A Sporting Duty of Care; Submission to DCMS’s Consultation

Duty of Care Review

 

Department for Culture, Media & Sport, 12 April 2016

 

Terms of Reference and Group Membership

 

Terms of Reference

 

UK Government has asked Baroness Tanni Grey-Thompson to lead a review into the Duty of Care sport has towards participants. The aim is to make recommendations to government and its agencies on the establishment and content of a formal ‘Duty of Care’ to athletes and participants, in both elite and grassroots sport, with the aim of ensuring that as many people as possible can engage in sport and that they can do so in a safe way, with their career and life after their career supported.

 

Duty of Care Review

 

Submission by Professor Jack Anderson and Mr Neil Partington, School of Law, Queen’s University, Belfast

19 May 2016

1. In its narrow, legalistic context, the identification of a duty of care is a preliminary step in establishing that a defendant has behaved negligently towards a claimant. In negligence actions relating to sport, where for example a participant has been injured due to the alleged fault of the sport’s organising body, the duty of care between the parties lies along a spectrum of one that is, in professional sport, almost contractual in nature; to one which in amateur sport is based on the assumption of responsibility;

2. In a contact sport, the primary duty of care of a sports governing body is to ensure that the game can be played as safely and skilfully as possible. The ripple effect of this is – in rugby union for instance – that the governing body has a duty to ensure that its scrum or concussion regulations are as reasonably safe as can be expected in order to best prevent or mitigate the associated risks. Compliance with, and the enforcement of, these regulations – by way of referees, coaches and medical personnel; means that such persons are captured by the scope of the original duty of care;

3. In the law of negligence, the key question in establishing liability is whether the defendant (e.g., a sports governing body) has breached the duty of care it owes to the claimant (sports participant). In assessing breach of the duty, the courts have long recognised the social utility of sport – in other words, the societal benefits associated with participation in sport and including risky, physically invasive sports and which may be deterred if exposed fully to negligence liability. This approach is expressly encapsulated in statute in section 1 of the Compensation Act 2006 and to a lesser, implied extent in the Social Action, Responsibility and Heroism Act 2015;

4. This brief paper takes a wider approach to the concept of duty of care and is based on that which can be found in the Scandinavian model of sport i.e., a duty of care to athletes and participants at all levels of sport with the aim of ensuring that as many as possible play sport for as long as possible and in the most supportive and safest environment possible;

5. In discharging this duty of care, it is suggested that it must be seen in three dimensions: first and at the entry level, in preparing participants to play sport (a duty encompassing the roles of volunteers and coaches); second, in the actual playing of sport (the participant’s assumption of risk and responsibility and the role of the participant’s immediate support personnel from parents to agents); on exiting the sport (and the duties of governing bodies and statutory/public agencies with responsibility for sport);

6. As regards the “duty of care” of a sports coach, it will vary enormously with the circumstances (for instance, the age/experience of the participants and the nature of the sport); nevertheless, the fundamental duty of a “coach” (loosely defined) encompasses a general principle that properly instructed and prepared participants will be inculcated with the necessary knowledge and skills on how to enjoy their sport safely, reasonably avoiding injury both to themselves and, where relevant, opponents and encompassing residual duties relating to general supervision; intensity of training; selection of injured players; proper use of safety and playing equipment; “standard practice”; and even the capacity to deliver emergency medical care;

7. As regards volunteers in sport, it is suggested the some consideration should be given to a statutory provision holding that a volunteer shall not be personally liable in negligence for any act done when carrying out voluntary work. The model found in Irish law (Civil Law (Miscellaneous Provisions) Act 20110 should be considered. The protection from personal liability conferred on a volunteer by Irish law does not apply  to any act done by the volunteer if (a) the act was done by the volunteer in bad faith or with gross negligence, or (b) the volunteer knew or ought reasonably to have known that the act was outside the scope of the voluntary work authorised by the volunteer organisation concerned, or contrary to the instructions of the volunteer organisation concerned;

8. In realising the duty of care as broadly stated in point 4, a dedicated sports capital programme should be considered permitting voluntary and community organisations and sports clubs to apply for funding to invest in safety equipment for their sports facility such as defibrillators;

9. As regards injury in sport, the emphasis should be on a “preventative” duty of care. It follows that the identification and recording of injuries during sport (such as concussive events ) is the first critical step as this helps optimise injury management and facilitates more accurate injury surveillance studies. Given the nature of our civil law system in the UK, we have difficulties in sustaining a centralised accident/injury surveillance system as can be found in New Zealand; nevertheless, a simple measure whereby referees at all levels of sport are required (briefly) to report injuries in their match report would assist in the maintenance of a sports injury database. This could be piloted in one sport such as rugby union;

10. The approach to injury in sport should also be similar to the recently adopted governmental approach of “learning not blaming” as adopted by the NHS recently and which has led to the creation of an independent accident investigation branch within the NHS. This approach was influenced by the work of sports journalist and author Matthew Syed (Black Box Thinking) and could be usefully adapted to sport e.g., the lessons that can be learned from the poor medical screening of footballers and which lead to litigation such as Hamed v Mills and Spurs [2015] EWHC 298 (QB). Such an approach would also satisfy the courts’ demand that risk assessment in dangerous sports must be “dynamic”;

11. With specific regard to concussion, it must be noted that most states in the US have adopted youth sports concussion safety laws applicable to their school state system and as based on the Zackery Lystedt Law of Washington State. The key provisions of the Zackery Lystedt Law are noted and, although not directly “translatable” in terms of the UK, some points as regards a possible regulatory framework are noteworthy:

 

Guidelines/education: Calls for school districts board of directors and state interscholastic activities association to develop concussion guidelines and educational programs;

 

Mandatory consent: Requires youth athletes and a parent and/or guardian sign and return a concussion and head injury information sheet on a yearly basis before the athlete’s first practice or being allowed to compete;

 

Immediate removal if concussion suspected: Youth athletes suspected of having sustained a concussion in a practice or game must be immediately removed from competition; and

 

Written clearance before return to play: Youth athletes who have been taken out of a game because of a suspected concussion are not allowed to return to play until after: being evaluated by a health care provider with specific training in the evaluation and management of concussions and receiving written clearance to return to play from that health care provider (this does not strictly bar same day return to play).

 

Legal immunity: A school district complying with the law is immune from liability for injury or death of an athlete participating in a private, non-profit youth sports program due to action or inaction of persons employed by or under contract with the sports program if: the action or inaction occurs on school property; the nonprofit provides proof of insurance, and the nonprofit provides a statement of compliance with the policies for management of concussion and head injury in youth sports;

12. As regards child protection and safeguarding in sport, it must be remembered that the UK has one of the most sophisticated dispute resolutions systems globally for such a sensitive matter in the form of the National Safeguarding Panel run by Sports Resolutions UK. NSP is not intended to replace the need for sports governing bodies to establish their own policies, procedures, and systems for dealing with child safeguarding complaints and concerns. Nevertheless, it is suggested that the benefits of NSP, and the NSPCC Child Protection in Sport Unit integrated Case Management Model for safeguarding complaints and concerns, should receive better promotion;

13. As regards racial, ethnic or sexuality based discrimination, it is suggested that sports bodies give greater consideration to the adoption of racial and religious disciplinary process which place at their heart a restorative justice programme for offenders and is human rights driven. At present, disciplinary process are adversarial in nature e.g., recent comments by rugby player Joe Marler; and the better approach may be a conciliation process as has been the case in the Australian Football League for 20 years;

14. As regards doping in sport, the approach has tended to be about the athlete’s strict liability or fault. It is suggested that the greater use and awareness of the vicarious liability of the athlete’s agent, support personnel and governing body might be a more effective deterrent;

15. Integrity Guidelines for Directors and Leaders of Sporting Organisations should be drafted along the lines recently adopted in Australia. The Australian guidelines note, rightly, that an effective integrity framework should include: anti-doping policies and education initiatives; illicit drugs policies and education initiatives; match-fixing policies and education initiatives; sports science sports medicine (SSSM) principles, and member protection (specifically complaint handling and child protection measures);

16. Support for those with issues relating to, for example, alcohol and gambling should include a conversation about the restriction of the advertising of such products in sport and as surrounding the broadcasting of sport;

17. Support for those entering/exiting talent pathways can be allied with the EU Commission’s view of, and policies on, “dual careers” in sport.

