14 December 2009
While the World Cup is still several months away, firms in South Africa have already begun to tackle the legal issues surrounding the tournament. Tom Phillips reports
Next year’s World Cup in South Africa will truly have something for everyone - especially lawyers. Even those who cannot stand the game itself (whoever they are) will find there is plenty to appreciate off the pitch in the world’s biggest football tournament.
An estimated three million people are expected to visit the country throughout the event and hundreds of millions more will watch the action unfold on TV from the moment the referee blows the whistle at South Africa versus Mexico in Johannesburg on 6 June.
While the football teams have been working towards the tournament for some 18 months, the work for law firms started even before Fifa president Sepp Blatter announced the country would be host back in 2003.
And since then, a steady stream of instructions have poured through the doors of South African firms like fans on match day, ranging from work permits for the football players, emergency medical services, telecommunications and broadcast technology, vendors, construction companies working on the stadia and railways, through to the multitude of issues with the 700,000 spectator tickets. With England’s bid for the 2018 competition at a pivotal moment, the experiences of South African lawyers are worth listening to.
“People underestimate the amount of legal work that’s involved in an event of this nature,” says Mansoor Parker, a partner at Edward Nathan Sonnenburgs (ENS) and co-ordinator of the firm’s work in relation to the World Cup.
It is a mandate that began in the run up to the bid when ENS, the largest law firm by lawyer numbers in South Africa, began advising the 2010 Fifa World Cup Organising Committee South Africa, known locally as the Local Organising Committee (LOC).
“We then began assisting Fifa when South Africa won the bid - so it’s been good involvement for the firm for over seven years. They have been good clients and it’s a magnificent event to work on,” says Parker.
Prior to winning the bid, the LOC called on Parker’s tax knowledge (he is a partner in the tax practice at ENS) to meet the strict requirements for new tax measures set by Fifa (part of the so-called ‘Bid Book’ prepared by those vying to host the tournament).
Instead of “tinkering around” with existing legislation the firm and the LOC decided to create new rules that would “naturally fall away” after a few years.
But this work was just the start of years of instructions from the LOC and Fifa that have touched upon nearly every area of practice at the firm.
Of course, this is not the first time the country has run a large sporting event. The Rugby World Cup (1995) and the Cricket World Cup (2003), although both much smaller in scale, were something of a dry run and gave the country’s law firms valuable experience in what to expect.
Both events were a success for South Africa. They were also a success for IP lawyers. It was over those tournaments that legislation pertaining to ‘ambush’ marketing and branding were created and enforced with zeal. And it appears the upcoming World Cup is no different.
In the Cricket World Cup, spectators were prevented from entering the cricket ground if they were wearing t-shirts given out by a beer company outside.
With millions more people participating in the World Cup and the cost of sponsorship many millions of rand higher, lawyers have already seen examples of the government’s efforts to prohibit businesses from ‘creating the impression’ that they have an association with the tournament.
In April 2008, the Pretoria High Court found that the display on the roof of the Eastwood Tavern declaring “World Cup 2010”, accompanied by flags from different soccer playing nations, constituted trademark infringement, passing off and unlawful competition.
Fifa subsequently brought ambush marketing and trademark infringement proceedings in December 2009 against supermarket group Metcash, for marketing and selling its “2010 POPS” lollipops. And both cases were at least two years away from a single ball being kicked.
Bernadette Heever, an IP partner at Webber Wentzel, warns those attempting to associate themselves with the World Cup without the sponsorship rights to think twice.
“If you look at the legislation it’s not surprising, but the courts are interpreting it very strictly. Fifa is prosecuting people and I’m advising our clients who seek advice to suggest an alternative way of advertising,” says Heever.
Other issues that Heever is advising on relate to the use of the much-sought-after tickets. Ticket holders, including those bought by businesses for corporate entertainment, must gain the authority from Fifa to use them as competition prizes.
“As we get closer to the start of the tournament it’s becoming more of a problem,” says Heever, who has received three requests for advice on the issue in the past six weeks. “A lot of people who have bought hundreds of tickets for corporate gifts or prizes don’t know what to do with them because they have no authority. We would advise anyone purchasing them for this purpose to gain the authority up front.”
Plenty for UK firms to think about then this time next year (Fifa is planning to make its announcement on the 2018 bid in December 2010).
ENS’ Parker says if UK players want to pick up work from the likes of Fifa and the organising committees they will need to have expertise in a broad range of practice areas.
“If a firm doesn’t have enough capacity it could be difficult,” he adds. “Energy, IP, IT, projects… the nature of the procurement surrounding the competition requires specialists. When you have all that under one roof it’s much easier for the organisers.”