Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

 

1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.


Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...



Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 More...

Asser International Sports Law Blog | Guest Blog - Mixed Martial Arts (MMA): Legal Issues by Laura Donnellan

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Guest Blog - Mixed Martial Arts (MMA): Legal Issues by Laura Donnellan

Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.


Introduction

On Tuesday the 12th of April, João Carvalho passed away in the Beaumont Hospital after sustaining serious injuries from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The fighter was knocked out in the third round of a welterweight fight against Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises a number of interesting legal issues. This opinion piece will discuss the possible civil and criminal liability that may result from the untimely death of the Portuguese fighter.

It is important to note at the outset that MMA has few rules and permits wrestling holds, punching, marital arts throws and kicking. MMA appears to have little regulation and a lack of universally accepted, standardised rules. There is no international federation or governing body that regulates MMA. It is largely self-regulated. MMA is not recognised under the sports and governing bodies listed by Sport Ireland, the statutory body established by the Sport Ireland Act 2015 which replaced the Irish Sports Council. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered.

The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. Currently there are no minimum requirements when it comes to medical personnel; nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17 MMA promoters in Ireland requesting that they implement safety precautions in line with those used by other sports including boxing and rugby.

Despite this lack of regulation, this does not exempt MMA from legal liability as the discussion below demonstrates.


Legal Issues-Civil Liability

The death of Carvalho may expose those involved in the event and the organisation of the sport to liability for lack of due care. Although case law is limited in Ireland, English case law has demonstrated that sports governing bodies, referees and coaches may incur civil liability. The referee in the fight involving Carvalho and Ward could be subject to civil liability if it is found that he failed to stop the fight at the appropriate time, a claim that the referee vehemently refutes. Referees have been held to owe a duty of care to participants. The role of the referee is not just to enforce the rules of the game to ensure fair play but also to ensure that the sport is played according to the rules for the safety of the participants. In the case of English case of Smolden v Whitworth and Nolan ([1997] E.L.R. 249  [1997] P.I.Q.R. P133), the plaintiff successfully sued the referee for injuries sustained as a result of a collapsed scrum in game involving underage rugby players.

With regard to governing bodies, a court may find them liable for negligence due to the fact that they have advance planning for events or the organisation of a sport. Under the “deep pocket theory”, the governing body will be viewed as the more attractive target for a claim of negligence as it will have more money to pay in damages. Total Extreme Fighting organises events in order to promote amateur and professional MMA in Ireland. The Irish Amateur Pankration Association (IAPA), a body established in 2014, is the Irish body that is affiliated to the International Mixed Martial Arts Federation. The IAPA is also affiliated to the Irish Amateur Wrestling Association (IAWA) (which according to the IAPA Facebook page, is affiliated “for its lighter Amateur training and activities (Pankration), which form part of its progressional pathway for participants”). However, the IAWA is a recognised sports governing body and receives direct from the Department of Transport, Tourism and Sport and indirect state funding through the auspices of Sport Ireland.  Sport Ireland exercises quasi-governmental regulation. It provides funding and support to recognised sports governing bodies.

A case that is instructive is the English case of Watson v British Boxing Board of Control ([2001] 2 WLR 1256), the British Boxing Board of Control (BBBC) was held liable for the injuries sustained by Michael Watson.  The referee stopped the fight in the final round when Watson appeared to be unable to defend himself. Watson had sustained a brain haemorrhage and, after returning to his corner, he lapsed into unconsciousness on his stool. Disorder among the crowd ensured and Watson’s trainer suddenly realised that he was unconscious. It took seven minutes for the doctor to arrive to the ring and a further 25-30 minutes before Watson arrived at the hospital. By the time Watson arrived at the hospital, he had sustained serious brain damage. He suffered a subdural haemorrhage which left him paralysed down the left side and with other physical and mental disability. The BBBC argued that it did not owe Watson a duty of care. The BBBC further argued that had the necessary medical equipment and personnel been there on time it would not have made any difference given the nature of the injuries sustained. The BBBC is a limited liability company and is the sole controlling body that regulates boxing in the UK.  All fighters, clubs, agents, match-makers and any person involved in the sport of boxing must obtain a licence from the BBBC. Although the BBBC was not directly involved in the fight (i.e. there was no contractual involvement), it was held to be negligent in not providing immediate resuscitation at the ring side. As the BBBC had sanctioned the fight, the court held that to be sufficient proximity between Watson and the BBBC. In drawing parallels between IAPA, Total Extreme Fighting and the BBBC, a claim for negligence could arise.

