Sunday, 30 September 2012

Kick Racism ...

Kick Racism out of Football
John Terry endured a difficult week during which an FA Tribunal found him guilty of using abusive or insulting words with a reference to race or colour. Many fellow professionals felt the initial punishment (a 4 game ban) was too lenient.

Thursday, 27 September 2012

Terry - The End of the Affair

John Terry was this afternoon found guilty of the FA charge of  "using abusive and/or insulting words and/or behaviour towards Ferdinand and which included a reference to colour and/or race contrary to FA Rule E3[2]" by the Independent Regulatory Commission appointed by the FA. He was banned for 4 games and fined £220,000. The fine amounts to little more than a week's wages and is a drop in the ocean. Most people are aware of the facts and few will not already have a fairly entrenched view of the Chelsea defender. He has been stalked by controversy for a number of years. The verdict was no surprise. Indeed even before the hearing began on Monday, Terry 'retired' from the England team seemingly in protest at the charge being pursued by the FA. For their part, I cannot see that the FA had any alternative but to bring the charge and seek an adjudication from an independent tribunal.
Nonetheless I have previously questioned the wisdom of bringing criminal charges in respect of this matter http://gibbsbarrister.blogspot.co.uk/2012/07/terry-v-ferdinand-house-in-order.html. The rationale for charging Terry with a criminal offence, but not Luis Suarez who was arguably guilty of more serious misconduct, appears to be that in the Terry case there was a complaint to the Police. It was in fact from an off duty Police officer who witnessed the visual events on You Tube. In my view this is a nonsensical distinction. I would advocate that as regards football, the Police and the CPS reach an agreement with the FA as to how these matters are to be dealt with in  future. In my view they should dealt with within the game by the FA and via an IRC.
Terry was dealt with more leniently than Suarez http://gibbsbarrister.blogspot.co.uk/2012/01/suarez-end-of-saga.html. The rationale for this decision, with which I have no difficulty, is that Suarez was alleged to have repeated the offending racist words on a number of occasions over a period of time whereas Terry had used the offending and offensive phrase on just a single occasion. Suarez was banned for 8 games but fined significantly less. The IRC got it about right.
Should John Terry appeal to the FA Appeal Board. He has the right to do so, but I suspect that he will not. The Appeal Board could increase the sentence. It is highly unlikely that they would reverse the verdict.
Terry v Ferdinand

In any event John Terry cannot win. Even if some technicality could be found; lawyers are no doubt beavering away at this very moment, the court of public opinion has already decided. Terry should take his punishment with dignity and get on with his life, maybe even withdraw slightly from the public eye. After all Terry has already been cleared of being a racist. This was effectively established at the criminal trial and the FA have never sought to argue otherwise. He was indisputably provoked by the puerile conduct of Anton Ferdinand, who in any event claims that he did not even hear the offending words. Why is Ferdinand acting the victim? For my part Ferdinand should have been charged by the FA for his part in the affair. Patrice Evra should also have been charged by the FA for his part in the Suarez affair. It is time that this kind of juvenile, but nonetheless appalling abuse, was rooted out of the game.
John Terry could now man up and accept the verdict. The FA could then step up and get a real grip on the game and initiate a Respect Campaign with real vigour and real teeth. As part of that campaign they could address the cheating curse of diving as well. At the very least retrospective bans for blatant cheating would be a good starting point, but I digress.