18. Consideration should be given to the role of a Sports Ombudsman for the UK (outside of the football ombudsman). The United States Olympic Committee has an Athlete’s Ombudsman whose role is to provide free and independent advice to athletes and can direct athlete’s (in a Citizens’ Advice manner) to the appropriate source of information and assistance. A Sports Ombudsman can be an effective, anonymous, independent and less adversarial means of reviewing and processing complaints about, or integrity issues in, sport and can build up a level of investigatory history that can usefully applied to all sports to prevent disputes.

 

Note on authors:

 

Jack Anderson is a Professor at the School of Law, Queen’s University Belfast. He has published widely in the area of sports law and notably monographs such as The Legality of Boxing (2007), Modern Sports Law (2010) and Leading Cases in Sports Law (2013). He is currently editor of the leading periodical in the area of sports law, the International Sports Law Journal. A Fellow of the Chartered Institute of Arbitrators, Jack is an arbitrator for Sport Resolutions (UK), Just Sport Ireland and the Football Association of Ireland’s Appeals Body. In 2016, he was appointed to the Court of Arbitration for Sport in Switzerland.

 

Neil is currently working towards a PhD at the School of Law, Queen’s University Belfast, having previously completed a Masters in Legal Science (Queen’s University), an MSc in Sport Science (Miami University, Ohio), and a BA(Ed) in Physical Education (University of Exeter).  Neil’s present teaching includes undergraduate Torts Law, Sports Law and Sport & Exercise Fitness. Prior to commencing his PhD, Neil gained over 20 years of teaching and management experience in schools and colleges, including Director of Sports Academies and Assistant Principal Teaching & Learning. Neil is also an experienced coach/coach educator, and whilst completing his MSc, which focused on Coaching Behaviour, was the graduate assistant basketball coach at Miami.

How many more blows can boxing take?

On March 26 a British middleweight boxing title fight between Chris Eubank Jr and Nick Blackwell ended with distressing scenes.

During the 10th round, the referee stopped the fight as a bloodied Blackwell, whose left eye had swelled markedly, appeared to have no more to give.

While still in the ring, Blackwell collapsed. Bleeding had begun on his skull and Blackwell subsequently spent nine days in a medically induced coma.

Blackwell woke from his coma on Saturday and by Sunday was talking to family and friends at his bedside.

It is likely that he will never box again.

Blackwell’s injuries – inflicted on live TV – raise legal, medical and moral concerns about the sport of boxing.

The courts have long recognised the legality of contact sports where the risk of injury, even serious injury, is taken to be assumed by the participants.

That assumption or consent is premised on the injury suffered being incidental to the playing of the game in question.

Boxing stretches that legal tolerance beyond its limits because intrinsically it is about the deliberate infliction of injury. The most efficient way of winning a professional bout is by way of knockout. A knockout is a temporary stunning of the body’s most sensitive organ and thus, to many, a repulsive aspect of boxing’s scoring system is that it promotes the intentional infliction of brain damage.

In reply, the boxing fraternity highlights that, although mountain and equine sports, and even ball sports such as rugby and American football, have far higher rates of serious injury, those pursuits rarely face calls for their outright proscription.

The difficulty for boxing is that such activities can mitigate associated risks through better use of safety equipment or rule changes. Only if boxing bans blows to the head, which unacceptably for the boxing community would eliminate an elemental part of their sport, will it satisfy abolitionists such as the British Medical Association.

There are, however, other ways of limiting the risks that boxers face inside the ring.

First, in the lighter divisions there has been a tendency for fighters deliberately to dehydrate in order to make the weight before the fight. There is some medical evidence of a link between sudden weight loss of this nature and brain injury among fighters. Medical regulation of fighters, based on strict liability principles, may have to be introduced to promote graduated, pre-fight weight loss.

Second, there was a significant decline in mortality rates in boxing after 1983 when championship bouts were reduced from 15 to 12 rounds, following the death of South Korean Deuk Koo Kim in a world title fight in November 1982. Is it now time to reduce championship boxing bouts further from 12 to 10 rounds?

Third, as Blackwell lay in a coma, the media focused, somewhat unfairly, on the performance of the referee, Victor Loughlin. Should he have intervened earlier?

Are pro-boxing referees trained to an adequate level and especially in light of the fact that generally the referee is the only person authorised to end a fight for excessive punishment (and not the medical assessor who can only recommend a stoppage)?

In Eubank’s corner on fight night was his father, Chris, who 25 years ago fought in a world title fight that ended with his opponent, Michael Watson, suffering serious brain trauma. Watson successfully sued the British Boxing Board of Control (BBBC) for negligent provision of ringside medical care.

The Watson litigation concerned the duty of care of the sport’s governing body.

But what now about the other key stakeholders in professional boxing – the promoters?

Currently, many boxers have to fend for themselves in covering insurance and medical costs. A licensing requirement that promoters underwrite such costs for “their” contracted fighters would be hugely significant for the welfare of boxers.

A last reform of note is that professional boxers need a representative body – a union – to provide assistance in negotiating contracts and in advocating for better post-career rights for boxers such as pension provision and education.

Physical exploitation of boxers inside the ring should not be followed by financial exploitation outside of it.

Overall, it is unlikely that professional boxing will face abolition in the UK or Ireland any time soon. Criminalising the sport might even make it less safe, forcing it underground and regressing to its bare fisted roots.

In the immediate, the debate on the sport’s future is ethical in nature and has three dimensions – those who in the classic liberal tradition respect the participants’ autonomy; those who take the paternalistic view that it should be prohibited to protect the participants from themselves; and those who take the view that so long as the sport is properly regulated, it should be allowed to continue.

All who love the sport, as I do, hope that Blackwell now goes on to make a full recovery.

As he does so, some reflection is needed on the proper regulation of all fighting sports in the UK and Ireland and including mixed martial arts.

This is also because sometimes, to paraphrase Bob Dylan’s celebrated lament for Davey Moore, who died in the after a world title fight in 1963, you have to ask: why and what’s the reason for.

First published as “How many more blows can boxing take?” The Irish Examiner, 9 April 2016.

The Doping Defence: It’s not necessarily ethical; it’s not medically necessary but at least it’s not illegal.

One week since Maria Sharapova’s admission that she had tested positive for a prohibited substance (meldonium), it is time to take stock on what was revealed and what might happen to next.

To recap, the immediate reaction to Sharpova’s admission varied hugely.

It included the coolly scientific, explaining that, although the drug is designed for short term use relating to the effects of diabetes, it has long term athletic benefits in enhancing a player’s endurance and recovery.

