Did he jump or was he pushed?

Is your boss making your job unbearable? If so, what can you do about it?

That is essentially the question which faced both Kevin Keegan and Alan Curbishley prior to their recent departures from Newcastle United and West Ham United respectively.

It is nothing new to see high profile football managers being swiftly removed from their post when results do not meet with expectations.

In the case of Keegan, he felt that the scope of his authority as manager was being undermined by two directors, namely Dennis Wise and Tony Jiminez. Keegan asserts that he had been given assurances, prior to his appointment as manager, that he would have control over both transfers in and transfers out of players. On the other hand, the Club states that Keegan was made fully aware of his limited remit in respect of transfers and that he also worked within that remit from 16 January 2008 until his departure.

In the absence of any settlement agreement, which to outsiders seems unlikely, one possible legal redress available to Keegan would be to bring a constructive dismissal claim in an employment tribunal. That would involve Keegan showing that there has been a repudiatory breach of his employment contract by the Club, i.e. a breach that is sufficiently serious to go to the root of the contract.

This may include, for example, a breach of what is known as the implied obligation of trust and confidence that exists in every employment relationship between employer and employee. The legal test is that:

"an employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee."

What does that actually mean in practice?

A breach of the implied obligation of trust and confidence need not be an obvious one-off event and may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. This is known as the "last straw" doctrine. The "last straw" need not itself be a breach of contract provided that the cumulative series of acts taken together amount to a breach of the implied term. Keegan may attempt to argue that a build-up of transfer decisions, including the sale or attempted sale of players he wished to keep at the Club, basically amounted to the last straw.

Similarly, it has been reported that Curbishley expected to be in full control of West Ham United's transfer dealings and that developments such as the sale of Anton Ferdinand and George McCartney in the August transfer window were not consistent with that.

It is perhaps likely that football clubs and managers alike will give greater consideration at the time of appointment to what the employment contract says in respect of transfer dealings.

19 November 2008

The Tevez affair – who decides?

An independent Football Association (FA) tribunal led by Lord Griffiths recently ruled that West Ham United must compensate Sheffield United in connection with a breach of FA rules and the latter's relegation from the FA Premier League in May 2007. The tribunal will not set the level of compensation until around March 2009. Meanwhile, Sheffield United are seeking an injunction from the High Court to prevent West Ham from taking their case to the Court of Arbitration for Sport.

Background
West Ham retained top-flight status in 2007 due in no small part to the contribution of Carlos Tevez. The Argentine's services were owned not by the football club but by the businessman Kia Joorabchian and two offshore companies. Third-party ownership is banned under the Premier League's rules, and Lord Griffiths found that West Ham had failed to terminate all third party agreements at the relevant time.

Tevez's winning goal against Manchester United on the last day of the 2006-2007 season effectively confirmed Sheffield United's relegation, sparking a scandal that continues to engulf the Premiership. Following the independent tribunal's decision in October, Sheffield United are seeking compensation in the region of £50 million, with a number of its former players also reported to be claiming a total of around £5 million. West Ham were previously fined £5.5 million by the Premier League.

Recent developments
The club are now attempting to appeal the FA Tribunal's decision to the Court of Arbitration for Sport (CAS), a body whose jurisdiction the FA does not recognise. Rule K5c of the FA rules explicitly states that by committing to the FA's own arbitration process, "the parties shall be deemed to have waived irrevocably any right to appeal, review or any recourse to a court of law". The FA's rules do recognise other dispute resolution mechanisms, but this does not include the CAS. Indeed, the rules even go as far as to seek to exclude the involvement of the English Courts.

As a result, West Ham have no automatic right of appeal. Sheffield United are seeking a permanent injunction from the High Court that would preclude West Ham from going to the CAS.

This has brought into sharp focus the question of whether the FA should follow the lead of Uefa and Fifa and recognise the CAS as the ultimate dispute resolution mechanism in football.

