Sports & Entertainment Case Law, Lecture notes of Law

Download Sports & Entertainment Case Law and more Lecture notes Law in PDF only on Docsity! Case Law False Endorsement – Topic 1 1)Edmund Irvine v Talksport Ltd [2002] EWHC 367 (Ch) Summary Intellectual property – Passing off – Celebrity endorsement – Image rights – Judicial notice – False message – Damages – Principles of assessment Facts The Defendants operated a radio station called Talksport, which had formerly been known as Talk Radio. Their marketing company sent out promotional material to a number of people responsible for the placement of advertisements. The material included a brochure featuring on its cover a picture of the Claimant, a well-known racing driver. The right to use the picture had been legally obtained, but the marketing company had doctored the picture, removing the mobile phone that the Claimant was holding and replacing it with a radio with the words “Talk Radio”. The Claimant brought an action for passing off on the basis that it understood by the market that he had endorsed the radio station. The Judge, holding that a court could take judicial notice of the fact that it was common for famous people to exploit their names and images by way of endorsement, held that the Claimant did have a substantial reputation or good will and the Defendants had created a false message and so were liable. Issue (1) Whether the Defendants had presented the false message that the Claimant had endorsed their radio station. (2) If so, what was the correct level of damages. Held (1) The picture clearly gave the false message that the Claimant had endorsed the Defendant’s radio station. (2) The correct principles for calculating damages in a case of this kind were those identified in General Tire and Rubber Co v Firestone Tyre and Rubber Co [1976] RPC 176. Applying those principles, in the circumstances the judge had been wrong and the appropriate award was £25,000. 2)Robin Fenty (Rihanna) v Arcadia Ltd (Topshop) [2013] EWHC 2310(Ch) Summary passing off – t-shirt – intellectual property – goodwill Facts C, a famous pop star and style icon, issued proceedings against D, a well-known high street fashion retailer, for selling a t-shirt bearing her image. The image had been photographed by an independent photographer during the video shoot for a single from her 2011 “Talk That Talk” album. D had a license from the photographer but no license from C. C contended the sale of the t-shirt without her permission infringed her rights on the grounds of passing off as the public would assume she had licensed the use of her image to D. D argued that customers would buy the shirt because they liked the product and the image for their own qualities. There was nothing on the t-shirt which represented it as an item of C’s merchandise and the public would not think it was. The t-shirt, D maintained, was a high quality fashion-led garment that was very different from standard pop star merchandise. Issue Whether C could establish the three elements of a passing off claim, namely: 1. That she had goodwill and a reputation amongst relevant members of the public; 2. That D’s conduct constituted a misrepresentation; and 3. That such a misrepresentation was likely to cause damage to her goodwill. Held Finding for C: 1. C had ample goodwill to succeed in a passing off action of this kind. C was a world famous pop star who ran very large merchandising and endorsement operations. C was regarded as a style icon by many people, predominantly young females aged between about 13 and 30. Such people were interested in what they perceived to be C’s views about style and fashion. If C was seen to wear or approve of an item of clothing, that was an endorsement of that item in the mind of those people. Further, the fact that the item was a more design led fashion garment, rather than a lower quality simple plain t-shirt, would not be understood to rule out, in the mind of a purchaser, the idea that it was a product endorsed by C or an item of C’s authorised merchandise. 2. Misrepresentation was the real issue. J Birss considered various aspects of the particular circumstances of the case, namely that: (i) The absence of comments on D’s website indicating that anyone had bought the t-shirt in the belief that it had been authorised by C and lack of other evidence of any actual confusion were relevant points in D’s favour but not determinative. (ii) D had made considerable efforts to emphasise connections in the public mind between the store and famous stylish people, such as C. An important example of this was a shopping competition held by D in 2010, offering the entrants the chance to win a personal shopping appointment with C at their flagship store in Oxford Circus. (iii) A week or two before the t-shirt was on sale, D had tweeted the fact that C was visiting the store. J Birss rejected D’s submission that this was simply chatter and gossip. Particularly bearing in mind the age and nature of the relevant customers, the internet and social media were an important part of both C and D’s business. They constituted some of the key channels by which both C and D communicated with their fans and customers. D had mentioned C because it thought it would sell more products by doing so. (iv) The fact that there was no indication of artist authorisation on the swing tag or neck label pointed firmly against authorisation but was not strong enough to negate the impression that the garment was authorised. Although a good number of purchasers would buy the t-shirt without giving the question of authorisation any thought at all, a substantial portion of those considering the product would be inducted to think it was a garment authorised by the artist. C’s (3.4 m) tall and weighs 7,100 pounds (3,200 kg).[3][1] Both are located in Manhattan's Bowling Green, at the intersection of Broadway and Whitehall Street.[4] Fearless Girl is meant to "send a message" about workplace gender diversity and encourage companies to recruit women to their boards.[5] The plaque below the statue states: "Know the power of women in leadership. SHE makes a difference," with SHE referring to both the gender of the subject and the fund's NASDAQ ticker symbol.[6] The commission by State Street Global Advisors specified that the statue should depict a girl with hands on her hips and chin up, with a height of 36 inches, which Kristen Visbal and her collaborators then increased to 50 inches, to better match the size of Charging Bull.[1] Still, Visbal commented that "I made sure to keep her features soft; she's not defiant, she's brave, proud, and strong, not belligerent".[1] She modeled the sculpture on two children, but many of the distinguishing features were removed so that it would be universally appealing. A child who would represent all children "so everyone could relate to the Fearless Girl."[1] Juxtaposition with Charging Bull The juxtaposition of Fearless Girl and Charging Bull upset some observers, including sculptor Arturo Di Modica, who installed Charging Bull in 1989. Arturo Di Modica, who installed Charging Bull in 1989, asked that the statue of the girl be removed, arguing that the piece exploited his work for commercial purposes and altered the perception of the bull.[19] He called Fearless Girl "an advertising trick" that he wants relocated, citing its political messaging.[20][1] On April 12, 2017, Di Modica and his attorney, former New York Civil Liberties Union director Norman Siegel, challenged city officials who let the Fearless Girl statue be installed.[21][22] Di Modica said that the statue corrupted Charging Bull's artistic integrity by distorting the intent of his statue from "a symbol of prosperity and for strength" into a villain, and does so for SSgA's commercial gain.[23][24] Siegel said a lawsuit had not been filed as of yet.[21][22] De Blasio supported keeping the statue, tweeting that "Men who don't like women taking up space are exactly why we need the Fearless Girl."[25] Some women criticized the statue as "corporate feminism" that violated their own feminist principles.[26][27] The New York Times columnist Gina Bellafante called it "an exercise in corporate imaging" by State Street, which, she wrote, had entered into a deferred prosecution agreement with the United States Department of Justice, agreeing to pay more than $64 million to resolve fraud charges for secretly billing clients for unwarranted commissions. "Corporate feminism", she wrote, "operates with the singular goal of aiding and abetting a universe of mothers who tuck their daughters in at night whispering, 'Someday, honey, you can lead the emerging markets and sovereign debt team at Citigroup, and then become a director at Yahoo.'" [28] Christine Emba, an opinion writer for The Washington Post, wrote that the statue "portrays the empowered woman as a child, reinforcing the idea of femaleness as cute and inoffensive—a child with potential, maybe, but not all the way there."