PUBlisheR: Global sports policy review
Volume 1 | Issue 2 (Summer 2021)
1. The Effects of Vertical Mergers and Sale of Broadcasting Rights on the Competition Among Broadcasters and Football Clubs Under the Rejected Merger Request Between British Sky Broadcasting and Manchester United PLC
Author: Dr Fatih Buğra Erdem, Assistant Professor at Social Sciences University of Ankara, Turkey
Abstract: This study aims to demonstrate the potential effects of the acquisition of football clubs by sports broadcasters in terms of UK and EU competition law through taking into consideration of the Monopolies and Mergers Commission’s denial reasons concerning the British Sky Broadcasting’s takeover bid for acquiring Manchester United in 1998. To the more point, the concept of collective sale of broadcasting rights, as the sharpest discussion point of the denial, is investigated deeply through considering the welfare of society as a base. This examination accordingly confirms the necessity of independent acting for sports actors having vertical relationships by turning to clock back. This revisiting will finally bear a torch for affiliated authorities to take a stand regarding future mergers and acquisitions proposals between broadcasters and football clubs.
Keywords: Broadcasting, Vertical Mergers, Competition Law, Media, Manchester United
2. Legal and Practical Impediments in Implementing a Salary Cap in Formula 1
Author: Arnav Joshi, Law scholar, Jindal Global Law School, Sonipat
Abstract: Salary caps in sports have been almost exclusive to American and Australian professional leagues. While the current spending restrictions enacted in Formula 1 (F1) don’t include driver salaries, recent reports have suggested that the FIA plans to inculcate driver salaries within the cap. Like most professional sports today, a team’s chance of winning in F1 has become directly proportional to the money the team invests in resources and talent. Teams with lower spending capacity have struggled immensely in competing with their rivals. Thus, by implementing a wage cap, the governing body seeks to increase competitiveness and promote financial sustainability among teams. The following paper analyses the scope of a driver salary cap in F1 through the lens of competition laws in the European Union. The author aims to interpret various provisions of the Treaty on the Functioning of the European Union (TEFU) along with cases that have arisen on similar grounds. By drawing a comparative analysis between the structure of American sports leagues with F1, this paper depicts the contrasting structure of the two leagues which may prove a hindrance in enforcing salary limits in F1. Furthermore, the author tries to portray other practical challenges which would obstruct salary caps in fulfilling their objectives. In the latter part of the paper, the author looks into some of the alternate solutions to a hard salary ceiling which would provide better redressal to the issues of competitive balance and financial sustainability in the sport. The paper concludes by answering whether salary caps for drivers are a practical and legal solution to rectify the issues of competitive balance and financial sustainability of teams in Formula 1.
Keywords: Formula 1, salary caps, competition law, competitive balance, financial sustainability.
3. Gaming and Gambling: The Era of Dream11 and Crashing Dreams
Authors: Mohd Rameez Raza, Raj Shekhar and Ujjwal Singh, Law scholars, Integral University, Lucknow, National University of Study and Research in Law, Ranchi and Chanakya National Law University, Patna
Abstract: With the advent of technology, every day we are seeing the emergence of new amalgamated fields. The same is the tale of Fantasy Sports, which emerged as a result of the fusion of technology, statistics, and real sports. Just like any other new development, Fantasy leagues and their legality is being challenged these days. Whether it is the international US cases or the Indian Dream11 case, the whole fantasy sports industry is under scrutiny. This paper aims to analyse the legality of fantasy sports by understanding their origin, historical prevalence, and usage in current times. A fine line has been drawn regarding the legality of such sports by dealing with the major question of ‘Skill’ v. ‘Chance’. For this, foreign statutes, foreign legislations, Indian Case laws, etc. have been closely scrutinized and then based on the result of such analysis the legal circumscribing boundaries for fantasy sports have been defined. The famous Indian Case of Dream11 Pvt. Ltd. has been discussed in the brief and a thorough examination of its judgment and prospects has been made. Based on these prospects the whole idea of legality has been dealt with, in the Indian scenario. The idea of ‘self-regulation’ has been discussed in great lengths too, by understanding ‘what’ it intends to do and ‘how’ it intends to do the same. All this data has been presented, processed and analysed, to come to a distinct and clear conclusion regarding Fantasy Sports and the need for its regulation in the near future.
Keywords: Fantasy Sports, Dream11, Self-regulation, Wagering, Game of Luck, Game of Skill
4. Oligopoly in the European Footballing Market: An Impregnable Cycle?
Authors: Rituraj Roy Choudhury & Shasank Konger, Prospective M.Sc. Scholar at Manchester Metropolitan University and Law Scholar, Amity Law School, Kolkata
Abstract: Football, across the globe is known as “the world’s sport”, and the status quo regarding its recognition has only shown diminutive symptoms of waning. Buoyed through an increasing array of participation at the grassroots level and spurred ahead by means of maximum expert ranks through bankrolling proprietors and rewarding media rights deals, this extraordinarily simple but enchanting sport has persevered to excite and enthral billions across the globe. However, a few cumbersome possibilities persist dealing with the enterprise in the modern-day era that warrant additional scrutiny. Enabling discussion on prevailing predictive possibilities and astounding business situations inside the footballing ecosystem, this paper provides an insight into the world’s biggest sporting industry and its oligopoly (primarily British) in the domestic circuit through prescriptive analysis. Suggestions are made to researchers, managers, and entrepreneurs, actively involved in an effort to unearth probabilities and cope with the demanding situations that presently exist within the worldwide footballing fraternity.
