With the globalisation of the sporting industry, increasing commercial
interests and contracts, sports law is developing as an increasingly
sophisticated and
complex practice area. We take a look at the issues and trends for
lawyers who work behind the scenes of Australia's mammoth sports
industry.
Sports law is a niche in most firms, with a handful of mid and
top-tier firms hosting a sports law practice, along with a few boutique firms
that cater to the needs of sporting organisations, associations, government
bodies, sponsors and players.
For sports lawyers, it's a good thing Australians
like their sport. The area has held up remarkably well through the economic
downturn, and the firms that Lawyers
Weekly spoke to have either
minimally increased or kept staff levels steady in their sports law practices
over the past 12 months.
Another positive sign is that sports lawyers
are banding together in greater numbers, with the Australian and New Zealand
Sports Law Association (ANZSLA) - the peak non-profit organisation aimed at
promoting interest in sports and law issues in Australia and New Zealand -
increasing its numbers to in excess of 350 members, despite tough economic
times.
Riding out the GFC
There have been a few key trends impacting on
sports lawyers as a result of the global financial crisis. Alex Rickarby, a
partner at Middletons, which acts for some of Australia's largest sporting
organisations and events - including Tennis Australia and the Australian Open,
Netball Australia and the Australian Football League (AFL) - says the firm also
has a suite of corporate sports clients that have been "quite active" during
the course of the economic downturn.
"We've been in the fortunate position that
this part of our practice hasn't been impacted a great deal by the downturn,"
he says. "That said, I understand from talking to people that sponsorship and
government funding have reduced somewhat during the downturn and it's simply
harder to get access to money. That's been observed at all levels of sport,
from professional down to the grassroots level."
Sponsor sophistication
The GFC has also affected sports sponsorship
at all levels. With reduced budgets, sponsors are taking a wiser and warier
approach to doing business. Ian Dixon - a partner at Gadens, whose clients
include high profile Olympic sportsmen and women, AFL footballers, sporting and
entertainment venues, sporting associations and event organisers - says he has
seen increased competition for the sponsor's dollar, while potential sponsors
are also looking for more bang for their buck.
"Things have tightened up for sporting clubs
all over. So sponsorships will be a big thing coming out of the GFC, and
sponsors will dust things off and look for more value," he says.
There has been a corresponding increase in the
sophistication of sponsorship agreements, according to Rickarby. In the past,
he says, it was more of a one-way arrangement whereby sponsors would provide
money and get signage. "There are many choices for sponsors in the market now,
and we're now finding that many want more value for money," he observes.
"What they're doing is looking for a
relationship of reciprocity, where they can build a relationship with the
organisation so that there's mutual benefit for both."
Codes of conduct
An issue in the media of late has been the
inappropriate off-field conduct of players. Martin Ross, a director of boutique
firm Browne & Co - which advises numerous sporting organisations including
the AFL, Cricket Australia, V8 Supercar teams and the Australian Sports Anti-
Doping Authority - says the role of sporting organisations in sanctioning such
off-field conduct is an increasingly important issue for sports lawyers.
"A recent high-profile example is the action
taken against swimmer Nick Darcy and the ban which prevented him competing in
the 2008 Olympics, which was unsuccessfully appealed to the Court of
Arbitration for Sport (CAS)," says Ross, who is also a director of ANZSLA.
Codes of conduct will be imposed on players
and athletes whether they like it or not, according to Dixon, who expects to see "more and more" of this
issue.
"There will be more intrusion of lawyers into this area,
simply because there are such consequences," he explains. "If someone gets
suspended from rugby or Australian rules and if their contract is worth
$800,000 or $900,000, they can lose that money. They'll have to defend that as
best they can, so they will go to lawyers rather than using lay advocates or
doing it themselves."
Protecting IP
As sporting organisations become increasingly
sophisticated, many are actively taking steps to protect their intellectual
property, according to Rickarby, which gives rise to trademark registration and
enforcement issues.
Some organisations have developed polished sporting
products with strong market appeal, and he says such organisations naturally
want to protect any subsequent broadcast revenues. "It's becoming increasingly
complicated with new media and internet developments and the greater exposure
of sports through those mediums, compared to maybe 10 or 20 years back," he
says.
As a result, Rickarby says, sporting organisations will
continue to rely on lawyers to advise and act on protecting their intellectual
property in line with new media developments.
Issues for sports lawyers in 2010
Martin Ross, a director at the Australian and New Zealand
Sports Law Association as well as boutique firm Browne & Co, says there are
a number of sports law issues to watch in 2010, including:
- The current Commonwealth Government review of the
anti-siphoning regime, which will impact on the landscape for free-to-air and
pay TV broadcasts of sporting events featured on the anti-siphoning list.
Submissions to the review have recently closed and the Minister for Broadband,
Communications and the Digital Economy, Senator Stephen Conroy, is to table his
report by the end of the year.
- The whereabouts requirements for certain elite athletes
under the World Anti-Doping Code. These athletes are required to disclose
details of their whereabouts for one hour each day (between 6am and 11pm) so
they can be located for testing. World cricket's plan to adopt the World
Anti-Doping Agency agreement was thrown into doubt after India rejected a
clause that requires players to
give their whereabouts three months in advance to allow random testing.
- Reforms and changes arising from the Crawford Report
into Australian sports systems. This review was commissioned by the
Commonwealth Minister for Sport, Senator Kate Ellis, and covers all levels of Australian
sport. The report is expected soon.
- Craig Donaldson
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