As we step into a new year, we all hope the unprecedented events of 2020 will soon be a thing of the past and that life and sport can return to some normality. While we did not see much action in the ring or on the pitch, 2020 was an eventful year for sports law. The pandemic acted as a magnifying glass, revealing numerous issues and the need for wider and more cohesive regulations in a number of areas.
It is in 2021 that we will see the effects of those revelations and what actions will be taken. In this article, Fulcrum summarises how the year ahead is shaping up from a sports law and governance perspective.
Tackling corruption and issues of integrity in sport
Over the past year, the world has seen an increase in corrupt activity across multiple sectors as fraudsters have sought to capitalise upon the opportunities brought about by the COVID-19 pandemic. There is a great deal of opportunity for corruption to take place in the sports sector in the year ahead considering the great deal of sport booked for the upcoming twelve months. As vaccines have started rolling out and hopes are high that we may soon see a start to normality returning, it has never been a better time for the UK Government to take steps towards legislating corruption in sport to demonstrate the robustness the severity of the issue necessitates. To address corruption and broader issues of integrity in sport, which include bullying, match-fixing, doping and safeguarding, a government-backed Sport Integrity Forum was launched in August 2020. The Department for Digital, Media, Culture and Sport is set to host the Forum with a workplan directed by a Sport Integrity Steering Group. The Forum aims to bring together organisations from across the sector to discuss the challenges facing sport today and how to implement solutions.
Disputes around players’ image rights and data
Increasingly, esports players and more traditional athletes are realising the worth of their name and image. This has been shown in more cases of refusing to sign unfair contracts and taking steps to protect the exploitation of their image rights. Players’ agents and lawyers are looking at action around the licensing of players’ image rights. Zlatan Ibrahimović and Gareth Bale have taken steps to protect their image rights against exploitation in the gaming sphere, particularly by EA Sports in FIFA. If they succeed, their images could not be used without their consent and they would be paid for any use of their data, and their image would be taken off the platform.
Impact of Brexit on the transfer of players
Looking into 2021, aside from the continuing response to the COVID-19 pandemic, the most pressing issue is Brexit and the changes it will bring. Whilst a final deal has been reached, we do not know the specifics of what the future relationship between the EU and the UK will look like for sport. It is expected there will be issues around the movement of people, goods, data and services, including the transfer of players. Even though the details are not yet confirmed by the UK government, the practical realities of Brexit have started to be felt in the sporting context. The new joint plan agreed between the Football Association, Premier League and English Football League on revised entry requirements for overseas players confirms that clubs will no longer enjoy the opportunity to sign EU players freely. Rather, players will have to obtain a Governing Body Endorsement.[1] In the upcoming months, the changes and issues around them will become apparent.
2021 Spending Review and sports’ funding issues
In light of the continuing health crisis, coupled with the start of new strategic and sporting cycles for Sport England and UK Sport respectively, the sector and its funding agencies would be eager for longer term certainty in the 2021 Spending Review.[2] The combination of the economic impact of Brexit and the financial state after the COVID-19 pandemic will undoubtedly constitute a significant challenge to the financing of sports. The suspension, and in some cases termination, of the sporting season has put sports’ revenue streams at risk. In addition to the economic uncertainty brought about by the pandemic and Brexit, we are likely to see an increase in the cost of sports equipment and limited access to sports funding, including losing access to EU funding streams designed to support sport, principally ERASMUS+.
Regulating gambling in sport and esports
COVID-19 delayed the expected changes concerning gambling in sport and esports, but more stringent regulation and new legislation in the UK is on the horizon, with the House of Lords Select Committee recently concluding that “there should be no more gambling advertising in or near any sports groups or sports venues, including sports programmes.”[3] The UK lawmakers have now started the arduous process of taking evidence from everybody involved in the gambling industry and we await their findings. At the end of 2020, the UK government gathered evidence about the potential harmful impact of “loot boxes” (virtual “goodies”, often purchased with real money), and may classify them as gambling, costing the gaming and esports industries billions of dollars.
Rugby head injury legal action
A particularly interesting development in 2021 in UK sport will relate to the group of eight former rugby union players who have launched a legal action against the sport’s authorities for allegedly failing to protect them against head injuries and related medical conditions. Among the concerned former players is Steve Thompson, a member of England’s World Cup winning side in 2003, and one of several who are now suffering early-onset dementia. While it may be challenging to find and implement sufficient measures for the wellbeing of players without diluting the essence of the sport, the legal action could certainly have a significant impact on it.[4]
The growth of esports
Due to its accessibility, particularly during a national and worldwide lockdown, esports have gained prominence and have grown exponentially. However, they are not regulated in the same way traditional sports are and it will be interesting to see if 2021 will bring about rules and improved governance relating to esports. Another issue the sector faces is in the position of governments and the International Olympic Committee (“IOC”) towards it, as some countries do not recognise esports as sports.
