The biggest event on earth needs the biggest and best legal support. Meet the lawyers taking on the Olympian task
In the BBC sitcom Twenty Twelve, the team tasked with delivering infrastructure for the London 2012 Olympic Games operates in an environment of barely managed panic and semi-chaos.
Luckily for London, the atmosphere in the real headquarters for the fast-approaching Olympics is somewhat calmer. The Lawyer meets Pieter de Waal, head of legal for the Olympic Delivery Authority (ODA), 80 days before the Games begins: he gives the air of a man who is confident that the job he is tasked with is running smoothly and has been done to the best of everyone’s abilities.
De Waal took over as head of legal at the ODA in October last year following the departure of Celia Carlisle, who had held the job since October 2006. De Waal says he originally moved across “with the work” from the London Development Agency, which kicked off the development process when the capital was awarded the Games.
The ODA was established by the London Olympics and Paralympics Games Act following the successful 2005 bid. It is a public body, unlike its sister organisation the London Organising Committee of the Olympic and Paralympic Games (Locog). The ODA has been responsible for the infrastructure and construction of various Olympic venues and training sites and is also involved in managing transport and utilities.
Locog is overseeing the staging of the games and issues such as sponsorship.
The number and variety of projects involved, says de Waal, means that putting on the 2012 Olympics really is a “mega-project”. “The legal services requirements are diverse,” he says. “The emphasis has changed over the course of the project as it went through different stages.”
On the legal front, the team’s responsibilities have moved from governance issues during the ODA’s setup phase through to public procurement and contract negotiation, infrastructure and construction, town planning, regulatory issues and finally to ‘close-out’ and legacy matters. It has managed 550 competitive tender exercises and drafted 2,500 contracts with 1,500 suppliers with a combined value of £6.5bn – not bad for a team that at its largest has numbered only 18 people.
“The broad mandate was not only to provide specific legal advice, but also to act as general counsel to the ODA’s executive management and to participate in the strategic decision-making,” explains de Waal. “It’s not just a corporate support service, it’s fully integrated into high-level decision-making.”
The ODA’s overall budget is around £6.8bn. While the total amount spent on external lawyers – £40m between the formal establishment of the ODA panel in 2007 and 2012 – might seem large, de Waal says it is only a fraction of the ODA’s total spend.
The whole exercise has also had to be carried out within a tight timeframe.
“This has been challenging, particularly to maintain good commercial tension and ensuring value for money in a climate of recession with a high insolvency risk and in a climate where delay cannot be afforded,” admits de Waal.
The procurement and construction side of things is now largely complete and the legal team is working to close out contracts, reach final settlements with contractors and, as far as possible, avoid disputes. It will also be advising on the statutory and governance aspects of handing over any outstanding obligations to the Department of Culture, Media and Sport, which will take over once the ODA is dissolved next year.
During ‘Games time’ it will be largely business as usual for the ODA, although de Waal and his colleagues will be keeping a watchful eye on issues such as transport, for which the organisation is jointly responsible with Transport for London. The ODA will be wound down by March 2013, save for a small team left to manage the transformation of the Athletes’ Village into residential property, so ensuring that close-out happens on schedule is key.
Throughout much of its existence the ODA legal team has relied heavily on advice from a small panel of external firms. De Waal says the ODA researched the market, inviting 15 firms to pitch through written proposals. Nine were invited to present in certain areas of work, which resulted in the appointment of Berwin Leighton Paisner , Clifford Chance , DLA Piper and Freshfields Bruckhaus Deringer . Pinsent Masons has also provided some advice to the ODA in its capacity as a town planning authority, while PSB Law has given some media advice. On occasion the ODA has instructed counsel directly on issues including public and administrative law.
In 2010 a second tender process was carried out to appoint a firm for disputes issues, and Squire Sanders was added to the mix.
The choices were influenced partly by the small size of the internal legal team, which meant that external advice would be required fairly often. The ability of the firms to supply secondees was also taken into account.
“We had to make sure there was enough strength and depth and that’s why we went for the big firms,” explains de Waal.