The reaction was also coolly commercial in the guise of the various sponsors, notably Nike, who with a swoosh terminated endorsement contracts with Sharapova.

Outside of tennis, some of the commentary has cast more heat than light. For instance, former WADA chief Dick Pound was quoted as stating that the use of meldonium is “widespread” in tennis – a claim that was particularly unhelpful and unsubstantiated.

Within tennis, the reaction was generally muted though tending towards the sympathetic and even empathic. Serena Williams, for instance, remarking: “I think most people were happy she was upfront and very honest and showed a lot of courage to admit to what she had done and what she had neglected to look at in terms of the [prohibited] list.”

Williams’ use of the word “neglect” is interesting. In her press conference announcing the positive test, Sharapova described her actions as “careless”.

That press conference, which most thought would concern the Russian’s retirement, nevertheless featured a very controlled and self-serving performance by Sharapova.

To be fair to her, there were no crocodile tears such as those shed by previous drug cheats such as Marion Jones. The aggressive dismissiveness of Lance Armstrong’s defence – everyone else was doping, I was just better at it – was also absent.

And yet in many ways the Sharapova press conference must be understood as one long, legal plea in mitigation.

In the law of doping, the principle of strict liability applies. This means that the athlete is responsible for what they ingest. If that substance is prohibited, that athlete is guilty irrespective of whether they intended to take the substance or did so carelessly or accidently.  Moreover, under the World Anti-Doping Code (WADC), an athlete can be banned to a maximum of four years for a first offence.

The strict liability principle applies to the offence but not to the sanction. Accordingly, as a four year ban would effectively end Sharapova’s (29 in April) career, she is likely to plead in mitigation: first to an International Tennis Federation (ITF) Tribunal; and then, if she has to, on appeal to the Court of Arbitration for Sport (CAS).

Sharapova’s defence is likely to be fourfold in nature.

First, that there was no intent on her part to evade the terms of the WADC and that at worst her doping infraction should be classified as negligent and a deduction of the sanction should follow. Article 10 of the WADC allows for such a plea and in the recent past tennis players such as Richard Gasquet, Viktor Troicki and Marin Cilic have all convinced CAS to reduce their sanctions on grounds of lack of significant fault.

The second argument that she is likely to forward is that, although she used meldonium, her use was of such a low level that the performance enhancing factor would have been negligible.

In this, Sharapova will no doubt highlight to any anti-doping panel that her decade long use of meldonium was strictly for personal, medical or therapeutic purposes – a so-called “retrospective therapeutic use” plea.

Finally, Sharapova may point out in a broader sense that in the first 10 weeks of 2016, 99 individuals have tested adversely for use meldonium across a range of sports and that this points to a “systems failure” of notification to and education of athletes on WADA’s part.

The above defences, illustrate that for many elite athletes the “spirit” of sport – the core philosophical underpinning of the WADC  – is in practical reality little more than a narrow legalistic construct. In short, participants’ views on what substance might or might not be ethically, morally or medically permissible to take in the “spirit” of their sport has been replaced by a narrow view of what is or is not on WADA’s prohibited lists of performance enhancing drugs or methods. Andy Murray put it best: “I think taking a prescription drug that you don’t necessarily need, but just because it’s legal, that’s wrong, clearly…If you’re taking a prescription drug and you’re not using it for what that drug as meant for, then you don’t need it, so you’re using it for performance enhancing benefits that drug is giving you. And I don’t think that is right.”

The extent to which Sharapova’s use of meldonium was “right or not” remains to be seen. For now the revelations have had the unintended consequence of giving us an insight into her remarkable commercial success off court. The most recent estimate by Forbes put Sharpaova’s annual income at £20.7 million.

In the immediate, it might be thought that an individual who earns so much might have in her support team a person dedicated to ensuring compliance with doping law.  Of longer term interest is the fact that Sharapova’s annual income is more or less equivalent to WADA’s yearly budget for policing doping globally.

Maybe therein lies the real problem.

The Russian Doping Enigma: Cheating Clean to Compete

In December 2014, a German TV documentary made some astonishing claims about systemic doping in Russian athletics. Based principally on evidence provided by a former Russian anti-doping official, the programme alleged that leading Russian athletics officials supplied banned substances in exchange for 5% of an athlete’s earnings. There were also allegations both of doping control officers colluding with athletes to falsify tests and attempting to blackmail athletes who had tested positive.

 

A subsequent investigation by the Sunday Times, based on an analysis of 12,000 blood tests taken from 5,000 athletes over the past decade, reinforced the view that Russia is the “epicentre” of blood doping in sport.

 

Earlier this month, French prosecutors announced that the former President of the IAAF (the world governing body for athletics), Lamine Diack, is being investigated over allegations he took payments for deferring sanctions against Russian drugs cheats. Diack’s son and three others have also been charged with various alleged breaches of the IAAF’s code of ethics.

 

French prosecutors, now liaising with Interpol, were acting on information supplied by the World Anti-Doping Authority (WADA) who, in the wake of the German TV doping documentary, had established an independent commission to verify the accuracy of the programme’s allegations.

 

The Independent Commission Report, published on 9 November 2015, (WADA’s ICR on Russian Doping) has essentially concluded that the German investigation was accurate. In the immediate aftermath of this report, much media attention will focus on whether the Russia should be temporarily suspended from the IAAF and how the current IAAF President, Seb Coe, might attempt to restore the credibility of the sport, less than ten months’ from the beginning of the Rio Olympic Games, at which athletics will be the centrepiece of the final week of action.

 

On the Russian “problem”, it must also be remembered that the allegations in the German TV documentary were not confined to athletics and referred to doping conspiracies in a host of endurance events and including “state-sponsored” collusion at a troika of Russian government funded agencies –the national anti-doping agency, the national athletics federation and the nation’s; WADA-accredited anti-doping laboratory in Moscow and possibly in Lausanne.

 

Consequently, the IAAF’s problem becomes the world’s problem as doubt is cast on medals won by Russian participants not just at the London Olympics of 2012, but also at the 2013 World Athletics Championships (held in Moscow), the 2014 Winter Olympics (Sochi) and this year’s World Swimming Championship held in Kazan. Moreover, it is likely the FIFA will have to look again at who manages its on-site anti-doping programme for the FIFA World Cup in 2018 in Russia.

 

On the credibility issue, the best advice to give Coe is that he should contact his fellow Briton, Brian Cookson, President of the world governing body for cycling (UCI) who, earlier this year, had to announce sweeping reforms in light of a similar deluge of doping allegations in that sport.

 

Two of the UCI’s proposed reforms are of interest. First, the establishment of an independent anti-doping tribunal specific to the sport and consisting of judges specialised in anti-doping claims. The UCI’s idea is that such a tribunal would take the current operational burden of doping trials away from national federations and ensure consistency and uniform quality in doping cases decisions, thus reducing the number of cases that go to the Court of Arbitration for Sport (CAS) on appeal.

 

The second reform is that the UCI has proposed that before a team can be registered to compete in the sport it must show evidence of a minimum level of compliance with anti-doping regulations; if not, that team license to compete can be withheld. Moreover, where there is proof of systemic doping within a team, the UCI reforms suggest that the team ought to be suspended for an escalating period of months.

 

This licencing/team-suspension model could be adapted by the IAAF to athletics: on proof of systemic doping at a national level, the governing national federation could be held vicariously liable for the action of its athletes and/or if that national athletic federation did not satisfy the anti-doping licencing regime then their athletes could be banned from competing internationally.

