies Paper No. 12-14) by Matt Mitten notes that

In American Needle, Inc. v. National Football League, a 2010 case, the United States Supreme Court unanimously held that the National Football League (NFL) clubs’ centralized and exclusive licensing of their individual trademarks through a wholly owned league subsidiary is not immune from judicial scrutiny under §1. This landmark decision has broad implications because its rationale suggests that all collective decisions by a U.S. professional sports league’s member clubs that reduce intrabrand economic competition among themselves (e.g., joint decisions regarding the ownership, number, and geographical location of teams, restrictions on the sale of broadcasting rights, labor relations issues, etc.) are subject to §1. Before describing and analyzing American Needle, this chapter explains how U.S. major professional sports leagues are structured and governed and briefly surveys the rulings of lower courts, which generally rejected the single entity defense. It concludes by reviewing how lower courts have applied American Needle to subsequent sports antitrust litigation and scholarly commentary regarding its future application to professional sports leagues.

Mitten comments that -

One of the most difficult issues affecting legal regulation of the United States professional sports industry is whether (and, if so, how) §1 of the Sherman Act, a provision of the U.S. antitrust laws prohibiting concerted action that unreasonably restrains interstate trade or commerce, applies to professional sports league rules and internal governance decisions. In other words, are league clubs separate economic entities whose collective action is subject to § 1, or is a sports league and its clubs an economically integrated single business enterprise whose conduct is not covered by § 1 (the basis of the “single entity defense”)? If the later, what is the appropriate standard for determining if the challenged concerted action unreasonably restrains trade? 

In American Needle ... the United States Supreme Court unanimously held that the National Football League (NFL) clubs’ centralized and exclusive licensing of their individual trademarks through a wholly owned league subsidiary is not immune from judicial scrutiny under §1. ... Acknowledging that a sport’s league’s member clubs must cooperate to produce on-field athletic competition, the Court reaffirmed: “When ‘restraints on competition are essential if the product is to be available at all,’ per se rules of illegality are inapplicable, and instead the restraint must be judged according to the flexible Rule of Reason.’”

Enhancement

'A risk profile of elite Australian athletes who use illicit drugs' by Johanna Thomas & Matthew Dunn in (2011) 37 Addictive Behaviors 144-147 argues that -

Much of the literature investigating the relationship between sports participation and substance use has focused upon student populations, with little focus being given to athletes who participate at elite levels. Identifying why some athletes may be at a greater risk for substance use can help in the design and implementation of prevention initiatives. Data for the current study was from 1684 self-complete surveys with elite Australian athletes.

Eight percent (n=134) of the sample reported the use of at least one of the six illicit drugs under investigation (ecstasy, cannabis, cocaine, meth/amphetamine, ketamine and GHB) in the past year. Having been offered or having had the opportunity to use illicit drugs in the past year, knowing other athletes who use drugs and identifying as a ‘full-time athlete’ were significant predictors of past-year illicit drug use, while having completed secondary education or a post-school qualification was associated with a lower likelihood of past-year illicit drug use.

Athletes are part of a sportsnet that includes family, coaches, support staff and other athletes, and these relationships may encourage the use, supply and demand for drugs. The current findings suggest that relationships with some of those in the sportsnet may play an important role when understanding illicit drug use among elite athletes. As education appears to be associated with a lower likelihood of illicit drug use among this group, initiatives should encourage athletes to engage in offfield pursuits which may also help prepare them for life after sport.

The authors comment that -

Athletes do not live in isolation. Even athletes who compete in so-called ‘individual’ sports are part of a sportsnet that includes family, coaches, support staff and other athletes, and these relationships may encourage the use, supply and demand for drugs. In high profile cases where athletes have been found to have engaged in banned substances use, such as track and field athlete Marion Jones, it has been shown that those in the sportsnet are either knowledgeable or actively complicit in the athlete's substance use. As such, those in the sportsnet are now subject to penalties under the 2009 World Anti-Doping Agency Code (World Anti-Doping Agency, 2009), as well as being identified as an important target group for education. The current findings suggest that relationships with some of those in the sportsnet may play an important role when understanding illicit drug use among elite athletes.