Tuesday, 25 September 2012

Lockout! Nightmare Vision of a World without Referees

http://www.bbc.co.uk/sport/0/american-football/19712468

I was drawn to the BBC headline 'Touchdown Controversy Rocks NFL' and then watched the above clip with some bemusement/amusement. The clip features a 'Hail Mary' pass from Seattle Seahawks Quarterback.... intended for wide receiver Golden Tate (do they make these names up?). Hail Mary?That's a new one on me too, but I am imagining it bears a passing resemblance  to the miracle pass that Glenn Hoddle used to be famed for trying in my formative football years (well my 20s actually). Anyway my untrained eye saw Green Bay Packers defense Jennings catch the ball on an interception (no touch down!), but then find himself engulfed in a bundle of players and engaged in a wrestle for the ball. The umpires signalled 'touch down' or did they? One seemed to signal quite the opposite to the other. One initially got it right, but eventually both got it horribly wrong. Eventually with the 'assistance' of TV replays a touch down was (wrongly) awarded.
All good fun. However joking apart there are some mighty serious issues arising, not least in my view for player safety and control of the game.
Firstly this was a game deciding decision. The Seahawks won a game which they truly lost. It was played out before millions of viewers on Live Monday Night Football. The story is no longer the game, but the refereeing spectacle. Many feel NFL has become a laughing stock.
Why is this happening? 3 weeks into the NFL season the League is in dispute with the National Football League Referees Association (NFLRA). The referees are on strike and the NFL has drafted in referees from smaller conferences and are using 'elite retired college officials'.
The result has been carnage.

Yes or No?

The game's integrity is at stake. The billion dollar betting industry which surrounds the game is compromised.
The NFL has been forced to threaten players and coaches who 'intimidate' replacement officials.
Its all about dollars. The NFL pays its officials the least of the Big Four US Sports. Incredibly the officials are only part time. They officiate perhaps 20 games per annum. Most have alternative careers. The dispute is roughly over $2 million dollars per year, a drop in the ocean for the sport.
The NFL has been on the back foot over player safety issues. It has launched crackdowns on players and teams suspected of endangering the health and safety of other participants. The referees were intended to play a significant role in the protection of players. They have undergone concussion awareness training, are trained to identify concussion issues during games and to alert medical staff.
Suddenly the game is being policed by a second string at best.
The mistakes and embarrassments of these B Listers have become the story.
How long before mirth and ridicule turns to disaffection and fans reject the game.
What happens when a team misses out on end of season glory due to basic refereeing errors. Worse still, what if a player is seriously hurt or worse because the replacement referees lack the awareness or assertiveness to step in?
UPDATE 26.9.12
Unsurprisingly the NFL is scurrying to come to an accord and the word is that a deal (even provisional) will see 'regular referees' back in place for this Sunday's games (week 4). If ever a 'strike action' proved the value of the 'strikers' it is this occasion.

Thursday, 13 September 2012

HILLSBOROUGH

Epilogue 25.4.13
Lord Justice Goldring today announced that the Hillsborough fresh inquests will take place early in 2014. Finally justice is edging a little bit closer for the families of the 96 who died. There is a division between the families as to where the inquests should be held. A very difficult initial decision for the judge, but I know that he is a very good man who will do his best. Now is not the time for division.

Below is my piece about what happened according to the Independent Hillsborough Report.

Today 19th December 2012 the Attorney General will apply to the High Court to quash the original Inquest Verdicts in the cases of the Hillsborough 96. This is what the case is all about. A new inquest, years too late, is nonetheless an important step forward in the painful fight for true justice for those who lost their lives and for their families.
Fight For Justice
23 years ago 96 Liverpool football fans went to a football match. They did not return. Unbelievably their families have had to fight tirelessly to uncover the truth behind the events of that day.
I salute the tenacity of ordinary, but valiant and heroic parents and family members.
What is often forgotten is that many others were involved that day. They were either directly caught up in the horror, or witnesses to the unimaginable. Their lives were changed forever. A dear friend's brother's future was shattered that day.
On the 12th September 2012 the Independent Hillsborough Report was published. In stunning clarity, and following the most unbelievably thorough consideration of documents, it lays out the truth about the events of that day and the surrounding circumstances. The Panel has done the most splendid job. Its members have begun to right a wrong in our society.
These are my thoughts on some aspects of the report. I am still reading it and may be for some time to come.

Before.

