Sport: Law and Practice - Case Study Example

Name Student Id Lecturer’s Name Date Scenario 1 Doping is a serious offence in sports and games and it attracts severe penalties. There are anti-doping agencies charged with testing athletes after a given period of time1. The anti-doping agencies argue that use of drugs in a threat to the integrity of sports and games. The reason behind this is that use of drugs provides unfair advantage to the participants because doping is a form of cheating2. The agencies also argue that doping leads to health issues which affect athletes in very serious ways. Doping has been seen as an international issue and, therefore, there have been international convections which have been put in place to ensure that the vice has been eliminated or minimised in sports3. One of such convections is UNESCO which is an international treaty which has been adopted by many countries in the fight against doping. The convection was adopted in a UNESCO general conference in 2005 and it was put in place in 2007. The convection has principles that are practical and legal binding and it allows different countries to develop their own policies which are in line with the world anti-doping code4. In this scenario Justin Smith can defend himself against the case of doping using exceptional circumstances. In the exceptional circumstances an athlete can avoid punishment or reduce a sanction put against him. This circumstance requires an athlete to prove that no fault or negligence was involved so as to result to the athlete having specified substances in their body. Justin and Nash should seek guidance from the court of arbitration. In a case Aanes v FILA (2001) CAS5, Aanes was disqualified from participating in Olympic Games because of using prohibited substances. This was as a result of the documented evidence presented to the sports charge. This meant that he was not to participate in national and international sports6. Aanes and Norwegian Wrestling Federation contested the decision but they were unsuccessful. In this case several months before the Olympic Games Aanes was taking 8 to 10 different vitamins and supplements using a schedule developed by his sponsor who is the health supplement wholesaler in Sweden7. During this period h was taking doping test and they always produced negative results. About five weeks prior to the Olympics games he started using around six tablets of Pryrovate 500 a food supplement which was provided by his sponsor and it was produced by a US company. While he was taking this supplement he did not undergo any doping test until the positive results came out8. The food supplements were thought to be the cause of the positive doping test. This led to the food supplements that Aanes was taking to be checked at the labels to see if they contained any harmful substance. The label did not show any harmful substance and therefore, he continued to take Pryrovate 5009. This led to the supplement being tested in IOC accredited laboratory and the results showed that the product contained anabolic androgenic steroids and this was not declared in the label10. The case before the court of arbitration was to decide if Aanes was responsible for doping and if his disqualification was lawful. The could held that the athlete was negligent in a way because he would have stopped taking the food supplements when he heard that a Norwegian weight lifter had tested positive of a substance prohibited by IOC11. The supplements were not prescribed by a medical personnel but he continued to take them. The court also held that although the appellant had no intention of enhancing his performance during competitions. Therefore, there was need to reduce the period which he was disqualified. The court reduced the period to 15 months12. Therefore, Smith could seek the help of the arbitration court and following the proceedings in the case of Aanes he could have his sentence reduced. He was not negligent in taking the health supplements because they did not indicate any presence of prohibited substances in the container13. He was innocent while taking the supplements because he was aiming at boosting his health but not to enhance his performance during competitions. He would also require that the health supplements he was taking were not allowed by IAAF because this would help him in his defence14. In the case of Nash missing drug test is a serious offence in sports law and can lead to serious penalties and fines. It is required in law that every athlete gives a specified time at which they will be available to take a drug test. Missing the scheduled drug the athlete risks facing a ban and fines15. In previous cases of Rio Ferdinand and Christine faced bans for missing drug test. Rio failed in an appeal to have his ban lifted and was made to pay the cost incurred in the case. In the case of Christine she tested negative three days later after the missed test and therefore, she had not used any drugs it only happened she had changed her training venue and did not let the specialists know the change of venue16. Therefore, the legal position that Nash can take is appealing the decision in the sports court of arbitration. She will need to explain why she failed to attend the test at the schedule time. This can help her to have the decision and her ban nullified. Although missing a drug test is a serious violation of sports laws and regulations an athlete is not guilty of having a positive drug test. In appealing the decision by UK sport she can manage to have her ban lifted and she can be able to represent Great Britain in the Olympic Games in 201617. In conclusion, both athletes might be guilty of committing offences which would lead to them facing penalties. There is need to have the rules reviewed to ensure that the decision reached is justified because all the possible scenarios have been looked at. In the case of Nurse there is need to look at the events that could have led to her missing the test. There is also need to have the tests carried out so as to ensure that she did not