Legal Perspective of International Football - Essay Example

Legal Perspective of International Football Sport, as it literally means, carries away millions of people from their sphere of anxieties and frustrations to the world of relaxation and emulation, excitement, and thrill. Sports is a crucial component of contemporary society and it is one of the most important way through which many humans understand rest of the world, and it is also present in every walk of life. It is considered as a natural result of a universal love of play and man's innate desire to compete with and to excel, if not dominate, others. Sports as a social activity have powerful influence over the masses and exhibit an indecisive tendency to stimulate resistance and rebellion, particularly in football. Sports are considered as apolitical in the sense of being neutral and value-free in terms of cultural values, but it plays different roles in relation to different cultures. It is able to reproduce power relations as sports is a reflection about the dynamics of social change in society and organizations like FIFA and IOC are more influential than many countries. With the significant changes in the sphere of competitive sport, law also has assumed an increasing importance in regulating sport. It is argued that commercialization of sport has brought incremental change and today it is increasingly commodified and developing as an integral part of leisure industry. In this perspective Sports Law reflects the dynamics of power relations in society and changes, as social, political and economic relations shift, and law is not a neutral mechanism, separate from social values. Therefore, the use of law in regulating sport has to be understood in the context and recognition of it being used in a contingent and ideological way. Sports may be distinguished by its characteristics of standardized rules, official regulatory agencies, importance of organizational and technical aspects and the learning of strategies, skills and tactics by participants. The nature of competition in sports is special since it depends on the concepts of equal opportunity, fair play, and solidarity, and there is an interdependence of interest between participants in sporting competition. Competition is a fundamental prerequisite for sport and when sporting activity is motivated by money and fame, and at the same time there is commercialization and commodification, together with the spectacularization, it is likely to create competition and conflicts among organizers and participants. To quote Howard M. Stupp, Director of Legal Affairs, The International Olympic Committee "Sport has continued to grow as a global phenomenon, and the impact of law on sport and sports events has increased significantly" (Forward to Gardiner, et al, 2006, p.v). According to Blackshaw (2003) "Sport is big business accounting for more than three per cent of world trade and one per cent of the combined GNP of the 15 member states of the European Union (EU)." Numerous job opportunities are created, directly or indirectly, in Sport related activities involving sports sponsorship, endorsement, licensing, merchandising, image rights and broadcasting arrangements. The commercial importance of sports led to the creation of nodal agencies for control and monitoring of sport activities. A study of sports law also require a deep understanding of the constitution of sporting clubs, their functioning, and contract terms between players and clubs. All those who are interested in sports are familiar with acronyms or set of initials denoting the bodies which administer particular sports. To lawyers and some sports administrators, however, the differences can be critical, as the clubs and individuals which win or lose the games may play to the same rules on the field, but off the field they may differ from each other in their legal characteristics. As such, most national bodies in England, particularly in professional sports, are incorporated as companies with limited liabilities. They enjoy the benefits and are subordinate to the obligations of the particular form that they have selected in the same way as other non-sport bodies, and classifying them as non-statutory bodies exempt from licensing or registering. International sports bodies are also usually limited liability companies registered in whichever jurisdiction they find most convenient; Switzerland being popular with the European bodies and some world bodies such as FIFA and the International Olympic bodies. It may also be seen that the governing bodies of sports are treated in most legal systems as private authorities, but exercising quasi-public functions, particularly where they exercise monopoly power over a particular sport, which release them from the hold of legislative restrictions. If a sporting body is not incorporated as a company, then, in English law, it will be classified as an unincorporated association. English regards such associations as no more than group of individuals comprising the members of the association, who have collectively agreed between themselves by contract to abide by the contents of the rules of the association as amended from time to time. The case of Baker v. Jones may be cited as an example of dispute in the context of sport over the meaning and effect of rules of an unincorporated association (Beloff, 1999, p.20). In this case judge held that British Amateur Weightlifters Association's central council did not have the power to authorize the use of its funds to pay personal legal costs of some of its members. The reasoning was that a particular provision authorizing the central council to act on behalf of the association regarding any matters dealt with by the rules had to be read in conjunction with the object of the Association which was to promote weightlifting as a sport and weight training as a means of physical improvement. In the cases involving unincorporated companies, the dispute has to be resolved with reference to the distinct provisions and rules of an unincorporated association interpreted in association with company law statutes. This makes it essential to have a distinct stand alone entity, separate from committee and members alike, which could enable transparent management and decision making structures in sports governance. Law of contract is the legal tool with which the organizers of sport create sporting events and it is the most important tool to resolve