EUROPE- European Commission and UEFA “strengthen their relations” with Arrangement for Co-operation

By Jonathan Salt

On 14 October 2014 the European Commission and the Union of European Football Associates (UEFA) signed an Arrangement of Cooperation (the “Agreement”) which shall expire on 17 December 2017. The Agreement comes as UEFA celebrates its 60th Anniversary and is “intended to strengthen the positive image of sport, in particular football, and fully exploit its potential in all areas of economic and social life. and the European Union”.

The Agreement addresses a range of common sporting issues (including match-fixing, doping, discrimination, player transfers and agents) alongside a commitment to increase effective protection of intellectual property rights. More specifically Article 2.12 states “The exploitation of intellectual property rights represents an important source of income for professional football, including redistribution to lower levels of the football pyramid. It is also a tool to guarantee independent financing of football in Europe. Thus, the effective protection of intellectual property rights also in this field is important and should be ensured.”

The Agreement provides strong support for UEFA’s Financial Fair Play (FFP) initiative stating “measures to encourage greater rationality and discipline in club finances with a focus on the long-term as opposed to short-term, such as the Financial Fair Play initiative, contribute to the sustainable development and healthy growth of sport in Europe”.

The parties have committed to regular bilateral and ad hoc meetings during the term (including a target of holding senior level meetings at least once a year). Finally, in order to further promote the social role of sport, in particular in relation to health and physical activity, the Agreement envisages collaboration between the parties in the context of the planned European Week of Sport.

Androulla Vassiliou, the European Commissioner responsible for sport, said: “This agreement is a significant step forward in our cooperation with UEFA, which is an important partner for the European Commission in its dialogue with the world of sport.”

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Italy – Gaming law changes further liberalize sportsbetting

Gaming laws in Italy for sportsbetting are increasingly trying to accomodate operators’ needs. The entrance of new major operators in the Italian sportsbetting market and the liberalization of gaming laws that for a decade had been very restrictive are now followed by further measures boosting the sportsbetting liberalization expected to increase the product offering in the market. Read the rest of this entry »

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Join us – Media & Entertainment Webinars – “Second Screen” – Tuesday 28 October @3:00 PM GMT (4:00 PM CET)

Join us on Tuesday 28 October from 4:00 PM to 5:00 PM CET, for a new session of our free Media & Entertainment Webinars. This session will focus on “Second Screen”.

Second Screen, Social TV and other enhanced broadcasting applications have become increasingly popular. They are changing the Media & Entertainment market, introducing new measurement metrics and allowing the implementation of sophisticated applications and services. What are the current technology and commercial trends? What regulatory issues? Read the rest of this entry »

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Big Data, Big Privacy Issues

By Patrick Van Eecke & Mathieu Le Boudec

Last week, a resolution on big data was adopted under the auspices of the 36th International Conference of Data Protection and Privacy Commissioners (hereafter: “ICDPPC”). After earlier guiding documents released this year by, among others, the Executive Office of the President of the United States, the Information Commissioner’s Office (UK), the Working Party 29 and the European Data Protection Supervisor, this resolution is yet another confirmation of the attention big data gets from regulators worldwide.

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China – Guidelines for Developing Sports into RMB-5-trillion-per-annum Sector – Tax Cuts for High-tech Sports Enterprises

By Ann Cheung

Yesterday (20 October 2014), as part of its agenda for boosting employment, domestic consumption and other areas of the Chinese economy, China’s Cabinet, the State Council, issued new guidelines 《国务院关于加快发展体育产业促进体育消费的若干意见》 (国发〔2014〕46号) (the “Guidelines“) to enhance the country’s fast-growing sports industry.  The Guidelines aim to grow output of China’s sports sector from 0.6% to 1% of its total GDP. 

The Guidelines arrive as Beijing is competing with Almaty to host the 2022 Winter Olympic and Paralympic Games, and the International Olympic Committee is expected to choose the host city at its Session in Kuala Lumpur on 31 July 2015.

Following the release of the Guidelines, stock values of various sports-related companies listed on the Hong Kong Stock Exchange closed up significantly today.

Please find below a summary of the Guidelines:-

New Goals

The State Council hopes that, by 2025, the Chinese sports sector will:-

  • promote national health and fitness through various sports to see more than 500 million citizens regularly exercising;
  • generate a sustainable national income of RMB 5 trillion (equivalent to approximately USD 815 billion) per annum;
  • create an average area of sports grounds in the country that is beyond 2 m2 per capita; and
  • enable public sports services to be accessible to all of its population.

