ASSER International Sports Law Series

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Jack Anderson
Editor

Leading Cases in Sports Law

123
Editor
Jack Anderson
School of Law
Queen’s University Belfast
Belfast, Antrim
UK

ISSN 1874-6926
ISBN 978-90-6704-908-5 ISBN 978-90-6704-909-2 (eBook)
DOI 10.1007/978-90-6704-909-2

Library of Congress Control Number: 2013932333

Ó T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors 2013

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands [Link]

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Series Information

Books in the ASSER International Sports Law Series chart and comment upon the
legal and policy developments in European and international sports law. The
books contain materials on interstate organisations and the international sports
governing bodies, and will serve as comprehensive and relevant reference tools for
all those involved in the area on a professional basis.
The Series is developed, edited and published by the ASSER International
Sports Law Centre in The Hague. The Centre’s mission is to provide a centre of
excellence in particular by providing high-quality research, services and products
to the sporting world at large (sports ministries, international—intergovernmen-
tal—organisations, sports associations and federations, the professional sports
industry, etc.) on both a national and an international basis. The Centre is the
co-founder and coordinator of the Hague International Sports Law Academy
(HISLA), the purpose of which is the organisation of academic conferences and
workshops of international excellence which are held in various parts of the world.
Apart from the Series, the Centre edits and publishes The International Sports Law
Journal.

Series Editors
Dr. David McArdle
e-mail: [Link]@[Link]
Dr. Ben Van Rompuy
e-mail: [Link]@[Link]
Marco A. van der Harst, LL.M.
e-mail: [Link]@[Link]

Editorial Office
ASSER International Sports Law Centre
T.M.C. Asser Institute
P.O. Box 30461
2500 GL, The Hague
The Netherlands
[Link]
Editor’s Introductory Remarks
and Acknowledgements

In edited collections of this nature it is often the case that the editor will use the
introductory remarks to pronounce, rather grandly, on the volume’s underlying and
unifying theme or themes. That will not happen here. The substance and form of the
collective term ‘‘sports law’’ covers an eclectic amalgam of various applications of
traditional branches of the law and, at best, it is hoped that eclecticism is encapsulated
in the various contributions to this collection. If a single theme is to be found
threading its way through this collection, it is one that demonstrates the breadth and
depth of sports law scholarship worldwide. Put simply, this book is not just about
leading sports law cases; it is about leading sports law cases as analysed by leading
sports law scholars. Authors or contributions based on case law from at least nine
jurisdictions spanning the common and civil law traditions are represented—
Australia; Belgium; Canada; England and Wales; Scotland; South Africa; Sweden;
New Zealand; and the United States. Moreover, the case law ranges from the superior
courts of the United States, the United Kingdom and the European Union (EU) to
what can now be called sport’s very own international court of justice—the Court of
Arbitration for Sport.
Two points need to be made before briefly introducing the contents of this
collection.
The first is directed towards the contributors and it is simply to express my thanks
to them for their professionalism and patience in filing their contributions. The
quality of this book is due to them alone, and has nothing to do with my editing skills.
In fact, to paraphrase Denning MR’s celebrated maxim in Enderby Town FC v
Football Association (1971), ‘‘better a good writer than a bad editor’’; and this book
is full of good writers. Editing this collection was primarily a matter of arranging the
case law into six parts reflecting what I thought were topics historically fundamental
to the emergence of sports law (Parts I–III) and those which continue to prompt legal
analysis of sporting practices (Parts IV–VI). Further, the book’s chapters have also
been edited into such a way that they are can be read in a self-contained manner for
ease of dedicated study. Each chapter contains a reference list of its own and cross-
referencing within and between chapters has been kept to a minimum.
The second point is directed at you, the reader. No doubt many of you will be
perplexed as to why certain cases have made it into this collection, and others have