 

The WADA’s ICR on Russian Doping also has repercussions for sport globally.  Two are noteworthy.

 

The first repercussion relates to WADA itself. In 2014, a record 283,304 samples were analysed by WADA-accredited laboratories. Russia (12,556) was second only to China (13,180) in the most tests carried out by a national anti-doping organisations (NADOs). Almost laughably, adverse findings were returned in only 0.9% of the Russian samples carried out mainly at a laboratory in Moscow. WADA’s ICR on Russian Doping has revealed that the laboratory’s director Grigory Rodchenkov “personally instructed and authorized” the destruction of 1,417 doping control samples three days before a WADA audit team arrived in Moscow last December.

 

WADA’s ICR on Russian Doping indicates that Russian athletes’ samples should be sent for testing to labs in other countries.

 

In must be remembered however that in its report on 2014, WADA admitted that globally, adverse findings were returned for only 1.36% of tests. How credible is this finding that 98.64% of tests were negative?  In any event, what (will)power does WADA have to sanction NADOs or member states who do not comply with the World Anti-Doping Code (WADC)?

 

Ineffective compliance with WADC was central to a damning report on “ineffectiveness of testing” by an Ad Hoc Working Group, chaired by former WADA President Richard W. Pound and presented to WADA’s Executive Committee in 2011. Pound, also chaired the ICR of 9 Nov and thus it is not surprising that the sentiments underpinning Pound’s 2011 recommendations (and frustrations) are reiterated in this ICR on doping in Russian athletics.

 

The last repercussion of this ICR on Russian Doping is that it once again reveals a core weakness in the political governance of world sport – the lack of a separation of powers.

 

In global sporting terms, the IOC is sport’s public House of Representatives; WADA has been delegated executive powers to deal with doping; CAS acts as sport’s judiciary. While questions about the individual effectiveness of each branch remain and in particular the lack of athlete representation; of equal importance is the fact that the relationship between all three is simply too close-knit and lacks transparency.  There is, for example, considerable and unnecessary crossover in the membership of the executives of the IOC, CAS and WADA.

For example, Fifa’s ethics committee is to examine WADA’s ICR into drug misuse in Russian athletics for potential misconduct by the country’s sports minister, Vitaly Mutko, a Fifa executive committee member who was heavily criticised at the report’s launch.

In short, although 2015 may go down as sport’s annus horribilis due to the combination of doping and corruption allegations charged against the UCI, FIFA and the IAAF; the wider picture is that sport is condemned to repeat its mistakes until such time as it realises that its current governance structures – based on a loose, self-regulatory model with origins in the 19th century – are no longer fit for purpose.

 

The starkest and most perverse manifestation of this in the ICR on Russian Doping is the revelation that the only consistent element of Russia’s anti-doping governance is that both “clean” and “dirty” have to bribe officials in order to compete.

The Legality of Boxing: A Punch Drunk Love?

The Legality of Boxing: A Punch Drunk-Love?

 

On 11 September, Davey Brown Jr, fought Carlo Magali from the Philippines in a 12-round International Boxing Federation (IBF) superfeatherweight contest in Australia. Brown, the local fighter, was knocked out 30 seconds from the end of the final round. The 28-year-old father of two collapsed on his stool and was taken to hospital on suspicion of critical brain trauma. Four days later his family consented to his life support being turned off in a Sydney hospital.

 

Six months previously, another Australian, Braydon Smith, died after losing a fight in his home tome of Toowoomba, Queensland. Smith had collapsed 90 minutes after his bout and died two days later.

 

The day after Davey Brown’s death, South African fighter Mzwanele Kompolo collapsed and died on being knocked out in the first round of a bout in the Eastern Cape.

 

These fatalities raise medical, moral, ethical and legal concerns about the sport of boxing.

 

In legal terms, the English courts have long recognised that in contact sports not every foul, even one occasioning serious injury, is necessarily a crime because injury and hurt is, to a certain level, consensual and, moreover, is usually incidental and accidental to the playing of the game in question.

 

Boxing stretches this legal tolerance to its limit.

 

Boxing is similarly on the extreme when it comes to the concussion “crisis” currently afflicting rugby and American football. World Rugby and the NFL have had to deal with accusations that the frequency of injury is such that concussion is fast becoming an “occupational hazard” for its players. It has always been thus for boxers.

 

In short, the most efficient way of winning a professional bout is by way of knockout. A knockout is a temporary stunning of the body’s most sensitive organ. Put another way (admittedly somewhat provocatively) a central aspect of the scoring system in professional boxing is that it rewards the deliberate infliction of brain damage.

 

In light of this criticism, the boxing fraternity usually retorts that, although mountain, motor and equine sports (and even activities such as trampolining) have far higher rates of fatality and injury, those pursuits never face calls for their outright proscription.

 

The difficulty for boxing is that, while the above activities can mitigate associated risks through better use of safety equipment, boxing can only ever satisfy its critics in this regard if it bans blows to the head, which for the boxing community would eliminate an intrinsic part of their sport.

 

A further difficult for boxing is the potential gravity of boxing injuries – as opposed to a “like for like” comparison to fatality rates or injury incidence in other sports. A meta-analysis of the medical literature suggests that almost four-fifths of professional boxers will suffer some form of measurable brain injury as a result of their career, and one-fifth of those boxers will go on to develop chronic brain trauma or dementia pugilistica.

 

Nevertheless, there are ways of limiting the risks that boxers face inside the ring.

 

A 2010 study of fatality rates in boxing in the respected periodical Neurosurgery illustrated that there was a significant decline in mortality rate after 1983 when championship bouts were reduced from 15 to 12 rounds, following the death of South Korean Deuk Koo Kim in a WBC title fight in November 1982.

 

That 2010 article suggested straightforwardly that the post-1983 decline in fatalities in boxing was the “result of a reduction in exposure to repetitive head trauma (shorter careers and fewer fights), along with increased medical oversight and stricter safety regulations.”

 

It is of note that Davey Brown Jr’s death last week occurred in the last (12th) round of the fight. Is it time to reduce championship bouts further from 12 to 10 rounds?

 

In this part of the world, the British Boxing Board of Control learned the hard way that inadequate medical care of boxers leaves a controlling sports body vulnerable to negligence liability. In the aftermath of the litigation that arose out of the serious brain injuries sustained by Michael Watson in his WBO super middleweight title fight against Chris Eubank in 1991, the BBBC implemented, and still have, some of the strictest medical controls in boxing.

 

There is no doubt that increased efforts should be made worldwide to improve medical supervisions of boxers. Specific reforms, such as mandating central nervous system imaging after a knockout, could lead to a significant reduction in associated mortality rates among professional boxers.

 

Beyond the medical safeguards, four other reforms might be considered.

 

The key figure in protecting boxers from excessive punishment in the ring is the referee. Donald McRae’s new book A Man’s World: The Double Life of Emile Griffith recounts the infamous Emile Griffith v Benny Paret welterweight championship fight in 1962, when referee Ruby Goldstein stood idly by as Paret, pinned against the ropes and the flailing fists of Emile Griffith, slipped into unconsciousness during the 12th round and later died.

 

Are pro-boxing referees trained to an adequate level and especially in light of the fact that generally the referee is the only person authorised to end a fight for excessive punishment (and not the medical assessor who can only recommend a stoppage)?