Main Missions

At present, the Chinese sports model is a strictly controlled pyramid with most professional athletes selected at a young age and trained year-round for international competitions in specific sports.  Sports in China are currently not as commercialized as in many other developed countries, and sports activities are always considered as the responsibility of the State, which means most of the sports resources, including organizing and staging rights, are held by the State, and very few private entities can get involved.  To develop a market-oriented sports industry, the State Council plans to:-

  • promote popularization of three types of ball sports – basketball, football and volleyball – for example, it will set up a long-term development plan for football, which is relatively undeveloped compared with other ball sports in China, and such development plan will include construction of sports facilities and promotion of football on campuses;
  • professionalize more sports events, including setting up professional sports leagues, improving corporate governance structure of sports clubs and establishment of a modern enterprise system in the sports sector;
  • provide financial support and form a policy system that is conducive to the sports market’s rapid growth by eliminating industrial, policy and regulatory barriers, such as complex administrative approval procedures;
  • implement measures that are expected to change the current operation mechanism of the sports industry in China;
  • open all sports fields that are compliant with existing laws and regulations to the public; and
  • encourage private capital to invest in the construction of ice and snow sports sites.

Tax Cuts for High-tech Sports Enterprises and Other New Policies

To lower the operational costs for the sports industry, the State Council has decided to lower business income tax to 15% for those identified as high-tech sports enterprises – this rate is considerably lower than the approximately 25% rate for other industries.

In addition to the tax cuts for sports enterprises, the State Council plans to:-

  • formulate and implement policies to protect the business interests and the intellectual property rights of sports enterprises, who are encouraged to increase their profits from advertisements and sponsorships;
  • enable more citizens to participate in sports by requiring local governments to incorporate public expenditure on sports into their annual fiscal budgets;
  • formulate and implement policies to introduce private capital into the sports sector via listing or bond issuance by qualified enterprises;
  • encourage social capital to invest in the construction of sports facilities and the supply of sports-related products and services; and
  • encourage foreign capital investment in the domestic sports industry.

Execution Plan

The first step of the State Council’s execution plan is to amend the PRC Sports Law 《中华人民共和国体育法》 in accordance with the Guidelines.

For more information, please contact Ann Cheung.

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Japan – Amendments to the METI Guidelines on Electronic Commerce and Information Property Trading

By Keitaro Uzawa and Ann Cheung

The Ministry of Economy, Trade and Industry of Japan (“METI“) recently revised the Interpretative Guidelines on Electronic Commerce and Information Property Trading (“Guidelines“), which apply to all online business operations in Japan and clarify how the Civil Code, which governs Japanese commercial contracts, and other relevant laws, such as the Act on Special Provisions to the Civil Code Concerning Electronic Consumer Contracts and Electronic Acceptance Notice (Act No. 95 of 2001) (“Electronic Contract Act“) and the Act on Specified Commercial Transactions (Act No. 57 of 1976), are applied to various legal issues relating to electronic commerce and information property trading.

Existing sections of the Guidelines have been amended to provide detailed guidance on certain issues surrounding electronic commerce.  The following existing sections of the Guidelines have been amended:-

  • Mistakes caused by consumers’ erroneous operations (please see Point 1 below for an overview)
  • Expressions of intentions by minors (please see Point 2 below for an overview)

New sections have been added to the Guidelines in order to clarify confusion surrounding end-user license agreements between operators and users in relation to the distribution and streaming of digital contents (including electronic publications, music, online games, videos, etc.) on the internet.  The following sections have been added to the Guidelines:-

  • Definition of “digital contents” (please see Point 3 below for an overview)
  • Legal issues concerning the provision of digital contents on the internet (please see Point 4 below for an overview)
  • Use of digital contents after termination of a digital contents end-user license agreement (please see Point 5 below for an overview)
  • Obligation of operators to redistribute electronic publications (please see Point 6 below for an overview)
  • Rights in relation to cybernetic items in online games (please see Point 7 below for an overview)

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Japan – Google Privacy Case

By Matthew Dougherty

On 9 October 2014, Judge Nobuyuki Seki of the Tokyo District Court granted a provisional injunction against Google Inc. (“Google“) and ordered Google to delete search results of a plaintiff who claimed his privacy rights had been violated because Google’s search engine results of the plaintiff’s name included news articles suggesting the plaintiff had a criminal past.  In addition, the plaintiff claimed that he had received death threats because the search results suggested the plaintiff had a criminal past and that made his claim for damages immediate and actual. 

While the court’s written opinion in this case has not been made public, it was reported that the plaintiff claimed that his life had been threatened because search results of the plaintiff’s name included information over 10 years old that suggested the plaintiff had a criminal past.  Judge Seki’s ruling found that some of the results infringed on the plaintiff’s personal rights, that the plaintiff had suffered actual harm as a result and ordered Google to delete 122 of 237 search results.

This case is similar to the ruling by the European Court of Justice that found people had the right to request that Google in the EU remove links to results generated by a search for their name, making it difficult for third parties to find them. 

