Understand Your Rights. Solve Your Legal Problems
Retired Supreme Court Justice John Paul Stevens said Supreme Court nominee Brett Kavanaugh does not belong on the nation's highest court.
Sporting Lisbon recently demanded compensation for players who terminated their contracts then signed elsewhere. Below David Rogers, a Senior Manager at Moore Stephens, delves into the intricate world of sports disputes, taking point from the Sporting Lisbon precedent and stressing the importance of good advice in similar legal disagreements.
In the world of football, when a player signs a contract with a club this gives the club the right to the player’s services for the length of their contract. In normal circumstances, players move between clubs either when another club pays a transfer fee to buy them out of their contract or for free when the contract expires, but other reasons for contracts ending can result in disputes and the requirement to pay compensation.
If clubs are unfairly losing out on a player’s service that they are contracted to receive, then compensation could be due. The amount of this is not dictated by mathematical formula but can depend on a number of factors, including consideration of the length of contract remaining, transfer fees and other costs paid, including salary by the club that the player has left unlawfully, and any further expenditure to be incurred on the player in question.
In May 2018 as a result of an attack by fans at their training ground, nine Sporting Lisbon players terminated their contracts, citing ‘just cause’.
Sporting Lisbon have reported three of these players, who have now joined other clubs, to FIFA and are now demanding compensation of up to €197million (£175million) in relation to them. They demand €57million (£50million) for Rui Patricio, the Portugal goalkeeper, who joined Premier League newcomers Wolves, €100million (£89million) for Atletico Madrid winger Gelson Martins, and €30-40million (£27m-£36million) for Olympiakos winger Daniel Podence. Sporting Lisbon have said that the Court of Arbitration for Sport (Cas) will decide whether to side with them or with the players.
Among the other players to terminate their contracts, Real Betis paid Sporting Lisbon €20million (£18million) in compensation to sign midfielder William Carvalho, and Bruno Fernandes rejoined Sporting Lisbon.
As well as termination of contracts, failure to abide by contracts is another cause of disputes. Loan moves with the option of signing a player on a permanent basis at the end of the loan term is becoming an increasingly common transaction in football. However, there are also instances of loan moves with a compulsory agreement to buy at the conclusion of the loan. This was the case with Ricardo Alvarez’s loan move from Inter Milan to Sunderland in 2015. After an unsuccessful loan spell, Sunderland declined to sign Alvarez on a permanent basis, despite the original agreement containing a clause that guaranteed Sunderland would have to pay £9million to make the move permanent should they avoid relegation. As such the Court of Arbitration for Sport ordered Sunderland to pay more than £9million for a player they never owned.
Compensation payments do not just apply to signing players, they can apply to managers too. Watford reported Everton to the Premier League and are pursuing compensation over an ‘illegal’ approach for then-manager Marco Silva in the first half of the 2015/16 season. After the approach, Silva was sacked as Watford manager with the club citing the approach as ‘the catalyst’ and Silva became manager of Everton on 1 June 2018.
Everton was understood to be willing to pay approximately £10million in compensation for Silva and the two clubs went through a failed mediation process. Watford are still pursuing disciplinary action, but as they did not follow the proposed arbitration process, a compensation payment is now unlikely.
Contractual disputes and compensation are not limited to football. In 2016, Denny Solomona retired from rugby league side Castleford Tigers, despite having two years left on his contract, only to join Rugby Union side Sale Sharks. Castleford Tigers took legal action, suing for damages against Sale Sharks, Solomona and his agent at the High Court in Leeds. This resulted in a settlement in the region of £200,000 in 2017.
With an increased movement of players, an increasing presence of agents and the sheer amount of money at stake, disputes of this nature are on the rise along with the values associated with them. It is therefore important for clubs to have skilled advisors to help them navigate these types of disputes.
An alarming 85% of interviewers have admitted asking off limits questions during the interview process, new research by UK science and technology recruitment specialists, Hyper Recruitment Solutions (HRS) has revealed.
The research also unveiled confusion among hiring managers over what can and cannot be asked, with nearly half (47%) saying they have never had official training on what questions to ask in an interview.
The findings highlight a lack of interview training among those responsible for hiring staff. Just a third (36%) of those at a junior level of responsibility said they had received training, compared to 56% of those at director level and 72% of business owners.
The Apprentice winner Ricky Martin, who set up his own recruitment firm (HRS) after winning the reality TV show in 2012, called on Britain’s bosses to sharpen up their act when it comes to interviews - to give all applicants an equal chance.