I find it almost impossible to grasp that there were well documented problems with serious congestion and crushing injuries to fans at the Leppings Lane end of Hillsborough in 1981 before the semi final between Wolves and Spurs. An exit gate had to be opened to relieve the crush. Fans escaped onto the pitch through the small gates. At that time there were no 'pens' so sideways movement and dispersal was possible. Nonetheless the maximum capacity of the Terrace was significantly exceeded. South Yorkshire Police (SYP), though, did restrict access to the central tunnel. The Panel took note of documents from the period which showed that in 1981 crowd safety was 'compromised at every level' and the many deficiencies were well known.
In the aftermath SYP and SWFC argued about their responsibilities. Wednesday and their safety engineers resisted repeated SYP calls to reduce the capacity of the terrace. The pens were created in 1981 on the recommendation of SYP. Lateral movement was only possible thereafter via a small inadequate gate.
SWFC is severely criticised in the Report. SWFC's primary consideration was cost. Their own safety consultants had, to some extent, similar motivations.
Reports commissioned by the club show that the ground had failed to meet minimum standards under the Safety of Grounds Act 1975 since 1978. Additionally such inspections as there were by those charged locally with safety issues, were 'inadequate and poorly recorded'.
Hillsborough was extensively modified between 1981 and 1987. There were now 2 central pens accessed by the central tunnel under the West Stand. No revised safety certificate was ever issued and, illustratively, recommendations to feed fans to designated pens via specific turnstiles were rejected by SWFC on the grounds of cost. Consequently no statistical information was generated at the turnstiles as to the crowd distribution between pens to enable safe monitoring of numbers.
The Fire service had raised concerns about emergency evacuation provision. The only exit gates to the pitch perimeter were well below recommended standards.
The documentation suggests that SYP were preoccupied with crowd management issues, segregation of fans and prevention of disorder.  SWFC were motivated by limiting costs.
Key safety issues were not discussed at annual safety inspections.
Hillsborough was not used for semi finals thereafter until 1987, then 1988 and of course 1989.
Incredibly there were further issues of overcrowding at both the 1987 and 1988 events. The club denied at the time that there were any crowd related incidents on either occasion.
There was crushing at the 1988 semi final. The central gate to the Leppings Lane Terrace was closed to prevent further access to the central pens. Neither of these events was recorded in the SYP debriefing notes for that semi final and neither were the methods used to combat them. The closing of the central gate as a means of controlling access to the central pens at the 1989 event was not included in the SYP Operational Order.

15th April 1989.

This was a disaster waiting to happen.
The lessons of previous years had not been truthfully and faithfully documented, had been disregarded, or were simply blatantly ignored for reasons of cost and operational focus.
The stadium was a potential death trap and this was, or should have been, known.
The Police operation was focussed upon issues relating to crowd disorder, ticketless fans and in particular Liverpool fans. They were stigmatised by the Police whose mindset prioritised crowd control over safety, a standpoint that was particularly directed at Liverpool fans.
SYP replaced Chief Supt Brian Mole, its experienced Hillsborough Match Commander a month before the semi final. There is no explanation in the extensive documentation as to why he should be replaced by David Duckenfield at that sensitive time. Duckenfield had minimal experience of Hillsborough policing.
Both attended the planning meeting ahead of the event, but the Fire and Ambulance services did not. There is no explanation for this in the documentation.
The disaster was not the fault of the Liverpool fans. They had been allocated areas of the ground which constituted a documented 'bottle neck' and this presented in the words of the Panel 'a predictable and foreseeable risk of crushing injury'. The crush was not due to late arrivals or 'drunken fans', but to the inadequacy of the turnstiles to process the crowd safely.
The Panel ascribed the causes of the disaster to:
flaws in responding to the emerging crisis rooted in institutional tensions between organisations

policing and stewarding policy focussed on crowd disorder

failure to realise consequences of opening the exit gates to relieve congestion

failure to control and monitor allocation between the pens and failing to seal the central tunnel (as had been done successfully the previous year)

delay in realising that the nature of the crisis did not relate to disorder.

To their immense discredit, SYP Senior officers later denied knowledge of the 1988 tunnel closures. Subsequent to the tragedy officers on the ground made statements stating that their senior officers had ordered them to close the tunnel the previous year. Those officers were put under pressure and asked to amend their statements by the Force solicitors. Those officers who referred the 1988 'crushings' were asked to change their statements. To lie.

The only people that emerge with credit from this appalling disaster are the fans, the people who rushed to the aid of the stricken, and later the families, dignified but determined, and those who assisted them on the long journey towards the truth, including this Panel. It is a cliche, but they ultimately did not 'Walk Alone'.