In addition to potential liability for a lack of due care, there is a possibility of criminal liability arising. When an individual plays a contact sport, it is reasonable foreseeable that he or she will sustain an injury, as contact sports by their very nature involve contact between the players. Individuals consent to inherent risks that are associated with the sport. However, there are limits to what an individual can consent to. If a sports person deliberately and recklessly disregards the rules of the sport and intentionally goes beyond the limits of that sport, the criminal law may be invoked. A sports person may be charged with manslaughter if the opponent dies as a result of their actions. It would be very unlikely that a sportsperson would be charged with murder as it would require premeditation. Even in a sport like MMA, a participant consents to injuries that are within the rules of the sport, that incidental to the playing of the game by the rules and those which are part of the playing culture, something outside the rules but it has become an accepted part of the sport. If the injuries sustained go beyond what the participant consented to, the opponent could be charged with assault. It is to the issue of criminal liability that the opinion piece now turns.

 

Legal Issues-Criminal Liability

In Ireland, the Non-Fatal Offences Against the Person Act 1997 governs assault. Section 2 defines assault as the actual carrying out or threat of reckless or intentional, direct or indirect application of force or causes an impact on the body of another without the consent of the person. Section 3 concerns “assault causing harm” with consent being absent. Section 4 relates to assault “causing serious harm”. Serious harm is defined as “injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ” (section 1). Section 4 does not include the provision consent being absent as it does under sections 2 and 3. However, it is extremely doubtful that the defence of consent could be invoked under Section 4 as the offender, if found guilty of the offence, could face life imprisonment. Section 22 (1) provides the following: “the provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission”. Section 22 retains the basic common law rule that consent cannot be an absolute defence to all forms of assault (F McAuley, P McCutcheon, Criminal Liability (Dublin: Round Hall Sweet & Maxwell, 2000), 533).

Mixed Martial Arts are in a precarious legal position. While there are MMA clubs in Ireland, these clubs are not illegal per se, but they derive their legal status from boxing, which is defined in negative terms. Boxing is legal because it is not prize-fighting as prize-fighting caused a breach of the peace. In order to understand the contemporary position of boxing and by extension MMA, it is necessary to examine its origins. Prize fighting and bare-knuckle fighting were not devoid of rules but lacked a uniform set of principles (A formal roped-off section was rarely used, often the ground would be marked with chalk, there was no such thing as rounds and there was no limit on the duration of the fight. See J Anderson, The Legality of Boxing: A Punch Drunk Love (OXON: Birkbridge Law Press, 2007), 15). Prize fighting, as the name suggests, concerned a pecuniary reward to the fighter who had physically overcome his opponent. In 1743 the Broughton Rules were introduced, which became the sport’s first uniform set of rules. The Broughton Rules, while welcomed at first, proved to be inadequate. In 1865 the Queensbury Rules were introduced by the eighth Marquis of Queensbury. Under these rules there would be no wresting or hugging permitted, rounds would be three minutes in length, and one minute’s time between rounds, the ring would be twenty-four feet, gloves of the best quality would be worn and if a glove burst or came off it would be replaced to the referee’s satisfaction (Anderson, 28) Gunn and Ormerod (‘The Legality of Boxing’ in Greenfield and Osborn (eds) Law and Sport in Contemporary Society (London: Frank Cass, 2000), 23) refer to the legal recognition of boxing as being by “default rather than design”. In the nineteenth century, prize fighting became increasingly associated with breaches of the peace. A number of cases came before the courts, which presented the courts with an opportunity to outlaw prize fighting. While prize fighting was banned, a tamer version of the sport, namely boxing, gained judicial acceptance. Boxers differed from their prize fighting counterparts as boxers wore padded gloves and the fight was held in private.