[29] A Sporting Chance –Topic 2 1)Republic v Kenya Cricket Association & 2 Others (Ex parte Maurice Odumbe) [2006] EKLR On 17/8/04, Maurice Odumbe, then a Kenya cricket international, was handed a 5 year cricket ban by the Kenya Cricket Association (KCA). The ban was handed to the cricketer following recommendations made by a committee set up by the KCA to investigate the cricketer’s conduct in relation to claims of misconduct and match fixing leveled against him in the year 2004. Shortly after this decision to ban him from playing cricket for five years was made, Odumbe, though his lawyer, moved to court seeking to have the judge quash the decision of the KCA and issue another order prohibiting the KCA from banning him from playing cricket. Odumbe’s lawyer filed a judicial review application which application the respondent’s lawyer objected to primarily on the grounds that the KCA was a private entity and as such its decisions were not amenable to judicial review. Unfortunately for Odumbe, the court upheld the respondent’s submissions and dismissed Odumbe’s application. Odumbe, then the immediate former captain of the Kenya Cricket team, never got to play another international cricket match for Kenya. (Republic Vs. Kenya Cricket Association & 2 others Ex parte Maurice Omondi Odumbe (2006 e Klr) It is arguable that the outcome of Odumbe’s case would have been different had his lawyer taken a different tactical approach to the case. About two decades earlier, three officials of Mwamba rugby club had successfully challenged in court a decision by the Kenya Rugby Football Union suspending the club and slapping it with a fine. The suspension and fine had supposedly been imposed on the club by the rugby union following the club’s refusal to play against a visiting rugby team from South Africa. The three club officials filed a petition in the constitutional division of the High Court against the then chairman of the rugby union claiming that the club member’s freedom of conscience had been trampled upon by the union. The court agreed with the petitioners and made an order quashing the union’s decision. (Mugaa M’Mpwii vs. G.N. Kariuki; Nairobi High Court Civil Case No. 556 of 1981). This case broke new legal ground in that it set out at least one instance when the court would be compelled to revisit the decision of a private sports entity and revise it. That Odumbe’s lawyer failed to follow the legal precedent set in the Mwamba rugby club case was a costly mistake which Odumbe ultimately paid for. Had Odumbe’s lawyer approached Odumbe’s case against the KCA the same way counsels representing Mwamba rugby club approached the case against the rugby union, it is possible that the court could have found for Odumbe. A key similarity between the two cases above is that in both cases, the claimant was aggrieved by the disciplinary action taken against them by a national sports organization. In both instances, the claimant sought to challenge the decision of a private sports entity and both claimants approached the court for redress. However, this is as far as the similarities go. In the former case, the claimant’s counsel opted to approach the court by way of a judicial review application which application the court rightly refused to entertain whereas in the latter case, the learned counsel on behalf of the petitioners elected to approach the constitutional court with their client’s grievances and the court was vigilant in coming to the aid of the petitioners who had claimed that their constitutional rights had been infringed by the impugned disciplinary action. It is trite law that judicial review is a remedy only open to an ex parte applicant who wishes to challenge the manner in which a decision by a public body was made. Even at the time the Maurice Odumbe case was instituted, this was the position at law and there were numerous judicial precedents illustrating this fact. Further, it was common ground even at the hearing of the Odumbe case that the International Cricket Committee (ICC) the umbrella world body for cricket to which the KCA subscribed was a private company limited by guarantee and the KCA was a society registered under the Societies Act. The fact that the KCA operated under the umbrella of a private entity (the ICC) could only mean that the decision of the ICC it was enforcing was the decision of a private body and therefore not amenable to judicial review. That Odumbe’s counsel disregarded these facts was a costly error which Odumbe had to pay for. On the other hand, it is also a fact that both the current and the former constitutions empower the High Court to determine questions on whether a right or fundamental freedom in the bill of rights has been denied, violated or threatened. In determining such questions, the High Court is empowered to among other things make a declaration of rights and also a declaration of invalidity of a law or act that denies, violates or threatens a right or fundamental freedom in the bill of rights. The constitutional court has traditionally been zealous in giving legal redress to petitioners whose rights and freedoms under the constitution had been trampled upon or are being threatened. The lawyers appearing on behalf of the officials of Mwamba rugby club took advantage of the zeal and were successful in getting the court to intervene in and quash a decision of a private sports entity that had been made against his clients. That was not the case however for Odumbe. In applying a constitutional approach to the Odumbe case, it can be argued that the 5 year ban imposed on Odumbe would have curtailed his freedom of association as he was being prevented from playing cricket with his teammates. In effect, his association with his mates on the cricket field was threatened and it is arguable that this was a case deserving of intervention by the constitutional court. The fact that the denial of rights was by a private entity would not have been control of college football television rights, but the court also stated: "To preserve the character and quality of the ‘product,’ athletes must not be paid."[19] 2)Oliver v NCAA Rule of Law An NCAA Bylaw which hinders legal representation on behalf of a student-athlete is arbitrary and capricious and void. Facts Andrew Oliver (plaintiff) was the primary baseball pitcher at Vermilion High School in Erie County, Ohio. Prior to graduation, Oliver and his family retained the services of Robert M. Baratta, Tim Baratta, and Icon Sports Group (Icon), as sports advisors and attorneys. Later that summer, Oliver and his father, along with attorney Tim Baratta, met with representatives from the Minnesota Twins team at their home. The major league baseball team offered Oliver $390,000 to join the organization, but at the urging of his father, Oliver declined and, instead chose to attend Oklahoma State University (OSU) on a full scholarship to play baseball. During his freshman and sophomore years at OSU, Oliver never received any invoices from Baratta or Icon requesting payment for services rendered. After Oliver terminated the Barattas and Icon and retained Boras Corporation as his representative, Oliver received a bill for $113,750 from the Barattas for legal services rendered. Additionally, the Barattas mailed, faxed, and e-mailed a letter to the National Collegiate Athletic Association (NCAA) (defendant) complaining about Oliver and disclosing the meeting with the Minnesota Twins held at Oliver’s home. Consequently, Oliver was suspended indefinitely form playing baseball for violating NCAA rules. Oliver filed suit against the NCAA seeking a temporary injunction reinstating his eligibility to play for OSU. The trial court granted the temporary injunction. Despite the court’s order allowing reinstatement of Oliver, OSU petitioned directly to the NCAA thereafter to reinstate Oliver’s eligibility. Thereafter, Oliver was suspended for one year and charged with a year of eligibility by the NCAA. The penalty was later reduced to 70 percent of the original suspension and no loss of eligibility for Oliver. Oliver then sought a permanent injunction from the court preventing enforcement of NCAA’s rules and reinstating his eligibility to play baseball at OSU. Issue Is an NCAA Bylaw which hinders legal representation on behalf of a student-athlete arbitrary and capricious and void? Holding and Reasoning (Tone, J.) Yes. A permanent injunction will be granted only where the act sought to be enjoined will cause immediate and irreparable injury to the complaining party and there is no adequate remedy at law. The court must balance the relief requested to the facts and circumstances of the case. As an OSU student-athlete, Oliver is a third-party beneficiary of the contract between the NCAA and its member institutions, including OSU. As a result, Oliver has standing to assert a claim that the NCAA violated the duty of good faith and fair dealing implied in the contractual relationship with him and OSU. However, the court will only examine whether the NCAA rules and bylaws violate some aspect of public policy or are arbitrary and capricious. NCAA Bylaw 12.3.2.1 prohibits a lawyer from being physically present when a professional sports organization tenders an offer to an athlete. Such presence by the lawyer is considered to be representation as an agent. The NCAA claims that the rule helps to retain a clear line between amateur college athletics and professional sports. There is no question that a fundamental purpose of the NCAA is to maintain the amateur nature of intercollegiate sports. That is evidenced by NCAA Bylaw 12.3 which states that a student-athlete is ineligible to participate in intercollegiate sports if he agrees to be represented by an agent. However, Bylaw 12.3.2 provides an exception to that prohibition. Bylaw 12.3.2 notes that a student-athlete may hire an attorney. The rule attempts to limit the attorney’s role and control the capacity the attorney can function. The attorney can provide representation so long as it does not rise to the level of agent. It is impossible to allow student- athletes to hire lawyers and attempt to control what that lawyer does. Bylaw 12.3.2.1 is arbitrary and capricious and stifles what attorneys are trained to do. Therefore, the court finds that Oliver would suffer immediate and irreparable injury, loss or damage if injunctive relief is not granted. Oliver could suffer loss of his college baseball experience, impairment of future professional baseball prospects, and damage to his reputation. Permanent injunction is granted. 