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Prawo sportowe 09.05.2024

[Sports law] A few words explaining what sports law is and who a sports lawyer is and what he really does. | Sports law in Ponad and the European Union

[Sports law] A few words explaining what sports law is and who a sports lawyer is and what he really does. | Sports law in Ponad and the European Union

In this post, we present answers to a few questions related to sports law, also known as "lex sportiva," which often arise in our sports law practice conducted within ADVISER Armknecht & Partners attorneys-at-law Sports Law Firm. These questions were asked to the managing partner of our law firm, Bartosz Armknecht, who as a leading sports lawyer in our firm specializes in sports law. Bartosz Armknecht represents athletes in legal disputes and negotiations with sports clubs, both football players and female footballers, as well as athletes from other sports such as volleyball, basketball, combat sports including MMA, and athletes practicing table tennis or handball. Bartosz's legal experience in sports law is not limited to representing athletes in negotiations or in cases before sports arbitration courts. He also handles matters for football clubs, basketball clubs, or sailing clubs. These matters include sponsorship agreements, advertising agreements, player contracts, agreements with sports agents, including football agents, as well as ownership changes in sports clubs. His experience extends beyond traditional legal services and sports law advice. He also has experience in sports marketing, creating branding strategies in sports during crisis situations, as well as restructuring sports clubs or designing the structure of sports clubs (corporate governance).

 

 

What will you learn about sports law and a sports lawyer from this post?

In the form of a conversation in this blog post by the law firm ADVISER Armknecht & Partners attorneys-at-law, which conducts a sports law practice as a sports law firm, we will try to answer questions such as:

  • What is sports law?
  • What is the subject of regulation in sports law?
  • Who is a sports lawyer and what matters do they deal with?
  • What is the practice of applying sports law?

 

Is there a definition of sports law? | ADVISER Armknecht & Partners – Sports Law Office in Poland

This is an excellent question. Here, I must clarify that in the legal field, there are several types of definitions, including legal definitions established in legal acts, doctrinal definitions developed by legal doctrine and case law—including decisions from sports arbitration courts such as the Basketball Arbitration Tribunal (BAT) at FIBA, sports tribunals like the Court of Arbitration for Sport (CAS), and ordinary courts. Additionally, there are dictionary definitions and others. However, let's focus on the doctrinal definition of sports law.

Sports law is not homogeneous in terms of its subject of regulation, sources of norms, or their nature. This is because it is an interdisciplinary field of law whose norms regulate civil liability, contractual relationships (such as player contracts and transfers), and other areas of this social activity—such as the organization of mass events. The sources of sports law norms are also diverse, being established by national legislative authorities, the European Union, and sports federations.

For example, in the Polish legal system, the Act on Sport of June 25, 2010, and the Act on the Safety of Mass Events of March 20, 2009, are in force. Regulations established by sports federations pertain to specific disciplines and are multi-level. Using football and basketball as examples, at the international level, FIFA and FIBA respectively, operate, while at the national level in Poland, the Polish Football Association (PZPN) and the Polish Basketball Association (PZKosz) operate. In Germany, the corresponding organizations are DFB (German Football Association) and DBB (German Basketball Federation), each setting its own regulations for the sport.

Therefore, it is crucial to establish the so-called legal environment in each case for a given discipline. Returning to the definition of sports law, I accept that it is the law whose norms regulate legal relationships in sports and are commonly recognized as law within that sport. According to CAS, sports law comprises norms that participants in a given sport must comply with (see Arbitration CAS 98/200 AEK Athens and SK Slavia Prague / Union of European Football Associations (UEFA), award of August 20, 1999, paragraph 156). This is, of course, a simplification, but these are binding norms in a given sport that may originate from both state authority and sports federations. It is important not to equate sports law with the rules of the game, such as those for playing football.

I understand that sports law regulates the organization of competitions and sporting events? | Sports law Poland

Exactly. To better illustrate these issues, let's stick with football. Legal relations between clubs and players at the international level are governed by the RSTP (Regulations on the Status and Transfer of Players), which stands for the FIFA Regulations on the Status and Transfer of Players, and at the national level by the regulations of national associations, such as the Polish Football Association (PZPN). The RSTP regulates the general principles of football contracts, transfers, etc. However, the legal form of a football contract is determined by national football associations, which must define what a football contract essentially is and its legal form.