 

Second, any administrative or structural reforms of the professional boxing industry in any jurisdiction will have to address the oppressive dominance that boxing promoters exert in the modern sport. The licensing of promoters, in particular, should be predicated on a strict financial disclosure regime. Of critical importance would be the requirement that promoters provide and underwrite the costs of “their” fighters’ medical and insurance costs. This requirement alone would be hugely significant for the welfare of boxers.

 

In addition, on licensing a promoter, the governing authority should also request that a percentage of the promoter’s annual profits be dedicated to fund future medical research into the development of effective injury prevention strategies in boxing.

 

Third, some consideration should be given to establishing a representative body for professional boxers which could advocate for, among other things, adequate insurance and pension provisions for boxers.

 

The fourth reform is that world boxing badly needs some sort of central governing authority. At present, there is little hope of raising medical standards in the sport when many boxers can simply look for a “flag of convenience” jurisdiction in which to obtain a licence to fight. Similarly arguments apply to the sport’s inadequate compliance with the World Anti-Doping Code.

 

Admittedly, it is unlikely that the current administrative farrago or alphabet soup (WBA, WBC, WB…) that is the governance of world boxing will be reformed in the near future. The lack of governance credibility and reform has seen the sport’s credibility and popularity dip alarming in recent decades implode.

 

A stark illustration of the sports decline lies in the fact that 50 years ago all of us who love sport (generally) would have been enthralled by that year’s major sporting event – the second Liston v Ali fight. That fight was for the WBC heavyweight title. Who is the current WBC heavyweight champion? Deontay Leshun Wilder since you ask; and nope, me neither.

 

Medical and governance concerns apart, and somewhat paradoxically, the biggest threat to the future of professional boxing comes from its “combat” rivals – mixed martial arts sports such as UFC. Well marketed and centrally controlled, the demographic that is attracted to UFC, presents a significant threat to professional boxing.

 

So as administrative reform is unlikely in professional boxing, it is also unlikely that professional boxing will face abolition in the UK any time soon. Criminalising the sport might even make it less safe for boxers, forcing it underground and back to its bare fisted roots. Instead of threatening or lecturing the sport, as organisations such as the British Medical Association tend to do on occasion, it would be more productive to encourage the sport to introduce enhanced levels of medical, administrative and contractual transparency to the benefit of boxers.

Ultimately, the debate on boxing is ethical and moral in nature. The moral debate has three dimensions – those who in the classic liberal tradition respect the participants’ autonomy; those who take the paternalistic view that it should be prohibited to protect the participants from themselves; and those who take the view that so long as the sport is properly regulated, it should be allowed to continue.

 

In less theoretical terms, the moral and ethical debate on boxing was well summed up by Emile Griffith years after his tragic bout against Benny Paret. The undercurrent to that fight had been Paret’s much publicised (and much supported) taunting of Griffith’s homosexuality, which enraged Griffith. Reflecting on the bout, Griffith remarked: “I kill a man and most people forgive me. However, I love a man and many say that makes me an evil person.”

 

Finally, and on a personal note, I am a fan of the sport of boxing. I like its characters, its courage and its minimalism. Nonetheless, my love of the sport is often uncomfortable and frequently unfaithful. Many aspects of the professional code unsettle me, as have the recent deaths of Davey Brown Jr, Braydon Smith, and Mzwanele Kompolo.

 

As Bob Dylan sang in his celebrated lament for Davey Moore, who died in the aftermath of a world featherweight title fight in 1963, sometimes even us fans have to ask: why and what’s the reason for.

 

 

Investigating FIFA

The FIFA World Cup of 1986 was intended to be hosted by Colombia. Serious political turmoil, drug cartel-related violence and a severe debt crises meant that in 1982 Colombia relinquished its right to host the tournament. In the subsequent bidding process, and despite the fact that it had hosted the tournament only 16 years previously, Mexico defeated the USA. Every vote on the FIFA Executive Committee went to Mexico.

FIFA Vice President, Guillermo Cañedo, who was also the head of Televisa, the Mexican media conglomerate, played an influential role; tempting certain FIFA Executives with kick-backs from over-inflated TV rights and marketing deals. The nature of the process so exasperated the head of the US bid, Henry Kissinger, that the former US Secretary of State concluded, “The politics of FIFA, they make me nostalgic for the Middle East.”

Cañedo’s approach provided the template for modern FIFA World Cup bidding processes. It is one that is allegedly characterised by the lavish, targeted entertainment of individual FIFA executives, cunning political exploitation of regional divisions within the “football family”, and secret commissions on broadcasting, official sponsorships and corporate ticketing deals.

Historical echoes from the 1986 World Cup bidding process can be seen in the current controversy surrounding FIFA. Stripping them down to their essentials, the investigations into FIFA by the FBI and the Swiss authorities both focus on the bidding and voting processes for various World Cup tournaments since the 1990s and onto 2022.

The FBI investigation, encapsulated by the images of the attempted “perp walk” of various FIFA Executives from their plush Swiss hotel in May to face US federal law charges relating to racketeering, wire fraud and money laundering, has attracted significant interest. And yet, despite the tough words of various US federal law officers, and including US Attorney General Loretta Lynch, the same US authorities have a terrible record on sports corruption.

Lengthy federal investigations into steroid abuse in baseball, emanating from a 2007 report into drug abuse in the sport, ended feebly with the dismissal of the sole remaining perjury charges against Roger Clemens in 2012 and Barry Bonds in April of this year.

Moreover, in February 2012, US federal authorities dropped a two-year criminal investigation into the doping activities of the then multi Tour de France winner Lance Armstrong.  At the time, the strength of the case against Armstrong lay purportedly in the plea-bargained evidence given by former teammates on Armstrong’s US Postal sponsored squad. By using multiple inside informants (such as former FIFA Executive Chuck Blazer) and sophisticated financial tracking techniques (first developed for drug transactions) federal prosecutors in New York now say that they have collated a powerful indictment of top FIFA officials.

They said the same of cycling but failed and it was left to sporting agencies, notably the United States Anti-Doping Agency led by CEO Travis Tygart, to eventually reveal the Armstrong lie.

A second cautionary point on the FBI investigation has been made by Harvard Law Professor Noah Feldman who rightly highlights that the US authorities will have significant difficulty in demonstrating that the criminal activities in question are of such a serious nature as to justify US law’s – in this instance the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO) – application outside the US. For RICO to have extra-territorial effect, the US authorities will have to prove, to the criminal standard of proof, that for two decades or so, FIFA’s Executive acted in a concerted, Mafia-like manner as a “criminal enterprise”.

The investigation by the Swiss authorities into FIFA is likely to have the more enduring impact. Rather than relying on information supplied by informants, the Swiss, benefitting from the fact that FIFA is an association governed by Swiss law, are following the money trail. Specifically, the investigation is concentrating on what the Swiss financial intelligence unit has called 53 dubious banking relationships involving FIFA and allegations of money laundering.

The importance of the Swiss investigation lies in whether it reveals that improper payments were made to facilitate Russia and Qatar’s successful bids for the 2018 and 2022 World Cups. In contract law – and the agreement between World Cup hosts and FIFA is essentially contractual in nature – proof of fraud unravels everything and no party to a contract should be permitted to keep an advantage they have obtained by corrupt means. Given the millions of dollars (billions in Qatar’s case) already spent on infrastructural preparations for the 2018 and 2022 World Cups; there will be immense political and legal pressure on the Swiss to give clear and convincing evidence that Russia and Qatar offered bribes to FIFA Executives, that such bribes were accepted and then directly influenced the voting patterns of executives to the advantage of the offering parties.