The Evolution of the CAS
The Lausanne-based CAS became operational in 1984, after the International Olympic Committee (IOC) had expressed a desire to create a forum to resolve an increasing number of cross-border sports-related disputes. Although initially intended to hear Olympic disputes, its remit has been expanded.

A 1993 Swiss federal court case provided the impetus for a complete reorganisation of the CAS. In Gundel, a show-jump jockey appealed his disqualification for a drugs offence to the CAS, which confirmed his disqualification but reduced both the length of his suspension and the level of his fine. A public law appeal was then made to the Swiss Civil Court, which found that, although it did offer guarantees of independence, the CAS was not sufficiently independent to be a valid arbitral body where a particular case involved the IOC itself.

In order to make the CAS more independent of the IOC, the Code of Sports-related Arbitration has governed the operation and procedure of the CAS since 1994. There are now four procedures open to parties:

1. the ordinary arbitration procedure;
2. the appeals arbitration procedure;
3. the advisory procedure, which is non-contentious and allows certain sports bodies to seek advisory opinions from the CAS; and 
4. the mediation procedure.

In 2007, the CAS had 275 arbitrators at its disposal, all of whom were, in the words of the Code, "personalities with full legal training, recognized competence with regard to sports law and/or international arbitration, and a good knowledge of sport in general". These arbitrators must carry out their functions with total objectivity and are bound by a duty of confidentiality.

In the Tevez case, West Ham United filed an appeal with the CAS in October of this year. The CAS is currently considering whether, as a preliminary issue, it has jurisdiction. As a result, football clubs and many other sports – not to mention sports lawyers throughout the world – await with interest the decisions of the three fora that, somewhat bizarrely, are all now dealing with the case simultaneously: The Lausanne Court, the English High Court and the independent FA tribunal. By the time the FA tribunal convenes a remedies hearing the matter may already have been decided by a Court sitting more than 500 miles away.

19 November 2008

Sports shorts

Liverpool FC ruffle feathers

Liverpool Football Club has applied to the UK Intellectual Property Office to register the iconic image of the Liver bird, which adorns the Club's crest on the Club strip and other merchandise, as a trade mark.

The Club already has trade marks in respect of "This is Anfield" and "You'll Never Walk Alone".

The origins of the mythical Liver bird are the subject of much debate and speculation, but Liverpool County Council have made it clear that they view the Liver bird as belonging to the people of Liverpool and may well seek to submit an opposition to the application. Any such opposition would require to be lodged by 22 November 2008, which is the expiry of the period for oppositions.

In assessing whether the trademark should be granted a key test is whether there is likely to be confusion in the mind of consumers or whether this particular image of the Liver bird has acquired distinctiveness - ie that the relevant public, in this case primarily football fans, will associate the mark with the Club. The fact that Liverpool FC have been using the image for a considerable period of time is likely to support this argument that it has acquired distinctiveness. On the other hand, it could be argued that the mark is not distinctive due to a likely conceptual association of liver birds with the city of Liverpool (or its council) regardless of the fact that the actual images used are different.

The Club's application covers a wide range of uses, including on paper products, leather products, beer mats, kitchen utensils and, perhaps optimistically, trophies. If the trademark is granted then any unauthorised use of the image may entitle Liverpool FC to bring an action under the Trade Marks Act 1994.

Going for Gold

Seven sports seeking inclusion in the 2016 Summer Games have presented their cases to the International Olympic Committee this month.

Officials from baseball, roller sports, softball, golf, karate, squash and rugby sevens are advancing their cases in a bid to fill the two remaining slots available for the 2016 Games.

Baseball and softball were voted off the London 2012 list three years ago.

Rugby was removed from the Olympic program in 1924 and is promoting the merits of rugby sevens rather than the more established 15-a-side competition. Meanwhile golf, which was last included in the Olympics in 1904, proposes to return with individual men's and women's tournaments.

Detailed technical proposals from each sport will be submitted and considered in advance of a final decision being made in October 2009.

19 November 2008