Monday, August 6, 2012

Will Union Cycliste Internationale help Lance Armstrong's Legal Situation?

I have a new column on that discusses an international jurisdiction dispute between UCI and USADA over whether USADA can sanction Lance Armstrong, and what this might mean for Armstrong.

Olympic Law

Nice post from Lisa McElroy (Drexal Law) on using the 2004 Men's Gymnastics controversy (where an unquestioned scoring error affected the outcome and resulted in Paul Hamm winning the all-around gold) to demonstrate the difference and intersection between law and justice, between following the rules or trying to produce the "best" results.

I'm getting old. I remember when we would use the 1972 Olympic Men's Basketball final, which had the added bonus of looking like they were just making the rules up as they went along (because they were).

Saturday, August 4, 2012

Defining sport: Intrinsic and Instrumental Values

I have written before about defining sport and distinguishing sport from other athletic competitions. My preferred definition of sport includes four elements: 1) Large motor skills; 2) Simple machines; 3) Objective scoring (distinct from subjective judging); and 4) Competition. Of these, # 3 has proven to be most difficult, controversial, and contested, as the comments on this post show. Watching the Olympics (count me among the many who detest the NBC Primetime productions) has lead me to a different way of thinking about # 3, using a line familiar to legal scholarship--the difference between intinsic and utilitarian instrumental values. Hear me out.

Everything involves the performance of particular skills (dives, flips, swimming strokes, running strides, throwing, putting the shot, whatever), with the hope of performing those skills as correctly as possible. The difference is why the athlete performs those skills.

Sometimes they are done for utilitarian instrumental purposes--to enable the athlete to swim or run faster or to put the shot further or to put the ball in the basket. And the better or more perfectly the athlete performs those skills, the more likely he is to do well in the competition. But ultimate evaluation is not on the skills themselves and correct performance is not essential to success. A shot-putter still can have a good throw even if his performance on that throw is not technically correct; a swimmer still might swim fast even if his stroke is off; a jump shot in basketball may go in  even if the form on the shot is off. Each of those scores is worth the same as one done with perfect form. Other times, those skills are performed for their intrinsic value and utlimate evaluation is on the correctness and form of the skill itself. An Inward 2 1/2 that is not done correctly will score less than an Inward 2 1/2 done correctly; a backflip not done correctly will score less than a backflip done correctly.

This is our new third element. Sport is utilitarian instrumental; skills are performed toward some other end and outcomes are determined by the result of the skill rather than by evaluating the skill itself. It is not sport if it is intrinsic; skills are performed for their own sake and outcomes are determined by evaluating the skill itself. We no longer care about objective or subjective evaluation, about scoring or judging. Instead, we focus only on the thing being evaluated to determine outcome--the skill itself (not sport) or the results of the skill (sport).

Combined with elements 1, 2, and 4, above, we may have a winner.

Friday, August 3, 2012

Fan speech and Penn State: A Response

Thanks to Geoff for the shout-out on my writing on fan speech. I wanted to post a quick response.

First, while I agree it would be disgusting for opposing fans to taunt players about the specifics of child sexual assault, I am not as sure that taunting players about the overall scandal at a university and football program of which they are a part would be uncivil. Especially if the message is that PSU is not the holier-than-thou place it pretended to be for 60 years. A little bit of schadenfreude is a core part of cheering speech. Geoff also is right that the NCAA, Big 10, and schools cannot do anything about this (exception, ironically, my alma mater).

Second, I do not have a problem with Penn State fans overdoing it with praise for the involved school officials. I expect it and, in fact, welcome it. One reason to protect speech for uninformed or offensive ideas is to expose those ideas, and those who hold them, to public attention and ridicule.

Fan Speech and Penn State

In less than a month, the Penn State football team will take the field for the first time since the NCAA imposed sanctions on the school for the conduct of Athletic Department employees in connection with the Sandusky child sexual assault scandal.  One of the factors which led me to take the position that Penn State should take the year off from football, rather than continue to play, is a concern about what kinds of signs we'll see and chants we'll hear from the stands.
Howard has written in this blog about fan speech, and the challenges in regulating it, in this blog on a number of occasions: here, here, here and here, for instance.

We have two reasons to be concerned about fan speech here.  First, we may see signs at home games which are overly supportive of key Penn State figures now besmirched by the scandal.  In spite of the mountain of evidence indicating a colossal breakdown in morality and leadership, some fans may stubbornly cling to rosy images of football heroes. 

More likely, though, when Penn State travels to play away games in Iowa City and Lincoln -- never easy places to visit -- we'll see some fans who use the scandal to taunt the current players (players having nothing to do with the matter).  No doubt the Big Ten or the NCAA will urge fans to keep their cheers civil, but we've already seen the emergence of (grammatically challenged) fan speech in connection with the scandal and I think it's fair to expect more.

