Getting back to basics - has sport become over-lawyered?

08 February 2013

Max Duthie

This article first appeared in Legal Week in February 2013.

In 1998, when I first started practising as a sports lawyer, it is fair to say that in the UK at least this was still something of a novelty as a career. Back then, relatively few law firms worked in sport on a properly consistent basis, with much of the legal work in the sector being done ad hoc by lawyers who were specialists in other areas of the law, servicing the occasional sports client as and when it was necessary. And something else was noticeable then too: there was generally a lot less lawyering done in sport, so the market did not require too many sports law specialists.

Now things are different. Legal 500 lists 54 UK firms in its six bands of specialist sports law practices. And while within that group the extent of the specialism will vary, a significant number of them (and most of the 18 firms in the top three bands) have one or more lawyers working exclusively in sport. And then there are the scores of in-house lawyers working in sports organisations, and a growing band of barristers with sports pedigree.

That is a lot of lawyers. Does sport really need that many lawyers? Might sport even suffer as a result of too many lawyers being involved? Would it not be better for sport if we returned to the romantic practices of yesteryear, when sports television contracts were negotiated in Soho wine bars and scribbled on cognac-stained napkins, with lawyers nowhere to be seen? Would sport not be in a better place if we still had rule books that were the size of a school fete programme rather than a telephone directory, and governing bodies could ban errant participants summarily after a quick review of the papers without the expense and distraction of lengthy hearings?

Lawyers can certainly cloud the issues from time to time. I have represented clients in disciplinary hearings where there have been 15 or so lawyers involved, acting for various parties, and this has meant that the debate has not always been about the central issues -- whether X stamped on Y’s head or squeezed Z’s testicles -- but has instead deviated into more esoteric issues such as whether the proceedings contravene the Irish constitution, or whether the photographic evidence has been fraudulently doctored. But my view is that, while there are of course exceptions where the presence of a lawyer (or several lawyers) has been a hindrance rather than a help, generally speaking the contribution of the sports law community has been a very positive one for sport, and the industry benefits greatly from the lawyers that service it.

Irrespective of whether or not it is a good thing, the inescapable reason for there being so many lawyers now working in sport is money. That is not to say that sports lawyers are avaricious: if anything I think the opposite is true (there are plenty of areas of the law that are considerably more lucrative if the lawyers were just interested in money). But, rather, the money in sport (there is now more than there has ever been) has meant that there are so many more opportunities now for lawyers to help. That money comes from a variety of sources: sponsors, broadcasters, paying spectators, lotteries and other public sources, and it is spent by governing bodies, event organisers, clubs and individual athletes. And as the numbers get bigger, the legal issues that arise have become that much more important.

Those sponsors and broadcasters will not invest their millions (in some cases, billions) in sport unless they are certain of the rights that they will receive in return. And so they need lawyers to negotiate, document and enforce their contracts. And those governing bodies (typically the owners of the significant rights) know they will generate that level of investment, and attract new participants to their respective sports, only if they can show that they are regulating their sports and events properly, maintaining integrity and enhancing the reputation of the sport (a reputation that for many sports is built on shiny, wholesome values of fair play, athletic pursuit, determination and teamwork). So they too need lawyers to draft comprehensive and water-tight rules and regulations, and help sanction those that breach them by (for example) cheating, doping, injuring or (heaven forbid) using colourful language on Twitter.

The regulatory aspect of sport, which is what keeps me busy, is not like working in the revenue-generating and altogether more cuddly commercial side of sport, where every pound spent on a transactional lawyer will result in (or at least coincide with and be sugar-coated by) the receipt of thousands of pounds of revenue. Regulators are in essence a cost to sport and less straightforward to justify.

When the 2013 Six Nations Championship starts in February, it will have in place an experienced set of tribunal members and citing commissioners (fresh from a weekend training conference) and a brand new set of disciplinary rules. The costs of putting this together (and specifically the cost of the input from a number of lawyers) are not insignificant. And yet there is no direct financial return for the organisers. But the reason why entities like Six Nations Rugby Limited (the company that runs the championship) make that investment is for the important indirect returns. If a player in the first match was to be seriously injured as a result of a cynical act of foul play by an opponent, SNRL needs to be sure that that opponent is properly disciplined in a fair process that will not be prone to a challenge in the courts. If he isn’t disciplined properly because the regulations are inadequate or unlawful, then the risk is that fans and players will become disillusioned and will turn away from the game, and sponsors and broadcasters will have no trouble finding other sports or activities in which to invest. That probably won’t happen overnight, and it probably won’t happen as a result of one incident, but it will happen eventually if the regulations continue to fail. Road cycling is an all-too-obvious (and topical) example of where unchecked cheating (sorry, Lance, that is what it is) has caused some sponsors and broadcasters to turn their backs.

So, in my view the answer is no, sport has not become over-lawyered, and the lawyers who inhabit this niche area of the law are a force for good. But, then again, I would say that.

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