Among the current sample, those who used illicit drugs were more likely to be male, older, know other athletes who used illicit drugs and had been offered or had the opportunity to use drugs. Previous research among other athletic populations have found that gender, other substance use, type of sport and personal factors such as sensation seeking and religiosity are just some of the factors found to be associated with drug use. However, these relationships are not simple and are further undermined by the possibility that the factors that relate to “illicit drug” use may differ from those related to “performance enhancing drug” use, and even then, factors may vary. For instance, in discussing why cyclists might engage in doping behaviour, one participant in a study conducted by Hardie, Shilbury, et al. (2010) stated “I'd like to give you one straight answer but I can't. Amateurs do it to turn professional. Professionals do it to keep a job. But then you've also got the high end guys like guys who are winning Tours and are on multimillion dollar contracts are still doing it. You can't say it's for the money. You have to look a bit deeper and say it's probably not peer pressure but pressure to perform and pressure they put on themselves and pressure to win.” (pg. 63).

Identifying as a “full-time” athlete was associated with an increased likelihood of engaging in illicit drug use, while completing post-secondary education was associated with a lower likelihood of illicit drug use. Increased focus has been given to athletes' on- and off-field lives and how these interact. For athletes, career termination may occur suddenly and involuntarily and sporting organisations are persuading their athletes to undergo training and education to prepare for life after sport. This, in turn, may have positive benefits for the athlete while they still have an active sporting career. Price, Morrison, et al. (2010) found that 90% of elite athletes actively engaged in non-sporting pursuits to help lengthen their sporting career; that these non-sporting pursuits provided an outlet from sport; and that 72% of those athletes undertaking work outside of sport or studying believed that this aided their performance. Further research should explore the relationship between off-field pursuits and on-field performance.

Olympic Identity

'The End of Olympic Nationality' by Peter Spiro (forthcoming as a chapter in Kim Rubenstein [ed] Allegiance & Identity In a Globalised World Cambridge University Press 2012) argues that -

Sport supplies useful terrain on which to explore meanings of loyalty and identity. At the international level, the preferences of consuming publics break down along national lines. In perhaps no other context are states and their citizens as unified as they are with respect to international competition, overcoming political, social, and cultural cleavages. The Olympic Games represents an apex of this national solidarity.

This paper describes the hybrid public/private regime of Olympic nationality, the baseline of which requires athletes to be citizens of the countries for which they compete. The regime obstructs transfer of Olympic nationality in important respects. This regime has been justified as a shield against instrumental naturalization and lax state naturalization regimes, and ostensibly works to maintain some correlation between an athlete’s organic national identity and the flag for which she competes. But eligibility requirements relating to eligibility are easily gamed. They create barriers to movement and discriminate against naturalized citizens inconsistent with human rights norms.

The paper argues that nationality requirements should be abandoned. Olympic competition should move to a club sports model in which athletes can play for any national team that will have them. This change would not detract from the quality of Olympic competition nor would it diminish sentimental attachment to national teams.

In his introduction Spiro comments that

Recent Olympic games have produced a litany of stories highlighting putatively anomalous national affiliations of various competitors. It is not clear, however, why these cases should be considered anomalous. We don’t insist that our professional athletes hale from the cities that they play for. Why should we demand any more from Olympic athletes?

This chapter first describes the regime of Olympic nationality. This regime is hybrid public/private. It is largely parasitic on state nationality rules, but obstructs transfer of Olympic nationality in important respects. This regime has been justified as a shield against instrumental naturalization and lax state naturalization regimes, and ostensibly works to maintain some correlation between an athlete’s organic national identity and the flag for which she competes (by way of "protect[ing] the integrity of international competition", in the words of the statute of the International Ice Hockey Federation).