There are three final points of note. First, the FBI’s “most wanted” methodology to the arrest of FIFA Executives has seemingly brought an end to the 17-year reign of FIFA President Sepp Blatter. Nevertheless, there is an element of cutting off Hydra’s head to the FBI’s approach. Unless corruption in FIFA is cauterised at its root by way of meaningful governance reforms (notably strict time limits for serving terms of FIFA Executive members and the establishment of an independent commission for the evaluation of Word Cup bids) then little will have been achieved.

Second, Switzerland is the home of a number leading sporting organisation and it has to be asked internationally whether Swiss law governing private sporting association is sufficient of itself to hold entities such as the IOC and FIFA to account. Even within the current Swiss investigation into FIFA, there has been a tendency to portray FIFA the association as a victim of rogue (and now former) FIFA executives, such as Jack Warner and Mohammed Bin Hamed.

Finally, there is the question as to what can be done preventively to stop significant public monies being spent on complex investigations into private, sporting entities.  A first step might be the establishment of a Sports Anti-Corruption Ombudsman with the resourced, dual remit of independently prosecuting corruption out of sport and promoting integrity values within sport.

 

 

Symptom Free: Will the Law Strike a Knockout Blow on Concussion in Rugby?

As the Six Nations rugby tournament approaches its half way stage, the usual media chatter on who might win go on to win the championship has been substituted by concern over a number of high profile, concussion-related injuries. Concussive injuries sustained by Wales’ George North in both halves of the opening game against England; the return of Ireland’s Jonathan Sexton against France after a 12-week layoff due to successive head injuries; and Mike Brown’s knock in England’s home game against Italy have been the dominant images of Six Nations 2015.

 

Media comment has largely focused on whether existing medical protocols – suggesting minimum rest periods of 21 days for players – are not being fully enforced such that players are returning to the field of play within mere minutes of suffering an apparently concussive blow. More importantly, a number of sports physicians have argued vehemently that even if extant, pitch side concussion protocols in international rugby are adhered to strictly, they are simply not of a standard that sufficiently protects the long term welfare of rugby players.

 

The primary duty of care for rugby players’ welfare lies with the sport’s world governing body, World Rugby, and its various national representative bodies. These organisations are, rightly, sensitive to criticism on the matter of head injuries, the incidence of which rose 59 per cent in English rugby in 2013-14 compared to the previous season and thus making concussion the most common match injury for rugby players for the third straight year.

 

An example of that sensitivity can be seen in Ireland where, in light of what it called “disappointing and inaccurate commentary in the media by individuals with no medical expertise”, the Irish Rugby Football Union (IRFU) took the unprecedented step of issuing a press release on what it called the “medical management” of Jonathan Sexton. The IRFU noted that Sexton’s return to play had been sanctioned by independent neurologists in France and Ireland, his club doctors, as well as the Irish and French Rugby Federation’s medical teams.

 

Similarly, the RFU has highlighted that when Mike Brown was knocked out, following a collision with Italy’s Andrea Masi, he was attended to promptly by 13 England support staff and medics. In addition, the Welsh Rugby Union (WRU) was cleared of any wrongdoing by a World Rugby investigation into its the handling of George North’s injuries.

 

That World Rugby investigation, with input from a global expert independent Concussion Advisory Group, acknowledged that, although North should not have returned to play, WRU medics and the independent doctor acted within the “framework of information” they had at the time and would have taken a different course of action had they had direct pitch-side visibility or access to TV replay footage of the incident. Consequently, World Rugby is now considering both whether television match official technology can be expanded to identify head injuries as they happen on the field and giving medical staff access to pitch-side video footage.

 

All of this risk prevention is welcome and necessary but all of it applies, almost exclusively, to elite level rugby. The vast majority of those who play rugby union at an amateur level are unlikely in their career to be assessed by as many medics as Sexton has had access to in the past number of weeks. Multi-angle, pitch-side video replays are available only in a handful of rugby stadiums globally. For many games at schoolboy and at amateur level, 13 supporters, not to mind medical staff, would be welcome.

 

This is not to be facetious about the matter because, after all, a concussive injury is one of brain trauma, the acute and chronic impact of which can be devastating as to examples from Ireland demonstrate. A schoolboy from Northern Ireland, Benjamin Robinson, died in 2011 after losing consciousness in a game for his school. A subsequent coronial inquest attributed his death to second impact syndrome – the first holding of its kind in the UK – which is when the brain swells rapidly after a person suffers a second concussion before symptoms from an earlier hit to the head have subsided. In 2014, the High Court in Dublin approved a €2.75 million damages settlement to another schoolboy who suffered serious head injuries playing school rugby. Liability for negligence was admitted by his school and for his hospital treatment. The boy had been hurt by a knee to the head in rugby training 18 days prior to coming on as a substitute in the game, despite protocol indicating that he should have been side lined for 23 days.

 

A key aspect of the debate on concussion in rugby and other sports is, therefore, how it is being dealt with at the school and amateur, but more player–populated, levels of the game. Speaking to an Irish Parliamentary Health Committee meeting on concussion in sport last October, Professor John Ryan, a consultant in emergency medicine in a Dublin hospital and Leinster’s team doctor, said the number of 14 to 18-year-olds reporting with head injuries increased by 41 per cent between the 2012/13 and 2013/14 sporting seasons. In response to this evidence, and speaking to the Irish Times, a leading paediatric neurosurgeon, Dr Michael Carter, said simply: “In the childhood game I think we should be more conservative [about implementing protocols and mandatory rest periods] than we are.”

 

Carter’s views are interesting, both as a self-confessed “rugby parent” and as a neurologist. In a recent editorial in the British Medical Journal, he excoriated the culture of school rugby:

 

“Schools, coaches, and parents all contribute to a tribal, gladiatorial culture that encourages excessive aggression, suppresses injury reporting, and encourages players to carry on when injured. It is fascinating how rugby sidesteps many safeguards intended to ensure pupil wellbeing. Schools now require comprehensive risk assessments for seemingly innocuous activities, yet every Saturday teams of children square up against each other in contests that may result in severe injuries to some.”

 

In addition, a recent meta-analysis of research on concussion injuries published in the British Journal of Sports Medicine (and driven by Professor Allyson M Pollock of the Centre for Primary Care and Public Health at Queen Mary University) estimated a probability of 11.4% of a child or adolescent rugby union player in England sustaining a concussion over a season, equivalent to between one and two players in every school or club youth rugby team sustaining a concussion every season on average.

 

The pieces in the BMJ and BJSM both highlighted that compared to countries such as New Zealand, there is a lack of reliable data through routine monitoring and reporting in schools and amateur clubs and in hospital emergency departments in England in order to inform prevention. This data, sporadic at present, is vital to making informed decisions on player welfare.

 

Outside of the medical implications, there may also be legal implications to this concussion debate. The NFL in the US, the biggest sports league in the world with an annual turnover of $10billion, is in the process of concluding a $1billion collective settlement of about 250 lawsuits taken by about 5,000 former NFL players. The original lawsuits had accused the NFL, over a period of decades, of hiding what it knew about the acute and chronic impact of concussion and head injuries on NFL players. The NFL, although not admitting legal liability under the terms of settlement, has admitted that it expects about one-third of its near 20,000 retired players to suffer from diseases such as Alzheimer’s or moderate dementia.

