The protracted and expensive court proceedings in Diane Modahl’s anti-doping case against the British Athletics Federation (BAF), leading to Modahl’s bankruptcy and the BAF subsequently going into administration, were a seminal moment in the development of the adjudication of sporting disputes.
The case forced the sporting world to recognise that there must be a better way, leading to the formation, in 1997, of what is now known as Sport Resolutions. Since then, the Courts have generally recognised (whilst reserving the right to intervene if necessary) that sporting disputes are better determined by the internal processes of governing bodies, failing which, the dispute should be handed over to Sport Resolutions or the Court of Arbitration for Sport (CAS).
Whilst, at first blush, this history may suggest that lawyers and sport do not mix, that is most certainly not the case. The Sport Resolutions and CAS panels are headed by experienced lawyers. Lawyers also often sit as side members, and the parties are usually represented by lawyers. Lawyers have a distinguished history of acting on a pro bono basis, or on much reduced fees, in many such sport cases. That is not to mention the many times that the early involvement of a lawyer has helped to prevent a dispute. In short, lawyers are not merely a necessary evil, but a force for good in sport dispute resolution.
Lawyers also play an essential part in the non-contentious side of things, helping sports governing bodies with necessary corporate governance, including compliance with the UK Sport/Sport England Code for Sports Governance with which all publicly funded sports are required to comply. Lawyers also assist with the implementation and maintenance of effective and up to date safeguarding and disciplinary policies and procedures. For many of those in charge of sporting organisations, having access to the advice of an experienced sports lawyer is essential to the smooth running of the organisation, particularly when the unexpected or unprecedented happens.
All levels of sport raise challenges that are not routinely faced in other walks of life. The safeguarding of children and vulnerable adults is an important case in point. Even where the concern does not involve the organisation, information may be shared by victims with coaches that would not be shared with parents and legal advice may well be needed as to how to act on such information, and who to contact. The health of athletes is also a major issue, with research into the long-term effects of training methods (such as weight loss through rigorous dieting and dehydration) and equipment (such as recent medical evidence that the incidence of brain injury in male boxers may actually be increased by wearing a head-guard, as a result of which they were dispensed with for male boxers in Rio). All such issues carry a clear risk of future personal injury claims against the governing body concerned, for which seeking advice from a lawyer, and having appropriate insurance cover, is obviously prudent.
There was a time when it was legitimate to question whether there was such a thing as ‘sports law’, as against the mere application of general law to a sporting context. Whilst it is true that sports law is based on well-established legal principles and procedures, and is a relatively new area, it is rapidly developing its own procedures and jurisprudence, in particular through judgments handed down by CAS. Those procedures have lived up to the original aim of being necessarily quicker, more flexible, and more accessible than the Courts. By way of example, before and during each Olympics, panels of lawyers are organised by Sport Resolutions to be available at short notice (for example, for selection disputes). CAS judges are also on standby in the host city throughout each Olympics (for example, working long hours in Rio in relation to last-minute appeals by athletes excluded by WADA in connection to state-sponsored doping violations).
Whilst the author of this article is a sports lawyer, and must therefore declare an interest, there is good evidence that the involvement of lawyers in the governance and growth of sport has been necessary and helpful, and is likely to continue to be so, now that it is well-recognised that the Courts and sport should not mix. The key, of course, is for governing bodies (and, occasionally, athletes) to identify when and why they need a lawyer, and then to get the right one, at the right price, for the job. Recommendations may come by word of mouth from other governing bodies, or by enquiry with the Sport and Recreation Alliance.