Each firm is instructed on specific practice areas and has been able to forward-plan its own resources to deliver on its ODA agreements. Their work is charged out to specific projects, which de Waal says has made the project managers aware of how much was being spent on lawyers, although the legal team has had overall control of the instructions and the relationships with external firms.
Along with all the planned work there have been some unforeseen issues for the ODA. Most recently de Waal found himself having to apply to the High Court for an injunction after protestors threatened to derail the construction of a training venue at Leyton Marsh.
Prompted by the Occupy London protest outside St Paul’s Cathedral last year, de Waal and his team had already done some contingency planning for protests and so knew the steps needed to be taken to shut down the Leyton Marsh protest.
“It’s a time-consuming distraction because it’s not something you’d generally be required to do as part of your day job, but it’s one of those contingencies that you plan for and that you’re prepared for when it happens,” he says.
The planning meant the ODA could obtain an interim injunction against the protestors within six days – a necessary step, de Waal says, because the protest was threatening to stop staff from getting on the site and health and safety was becoming an issue. He says the ODA has “no interest” in whether or not people protest, but has to meet its responsibilities for delivering sites on schedule.
Provided everything continues to go to plan, as it has throughout the project, de Waal will be looking for a new job in March.
“What I’ll take away from this is the sense of passion and commitment that people have demonstrated over the course of the project to work towards a common goal,” he says, speaking of the motivation provided by a sense that much of the general public is now behind the Olympics.
He says it is difficult to think of what will happen next and he finds it difficult to believe that the project is close to its end.
“We all knew that the ODA was going to be a sunset organisation, and the sun will set,” he concludes.
But the forecast is good that the sunset will be spectacular.
Pieter de Waal, head of legal, Olympic Delivery Authority
Legal capability: 12 lawyers, one paralegal and two secretaries
Legal spend: Annual budget of £1.1m; total external legal spend 2007-12 £40m
Main external law firms: Berwin Leighton Paisner, Clifford Chance, DLA Piper, Freshfields Bruckhaus Deringer, Squire Sanders and Pinsent Masons on planning authority matters
It’s just not cricket
The Olympic Delivery Authority (ODA) is being threatened with legal action by a group of businesses, including transport companies, cafes, garages and retailers. They are taking action against the Games panel over access to their premises, the lack of a compensation plan for impact on trading and a perceived failure to provide relocation packages for those worst affected.
The group, led by Graham Phelps who runs Phelps Transport in Hackney, has instructed Bindmans on the matter. He had previously told The Lawyer the businesses face “monstrous transport issues”.
Bindmans public law and human rights partner Paul Ridge, who is working with fellow partner John Halford on the issue, said there were many unintended victims of the Olympics.
Last month (21 May), in a letter seen by The Lawyer, Bindmans wrote to ODA director of transport Hugh Sumner and Transport for London (TfL) director of legal services Andrea Clarke setting out its claims for a statutory and judicial review. It said that all the businesses named in the claim will experience “significant upheaval” during the Olympic period due to road closures, restrictions and knock-on congestion.
The ODA and TfL are jointly responsible for the proposals and will implement the traffic regulation orders and notices.
Bindmans has accused the authorities of failing to:
“Acquaint themselves with the circumstances of the affected businesses.”
“Reach a rational view […] as to what constitutes reasonable access.”
“Consider what measures […] to mitigate the likely effect of the plans.”
“Establish compensation arrangements to address the effects of the plans.”
“Fairly consult on their plans at a sufficiently early stage, with an open mind or consistently with their commitments.”
The letter therefore claims that the plans and order in the current form are “unlawful”.
Ridge told The Lawyer that the proposals “could kill” some of the businesses, putting hundreds of jobs at risk.
He said: “They don’t want to fight in court and it’s with a heavy heart that this letter’s been sent.
“These are longstanding British businesses who are behind the London 2012 Olympics; but from day one they knew the likely impact and have been asking the ODA and TfL for their plans for some time.
“Step one would be to sit down and discuss this. We’re in favour of mediation and would rather find a solution, but as a block of 50 businesses they have the funds and can fight.