 

Central to the NFL players’ claim is that the NFL knew about but hid the impact of concussion from players. In contrast, in rugby union the argument is not that World Rugby is failing to adequately warn players of the dangers posed by concussions– far from it – more the argument is whether existing concussion protocols are sufficiently caring and cautious of long term player welfare.

 

Bluntly, if such protocols are not adequate, a vulnerability to medical negligence cases arises for entities such as World Rugby and indeed, rugby clubs, schools and officials. British sport has been here before. Professional boxer Michael Watson successfully sued the British Boxing Board of Control, receiving nearly £1million in damages for the inadequate medical care given to him ringside, after he suffered chronic brain trauma during a world title fight in 1991.

 

And boxing is an interesting sport on which to end this piece. The British Medical Association have long wanted it banned because in their view it and MMA are the only sports which reward direct, intentional violence to the head with scoring points. That debate is for another day, but it is of interest that recently Frank Warren, the well known boxing promoter, commented that in Britain any professional boxer who is stopped in a bout is suspended for at least 28 days, regardless of the circumstances. Should that boxer be knocked out or suffer excessive punishment to head or body, he receives a minimum suspension of 45 days, which would include sparring, and in either case no boxer would be allowed to fight on until receiving medical clearance from a British Boxing Board of Control doctor. Warren compared this to “rugby and football too – where there are growing concerns about the alarming brevity of head-injured players returning to action, often only after a few minutes.”

 

Warren has a point and it is one that the authorities in many other contact sports should heed.  When it comes to head injury, in any sport and at any level; if in doubt, sit it out.

Sport and the Law in 2014: The Year of the Whistle-blower

Thanks to the guys at lawinsport for publishing my blog on Sport and the Law in 2014: The Year of the Whistle-blower

The FIFA World Cup was one of the sports highlights of 2014. Off the field, however, it has been an annus horribilis for football’s world governing body.  FIFA has been dogged throughout by controversy relating to the award of the 2018 and 2022 World Cups to Russia and Qatar.

 

As the year ends, that controversy has further morphed into farce.  On 5 September, FIFA’s independent ethics investigator, Michael Garcia, presented the organisation with a detailed 430-page report on the bidding process for the 2018 and 2022 Cups. FIFA declined to publish it in full but a week later its ethics “judge”, Hans-Joachim Eckert, released a 42-page summary of the Garcia report.

 

In a series of Kafkaesque twists, an internal complaint by Garcia – in essence, an appeal by Garcia against the misrepresentation of his own report – was dismissed as “inadmissible” by FIFA’s appeals committee, thus prompting Garcia’s resignation.

 

The same appeals committee that dismissed Garcia’s complaint, also dismissed claims by two whistle-blowers that the Eckert summary had breached the condition of anonymity under which they had agreed to cooperate with Garcia and give him intelligence on alleged corruption in both bidding processes. Both of the whistle-blowers claimed that, although the Eckert summary had not named them and some redactions had taken place, a clear inference could still be made as to their identity to the extent that one of the whistle-blowers even claimed that her life was in danger.

 

The matter has since been considered by FIFA’s Executive Committee. There the farrago continued. On 19 December it announced that the Garcia report would be published at some point in the future but only in heavily redacted form and mainly because three members of the current FIFA Executive remain under investigation arising from Garcia’s investigation.

 

Taking a step back from FIFA and its troubles; in many ways, the sporting year 2014 was the year of the whistle-blower.

 

In July, New Zealand cricketer Lou Vincent admitted match-fixing and received a life ban from all participation in the sport. He subsequently co-operated with anti-corruption officials from both the International Cricket Council (ICC) and the England and Wales Cricket Board, giving information about the spot-fixing of matches.

 

Around the same time as the Vincent revelations, Emma O’Reilly, the masseuse to Lance Armstrong and his US Postal Service team, launched a memoir, The Race to Truth, based on her experiences during that team’s period of Tour de France domination. An interview given by O’Reilly to the journalist David Walsh in 2003 was the catalyst for a series of events which ultimately led to the United States Anti-Doping Authority’s damning report of Armstrong and the stripping of his seven Tour victories. It also coincided with a sustained period of bullying and harassment of O’Reilly by Armstrong.

 

This month a former Russian anti-doping official, Vitaliy Stepanov, provided insight into the extent and nature of doping in Russian sport. Stepanov’s revelations came after the broadcasting of a German TV documentary, Top Secret Doping: How Russia Makes Its Winners, which claimed that systemic doping was occurring in Russian athletics. The sport’s governing body, the IAAF, already mired in a corruption scandal, has since been forced to submit to an inquiry by an independent anti-doping commission established by the World Anti-Doping Agency (WADA).

 

All of the above disclosures will continue to play out in 2015 for the various governing bodies – FIFA, the IAAF, the ICC and UCI. More importantly, all of the above reveal insights into the cultural, institutional and legal perceptions of whistle-blowers in sport more generally.

 

Lou Vincent, for instance, cooperated with the cricket authorities but received a life ban. Although sympathy towards Vincent is in short supply in cricket, and many have seen him as opportunistic; what incentive does a life ban give to other cricket players who might consider becoming whistle blowers?

 

Similarly, the experience of both FIFA whistle-blowers is likely to deter others. Both have claimed to have been the victims of competing agendas within the highly politicised world of football administration and including between so-called “colleagues” on FIFA’s ethics commission.

 

Emma O’Reilly has similarly claimed in her memoir that her initial disclosures on Lance Armstrong were skewed by the competing agendas of journalists and cycling and sports doping officialdom. Indeed, her memoir is characterised not just by her antipathy to the latter but also, incongruously, by her reconciliation with Armstrong who wrote the foreword to the book.

 

The journalist to whom O’Reilly first spoke in depth, David Walsh, has recently been a key point of contact for Vitality Stepanov. How the Stepanov revelations will be handled will be one of the most interesting sports stories of 2015.  His disclosures are important because they underpin a suspicion in sport that some national anti-doping agencies “wear the jersey” and are reluctant to test and prosecute national sporting stars with the due diligence demanded by WADA.

 

The key lesson from all of the above is, as highlighted in 2014 by Transparency International, that the lack of uniform international whistle blower guidelines remains a fundamental weakness in protected disclosure facilities throughout sport globally.

 

Finally, whistleblowing and sport will make the courts in 2015. Substantive hearings are due to take place in a case taken by the US Department of Justice against Lance Armstrong under the Federal False Claims Act. The US government can use that Act as a means of pursing anyone who has made false claims for government funds. In this instance, the case is, uniquely, one of defraud by sports doping. Armstrong won six of his seven Tour de France titles with the US Postal Service team as funded by a US government sponsorship contract of approximately $US40million.

 

The litigation, in which the US government is looking for triple damages of $US120million against Armstrong, is premised on evidence provided by Floyd Landis, a former teammate of, and now whistle-blower against, Armstrong. Already Armstrong himself has, in part, turned whistle-blower on his sport and in documents released as part of this federal lawsuit, he has revealed for the first time that several key members of his cycling team knew or aided him in doping.

 

The scale of the whistle-blower litigation involving Armstrong is however a little distracting. Effective whistle-blowing facilities provide sport at all levels, and not just the elite, with vital initial intelligence on the myriad of problems that now sadly affect sport and including match fixing approaches and the pressures on vulnerable players to abuse supplements or other performance enhancing substances in order to advance or sustain their career.