vii
viii Editor’s Introductory Remarks and Acknowledgements

not. There are some prosaic reasons as to why this book is limited to twenty or so
cases—such as deadlines, word count, author availability and the wish to avoid an
overlap with other texts from the ASSER International Sports Law Series and
notably CAS and Football: Landmark Cases, edited by Alexander Wild and
published in 2012 by TMC Asser Press and Springer. Those explanations aside, the
rationale for the selected cases in this volume is otherwise straightforward: I wanted
them to be included because I think they best portray the domestic, regional, inter-
and supra-national dimensions to sports law. If you think that there is a case or
arbitral award that should have been included, or, better still, one that should be
included in (I hope) a second volume—and in particular, but not limited to, a
jurisdiction such as Germany, France, Spain, Italy, Russia, China or Brazil—then
please contact me and engage with the debate on my blog at [Link]
sportslaw. In any event, all comments are welcome at [Link]@[Link],
including any ideas on the contents of a second volume and especially from the
younger generation of sports law academics, scholars and practitioners!
I write these remarks as the London 2012 Olympic Games come to a close. In his
remarks at the opening ceremony to the Games, the President of the International
Olympic Committee, Jacque Rogge said, ‘‘In a sense, the Olympic Games are
coming home tonight. This great, sports-loving country is widely recognised as the
birthplace of modern sport.’’ Many sports can indeed trace their origins as codified
pursuits to the Victorian era. How and why this happened and, more particularly,
what the law contributed to the development of modern sport is central to this book’s
first chapter on Abbot v Weekly (1665).
So as Association Football and other sports emerged in codified and league form
in the 1860s; so on the other side of the Atlantic (on St. Patrick’s Day in 1871), the
National Association of Professional Baseball Players was founded and professional
league baseball was born. The ‘‘ensuing colorful days’’ of early baseball were
breathlessly recounted in 1972 by Mr. Justice Blackmun in the US Supreme Court
decision of Flood v Kuhn. In that decision, the long-standing exemption of pro-
fessional baseball from US antitrust laws, established in Federal Baseball Club v
National League in 1922, was recognised plainly as an ‘‘aberration’’, in the light of
the Supreme Court’s subsequent findings that other interstate professional sports
were not similarly exempt, but, nevertheless, it was held an established aberration
with which the US Congress acquiesced, and which the US Supreme Court reiterated
was entitled to the benefit of stare decisis. The second chapter contains a brilliant
analysis of the root cause of this aberration by one of the US’s leading sports law
scholars, Professor Roger Abrams.
The leading EU sports law scholar, Professor Richard Parrish, follows with a case
synthesis on Walrave and Koch when for the first time the Court of Justice of the
European Union (‘‘CJEU’’) donned a sports jersey and did so in the most unlikely of
settings—on a pace making bike for cycling races. Parrish demonstrates that the
principles established by the CJEU in Walrave and Koch were indeed pathfinders in
the development of EU sports law. The final chapter in the first part of this book is by
Professor Ian Blackshaw who gives an analysis of proceedings that were funda-
mental to the contemporary authority of the Court of Arbitration for Sport (‘‘CAS’’).
Editor’s Introductory Remarks and Acknowledgements ix

Professor Blackshaw’s analysis is important in revealing that although CAS can now
be seen in terms of a world supreme court for sport, it must not be forgotten that a
limited means of appeal from CAS to the Swiss Supreme Court remains and that in
this supervisory role, the Supreme Court of that country can have an important say in
the operation and administration of key aspects of contemporary sport.
Returning to the opening ceremony of the London Olympics of 2012, the
Olympic flame was brought to the host stadium by David Beckham on a speed boat
along the Thames. ‘‘Becks’’ encapsulates the commercial spirit of modern football,
both on and off the field of play. What Part II of this book illustrates is how much
footballers such as Beckham owe to Mr. George Eastham and Mr. Jean-Marc
Bosman and their stories are well told respectively Simon Boyes and Professor
Stefaan Van den Bogaert. In many ways, the chapter on Bosman is this book’s
fulcrum. The chapter illustrates that, thanks to the CJEU’s ruling in Bosman, the
contractual servitude of football’s past has been replaced by the contractual mobility
of its present. Moreover, Van den Bogaert illustrates that Bosman was a serious but
necessary breach of the administrative autonomy of sport, and not just football, and
one that has led subsequently to various legislative and policy making initiatives
domestically, at an EU level, and even internationally.
Part III of this book contains three very different approaches to when the private
business of sport becomes the public business of law. The first by Chris Davies on
Finnigan v NZRFU reviews the role that sporting boycotts played in the international
campaign against the apartheid regime in South Africa and especially in the 1980s.
Michael Beloff QC’s piece reflects on the rather odd refusal by the Court of Appeal
in England and Wales to the permit the judicial review of the decisions of sports
bodies, including those in receipt of large amounts of public money. Professor
Stephen Weatherill’s contribution on Meca Medina grasps with EU law’s reach
‘‘beyond the touchline’’. Characteristic of all three pieces is the sports body’s initial
reluctance, even refusal, to acknowledge that the ordinary courts were an appro-
priate palladium to discuss or provide a remedy for disputes of a specifically sporting
nature. Further, all three cases demonstrate that the private self-regulatory bubble in
which sport operated for much of the twentieth century has well and truly burst. As
Professor Weatherill has said on numerous occasions; so far as the law is concerned,
sport is special but not that special.
Continuing on the theme of the London Olympics, the Games finally saw the
demise of one of the most shameful world records in athletics when in their gold
medal winning performance at London, the US women’s 4 9 100 m relay team
broke one of the oldest records in world athletics set by the East German women’s
team in Canberra in 1985. In the mid-1980s, the old GDR state-sponsored doping
programme of athletes was at its height, and when followed by the Ben Johnson
affair in 1988 at the Seoul Olympics and a decade thereafter of doping-related
scandal at the Tour de France, the sporting world finally acted and founded the
World Anti-doping Agency. Part IV of this book opens with Hazel Hartley’s
reflections on the Diane Modhal affair and thus provides an insightful commentary
on the challenges faced by individual athletes, sports governing bodies and the
courts in a high profile anti-doping dispute in the pre-WADA era. Post-Modahl, we
x Editor’s Introductory Remarks and Acknowledgements