“Sadly the ODA aren’t listening. These businesses are the unintended victims as the Olympics organisers focus on the good news and bury their heads about the blighted businesses. Perhaps there’s a degree of fighting on too many fronts.”
An ODA spokesperson said: “Engagement with businesses affected by the Games has gone far beyond our statutory obligations. At every stage in making the orders the ODA has acted in accordance with proper procedures.
“While we appreciate that these changes will mean that certain operations of these businesses will need to be performed differently during Games-time, we are confident that the comprehensive programme of engagement has given them every opportunity to adapt ahead of their implementation.”
Olympics development work: who won what
Pinsent Masons partner Richard Ford advised the Olympic Delivery Authority’s (ODA) planning and decisions team on planning and legal issues surrounding: the Olympic Park venues (main stadium, aquatics centre, velodrome etc); the main press centre/international broadcast centre; ArcelorMittal Orbit tower; the Westfield Shopping Centre; and the Olympic Village. The firm won the role after advising a consortium of East London councils during the city’s bid for the Olympics.
Slaughter and May scooped one of the first choice mandates when it was instructed by new client Lend Lease to advise on its negotiations with the ODA to develop the £2bn Olympic Village at Stratford City. Corporate partner James Featherby and project finance partner Steven Edwards led on the deal. Edwards later also advised Lend Lease Europe on its facilities management agreements of the village and for Olympic Park infrastructure with the ODA.
Clifford Chance won the bid to advise the ODA on the construction of the main Olympic Stadium in 2006. Construction partner Tim Steadman led Clifford Chance’s team on the £250m project.
Sir Robert McAlpine won the bid to build the stadium.
Ashurst won a role advising on the £1.5bn Stratford City development. The firm was advising consortium the Stratford City Development Partnership (comprising Westfield, the Reuben Brothers and Stanhope), but that split up and Westfield bought all the shares. Westfield then chose to continue its working relationship with Ashurst rather than instruct long-term adviser Nabarro . Ashurst partner Hugh Lumby led on the deal, handling the agreements with governmental and Olympic agencies on
the delivery of land, the development rights and the provision of infrastructure, utilities and services to Stratford City and the Olympic facilities.
Herbert Smith had an advisory role on the Stratford City development. The firm, led by partner James Barnes, had been advising London & Continental Railways (LCR), which owns land on the site, on its involvement in the Stratford development since before London was awarded the Olympics, and was kept on by LCR to help with planning the Olympic Village and other key facilities for those games linked to the site.
Mishcon de Reya and Olswang teamed up to advise a joint venture between Delancey and Qatari Diar on its £557m purchase and long-term management of the Olympic Village (now called the East Village) from the ODA. Delancey and Qatari Diar bought 1,439 of the 2,818 homes in the village (the rest were sold to Triathlon Homes) along with six adjacent plots of land that could hold up to 2,000 more homes. Olswang handled the corporate parts of the deal and Mishcon the real estate aspects. Real estate partner Stephen Hughes led the Mishcon team alongside partner Nick Minkoff. Berwin Leighton Paisner partner Tessa Kimber advised the ODA on the sale.
Guardians of the Rings
In the immediate run-up to the Games, the London Organising Committee of the Olympic and Paralympic Games (Locog) and Freshfields Bruckhaus Deringer must navigate the last few hurdles without falling flat on their faces.
Sponsors and clients have been advised on how to be compliant with the Bribery Act in relation to hospitality programmes, and a UK bookmakers summit was held to tackle any threat of illegal gambling scandals.
This will also be the first Games played out in the full glare of social media.
Freshfields partner Tim Jones says his team must be on guard to interpret law and provide protection against threats such as ambush marketing through Twitter and IP infringement.
“Ambush marketing is when the competitor of a sponsor tries to get its name in front of the world’s viewers by freeloading on the Games,” says Jones. “There’s UK legislation to prevent that, but if it’s done through social media the question arises as to in which jurisdiction is the offence, where do we issue the injunction, from where do we seek remedies? This is a new area – there hasn’t been a Games where social media’s been as active. We’ll need to be on top of it.”
