Sports Law in 2024: The cases that will define the year
The courtroom (or more often, arbitration centre) has long been an important field of competition in sport, but the day-to-day news may never before have contained so many high-profile cases in the sector.
We take a look at the decisions and disputes that will define 2024 as a year in sports law.
Football
For those who enjoyed the dramatisations – on both stage and screen – of the Rebekah Vardy/Coleen Rooney trial, the good news is that football has plenty more to give in the way of courtroom drama.
Super Legal
December saw the ECJ hand down its judgment in the European Super League dispute – perhaps the most anticipated EU Court judgment in sport since Bosman. Declining to follow the opinion of the Advocate General, published the previous year, the Court rules that FIFA and UEFA’s discretionary powers of approval over international club competitions, and their exclusive right to market the commercial rights thereof, are in principle unlawful under EU competition law. The move handed momentum to the breakaway clubs and was followed by fresh proposals for a new European club league.
However, the matter is far from settled. The Court of Madrid, which referred the question to the ECJ, must still determine whether UEFA or FIFA have satisfied the exemptions against the EU’s general prohibitions on anti-competitive measures and practices (albeit the ECJ has given a negative indication of its own view).
Meanwhile, the new model proposed for the Super League is radically changed from the original proposal, and the English clubs previously involved in the breakaway are yet to return to the ESL fold.
Make no mistake – a battle has been won, but the war is far from over.
Agents of Change
Hot on the heels of the ESL case, the dispute over the FIFA Football Agents Regulations (FFAR) is proceeding through the European Court now, with the Advocate General’s opinion expected in 2024. The core of the dispute centres on the rules on agent commission set down in FIFA’s new agency rules (including a percentage cap), and whether they fall foul of competition and restraint of trade laws.
The legal battle has swung back and forth so far, with FIFA winning an initial dispute at the Court of Arbitration for Sport (although nonetheless later amending the proposed regulations in contrast to the ruling) and recently gaining the backing of the European Commission.
However, football agents had much to raise a glass to over Christmas. Several of football’s biggest markets – including Germany and England – have seen implementation of the new rules blocked on the basis of competition law, following challenges by agents.
The ESL judgment will also promote optimism among agents, demonstrating the limits of the leeway afforded to sporting regulators and the ECJ’s willingness to strike down rules deemed anti-competitive. With agency fees falling squarely within the commercial aspects of sport, agents will hope that the same thinking is applied to the FFAR.
Sustained Litigation
Football’s Financial Fair Play (FFP) rules are aimed, in part, at ensuring financial sustainability for clubs. It is certainly working wonders for the financial sustainability of sports litigation practices.
On top of the ongoing Manchester City case, Leeds United, Burnley and Leicester are expected to bring claims against Everton for losses caused by their relegation. The clubs’ position is understood to be that Everton’s FFP breaches gave it an unfair advantage that allowed it to stay in the Premier League, at the expense of the relegated clubs.
Meanwhile, Everton is appealing the 10 point deduction it was handed for its breaches, and new rules will enable fast-tracking of cases to deal with new breaches by any Premier League club. Expect to hear plenty more about FFP and football accounting practices in 2024.
Rugby Concussion Litigation
One of the major talking points in sports law for 2023 was the proposed class-action claim by a number of former rugby players – from amateurs to well-known international players – against the sport’s governing bodies for alleged failures in their duty of care to players. The claimants number almost 300 to date – they say that the rugby authorities failed to adequately protect players from repeated head trauma, leaving lifelong and in some cases debilitating damage.
At the start of this month (December 2023), a procedural hearing at the High Court was convened, in which the claimants sough a Group Litigation Order (GLO) – in brief, a ruling that the claimants could select a representative sample of their group to take the case forward and obtain a ruling on the main legal question (i.e. whether the governing bodies are liable). Further claims would then be streamlined, as the biggest legal questions would have been answered.
Perhaps the most famous example of similar measures would be the phone hacking trials, which recently returned to the High Court using example claimants to test legal questions.
The Court decided that it was too early to make a GLO and more time was needed by both sides to determine how a class-action would work. The next hearing is due to be in the spring of 2024 and may see a final ruling on whether the group litigation can proceed, or whether each claim must be brought individually.
That decision will likely have a seismic impact on the number of players who proceed with a claim and the length of the litigation, so watch out for updates as summer approaches.
Paris Olympic Participation
In terms of new disputes to emerge in 2024, keep an eye on the Olympic Games in Paris.
It will be the first summer Olympics since the International Olympic Committee (IOC) published its new framework for transgender athlete participation. Following the IOC framework’s publication, many of the international governing bodies for various sports, recognised as such by the IOC, have duly updated their rules on the same question. Many of those rules have proven controversial.
Participation at the games will depend on the rules of the given sport’s governing body, which creates the possibility of inconsistencies across different sports. Across the board, however, the rules are hotly disputed and some may well be subject to challenges in the near future.
At the same time, Russian athletes will again have to compete under neutral colours at the Paris games. This has been the case for some years now, but the issue now has a very different context. Russia was initially banned from competing as a nation following findings that it had engaged in a state-sponsored doping regime. Now, however, the ban will remain for the foreseeable future due to the invasion of Ukraine.
This has resurrected disputes as to whether Russian athletes should be allowed to participate at all. Many will remember similar disputes surrounding other recent competitions, including the All England Championships at Wimbledon and the banning of Russia’s football team from international competitions.
Figures within Ukraine’s government have suggested that the nation may boycott the Olympics if plans to allow Russian and Belarussian athletes go ahead – but in December 2023, the IOC announced that they would be entitled to compete as Individual Neutral Athletes.
Expect to see the dispute hot up as summer approaches and the Olympics near.