As prize fighters began to wear gloves, the distinction between boxing (sparring) and prize fighting became quite blurred. The courts distinguished between sparring matches and prize fighting on the basis of the likelihood of one of the fighters suffering serious injury (Gunn and Ormerod, at p.24). The courts, finding it difficult to distinguish the two, decided to leave the issue to the jury. In R v Orton (14 Cox CC 226; (1878) 39 LT 293), the court held (at 294) if a fight were a mere exhibition of skill in sparring it was not unlawful, however, if the combatants had met intending to fight until one gave into exhaustion or injury he had received it was a breach of the peace and thus unlawful irrespective of whether the fighters wore gloves.  In R v Young (8 C. & P. 644; (1866) 10 Cox CC 371), a boxer faced charges for the manslaughter of an opponent during an indoor sparring match. Bramwell J (at 373) instructed the jury as follows: “If a death ensued from a fight, independently of it taking place for money, it would be manslaughter, because a fight was a dangerous thing and likely to kill; but the medical witness here stated that this sparring was not dangerous, and not a thing likely to kill”.

In the leading case of R v Coney ((1882) 8 QBD 534), the court established that prize fighting was illegal as it caused a breach of peace. The court did not hold boxing or sparring legal, but declared prize fighting illegal.  The Court of Appeal declared prize fighting illegal as it encouraged a breach of the peace and gambling. The dangerous nature of the sport seemed to be secondary consideration. Judges Stephen and Matthew were the only judges that seemed concerned about the degree of harm inflicted on a combatant during a fight. Stephen J (at 549) held prize fighting to be not only injurious to the public but also the fighters themselves. 

Boxing is a legal and recognised sport.  As a recognised sport, the law provides it with significant protection. If a fight took place in the street, it would be considered illegal as a breach of the peace and charges under the Non-Fatal Offences Against the Person Act, 1997 may ensue.  In the fight that takes place on the street, the combatants could be consenting, they are both adults with capacity to consent, yet their actions are deemed illegal. However, an organised boxing match is legal because boxing is a recognised sport.  The fight in the street would be deemed to cause a breach of the peace. The national governing body for amateur boxing in Ireland is the Irish Amateur Boxing Association (IABA). All local boxing clubs are affiliated to the IABA. Professional boxing is regulated by the Professional Boxing Union of Ireland, which is affiliated to the European Boxing Union, the World Boxing Union and the World Boxing Association.  What distinguishes the example of the two consenting adults settling their differences by fighting out in the street is the fact that a recognised boxing match has rules which must be followed. There is a referee, there are safety measures in place, and the pugilists wear padded gloves.  Rules are devised for sports to ensure fairness and uniformity but they also are devised in a way to ensure that the likelihood of participants being injured is minimised. However, the legality of boxing has long been debated. Over the years there have been calls to declare it illegal. Boxing remains a sport due to its popularity and there is a public interest in it continuing as a lawful sport.

 

The Law Reform Commission Report on Non-Fatal Offences and its application to Sport

The 1997 Act was largely based on the recommendations of a Law Reform Commission (LRC) Report from 1994 (LRC-45–1994). The Report examined the position of contact sport in Chapter 9. The 1997 Act did not include any of the recommendations relation to sport. The Report acknowledged that contact sports, by their very nature, entail violent conduct. In a fast paced match tempers rise and subsequently rules are broken (para.9.148, at p.272). In professional sports violent conduct is often penalised in the form of a fine or suspension. For the most part, the civil law will provide an injured player with compensation. Quoting from the Canadian Law Reform Commission’s Working Paper, the LRC proposed that the criminal law should be used as a “policeman” of last resort or as an “enforcer” (para.9.148, at p.272) The LRC recommended that no general exemption should be given to contact sports where the victim does not expressly or impliedly consent to the infliction of injury (para.9.149, at p.271).

The LRC summarised the situations in which a person is said to have consented in a contact sport: 

1.              to any contact within the rules of the game;

2.              to any contact of an accidental nature arising from incidentally in the course of it; and

3.              to incidental pain to the risk of hurt or injury from such contact (para.9.152, at p.273). 

In giving the example of a footballer, a footballer impliedly consents to be tackled, to being kicked accidentally and to the risk of being injured, but a footballer does not consent to being punched or kicked (para. 9.153, at p.273). As most sports do not authorise intentional or reckless tackles or injury, there should be no exemption given to contact sports. If a player does not have the requisite intent or recklessness and the contact is within the rules of the sport, it is irrelevant that the force used was likely to cause injury.

The LRC acknowledged that it is very difficult if not impossible to ascertain whether a contact is intentional or reckless. The courts, when faced with a sporting case, often refer to the standards of the particular sport in deciding whether or not the conduct is acceptable (para.9.154, at p.274). Such an approach is understandable given that “sports produce valuable social benefits through the practice and example of fair play within an agreed set of rules” (para.9.154, at p.274).