see the emergence of CAS as the ultimate arbitrator of doping-related disputes. CAS
and the procedures surrounding doping control were both tested to their limits in
CAS 98/211 B v FINA where an Irish swimmer presented a robust legal defence to
accusations the there was, well, too much whiskey in the jar. Neville Cox gives an
expert review of this award, which was CAS’s first public hearing, as does John
O’Leary on the Tim Montgomery award where we see the emergence of the
‘‘comfortable satisfaction’’ standard of proof in anti-doping decisions. Finally,
David McArdle uses the Pechstein v ISU proceedings to comment authoritatively on
blood profiling as a means of identifying dope cheating in sport.
Part V of this book contains the good, the bad and the commercial. Professor
Steve Cornelius recounts through interviews and case analysis one the most inspi-
rational athletes and stories in sport—that of double amputee, Paralympian and,
now, Olympian, Oscar Pistorious. Pistorious’ will to compete and to get the best out
of himself at every turn contrasts starkly with the behaviour of the defendants in
R v Amir and Butt on which Simon Gardiner, at Chap. 18, highlights the elemental
threat to the integrity of sport presented by ‘‘spot-fixing’’ gambles. Chapters 16 and 17
by, respectively, Lefevere and Veermesch’s and Lindholm and Kaburakis, consider
two decisions of the EU courts on the exploitation of sports broadcasting rights.
Lefevere and Veermesch’s chapter captures the lucrative nature and fundamental
importance of TV revenues to the financial stability of modern sport and especially
football; while Lindholm and Kaburakis, in their review of the Karen Murphy
proceedings at the CJEU, contend that the competition law aspects of Murphy have
been understated in subsequent commentary. TV money has long been central to the
operation of major league sport in the United States but so also has the manner in
which the various franchises within US major league sport have sought to organise
themselves as a collective in order to maximise the commoditisation of their
‘‘product’’. The latter is reviewed comprehensively in substance and in context by
Professor Matt Mitten in his observations on the recent US Supreme Court decision
in America Needle.
Violence (amongst spectators, between players and towards animals) is central to
Part VI. Geoff Pearson illustrates that there is more, much more, to the policing and
prosecution of football spectator-related violence than a dry technical review of the
hybrid standard of proof for certain statutory offences enunciated by the English
Court of Appeal in Gough and Smith. Similarly, Mark James subjects the Court of
Appeal’s approach to player on player violence in Barnes to detailed scrutiny in a
manner which places the debate in its full context and outside its narrow application
of the relevant parts of the Offences against the Person Act 1861. Laura Donnellan
then reviews the various challenges to the Hunting Act 2004’s ban on the hunting
with dogs of certain wild mammals, including foxes and hares in England and
Wales. In this, Donnellan analyses Lord Bingham’s assertion in the House of Lords
that ‘‘whatever one’s view of the 2004 Act, it must be seen as the latest link in a long
chain of statutes devoted to what was seen as social reform. It may be doubted if any
country has done more than this to try and prevent the causing of unnecessary
suffering to animals.’’
Editor’s Introductory Remarks and Acknowledgements xi