However, it is still unclear whether Japanese courts will adopt and recognize a “right to be forgotten”.  This case was decided in a provisional trial at the district court level and has not been considered by Japanese appellate courts or the Japanese Supreme Court.  It should be noted that in a separate case earlier this year, a court in Kyoto dismissed a claim filed against Yahoo Japan because the plaintiff in that case actually did have a criminal record.

The right of privacy from search results is therefore not settled in Japan and whether a Japanese court will find search results infringe on personal rights may depend, in part, on whether the search results are accurate and/or part of the public record.  Resolution of this question will likely require a ruling from the Japanese Supreme Court.

For more information, please contact Matthew Dougherty.

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UK: High Court clears the way for tighter control of online gambling

The Government’s remote gambling reform has moved a step closer after the High Court dismissed a legal challenge to the measure, which seeks to bring the licensing of UK-facing remote gambling operators under UK control, no matter where the operator is located.

The Gibraltar Betting & Gaming Association brought judicial review proceedings in order to challenge the Gambling (Licensing & Advertising) Act, under which offshore operators would have to obtain British licence from the Gambling Commission, in order to take bets from British-based customers. The GBGA argued the Act interfered with the right to free movement of services, guaranteed under EU law. However, the judge ruled that the “the new regime serves a series of legitimate objectives” and that the measures are “neither disproportionate, nor discriminatory, nor irrational”.

The legislation will come into force on 1 November 2014.

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FIFA Women’s World Cup – Artificial Turf Dispute

In the lead up to the 2015 FIFA Women World’s Cup, which will be hosted by Canada (World Cup), a group of the world’s elite female football players (including the FIFA Women’s World Players of the Year for 2012 and 2013, Abby Wambach and Nadine Angerer respectively, and Samantha Kerr and Caitlin Food of Australia) have commenced legal proceedings against FIFA and the Canadian Soccer Association (CSA) in the Ontario Human Rights Tribunal.

The Legal Proceedings

The players are asserting in their application that the use of venues turfed with synthetic grass during the World Cup is discriminatory as it stands in direct contrast to the CSA’s and FIFA’s solicitude towards ensuring that the FIFA  Men’s World Cup matches are consistently played on natural grass.[1] Read the rest of this entry »

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Essendon v ASADA: Joint doping investigation legal, says Federal Court of Australia

On 19 September 2014, Australia’s Federal Court dismissed the Essendon Football Club’s (Essendon) litigation against the Australian Sports Anti-Doping Authority (ASADA). Justice Middleton determined that the “joint investigation” that ASADA conducted with the Australian Football League (AFL) was within the statutory powers granted to ASADA.

The court action was launched in response to 34 “show cause” notices issued by ASADA to players at the club for the supplements regime administered at Essendon in 2012. The supplement allegedly administered is Thymosin Beta 4, which is a substance banned under Class S2 of the WADA Code.

For more background, see our previous article here.

Issues in the proceedings

Did ASADA have the power to conduct the “joint investigation” with the AFL?

  1. Did ASADA conduct the investigation for improper purposes (to circumvent the limitations of its own powers by using the AFL’s contractual “compulsory powers” to compel the interviewees to respond; and to assist the AFL investigation)?
  2. Did ASADA breach obligations of confidentiality or restrictions on disclosure regarding the conduct of the investigation and the provision of information to the AFL?
  3. Did ASADA act for improper purposes in providing information (e.g. an Interim Report) from the investigation to the AFL?

ASADA’s broad powers under the Act permitted a “joint investigation”
There was no dispute from either party that in carrying out the “joint investigation”  with the AFL, ASADA obtained a benefit they did not otherwise have. Whilst ASADA had no power to sanction or compel the players to provide assistance, it obtained the benefit of what the AFL had -  the contractual power of the AFL to compel Essendon players and personnel under the “AFL Code” and “Players Rules” (contractual obligations) to participate in an investigation and to answer every question asked at an interview.[1]

Justice Middleton analysed the Australian Sports Anti-Doping Authority Act 2006 (the Act) in great detail and concluded that the powers and functions afforded to ASADA should be broadly construed to allow them to do all things “convenient to be done in connection with the performance of their functions”. In interpreting the text of the Act, Justice Middleton deemed that the Chief Executive Officer of ASADA was permitted:

  • “to do all things necessary or convenient to be done for or in connection with the performance of his or her functions” (section 22 of the Act);
  • to “investigate possible anti-doping rule violations” (section 13(1) of the Act;
  • to “disclose the information to all or any of the following: … a sporting administration body” for the purposes of, or in connection with, such investigations (clause 4.21 of the National Anti-Doping Scheme).

Therefore, Essendon’s submission that the investigation was unlawful as the Act makes no reference to a “joint investigation” was extinguished by ASADA’s broad power to do all things “convenient” to be done “in connection” with the performance of their functions.

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