 

In conclusion, if sport is to avoid further forays into the courts in 2015, and further dents in public confidence, it needs to do more to provide a uniform, genuinely protective disclosure facility for all those who wish to peel back the seedier side of sport.

Rory McIlroy in Court in 2015?

Rory McIlroy in Court in 2015?

All the best for 2015. Have been a bit lax on this blog for a while but have written short pieces for other outlets and particularly on the Ched Evans case e.g., “The legal issues in the Ched Evans case “on BBC News Online, 6 Jan 2015 and “Ched Evans: the legality and ethics of hiring a convicted rapist” for The Conversation (UK) 6 Jan 2015. I also did a little review of 2014 piece for the Irish Times (“Fifa and other authorities fail to protect whistleblowers” on 24 Dec 2014) and for lawinsport.com as part of their Key Sports Law Cases 2014  and Key Sports Law Cases to Watch in 2015

As for 2015, I think that of the big sports law story of 2015 is likely to be the litigation between Rory McIlroy and Dublin-based Horizon Sports Management Ltd and two other companies, Gurteen Limited and Canovan Management Services. Already the pre-trial court applications have been intriguing (resolution: I should get out more often if I find pre-trial shenanigans “intriguing”). In the latest application, Horizon has alleged that the golfer may have deliberately “wiped clean” mobile phones, which may have had important data relevant to the legal action. The allegations have been vigorously denied and on 10 Jan were rejected by the High Court in Dublin.

The pre-trial phoney war will likely, in 2015, give way to the substantive hearing. Here the case is quite simple: McIlroy argues that in April 2013 he was entitled to repudiate a December 2011 sports representation agreement with Horizon, on grounds that it was improvident; that is, that the contract was unfair and one-sided and thus unenforceable.

In this, McIlroy’s argument will be that the Horizon agreement was what lawyers call “an unconscionable bargain” and his legal team will point to the fact that McIlroy signed it when he was just 22 and without access to independent legal advice.

The legal echo here is to is, of course, to the litigation that surrounded the signing in December 2000 of a player representation agreement between a then 15-year-old Wayne Rooney and Proform Sports Management. Under the terms of the agreement, which Rooney and his father claimed to have signed without any independent legal advice, Proform were appointed to act as Rooney’s ‘executive agents’ and to carry out all the functions in respect of personal representation on behalf of Rooney’s work as a professional footballer for a period of two years.

Proform then alleged that, during the course of the stated agency agreement, another company and specifically a director of that company, Paul Stretford, also entered into a player representation agreement with Rooney. In that light, Proform brought an action for damages for the tort of unlawful interference with and/or procuring a breach of contract against Stretford and Proactive Sports Management. Streford argued successfully that with regard to the general rule on a minor’s capacity to contract, a contract entered into with a minor was voidable at their [Rooney’s] option.

McIroy was not, of course, a minor at the time of the Horizon agreement and, moreover, during the period of contractual dispute with Horizon, McIlroy signed a 10-year contract reputedly worth as worth as much as €190m with Nike, putting him amongst highest earners in global sport. Therein lies the contractual legal difficulty for McIlroy in 2015. Can his legal team convince the commercial court in Dublin that a sports agency agreement, which coincided with one of the most lucrative commercial deals in sports history, was unconscionable?

Fighters, Enforcers and Ice Hockey: Moore v Bertuzzi, Ten Years On

A recent multi-million dollar settlement of a legal claim arising out of one of the infamous punches in the history of the National Hockey League is, paradoxically, a reminder that incidences of personal violence inherent in contact sports rarely come to the attention of the courts.

The punch in question occurred a decade ago during a NHL game between the Vancouver Canucks and the Colorado Avalanche franchises. The Canuck’s Todd Bertuzzi struck Colorado’s Steve Moore from behind and drove his face onto the ice. The injuries suffered by Moore, three fractured vertebrae and a concussion, ended his career.

The TV clips from the game on 8 March 2004 still make for uncomfortable viewing. A noticeable feature of the accompanying commentary is how often mention is made of Moore being targeted, in sporting parlance, for “attention” by members of the opposing team.

Later it would emerge that Bertuzzi was acting in retribution for a punch thrown by Moore in a previous game between the clubs which had left Canuck captain Markus Maslund bloodied and concussed. The vigilante nature of violence in ice hockey and the mantra of “what happens on the pitch should stay on the pitch” are themes that would run through the subsequent sporting, civil and criminal law proceedings.

The immediate media reaction in Canada to Bertuzzi’s punch was unusually and vociferously negative with the then Prime Minister of Canada quoted as saying “I think that Canadians feel that there is a problem with hockey. I’d certainly say: clean up your act. “

Bertuzzi received one of the longest suspensions in NHL history missing the reminder of the 2003-4 season and losing about Can$500,000 in forfeited salary. More unusually still is that he faced both a criminal prosecution and a civil claim.

Legal sanction for sporting violence is extremely rare. There are many reasons for this: sports governing bodies are trusted though their rules to contain physically invasive conduct to an acceptable level; participants are seen voluntarily to consent to these rules; and sports-specific, as opposed to legal, sanctions are seen as a more effective means of punishing a misbehaving player.

Occasionally however an act of player on player violence is so egregious that there must be legal repercussions. This was one such occasion. In December 2004, Bertuzzi pleaded guilty to a charge of assault causing bodily harm and was sentenced to one year probation and 80 hours community service. In 2006, Moore initiated a civil action for damages arising out of the career-ending assault. The proceedings were plagued by delay relating to a dispute over the medical evidence and by Bertuzzi’s plea that, given his profile and the intense media coverage on both sides of the North American border, he was unlikely ever to receive a fair trial.

Eventually a trial date was set for September of this year but this week the parties indicated that a confidential settlement had been reached. The trial would have been of interest for many reasons.  First, it would have given an insight into the “dressing room ethos” of the sport. A disputed feature of the Bertuzzi-Moore incident has always been whether there was a premeditated plan by the Canuck players and coaching team to target Moore and if so should the Canuck club be vicariously liable in damages for the actions of their employee. A second point of interest would have been the assessment of damages. Moore’s initial civil claim was for almost Can$40million in damages. The damages were benchmarked against his three factors: Moore’s continuing medical expenses; the Can$30million in salary that Bertuzzi has earned in salary in the decade since the assault; and the fact that Moore, a Harvard graduate, has had difficulty in obtaining employment.

The third point of interest is that key administrators in the NHL were due to be questioned on whether the NHL is properly discharging its duty of care toward players to ensure their safety on the rink and particularly with respect to head injuries.

This last point is of wider interest because the NHL is currently being sued by a number of retired players who allege that the NHL knew (or should have known about the dangers posed by concussion and had failed to mitigate the risks involved). In that claim, the players specifically mention the NHL’s potential liability for “refusing to ban fighting and body checking and by continuing to employ hockey players whose main function is to fight or violently body check players on the other team.”

This suit is of immediate concern to the NHL, given that the NFL has recently has to agree to a US$750million with retired American football players. In the longer term however the “chilling effect” of litigation from injured players should be of greater concern to the NHL. Although NHL revenues are currently buoyant, due mainly to a lucrative TV deals, the NHL must realise that there is a diminishing return in tolerating an ethos of enforcers and fighters. Generally participant levels at the entry level to the sport are falling as parents appear dissuaded by the violence of the game.

In a lesson that should be heeded by all contact sports, it looks like that for too long the NHL has played the man and not the puck and is now paying the price.

 

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