3)Wilberforce Kilibwa v. Mumias Sugar Company Limited (2013) eKLR Issue In Dispute-Work Injury Compensation To A Footballer Facts Wilberforce Kilibwa was employed by Mumias Sugar Company as a footballer, between 2000 and 2002. He played for the Respondent’s Football Club Mumias, a Club that was at the time competing in the Kenya Premier League. On 7th October 2001, his team travelled to Mombasa to play the Coast Stars in a Premier League game, at the Mombasa Municipal Stadium. Kilibwa was fielded, and while vying for a high ball lobbed in his ‘D’ area, collided with an opponent, fell to the ground and injured his left knee. He was treated at the Mater Hospital. He subsequently lodged a claim with his employer for compensation, under the repealed Workmen’s Compensation Act Cap 236 the Laws of Kenya. On 25th September 2002, the District Labour Office Kakamega wrote to the Respondent, assessing compensation payable to Kilibwa at Kshs. 169,322. This amount has not been paid to-date, necessitating the filing of the Statement of Claim on 5th December 2011. The Respondent filed its Statement of Response on 17th May 2012. The Claimant testified and closed his case on 12th February 2013.The Respondent testified through its Human Resources Officer Julius Were, and closed its case on 18th June 2013. Kilibwa asked the Court to order the Respondent to release his long delayed compensation. The Respondent has severally promised to pay compensation to Kilibwa. The Provincial Occupational Health and Safety Officer wrote to the Respondent on 18th February 2009, calling for payment. A reminder was sent out to the Respondent by the District Labour Office. The Respondent did not pay. In early 2010, and later on in 2011, the Claimant went personally and talked to the Respondent’s Legal Officer Ms. Emily Otieno, who promised that Kilibwa would be paid. The same promise was communicated by the Supervisor, Mr. Ashihundu. The employer has been promising Kilibwa that he would be paid compensation. No payment has been made. Holding Mr. Were conceded the Claim. He testified that the Claim is not disputed. The Court sympathizes with Kilibwa that the Respondent has kept him dangling in the wind for ten years, in a claim the Respondent ought to have settled many years ago. Once the Claim is admitted, the issue about whether the Claim is time-barred appears to this Court not to have any weight. Professional footballers in Kenya and elsewhere have rights and obligations like any other employees. Labour and Employment laws, such as the Work Injury Benefits Act Number 13 of 2007 and the Employment Act Number 11 of 2007, apply to Professional Footballers as they do to all other employees. Professional Footballers are entitled to the protections afforded by these Legislations. The Respondent shall pay to the Claimant compensation at Kshs. 169,322 within 14 days of the delivery of this Award. Open Season – Topic 4 1)Union Royale Belgedes Sociétés de Football v Jean-Marc Bosman Facts Jean-Marc Bosman was a player for RFC Liège in the Belgian First Division in Belgium whose contract had expired in 1990. He wanted to change teams and move to Dunkerque, a French club. However, Dunkerque refused to meet his Belgian club's transfer fee demand, so Liège refused to release Bosman.[3] In the meantime, Bosman's wages were reduced as he was no longer a first-team player.[4] He took his case to the European Court of Justice in Luxembourg and sued for restraint of trade, citing FIFA's rules regarding football, specifically Article 17. Holding On 15 December 1995, the court ruled the system, as it was constituted, placed a restriction on the free movement of workers and was prohibited by Article 39(1) of the EC Treaty (now Article 45 (1) of the Treaty on the functioning of the European Union). Bosman and all other EU footballers were given the right to a free transfer at the expiration of their contracts, with the caveat they were transferring from a club within one EU association to a club within another EU association. 2)Heart of Midlothian v Webster & Wigan Athletic FC Summary Sports law – Contract – Unilateral termination – Compensation – Article 17, FIFA Regulations – Unilateral termination of contract by football player – Appropriate compensation to be paid to club Facts Football player Andy Webster signed a four-year contract with Hearts shortly before his 19th Birthday on 31 March 2001. Hearts entered into negotiations with Webster in January 2006 to retain him at the Club long-term. Agreement could not be reached, and there was a breakdown in relations between Webster and the Club, and in particular, the majority shareholder, Vladimir Romanov. Webster gave notice to Hearts on 26 May 2006 that he was unilaterally terminating his contract on the basis of article 17 of the FIFA Regulations for the Status and Transfer of Players (the “FIFA Status Regulations”). His termination occurred outside the Protected Period of three years commencing from the date he was first employed by Hearts. The Fifa Dispute Resolution contract between De Sanctis and Udinese, and after the end of the Protected Period (21), De Sanctis informed Udinese of the termination of his playing contract with the club in accordance with the provisions of Article 17 of the RSTP. Udinese, in need of a new first goalkeeper after losing De Sanctis, exercised the option to take back Handanovic from Rimini two weeks later, on 21 June 2007. Furthermore, Udinese signed Antonio Chimenti, a veteran keeper, on a free transfer on 29 June 2007 and crucially released three other goalkeepers (22). One month after the unilateral termination of his contract, De Sanctis signed a four year contract with Sevilla. The club and the player included an indemnity clause in the contract which stipulated the amount of compensation, EUR 15,000,000, that would be payable by any party to the other in case that one would terminate his contract prematurely. In April 2008, deliberately short after FIFA s February decision in the Matuzalem (23) case, Udinese presented its claim before the FIFA Dispute Resolution Chamber, requesting the huge amount of EUR 23,000,000 as an indemnity for De Sanctis unilateral termination of the contract. The FIFA DRC, however, ordered De Sanctis and Sevilla in December 2009 to compensate Udinese with an amount of EUR 3,933,134. (24) How did the FIFA DRC reach this amount? The FIFA DRC calculated the final compensation taking into account the average remuneration due under the last contract between De Sanctis with Udinese on the one hand and the new contract between De Sanctis and Sevilla on the other hand. (25) However, a written explanation for this calculation method was not given by the DRC. Furthermore, it added an amount of EUR 350,000 related to the specificity of sport, but the DRC did not give any explanation as to why this amount corresponded to the value of the damage in accordance with the principles of the specificity of sport. (26) None of the Parties, Udinese, De Sanctis and Sevilla, agreed with the decision (27)of the DRC for various reasons and consequently appealed to the Lausanne based Court of Arbitration for Sport. It should be noted that Udinese immediately decreased their final amount claimed before the CAS from initially EUR 23,000,000 to EUR 10,000,000 (28). Furthermore, Udinese bizarrely compared the value of the services of a football player with the value of a painting (29). Udinese attempted to illustrate, no pun intended, the value of the services of the Player must be calculated at the time that the Contract was terminated. However, they failed to take into account that paintings are not paid a salary which could represent the value of the services of the Player, or that to compare an employee who has human and workers rights to a painting is difficult if not impossible. The CAS award The CAS Panel s first order of duty was to determine whether or not the calculation method of the FIFA DRC was correct. Due to the lack of reasoning behind the awarded sum for the specificity of sport and the fact that the DRC did neither apply the calculation method of the Webster (30) case, nor that of the Matuzalem (31) case, but rather "mixed" the two methods, the CAS Panel decided that the calculation method used by the FIFA DRC was incorrect. (32) Instead, according to the CAS Panel, the right manner to reach a final amount of compensation in this case was to apply the principle of "positive interest", meaning that the injured party would be put in the position that it/ they would have been in had the contract been performed properly. (33) To achieve this similar position, the CAS Panel took some objective criteria into consideration, such as the loss of a possible transfer and replacement costs. These criteria are not included in Article 17 of the RSTP but have been considered by CAS Panels in previous cases. (34) On losing De Sanctis as a first goalkeeper, Udinese allegedly brought back the aforementioned Samir Handanovic to replace him. Rimini had already exercised the option to buy Handanovic after his loan period for the amount of EUR 1,200,000. However, this transfer offer (and the money) was rejected by Udinese, who then paid the agreed amount of EUR 250,000 to Rimini to have the player back. Udinese thought that Handanovic was too young and inexperienced and contracted another goalkeeper with more experience, the aforementioned Antonio Chimenti who was 37 years old at that time, on a free transfer. According to Udinese, both were to replace De Sanctis, even though the club had released three other goalkeepers during the same period; Chimenti being the initial replacement player, and Handanovic being the future replacement player. In this regard, the CAS Panel noted the specific position of a goalkeeper in a team: only one is on the pitch at anytime for a club and they tend to rotate less. (35) Bearing this in mind, it could have been either Handanovic or Chimenti who was going to replace De Sanctis as the first goalkeeper of Udinese. Despite the basic principle in football that each team can only