The following is an extract from a speech delivered to a focused audience including government representatives, law officers, sports governing bodies and athletes looking at the future role that Singapore may have in developing sports law as the sports industry evolves in the region.

What is sport?

Sport is a competition with an unpredictable result.  The competition may be against oneself or others. Its tribal nature is often most evident with competitions involving teams, clubs or nations.  It is capable of defining a country, region or city.  Indeed there is no more a contemporary example as to how a nation’s cultural identity is intricately linked to sport than the New Zealand All Blacks.  To say that rugby is a religion in New Zealand is an understatement.

Its tribal aspect means that the tribe can unify behind a common purpose irrespective of race, religion or culture.  Now that the Rugby World Cup has finished, I will take another example of how the Rainbow Nation united behind the Springboks in their victory in 1995 and the important part that played in closing a chapter of the countries dark history of apartheid.

Sport can also reach out across the world to create a strong close knit community.  I wonder how many fans of Manchester United or Liverpool are reading this.

The “product” of sport is the sports performances.  All athletes strive to improve.  The continuity of competitions over the years provides the benchmark and framework for measurement.  The custodians of each sport, the governing bodies, have the responsibility of ensuring there are the fair opportunities for the athletes to develop and to attract more supporters and participants to their sport.

But at its heart, sport is of the people and for the people.

What is law?

Those who have had legal training will remember, before there was law there was a concept of justice.  That concept of justice became recorded in early codes. Our best modern day sources of knowledge of these early codes are found in the Greek Homeric style poems such as the Iliad.  These poems involve mythical characters, who often undertake athletic feats in which they succeed or fail because of human characteristics or frailties such as Achilles’ heel. Take the story of Icarus as another example.  His ego got in the way of an instruction from his father not to fly too close to the sun.  The wax holding the wings together melted and justice was dispensed with his fall to death.  A lesson for all of us indeed!  The modern analogy is of course the sporting legend that gets caught taking drugs or is part of some betting scam.

These codes were analysed and described in the Homeric works as Themis or Themistis.  The role of the early Gods was to apply justice according to these concepts of “natural laws”.  The role of the Gods was definitely not to create the laws, whose existence was seen within the poems as naturally occurring within the universe.

These natural laws are easily understood by the public and are seen as being in their interest.  It is this fairness that gives them their enduring strength.  More developed legal systems such as the ones we know today still have at their heart this principle of fairness and public interest benefit.

So what is sports law?

So both sport and law have at their heart the same concepts which to some extent have developed over many years into two parallel sets of codes.  The rules of sport define the particular characteristics of that sport, for instance the number of players on the field, points scoring and competition formats, which are designed to ensure fairness amongst competitors and to enable the public to understand and to trust in those competitions.   Sport governance structures also deal with the way that those involved in the sport relate to each other and to the sport body through some form of membership contract with the association.  Such membership may bring with it an agreement to certain forms of behaviour and recognition of the right of the association to discipline offenders.

Legal systems around the world have usually been happy to leave sport to get on with running its affairs where these decisions linked to the “pure sporting interest”.  For instance, rugby tackles or boxing do not leave competitors open to charges of assault other than in extreme cases where the criminal law steps in.  We have seen this in the recent betting scam case involving deliberate “no balls” during a test match by the Pakistan cricketers, Salman Butt and Mohammed Asif.  They were found guilty before Southwark Crown Court in a jury trial of conspiracy to cheat.  The WADA drugs code is there to prevent cheating and obtaining some advantage over another athlete.  What is a crime for an athlete is not necessarily a crime however for a normal individual.  Many of the substances that are banned are perfectly legal for people to buy across the counter.

The real test is always whether the rules purporting to be of pure sporting interest are fair, are applied proportionately within basic precepts of a fair hearing and are broadly in the public interest.  Sport needs to be aware that it is always open to challenge and review on these points.

That was where the sports industry was 30 years ago and then something very significant happened – the change was that the global sports industry followed the USA domestic model for sport and became a business, and what a business.  Nothing was ever going to be the same again.

Sport as a business

One of the most striking changes resulting from the emerging sports business sector was that sports governance associations, formally there for the administration of the sport, were now earning huge sums from their events – they had become event promoters.  This raises questions about the way that sporting associations make and apply their own laws when in many cases they are directly benefiting financially from their decisions.  Sport has stakeholders who are the public to hold it to account rather than shareholders.

Additionally, pure commercial operators became very heavily involved with controlling or influencing the rules that applied to competitions and events and to the competitors.  The natural law of fair play needed to shine through.  Some years ago I recall advising the ITF on whether it was appropriate to let some tennis players with a larger racket face.  That could have changed the game.

Today in just about all sports, top athletes will be able to earn either directly or indirectly substantial sums from their talents and efforts.  Meanwhile young and up and coming athletes are at material disadvantage in negotiating with highly professional event owners or promoters.