He said: “It’s pretty shocking to unearth that such practices are happening every day in the hiring process. It is imperative British bosses are educated on work place practice, to put a stop to such shocking interview practices which lead to unprecedented inequality.
“Official training should be mandatory across all business sectors for anyone involved in the process of interviewing prospective candidates.
“It’s also really important a light is shone on what is and isn’t acceptable in the recruitment process to give prospective employees the best possible chance of success at the interview stage.”
Over three-quarters (77%) of interviewers surveyed said they do not think it is potentially illegal to ask, ‘Are you planning on going on maternity / paternity leave?’ with 40% thinking the question is acceptable and 36% thinking it is inappropriate – but not potentially illegal.
Such questions have the potential to breach the law, which requires potential employers to treat all candidates fairly and could be seen as discriminatory.
However, 42% of male hiring managers think it is an ‘acceptable’ question compared to 24% of female hiring chiefs.
From an employee point of view, the survey went on to show that one in five (19%) feel they have been mistreated in an interview. And, of those, 48% tried to ignore it, 34% told the interviewer how they felt, 19% walked out and just 17% made a complaint to the hiring company.
Twenty-three per cent of men and 16% of women said they had felt mistreated in an interview, with twice as many men (43%) as women (22%) telling the interviewer how they felt.
Mr Martin continued: “This research isn’t about suggesting the recruitment process is made easy for interviewees, but ensuring all prospective employees are given a fair and honest opportunity to secure a job based on their skills and ability not their gender, personal choices or maternity/paternity choices!”
(Source: Hyper Recruitment Solutions)
As a law student you may well have had feedback on assignments asking you to “explain your reasoning”, “add in more analysis and evaluation” or even “be more critical”. What this means is that your marker is looking for you to demonstrate more critical thinking skills. So, what is critical thinking and how does it relate to the law degree? Emma Jones, lecturer in law and member of the Open Justice team at the Open University explains for Lawyer Monthly.
What critical thinking is…
Put simply, critical thinking is about gathering evidence, ideas and/or arguments and then evaluating (weighing up) their strengths and weaknesses in an objective and methodical manner. For example, when writing an essay you could be presented with an article arguing that the Human Rights Act 1998 should be repealed. To assess its validity you need to spend some time identifying the key arguments contained it in. Depending on their content, you might then have to re-examine parts of the Act (or other relevant Acts and cases) used in the argument, search for counter-arguments in other articles and then decide which provide the most persuasive evidence.
When tackling a problem scenario, it may involve reading the facts with an open mind, identifying key information, comparing the information you have with the facts of relevant cases and considering any arguments the other party or parties may come up with.
… And what it isn’t
Sometimes students think that showing critical thinking involves including lots of quotations from cases or academic articles and putting in a lot of references. This might show you have found plenty of information, but it doesn’t demonstrate that you understand it or can apply it to whatever topic you’re discussing. Some students may go one step further and explain arguments they find in such cases or articles in their own words. However, while it is important to look at all the relevant arguments, critical thinking is more than that. You need to evaluate the arguments yourself and decide how strong you think they are. In other words, you need to put your own spin on them, rather than just describing them.
Using critical thinking in your studies
Here are some suggestions on how to incorporate critical thinking into your legal studies:
A recent survey of almost 400 IP law firms and corporate IP departments identified three key strategies for law firms to improve their understanding of corporate requirements and drive profitable growth.
Conducted by IP technology and services provider CPA Global, the survey researched both the challenges facing IP law firms and, importantly, how corporate IP departments perceive the services firms offer. Jayne Durden, VP Solutions, Marketing & Strategy at CPA Global, GIVES Lawyer monthly the rundown.
1. Time is money: choose technology
The survey asked respondents what they perceived would be the most significant challenges in the next three years. The top items identified were all related to cost and profitability.
Firms need to keep administrative costs down while freeing up time for billable work. The survey found technology was perceived as an area that can help improve practice efficiency and profitability, with 31 percent of respondents seeing software that transforms and automates workplaces as an opportunity in the next three years.
Firms that use technology to create fast, responsive and relevant support services for day-to-day IP operations will better satisfy client demands for a high-quality service and value for money. Using IP technology to streamline internal processes, IP law firms can improve process efficiency and data accuracy across an entire team. Automation also helps to reduce mistakes and improve internal communication and collaboration. Deployed for time consuming administrative IP tasks, technology can free up attorneys and partners to focus on more pressing strategic advice to better support clients.