field one goalkeeper, the CAS Panel felt that Udinese had acted reasonably by replacing De Sanctis with both the young and talented Handanovic, and the old and experienced Chimenti. (36) It is worth mentioning that the counsel of Sevilla attempted to argue that Handanovic had been a resounding success at Udinese after the departure of De Sanctis, having tied a Serie A record in the 2011 season for saving 6 penalties over the course of the season, and appearing at the 2010 World Cup with Slovenia (37). Sevilla attempted to argue that it was only as a result of De Sanctis departure that Udinese was given the opportunity to see how effective Handanovic could have been, therefore Udinese had not suffered any damage from the departure of De Sanctis since they ended up with a potentially better and younger keeper. However, the Panel did not consider this argument. According to the CAS Panel in the Matuzalem case, and confirmed by Article 44(1) of the Swiss Code of Obligations, an injured party has the obligation to take reasonable steps to mitigate the effect and loss related to his or her damage. (38) The CAS Panel in the present case accepted that Udinese had not replaced like with like and further mitigated its position by bringing in a second goalkeeper to replace De Sanctis. (39) One must question whether or not Udinese should have further mitigated its position by bringing in a second replacement goalkeeper and automatically committing itself to double salary costs. One would have to opine that one replacement player could have been sufficient to mitigate the effects related to the damage suffered by the club. That is to say, how can you replace one goalkeeper with two? Subsequently, the CAS Panel pointed out that the speed in which Udinese acted proved that these two players were hired as direct substitutions for De Sanctis; seemingly ignoring their previous statement that they recognized goalkeeper was a special position that only one player could occupy on the pitch at the same time. (40) It should be pointed out that it would not have been unreasonable if Udinese had taken some more time to consider possible other options to replace De Sanctis, as he informed the club of the termination of his contract on 8 June 2007. This means that Udinese had the opportunity until the end of the summer transfer window, almost three months, on 31 August 2007, to find one sufficiently experienced goalkeeper to replace De Sanctis. We are of the opinion that Udinese should not have been commended for their hasty behaviour in attempting to allegedly replace De Sanctis with one young, albeit promising, goalkeeper and one experienced keeper, who left one season later after having made 3 appearances, and rather Udinese should have more carefully researched how to replace the "talisman" of their club. Had Udinese done so, it would have fulfilled its obligation to mitigate its own damages by hiring a new goalkeeper, but at the same time lowered the replacement costs by hiring only one goalkeeper to replace De Sanctis and consequently committing itself to the costs of one player s salary, instead of two. Furthermore, it should again be noted that Udinese had already lost three goalkeepers that summer, and therefore it was not unreasonable to suggest that Handanovic was a replacement for De Sanctis and Chimenti for one of the other back-up keepers. Moreover, the CAS Panel s reasoning in this instance might be used in future cases by clubs who quickly buy two players to replace the one who unilaterally terminated his contract. Despite of these considerations, the CAS Panel accepted that both Handanovic and Chimenti were hired in direct substitution for De Sanctis, as a result of De Sanctis termination of his contract. (41) In fact, the situation worked out in the way Udinese thought it would, as eventually Handanovic replaced De Sanctis as the first goalkeeper of the club, which he still is at the moment of writing. (42) The CAS Panel determined that the total replacement costs were EUR 4,510,000, calculated on the basis of adding the lost transfer fee from Rimini for Handanovic, EUR 1,200,000, the counter offer fee paid to Rimini for Handanovic, EUR 250,000, the salary of Handanovic for three years, EUR 1,179,000, and the salary of Chimenti for three years, EUR 1,881,000. (43) Subsequently, the CAS Panel considered if Udinese had suffered more loss or damage than the Shakhtar won the UEFA cup, the Court of Arbitration for Sport (‘CAS’) ordered that Matuzalem and Real Zaragoza were jointly and severally liable to Shakhtar in the sum of approximately €13m inclusive of interest.[5] One can but speculate whether Matuzalem regrets leaving the Ukraine in order to “save his marriage” after his wife complained that she could not stand living there any longer. The case has already been hailed by some as a ‘good decision’, particularly as it is felt that it provides a ‘more realistic’ evaluation of the appropriate level of compensation for post-Webster breaches of contract by players.[6] A convention appears to have developed after Webster whereby players would buy out the remainder of their contract by reference to their expected pay. The decision goes much further than this. The tribunal overtly grounded its decision on the policy concern of pacta sunt servanda (‘agreements must be kept’)[7] and there can be no doubt that the case serves as a deterrent to other players wishing to rely on Webster in the forthcoming and future transfer windows in the absence of any express ‘buy-out’ clause in their individual agreements. In fact, had Shakhtar’s lawyers marshalled their evidence and arguments better it is likely that the final award would have been significantly larger. Whether the decision adds any substance to Cristiano Ronaldo’s claims made on 11th July 2008[8] that modern professional footballers are ‘slaves’ remains, at best, a moot point. Unlike slaves of yesteryear, footballers can just walk away. But as the case of Matuzalem shows, such a decision is likely to have dizzying financial consequences for that player and any club signing him thereafter. It is a little ironic that the tribunal’s decision is based on the ancient Latin axiom cited because the agreement between Shakhtar and Matuzalem was clearly not a well-drafted document. In other words, even poorly drafted agreements must be kept. There was a ‘release clause’ in that contract which, on ordinary reading, would allow Matuzalem to leave the club in the event that Shakhtar received an offer from another club of at least €25m. Shakhtar unsuccessfully attempted to argue that the clause amounted to a ‘buy-out’ or ‘liquidated damages’ clause and it was the absence of such a clause within the agreement that effectively led to the need for arbitration. Shakhtar insisted that they were entitled to €25m whereas Matuzalem was only prepared to pay them €2.36m (representing two years wages). Later agreements between the player and Real Zaragoza contained buy-out clauses,[9] but in the absence of such an indemnity clause in the original agreement, compensation fell to be determined by Article 17.1 of the FIFA Regulations. Consistently with their stated policy goal of holding parties to their contracts, the Tribunal pointedly asserted that the ‘non-exhaustive’ list of factors to be taken into account when assessing compensation was deliberately wide so that “the financial consequences of a breach or a termination without just cause would be, in their size and amount, rather unpredictable.” This, it was suggested, would encourage players (and indeed clubs) to think twice about terminating contracts early. Yet, any award eventually made would be just, fair, transparent and comprehensible rather than “fully arbitrary”[10] despite the Tribunal being keen to emphasise the discretionary nature of the exercise.[11] Whether it is possible to reconcile these two apparently contradictory aims remains to be seen. According to the Tribunal, Article 17 as a whole plays a “central role” in “upholding the value of contractual stability” post-Bossman and “contractual stability is crucial for the well functioning of international football.”[12] No explanation for why contractual stability is crucial for international football was provided. But the Tribunal also suggested that Article 17 was only concerned with ‘full compensation’[13] or in integrum restitutio rather punishment.[14] And in reaching the fair compensatory award, each case would be assessed on its own merits, evidence and arguments with the burden of proof resting on the injured party.[15] CAS also stressed that there should be no mechanistic approach to the assessment of compensation and in so doing poured scorn on the alleged practice of the FIFA Dispute Resolution Chamber[16] of using a ‘fixed list’ when deciding on the award. Notwithstanding their derision, it is possible to discern a ‘list-like’ approach by CAS in this case. Broadly speaking, their calculation was considered under various headings that can be broken down into ‘Value of Player services’, ‘Loss of Profit (lucrum cessans), ‘Acquisition Expenses’ and a somewhat nebulous category of ‘Additional Costs and further expenses’. Once figures have been calculated under these various heads, it was also important to take account of any relevant ‘local law’ which might moderate the global sum one way or the other; and finally, despite emphasising the allegedly compensatory nature of the task, there seems to be in effect a punitive element considered under the heading of ‘Specificity of Sport’. The headings adopted are broadly derived from Article 17.1 of the FIFA Regulations which state that unless the agreement provides otherwise (ie a liquidated damages clause which presumably would be determinative), then compensation shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the Former Club (amortised over the term of the contract) and whether the contractual breach falls within a Protected Period. The Protected Period is broadly speaking two or three years depending on the age of the player at the time of signature. In Matuzalem’s case, he was 24 when he signed the contract which meant that the Protected Period was 3 years. When he gave his ‘notice’ he had served three years and was therefore outside the Protected Period. Had he attempted to terminate within the Protected Period, this would have been considered a ‘particularly serious breach’, a matter that may well have led to an increased award, in turn indicating that the award cannot therefore be purely compensatory.