Now 12.10.12
Justice for the 96 moved a step closer today when the Independent Police Complaints Commission announced a wide ranging enquiry, as a direct result of the Independent Hillsborough Panel Report, into the actions of Police officers on the fatefulday, during the various investigations which followed and in their alleged attempts to hide or distort the truth. There are many uncomfortable questions. Those officers who failed the families and society cannot be allowed to slink away into early retirement without final accountability where justified.

Sunday, 9 September 2012

Blade Runner's Downward Spiral

Newsflash 14.2.13
Staggering news emerging from South Africa. Oscar Pistorius the 'Blade Runner' has been arrestedon suspicion of murder this morning at his home address after allegedly shooting his model girlfriend in the head and arm and killing her. A pistol was recovered at the scene. There has been some speculation this morning that the Sporting Icon and national hero may have mistaken his girlfriend for a burglar. South Africa is much troubled by crime, but it too premature to really have any firm idea of what happened.  Pistorius will appear before a court this morning.
Further Update 17.2.13
A surprising amount of detail is leaking out about the events surrounding the death of Reeva Steenkamp. South African Police (SAPS) do not seem reticent in making their case (premeditated murder) to the media. It is now clear that the evidence does not support any proposition that Pistorius believed there was an intruder. We don't need to go into the evidential details here.
 I have been waiting for the first suggestion that Pistorius' actions might be linked to steroid abuse. Tonight there were the first whispers. Of course there is no such evidence. However there are evident and well known side effects of such abuse and Pistorius was under the most unbelievable pressure to continue to improve. He hoped to reach the final of the able bodied 400m at the Commonwealth Games in 2014 and was training hard for this year's able bodied World Championships. Pistorius was earning something like £5m fron his commercial deals with Nike etc. The stories of gun obsession and paranoia about security, even whilst living in a high security gated community, can only fuel such speculation. It is not surprising that some might attempt to make such a case , but of course there is nothing to prove any such thing. Pistorius of course, has never failed any drug test.
As for Nike, this is another PR disaster through their association with a sporting superstar on the back of Woods and Armstrong. Surely the linking of Pistorius with guns ('The bullet in the chamber' advert which has been swiftly withdrawn) was in poor taste and even tempting fate.
The Paralympics
The Paralympics ended today - it was quite simply a triumph.
There were a couple of controversies, but few moments of genuine discomfort. Emotions ran high occasionally and sometimes in the heat of the moment stuff got said - it was sport of the highest order.
I thought I would just consider one interesting aspect, the debate over the length of blades used in the athletic events.
After Oscar Pistorius was, perhaps surprisingly, beaten in the T44 200m final by Alan Oliveira of Brazil, he complained bitterly about his opponent's blades, suggesting that Oliveira had crucially and unfairly increased his stride length. It is right to say that he had also raised the issue in advance of the race. Nonetheless this was a side to Pistorius at odds with his public image as the pin up boy of both Paralympism and the Olympics.
So were Oliveira's blades too long as claimed? Simple answer 'no'. There is a complicated procedure used by the International Paralympic Committee in order to arrive at the maximum height that a competitor may stand in his blades. It involves measuring certain parts of the body which allow a calculation of what the true height of the athlete should be.
Do longer blades equate to improved performance? Again there is much debate on the subject, but interestingly this was the subject of Pistorius' appearance before the Court of Arbitration for Sport in 2007. Generally longer blades produce a faster finish, this is because longer blades store more 'elastic energy' permitting speed to be maintained by the athlete whilst less energy is dispersed. The downside is that the start of the race is slower and reaching top speed requires greater energy.