No doubt there are a mounting number of cases in which citizenship has been acquired on an instrumental basis for purposes of Olympic competition, where an athlete’s prior connection to her flag state is tenuous or nonexistent. Such activity may facilitate “muscle drain” from poor to richer countries; it may also advantage countries with more liberal or discretionary citizenship regimes. Nationality transfers have been derided as "country swapping," an exercise in flying “flags of convenience," "quickie citizenship," "passport bartering," and "athletic mercantilism." But efforts to combat these putative ills are themselves normatively problematic. To the extent that Olympic nationality is pegged to state citizenship, the rules will be variably applied. The overlay of Olympic nationality creates barriers to movement and discriminates against naturalized citizens inconsistent with human rights norms.

This is an important subject which has gone understudied. Olympic nationality is important in itself. The Games implicate huge stakes for all involved – states, particular sports, and individual competitors. Eligibility rules are a prominent feature of the sporting landscape. The Olympic nationality regime has been in an unstable condition, warranting study on its own terms. But Olympic nationality may also supply a useful optic on the condition of citizenship more generally. Put to work in this way, the trajectories of Olympic nationality cast doubt on the durability of citizenship in its traditional conception as delimiting the boundaries of human community. The chapter argues that Olympic citizenship is no longer sustainable, at least to the extent that it constrains the discretion of states in composing their Olympic representation. Olympic competition should move to a club sports model, in which athletes can compete for any team that will have them. The trajectory of Olympic citizenship supplies further evidence for the postnational proposition that citizenship is a waning institution.

He goes on to comment that -

As a general matter, states have been more inclined to commodify immigrant admissions than citizenship determinations. In the United States, for example, it is the green card that is (in effect) for sale, not the naturalization certificate. Global mobility breaks down along class lines; transnational elites can travel without restriction (for many a green card would add little value) where the nonpropertied face high barriers to entry. Citizenship itself except at the margins commands little market value.

In the Olympic context, citizenship is valuable only to the extent that it facilitates eligibility. In a hypothetically free market, some athletes would be willing to pay for citizenship, especially where it made the difference to allowing an individual to compete (primarily among second-rank athletes disadvantaged by the national quota system). With respect to top athletes, the market value is reversed, and some states would be willing to pay the athlete to accept citizenship by way of establishing Olympic eligibility. But citizenship is a formality. There is no reason why citizenship needs to be extended to the athlete beyond the requirements of the Charter and statutes of the sporting federations. It serves no purpose beyond eligibility. The individual is not being made a citizen on the expectation that she will establish or maintain a connection in any other way. There is no pretense of social membership

St Don, St Mary and St P of Flemington

First St Don of Bradman, now St Mary MacKillop.

The Prime Minister has announced that the national Government will -

provide special legislative protection to control the use of names associated with Mary MacKillop, who will become Australia's first Saint on 17 October 2010.

One might hope that Phar Lap will be canonised, alongside other 'national icons' such as Gary Ablett, Fred Hollows, Weary Dunlop, Joan Sutherland, Nellie Melba and Steve Irwin, and suitably protected through changes to the Corporations Law regulations in the near future. (The 2002 ACIP report [PDF] on protection for national icons highlights some issues. I of course jest, as is my wont, about canonisation, in a reaction to the hyperbole about St Mary.)

The PM's media release indicates that -

The decision to grant additional protections reflects the significance of the canonisation of Mary MacKillop for millions of Australians.

The Corporations Regulations 2001 will be amended so that requests for use of a company name, or part thereof, that suggests a connection to Mary MacKillop will be prevented, unless Ministerial approval is granted.

A name need not include the text "Mary MacKillop" to suggest a connection. For example, a name including "Saint MacKillop" would be prohibited. A name including "Our Mary" might be blocked, depending on the circumstances and the rest of the text of the name sought.

This amendment will reduce the extent to which an entity may hold itself to be associated with Mary MacKillop.

The release goes on to boast that -

the new measure would provide the highest level of protection currently provided for any individual Australian's name.