[17] Moreover, it is worth noting that Article 17.2 provides that the new club (in this case Zaragoza) is jointly and severally liable for any compensation ordered. What CAS appears to have done, then, was to ‘rearrange’ the Article somewhat by considering the compensatory elements first before returning to considerations relating to ‘local law’ and ‘specificity of sport’. Of interest, CAS also arguably misconstrued the Article by suggesting that there might be ‘other objective criteria’ relevant to the assessment of compensation in addition to the specific criteria listed in the Article itself (although no such criteria were in fact identified in this case).[18] On its face, the Article plainly clarifies what the ‘objective criteria’ are by its use of the words “these criteria shall include, in particular…”, but the Tribunal read this as being illustrative rather than exhaustive and on more than one occasion referred to the “non-exclusive” criteria to be taken into account. In any event, CAS proceeded to consider each of the criteria more or less in turn. In the context of assessing the ‘Value of Player services’ to Shakhtar, CAS made an interesting observation: they were “eager to point out that the sole object of [the] approach are the services provided by the player and not the human being as such.”[19] In the circumstances, the tribunal cannot be criticised for not being honest in their brutal commodification of Matuzalem. The implicit message, of course, is that Matuzalem had waived any human right he might have by terminating his agreement with Shakhtar and Article 17 represented an expression of the club’s right in the player’s services, a right “worth legal protection”.[20] Of course, Article 17.1 could equally apply where a club unjustly terminated their contract with a player, but it is difficult to envisage what the equivalent ‘value’ or right would be worthy of legal protection. In valuing the club’s right, the tribunal’s approach did not attain the degree of transparency professed. Apart from taking into account the ‘remaining’ two years of his contractual obligations owed to Shakhtar, CAS seemed to ignore completely the remuneration terms of Matuzalem’s ‘old’ contract despite the express reference to this criterion in Article 17.1. Instead, they assessed his ‘value’ to Shakhtar by reference to what both Zaragoza and Lazio were willing to pay for him. It is not entirely clear how the tribunal reached the annualised figures it eventually adopted;[21] but they did take into account the ‘option to buy’ in the loan agreement between Lazio and Zaragoza and effectively divided the €13m by three[22] to reach an ‘annualised’ figure as representing an indicator of his ‘value’ to those two clubs. The net result over the two remaining years of his contract was about €14.2m (Lazio) and €13m (Zaragoza) from which there had to be deducted the ‘savings’ made for not having to pay the player for two years.[23] That left net figures of between €10.7m and €11.8m. As is common in these situations, the tribunal simply took the mid-point. Shakhtar, who had in fact had an offer for Matuzalem from Palermo for $7m a month before he terminated his contract with them, also argued that they should be entitled to compensation reflecting the ‘lost profits’ (lucrum cessans) that they could have made on a future sale of the player. Although the tribunal did not rule out such a claim in future cases in principle, provided that causation could be proved, this claim was rejected in this case in circumstances where Shakhtar could not prove that they had lost a sale as a result of the player’s unjust termination. In other words, CAS did not countenance a speculative claim for ‘loss of profit’ based on lost chance. In this case, Shakhtar had rejected the offer from Palermo before their former player terminated his contract and therefore they could not prove causation. It seems to follow that in future cases, a claim for ‘lost profit’ is only going to be sustainable where a player leaves before a realistic offer for him has been made, is forthcoming or can otherwise be proved to be more than speculative. There were also a number of other heads of loss. Shakhtar had paid a transfer fee of €8m for Matuzalem in 2004. This figure was net of agents’ fees (a staggering €3.75m) and about €225,000 pursuant to ‘solidarity contributions’ in favour of two Brazilian clubs (presumably two clubs with which Matuzalem had had some prior involvement). Neither of the latter two sums were awarded; the ‘solidarity contributions’ because Shakhtar could have included it in the transfer fee and chose not to; the former because they could not prove that they as a club (rather than a third party, in this case a company known as Medco) was in fact responsible for the payment. Clearly, the world of football agents is as murky on the continent as it is in the UK. However, it is clear from the judgment that agents’ fees are in principle recoverable on an amortised basis if causation can be proved. Furthermore, in principle, a club could potentially claim the costs of hiring an alternative player. In this case Shakhtar claimed the €20m they paid for the Mexican player, Nery Alberto Castillo, who they claimed had been bought to breach the void left by Matuzalem. Yet again, the tribunal rejected the claim on the basis that it is not enough to simply argue that a replacement played in the same position as the player in breach of contract. In other words, the evidence presented by Shakhtar simply was not sufficiently Act. Therefore Safaricom states that following demands from the related rights collecting societies to collect license fees for equitable remuneration, Safaricom will pay all royalties directly to the collecting societies. 3)Re Cell co Partnership d/b/a Verizon Wireless This case addressed the question whether ringtone providers are required to pay royalties for the public performance of ringtones. In particular, the two questions that arose were: First, does the transmission by downloading of a ringtone to a mobile phone constitute a public performance? Secondly, when a ringtone goes off, does that constitute a public performance? The court in the Verizon case answered both questions in the negative. Fair Game – Topic 7 1)Salt Lake city scandal The 2002 Olympic Winter Games bid scandal was a scandal involving allegations of bribery used to win the rights to host the 2002 Winter Olympics in Salt Lake City, Utah, United States. Prior to its successful bid in 1995, the city had attempted four times to secure the games, failing each time. In 1998 members of the International Olympic Committee (IOC) were accused of taking bribes from the Salt Lake Organizing Committee (SLOC) during the bidding process. The allegations resulted in the expulsion of several IOC members, and the adoption of new IOC rules. Legal charges were brought against the leaders of Salt Lake's bid committee by the United States Department of Justice, of which all parties were later acquitted.[1] Investigations were also launched into prior bidding process by other cities, finding that members of the IOC received gifts during the bidding process for both the 1998 Winter Olympics and 2000 Summer Olympics. [2] 2)Joy Tomkin case Charity knitting group fundraiser, 81, banned from selling £1 doll because 'GB 2012' logo breaches Olympic copyright laws. Joy Tomkins was told that the doll could not be sold because it was emblazoned with tiny Olympic trademarks. Trading Standards say they were just advising her of the law. 3)Barvaria Girls - SA World Cup Two Dutch women were released on bail today after facing charges that they organised the ambush marketing stunt that led to 36 orange-clad women being ejected from Soccer City earlier this week. The women were arrested under the Contravention of Merchandise Marks Act, which prevents companies benefiting from an event without paying for advertising. The 36 women were accused of being part of a campaign to promote a Dutch brewery. South African police arrested the two women at their hotel in the Johannesburg district of Roodepoort today, two days after they were questioned at the Holland versus Denmark game. They appeared at Johannesburg magistrates court and were released on bail of 10,000 rand (£900) each, with their next court appearance set for 22 June. The women allegedly led the group of Dutch women who attended Monday's match at Soccer City wearing orange dresses paid for by the brewery company Bavaria. They said they were ejected from the stadium by Fifa's officials. The Netherlands' foreign minister, Maxime Verhagen, was quoted by De Telegraaf newspaper as saying the arrest was disproportionate and senseless. "If South Africa or Fifa want to go after a company for an illegal advertising campaign, they should start a legal case against the company and not against ordinary citizens who are walking around in an orange dress," Verhagen said. Fifa today condemned the "illicit activity". "Fifa has filed charges against the organisers of the ambush marketing stunt pulled during the Holland versus Denmark match in Soccer City," a spokesman, Nicolas Maingot, said. "The matter is now under criminal investigation, and the South African police service is proceeding as per the normal legislation." Anheuser Busch's Budweiser is the official beer for the tournament and world football's governing body fiercely protects its sponsors from brands which are not Fifa partners. 