In reference to the amateur nature of Irish sport, the LRC noted that rules of most sports place reasonable limits on the degree of violence which may be consented. Consequently, the LRC concluded that no specific penalties should be devised for sporting violence (para.9.157, at p.274).

It was also concluded that boxing should not be signalled out for exemption. The LRC proffered that any proposed changes to the rules of the sport is a matter for the relevant regulatory sports body in according with public debate and medical evidence (para.9.157, at p.274).

In the absence of any statutory intervention, the LRC concluded that the criminal law would continue to apply in situations where the rules of the sport are breached. It did, however, note its limitations (para.9.158, at pp.275-275). At the time of the LRC Report MMA had just been resurrected by the Ultimate Fighting Championship (UFC) which was founded in 1993. It is interesting that the LRC referred to martial arts which are lawfully recognised sports. The LRC gave the following example: In some martial arts, a serious injury may result from a kick which is within the rules of the sport. Failure to prosecute and attempts to prosecute would both attract public debate. It would seem unjust to hold the opponent criminally liable for conduct that is part of the rules of the sport. The victim had also consented to the risk. Public opinion may call for sports that can cause serious injury, including professional boxing, to be declared unlawful. The LRC recommended that a specific provision be made for consent to injuries inflicted in the course of, and in accordance with the rules of a lawful sporting activity. It summed up its position as follows:               

“Every person is protected from criminal responsibility for causing harm or serious harm to another where such harm is inflicted during the course of, and in accordance with the rules of any bona fide sporting activity” (para.9.159, at p.275)

The above summation could be applied to Charlie Ward, who won the fight against Carvalho. Another factor to consider is that Carvalho consented to the risk of being seriously injured or to a substantial risk of death as defined by section 4 of the Non-Fatal Offences Against the Person Act 1997.

 

The Legality of Mixed Martial Arts

Mixed martial arts (MMA) are hybrid sports in that they combine traditional martial arts sports with non-traditional ones. MMA is an ancient sport, however, its modern inception dates back to 1993 when the Ultimate Fighting Championship (UFC) was founded. As noted above, MMA is largely self-regulated and it has no international federation or governing body that regulates the sport.

In Ireland, the traditional martial arts (including Aikido, Kickboxing, Tae Kwon Do, Karate, Sumo, Kung Fu, Jiu Jitsu, Tai Chi, Muaythai, Ninjitsu and Bujitsu) are governed by the Irish Martial Arts Commission (IMAC). IMAC, as a recognised national governing body, receives funding from Sport Ireland. MMA is not recognised under the sports and governing bodies listed by Sport Ireland. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered. If these criteria are followed, then MMA will be “at least as safe as boxing as it places so much less emphasis on blows to the head that so concern the British Medical Association” (M James, Sports Law (2nd ed.) (London: Palgrave MacMillan, 2013), 155).

 

Concluding Remarks

The death of João Carvalho has brought to the fore a plethora of legal issues. The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. It has taken a fatality for the state to intervene. Currently there are no minimum requirements when it comes to medical personnel present at events nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events but that can vary from one to three. While some have called for the banning of MMA, this may only serve to send the sport underground and have even less safety precautions than present. Also, the issue of consent must be considered. If consenting adults decide to partake in such a sport and are aware of the dangers, then arguably on the grounds of civil liberties such individuals should be permitted to engage in MMA. The most prudent action at the moment would be to reform the sport and for the state to require high standards of health and safety at events.

While MMA could be referred to as a form of licenced thuggery, MMA is legal due to its association with boxing and other lawfully recognised fighting sports. It is now accepted as a mainstream sport. Its legality is somewhat dubious as it derives its legality from boxing. Boxing is legal because it is not prize fighting. Prize fighting was declared illegal as it caused a breach of peace. The death of Carvalho may well change the legal landscape of MMA. It is doubtful it will be banned but it may well be subject to the rigours of the law in criminal or civil proceedings.

Comments (1) -

  • Edward Thompson

    5/26/2016 7:15:19 PM |

    Great legal piece - thanks for posting. Some interesting points raised. Here in the US, the reliance of the litigation part of the legal system is becoming unmanageable due to volume. Websites such as www.witness.net (a nationwide database of expert witnesses) are becoming increasingly popular as people use both the criminal and civil courts to achieve justice. With regard to the MMA, it has to be more rigidly controlled.

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