FIFA’s re-regulation of agents
One of the big disputes of 2021 is the high-profile agents of Zlatan Ibrahimović, Gareth Bale and Erling Haaland going up against FIFA in a national court. Their legal arguments will likely revolve around whether FIFA’s objectives of protecting players and promoting contractual stability are “legitimate”, whether the regulations are “proportionate” under EU law, and whether agent bodies were consulted enough throughout the process. An interesting aspect would be whether this dispute will impact and delay the implementation of the wider regulations, or whether instead, the parties are leveraging their positions so as to find a compromise in due course. Aside from that, other issues to be resolved include whether coaches’ agents should be regulated, if an exam should be required for all agents or only for those that had not previously passed the exam, as well as issues of conflicts of interest.
The IOC’s implementation of rules 40 and 50
Issues around the IOC’s implementation of rules 40 and 50 of the Olympic Charter are likely to be back in the spotlight. However, taking into account the events of 2020, it is likely there will be considerable concessions to rule 50 (which prohibits athlete protests) and rule 40 (concerning advertising of an athlete’s name, image or sporting performance before and during the Games without permission by the IOC) may be put to the side while the focus is on ensuring the Games happen at all. Concerns and measures around the health and safety of athletes and attending parties, as well as navigating travel restrictions for athletes trying to qualify or compete and adjusting qualification criteria, will be higher on the priority list. Unless there is a significant change of approach from the IOC about rule 50 in 2021, we are likely due to see a collision between some of the world’s top athletes and the legality of rule 50 and protesting on human rights grounds before the rearranged Tokyo Olympics.
International Federations reviewing their regulations
Several International Federations are currently reviewing their rules or statutes for 2021, including the International Weightlifting Federation (IWF) which undertook a series of major institutional reforms following the incidents uncovered by the ARD Documentary in January 2020 (which accused the IWF of corruption), and largely confirmed by the McLaren investigation in June 2020. In 2021, the IWF will also launch an independent Ethics and Disciplinary Tribunal: a platform to file complaints relating to potential violations of the IWF rules and a separate and independent investigatory chamber.[5] FIFA has also revised its Rules on the Status and Transfer of Players and the new version will come in 2021. Among the amendments are a new general regulatory framework for coaches, new labour conditions for professional female players (including a minimum period of maternity leave), and the enforcement of monetary decisions by FIFA.
The new WADA Code
One of the biggest highlights in sports law is the entry into force of the new World Anti-Doping Code as of 1 January 2021. One of many significant changes brought by the new code is the introduction of an 11th anti-doping rule violation protecting whistleblowing on doping in sport. Other highlights from the updated code include new athlete responsibility to disclose the identity of their Athlete Support Personnel upon request from anti-doping organisations; new international standards for education and results management; reintroduction of aggravating circumstances; new definitions of “protected person” and “recreation athlete”; and a revised definition of “in-competition”.[6]
Continuing impact of COVID-19
To finalise, the pandemic has brought in increased digitalisation within sports. The use of digital platforms and the reach to a new and broader audience have created opportunities for innovative kinds of collaboration, revenue, and interaction for associations, clubs, and athletes. We do not yet know when COVID-19 will release its grip on sports, but we are seeing a sector that is more adept at dealing with the current pandemic, exemplified by the plans for the Olympic Games to go ahead later in the year.[7] However, the uncertainty of when the industry will fully reopen is still there and so are the financial challenges. In the upcoming months, we will see how much the sports sector has changed as a result of the pandemic and whether there will be a significant reduction in financing and sponsors, or a further shift toward digitalisation and esports.
[1] https://www.thefa.com/news/2020/dec/01/gbe-points-based-system-launched-011220
[2] UK Government Spending Review https://www.gov.uk/government/topical-events/spending-review-2020
[3] Select Committee on the Social and Economic Impact of the Gambling Industry, Gambling Harm – Time for Action, 2 July 2020, HL Paper 79 https://publications.parliament.uk/pa/ld5801/ldselect/ldgamb/79/7902.htm
[4] https://www.lawinsport.com/topics/item/sports-law-in-2021-key-issues-to-watch-in-uk-ireland?utm_medium=email&_hsmi=105576091&_hsenc=p2ANqtz-9HJOHHHUOxb_Hh8pW__yXGNPtfuQw-wZYpj1sM0DZi2ylfS0YZuTv8BGLUVwrrSVB6TeHU_uY0vC_9kRtk-xA2hd3dg2CSH_pGfXWnCakGUYFzZDk&utm_content=105575375&utm_source=hs_email
[5] https://www.lawinsport.com/topics/item/sports-law-in-2021-key-issues-to-watch-in-europe?utm_medium=email&_hsmi=105576091&_hsenc=p2ANqtz-8FyH0jTlup6J3RTnS7cCoU905W8bQfqZrSe47uSi-ieiHGOEWzq2t5C_JCKSHMJpte2uCW3dM4ben3okemT-769pcKJ4hSt6JSOSp2GRJq1TGOLxk&utm_content=105575375&utm_source=hs_email
[6] https://www.ukad.org.uk/sites/default/files/2020-10/UKAD%202021%20Code%20-%20Summary%20of%20Major%20Changes_FINAL.pdf
[7] https://www.skysports.com/olympics/news/15234/12186808/olympics-team-gb-boss-mark-england-confident-tokyo-games-will-go-ahead