2. Find the space to grow: outsource administrative tasks
On average, the corporates that responded to the survey outsourced around 50% of their legal work to law firms. Yet for law firms, staffing to support client needs, technical expertise and the ebbs and flows of demand can be hard to manage effectively. One way to reduce time spent on administrative tasks is to implement new technology, but another is to outsource them entirely. Firms are increasingly reviewing their processes and needs to partner with external IP providers, outsourcing areas including docketing, proofreading, renewals and reference management.
External IP management and technology providers can take ownership of certain IP tasks and significantly ease the administrative burden facing IP law firms. A diagnostic service delivers expert analysis of a law firm’s IP operations and mitigates risk by focusing on best practice use of people and processes supported by technology. This can also be bolstered by external support services, where teams of specialised IP professionals can work alongside a firm to help reduce costs while increasing responsiveness to client needs.
3. Take the strategic approach
The research demonstrated that despite cost pressures, corporate IP departments are willing to invest in strategic counsel that will help position their company with a more relevant and efficient IP portfolio. For law firm success, this means building a trusted and strategic relationship with clients, focusing less on transactional tasks and more on adding value.
The research also confirmed how law firms must balance three main objectives: improving or maintaining practice profitability; driving business growth; improving client service by demonstrating relevant expertise and experience, and strategically applying this to a client’s business objectives.
Law firms that take a more strategic approach should be able to identify ways in which corporations can save money. Firms that can clearly demonstrate the relative value of specific IP filings to business can help them unlock cost savings. By highlighting IP that delivers significant return on investment, law firms can help corporates make more strategic choices over filings and renewals and maintain the most effective IP portfolio. Going beyond these services to become integral parts of corporations will help firms establish long term relationships with clients.
The message is clear: law firms that wish to grow business from corporate IP departments need to demonstrate relevant IP experience to clients; they need to help corporates understand more clearly where IP is driving business value; and they need to provide strategic advice that can actively help in cost control.
Admissibility of evidence obtained by less than acceptable standards is often debated in courts. In light of s56 of the Investigatory Powers Act 2016 (IPA), which came into force on 27 June 2018, David Corker of Corker Binning stresses the importance of eavesdropping evidence in court with some prime case studies.
Criminal justice systems need rules about what can be adduced as evidence. With relevance forming the cornerstone of admissibility, UK rules are promulgated by the common law and increasingly by statute. S56 of the Investigatory Powers Act 2016 (IPA) is a prime example. For information obtained by State interception of telephone calls, it determines that neither the prosecution nor defence can ever adduce intercept material obtained by a UK State agency. By proscribing mention of its existence, the material does not exist.
Since this exclusionary rule appeared in the Interception of Communications Act 1985, public surveillance has mushroomed: everyone appreciates it is ubiquitous. Yet, the argument runs that if this blanket ban were relaxed, it would disclose how law enforcement detects serious crime, encouraging criminals to develop covert communication methods.
Two recent judgments provide some enlightenment.
The admissibility in criminal proceedings of material obtained from intercepted calls was examined in Virdee v NCA [2018] EWHC 1119, decided by the Admin Court, and R v Knaggs [2018] EWCA 1863 by the Court of Appeal. In both cases, material obtained by a foreign law enforcement agency was passed to the NCA. The ban does not apply to such material.
In Virdee, the German police provided the NCA with recordings that commenced a bribery investigation. It contended that they revealed compelling evidence of plans to bribe Caribbean politicians. In his judgment Holroyde L.J. quoted extensively from the transcripts. Had the ban applied, no investigation would have occurred. The NCA was only able to investigate because the German police had gathered them in connection with another investigation.
In Knaggs the telephone recordings were obtained by Dutch police. Unlike Virdee, the NCA discussed using surveillance with their Dutch counterpart beforehand. The recordings provided evidence of a conspiracy to import Class A drugs into England. The CPS wished to adduce them at trial.
The defendants submitted that the ban rendered them inadmissible, either because the interception was conducted by the NCA and had been made to appear it was done by the Dutch, or they were made by the Dutch at the NCA’s request. Had either submission succeeded the ban would have applied. Obviously, it applies in the first submission, and also in the second because to procure Dutch police assistance, the NCA would have required an English interception warrant. The trial judge held that the liaison did not result in the NCA requesting the Dutch police to conduct the recordings: the Dutch would have done this anyway. There was no reason to believe that circumstances within the ban’s ambit had occurred.
