SPORTS AND LAW

QUESTION

The assessment criteria involve:

1. Evidence of depth and breadth of relevant research to inform your answers.
2. Understanding of relevant legal concepts as they apply to the sports industry.
3. Awareness of interaction between sporting rules and legal rules.
4. Application of sporting and legal rules to the factual problem.
5. Coherency and cogency in your answer.

SOLUTION

SPORTS AND LAW:

1)     As per the facts of the case it can be noted that one of the player Amir Khan was shown in a newspaper advertising for a particular brand of sports bike The Bestride racing bikes which were used for the London Olympics 2012 with the caption ‘be ahead of the game this summer with a bestride.’ These bestride bikes have been officially sponsored by Raleigh. In the given facts it can be observed that there Bestride bikes in a wrongful notion had advertised its bike with the photograph of Amir Khan without his consent. These kinds of advertising affect the privacy of the individual and Bestride did not have the right to deprive the individual of their privacy. Also Raleigh was known to sponsor the bike officially, and then the question arises as to how Bestride gave a newspaper advertisement with Amir Khan. From the facts it can be understood that it is a case of Pass Off which is a civil tort where Bestride had used the photograph of Amir Khan for publicity of its bike. It is common trend in now days are that celebrities are associated with publicity but this would not deprive them the right of privacy. The distinction between right to publicity and right to privacy should be properly understood by the commercial organizations before using someone’s photograph without their consent and for its own commercial benefit. Bestride used the photograph of Amir Khan in order to gain more publicity and to attract more customers, but it forgot to get in the consent of the player. It is a kind of cheating because people relate their favorite player using the bike and tend to purchase it. Thus, Amir Khan can be advised to file a right of publicity suit against Bestride bikes claiming compensation for utilizing his photo without his consent because being a celebrity he can claim that his photo has a certain commercial value and thus Bestride should have requested for his consent, which they had forgotten to take as they were only interested in marketing their bike than worried about the privacy of the player. This way they have committed a civil tort and thus they are potentially liable to pay compensation to the player for depriving him the right of publicity and right of privacy. It can be noted as per the commentators of English Common Law relating to protection of rights of trade symbols have always remarked the uncertainty concerning the scope of action of passing-off[1]. Here the protection of rights of trade can be termed to be protection of rights of privacy. Most of the advertising agencies have opted to the mode of advertising its products through celebrities mostly for playing well in the market competition ignoring the risk of importance[2]. In the present case we can argue on the basis of depriving the personal right of the individual only for the sake of commercial benefits because customers get crazy mostly on the brands commonly used by their favorite celebrities and the advertising agency is cashing on this favoritism of the customers. This behavior of the agency may even affect the goodwill of the celebrities and thus they can claim damages for damaging their goodwill and also their identity in the industry. Before filing his claim the payer has to prove the ‘classic trinity’[3] which includes the following three elements:

–        The Bestride bike attained goodwill and reputation in market by using his photograph

–        The defendant (bestride bikes) created an impression such that the public would by his bikes

–        The claimant (the player) may suffer because of this misrepresentation.

By proving the above stated elements, the player can file a suit of potential liability against the defendant and also he can claim damages for misrepresentation of his photograph which may put him in wrong terms with Raleigh which is the official advertising partner of Bestride Bikes.

REFERENCE:

• Maxim’s Ltd v. Dye [1977] FSR 364; C. & A. Modes v. C. & A. (waterford) Ltd. [1978] FSR 126, these cases have been criticised in Athletes Foot Marketing Associates Inc. v. Cobra Sports Ltd. [1980] RPC 343 and their effect severely limited in Anheuser-Bush Inc. v. Budejovicky Budvar N.P. [1984] FSR. 413
• Suman Naresh, Passing-Off, Goodwill and False Advertising: New Wine in Old Bottles, The Cambridge Law Journal, Vol. 45, No. 1 (Mar., 1986), pp. 97-125, Published by: Cambridge University Press, Article Stable URL: http://www.jstor.org/stable/4506830
• Lien Verbauwhede, Consultant, SMEs Division, WIPOi, Legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People, No. 3.3 point 3; http://www.wipo.int/sme/en/documents/ip_photography.htm
• Passing Off; An article discussing the tort of passing off, with reference to the case Reckitt & Colman Ltd v Borden Inc [1990] 1 All E.R. 873, also known as the Jif Lemon case, a leading decision of the House of Lords on passing off; http://www.tannerdewitt.com/media/publications/passing-off.php

2)     Facts of the case state that Fred Ronaldo had deliberately swerved in front of a Spain rider forcing him off the track and causing severe injuries to the Spaniard. On interview with Ronaldo he claims that he had not made it deliberately and that he was advised by his team coach Lance Armstrong that riders drive aggressively ready to ‘cut up’ on the opponents, it can be understood that the behavior of Ronaldo was basically on the advice and influence of his team coach and he was innocent of the consequences.