Striding Forward

At CAS Pistorius was seeking to overturn the ban by the IAAF against his participation in able bodied events. IAAF scientists proved that at full speed he used less energy than able bodied athletes. This would clearly be unfair. However the ban was overturned because Pistorius showed that these arguments did not take account of his disadvantage in the early stages of the race and in achieving full speed. CAS concluded that there was insufficient evidence to show that he had an unfair advantage overall.
It is interesting to note that Oliveira took more strides (98 - 92) to cover the distance than Pistorius, a statisitic of itself which destroyed Oscar's complaints. Oliveira had a faster leg turnover than the South African.
In any event there is nothing to stop Oscar changing his blades for Paralympic events, provided they are within the recognised limits, but he could not use these new blades in able bodied competition because CAS only approved his participation using the particular blades which were the subject of the tests and the ruling. CAS was not giving Pistorius a general green light. It would be extremely difficult nonetheless for Pistorius or anybody else for that matter, to switch 'equipment' between different the types of competition.
The future may involve an ever more scientific approach to Paralympic running events, rather like Formula 1, the best equipment will probably prevail. This presents something of an ethical dilemma.

Friday, 7 September 2012

Barton as 'Useless Makeweight' - Instant Karma


I could write a whole blog just about Joseph Barton, not an overly flattering one either. Just a few short months ago I debated the latest piece of lunacy from Barton http://gibbsbarrister.blogspot.co.uk/2012/05/no-sporting-chance.html  His attack upon, inter alia, Sergio Aguero, in the critical end of season game between QPR, battling relegation, and Man City chasing, ultimately successfully, the title, led to his expulsion from the field of play and eventually a 12 match ban from the FA (4 matches for a second red card that season,  a consecutive 4 matches for his cowardly attack on Aguero and a further 4 matches for attempting to head butt Vincent Kompany). Unbelievably Barton denied the Kompany allegation. The footage did not lie but who was advising Barton? Was he listening? 
The FA subsequently took no action in respect  of Barton's  ugly twitter rants which followed. Nonetheless the ban is one of the longest in FA history. The Chairman of the Regulatory Commission stated 'There are rules of conduct that should be adhered to, and such behaviour tarnishes the image of football in this country, particularly as this match was the pinnacle of the domestic season and watched by millions around the globe'.

Ouch! 12 games
Focus then  reshifted  to QPR. What would they do about a player who would not be available for almost a quarter of next season  and one who had brought disgrace upon himself, but also the club?
After considering numerous options, including sacking him for 'gross misconduct', and attempts to off load him into the Football Conference proved untenable, QPR achieved something of a triumph out of adversity.
Taking advantage of another club's difficulties, QPR managed to negotiate the purchase of midfielder Stephane Mbia from Olympique Marseille, whilst simultaneously loaning their number one problem to the French club. The French club clearly needed to offload Mbia, Barton was the 'contrainte economique' to achieve it.
So QPR get at least some of Barton's reported £80k per week salary off the books, and acquire a 26 yr old Cameroonian international who can play in central defence or midfield, what did Marseille get?
Stunningly it appears that OM always knew that the English ban (12 games) was likely to carry over into France. On Thursday the French Federation confirmed that Barton's ban would apply there as requested by the English FA, pursuant to Article 12 of the FIFA Transfer Regulations. What a nonsense if it did not!

Makeweight

Marseille therefore acquired a player that they cannot use in 8 Ligue 1 games and one Champions League games (Barton has already served 3 games of his ban). It appears that Barton was acquired on the insistence of OM President Vincent Labrune in order to ensure the Mbia deal. Although OM Coach Elie Baup rates Barton, there is no way he would have chosen to have an unavailable player as part of his plans.
It appears that Joseph will have plenty of time for tourism, but will have to get used to being an irrelevance in playing terms. justice after all?

'

Tuesday, 4 September 2012

The Sporting Law Book for Girls


This piece appears courtesy of top lawyer and friend Felicity Gerry.

In the front of  'The Daring Book for Girls' by Andrea Buchanan and Miriam Peskowitz there is a list entitled “The Daring Girl’s Guide to Danger”. It reads “Facing your fears can be a rewarding experience and pushing yourself to new heights will inspire you to face challenges throughout life”. What follows is a checklist of “danger and daring” which includes riding a roller coaster, going white water rafting, dyeing your hair purple and standing up for yourself – or someone else”. There are some things girls can do right away, some they will have to work up to.