However, London 2012’s legal guardians have already been criticised for being ‘heavy-handed’ and stifling the Olympic spirit by threatening small businesses, charities and even an 81-year-old grandmother with litigation.
Malcolm Prescott, managing director of regional estate agents chain Webbers Property Services, was sent a Locog letter demanding removal of a window display made up of plastic gym hoops for the Olympic rings and torches crafted from old For Sale signs. Prescott said he had been made to feel like a criminal for putting up a few home-made banners as the torch relay passed through the village of Braunton. His branch manager Colin Thorne said the Olympics is not for the people, but for the official sponsors, such as Samsung and Coca-Cola.
Locog’s stern legal letters warn non-sponsor businesses to avoid Olympic symbols, as they “create an association” that allows the brand to benefit from the “goodwill and excitement” of the Games.
But goodwill was in short supply when 81-year-old grandmother of six Joy Tomkins hand-knitted a GB 2012 and Olympic rings logo outfit for a child’s doll. She was advised by her local council’s trading standards that she could not sell it for just £1 at a church fundraiser, as it was infringing copyright.
People are being prosecuted under the London Olympic Games and Paralympic Games Act 2006, and anyone found guilty can receive a fine of at least £10,000 and a potential jail term.
Rigid copyright, trademark and IP disputes have attracted scorn and mirth in equal measure.
But Jones defends the approach. “Locog’s done a lot of work protecting its big symbols,” he argues. “The IOC [International Olympic Committee] awards the Games and the right to market the Olympic symbolism on the condition that the organising committee does everything it can to stop the value of trademarks being impaired and protect the Olympics and exclusivity of sponsors who put big retail sums of money, resource and value into it.
“Locog’s done very well not missing a beat in terms of sponsorship deals through the worst of the financial crisis because companies are very comfortable that their rights are going to be protected and that there are powers in place to protect them. The legal team’s taken the lead on this and done a fantastic job in getting that message across.”
The way the ‘message’ has been put across is one of the thorny issues for the small businesses under pressure from an organising committee populated by well-resourced lawyers.
But Jones is unmoved. “We’ve spent a lot of the past few years talking about the rules,” he says, “educating people and working with trade associations to explain why the rules are necessary. We’ve also been proportionate and tended to phone people up.
But Locog can’t allow people to flagrantly disregard the rules, because if some were waved through that would put them in a difficult position with others.
“They can’t turn a blind eye to their responsibility to the IOC and the sponsors.”
Jones admits that one of very few contentious issues during the planning process was the dispute with local residents over the £42m temporary showjumping arena being built in Greenwich Park. Patrons of the Nogoe (No to Greenwich Olympic Equestrian Events) campaign against the project included Jonathan Sumption QC.
But there have been other bones of legal contention for Freshfields, Locog and the Olympic Delivery Authority. Recently G4S blamed ballooning security costs on Locog and the Government. The value of the G4S contract rose from £86m to £284m following a re-evaluation of the number of guards needed, from 10,000 to 23,000. The extra £198m is coming from the publicly funded contingency and was described by members of the Public Accounts Committee as “beyond belief”.
G4S says it was simply responding to Locog’s instructions as a client and was now managing a much larger operation.
Freshfields Bruckhaus Deringer corporate partner Tim Jones has led for the firm on London 2012 for the past nine years. With just weeks to go you cannot blame him for being excited.
“The Olympics is the biggest peacetime logistical event on earth,” he declares. “The second is the Paralympics two weeks later.”
Jones will know before the opening ceremony if the enormous legal undertaking of more than 300 Freshfields lawyers has been a success. With 27 July just weeks away, Jones’s instincts tell him that the Games will be “the icing on the cake”.
The ultimate sporting event on earth has been underpinned by the most ambitious legal undertaking the world has ever seen. Even the biggest Olympics cynics would not wish London 2012 to be dogged by a tragedy such as the Munich massacre of 1972 or a controversy akin to the US boycott of Moscow in 1980.