Here, players may be more likely, than in the case of the kind of racist fan speech that usually raises concerns, to be able to brush of these insults.  Yet by dragging the matter into the light of national TV, potentially offensive fan speech has the potential to continue to cause hurt to the real victims of this scandal:  Sandusky's targets.  Unfortunately, there's not much that the NCAA or the Big 10 can do about it.

Thursday, August 2, 2012

Minority relgiions and the Olympics

My colleague Tom Baker linked me to this story on the Jews, Muslims, Sikhs, and other minority religious groups taking special rooting interest and pride in the Olympic success of their co-religionists, even if they are competing for other countries. The author seems surprised by this, although I am not sure why. American Jews always have been very conscious of the existence and success of Jewish-American as well as Israeli athletes (while never being afraid to recycle the old joke "Do you have some light reading? Here's a pamphlet of great Jewish athletes"). What is new here, if anything, is the way that other religious groups in the U.S. are catching on. 

For what it's worth, my sense with Jews and Jewish athletes is that it always has been more ethnic/cultural than religious. People knew gymnast Aly Raisman is Jewish because of her name and her floor routine done to "Hava Nagila." The issue was never whether she was particularly observant (although her rabbi is quoted in the story, so we somewhat know), but that she identified as Jewish. That has always been enough.

Mutu v Chelsea – Three Years After the “Remarkable” CAS Decision

This is a special guest post by Romanian attorney Smaranda Miron, LL.M, who practices at
Freshfields Bruckhaus Deringer LLP in Frankfurt, Germany, on the Court of Arbitration for Sport ordering Romanian football player Adrian Mutu to pay 17 million to Chelsea.

Mutu v Chelsea – Three Years After the “Remarkable” CAS Decision

It was back in July 2003 when Roman Abramovich commenced the £140,000,000 takeover of Chelsea FC plc and then proceeded to create a star-studded team, with one aim: bringing the Stamford Bridge club among the world’s football elite.

In August 2003, Romanian football player Adrian Mutu was transferred from AC Parma to Chelsea for €22,500,000 the highest amount ever paid for the transfer of a Romanian athlete. Mutu’s arrival at Chelsea was highly acclaimed: compared by some with Gianfranco Zola, the “brilliant” Mutu received Chelsea's flattering number°7 jersey. At that time, Romania’s “golden team” of football players was retiring and, as they stepped out of the field, they pointed at Mutu as being the new leader capable of securing future victories.

Under his almost five years contract with Chelsea, Mutu was to be paid an annual gross salary of £2,350,000 a once only signing fee of £330,000, the usual bonuses and incentives Chelsea paid to its players, as well as a special goal bonus. Mutu's agent was to receive €500,000. Things started relatively good for the Romanian striker, though for some reason he failed be as prolific as he had been in Parma. Up until 1°October 2004, he appeared in 27 games and found the net 6 times.

But on 1 October 2004, Mutu's dream began to collapse: a targeted drug test was held on him by the English Football Association. On 11 October 2004, Mutu was found positive for cocaine. A few weeks later, on 28 October 2004, Chelsea terminated Mutu's contract with immediate effect. He also received a seven-months worldwide ban. What followed was an endless battle, both in the media and in the courts, between Mutu and Chelsea: after almost eight years and numerous proceedings in England, Switzerland and the US, they are still waiting: Chelsea for its money, and Mutu for an almost impossible reversal of unfavourable rulings.

The Court of Arbitration for Sport (CAS) in Lausanne has dealt with no less than three matters between Mutu and Chelsea. Mutu lost every single one of them.

The first CAS award was rendered in 2005. Previously, the Football Association Premier League ruled that Mutu’s admitted use of cocaine constituted a unilateral breach of contract without just cause. He appealed the decision before CAS, and his appeal was dismissed.

As a result, in 2006, Chelsea requested the FIFA Dispute Resolution Chamber (DRC) to impose the adequate sporting sanctions on Mutu and/or to order him to pay compensation for breach of contract. The DRC declined jurisdiction, and Chelsea brought the case before CAS. In this second CAS award, the club’s appeal was upheld, CAS said that the DRC wrongly declined jurisdiction and soon afterwards Chelsea re-applied for compensation before the DRC.

On 13 August 2008, the DRC decided that Mutu was to pay Chelsea € 17,173,990 for breach of his employment contract, which comprised the unamortised portions of the transfer fee paid by Chelsea to Parma, the sign-on fee and the agent's fee. What is more, the DRC noted that, due to specificity of sport, additional punitive measures can be imposed on athletes, so that compensation can sometimes be even higher than normally calculated under the applicable rules. At that time, it was the highest fine ever imposed by FIFA.

Mutu then filed a third case before CAS, and asked them to annul the DRC decision.