The only other individual Australian's name with similar protection is Sir Donald Bradman.

In addition, existing laws will continue to offer a range of protections against the improper use of Mary MacKillop's name, including the Trade Marks Act 1995, Trade Practices Act 1974, equivalent state laws, and the common law.

The Prime Minister said the new measure was further recognition of the significance that Mary MacKillop's life holds, not only for the five million Australians of Catholic faith, but for all Australians.

All Australians?

The ability to express national joy in the form of federal funding is less than miraculous -

The amendment complements the Government's election pledge of $1.5 million to assist in the commemoration of the canonisation, which includes support for a delegation of youth and indigenous representatives attending the canonisation ceremony in Rome, and the inclusion of the Mary MacKillop Canonisation Gift Fund as a specifically listed deductible gift recipient.

We might better have spent the $1.5 million housing some of the local homeless or providing support services for the truly needy.

More broadly, we might ask what is the "significance" of Mary MacKillop's life "for all Australians". Was she an archetype of the 'little Aussie battler'? Does significance lie in the way that she has been appropriated by particular interests and in contestation regarding her image, with suggestions for example that she become the patron of victims of clerical abuse. Do we need a change to the Corporations regulations (which restricts use of terms such as 'bank', 'university', Red Cross', 'RSL', 'Made in Australia' and 'building society' and which restricts corporate names that suggest a relationship with a member of the House of Windsor) in order to protect the new saint?

bubonic plague 2.0

One of my friends questions the anxieties evident in some conceptualisation of same-sex affinity (or merely gay identity) ... apparently being near someone who's gay, sighting someone who's gay, encountering gay erotica or merely using a 'gay' product (whatever that is) is enough to 'make you gay'. Perhaps people conceptualise 'gayness' as a virus, spread through the air like the plague or - great discovery for science - via fibre optic cable.

I was reminded of her questioning on reading reports in today's SMH about statements by "outspoken" footballer Jason Akermanis that gay footballers should stay in the closet. (ROFLMVAO at Mr Akermanis' photo ... so very Village People).

He is reported as stating that -

I'm not sure that's very safe and healthy for the competition. What you do in your private life is your business. ...

If a player wants to out himself, then I say good luck ...

But I believe the world of AFL footy is not ready for it. To come out is unnecessary for a lot of reasons.

Imagine the publicity associated with a current player admitting he's gay.

It would be international news and could break the fabric of a club.

Presumably we've become so blase about leading footballers taking banned substances, dealing in banned substances, getting 'wasted' yet again and writing off their sports cars, raping adult female fans or engaging in group sex - oh, homosociality! - with minors that we don't need to fret about publicity or torn fabric.

Mr Akermanis is reported as explaining that 'footballers are at their peak of masculinity, which means homophobia is "almost at its peak".' Uh huh.

"Some footballers think there's something wrong with people, they have some kind of disease."

"But some of my, the homoeroticism around football clubs ... what workplace would you be able to see 20 men nude all the time if you wanted to?

"When you're slapping blokes on the bum and just having a bit of fun, what would that do to a man in there when you actually work out, 'Oh wait a second, wait a second. I don't know if I can handle that guy"'.

I must go to a football game ... the last time I indulged the players seemed to be wearing clothes, so suggestions of continuous nudity are misplaced.

Akermanis is reported as commenting that 'it would be unsafe for players to be openly gay and it could make other players uncomfortable since they think homosexuals suffer from some kind of disease'. Presumably those players can be educated about the principles of contagion ... no, you won't become gay merely by being within 50 metres of 'one of them', by borrowing a towel or a pair of boots, or by slapping the wrong bloke on the bum. No need to sterilise football between passes. No need to spray toxic substances on the grass in case the gay virus has escaped.

V sad.

Akermanis (or his ghostwriter) might have benefited from reading Come Out To Play: The Sports experiences of Lesbian, Gay, Bisexual and Transgender (LGBT) people in Victoria [PDF] which concludes that -

Most Come Out To Play participants were sports devotees who valued these health, social and achievement benefits of sport. A significant proportion also persisted with their sport involvement even in the face of sexuality and gender based discrimination and abuse.