30 years ago the money in international sport was controlled by a handful of powerful men, Horst Dassler of Adidas, Mark McCormack of IMG, etc.  Today there are thousands of sports event promoters, agents, media organisations, betting companies and venue owners all relying on sports events and athletes to make them money.  The level of money changes everything and sport business now accounts for 3% of world trade.  Within sport it has bought the very nature of what we do and how we do it into the courts on a routine basis.

Singapore has set its objectives on winning a significant amount of sport business and it has invested significantly in providing physical and fiscal infrastructure to do so.  But it now needs to invest in the intellectual infrastructure by properly considering and implementing a sports law regime that will not only be attractive to sports businesses considering settling here, but will also create a sports law industry hub here in Singapore that can serve the region.

Sport is an ecosystem, that all constituents are inter-dependent, that a healthy tree is one with a good root system to feed the growth of the tree and the formation of leaves which in turn help fuel the development of a good crop of fruit, but if the trunk is not strong, free of disease and efficient in delivering nutrients to the branches, leaves and fruit then the tree will not survive.

A good sports law approach can be a significant help in creating and maintaining a healthy tree.  So where and how is modern sports law making a difference? And how ready is Singapore to take up the torch to become a regional hub of sports law expertise?

If we use my tree analogy to look at the legal landscape and some of the current best practice legal decisions as they impact on the different constituents in the sports eco-system as an aid to answering these important questions.  As  foreign lawyer it is not my place to tell Singapore how its legal system might need to be changed, but I can highlight for you how the more established sport law jurisdictions are responding to the increasing number of sports law cases reaching the higher courts.  It is I believe fair to say that for countries within Asia, including Singapore, the sports industry is still developing and to date there have been limited examples of conflict between sports rules and the laws of the land.  It is therefore essential to look to the bigger global picture to see what can be learned.

Governance vs. Events

As international sport became a business, this led to some early, and some might argue, slightly bizarre intervention by the European Commission who in certain sports such as F1 felt it was a good idea to separate the governance or rule making function of a governing body from that of its event promotional functions.  I was fortunate in my career to attend a meeting where this strategy was decided.  It has not been applied by many other sports as clearly as in the F1 case as the economic consequences are very significant, but many governing bodies do try to separate their governance and commercial functions to differing extents.

Governance vs. Players/Athletes

Courts may also interfere where a sport seeks to impose penalties where it can be shown that there is no due process within the internal “quasi court” of the governing body.  In Europe, Article 6 of the European Convention on Human Rights guarantees a fair trial particularly where serious allegations of a criminal nature are alleged.  This would be in addition to common law concepts developed over the years of “natural justice”.  It is fair to say that a number of sports governing bodies have needed to defend their internal process, some successfully and some not.  My firm handled one of the first major cases in Europe that tested this issue which involved the tennis player Wilander and the ITF.

That the punishment should fit the crime is a basic natural law concept.  But in sport the use of very long or lifetime bans for certain offences as a deterrent to others has been the norm.  One example of a recent decision illustrating this conflict was a ruling by CAS against the International Olympic Committee.  CAS decided that the IOC had no right to ban the American 400m gold medallist La Shawn Merritt from competing in London next year.

Commercial vs. Players/Athletes

In Europe we have seen considerable use of the competition regulations under the Treaty of Rome which were designed for businesses now being applied to sports.  The first landmark case in that regard was probably the Bosman Ruling which restricted the ability of a club to enforce a contract on the grounds that to do so would infringe European competition law.

The doctrine of Restraint of Trade enables a court to prevent disproportionate restrictions that prevent an individual from plying his or her trade.  Restriction of Trade is pretty universally recognised as undesirable in most jurisdictions unless there are very specific reasons which are considered appropriate and also in the public interest.  In sport where competitors have typically a very short earning period in their career and where fulfilling their athletic potential is based on having multiple true competitive opportunities, it is a most serious matter where unreasonable restrictions are stipulated as part of an agreement to take part in a particular event which precludes the athlete taking part in a competing event.

• Eastham v Newcastle United & FA (where a football player challenged the rules in football which allowed a club to retain a player at the end of his contract until a fee was paid).
• Buckley v Tutty (where a rugby player challenged rules which prevented him from transferring to a club outside NSW);
• Greig v Insole (where a cricketer challenged rules which prevented him from taking part in events organised by certain individuals or bodies);
• Nagle v Fielden (where a jockey challenged rules concerning the grant of trainers’ licences); and
• Wilander v Tobin (where a tennis player argued that the ITF’s doping rules were in restraint of trade).

The Bosman challenge along with the case of the snooker player Ian Hendry who also used competition law principles under the Treaty of Rome to mount similar challenges.  In the case of Hendry, a snooker body sought to introduce a new rule to prevent Hendry competing in a newly formed competition.  Competition law challenges where legislation exists may therefore replace reliance on Restraint of Trade in due course.  Singapore does have a Competition Act, but I am unaware to date that it has been applied to this sort of sporting situation.

The rights of junior athletes is also an area where the courts can have an important part to play in ensuring that these young people are not taken advantage of as they seek to get training and competitive opportunities.

