The World Cup offers opportunities for lawyers and solicitor-agents
‘Feel it! It is here!’ runs the unofficial slogan, but it would be hard to miss a football World Cup, the most watched sporting event on the planet, which is beamed to two billion TVs. Among its devotees are sports lawyers, who seize on this quadrennial opportunity to make themselves busier, both in the UK and internationally.
Sponsorship deals, image rights, marketing and brand protection (particularly ‘ambush marketing’) are all in their sights.
Ambush marketing is the phenomenon whereby companies which are not official sponsors of the World Cup attempt to get their brand image across during the tournament and thus associate themselves with it – directly or indirectly. In South Africa, a budget airline which had called itself ‘the Unofficial National Carrier of the You-Know-What’, employing pictures of stadiums and national flags, had to pull its ads because FIFA said they were in breach of the rules.
Ambush marketing raises issues of intellectual property (IP) infringement as well as potential breaches of commercial agreements and statutory provisions. In South Africa there is discrete legislation designed to plug any legal gaps pertaining to infringement and protect major events by prohibiting brands from improperly gaining an association with an event.
Ambush marketing creates work for sports lawyers on both sides of the fence. Some are busy advising on how to protect against being ‘ambushed’ and uphold sponsorship arrangements. Jason Smith, a partner in Brabners Chaffe Street’s sports law team, was involved in advising Adidas on its sponsorship deal with world football’s governing body FIFA for 2007-2014. The deal sets out how Adidas can promote its association with FIFA and the obligations on FIFA to protect Adidas’s exclusivity. He says: ‘Ambush marketing is all about riding in on the back of the goodwill of an event. If you watch the TV ads now, you will see that, as the World Cup gets closer, brands are increasingly associating themselves with football to promote their products and services’.
On the other side of the fence, sports lawyers are advising on how to get as close to the World Cup as possible without infringing those same rights when rolling out a particular advertising campaign, whether via billboards, ads on taxis, and in those very TV ads Smith was referring to. The commercial stakes are high.
Other potential infringements relate to image. David Becker, a lawyer with niche virtual practice Halebury, explains: ‘There are potentially contentious issues such as photos of players being used in merchandise and the like, where image rights must be protected, and players will take action.’
Broadcasting rights create huge problems given the sheer number of channels involved (more than 350 in 2006) and countries broadcasting (over 200).
Smith, whose client base includes FIFA, says: ‘There will be lawyers at the event monitoring TV channels and online media for any unauthorised broadcasts. Such a broadcast could be a licensed broadcaster which is only licensed to broadcast in certain territories but does so into others where another broadcaster has exclusive rights. Another example could be internet broadcasting, where a spectator sitting in the stands films a match and then broadcasts it on the internet.
‘Legal action may be taken against either the broadcaster for breaching its licensing agreement, or the world body which granted exclusivity and has not sufficiently protected this. Action could involve taking out an injunction, or, if a spectator is involved, evicting them from stadiums.
Alongside issues of IP, football has myriad regulatory concerns which may arise during the tournament. Not only does FIFA have its own standing regulations, it also enters into participation agreements with national teams that govern the conduct of the players and teams on and off the pitch.
Any issues that arise out of potential breaches of these regulations and agreements will be dealt with by specially appointed disciplinary bodies. In addition, the Court of Arbitration for Sport (CAS) has a panel of arbitrators to deal with cases or appeals which can be resolved through arbitration. These could involve the use of banned performance-enhancing drugs (rare at a World Cup) or players who receive a match ban or suspension.
Of course, during the actual games, when the 17 ‘laws of the game’ are at issue, the referee is the decision-maker and to all intents and purposes his decisions cannot be challenged. On occasion, however, action is threatened and sports lawyers do get involved.
Ian Lynam is a partner at City firm Charles Russell, whose sports law department represents the Football Association, some domestic teams, and players including Thierry Henry. Lynam acted for Henry in the fallout from the notorious ‘Hand of Gaul’ incident during France’s World Cup qualifying match against Ireland, when FIFA threatened action in relation to the Barcelona striker’s controversial handball.
Once the World Cup is over, the focus shifts to transfers. By the end of July, the cheques are being signed and new deals secured (the Premier League alone usually spends around £500m in this period).
The World Cup can certainly increase interest in certain players, and some players will be deterred from signing contracts until after the tournament – ‘placing themselves in the shop window’, as Smith puts it. Players may also gain (or lose) endorsements.
Some managers will see their reputations enhanced and new countries will show on the radar. This happened to Cameroon after Italia ’90, Romania after US ’94 and South Korea in 2002.
As players are hawked around the world, transfers create new work for sports lawyers dealing with new contracts, immigration issues, sponsorship deals and image rights. Lynam says: ‘It is probably the transfer activity after the World Cup that will create the most work for UK sports lawyers. Although very few transfers will be completed during the tournament itself, the period between its conclusion and the end of August, when the transfer window closes, is always very busy.’
New preoccupations in the modern era are player privacy and media intrusion, and sports lawyers do monitor media coverage. Trevor Watkins, a litigation and dispute resolution partner at Clarke Willmott, says: ‘Every team will have a risk management policy as to what a player can and cannot do, and a strategy with how to deal with events that get out of hand.’