4)Gotze & Nike at Bayern Munich unveiling Bayern Munich's new £31.5m signing Mario Götze has made an uneasy start to life at his new Adidas-backed club after he turned up for his official unveiling in a Nike T-shirt. Götze, Pep Guardiola's first signing at the club, posed for the media while holding his new Adidas-made Bayern top. Adidas hold a 9% stake in the club, and their chief executive Herbert Hainer is a member of Bayern's board. Oliver Brüggen, a spokesman for Adidas, told Bild: "The pictures taken at the Mario Götze press conference have surprised us, negatively. Contractually it is not allowed: this was an official function of Adidas partners Bayern." Bayern's spokesman Mark Hörwick told the paper: "We have apologised to Adidas on the phone. We have promised them that such a thing will never happen again." 5)Dennis Oliech, MacDonald Mariga & Bob Mugalia v East African Breweries The recent case of Kenyan footballer Dennis Oliech who claimed his image rights had been violated and quit the national team, Harambee Stars. The above photograph of Dennis Oliech, McDonald Mariga and Bob Mugalia celebrating after Stars scored their winning goal against Angola in a 2012 Africa Cup of Nations qualifier at Nyayo National Stadium. This photo was altered slightly then used by East Africa Breweries Ltd (EABL), the current sponsor of Harambee Stars, in advertisements throughout Kenya including several road-side billboards. AJ Auxerre striker Dennis Oliech, Parma midfielder Macdonald Mariga and locally based Sofapaka FC player Bob Mugalia demanded to be paid by EABL for using their images to run promotions for the team. EABL declined and relied on the KES 110 million sponsorship deal with the Harambee Stars Management Board. Clause 9 of the agreement stated that the sponsor shall have the right “to use the images of members of the Harambee Stars team for promotional and advertising activities” It was not in dispute that EABL had a group agreement with the entire Harambee Stars Team in respect of image rights, but can this agreement be relied on where certain players are singled out their images used in advertisements? In the present case, is EABL right to argue that the three players pictured represent the entire team so as to preclude EABL from entering into separate agreements for image rights with each of the three players? The players argued that EABL should have been required to seek their consent individually before using their image. In the absence of such consent being sought, EABL is in breach of their image rights and must pay them compensation. The issue that arose during this discussion was that there is no single source of law that recognises image rights. The closest recognition is in the Copyright Act which defines artistic works to include photographs and recognises a photographer or a third party (in the case of a commissioned work) as the copyright owner. IPKenya was however persuaded that the easiest way to provide for statutory recognition of image rights was to amend the Copyright Act. In this regard, the Argentinian Act is worth consideration. camp protested the original selection of Mitch Halpern (who officiated the first fight) as the referee. Bad Blood – Topic 9 1)Enderby Town FC v Football Association (1971) Facts The Football Association Ltd controlled association football, while county associations were affiliated to it. Enderby Town FC were fined by the county association, and they appealed to the FA. They claimed they should be represented by a solicitor and counsel, but the FA rejected this under rule 38(b) of their association. Enderby FA claimed that the rule 38 was contrary to natural justice. Judgment The Court of Appeal held that rule 38(b) was not invalid. However, it was noted that rule 40(b) which purported to prevent legal proceedings without the consent of the council was contrary to public policy and invalid. 2)Miller v Jackson (1977)QB 966 Area of law Nuisance Issue Is playing cricket a nuisance? Facts The Lintz Cricket Club was a public cricket pitch that has been in use for over 70 years. The Millers purchased a new house on the boundary of the pitch in an area that used to be farmland. When the cricket players hit a six the ball often goes over the fence and lands in the respondent's property. The cricket players politely come and ask for the balls back, but Mrs. Miller is very annoyed by the frequency and potential harm. The club has paid for any damaged property, and has raised the fence surrounding the pitch to its maximum height. They have made every effort possible to be accommodating including instructing the players to hit fours at ground level rather than trying for sixes. The Millers were successful at obtaining an injunction at the lower court which the club appealed. Issue 1. Is playing cricket a nuisance? 2. Is it relevant that the houses were recently built and the field has been there for 70 years? 3. Is this an unreasonable use of the land? Decision Appeal allowed, injunction overturned. Maxwell smith Reasons Lord Denning applies a two-part test to determine if this is a nuisance: 1. Is this a reasonable use of the land? 2. If it was not a nuisance before, does it suddenly become one when people encroach on the grounds whose use they clearly knew beforehand? Denning finds that this is not a nuisance, and states that the Millers should have understood this would happen before they purchased the house. He finds that this is not a case of nuisance or negligence and thus dismisses the desired injunction. He holds that the public interest here overrides the interests of the respondents. He says that if the houses had been there first, this would have been a nuisance, however it was not a nuisance before the houses were there and their construction does not all of a sudden make this a nuisance. Cumming-Bruce finds that although there is nuisance and negligence here on the part of the cricket club, he does not grant an injunction based on the principles of equity. He states that the public interest is relevant here, and must be balanced against the interests of the Millers. The risk of damage does not fortify the case for an injunction. Lane, in the dissent, finds that this is a case of nuisance, and the fact that the respondents "moved into" the nuisance is irrelevant. He states that an injunction should follow and that the public interest does not outweigh the threat of harm to the Millers. He also considers the threat of personal harm. Ratio Public interest should be considered in cases of nuisance and weighed in an equitable manner. 3)Claudia Pechstein v International Skating Union No. 4A_144/2010 (SIALR) Headnote ■ An arbitral award may be revoked on the ground that a new factor evidence was discovered after the award was made, provided,however, that the party seeking revocation was not and could not have been aware of the newly-discovered fact or evidence (confirmation of previous decisions). ■ New diagnostic methods and fresh expert evidence filed in a CAS arbitration in order to determine whether a doping offence was committed are not a sufficient ground for an award to be revoked. Summary of the Decision Ms. Claudia Pechstein, a German ice speed-skater, underwent numerous blood analyses by the International Skating Union (ISU) between 2000 and 2009. Samples taken by the ISU during a competition revealed an increased level of reticulocytes, and the athlete was banned for two years for blood doping. The athlete appealed against this decision before the CAS, which confirmed the two-year ban. Ms. Pechstein first sought to have the award set aside by the Federal Supreme Court, which dismissed the application. She then applied to the Federal Supreme Court for the revocation of the award, relying on new medical evidence. The Federal Supreme Court denied the application. The Court recalled that revocation is an exceptional legal remedy. In order to decide whether it was impossible for the petitioner to substantiate the facts and adduce the evidence relied upon in the revocation proceedings in the arbitral proceedings, the Court would apply a strict test. This was all the more so when the application for revocation set out allegations already made in the arbitration proceedings, which the arbitral tribunal had dismissed based on expert evidence, and relied on fresh expert evidence allegedly discovered after the notification of the award. The Court held that the petitioner had not proved that she had been unable to rely on the alleged new diagnostic method in the CAS arbitration proceedings. It was not acceptable to rely on scientifically recognized methods and adduce expert evidence in the arbitration and, after losing the award, apply for revocation of the award based on some unpublished and 4)INSYS Sam Nyamweya Football Kenya Federation Ministry of Sports FOOTBALL Kenya Federation has challenged the jurisdiction of the Sports Disputes Tribunal to hearing and determining INSYS International’s petition on breach of contact involving the former. NSYS International was commissioned to prepare a bid document for Kenya to host the 2017 AFCON tournament by the Ministry of Sports, Culture and Arts and Football Kenya Federation. The document was signed by FKF president Sam Nyamweya in September 2014. According to the contract, US$30,000 was to be paid to INSYS International in October 2014 but to date no money has been paid. Represented both FKF and the ministry of Sports, Culture and Arts, Counsel Ken ombati in his preliminary submission, said the petition is pegged on a commercial contract and was not sports oriented, thus it should be presented to a Court of Law. “This is not a dispute under sports. It is a commercial contract thus the Sports Dispute Tribunal has no jurisdiction to hear and make a ruling,” said Ombati. Responding to FKF’s submission, Sarah Ochwada (council for INSYS International) said the contract did not specify who/ which court arbitrates in the case of a dispute, and that referring the suit to a different court will slow the justice process. “Going through any other form of arbitration process will delay justice for my client,” said Ochwada. “If we go to court, we will be asked if we have sought other forms of arbitration avenues and chances are that we will be referred back to this Tribunal,” noted Ochwada. In a quick rejoinder, Ombati said: “It is true that there will be delay but if this tribunal has no jurisdiction, that cannot be billed on my client,” The Tribunal will thus give a ruling on its jurisdiction on Tuesday, December 8. 