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 Comăneci, 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

Getting Pulses Racing - The Boost

I sat in the Sun in Spain thinking ahead to the noble efforts of our Paralympians. I tried to put myself in their heads and bodies. I know that I have an awful lot to learn and think about over the course of the forthcoming Games. I think this comment applies to many of us, and to a large extent to the media as well, particularly in terms of thier portrayal of the competitors. Then again, this is the main point of the Paralympics, to educate and change attitudes.
Suddenly though I became aware of the intense and disturbing reality of the spectre of competition even at this most noble of events. Having read other blog posts including Kev Carpenter's I know I am not alone in feeling discomforted and uneasy.
Various articles and surveys have brought to my consciousness the practice of 'boosting'. Athletes with spinal injuries are unable to naturally produce the physical benefits of intense physical activity that able bodied athletes can. For those with severe spinal injuries blood pressure does not ordinarily increase during competition. It has become apparent that many Paralympians sought to circumvent this dilemma by artificially creating this blood pressure rise. They do this by inflicting pain upon themselves, often in grotesque and extreme ways. Whilst they are not able to sense the pain, their bodies do react to it and their blood pressure is consequently increased. Research in 2009 suggested that between one fifth and one third of such athletes utilised this method of performance enhancement. It is called 'boosting'.
Boosting takes many forms. They are mostly eye watering, but bear in mind that the relevant athlete is immune to the direct physical sensations. Athletes have broken (had broken?) toes, inserted implements into limbs, blocked their catheters or even manipulated their private parts! No wonder a lady on the Radio 5 with a disabled daughter just stated that the Paralympics is not real life.
The technical name for this process is 'voluntarily induced autonomic dysreflexia'. It is, sad to say, essentially a form of cheating.
It is a difficult area to Police. The phenomenon can be caused naturally by infection, a blocked tube and other such mishaps of every day disabled life. Tests can be carried out on athletes in advance of the event and if there sistolic rates are outside normal parameters for a person at rest they can be withdrawn from the event unless there is medical evidence to support the athlete having hypertension at rest  Those caught would face disqualification from their event, and perhaps a degree of dishonour, but would not be subject to any further ban, so deterrent is a major issue. WADA has kept its distance. It is not doping.
Unfortunately those who feel themselves driven to these lengths to gain an advantage are risking severe health consequences and even death. Possible outcomes range from the relatively minor such as headaches, blurred vision and breathlessness to stroke, heart attack or brain haemorrhage. Boosters claim that they are disadvantaged by the event classifications vis a vis other potential competitors. Blood pressure and heart rates are not currently considered in the classification process, thus encouraging their artificial stimulation in order to gain an advantage, or simply to level the playing field. The International Paralympic Committee has stated that it has no plans to introduce these elements to the classification process.
However uplifting and inspiring the Paralympics prove to be, the spectre of a serious incident, even a fatality, remains a troubling potential outcome.

RIO 2012

The FA has today announced that Rio Ferdinand has lost his case before the FA Regulatory Commission conducted in secret last week and presided over by Blondel Thompson.
Ferdinand was found to be in breach of FA Rule E3(1) failure to act in the best interests of the game and using insulting words or behaviour. The offence was aggravated by his breach of E3 (2) which includes references to a person's colour or race.
The offence arose the day after the conclusion of the John Terry criminal trial. Ashley Cole had appeared as a defence witness for Terry. Ferdinand clearly felt that Cole had assisted Terry who was acquitted.

End of Campaigning

The following day an individual with the Twitter ID @CarltonEbanks tweeted:
"@rioferdy5 looks like Ashley Cole's going to be their choc ice. Then again he's always been a sell out. shame on him".
Unfortunately Ferdinand was unwise enough to endorse the sentiments
"@CarltonEbanks I hear you fella! Choc ice is classic hahahahaha!!"
This has cost Ferdinand £45,000 and damaged his reputation. Ferdinand had denied the charge and given an explanation which was rejected out of hand by the Commission.
Lord Herman Ouseley gave evidence by telephone that the term 'choc ice' was 'an offensive and insulting term ...used to question a person's identity, based on the notion that they have a dark outer skin but inside they act as a white person".
The penalty is doubled by the finding against him for the aggravated element, the starting point being based upon considerations of Ferdinand's net salary, but the amount was reduced by 25% to reflect quite compelling mitigation. This was Ferdinand's first offence. He has used a Twitter account for 2 years and sent almost 10,000 tweets without troubling the FA. He has used Twitter to publicise his charitable foundation and had previously been a 'Poster boy' for the FA. Ferdinand has a record of fronting anti racism campaigns.
The FA were not accusing Ferdinand of being a racist. He was being insulting by use of reference to race or colour. Nonetheless I dont think Rio will be fronting too many campaigns in the near future.