The realistic, modern-day risks the Games face are costly delays on infrastructure, transport inefficiency, illegal gambling and social media-prompted ambush marketing, which would jeopardise the £2bn private sector funding. Not the average remit of your average lawyer.
The legal responsibilities have been split into three. Freshfields became involved in 2003 when it helped London’s bid by advising on the governance structure, including the formation of the London Organising Committee of the Olympic and Paralympic Games (Locog).
After London won the Games in 2005, Locog was set up as a private entity, with former Goldman Sachs partner Terry Miller as head of legal, along with public body the Olympic Delivery Authority (ODA), which is responsible for delivering the Games by awarding contracts for the building of major infrastructure. Pieter de Waal is legal head at the ODA.
“Looking back [to 2003], London didn’t have a good reputation for decision-making or delivering big infrastructure,” Jones concedes. “For example, the Millennium Dome. One important issue in the bidding process was that we had to persuade the International Olympic Committee [IOC] that we could come up with a decision-making structure to enable us to move forward quickly.
“The key early challenge was persuading the world we could create this joint venture to simplify the organisation and then make it an attractive place for the private sector. From 2005 the ODA was busy awarding all the big contracts for the delivery partner, project manager and subcontracts for the Olympic Stadium, Olympic Village, the Velodrome etc. Locog ramped up its activity in early 2007, signing up some big sponsorship deals and moving towards the process of designing the look, feel and shape of the Games.
“The next landmark in the process was at the back-end of 2008, when Locog announced that it would run a competitive tender for a law firm to be an exclusive legal services provider, which we won in 2009.”
Freshfields won the opportunity to be an official sponsor in the first arrangement of its kind. The firm gets the right to associate itself with the Games (although there is no advertising allowed ‘on track’) in exchange for value-in-kind legal advice whenever Locog requires it.
“This is provided in two ways,” says Jones. “They can call on us to do work in our office and also through secondments to Locog. As time has gone on we’ve both found that secondment is more efficient because particular demands of the Olympics mean you have to be completely immersed in it.
“We’ve had about 40 people on secondment between 2009 and 2012, and at any given moment there’s been between 10 and 12 Freshfields lawyers making up half of the Locog legal team.”
As the sponsorship agreement is between Freshfields and Locog, the ODA has a separate panel of firms (see box, page 18), with Freshfields also sending lawyers on secondment to the ODA to work on the major deals over the past seven years.
If the London 2012 Olympic Games and Paralympic Games represents the pinnacle of every athlete’s career, it will have helped mould the careers of a wave of junior lawyers within Freshfields.
Jones says many of the Locog secondees are junior lawyers who will return to the firm with a wealth of experience that could prove invaluable in unpredictable financial markets.
“Very often they’ve been working from a blank sheet of paper, and there are a lot of financial issues with banks and the euro crisis with no legal precedent,” he notes. “It’s been a great opportunity for bright, young lawyers to be working under pressure at a very fast-moving pace with Locog towards an immoveable deadline. Writing contracts that have to be negotiated at speed while still being accurate is so important.
“The way Terry Miller [Locog head of legal] has set the legal team up is with our lawyers working very closely with the commercial teams and sitting next to the clients. It’s great exposure, and the legal team’s been at the centre of Locog as the body has grown immensely through the project.”
Indeed, Freshfields’ lawyers have assisted on the procurement of £700m worth of contracts. In 2009, for example, Freshfields’ commitment to the project stood at 15,000 hours of legal work – around £6m of billable time. Every single element of preparing and staging the Games has a legal aspect, including anti-doping rules, IP rights for the Olympic Torch, contracts for flowers and visa clearances for many of the 14,700 athletes.
As an example of the vast scale of the work the firm has done, Jones cites the fact that it took 8,000 streamlined online contracts to stage the Olympic Torch relay.
Some of the quirkier tasks that will have had Freshfields employees comparing notes in the cafeteria include checking the EastEnders script for brand protection issues, drafting revision orders to take powers over the sea at Portland, and negotiating with fishermen to use their boats as timekeepers for the races and harbour authorities in Weymouth.
