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."
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."
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