Rio is not appealing the decision

Field of Play

The traditional view of sport's arbitrators is that decisions relating to the 'field of play' ie relating to the technical rules of the game are not subject to review. In other words, essentially the umpires decision is final. The Court of Arbitration for Sport recognises the concept of 'subsidiarity' ie the principle of devolving decision making to the lowest practical level. Umpires are far better qualified and placed to make decisions about the game than arbitrators who do not necessarily share the same level of expertise in relation to that particular sport. Umpires will inevitably make mistakes, or give rulings based upon their line of sight or position on the field of play. The contractual position of the participant is that he can expect to receive honest decisions from officials, but not always the correct ones.
In order for decisions to be reviewed there must be some evidence of lack of good faith or arbitrariness on the part of match officials. This is a high hurdle to overcome. There must be evidence of a lack of impartiality or prejudice on the part of the official.
These principles have been brought into fresh relief by the recently ended and much missed London 2012 Olympic Games. There were 2 particular appeals which caught my attention.
The first concerned the Women's Triathlon 'dead heat'. Having considered the remarkable need for a photo finish in such a long distance event, the gold medal was awarded to Nicols Spirig of Switzerland. The winning margin was deemed to be 15cms. Both athletes were given the same time. The Swedish athlete Lisa Norden appealed firstly to the International Triathlon Union (ITU) and subsequently to CAS. Both appeals failed. The Swedish argument was that the considerations relating to the decision making process with regard to determining the winner were flawed. In essence Sweden claimed that the Swede's torso had in fact crossed the line at least at the same time as the Swiss. An element of doubt had been introduced by the failure of a second back up camera. Part of Norden's torso was not visible as a result. Sweden claimed that this constituted a violation of or a failure to apply the rules rather than a 'field of play' decision. They argued that Norden should also get a gold medal. CAS disagreed finding that the decision was indeed a field of play decision and there was no breach of any rule. Norden did not really come close to overturning the original decision.

Hair's Breadth

However the second case presents more difficulty.
South Korean fencer Shin A Lam stood on the verge of Olympic Glory. In the Women's Epee semi final the clock was stopped with one second to go. She was leading. She had to resist for one second when play resumed and she was in the final. The umpire signalled for play to resume, but the clock did not restart. Profiting from the extra time the German Britta Heidemann scored the decisive point to 'defeat' Shin. It transpired that the time keeper was a 15 year old British volunteer. It was his error.
Shin protested. She was required to remain on the piste to indicate that she was not accepting the decision. Her 'appeal' was overruled. Shin then refused to leave the piste and was eventually removed by security officials.
I wonder whether the German ever considered refusing the victory a la Mats Wilander? *
Shin was so upset that she crashed out in the bronze medal match and ended up with nothing.
Is this really a 'field of play' decision? Is it so gross that arbitrators should intervene? Shin clearly won, in fact had won, but play had continued, no doubt distracting Shin. Additionally she clearly had a right to expect that the time keeper would be a qualified adult, this was after all the Olympic Games! Arbitrariness???
The IOC, clearly embarrassed by this state of affairs, offered Shin a consolation medal. Quite rightly she declined. What she should have had was the chance to contest the gold medal.
The only silver lining was that Shin was able to regroup and earn a silver in the team competition.

Justice Denied?

* Mats Wilander declined to accept victory in the French Open Final 1982 because he believed that a call against his opponent, Jose Luis Clerc, on match point, was incorrect. He insisted that the point be replayed even though the match had been called in his favour. Wilander still won, but with total honour.

Golden Girls

Happiness is ....#Legacy

Enduring a Non Mishap and Not Taking a Dive

Its cheating I am afraid and taints the British team's Gold and 5th gold medal for Sir Chris Hoy. Team GB broke the World Record in beating France comfortably in the Men's team Sprint. France do not dispute that the best team won. However one of Team GB, Philip Hindes (a Plastic Brit?) admitted that he had deliberately crashed during the heats in order to obtain a restart of the race.