The final chapter has echoes in the aforementioned speech by IOC President
Rogge at the opening ceremony of the London Games. In that speech, Rogge noted
proudly that all 204 participating countries included female competitors for the first
time and that this was a ‘‘major boost for gender equality.’’ Rogge could make this
claim because a few minutes earlier two extraordinary women had just filed past
alongside the flag of Saudi Arabia, which until then had been one of the few
countries not to select female athletes—its Ministry for Education still bans physical
education for girls. Nevertheless, on reading Hilary Findlay’s review of the Sagen
proceedings prior to the Vancouver Winter Olympics of 2010 and the history of the
IOC with regard to the inclusion of women in sport more generally, Rogge’s self-
congratulatory tone grates. Findlay also concludes, in a manner which neatly closes
the collection as a whole, that the IOC, although ostensibly a private actor, has
rapidly developed a powerful global administrative capacity and one which has on
occasion placed itself outside the norms and jurisdiction of domestic law and courts.
The manner in which sports law regulates the activities of the IOC, WADA and large
sports organisations such as FIFA, possibly as part of the debate on global admin-
istrative law more generally, will be central to the immediate evolution of sports law
both practically and theoretically.
In conclusion, I would like to use this introduction to acknowledge my colleagues
at the School of Law, Queen’s University Belfast for their personal and professional
support and in particular Professor Gordon Anthony, a supporter of the Manchester
Red Devils franchise now playing out of the New York Stock Exchange, and Pro-
fessor Sally Wheeler, a supporter of Aston Villa, of which little more need be said. I
am also extremely grateful to all at the T.M.C. Asser Instituut and Asser Press. Rob
Siekmann who was involved in the initial commissioning stages of this book and
later the ever efficient and ever pleasant Karen Jones and also Marjolijn Bastiaans,
responsible for production and, of course, the Director and Publisher at TMC Asser
Press, Philip van Tongeren.
Finally and as stated earlier, these introductory remarks were written as the
London 2012 Olympic Games drew to a close. On one of the last nights of the men’s
diving competition I watched with my son (aged 4 and three quarters) and daughter
(aged 2 going on 16). After one of Tom Daley’s slightly less than perfect dives my
daughter piped up, ‘‘good but a bit splashy’’. As analysis goes, I thought it concise
but incisive. On reading this volume, I hope you will feel the same about its analysis
of leading cases in sports law.
Thanks to Teresa, Daniel and Katherine, Mum and Dad.

Belfast, August 2012 Jack Anderson

Contents

Part I The Emergence of Sports Law

1 Abbot v Weekly (1665) 83 ER 357; 1 Lev 176 . . . . . . . . . . . . . . . . 3

Jack Anderson

2 Federal League Baseball Club of Baltimore v National

League et al. 259 US 200 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . 29
Roger I. Abrams

3 Case C-36/74 Walrave and Koch [1974] ECR 1405 . . . . . . . . . . . . 45

Richard Parrish

4 CAS 92/A/63 GUNDEL v FEI . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Ian S. Blackshaw

Part II Player Mobility Versus Contractual Stability

5 Eastham v Newcastle United FC Ltd [1964] Ch 413 . . . . . . . . . . . 77

Simon Boyes

6 From Bosman to Bernard C-415/93; [1995] ECR I-4921

to C-325/08; [2010] ECR I-2177 . . . . . . . . . . . . . . . . . . . . . . . . . 91
Stefaan Van den Bogaert

xiii
xiv Contents

Part III When the Private Business of Sport Becomes

the Public Business of Law

7 Finnigan v NZRFU (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Chris Davies

8 R. v. Disciplinary Committee of the Jockey Club ex p. the Aga

Khan [1993] 1 WLR 909 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Michael Beloff

9 Case C-519/04 P Meca-Medina [2006] ECR I-6991 . . . . . . . . . . . . 137

Stephen Weatherill

Part IV Doping and the Spirit of Sports Law

10 Modahl v British Athletic Federation (1994–2001) . . . . . . . . . . . . . 155

Hazel Hartley

11 CAS 98/211 B v FINA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Neville Cox

12 CAS 2004/O/645 USADA v Montgomery. . . . . . . . . . . . . . . . . . . . 195

John O’Leary

13 CAS 2009/A/1912–1913 Pechstein v International

Skating Union. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
David McArdle

Part V Contemporary Issues in Sports Law

14 CAS 2008/A/1480 Pistorius v IAAF . . . . . . . . . . . . . . . . . . . . . . . 229

Steve Cornelius

15 American Needle Inc v NFL 130 S Ct 2201 (2010) . . . . . . . . . . . . 239

Matthew J. Mitten

16 Cases T-385/07, T-55/08 and T68/08 FIFA

and UEFA v Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Katrien Lefever and An Vermeersch
Contents xv

17 Cases C-403/08 and C-429/08 FA Premier League Ltd

and Others v QC Leisure and Others; and Karen
Murphy v Media Protection Services Ltd, 4 Oct 2011. . . . . . . . . . . 271
Johan Lindholm and Anastasios Kaburakis

18 R v Amir & Butt [2011] EWCA Civ 2914. . . . . . . . . . . . . . . . . . . 287

Simon Gardiner

Part VI Enduring Themes in Sports Law

19 Football and Crowds:

Gough and Smith v Chief Constable of Derbyshire [2002]
QB 1213. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
Geoff Pearson

20 Player Violence and Compensation for Injury:

R v Barnes [2005] 1 Cr App Rep 507 . . . . . . . . . . . . . . . . . . . . . 323
Mark James

21 Animal Welfare and Blood Sports:

R (Countryside Alliance) v Attorney General [2008] 1 AC 719 . . . . 337
Laura Donnellan

22 Gender and Equality:

Sagen v VANOC [2009] BCCA 522 . . . . . . . . . . . . . . . . . . . . . . . 353
Hilary A. Findlay

Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369

Table of Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383