Indeed, it looks like being the biggest procurement operation in the world, with bespoke horse ambulances, 10,000 portable toilets, condoms for athletes and catering contracts to feed 20,000 competitors and officials and 10.8 million ticket-holders.
Also on the shopping list were 270,000 clay targets, 2,400 footballs, 600 basketballs, 8,400 badminton shuttlecocks, 6,000 paper archery target faces, 200 canoe slalom gate poles and even six ironing boards and irons for the rhythmic gymnastics.
There is a significant section of the UK – including disrupted Londoners and those outside the capital who feel disconnected – who view the Games through the lens of the cynical taxpayer. Jones, however, shrugs this off, speaking of his firm’s Olympic achievements with a genuine pride verging on the Churchillian.
Jones’s vision began when, as London managing partner, he was on the hunt for ways to push the firm’s external client-facing and internal elements forward.
“I wanted to improve our brand awareness generally, our recruitment brand, corporate client base and internal engagement,” he says. “We’re an international firm for whom London’s hugely important, so there were potentially very significant benefits in helping to host the Games in the way that Locog’s gone about it.
“They’ve never draped the Games in the Union Jack flag: it’s more a case of, ‘here’s London welcoming the world to an international celebration’. And that fits our firm.
“That approach has become even more important with the way the map of the world’s up in the air in terms of power and influence. London’s sitting between China’s Beijing Olympics in 2008, the South Africa World Cup 2010 and the Brazil World Cup in Rio in 2014, the Winter Games in Russia and the football in Qatar.
“These are new emerging Bric economies and the one old-world city getting that global focus during this important decade of political and financial flux is London.
“For us it’s never been just corporate hospitality – the overarching remit is to be a good corporate citizen and to make the most of being a sponsor for four years.”
But it is not all about the public good. Freshfields is, after all, a magic circle firm with a flat 2011 turnover of £1.14bn to boost.
“We need to see the benefits,” stresses Jones, “and my instincts are that London business is performing very well and our brand’s increased.
“Another element is that we wanted to show we’re willing and able to commit to very long-term, complex projects. This multifaceted, multidisciplinary and multi-stakeholder model is an interesting one for the future, with such a close partnership between Freshfields and Locog.
“It can be relevant way beyond sports events, and the way we’ve tackled it is interesting.
“Some people would brand us as just an M&A or transactional firm, but the real skills we’ve brought into play are much broader. We’ve dealt with a lot of IP, employment, competition and planning law, so it was important for Locog to pick a firm that can apply themselves to all the different areas of specialist advice.”
Best of British
Recent research backs up Jones’s claims. Last month Acritas named Freshfields as the UK’s strongest law firm brand, with a one-year increase of 28 to 51 per cent.
Its expertise on the London 2012 project has led to new clients and places on the panel for the 2014 Winter Olympics in Sochi and the Qatar World Cup 2022, as well as advising on the Rio Summer Olympics 2016.
But with such diverse demands across the firm’s sectors, Freshfields’ involvement with the Games has needed 300 lawyers to meet the requirements of the tender.
So have long hours spent painstakingly crafting bizarre contracts with no legal precedent caused Olympic resentment and burnout among junior lawyers?
Apparently not, according to Jones, who points to the results of an internal survey of employees, which found that 96 per cent supported strongly Freshfields’ involvement with the Games.
He says a factor in employee engagement came from “absolutely inspirational” Paralympic athletes visiting the Fleet Street offices and speaking to staff.
“This wasn’t something I’d anticipated the full impact of,” concludes Jones.
The Olympics by numbers
£700m: the value of contracts that Locog has procured to deliver the Olympic Games
46: the total number of Olympic and Paralympic sports Locog is responsible for arranging, with 14,700 athletes, 21,000 media and 10.8 million ticket holders
15,000: the number of hours of legal work put into the project by Freshfields Bruckhaus Deringer lawyers in 2009
205: the number of nations competing
6,000: the number of paid staff at th