miss the tests because she was guilty. It is also advisable for any athletes to consult medical personnel before taking any food and health supplements because it will ensure they do not test positive for the drugs they have not taken intentionally. Scenario 2 Commercial integrity of an event is very important for any event organiser. The reason behind this is that it gains the confidence of the fans and general public18. Therefore, any event organiser works to eliminate occurrence of unfair betting and match fixing which lead to unfair competition. The event official sponsors also invest in an event with an aim of having maximum returns from the event19. The official sponsors of an event always hope that there will be no occurrence of ambush marketing that will associate other companies with the event that the company has heavily invested in. the event organisers also hopes to protect their intellectual property and trademarks from any person who could misuse the symbols and logos associated with a certain event20. The reason behind this is that this could undermine the publicity of the event and its organisers. Sports’ betting is becoming a threat to the integrity of sports and games fans feel that betting is a type of match fixing which leads to unfair competition in an event21. The London based drinks company offering juice cartons to the fans was practising ambush marketing which is infringing the rights of the official sponsor. Therefore, the organisers could take legal action against the London based company that is associating with the event and yet the official sponsor is using the event as a marketing platform22. The sponsors only want their beer in the sports venue because they have really invested in the event. The reason behind this is that the company offering juice is associating with an event it has not invested and this will adversely affect the financial gains the official sponsor is expecting. This ambush marketing causes confusion to fans because the publicity has already been done about the official sponsor this means that the fans feel cheated if they have another company associates with event23. The theme of the event is also diluted because like in this scenario the official sponsor is a beer producer but what is being offered outside the venue of the event is juice. This is highly confusing to the fans. The action that can be taken to prevent ambush marketing is naming and shaming the company that is offering free juice cartoons outside the event venue in a press conference24. This will be the greatest publicity because the fans and all those who are planning to attend an event. This will ensure that when the fans are offered such free cartoons outside the event venue they will be able to rubbish such companies. The organisers of a sport event and sponsors can also have brand protection so as to hold commercial integrity of an event25. The event organisers and sponsors can take civil action against any company that engages in ambush marketing because this will be damaging the theme of the event26. There are no clear legislations to eliminate ambush marketing in sports but many sports associations and countries are working to have laws that will protect event organisers and sponsors27. Ambush marketing is an economic and commercial activity that means a company undertaking such an act is gaining from the publicity and investment of another company without any investment28. These activities are an infringement on the licensed rights of the event organiser and the sponsors. These are also unfair competition methods and it leads to unfair advertisement because the violators have not invested any amount. This means that the company will not incur any cost as compared to the official sponsor of an event. This causes economic and reputation damages, therefore, the remedies should range from injunctions against continued breaches of these rights. There should also impose criminal penalties such as imprisonments which work to eliminate ambush marketing29. There is also need to register the event logo so as to protect from being used by other people in future. This will ensure that the logo is only associated with this event. The reason behind this is that using of another person’s or company’s logos is against the law. There is also use of statutory law to protect event and sports logos and other marks from abuse by people. The organisers can also seek protection period that will ensure that during the period of the event their logo is not being used by any other organisation or individuals because it will be diluting the meaning of the event. The event organiser will require carrying out the necessary procedures to have its logo protected from use by any other organisations. There are laws that protect the use of registered trademarks and logos associated with a certain event. For instance, the Olympic symbols have been protected and it is illegal to use the symbols associated with the Olympic game and Paralympics. There are laws that are put in place to govern the use of logos and trademarks in games and sports. The rules and regulations are based on how distinctive they are in the eyes of the people. The organisers of events need to ensure the players and the fans that the event is fair to the teams taking place. Sports’ betting is legal in the United Kingdom but there is a regulating body that ensures that all the laws are followed. Gambling Commission is body that is charged with ensuring that rules and regulations that have been set. The commission derives its mandate from Gambling Act of 200530. The act regulates gambling and now includes protection of children and vulnerable adults from any gambling activities. Gambling is only allowed in designated venues such as casinos and licensed clubs. Therefore, if any betting in this scenario has taken place in designated areas it is legal and the event organiser cannot do anything about. The only element that the organiser should eliminate is any act of match fixing because it would affect the confidence of the fans