Knowing the Score in Sports Law: Tackling Doping and Transfer Day
From doping to subtle product placing in social media posts, sports law is a field in the legal sector which is just as vast as it is interesting. How should we fight against doping in sports; what should athletes be aware of when signing an agreement with popular sports brands, and how does the law embrace transfer day? The law plays a pinnacle role in every movement in sports and so we speak with expert Jan Kleiner who reveals precautions media companies, athletes, and lawyers must consider in order to score well for their team and its fans.
Doping is often a hot topic when nearing any big sporting event; what do you often advise your clients on, regarding precautions and dealing with doping accusations?
The fight against doping is of course still one of the key issues of professional sports. We all love a true competition of honest athletes – ultimately, this is why we are passionate about sports.
The most important advice to give to athletes as a lawyer, however, is not only to be an honest sportsman and sportswoman, but also to be careful and diligent. In my experience, it is crucial that athletes are fully aware of the regulatory framework, in particular of the fact that as a principle, each athlete is responsible for whatever enters his/her body. Although this legal principle is, as such, widely known, clients need to be aware of all the resulting obligations and requirements also from a practical perspective. Indeed, a conviction for a doping offence can also result from a lack of diligence and/or a lack of knowledge of certain factual obligations.
In particular, utmost caution is required from an athlete and his/her entire team when it comes to nutrition, nutritional supplements, medicine, etc. Nowadays, many international athletes have a very strong team around them, which takes care of all such matters. Nevertheless, as experience shows, mistakes may still happen. It may then be up to an athlete to demonstrate all the aspects of their “doping control regime”, i.e. to show which precautionary measures they took, how everything was documented, what nutrition they consumed, how qualified their support personnel was, etc. – all of this may create a significant administrative burden, but it all serves as a general precautionary measure to mitigate risks in possible proceedings.
How does contract negotiation differ in sports law, in comparison to traditional corporate law contracts?
One of the key elements of contract negotiation, in particular in football, is time pressure: due to the so-called “registration periods” (transfer windows), there are very strict time-limits within which negotiations have to be successfully concluded, in particular in what concerns transfer agreements between football clubs and employment contracts of football players. In addition, for reasons of strategy or negotiation tactics, intermediaries, players or clubs may want to wait until a very late moment within such periods to actually enter into negotiations. All of this often increases time pressure significantly, but it also makes contract negotiation challenging and interesting in sports law, and football in particular.
At the same time, particular attention must be given to careful drafting, as experience shows that many disputes in a sporting context result from pure drafting matters. Moreover, one must always remain aware that the legal and regulatory framework for contract drafting consists not solely of national state laws. Sports regulations may set additional limits to the contractual freedom of parties, which all must be taken into account.
What are common issues you find yourself advising media companies on regarding sports law?
Currently, one of the most important issues that media companies need to address is the entry into force of the European General Data Protection Regulation (GDPR) on 25 May 2018. In particular, since the geographical scope of application of the GDPR may, de facto, reach well beyond the European Union, it is highly relevant also for sports stakeholders domiciled, for example, in Switzerland.
In particular, the importance of data continuously grows also in a sports and media context, just as in any other business sector. For instance, in a sporting context, data is used for various purposes, which can range from a performance analysis to the establishment of detailed databases about athletes or players. Data is also used to predict the sporting development of young talents or to monitor the health of athletes, e.g. to track blood pressure, to establish and control training routines or to monitor the recovery from injuries. Not least, also in the context of the fight against doping or match-fixing, vast amounts of data are processed and used on a worldwide level.
All of these data may very likely qualify as “personal data” or even “special categories” of data within the meaning of the GDPR. Therefore, with the entry into force of the GDPR, important new legal obligations arise in a sports and media context. All stakeholders are well advised to ensure compliance with these requirements, not least because of the threat of heavy sanctions in case of breach of GDPR requirements.
With social media being so much more prevalent in society, have you noticed any progressive issues arising with athletes, especially when being brand ambassadors or involved with sponsors? How should these issues be dealt with?
A current trend of society is certainly that much more attention is given to the presence of athletes on social media. This increases the importance of athletes as role models for youngsters. At the same time, it can also be an opportunity from a marketing perspective thanks to the increased visibility of an athlete. However, athletes are also well advised to be careful about their presence and activities in social media, since every detail is nowadays being scrutinised by the media.
When it comes to contracts as brand ambassadors or general sponsoring agreements, involving certain activities on social media, we certainly observe a trend to increased professionalism. Agreements of this type are drafted at a high level of detail, and many obligations are being imposed on athletes. While detailed and careful drafting will often provide more certainty and stability in the contractual relationship, athletes are well advised to seek legal counsel before signing such agreements, to be aware of the ensuing obligations.
JAN KLEINER
Partner
jan.kleiner@kleiner-cavaliero.com
Dr. Jan Kleiner is one of the founding Partners at Kleiner & Cavaliero, a law firm domiciled in Zurich, Switzerland.
Jan Kleiner obtained his law degree from the University of Zurich in 2005 (magna cum laude). In 2012, he graduated as a Global Executive master’s in international Sports Law from the Instituto Superior de Derecho y Economia in Madrid, Spain (summa cum laude). In 2013, he obtained his doctorate in law (Dr. iur.) from the University of Zurich (summa cum laude), receiving the Prix ASDS for the best sports law thesis in Switzerland for the years 2013/2014.
Previously, Jan Kleiner had worked for the Union des Associations Européennes de Football (UEFA) and the Fédération Internationale de Football Association (FIFA). In that function, he was responsible for the handling of employment-related disputes, disputes related to solidarity contribution, training compensation and international transfers. In addition, he was in charge of handling disputes in front of the Court of Arbitration for Sport (CAS).
Jan Kleiner is also a lecturer in international sports law at the University of Zurich and in several other national and international master programmes in sports law. He regularly publishes articles and books on national and international sports law and on media, entertainment and data protection matters.
Finally, Jan Kleiner acts as Arbitrator at the German Institute of Arbitration (Sports Law and Anti-Doping Matters) and as Arbitration and Mediation Panel Member at Sports Resolutions UK, and he is the President and Chairman of the Board of the ISDE Sports Law Alumni (ISDE SLA).
Kleiner & Cavaliero provides comprehensive legal services and advice to all stakeholders in the sports, media and entertainment industry, such as clubs, federations, athletes, coaches, sponsors, event organisers, broadcasters, image right companies, agencies and intermediaries. The firm has a particular focus on sports litigation and party representation in front of the Court of Arbitration for Sport (CAS), the Swiss Federal Supreme Court and decision-making bodies of international sports federations. Kleiner & Cavaliero is also very active in the media and entertainment industry, with a special focus on data protection matters in sport.