Other studies have demonstrated that school sport is a key site of homophobic bullying (Brackenridge, 2006; Hillier, 2005) and sexism (Wellard, 2002, Penney, 2002). Survey participants who had positive experiences of sport and physical education at school indicated that they were confident and successful in their sporting skill and 'perceived ability at sport was a strong indicator of whether or not this area of study was remembered as positive or negative'. However, a significant proportion (over 45.0%) experienced homophobia as a common part of their sporting education, and this was more pronounced for men than women in the study. It was also troubling that nobody in the study gave examples of teachers supporting SSAY in their sports endeavours, or intervening when homophobic language and bullying did take place.

Brackenridge et al. (2006) conclusion that the overall effects of homophobic bullying on sports for boys who are non-athletic and or perceived as gay, as well as girls in general – that it drives down sports participation, or Hillier et al. (1998, 2005) finding that sport was one of the main environments that same-sex attracted young people within Australia felt least safe, could not be assessed by this study because of the sporty nature of the LGBT sample as well as the age range surveyed (over 18 years). Specific research needs to be conducted on sports participation including the benefits, barriers, facilitators and issues for SSAY in Australia. Furthermore, the overall participation rates of LGBT Australians in sport and physical activity have not been researched. Participation surveys such as the Sweeny reports and Australian Bureau of Statistics data do not even ask respondents to identify their sexual orientation. These research gaps need to be addressed. However, there is sufficient research evidence demonstrating that the school and sports environment present significant challenges for SSAY and that targeted programs that address homophobia in sport and promote sports participation and the inclusion of SSAY are timely. This would need to occur in the educational environment, ensuring that physical education and health teachers in particular, are professionally prepared and sensitive to this issue.

The shaping fields within society and sport for these discriminatory experience centre on traditional discourses of gender and sexuality. The qualitative responses from the Come Out To Play research indicated that ‘strong sanctions’ were imposed on those who violated these ‘gender and sexuality norms’ during their sports experiences. Homophobic and / or sexist verbal insults and threats, physical assaults and general exclusionary practices had a negative impact on the LGBT sports people who were the targets of these sanctions. Participant's responses to the closed questions of the survey also portrayed a challenging mainstream sporting environment for many LGBT people.

Forty-one percent of survey participants had experienced verbal homophobia at some time during their sport involvement and for the majority this experience was common place. A similar percentage had experienced sexism during their involvement in sport and over 80.0% of this cohort reported that such sexism was a common occurrence. Whilst 33.0% of survey participants identified their sports club as very welcoming of non-heterosexual people, a further 36.0% reported their mainstream club to be neither welcoming nor unwelcoming and 13.6% reported their club to be unwelcoming to very unwelcoming to them as non-heterosexuals. Only 12.1% of survey participants indicated that their mainstream sports club had policies that promoted the safety and inclusion of LGBT people, whilst a further 44.2% reported that no such policies existed.

It is not surprising in this challenging context that nearly half of the survey participants were not 'out' in their mainstream sport, whilst a further 33.0% were 'out' to some. The main reasons given for not being 'out' were unsure of sexuality, safety and wellbeing concerns such as the fear of being judged, harassed, discriminated against, abused and even physically assaulted. Feelings of isolation also resulted when few if any LGBT club members were 'out'. Gay men were the least likely to be 'out' in a team sport, compared to an individual sport and were also significantly less likely to play team sports than women. Although the women in this survey reported experiencing greater levels of homophobia and sexism, the potential of the abuse for not being heterosexual was more serious for gay men. The dynamics of gender, sexuality and sport played out in the stories and responses of these survey participants was rich and instructive. Whilst there were some positive sport stories from this survey that provide good practice examples of open and inclusive sports environments for LGBT people, many exemplified conditionally tolerant environments at best and hostile ones at worst.