 This year, 'daring girls and women' made the world stop and take notice as they achieved triumph after triumph in sport at London 2012 Olympic and Paralympic  Games. The challenge is to maintain the momentum and to make sure that  there is fairness in global sport and global sports law
Equality and the power of sport was truly reflected in the smiles of 13 year old paralympian Maddison Elliott when she won a bronze medal in the 400 metre freestyle. Her smiles lit up the poolside. The Sydney Morning Herald reported Maddison saying: "This morning I did a massive PB which was a 19-second PB and I just wanted to get into the final just to do another PB, and it's just amazing to get a bronze medal at the age of 13 at my first Paralympics”.
London 2012 Olympic and Paralympic Games really have been wonderful but it has been a particularly fantastic leap for sporting women and girls. The development of global sports law provides an opportunity for a process that is not fettered by the potentially discriminatory rules of any one national state, but creates a transnational legal order with sufficient principles of substantive and procedural justice that allows for fairness in adjudication on all sorts of sporting issues. As Ken Foster, Research Associate at the University of Westminster argued in a recent paper “The growth of global sports governance, and in particular the expansion of lex sportive through the jurisprudence of CAS is of special interest to legal theorists who see it as a regulatory regime juridifying into a form of transnational law outside the review of national courts”.
 If such a global legal system is possible then the hope for equality on so many stages exists.
It is 40 years since the US Federal Government’s Title IX Education Amendments were made into law. Title IX states: “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”. It allowed for female sporting championships and, like many other countries, has led to the rise of remarkable women. Names such as Nadia Com─âneci, Olga Korbut and Florence Griffith Joyner have inspired the generation of young women proving their abilities this summer. 
For team GB there were so many firsts: In boxing, Nicola Adams, won the first ever boxing gold for women in the Olympics. In Track cycling, Laura Trott won 2 golds in her first games. In the cycling road race, Lizzie Armisted won the first medal for GB in Olympic women’s cycling. No one will ever forget Gemma Gibbons’ silver medal in the women's judo which takes second place only to the clash between Victoria Arlen and Ellie Simmonds in the Paralympic swimming.

Inspiration

 The protection for these women in the world of sport flows from the global regime of sporting governance, the characteristics of which are summarised by Ken Foster as follows:
· It is rule based and considered binding, by contractual acceptance by the participants with characteristics that can be equated with law
· It has a mechanism for alternative dispute resolution through arbitration that is binding
· It has a non- state regulatory system of governance, described by some writers as transnational private regulation, through its pyramid structure consisting of the IOC, international federations and national federations
· With its anti doping rules administered by WADA, it is an interesting example of governance by a hybrid institution in which public elements, such as governments, and private interests are mixed
· It claims to be immune from challenge by national courts and thus it is therefore a system of private transnational law beyond state control
What we have therefore is the development of a global system of governance which is known as sports law but has much more to do with principles of rule making. Bodies such as the IOC are, in effect, exercising a form of Governmental power without using existing laws from any particular nation state but founding the rules on fairness.
This sporting year there were also a couple of triumphant lasts: Sarah Attar, the first Saudi Arabian woman in Olympic track and field finished last in 800m heat, but attracted a standing ovation as she crossed the finish line as did her fellow Saudi Arabian Judoka Wojdan Shaherkani who made history as the first Saudi Arabian female to compete at the Olympics. For many, this demonstrated the power of the IOC to compel international cooperation. Others have called for a system of accountability. 
As Uncle Ben in Spiderman said “with great power comes great responsibility”. 

Sarah Attar Breaking Through

Whatever the future for global sports law and however it will be challenged and regulated, it is a fascinating debate which is not just academic. It is the start of something which can be even greater than Jessica Ennis’ win in the heptathlon. Here’s hoping that the world’s acceptance of women’s’ sporting greatness can lead to a global legal order based on equality and fairness so that Maddison Elliot can make us smile for generations to come and future girls can aim for more than a PB.
Felicity Gerry is a barrister at 36 Bedford Row, London. She has successfully represented professionals in criminal and disciplinary proceedings. This has included sportsmen, lawyers, doctors, teachers, a pharmacist and a taxidermist. In 2012 she was also part of a team providing on call legal advice & assistance to LOCOG in relation to sports law including defamation/ privacy issues

Felicity Gerry

UKChambers website: www.36bedfordrow.co.uk