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Practice Profile: Sports law lifting the legal game
The growing value and coverage of sport off the field, from player salaries to broadcasting rights and Facebook scandals, is keeping lawyers as busy as the athletes on the field. Justin Whealing…
The growing value and coverage of sport off the field, from player salaries to broadcasting rights and Facebook scandals, is keeping lawyers as busy as the athletes on the field. Justin Whealing finds out which firms are participating in the legal stoushes on the sidelines.
The notion that there is such a thing as "sports law" is one which divides lawyers operating in this area. Mark O'Brien, a partner at Johnson Winter & Slattery, is adamant that there is no such thing.
"I don't think there is an area that can be defined as sports law," he says. "I have always looked at it as law as applicable to sportsmen, just as the same laws are applicable to entertainers or trade unionists."
O'Brien, a former partner at Gilbert + Tobin before moving to JWS in 2006, is one of the most well known lawyers in this area. He made his name in media litigation, with some of his high-profile clients including Alan Jones, Kerry Packer and Publishing and Broadcasting Limited.
His links with the Packer family meant that he was enlisted to lead the fight for the Australian Rugby League (ARL) and the seven loyal clubs during the Super League dispute with News Limited in the mid 1990s.
"After the Super League litigation, my therapist told me not to get involved in any more rugby league disputes," O'Brien jokes. "They are very emotionally intense, personal, and with so many individuals involved with a club or organisation, and when the stakes are high, as they were in the Super League case, it can take up 24 hours of every day for the time it continues."
O'Brien didn't heed his therapist's advice, as he has acted on a number of high-profile sporting matters since then. Most recently, he acted for the former Wallaby Lote Tuqiri when his contract was terminated by the Australian Rugby Union, and for Sonny Bill Williams when he walked out of his contract with the Canterbury-Bankstown Bulldogs.
O'Brien said that in terms of getting work in this area, he doesn't actively cultivate relationships with player agents or organisations.
"I don't promote myself as a lawyer who represents sportsmen, but I am very happy to represent such people that have a reasonable case to argue."
Despite O'Brien's scepticism about whether sports law exists, a handful of firms have dedicated sports law practices.
Ian Fullagar heads the Sports Business Group at Melbourne-based firm Lander & Rogers. A founding member of the Australian and New Zealand Sports Law Association (ANZSLA), Fullagar has two senior associates and another lawyer working in the group, and the firm's client list includes the national sporting organisations for a range of Olympic sports, including basketball, cycling, volleyball, hockey, canoeing and equestrian.
"The interesting thing about sports law is that it ranges from traditional commercial legal work such as IP or contractual work or business constitutional work, be they companies, incorporated associations and the establishment of trusts for fundraising work, right through to specialised sports law work such as doping or selection disputes or tribunal and disciplinary matters," Fullagar says.
Fullagar's group only ever acts for the administrative body with regard to any disputes, and he says his firm has acted on more selection disputes than any other firm in Australia. This includes acting on at least one dozen selection disputes after the Australian Olympic team was selected for the Beijing Olympics.
Playing up off the field
The recent media frenzy that was created when a teenage girl posted compromising photos on Facebook of three St Kilda AFL players, and the picture of NRL player Joel Monaghan simulating a sex-act with a dog, has shown what could happen to a player and club's reputation via social media outlets.
Mark O'Brien says that clients are increasingly seeking advice with regard to social media and privacy issues.
"It's well known that privacy has become a big problem, with the circulation of photographs and other unsourced derogatory comments," he says.
For Tim Fuller, with the corporate and commercial team at ClarkeKann Lawyers in Sydney, educating athletes about what is appropriate or not on Facebook and Twitter is becoming a burgeoning area of his firm's practice.
"Behavioural misconduct, and clauses detailing what is acceptable or not to post on social media sites, is becoming an increasingly important part of contracts for sportspeople," he says. A former professional rugby league player and sports agent - representing the likes of hockey gold medallist Nikki Hudson - and sports law lecturer at various universities, Fuller brings both a practical knowledge of professional sport from his playing experience and commercial acumen and contacts from his experience as an agent.
During Fuller's time at the firm, ClarkeKann has acted for the Wallaby winger Drew Mitchell in an IP dispute about an unauthorised use of his image, and the firm now counts broadcaster Setanta Sports Australia, basketball team the Cairns Taipans, Racing Queensland and the Queensland Rugby Union as clients.
"Clients are coming to us and asking for assistance or to put together presentations at seminars on their various legal obligations, across a wide range of areas," Fuller says.
A well-known Melbourne firm that has practiced in sports law for some years is Browne & Co.
The firm of choice for the AFL for many years, as the large image of AFL players on its website attests to, principal Martin Ross has advised many sports bodies and sponsors; including the AFL, Cricket Australia, the Professional Golfers Association and the Holden Racing Team over a wide range of commercial and commercial litigation work. He says that integrity issues, particularly around gambling, are becoming an increasingly important aspect of what lawyers do in this area.
"Sporting organisations need to safeguard the integrity of their sports," he says. "Integrity and gambling has been in the international spotlight over the last 12 months, as seen by the International Cricket Council's (ICC) investigations into the conduct of Pakistani cricketers in England and the International Olympic Committee's (IOC) promise to redouble its efforts to safeguard integrity in the lead up to the London Olympics."
Ross adds that Australian sports, with many having their funding levels linked to compliance with international regulations on issues such as doping procedures, are working very hard to stay ahead of many of these integrity issues. "The AFL, in particular, is cutting edge, and has developed rules and policies in this area," says Ross, who is also a director with the Australia New Zealand Sports Law Association (ANZSLA), a 350-plus strong body which is often called to make submissions to various government inquiries.