Public

Although not a party directly to any sport agreement, the public interest in sport is fundamental and best practice decisions show that courts do take into account the benefit that comes from allowing the best competitors to take part in the best available events otherwise sport becomes more like staged professional wrestling rather than fair and open competition to see who is the best.

The increasing desire of governments to regulate sports institutions also sits within an increasingly regulated environment for all business; to ensure public confidence in such bodies who are not directly accountable to the public, but on whom the public rely to properly manage matters of importance to the public.  For example, in the States the Sarbans – Oxley Act was introduced after the Enron collapse and is based upon transparency and disclosure.  How sports organisations are run in the Asean region as revenues continue to increase is clearly important.

Much of the public’s interaction with sport is via the media.  In Europe the concept of listed events, felt to be so important to the public that these events must be made available on free-to-air TV stations, has done much to shape the broadcast rights landscape and consequently money paid for the broadcast rights.

The Singapore sports law opportunity

I know that Singapore is very open to learning from others, taking best practice advice and then configuring a solution that works in Singapore where it has determined the result is worth the investment and change.  So what is my assessment of the opportunity for Singapore and where are the “low hanging fruits” that can be reaped early and so reinforce the momentum?

Singapore is at the heart of the most vibrant and developing economies in the Asean region.  Singapore already plays to its regional and international strengths as a commercial centre for finance and law.  In that respect can I point to the recent speech given by Minister Shanmugam’s in explaining the role of Singapore as a regional services hub and the creation in particular of a Singapore arbitration eco system. 

I believe that the majority of specialised legal work around sport, even in relation to those sports businesses that are based in Singapore, is still handled by overseas firms.  I have to ask myself why? The short answer is probably that the Singapore legal community, with one or two exceptions, has had limited exposure to global sports law issues and therefore lacks the confidence to seize the business opportunity.  That said, of course Singapore always seems to be not far behind seizing that opportunity and is already represented in CAS and other institutions by:  Mr Michael Hwang, Mr Kandiah Bala Chandran, Mr Loh Lin Kok and Mr Selvadurai Pathmanaban.

I began my career as a shipping lawyer before moving into the sports industry. The characteristics that I think however are common to shipping and sport is directly attributable to the international cross-border nature of both industries.  I am a great believer in “niche” marketing and the EDB has already chosen sport as a target sector for attracting new businesses to Singapore so it is almost inevitable, as the human skills base grows in the sports industry in Singapore that the legal community will develop around that.  Singapore has certainly achieved this in shipping.

It is always more difficult to gain a position in an established market.  Competing therefore with niche US and or European law firms for international clients is going to be tough, certainly in the initial stages.  It should certainly be possible for regional and or international organisations that base themselves in Singapore attracted by the sports city initiatives to be increasingly serviced by the Singapore legal community.  If it is available in Singapore then why look elsewhere?

I believe it is perfectly possible for Singapore to attract regional clients on specialist sports law issues.  Singapore will probably be competing to some degree in that regard with more established markets within the region such as Australia.

The most obvious area for development, which as a by-product is likely to stimulate the other areas, is for Singapore to become a regional centre for dispute resolution in sport. If a case history were required, then just see what CAS has done for developing the expertise of the Swiss legal community in sport.  In terms of dispute resolution, Singapore is already a very strong contender.  According to statistics in 2010 provided by “Where the world Arbitrates”, this shows that SIAC is a serious world player and also demonstrates very strong year on year growth.  SIAC itself has done a far better job than I could in summarising the attractions of Singapore as a dispute resolution centre.  It may be over simplifying things from my perspective, but let’s face it this is a fantastic country to visit and is clean, safe, comfortable and intelligent.

To seize this opportunity and assuming the correct sports law framework is in place then I suggest there are just two further barriers to overcome:

• The first is the current level of expertise and training.  This needs to be addressed at both the academic and training levels leading to specialised diplomas in sports law.  Such courses need to address not just the legal issues, but an understanding of the framework in which the industry itself operates; and

• The second is the perception that the Singapore legal system may not have been sufficiently exposed to the understanding and application of some of the international legal principles involving sport, which is an issue across the board whether for the courts and or within the SIAC process.  The CAS model is attractive to clients because it offers arbitrators with a direct knowledge of the sports industry.

In summary, my firm view is that there is an important role for Singapore in the sports law sector, particularly in dispute resolution, should it be willing to make the investment in the intellectual infrastructure needed to ensure it has a legal system that recognises and protects the special nature of sport and can be relied upon by the international sports community to give a sport a fair hearing and to deliver timely and just decisions and that this framework is backed up by a body of professionals who understand the inner workings of sport who can usefully apply the legal structures.

Contact details:

Stephen Townley

KhattarWong LLP

80 Raffles Place
UOB Plaza 1 #25-01
Singapore 048624
Tel: (65) 6535 6844
Fax: (65) 6534 4892

Email:  steve@activerights.com

Copyright: Stephen Townley 2011