The World Cup is critically important in terms of public perception – think of the opprobrium piled on David Beckham when he was sent off against Argentina in 1998. Watkins adds: ‘Protecting and enhancing reputations will be key for those hoping to increase their profile and perhaps even, like certain cities in the UK for the 2018 tournament, host a World Cup themselves.’
It is not only sports lawyers who may be inundated with work, particularly when the World Cup is over – for lawyers who act as football agents this could also be a fruitful time. Lawyers are allowed to represent players as agents rather than just as solicitors under FA rules. They can do this in two ways: as a ‘registered agent’ (there are currently about 275 registered), they have to abide by the FA’s regulations; or they can come under the category of ‘exempt solicitor’ (there are 43 of these), where they are already regulated by the Solicitors Regulation Authority and therefore not subject to separate FA regulation.
The EU objects to this exemption because it believes it may discriminate against agents who have to pass a test, but for the moment it remains.
Lawyer-agents operate in much the same way as agents. Some even charge a commission just like agents, though perhaps at a lower level (commission tends to range from 3% to 12% of the transfer fee, and lawyer-agents often charge about 5%). Other lawyer-agents prefer to avoid that method and offer clients the traditional hourly rate structure. This could be attractive to a player client in a big-money transfer.
The attraction to players of having a lawyer-agent is that they can offer that player what Brian McKibbin, an authorised agent and partner in the high street practice Harvey McKibbin, calls the ‘holistic approach’. Because the player does not have to pay a lawyer as well, ‘we can do anything an agent can do plus we can put a protective wrap around them, make them savings on taxes, help with wealth management, assist in disciplinary issues or reputation management,’ he says. ‘We can think long term for them.’
Ronnie Hutcheon, who has his own personal injury practice, has just started acting as an agent. He says his experience in personal injury litigation has prepared him well: ‘I am used to managing a client’s expectations in the way I have to manage a younger player’s expectations. There are lots of disappointments, for instance for a young player at an academy. I tell them what the options are, what the chances of success are. Some agents raise their expectations only to get them signed up.’
The motivations of these lawyer-agents do not appear to be purely commercial. Hutcheon says that he started acting as an agent partly out of an inherent love of football, but also because he is interested in boosting home-grown youth talent, particularly in his own city of Liverpool: ‘I do it because I love football and have contacts in the game who share that passion. It is not about the money for me.’
He recently launched a website and sponsors the grass roots club, AFC Liverpool: ‘There are plenty of young, talented footballers who are with schools here in Britain but don’t get anywhere. I want to nurture them and get them into good clubs.’
Of course, being a lawyer-agent is by no means straightforward and does have its risks. Lawyer-agents are often referred legal work relating to a contract or sponsorship deal. If an agent feels that the lawyer-agent is now acting in competition, then they may stop referring work. So, lawyer-agents need to be comfortable that they can afford this to happen.
Solicitors also have to be aware of the many rules which apply to agents and not find themselves being used by the unscrupulous. For instance, under those regulations a solicitor cannot act as a conduit for an unlicensed agent and a player or club if they are merely ‘fronting’ a deal. Certainly, solicitors do get approached to do precisely this to make a deal appear legitimate. The FA will not take action against the unlicensed agent (because they can’t) but against the solicitor or the club or player for working with the unlicensed agent.
Finally, there is an image problem, as Hutcheon vividly explains: ‘It is hard to be a lawyer and an agent because the public have a very poor perception of both professions. This is a "double whammy" for me and I have to overcome that! And let’s face it, it would be worth it to see one of your own players make it to the World Cup.’
Many lawyers are looking forward to tomorrow’s big kick-off as much as anybody else, and as one partner tells the Gazette: ‘During the World Cup most sports lawyers based in the UK will be watching as fans rather than advising on it!’ The question then is: how does a firm best deal with this month-long distraction for football-mad fee-earners?
Thankfully, only one England group game actually falls on a working day, Wednesday 23 June.
David Green, head of employment at City firm Charles Russell, has some advice: ‘There are two ways you can play this. You can either accept that staff will want to watch the games, in particular the England games, and turn it into a positive. You could show the England game at the firm, provide food and drinks, making it clear that staff are allowed to watch it subject to the needs of the business, of course. Or you can be ‘Scrooge’ about it and not allow people to watch it, either on or off the premises or even online, and follow a disciplinary route if this is not followed.
‘But then you may just get people pulling a sickie, or taking it as half a day’s holiday, or simply skiving off. Most clients accept the situation and are making staff feel that they are being given something.’
Mark Hovell, managing partner at George Davies in Manchester, is not following the Scrooge route and plans to let people leave at 2.55pm on the Wednesday of the England game – as long as their inbox is sorted by then.
ACAS has also issued helpful guidance. The conciliation service says: ‘Use teamwork to get the best out of each other and, where possible, find compromises that will keep everyone happy.’ They recommend: being flexible by altering start and finish times during the working day or allowing longer lunch breaks; being clear ‘about what you expect from employees in terms of attendance and performance during the World Cup’; and being honest – ‘if you cannot accommodate any changes to your practices, then say so’.
Polly Botsford is a freelance journalist