and the players31. Scenario 3 Sports law is very particular and clear about the direction that should be taken when one feels that the injury suffered were intentionally inflicted on them by their opponents. In this case the spear tackle is not allowed in the game of rugby and as a result Robert has suffered serious injuries. Love, the coach and the university may face liability as a result of Love using spear tackle on Robert32. Robert has suffered from injuries which have led him to being hospitalised and paralysed. This means that he could not continue with his rugby career because of these injuries. According to the sports law a player can be liable for two offences which include trespass of the person and negligence. The offence of trespass of the person has a general principle that states that everyone’s body is inviolate and any touch is considered to be battering33. This offence does not need one to proof that there is an injury that was suffered. The intentional contact is the one that is considered to be battery. In this case spear tackle was so intentional because it was a directive from Love’s coach so as to unsettle the opponents and give his team an advantage. Therefore, this can be seen as battery and this means that there was trespass of the person committed by Love. There is evident injury which was suffered by Robert as a result of the spear tackle which have led even to loss of his career as well as financial losses34. There is also the offence of negligence. There is always need to establish if one of the player acted in a negligent way so as to cause injury to another player. This is well established by looking at the manner the game is allowed to be played according to its rules. The rules are compared to the way player acted and played at the time the opponent player suffered the injury35. In this case Love used a spear tackle which is not allowed in the game of rugby. Negligence is mainly established by determining whether the person in question owed a duty of care to the other person. If there was a duty care established was this duty of care breached. If the duty of care was breached this would lead to liability36. Therefore, Love, the coach and the university owed a duty of care to Robert because they were obliged to follow the rules of rugby game. The spear tackle is not allowed in the game of rugby because it is considered intentionally to cause injury to the opponents. This is to ensure that rugby game is considered as any other sport where a player owes a duty of care to the opponents. Failure to observe the laid down rules a player is considered to have breached the duty of care. This leads to liability and the injured party can take action so as to have them compensated. The compensation should be for the losses that have been incurred by the injured person which include medical expenses and loss of income37. Caparo v Dickman [1990] AC 605)38, in this case Caparo industries bought shares in Fidelity Plc as they were motivated by the accounts which stated that the company had a profit of above one million pounds. This was not the case because the company have made a loss of about four hundred thousand pounds. Caparo took action against the auditing company siting that they were negligent in certifying the accounts. The court held that there was no duty of care owed. The reason behind this is that there was no proxity between Caparo industries and the auditors39. The auditors were not aware of Caparo’s intentions while they were making the financial reports. This led to what has been known as Caparo test. This test requires having a harm that was reasonably foreeable, relationship of proximity and the test adds another base which is fair, just and reasonable to have duty of care present. This can be applied in this case because Love has a duty of care imposed on him by rules of the game of rugby. There is also a relationship of proximity because they are both rugby players and they are supposed to take care of each while in the field of player40. Therefore, Love as a sportsman should be aware of the consequences that would befall him while applying the spear tackle. The duty of care owed by rugby players is to ensure that other players and their opponents are not injured by dangerous tackles. Robert has suffered economic loss because he was a rugby player and being injured means he has lost his income. He has also incurred a lot of medical expenses. The injured suffered by Robert is evident because he is even paralysed. In another case Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 105441 the court of appeal upheld the above principles and even added a principle that would appear to be one to help in future cases. The judge stated that by seeking to win in a game should not lead to making errors and misjudgements. The defendants in the case were found to be guilty of causing injury to the plaintiff42. The judge stated that the playing culture and rules should be put in place in order to make the best judgements. This is to determine what is acceptable in a certain game or sport. This would allow to decide whether there was negligence in the side of the defendants. Therefore, in the case of Love and Robert, Love owed a duty of care to Robert because he was obliged to player using the rules of rugb43y. Love owed a duty of care to Robert in that he was not supposed to injure him. This was breached when Love used spear tackle which is not allowed in the game of rugby. This led to foreseeable injury to Robert. Therefore, Robert will be successful in his claim of negligence because spear tackle is against the norms and principles of rugby44. In the case of Love the vicarious liability doctrine that states that an employee is liable for the action of an employee provided the action in question was carried out while the employee was on duty. This doctrine only applies to professional players only and therefore, may make the university immune because Love is not under contract with the university. 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