The issue of these facts is studies under the vicarious liability where the coach can be held liable for the action of the player. Ronaldo in his interview said that the reason for his behavior was the advice of his coach. Here, he cannot just put the blame on the coach; he is also eligible for potential liability for causing injuries to the players. Under the term vicarious liability, another person is held liable for the act of this person, for example, school or institution is held liable for the act of its students when they behave tortuously under the supervision of the school. Here we can have the coach vicarious liable to the Spaniard, but there is even potential liability of Ronaldo. As we understand from the facts of the case that the tort of Ronaldo was unintentional because he committed this act on the advice of the coach and also did drive recklessly. When it is proved that he has driven his vehicle aggressively in order to not allow the competitors to win he is held liable for his action. The Spaniard has all the rights to claim potential liability from Ronaldo and also the coach for the advice given by him. This advice given by the coach may be to boot the potentials of the player but still it can be termed as an act of negligence and encouraging the players to win in a tortious way. In a race it is essential to drive aggressively but not at the cost other person life, thus the act of both player and the coach prove negligence and based on this Ronaldo can be punished and also he can be held liable to pay compensation to the player. Under the act of duty to care[4] it is the duty of the player to care for the life of others and not to cause injuries to them just for the sake of winning the match and also race is that game where physical contacts are not required then the act of the player aggressively driving and causing injuries shows his negligence in breaching the duty to care other players. It is always to be understood that there is a duty of care owed by one player to other player, under these circumstances the Spaniard must prove that the reckless act had been occurred and also that Ronaldo acted unreasonably in a particular circumstance[5]. Spaniard also should prove the breach of duty to care and the damages incurred under the maxim volenti non fit injuria[6] without which he cannot claim damage from Ronaldo. Ronaldo can also be held liable under the tort of profanity, as he had used false language against the other players.

From the above observations it can concluded that Ronaldo can be held potentially liable for his act of negligence – breaching the principle of duty to care and for profanity. Once these are proved by the injured person Ronaldo is liable to pay compensation to the other player and also in this circumstance even the coach can also be held liable for the act of reckless driving of Ronaldo because the player did state that he acted on the advice of his coach.

REFERENCE:

• Legal Liability; http://www.sportnz.org.nz/Documents/faq/Full_Legal_Liability_Document.pdf
• Total Liability and Risk Management ppt, Liability of coach, slides 30 – 38;

http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCUQFjAA&url=http%3A%2F%2Fwww.depts.ttu.edu%2Fhess%2Fmiller%2FNegligence.ppt&ei=mFKfT5-AEoPJrQf5n9nmAQ&usg=AFQjCNF8BSZkeCf4I9j2IKklFS2cmj5OFA&sig2=hCbYqmackn_FVU9kTHiTtg

• Evans v Waitemata Pony Club [1972] NZLR 773 (NZ)
• 2000 Sydney Olympics
• Smoldon v Whitworth & Nolan [1997] PIQR P133 (England)

3)     Facts of the case state that Gareth Smith failed an anti-doping test after the completion of a race; Smith argues his innocence in presence of prohibited substance clenbuterol and explains that may be he had eaten a tainted meat the night before the race. These facts conclude that Smith can prove his innocence under doping theory and certain case laws. It is essential for Smith to prove his innocence such that he can play for the next game.

The anti-doping test explained in the case is controlled and regulated under certain codes to avoid doping in sports all over the world. This code also provides the different substances and methods that are prohibited during the course of the competition or out-side the competition. Athletes are held liable if they are proved positive of doping test even if the act happens directly or indirectly or even without the knowledge of the player as in the given case. Under the Anti-doping regulations the athletes are advised to have complete knowledge of what they actually intake and also must be careful while eating substances outside. In the present case Smith claimed that he was innocent of the drug and must have taken in the course of tainted meat. He can argue his case on the following case study of USA Thriathlon v Spence[7]r smith where even the player was held liable because there was presence of the prohibited substance in his urine samples and also that this when proved may result in action of strict liability against the player, but in the lack of proper evidence and also the calculation error in the concentration of the drug has resulted in questioning the reliability of the doping test and thus because of this the player was not held liable and the appeal against the player was dismissed. Thus, even Smith in the current case has to prove his innocence that he was innocent of intake of the drug by even having the samples of the tainted meat tested. It is very essential that he proves his innocence and once it is proved then he can continue with game or has to face strict liability. He can even have retest done without consuming anything such that the samples of the test B prove his innocence. It is an essential element and requirement for the athletes to prove their innocence or to prove them out of the doping test, if this is not done then he has face the liability of ban, which no players likes to go by. It is not only the duty of the player but also the duty of the testers to provide proper evidence of proof against the players such that no player is affected by wrong claim as it is their carrier. Proper evidence is essentially required for proving the player liable. Not only the testing authority has even the player had to give proper evidence for his innocence of the presence of the prohibited drug in his doping test. Mere saying of the word that I am innocent is not enough he has to prove his innocence to avoid ban. Evidentiary elements[8] play a major role, such that the innocent are not punished and the guilty are not left free. Smith in order to protect himself from ban has to prove his innocence that he had not taken in any prohibited substance and also the presence of the drug may be because of the tainted meat he had eaten the night before the game, with proper evidence that the tainted meat he had taken had the drug he can prove his innocence and also he can request for a second test. Evidence is the only way Smith can prove his innocence against the ban he may incur because the anti-doping test proved positive. If he cannot base his argument on proper evidence and case study he may be held liable for ban for life time or a set period which may affect his career.

REFERENCE:

• Dieter Baumann v. International Olympic Committee (IOC), National Olympic Committee of Germany and International Amateur Athletics Federation (IAAF), CAS, 22 September 2000
• Wilander and Novacek v Tobin and Jude (Court of Appeal of England and Wales, Civil Division, 20 December 1996)
• Drugs in Sports Act, 1999
• Doping control handbook; http://www.nada.nic.in/writereaddata/mainlinkfile/File1549.pdf
• Steven C. Wade, Robert D. Hay; Sports for educational institutions; Quorum Books, 1988, University of Michigan, 2008
• Deborah Healey, Sport and the Law, Edition 3, UNSW Press, 2005

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