A Dive 

It emerged that the UCI rules are poorly drafted. Team's are given a restart in the event of a 'mishap'. What constitutes a mishap has not been defined. It is generally understood to mean 'a mechanical failure' and the rule was not intended to cover a situation where a competitor throws himself to the track deliberately. In the absence of a clear definition France were unable to challenge the situation. They accepted British superiority and merely called for a much needed rule change in future. Nonetheless they were able to rightly state that the actions of Hindes were a 'poor example of the Olympic Spirit'.
One can only imagine the uproar if this action had deprived Team GB (Sir Chris?) of a Home Gold medal. We cannot demand the highest values of others and deplore the actions of, for instance, the disqualified badminton players, and yet condone the actions of Hindes.
UPDATE 31.8.12
More controversy today at Paralympics over the unfortunate 'mishap rule'. Team GB's Jody Cundy a gold medal prospect in the 1km Pursuit exited the start gate and his rear wheel appeared to slip. Cundy immediately raised his hand to request a restart, but to his horror, his request was denied and his race was over. Cundy did not throw himself to the ground, as Hindes had done, whether to highlight his 'mishap' or to ensure a mishap. Officials considered that Cundy had made an error and had suffered a 'mishap'. Frankly the rule is so open to interpretation that it is bonkers! Cundy behaved badly afterwards. He berated officials, swore at them and briefly let himself down badly. Recovering he apologised to the crowd and promised to return for further events tomorrow. I cannot condone the behaviour, but I like a good apology. 4 years preparation up in smoke without a proper race is pretty good mitigation in my book.

Cock and Bull

I blame the organisers first and foremost. Fancy devising a tournament system (implemented for the first time at this particular Olympics) which not only encourages teams to play to lose, but actually rewards them for it making it easier to ultimately win gold! Aussie Coach Lasse Bundgaard ws quoted as saying 'If you can win a medal by losing, but not by winning, that's not a good situation to be in'.
Badminton has been part of the Olympics since its exhibition in 1972 at Munich and has caused few waves and generated little attention ever since amongst the wider sporting fraternity. I did not expect to be blogging about an event which only featured 16 entrants (the Women's Doubles). A quarter of those entrants are now disqualified. Badminton World Federation (BWF) did court controversy last year by seeking to implement a rule change which required female players to wear skirts (an idea lifted from something similar in Beach Volleyball and the 'Sepp Blatter school of sexual politics' - see also Horse Guard's Affair ). Unsurprisingly female players revolted and it did not happen. Otherwise they have flown under the media scrutiny radar.
Until now. Apparently the sport is rife with manipulation. Not for match fixing in the betting sense. Very little money has ever been wagered on Badminton according to William Hill. At Athens in 2004 before the Women's Singles contest between 2 Chinese competitors, the Chinese Head Coach admitted instructing one of them to lose to the other. He reasoned that the other one had a better chance of beating their non Chinese final opponent. They did.
Chinese Weibo (Twitter equivalent) users were in essence asked this week the question 'Is it more important for us to ensure a gold winning opportunity or to protect China's image and to spread the Olympic Spirit? ' 70% of responses supported the actions of the players at London 2012. Those actions by 4 doubles teams (1 x Chinese,  2 x S.Korean and 1 x Indonesian) were to deliberately try to lose in order to play less fancied opponents in the knockout round. They were roundly booed by the crowd.

Black Card

BWF did not hesitate. They charged all 8 players with 'not using their best efforts to win' and 'conducting themselves in a manner that is clearly abusive or detrimental to the sport'. Does anybody disagree that trying to lose fits the bill. All 8 were disqualified from the competition and replaced by those who finished in 3rd place in the group stage.
Is this an overreaction as some have suggested? It is argued that what they were in fact attempting to do was to win by losing. Other comparable issues have been raised such as resting players to better prepare for the next stage and playing for a draw. Indeed the recent BBC drama 'Bert and Dickie' suggested that British rowers and their competitors had done a similar thing in the 1948 Olympics i order to reach the final by an elongated route. The ruse, seeking to qualify via the repercharge rather than directly did not succeed, although the British team did nonetheless win the gold.
I am not interested in other wrongs. The Olympic Games is about glory and competing. The actions of the Badminton players were not glorious and were not about competing. Any proportionate sanction which can preserve the ethos of the Games is to be welcomed and applauded. This blog salutes the BWF.