With London 2012 just days away, Katy Dowell examines the legal wranglings needed to get some athletes to the starting line
When the participating athletes arrive in London’s East End for the Olympics later this week they will have access to some of the country’s leading litigators and barristers. Never has the presence of the law been felt so keenly by the athletes and their teams, for the commercialisation of sport has created a lucrative field for lawyers and the outcome of the cases are shaping the future of all sports.
Of course it is not a new phenomenon and historically the Games have thrown up some interesting disputes.
In 1922, for instance, the court delivered a verdict in the matter of Abrahams v Herbert Reiach Ltd. The case was brought by two athletes, one who had run for Oxford University and the other for Cambridge, against a publisher who, they claimed, had reneged on an agreement to publish a book that they hoped would raise their profile in the build-up to the 1920 Antwerp games.
The pair wanted damages for the loss of publicity and for the loss of the opportunity to sell the book. The court held that they had suffered no loss under these heads, stating that: “A defendant is not liable in damages for not doing what he is not bound to do.”
The pair also claimed for the loss of the royalties they would have received but for the defendant’s breach of contract. The defendant paid £25 into court with a denial of liability. Mr Justice Sankey awarded £500 damages for the contract breach.
More noticeable cases came later on.
In 1979 the British Olympic Association (BOA) went to court to argue that it was entitled to claim tac inputs on the uniforms worn by the British athletes at the 1979 Games. The court rejected the claim. A year later there was a dispute over an electronic prototype setting machine for publishing the results of 1980 Moscow games.
As the games have taken on a more commercial edge, however, it is the Olympic integrity that has been put to the test. London 2012 will see the biggest anti-doping operation in the history of the Olympic Games, with 150 scientists on hand to test all competitors.
In recent years disputes over drug testing have become prominent, peaking in April when the Court of Arbitration for Sport (CAS) ruled that the BOA’s lifetime ban on drugs cheats contravened the World Anti-Doping Agency (WADA) code. The decision meant that Dwain Chambers, banned by the BOA for doping offences, could join the Team GB squad.
While Chambers had no direct connection with the dispute before CAS, he sits at the heart of a battle that has put law at the centre of the athletics world.
Before he tested positive for the banned steroid tetrahydrogestrinone (THG) in 2003 Chambers was considered to be a rocket on the track, running the 100m in under 10 seconds. His fall from grace was just as swift. He was handed a two-year ban from October 2003; stripped of the 2002 European Championship gold medal and the 4x100m relay gold – his three co-sprinters also lost their medals; and was forced to repay the $100,000 prize money he had won while on illegal substances.
After some time away from the track Chambers returned to the sport in June 2006 with his eye on the Beijing Olympics, but the BOA had other ideas. The Olympic Association had enforced a lifetime ban under a bylaw that stated athletes banned for substance abuse could not be eligible for team selection.
The athlete’s lawyers at Ford & Warren instructed Jonathan Crystal QC, formerly of Cloisters Chambers now at Argent, to challenge the validity of the byelaw. The BOA, meanwhile, turned to Baker & McKenzie partner Tom Cassels, who instructed Blackstone Chambers’ heavyweight David Pannick QC to fight the challenge.
Bakers was one of three firms to secure a mandate to advise the BOA after London won the Olympic bid, alongside Farrer & Co and Withers. BOA general counsel Sara Sutcliffe was a one-time Baker & McKenzie lawyer, although she is not a direct contemporary of Cassels, who says the authority will instruct the firm on specialist litigation – such as the Chambers case.
Cassels says the dispute was huge for all stakeholders. Not only did Chambers’ reputation depend on it but also his potential earning capacity. It was the same for the BOA. “If he’d been selected,” Cassel points out, “it would have meant that someone else wouldn’t have been.”
At the same time there were other athletes who wanted to continue to be eligible to compete at the Games but couldn’t because of previous bans. Shot putter Carl Myerscough was suspended in 1999 for two years but faced a lifetime BOA ban, while cyclist David Millar was stripped of his 2003 World Elite Time Trial following the discovery of syringes containing blood-boosting substances at his home.
In 2008 Mr Justice MacKay refused Chambers’ claim, blocking his way to the Beijing Games and potentially locking him out of the London event. Cassels and Pannick were then instructed by the BOA to head to the CAS to dispute claims made by the WADA that the byelaw was non-compliant with uniform doping rules. Bird & Bird partner Jonathan Taylor represented WADA at the court.