Keywords: Oligopoly, Prescriptive analysis, sporting ecosystem, Football
5. Morality Clauses: A Corporate’s Boon or An Athlete’s Bane?
Author: Tanushree Bhattacharya, Law Scholar, Jindal Global Law School, Sonipat
Abstract: Behavioural controversies have plagued the sporting industry since their arrival from the scandals of the entertainment industry in the 1920s. One of the ways in which such controversies are prevented in the sporting industry is through morality clauses in the contracts of the athletes. Generally found in commercial contracts, these morality clauses tend to primarily maintain the company’s goodwill and public reputation when one of the brand ambassadors of the company is caught up in some scandals. This paper, after providing a historical background to the advent of morality clauses, explores the conundrum faced by companies when an athlete they endorse is hit with a scandal and provides a defence to the athletes against such morality clauses, concluding with why it is more necessary for a corporate perspective that such clauses remain.
Keywords: Morality clauses, morality test, brand endorsement, goodwill, public conduct
6. The Hillsborough Disaster: A Bundle of Errors
Author: Sathyanarayanan Iyer Gopalan, LLM in Sports Law, Nottingham Trent University, UK
Abstract: The Hillsborough Disaster, considered to be the deadliest stadium disaster in the UK, tragically claimed the lives of 96 football supporters and left countless more injured, led to widescale reforms in the sporting industry in general and the football industry in particular regarding the safety of the individuals who come to witness the sports inside a stadium. In light of the same, Lord Justice Taylor, who conducted an enquiry into the tragedy, made certain recommendations for stadium reforms in his report. This paper analyses the possible reasons behind the overlooking of the recommendations in Lord Justice Taylor’s report by the UK while discussing the issues that culminated in the Hillsborough disaster by looking at them from the lens of the government, the police, the football clubs themselves and the fans, and how lessons should have been from previous disasters to prevent what happened in Hillsborough.
Keywords: Football, safety, policing, fans, stadium.
7. Games of Skill vis-a-vis Article 19(1)(g) of the Indian Constitution
Author: T. Nishit, Junior Research Fellow (JRF), Department of Law, Osmania University, Hyderabad
Abstract: The legality of gaming in India is dependent on the distinction between games of skill and games of chance. The Public Gambling Act was passed in 1867 by the colonial administration to criminalize public gambling and the keeping of common gaming houses. The Act provided under section 12 that games of skill would be exempted from its application. This exemption clause is adopted by most of the legislations on gaming by State governments after the Constitution came into force. These legislations allowed games of skill and criminalized games of chance. Further, the Supreme Court of India held in the Chamarbaugwala cases in the 1950s as well as in subsequent cases that games of skill would be protected under Article 19(1)(g) of the Indian Constitution which provides the right to practice any profession or to carry on any occupation, trade or business subject to reasonable restrictions. However, few states in the country disregarded the judgments of the apex court by criminalizing games of skill. For instance, section 2 of Telangana Gaming (Amendment) Act of 2017 provided that wagering and betting shall include “any act or risking money, or otherwise on the unknown result of an event including on a game of skill.” In this paper, the author analyses the scope of Article 19(1)(g) and 19(6) of the Indian Constitution to understand whether the games of skill can be prohibited by the State under the ambit of ‘reasonable restrictions.’
Keywords: Game of skill, Game of chance, Article 19(1)(g), Reasonable restrictions.
8. The Legal Barriers of the Super League
Authors: Victor Omnes and Loïc Darcis, Sports Law (Masters) at the Instituto Superior de Derecho y Economía (ISDE), Madrid, Spain
Abstract: The European Super League (SL) was an ambitious breakaway project from the established European football competitions undertaken by a few of the most prominent football clubs across Europe that threatened to change the landscape of European football forever. However, the project was doomed within seventy-two hours of the announcement of the SL. The objective of the paper is to set out the most prominent legal barriers for the SL project, i.e., which regulations could prevent or hinder the unfolding of the SL. So as to truly grasp the viability of the SL in the long term, it is required to take distance from emotional and political arguments and let the law guide us. The paper will analyze the research question from a competition law angle, the SL clubs' internal statutes and licensing requirements at the level of the competent federations.