The CAS Panel considered that the quantification of damages by the DRC (based on unamortised acquisition costs) was consistent with the applicable provisions, namely English law and the 2001 FIFA on the Status and Transfer of Players. However, the Panel revised the calculations made by the DRC and took into account additional items of acquisition costs: a solidarity contribution, a transfer levy and the club agents’ fees. It reached an amount of €19,113,688 and £371,444, higher than the one put forward by the DRC. But in order not to go ultra petita, the CAS Panel could only confirm the damages awarded by the DRC.

Furthermore, all Mutu’s arguments were rejected:

He argued that he had been discriminated on the basis of nationality (which is forbidden in the European internal market), since the legal framework applicable to English football players transferred at a domestic level was different than the one applicable to foreign players performing in England. The CAS Panel disagreed and said that it was not the nationality of the player that triggered the application of one set of rules or the other, but whether the player was moving between clubs belonging to different national football associations or not.

Contrary to Mutu’s submissions, the Panel considered that English Football Association’s competence to rule on the measure of damages and the fashion in which the damages were calculated were not in breach of European legislation prohibiting anti-competitive practices.

Mutu’s argument that such a way of calculating compensation would act as a deterrent to players wishing to perform in other countries and would thus be in breach of the European rules on freedom of movement was also unsuccessful. The Panel stated that the obligation to pay compensation can never be seen as an impairment of the freedom of movement.

Mutu challenged the third CAS award before the Swiss Federal Tribunal (Schweizerische Bundesgericht), but the review system before the Swiss Federal Tribunal was of little comfort for the player. Mutu argued that the method of calculating damages by the DRC (upheld by CAS) was breaching the Swiss public policy. On 14 June 2010, the Swiss Federal Tribunal dismissed Mutu’s case as unfounded.

On 8 November 2010, Chelsea filed a petition before the US District Court Southern District of Florida (Miami Division) and requested them to recognize and enforce the third CAS award against Mutu under the New York Convention. According to Chelsea, Mutu was owning various residential property in Florida, including property in Miami-Dade county. In his defence, Mutu argued that the enforcement of the CAS award would have been contrary to public policy because it relied on a contractual penalty clause. He asked the court to deny recognition and enforcement of the CAS award under article 5(2)(b) of the New York Convention.

On 13 February 2012 the US court issued recognizing and enforcing the CAS award. It ruled that, even if one were to find the relevant provision of the 2001 Regulations for the Status and Transfer of Players as being a penalty clause, the CAS award was properly and independently decided pursuant to English law. However, the review of the US court was limited; as the judge put it, even if an award was unsupported, foolish and poorly reasoned, as long as it does not violate public policy (i.e., basic notions of morality and justice), it cannot be subject to court interference.

On 19 March 2012 Mutu appealed the Southern District of Florida order before the US Court of Appeals, 11th Circuit. A decision is pending.

While waiting for the 11th Circuit decision, a few issues still linger:

Athletes are not machines. Nor are – or can – they be perfect. Football players remain people, and no matter how talented and disciplined they are, things can go awry at any time. When Mutu was taking cocaine, he was also going through a highly publicised divorce and had regular conflicts with coach Mourinho. Mutu had never offered any guarantee that the transfer sum paid by Chelsea was indeed worth paying. He was not involved in the negotiations and had one way only to influence the amount at stake: the better he played, the higher the transfer sum would have been. Therefore, when a contract between two rich almighty clubs is concluded, should the player bear all the risks?

Is the legal framework applicable to football players truly running against European law, as Mutu argued before CAS? The CAS Panel said no. However, at no point of the dispute could Mutu have had his case heard before a national court of a Member State which, in turn, could have referred the case to the Court of Justice of the European Union for a preliminary ruling and shed light on this matter. Shouldn’t football players, European citizens rendering services in a Member State of the European Union, be given some kind of remedy before the European courts in addition to the CAS system?

By all means, this is an atypical anti-doping case: cocaine is everything but a sports performance enhancing substance. In addition, Mutu was not cocaine addicted. He needed no medical support to recover from use of cocaine and, once he returned to Italy, he continued his series of startling performances. For Fiorentina, he scored 54 goals in 112 appearances and was named the player of the season in Il Calcio in 2006/2007. Anyway, he still has to pay an incredible amount to Chelsea, amount that –as press reports say– will most likely plunge him into bankruptcy. Needless to say, he never made this money from football. Indeed, FIFA and CAS had taught him and the whole sports world a tough lesson. It remains to be seen how much was achieved with that. It is beyond contestation that anti-drug messages are positive. But one can only wonder if payment of roughly €17,000,000 and endangering an athlete’s career is not too big a price to pay for a message which, at the end of the day, each of us can also read on street billboards.

Note: all the opinions and errors in the article are Smaranda Miron's and the article does not express the views of Miron's firm.