Lessons? First the ban can hamper investigation and prosecution of serious crime. The contention that secrecy is in the public interest is increasingly tenuous. Excerpts quoted in the Virdee judgment reveal that the speakers reminded each other they should speak “offline”; they knew their calls could be intercepted. The ban is therefore redundant and could inadvertently emasculate a putative prosecution when organised criminals slip up. Removing it would permit prosecutors to decide whether or not to adduce such evidence.
Second, the ban creates the conditions for noble cause corruption amongst UK law enforcement officials. Whilst the NCA acted properly, the cases demonstrate that the ban could be circumvented by law enforcement. The contrast between a UK absolutist ban versus a regulated system of admissibility (the norm elsewhere) will stimulate international law enforcement arbitrage, encouraging the nod and the wink or plausible deniability. Neither is desirable.
From last week, identity verification checks carried out in one EU country will be valid across all member states. This is under the Electronic Identification, Authentication and trust Services (eIDAS) regulation, to which all EU states must comply.
Traditional frameworks for identity verification involved all members having their own manual systems including document and in-person checks, third-party notarisations, and government-issued identification. While it served its purpose, these systems are not built for the modern world of high-speed, online, mobile interactions.
The new regulation underscores the importance of a digital identity framework that can perform electronic identification and trust services for digital transactions. This will help to create one identity framework for the entire European Union.
Today’s interconnected digital economy needs to feature effective and secure identity systems, according to identity verification experts at Trulioo. As Zac Cohen, General Manager at Trulioo explains, different member states “currently have different electronic ID schemes and there’s very little standardisation or cross-border cohesion. For private companies operating in Europe, this means they have to comply with identification regulations on a country-by-country basis.”
Zac continues: “The cost of compliance to identity regulations is increasingly high, with the average bank spending £47 million a year on inefficient identification processes[1]. Although the eIDAS regulation is for member states, once the rules and infrastructures are in place, it will make it easier for the private sector to accept and implement similar processes. This will allow for more efficient AML compliance and KYC regulations across borders.”
Zac continues: “Instead of waiting for the potential of eIDAS to pass through the various legal stages and through to independent businesses, companies can improve their compliance procedures now. While each country has different ID procedures, there is best practice for each member state. Leveraging shared technologies and data can help make identity verification across borders a far more efficient and streamlined process.”
(Source: Trulioo)
Businesses that fail to re-enrol certain workers into the workplace pension scheme every three years could end up being fined by The Pensions Regulator (TPR).
Workplace pensions are arranged by employers, who pay a percentage of a worker’s salary into a pension scheme each month – helping them save for retirement. Auto enrolment, which makes it compulsory for employers to automatically enrol eligible workers into a workplace pension, was introduced in 2012.
However, all employers will need to re-enrol certain workers back into the qualifying pension scheme every three years. Fabian Taylor, independent financial adviser at Nelsons, shares his advice for businesses.
All employers now have an obligation to help safeguard the financial future of their workers through pension auto enrolment.
If employers fail to comply with their legal duties for auto enrolment, TPR has the ability to levy fines against them. Initially, businesses may be sent a fixed penalty notice of £400 however, if this is not paid within a certain period, this can rise to between £50 and £10,000 a day until the fine has been paid.
What do I need to know about re-enrolment?
Employers should start by selecting a suitable re-enrolment date that will apply to all eligible jobholders. Businesses have a six-month window from which they can choose a re-enrolment date – it starts three months before the third anniversary of their last staging date or last re-enrolment date and ends three months after.
At the re-enrolment date, businesses will need to check which workers are eligible for re-enrolment. To make this easier, employers should make sure their worker data is up-to-date by checking they hold the correct details about all those affected by re-enrolment.
Once workers have been re-enrolled, employers have a legal duty to send them statutory communications telling them they’ll be re-enrolled, what this means and that they can choose to opt out of the scheme within one month.
Businesses must also complete a re-declaration of compliance within five calendar months of their re-enrolment date – even if they had no eligible members of staff to re-enrol. An employer’s re-declaration is mandatory and failure to complete it on time could result in a fine.
How do I know which workers need to be re-enrolled?
Businesses will need to carry out an assessment of certain staff on their chosen re-enrolment date to see whether they meet the age and earnings criteria to be re-enrolled (eligible workers are aged between 22 and the state pension age, and earn at least £10,000 in a year). This applies to staff who have previously been assessed for auto enrolment and have:
“If any of the above events happen within 12 months of an employer’s chosen re-enrolment date, they can decide to enrol the eligible staff, but they are not required to do so. They should, however, be re-enrolled at the next re-enrolment date in another three years’ time.
