The involvement of the law and lawyers in sport is likely to become more prevalent, writes JACK ANDERSON
TWENTY YEARS ago, Ireland’s first appearance at a World Cup enthralled a nation.
In terms of professional football, however, the most enduring feature of the summer of 1990 was the failure of a modestly talented Belgian footballer called Jean-Marc Bosman to secure a transfer to another club. For the previous two years, Bosman had been employed by the Belgian club RFC Liège and even though his contract with them expired in June 1990, under the then transfer rules, Liège were entitled to retain Bosman’s player registration and prevent him from seeking employment elsewhere.
The servitude of that arrangement appears bizarre today but it is one that existed in professional football for over a century.
Bosman eventually took a case to the European Court of Justice and its judgment fundamentally changed the commercial landscape of professional football in Europe.
Put simply, the Bosman ruling shifted the balance of power from the employers and towards the workers.
This shift was seen to graphic effect this autumn in the machinations that surrounded the renegotiation of Wayne Rooney’s contract with Manchester United.
In essence, the Bosman litigation, the Rooney negotiations and much of modern professional sport can be distilled into one word – money. And that is where the law and lawyers come in. Professional sports persons invest heavily in their careers. Their livelihood is built around it.
Their future is dependent upon it and thus, unsurprisingly, they are utilising the law in an effort to maximise and protect their earning capabilities in an occupation that is comparatively abridged and precarious in nature.
This “legalisation” of sport can take many forms such as hiring representation in order to challenge doping or disciplinary-related suspensions, or obtaining advice on how best to exploit image rights and endorsement deals.
In Ireland, professional sport, with the exception of the horse racing industry, is largely confined to rugby.
The limited nature of professional sport here means that the development of sports law as a discrete area of practice, and study, remains at a nascent stage.
Nevertheless rugby in Ireland gives a good illustration of the potential in sports law.
For instance, it can be argued that entering the Aviva stadium is now every much an experience of law in action, as it is sport at play.
The merchandising and advertising that the spectator encounters on entering the stadium is subject to significant legal protections such as trademark, copyright legislation and the tort of passing-off, and included here, of course, are the naming rights to the old Lansdowne Road.
The stadium’s design is in line with the raft of health and safety legislation that can be traced to the British authorities’ reaction to the Hillsborough stadium disaster.
On the field of play, if players commit playing offences their hearings will be heard by tribunals that seek to adhere to the principles of a fair trial inherent in article 6 of the European Convention on Human Rights.
If the injury inflicted is sufficiently serious and is outside that which is ordinary and incidental to the game, the culprit might be sued in negligence or even face criminal liability. On completion of the game, a number of players will be chosen randomly for routine tests for performance-enhancing drugs – a testing regime that flirts with the very boundaries of personal and legal privacy.
When the spectator returns home, they will in all likelihood look at the highlights of the game on TV.
As seen earlier this year in the IRFU’s spat with the Minister for Communications, the contest for these broadcasting rights, and whether they should be made available on terrestrial or satellite TV, may be every bit as competitive as the game itself.
In sum, when faced with an industry that, even in a small jurisdiction such as Ireland, is becoming ever more complex and diverse, and in a society that has become more litigious and risk averse, the involvement of the law and lawyers in sports such as rugby is likely to become ever more prevalent.
In fact, the recent debate in rugby as to the dangers of players suffering repeated concussions is one that may be solved ultimately in the courts.
The law has a history of effecting change in rugby. In the 1990s, a rise in the number of catastrophic spinal injuries resulted in litigation by individual players based on the allegedly unsafe nature of the game’s scrum laws.
The fallout from that litigation can now be heard in the familiar “crouch; touch; pause; engage” commands of referees.
Finally, the influence that law has on sport is not confined to professional sport. Amateur players also sacrifice much in terms of time and effort.
The threat of litigation from players aggrieved by the internal handling of disputes has seen the growth in Ireland of sports-related arbitration with the GAA’s Dispute Resolution Authority in particular attracting international acclamation.
Arbitration bodies demonstrate that there is a positive role for lawyers to play in sport.
Many local sports organisations require advice on their governance structures, on child protection policies and with the drafting of rules and regulations. By taking on such voluntary work lawyers can use their skills to facilitate the enjoyment, rather than the litigation, of sport.
Jack Anderson lectures in sports law at Queen’s University Belfast and recently authored Modern Sports Law (Oxford, Hart, 2010)