inconsistent legal relationships that crop up while conducting a sport competition. Contract governs many aspects of the rights and obligations of players, coaches, officials, and their club, and it is the ultimate source of the regulatory jurisdiction of referees and governing bodies in sport. The law of contract also plays a major role in determining the scope of rights to market and broadcast sporting competition and associated merchandise. In addition, it is crucial in shaping and delimiting the punitive jurisdiction exercised by disciplinary bodies in sport. A contractual relationship begins from membership of individuals and sports club to players and sports associations. So groups of people involved in sport may bind themselves to each other contractually either in relation to the rules of a particular body, or in relation to an individual competition administered by such a body. All the agencies associated with sports governance in UK recognize that football needs to be understood as a leading international industry with significant revenue and cost demands, a sporting business in modern leisure market. Rules of sport are developed with the aim of ensuring safety and regulating the dynamics of play, and are termed as 'constitutive rules' of any particular sport. The codes of ethical behavior and fair play have been developed in sport stressing the need to play fairly due to the wide range of ethical dilemmas faced in sport including the use of violence, drug abuse, and exploitation of young athletes. These codes target not only sports participants but also administrators, coaches, spectators, etc. "The basic principle of the Code of Sports Ethics is that ethical considerations leading to fair play are integral, and not optional elements, of all sports activity, sports policy and management, and apply to all levels of ability and commitment, including recreational as well as competitive sport" (Blackshaw, 2003, p.67). The Union of European Football Association (UEFA) is considered as the nodal agency for promoting fair practice among football clubs and players, aimed at overall improvement of international football tournaments amongst European clubs. The Statutes of UEFA are framed with the objective to promote football in Europe in a spirit of peace, understanding, and fair play, without any discrimination on account of politics, gender, religion, race or any other reason, organize and conduct international football competitions and tournaments at Europe, safeguard overall interests of Member Associations, and deal with all questions relating to European football. Article 50 of the Statute of UEFA prescribe competition regulations, such as conditions of participation, club licensing system, entry into the competition, and prohibiting admission of members or clubs involved in malpractices. The Statute also contains provisions for preventing unsportsmanlike conduct, violation of the laws of the game, contravention of provisions by members as well as disciplinary measures against member associations and clubs and disciplinary measures against individuals. The disputes arising among members and clubs associated with UEFA have to be settled under the jurisdiction of the Court of Arbitration for Sports (CAS), as provided in the Statutes. Article 62 of the Statute specify that "any decision by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, the exclusion of any ordinary court or any other court of arbitration" (Statute p.30). The Court of Arbitration for Sport (CAS) is an arbitral tribunal established in 1983 by the International Olympic Committee (IOC) and it is the first institutionalized attempt at an arbitration procedure for sports. It is based in Lausanne, Switzerland, and has two permanent branches in Sydney, Australia and New York, USA, with ad hoc divisions during Olympic Games or other international games. Main reason for the establishment of CAS was that the IOC recognized the inadequacies of the sporting law which worked against fast resolution of complex international sporting disputes. Identifying the effectiveness of mediation in settling sports disputes Article 1, Para 1 of the CAS Mediation Rules defines mediation as "CAS Mediation is non-binding and informal procedure, based on a mediation agreement in which each party undertakes to attempt in good faith to negotiate with the other party, and with the assistance of a CAS mediator, with a view to settling a sports-related dispute" (Blackshaw, 2003, p.70). CAS is controlled by the International Council of Arbitration of Sport (ICAS), has a minimum of 150 arbitrators from 37 countries, and the ICAS comprises a council of 20 member jurists who are well acquainted with the issues of arbitration and sports law, at the same time they are forbidden from acting as CAS arbitrators or as counsel for a matter before CAS. The major function of CAS is to address issues, which in its absence would be dealt with by the courts, including eligibility, suspension of athletes, contractual disputes between athletes, and sports club and nationality of athletes for the purpose of competition. CAS is fast and efficient machinery in deciding cases involving sport-law disputes as its juries are competent in legal matters as well as has sound knowledge of the problems connected with sports activity, and the procedure is governed by specific Code of Sports-related Arbitration. Its awards have greater international effectiveness than the decisions of courts, and its independent nature, impartiality, speed, and finality of decision attract more athletes for resolving selection disputes and redressing other contractual and commercial disputes which may not be feasible by the governing body of their sport. CAS is a cost-effective and confidential alternative to traditional legislation and prompts sporting organizations to adhere and fulfil the obligations of agreements set out as also to comply with order made by CAS. Thus, CAS is contributing to and building up procedures for serving the needs of sports, which continues to be an ever-expanding global social and business phenomenon, by settling a wide range of sports disputes effectively and quickly. Until 2001, European professional footballers did not have the right to 'resign' from one 'job' with one club and find another while their contract was in force, they either had to wait until the end of their contract or a freely-agreed transfer fee had to be agreed between