Which workers are excluded from re-enrolment?
Active members of a qualifying workplace pension scheme, along with those aged 21 or under or of state pension age and older are excluded from re-enrolment.
Employers can also choose whether or not to re-enrol a member of staff meeting the age or earnings criteria if any of the events listed in the above question happened more than 12 months before the chosen re-enrolment date and:
Is there anything else I need to know?
Re-enrolment is a good time to review the workplace pension scheme. TPR requires employers to make sure that schemes are monitored regularly and deliver good outcomes for members.
Employers should ask themselves the following questions:
If a workplace pension scheme follows these principles in its ongoing operations, it will ensure good outcomes are delivered for members.
Credit reporting agencies, also termed credit bureaus, collect all of an individual’s credit information, so it’s important for everyone to know how they work, including their relationship with the law. Consumer credit history reports and scores are both important, so you’ll want to ensure that you have the right facts.
Lenders access three primary credit bureaus when pulling and reviewing your credit reports: Equifax, Experian, and TransUnion. There are a large number of CRAs in addition to these three credit reporting agencies.
There remains much confusion, however, with regards to what these credit bureaus do. What kind of data do they collect? How can you view your credit score? And more significantly, what is the relationship between credit score and the law? Let’s attempt to answer these questions here.
What data do credit bureaus collect?
Credit reports include data on any credit accounts you currently have, in addition to your credit history from a number of financial institutions that include banks, credit cards companies, mortgage companies, and any other lenders you have previously dealt with.
Other companies, such as electricity and telephone companies, may also provide information to credit reporting agencies. However, such non-lending companies only tend to report negative information, such as delinquent payments or an account sent to collections.
The main credit reporting agencies collect a wealth of data, but there are only five primary factors that are typically used in calculating your credit score when you’re seeking a loan or credit. These factors are the number of hard enquiries made, the duration of your credit, your debt, the types of accounts on your file, and your payment history.
How to view your credit report
You are entitled to one free credit report from each of the bureaus per year. If you would like to view your score at any other time, they will provide it to you for a fee.
Experian and Equifax offer credit files that include each of the three primary credit reports on one page.
While the three main bureaus will charge you for viewing your personal credit score more than once, there are other companies, such as Fundbox, that will provide you with a free business credit score. Many other firms, however, will charge you as they aren't legally obliged to offer you a free annual business credit score, as is the case with personal credit scores.
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCA) is Federal Government Legislation that is designed to promote privacy, fairness, and accuracy of consumer data in credit agencies files.
Among the main concerns regarding the act is how agencies use the data they are collecting on a consumers’ credit history. The aim of the Act is to protect consumers from misinformation.
It’s wise to properly review your reports from each of the three credit reporting agencies for the small details that influence your credit scores and to keep an eye on your scores for sudden changes, as they can indicate identity theft.
By knowing your score, you will gain a better understanding of the kinds of terms and conditions you could qualify for on any loans or lines of credit. Also, understanding what each agency does gives you an advantage with regards to your rights as well as the security of your accounts with all three bureaus.
The SEC announced last week that it has brought fraud charges against Tesla CEO Elon Musk over his tweets on August 7th claiming that he had secured funding to take the automaker private. The SEC’s action has already led to a steep drop in Tesla stock.
For some thoughts on what the SEC’s action means for Musk, Tesla and other companies using social media as a way to deal with investors, Lawyer Monthly heard from public company lawyer JR Lanis, a partner in Los Angeles and San Francisco with Drinker Biddle & Reath.
Mr. Lanis regularly advises public companies in meeting financial disclosure requirements, including those mandated by Sarbanes Oxley as well as rules governing stock exchanges.
“I think the SEC’s suit reinforces the idea that public company officers and directors should speak to counsel before making any public announcements regarding their companies,” Mr. Lanis said. “The ‘what’ and ‘when’ of SEC disclosure is not to be taken lightly, and can result in criminal prosecution if not addressed in advance.”
The SEC noted that Musk tweeted that the company would be taken private with a $420 per share price, which would have been a more than 20% premium. The Commission’s complaint alleges that Musk “had not even discussed, much less confirmed, key deal terms, including price, with any potential funding source.”
The lawsuit aims to force Musk from leadership of Tesla or any other public company, as well as hit him with financial penalties.
(Source: Drinker Biddle & Reath)