Keywords: Football, Super League, EU law, FIFA, UEFA
9. A Comparative Analysis of the Gambling Laws in India & Great Britain
Author: Deokinandan Sharma, Law Scholar, Jindal Global Law School, Sonipat
Abstract: India has been recovering from the two hundred years of dependence on the Queen’s Rule, and it owes a huge credit to the British laws and its visible impact through prevailing laws of the land. Though the Indian judiciary and legislation has played a proactive role in restructuring and making laws adaptive to the time frame, they have seldom failed. An example of this is visible through The Public Gambling Act, 1867, which has hardly seen any amendments to its original structure. The paper reviews the transition of gambling laws from the birth of India to the present scenario and sets a comparative study between the United Kingdom Gambling Act, 2005. Acknowledging the legality of gambling in the United Kingdom, the paper attempts to examine whether the judiciary or the legislation is to be blamed for this backlog. Owing to the quasi-federal structure of the nation, the paper divulges into the various schemes adopted by the State Governments. This paper attempts at comparing the approach taken by the above-mentioned bylaws and its impact on the respective nations. The comparison attempts at proving the legal inefficacy of the Indian legislation and judiciary and the inadequacy of changes brought to the Public Gambling Act, 1867 which has had serious repercussions with the introduction of online gaming. The paper attempts to highlight a suggestive plan of action that has can be adopted by India with respect to various recommendations made by the Law Commissions to curb any illegal betting and crimes.
Keywords: Gambling law, Illegal betting, Online gambling.
10. Criminalizing Doping in India: A Critical Study
Author: Ilamparithi D.K., Law Scholar, School of Law, Christ University, Bangalore
Abstract: In competitive professional sports, doping is the use of banned athletic performance-enhancing drugs by competitors. The use of banned drugs to improve performance is considered unethical and prohibited by almost every international sports organization, including the International Olympic Committee. The recent doping revelations and the public reaction, inability to promote ethics, integrity and fairness according to the ‘spirit of sport’ defined by the World Anti-Doping Agency (WADA) puts immense pressure on the existing and practically ineffective anti-doping sanctions to evolve with the times. The public belief and likeness towards sport have taken a setback due to various scams and scandals in the industry, which calls for reforms in the industry. The overall ‘price’ or ‘cost’ incurred to indulge in doping and other unfair practices should exceed the ‘benefits’ from such practices, the current civil laws and sanctions do not guarantee that. Sports should be based on fairness, integrity and respect and practices that undermine these values should be eliminated. The author through this research article would explore the public opinion on doping, critically analyze the deterrence value and the efficiency of the current anti-doping laws. Alongside, the author would suggest criminalizing doping in India in order to balance the domestic and international conventions and pre-existing sanctions governing doping, which will contribute to creating a greater deterrence towards doping.
Keywords: Doping, Criminalization, Deterrence, India.
11. Resolving Stagnant Sport Dispute Resolution Procedures in India
Author: C.C. Chengappa, Law Scholar, Jindal Global Law School, Sonipat
Abstract: Just like certain niche fields, sports too requires specialization across all fronts. Whether it be sports journalism, sports medicine, or psychology, what enhances sports administration is the specialization that comes with those working within its ambit. This, however, has not been seen in India when it comes to the adjudication of sports disputes and controversies. There must be an emphasis on a defined body of sports dispute that caters to the needs of athletes. It has been lacking for a considerable time and has affected the careers of athletes that are subject to the mercy of long drawn processes of litigation in India. This paper shall aim to understand the stagnancy of sports dispute resolution in India post-2011 constituted Indian Court for Arbitration of Sports. Special emphasis shall be given to contested areas of sports such as doping control, individual athlete contentions, and the rise in sporting disputes that do not have effective deliberation methods in India. The need of the hour is an Indian Court of Arbitration for Sport that shall be a precursor to international bodies in resolving sporting disputes in India. This shall also be compared to the model of the Court of Arbitration for Sport that has been extremely effective on an international forum in handling a variety of cases before it. Moreover, and most importantly, it shall make a case of ADR mechanisms (Arbitration and mediation) being effective, enforceable and determinative in a bid to secure justice and deliberate over conflicts that plague Indian sports as of today.
Keywords: Indian Court of Arbitration for Sports, CAS, Mediation-Arbitration, Dutee Chand
12. India and the Court of Arbitration for Sport (CAS)
Author: Mayank Hebbar and Devashish Kelkar, Law Scholars, Jindal Global Law School, Sonipat
Abstract: Unbeknownst to most, international sports arbitration and the International Court of Arbitration for Sports (CAS) has a very special relationship with India. However, ever since the CAS has grown to great prominence and plays an important role in the sports world - whether it be deciding disputes at high-level sporting events such as the Olympics or deciding issues that involve enormous amounts of money such as football transfers. In this research paper, the authors will first briefly delve into the concept of Lex Sportiva as a transnational legal order that goes against the Westphalian concept of law that derives its existence from a singular State. As this concept is still found in an emerging field of international law, this paper also aims to explore how the fundamentals behind Lex Sportiva can be emulated in spheres other than sports. the authors will then discuss the structural organization of the Court of Arbitration for Sport (CAS) as it exists today. Further, this paper explores in detail CAS’ jurisdiction and from where it is derived, following which we look at the various subject matters that CAS deals with. To end, this paper hosts a discussion on the applicability of the CAS system in India and the scope of improvement in the same.
Keywords: Lex sportiva, CAS, Sports Arbitration. Arbitration and Conciliation Act, 1996