the two clubs. This system contravened the free movement of workers and provision of services, two fundamental principles of Article 226/169 of European Commission Treaty, because professional football was not ranked as an economic activity. It is worth noting that in the past professional football clubs were not allowed to employ more than two foreign players, even if these players were citizens of a member state. This regulation breached the free movement of workers and the free provision of services enunciated by the Treaty. The possibility of further legal action under the Treaty did not change the attitude of Union of European Football Association (UEFA), the body that governs European football, which consistently tried to divert pressure emanating from the Commission." (Dimitrakopoulos, 2003) The efforts made to abolish the limitations on the number of European Commission footballers, who where employed by football clubs in the member states, had not fructified even after the re-launch of the single market project by European Union (EU) in the mid-1980s, due to lack of sport-specific Treaty provisions. However, a small change was brought about by the gentlemen's agreement between European Commission (EC) and UEFA in 1992 introducing 'three plus two rule' that allowed football clubs to have up to three foreign footballers. Subsequent declaration attached to the Treaty of Amsterdam in 1997, highlighting the social significance of sport, was a political message that EU institutions were expected to consider the position while dealing with issues affecting sport. The culmination of Bosman case, the legal action initiate by Jean-Marc Bosman, a determined Belgian professional football player, brought about a major transformation in European football. Jean-Marc Bosman, a Belgian footballer, challenged UEFA's use of nationality restrictions and the international transfer system and wanted the case to be referred to the European Court of Justice for a preliminary ruling on the compatibility of international transfer rules and nationality restrictions in football with EU free movement and competition law. The Bosnan case is the most famous sports case in Europe, and in December 1995 the European Court of Justice (ECJ) ruled, in the case between Bosman and his club RC Liege, Belgium, stating that professional soccer is an economic activity and has to be regulated by European Union's Law. Initially the ruling affected 18 countries who are members of the EU. However, as it would be impossible to have two sets of rules, one for Europe and other for rest of the world, the governing body for international football, the FIFA, also has to change their rules. The intense impact of ruling in Bosnan case was on sports organizations as international and domestic transfer regimes have been dismantled and nationality restrictions relaxed in all games except in the composition of national teams. The interpretation of Art.48 of the Treaty of Rome (free movement of workers) in relation to the regulation governing the transfer of professional footballers, specifically ascertaining whether the provisions of Art.48 precluded the application of UEFA-sponsored national regulations under which a professional player could not, upon the expiry of his contract, be employed by a club based in another member state unless the latter paid a fee to his former employer, paved foundation for free movement of professional footballers. According to Dimitrakopoulos (2003),"After the Bosman ruling, the implementation by the European Commission of the principle of the free movement of workers and the free provision of services in professional football was guided, legitimized, and constrained by the embedded social dimension of sport and the need to protect, as much as possible, small clubs-the grassroots organizational unit of football-from the potentially negative consequences of the Bosman ruling" ( p.7). As the footballers under the contract did not have the right to resign from one job and freely get another like other professionals, the Bosman ruling forced the officials of European Commission, UEFA, and FIFA to change the regulations governing contractual stage as well. It may be noted that the stability of any professional football team is dependent on its players and free movement of players would weaken the capacity of less well-off clubs. In addition, small clubs well-known for their ability to track and train young talented players would be deprived of this vital function and income through transfer fee, under purchasing power of wealthy clubs. This will be a fatal blow to the structure of football, as small clubs in these circumstances will not be eager to catch and train blossoming talents in their remote backyard. The Bosman case and the subsequent events have shown that it is likely that there will be much more legal intervention in the area traditionally regulated by independent (national and international) sporting bodies. There is a tendency among sport clubs and organizations to form splinter groups and conduct events in contravention to international control boards. The following words of Belgian Lawyer, Jean Louis DuPont, the lawyer of Bosman, are clear indications about the future development in sport and warning to the organization of sport about impending realities: The EU will not be able to provide for the re-regulation of sport. It's more a question of national law. The EU has no competence in the area of sport, so re-regulation will have to take place at the level of national Parliaments. However it is possible for the federations and the EU Commission to make agreements in which the EU ensures or encourages these federations to make rules consistent with EU law. In basketball case for example, FIBA, the international federation of the game, threatened to exclude all clubs who joined the new Superleague. But the national federations were happy to accept the presence of the Superleague placing the FIBA in a very embarrassing position. The national clubs said they want the new Superleague to exist side by side with FIBA. This is the new reality of sports governance that needs to be grasped by international, national and regional federations. (as cited by Craiger, 2000, p. 16) Thus, it is imminent that there should be a concerted effort on the part of all those who are associated with sports governance to create a harmonious environment in order to provide relaxation and emulation, excitement, and