In April, a CAS arbitral panel of three – Professor Richard McLaren of Canada, David Rivkin of the US and Michele Bernasconi of Switzerland – ruled in favour of WADA.
Coming so quickly after a similar ruling in another case brought by WADA against the IOC, the outcome was hardly surprising. In October the CAS panel ruled that the IOC’s ‘rule 45’, introduced before the Beijing Games to prevent anyone banned for more than six months from competing at the next event, was “invalid and unenforceable” because it amounted to double jeopardy and did not comply with the WADA code.
Falling into line
Of course, for the athletes who may have missed out on a spot on the team because it has been handed to a one-time banned competitor, it is bitterly disappointing. That does not mean they will not abide with the court. According to Blackstone Chambers’ Michael Beloff QC, who is among the country’s top-rated sports advocates, all competitors and their management teams have already signed a memorandum agreeing to abide by CAS rulings.
Earlier this month (9 July) CAS unveiled the 12 arbitrators selected by the International Council of Arbitration for Sport (ICAS) to preside over the ad hoc committee.
The panel is headed by Puerto Rican Judge Juan Torruellan and Gunnar Werner of Sweden. Sitting on the panel as a representative of the UK is Pritchard Engelfield partner Stuart McInnes while 4 New Square’s Graeme Mew, who is a member of the English and Candian bar, has been selected for the UK and Canada.
The panel has 24 hours to settle any dispute brought before it during the Games. That means the panel will work through the night to ensure the Games are not brought to a halt by a blundering legal procedure.
The athletes streaming into London from around the globe will also be given access to some of the country’s leading sports lawyers on a pro-bono basis (see box). Beloff says many of the teams will travel with their own legal advisers but for those who do not, independent advice will be available. “This time the athletes will all be very well looked after,” Beloff comments, adding that their coaches and team officials will also have access to the legal expertise.
Firms that have been accepted onto the panel will advise on a number of areas including: sport; criminal; defamation and privacy; immigration and asylum; discrimination and personal injury.
As Cassels says, sport is becoming even bigger business. “We’re looking at it [sport] on a global level,” he says. “”Brands like Manchester United and the Premiership are well known in markets such as China, Indonesia and Vietnam, and we know what they want – compliance, intellectual property, brand protection. We’re really starting to click into that market.”
The Olympics offer the opportunity for a few lawyers to make their name on the global sporting stage. Most will be hoping that it isn’t the legal disputes that form the foundation of London’s Olympic legacy, but for a few lawyers it certainly will be.
The Olympic pro-bono panel
Brabners Chaffe Street
Farrer & Co
Mishcon de Reya
1 Crown Office Row
2 Bedford Row
2 Hare Court
4 New Square
4-5 Gray’s Inn Square
18 Red Lion Court
36 Bedford Row
Sports advocacy section
Mark Afeeva, Matrix Chambers
Katherine Apps, Littleton Chambers
Fiona Banks, Monckton Chambers
Stuart Cutting, Wright Hassall
Max Duthie, Bird & Bird
Paul Harris QC, Monckton Chambers
Laura Heeley, Wright Hassall
Elisa Holmes, Monckton Chambers
Brian Kennelly, Blackstone Chambers
Richard Lane, Wright Hassall
Adam Lewis QC, Blackstone Chambers
Graeme McPherson QC, 4 New Square
John Mehrzad, Littleton Chambers
Ian Mill QC, Blackstone Chambers
Jane Mulcahy, Blackstone Chambers
Tim Otty QC, Blackstone Chambers
Jamie Riley, 11 Stone Buildings
Daniel Saoul, 4 New Square
Jim Sturman QC, 2 Bedford Row
What did it take to prepare for the Olympics in 2012?
Acts of Parliament: 5
Statutory Instruments: 24
Affecting 61 Acts
What did it take to prepare for the London Olympics 1948?
Acts of Parliament: 0
Statutory Instruments: 0
The five pieces of legislation that made the 2012 Games
London Olympic Games and Paralympic Games Act 2006
Horseracing Betting and Olympic Lottery Act 2004
Olympic Symbol etc (Protection) Act 1995
London Olympic Games and Paralympic Games (Amendment) Act 2011
Sunday Trading (London Olympic Games and Paralympic Games) Act 2012