5)Dennis Kaditov Sofa Paka& Dennis Kadito v Office of the Sports Disputes Tribunal The Petitioner, Dennis Kidito, is a registered Fifa Agent through the Dutch Football Association and an intermediary with authority to negotiate transfers of players with football clubs pursuant WADA and UCI both filed an appeal to CAS against the decision of RFEC. Both the entities requested CAS to annul the decision given by the RFEC and to impose ineligibility for a period of two years from the date of the CAS award. Later, UCI also requested CAS to impose a fine on the accused athlete. Award Both sides produced considerable amount of evidence in support of their claims. In addition, both sides also put forward their theories on the presence of clenbuterol in the samples. In essence, CAS was required to establish which of the theories was most plausible given the unique facts and circumstances of the case, and best explained the presence of clenbuterol in Contador’s samples. Contador argued that the clenbuterol found in his urine samples originated from contaminated meat that he consumed a day in advance of the tests, during the Tour de France. Incidentally, clenbuterol is a known contaminant that is extensively used in the farming industry. However, based on certain details provided by Contador, WADA and UCI traced the origin of the ‘contaminated’ meat to its source. This tracking of the origin of the meat was provided to CAS by WADA and UCI through a report that contained exhaustive substantiation to help CAS in concluding that the meat was not contaminated with clenbuterol. The likelihood of contamination from meat was further laid to rest as the EU had implemented regulations that prohibit the use of substances, including clenbuterol, in the farming industry. In addition, Spanish law made such use a criminal offence punishable with imprisonment, disqualification from engaging in trade and the closure of premises. Therefore, the CAS held that while the likelihood of Contador having consumed meat contaminated with clenbuterol in Europe was very low, it could not be ruled out. On the other hand, WADA and the UCI rejected Contador’s defense relying upon the ingestion of the so called contaminated meat. WADA and the UCI argued that it was more likely that the positive test was a result of systematic doping undertaken by Contador. They alleged that after undergoing ‘blood doping’, Contador underwent a plasma transfusion that could have introduced the clenbuterol into his body. In support of their claim, WADA and UCI took into account certain other factors that they believed had a significant bearing. The first was the extremely subjective and circumstantial conjecture that Contador conducted his profession in the midst of a ‘tainted environment’. Contador’s career had been marked by occasional doping allegations, the foremost of which, led his Astana-Würth team to withdraw from the 2006 Tour de France. Also, Contador’s former manager Manuel Saiz Balbas was the manager of the ONCE-Deutsche Bank team that suddenly withdrew from the Tour de France in 1999 in the aftermath of the Festina Affair. He was also arrested in connection with the ‘Operación Puerto’ scandal and his company Active Bay was stripped of its ProTour license. Therefore, WADA and the UCI argued, that Contador’s professional environment magnified the possibility of him having indulged in voluntary doping. Second, an analysis of Contador’s blood showed variations, including plasma levels that were not usually found, but nonetheless indicated that he had indulged in blood doping. Contador relied on the results of polygraph examinations and expert opinions to contend the assertions made by WADA and the UCI. The CAS held that while blood transfusion did not seem impossible, it was unlikely nonetheless as the Contador’s blood analysis did not concretely establish that a blood transfusion had occurred. WADA contended that the presence of clenbuterol could also be traced to consumption of contaminated food supplements. However Contador, in his witness statement, declared that he had not consumed any supplements between the anti-doping tests and went on to list all supplements made available to his team during the 2010 season and the 2010 Tour De France. Since Contador was the only Team Astana cyclist to test positive for clenbuterol during the 2010 Tour de France, the likelihood of clenbuterol entering his system through contaminated food supplements was highly questionable. However, the CAS did not altogether rule out the possibility of a food supplement being contaminated with clenbuterol. Accordingly, the CAS concluded that the contaminated meat theory and blood transfusion theory were both equally unlikely and that the clenbuterol was more likely to have entered Contador’s system through ingestion of a contaminated food supplement. Further, the CAS held Contador was guilty of an anti- doping rule violation only as he had tested positive for clenbuterol. The CAS did not attribute the presence of clenbuterol to any intentional and deliberate doping on the part of Contador or his team. To avoid sanction, Contador had to establish how the prohibited substance entered his body and that he committed no fault or negligence, or no significant fault or negligence. As he failed to satisfy these conditions, the CAS had no hesitation in holding Contador guilty of a doping offence. As no conditions regarding eliminating or reducing the period of eligibility were met as per UCI Anti-Doping Regulations, the CAS sanctioned a two year ineligibility period on Contador beginning 25 January, 2011, the date on which the RFEC initially proposed to suspend Contador for a period of one year. Contador was also disqualified from the 2010 Tour de France and all other events in which he participated after this date. 3) Rita Jeptoo – Tampering, Aggravating Circumstances CAS/2015/O/4128 & CAS/2015/A/3797 The facts These two related cases concern the international long-distance athlete Ms Rita Jeptoo. Ms Jeptoo tested positive for the prohibited substance recombinant erythropoietin (rEPO) following an out-of-competition urine test on 25 September 2014. Ms Jeptoo was subsequently charged with the commission of an anti-doping rule violation (ADRV) under the IAAF anti-doping rules (which at that time were based on the 2009 version of the World Anti-Doping Code). The charge was heard at first instance by Ms Jeptoo’s national federation, Athletics Kenya (AK), which found that Ms Jeptoo had committed an ADRV and imposed a period of ineligibility of two years. The IAAF subsequently appealed that decision to the Court of Arbitration for Sport (CAS), requesting (among other things) an increase in the period of ineligibility due to the presence of so-called aggravating circumstances (see Article 10.6 of the 2009 World Anti- Doping Code). The CAS upheld the IAAF's appeal and imposed a period of ineligibility of four years, based on the following aggravating factors: Ms Jeptoo’s repeated use of rEPO as part of a lengthy doping scheme (as demonstrated by her athlete biological passport profile); Ms Jeptoo’s deceptive and obstructive conduct, which was designed to avoid the detection and proper adjudication of her ADRV; the significant sporting and financial benefits obtained by Ms Jeptoo’s behaviour; and the considerable damage inflicted on Ms Jeptoo’s competitors. (See CAS 2015/A/3979, paragraphs 154-163). Ms Jeptoo also appealed the first instance decision, submitting that she bore no fault or negligence for her positive test. In support of that plea she submitted a fabricated ‘medical report’, which purported to show that she had been injected with rEPO by a doctor as emergency treatment for ‘profuse bleeding’ following a life-threatening road accident. Following further investigations, the IAAF then charged Ms Jeptoo with a second ADRV of attempted tampering (Article 2.5 of the 2015 World Anti-Doping Code). That charge was considered in separate proceedings (CAS 2015/O/4128), and the key issue was whether Ms Jeptoo’s conduct during the course of the proceedings relating to the first ADRV was capable of constituting attempted tampering for purposes of Article 2.5. A legitimate defence vs tampering As a general principle, the CAS found that the World Anti-Doping Code definition of ‘tampering can also cover an athlete’s behaviour in the course of a first instance or appeal hearing’, noting that the non-exhaustive list of examples of tampering in the IAAF anti-doping rules includes ‘intentionally interfering or attempting to interfere with a Doping Control official, providing fraudulent information … or intimidating or attempting to intimidate a potential witness’ (CAS 2015/O/4128, paragraph 146). However, in this context the CAS also found that an athlete has the right to defend themselves and to make submissions in support of their defence, and that the mere exercise of that right would not, of itself, amount to tampering. In other words, the athlete must do more than simply put the prosecuting authority to proof of its case (CAS 2015/O/4128, paragraphs 147 and 150). In particular, the CAS held at paragraphs 148 and 151 that ‘the threshold of legitimate defence is trespassed and, thus, a “further element of deception” is present where the administration of justice is put fundamentally in danger by the behaviour of the athlete. This is the case where a party to the proceedings commits a criminal offence designed to influence the proceedings in his or her favour.’ In that respect the CAS found that ‘forging a document for the use of a judicial proceeding is a criminal offence not only in Monegasque law … but also under Swiss law… This surely exceeds the above threshold of legitimate defense’. Accordingly, on the facts the CAS held that ‘the Athlete has committed tampering … when submitting the forged document’ (paragraph 153). The CAS left unanswered the question of whether lying as party in a proceeding would also constitute a criminal offence (see paragraph 152). In relation to sanction, somewhat fortuitously for Ms Jeptoo the CAS found, on the facts, that her conduct fell to be considered under the previous IAAF anti-doping rules (implementing the 2009 World Anti-Doping Code) rather than the current rules (implementing the 2015 World Anti- Doping Code). Accordingly, her conduct fell to be considered as part of the aggravating circumstances discussed above, rather than (as would now be the case under the 2015 rules) as a second ADRV that would carry a significantly higher sanction (here, a further period of ineligibility of eight years). The CAS nevertheless made it very clear that ‘had the Athlete submitted the forged document as an isolated event in 2015, the Panel would have qualified this behaviour not only as tampering, but would have issued a separate period of ineligibility for this ADRV in line with the provisions for a second offence’ (paragraphs 167-169). 4)Charline von Snick – Sabotage (Charlene Van Snick c. Fédération Internationale de Judo (FIJ), TAS 2014/A/3475, July 4, 2014) This case is remarkable as one of the very rare scenarios in which a CAS panel accepted to eliminate the period of Ineligibility based on a finding of No Fault or Negligence on part of the Athlete. It is also illustrative of the manner in which CAS panels weigh the Athlete’s and sports organization’s respective scenarios for determining the route through which a prohibited substance entered the Athlete’s organism. The case provides a new illustration of a CAS panel evaluating evidence in the presence of several conflicting scenarios with respect to the manner in which the Prohibited Substance entered the Athlete’s organism. Under the Code regime, this proof must be adduced by the Athlete by the standard of a “balance of probability.” As already stated in Gasquet v. ITF (CAS 2009/A/1926 + 1930) and UCI & WADA v. Contador (CAS 2011/A/2384 + 2386) the relevant test is whether the panel is satisfied that the Athlete’s explanations are more likely than not, i.e. that the likelihood that the circumstances alleged occurred is equal or superior to 51%. Since the Contador award made it clear that the sports organizations have an evidential burden to present alternative scenarios at least where the origin of the substance can – by the very nature of the Athlete’s explanations – no longer be positively established (e.g. a Contaminated Product has been entirely consumed), CAS panels are now regularly confronted with competing versions, which they are required to weigh against each other. In the presence of multiple scenarios – e.g. four as in the present matter – the 51% percentage mark becomes unsatisfactory as an evidentiary rule for decision. In the particular matter, however, the CAS panel was able to conduct its evaluation in a rather informal manner, by finding that all scenarios other than the one presented by the Athlete were improbable or highly improbable, so that the Athlete’s scenario was – the so say “default” – characterized as the “most probable” and thus meeting the balance of probability standard. Two considerations apparently influenced the CAS panel in considering the scenarios: 1. The lack of plausibility of counter-scenarios presented by the sports organization has a favorable impact on the plausibility of the Athlete’s scenario.This argument, while intuitively seducing, should be handled with caution in our view, since it is perfectly possible for all scenarios presented in the case to be equally unlikely. 2. The quantitative data regarding the analysis (i.e. the low concentration detected and the likely chronology of events derived therefrom), allows the CAS panel to be a bit less strict (“plus souple”) when it comes to evaluating the evidence adduced by the Athlete on the origin of the substance. If this statement correctly highlights the relevance of quantitative data for the Athlete’s defense (see final section below), the presence of such data does in our view not alter the severity of the panel’s evaluation of the Athlete’s evidence nor the standard of proof, but simply represents additional indications for backing up the Athlete’s evidence towards meeting the required standard of proof. Establishing No Fault or Negligence in a case of sabotage This case is remarkable due to the relatively “light” evidentiary basis (at least as far as can be told from the award) underlying both the finding that the judoka was in fact the victim of sabotage and that the circumstances were sufficiently indicative of No Fault or Negligence. In previous cases, the bar has been set rather high to establish that a violation was committed with No Fault or Negligence (see, e.g. the WADA v. Daubney (CAS 2008/A/1515) matter, also involving cocaine sabotage). The panel expressly acknowledged that the Athlete did not present sufficient evidence to adequately confirm the identity of the saboteur, yet found that the sabotage scenario was the most likely, and directly concluded that the violation was committed with No Fault or Negligence. The uncertainty regarding the person of the potential saboteur is particularly remarkable given that the Comment to Article 10.5.1 specifically differentiates the consequences of sabotage depending on the identity of the saboteur. The Comment states that sabotage by a member of the Athlete’s entourage does not qualify for No Fault or Negligence, noting that Athletes “are responsible for what they ingest and for the conduct of those Persons to whom they entrust access to their food and drink.” In this case, the saboteur was alleged to be a former member of the judoka’s entourage. One could also have expected a more in-depth assessment of whether it was reasonable for the judoka to leave her sports drink unattended knowing that it was easily identifiable and accessible to every accredited person at the Competition. On the one hand, a cynic might wonder if this case sets the bar too low, opening the door for unscrupulous Athletes to leave their affairs unattended for large periods of time, and spike their own supplements to create a similar scenario upon which this judoka was found to have No Fault or Negligence. On the other hand, from a policy perspective, it is important to acknowledge that legitimate victims of sabotage are in a difficult position and will often find themselves without any direct means to establish that an act of sabotage occurred. Here again, the lack of plausibility of a performance enhancing use of the substance would appear to have played an important role in the CAS panel’s mind. Under the revised 2015 Code, a violation involving cocaine would automatically draw a (potentially career ending) four-year period of Ineligibility, unless the Athlete can establish that the violation was not intentional. It does seem desirable from a fairness and proportionality perspective to allow for a finding of sabotage in cases such as these, where the panel appears quite persuaded by the integrity of the Athlete, where expert evidence indicates that the Athlete was not a regular user of the substance, and where none of the attendant circumstances appear to speak against the possibility of sabotage. Indeed, the possibility that an Athlete at the top of her career would suddenly start taking cocaine in the midst of an important Competition does seem intuitively quite odd. As this case represents a rare example of assessment in CAS awards of sabotage as a serious explanation for the origin of the substance, it will be interesting to see how future panels attempt to strike this balance between fairness and the need to maintain the sense that the consequences of an anti-doping rule violation are strictly administrated. Significance of quantitative analytical data As in previous cocaine cases – e.g. the Gasquet v. ITF matter – this award highlights the importance that quantitative data regarding the analytical findings can have for an Athlete, even where the substance at stake is a non-Threshold Substance subjected to the zero tolerance rule and therefore requiring only qualitative analysis (aimed at mere identification, as opposed to quantification of the substance). Obtaining at least an approximate concentration of the substance can prove essential for Athletes when they seek a reduced sanction for substances prohibited In-Competition only, whether the scenario put forward is (authorized) Out-of- Competition Use or inadvertent ingestion. In the particular matter, the assessment of the quantitative figures, combined with the results of the hair analysis, was unquestionably a decisive factor in winning over the panel to the judoka’s scenario. The case also illustrates the value that efficient expert assistance to the Athlete early in the proceedings can bear for establishing the origin of the substance and eliminating or reducing the sanction.