thrill to the spectators from any sporting activity, and that too, free from hooliganism. According to King (2003) "Hooliganism was recognized as a serious social problem in Britain from the early 1960's", when the vandalism of trains carrying supporters to away games became a focus of concern, and opposition fans forcibly infiltrated the terrace behind the goal occupied by home supporters. "Hooliganism was not the product of a few 'deviant' individuals but was instead the result of a complex interaction between fan groups or between fans and the police" (King 1995, 1999a; Scott and Reicher 1998, as cited by King, 2003, p.56). The United Kingdom is distinguished as having the earliest and most severe problems with football hooliganism, and it is the only nation to have received a blanket expulsion from all European Football competitions subsequent to Heysel Stadium tragedy. UK is considered to be the first nation to have taken the lead in the development of control measures to deal with hooliganism, though various strategies and responses have been primarily reactive, and have been influenced by technological developments. Major strategy was to improve policing and identifying elements of unrest, particularly hooligan gangs, through undercover operation. The individuals arrested in raids were charged with conspiracy to cause affray or violence exposing them to trials and convictions. Segregating the home supporters from the visitors, preventing illegal entry into the ground, enforcing exclusion orders, and searching supporters for weapons and other prohibited articles, and employing Steward, who follow a particular club's agenda, are some of the methods employed to control mob riots in football grounds. Modern electronic devices of closed-circuit television, hand-held video cameras, photophone, and Hoolivan are also employed for effective monitoring of atrocities in football grounds, at the time of international matches. Many tragedies during football matches prompted UK government to have Legislative interventions and introduction of Football Spectators Act (1989) and Football (Disorder) Act 2000. "The Bradford fire and the subsequent report by Justice Popplewell in 1986 raised awareness of the vital issue of spectator safety at football grounds and in particular re-introduced the issue of identity cards for football fans" as well as the government introduced the Football Spectators Act in 1989 (SIRC, 2008). The Football Licensing Authority was also established under this Act which is responsible for awarding licenses to premises that admit spectators, and has the authority to close a stadium when unrest is anticipated. Introduction of compulsory identity cards for spectators at every league, cup and international match played in England and Wales was an attempt to prevent unwanted fans from entering the ground and most effective way of enforcing exclusion orders and football grounds. These measures did not prevent tragic incidents in football ground as ninety-five Liverpool fans were crushed to death on 15th April 1989, during F.A Cup semi-final between Liverpool and Nottingham Forest at the Hillsborough Stadium. The report by Lord Justice Taylor, ninth such inquiry into crowd safety and control at football matches in the United Kingdom, emphasized the lack of facilities for spectators and poor condition of football grounds. The main recommendations of Justice Taylor was for conversion of all football league grounds to all-seater stadia by the end of the millennium, removal of spikes from perimeter fencing, and introduction of new laws to deal with offences inside football stadia, including racial abuse. In order to safeguard the safety of spectators of international football tournament in UK the Football (Disorder) Act 2000 was passed on 28th July, 2000 (c.25). There were continued episodes of disorder involving English football supporters during the European Championship finals in Belgium and the Netherlands in June 2, 2000, and the Football (Disorder) Act 2000 was introduced to combat football hooliganism. It combines domestic and international football banning orders, including passport withdrawal and preventing a person from leaving England and Wales in the event of complaint. Section 14B empowers the police to apply to a magistrates' court by complaint for the imposition of a banning order on an individual, if it is shown that the person has previously caused or contributed to any violence or disorder in the UK or elsewhere (not necessarily associated with football). If the magistrate is satisfied that there are reasonable grounds that a banning order would help prevent foot ball related violence it will help impose banning order. Schedule 1 to the Football Spectators Act 1989 and subsequent amendments clearly identifies relevant football related offences which are exercised for detention and imposing penalties under different sections of the Act, depending on the citizenship of the person so detained. Simultaneously, concerted effort has been made to establish cross-border cooperation among European bodies and the Council of Europe adopted the European Convention on Spectator Violence and Misbehaviour at Sports Events with the aim to deal with violence in and around sports stadia. The evolution of 'Fan Projects' in Germany, The Netherlands, Belgium, and Sweden have engaged in proactive initiative to reduce the problem in these European nations. There are numerous machineries for effective implementation of strategies, such as National Crime Intelligence Service Football Unit, Police National Coordinating Centre, Match Commander Group, Senior Investigating Officers Group, IT Group, Press and Media Group, EPI-Centre system and Photophone, Hooligan Hotline, and Spotters employed in United Kingdom for preventing tragic incidents in football grounds. It may be expected that along with the government strategies the continued involvement of football clubs themselves, in helping to re-direct and curb the occasional disruptive and violent behaviour of small minority of their fans, will go a long way in eliminating sport related violence during international football matches in Europe. Bibliography Blackshaw, Ian. The Court of Arbitration for Sport: An International Forum for Settling Disputes effectively 'Within the Family of Sport'. Entertainment Law, Vol. 2, No. 2 (2003) pp.61-83. London: Frank Cass. 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