In Poland, a football contract, which is the agreement under which a player practices the sport professionally, can take the form of an employment contract, which is practically obsolete, a civil law contract – more specifically a contract for the provision of services – or, due to the professional nature of these services, the player can be an entrepreneur and provide services as a sole proprietorship. In contrast, in Germany, Spain, or France, due to national statutory law, a football contract is almost always an employment contract.

In Spain and France, mandatory buyout clauses apply due to these regulations – remember the case of Neymar and the buyout of his contract from FC Barcelona by PSG for 222 million euros. I don't want to go into detail, as it is a longer discussion, but the key for any contract is to determine the applicable law, which involves both sports federations (national and international) and national legislation. This is because these regulations set the boundaries of contractual freedom and decide whether certain contractual provisions are valid, enforceable, or not.

What exactly does sports law regulate? | Sports law

As I mentioned earlier, the scope of sports law regulation is very broad. Sports law norms in the classical sense include norms from various fields of law, such as civil law, criminal law, labor law, administrative law, civil procedure, competition law, EU law (especially the freedoms of the EU market), data protection law, and others. However, the essential regulations come from sports federations. Leaving aside issues like doping, corruption, disciplinary responsibility, or the organization of mass events, let's focus on contracts.

Sports law regulates the issues of sports contracts, such as player contracts, which govern the rights and obligations of clubs and professional players, club affiliation (in amateur sports, this is called a declaration of play), rules for changing club affiliation and terminating player contracts (player transfers), resolution of legal disputes, particularly financial ones, the status of football agents and contracts with sports agents, licenses that allow clubs and players to participate in sports competitions, the management of audiovisual rights to these events (e.g., football matches), sports financing (e.g., sports sponsorship), and the rules for the profession of coaches and coaching contracts.

This is truly a wide range of regulations, especially civil law relations between clubs, athletes, and coaches. In our sports law office team, we primarily deal with sports contracts and legal disputes in sports.

 

We smoothly transition to the next question – who is a sports lawyer and what advice can they provide? | Sports lawyer in Poland

A sports lawyer, whether working in-house for a club or a sports federation, or in a law firm such as ADVISER Armknecht & Partners attorneys-at-law, is primarily an interdisciplinary lawyer. This means that a sports lawyer must have knowledge of many areas of law and, most importantly, be able to navigate between national and international regulations, state laws, and sports federation rules. One could say they must be a fan of comparative law.

For a sports lawyer, the primary areas of focus are contract law, which involves transfer agreements for players: temporary transfers (loans), permanent transfers, medical transfers, and others, as well as player contracts, coaching contracts, and intermediary agreements, mainly involving clubs and players with sports agents, and sponsorship agreements or advertising contracts.

The second fundamental area is legal disputes in sports, which are generally resolved by national and international sports courts and tribunals. Examples include the Polish Football Arbitration Court at the PZPN, the Basketball Arbitration Court at the PZKosz, the Arbitration Tribunal at the Polish Olympic Committee, the FIFA Football Tribunal, the Basketball Arbitral Tribunal (BAT) at FIBA, and the International Court of Arbitration for Sport (CAS) at the IOC. Each of these courts and arbitration tribunals has different subject matter and local jurisdiction, as well as internal regulations that govern the dispute resolution process.

In addition, knowledge of proceedings before ordinary courts is essential, not only in Poland but also particularly Swiss law. I don't want to delve into the specifics of how we work in our sports law office and the particularities of a sports lawyer's work using our example, not because of a lack of willingness to share knowledge, but simply because it would require an extremely extensive explanation.

How can a sports lawyer help athletes or sports clubs? | Sports law firm in Poland

To explain the issues of sports law and the specifics of a sports lawyer's work in an accessible, non-legal way, a sports lawyer can provide advice on the terms of a contract—such as a football or coaching contract, prepare a draft of such a contract, and be useful in negotiating the legal aspects of these contracts that have a significant impact on business conditions. A sports lawyer can also assist a club, athlete, or agent, such as a football agent, in asserting their rights, which typically involves contract termination or pursuing payment claims.

If a legal dispute arises in sports and the parties cannot reach an agreement, for example, if a player wishes to settle but the club does not understand or agree, then a sports lawyer from a sports law firm will effectively represent that player in proceedings before a sports arbitration court or a regular court.

The third area involves other matters that may concern both athletes and clubs, related to general legal practice within a sports law firm. For athletes, this can include personal matters such as inheritance issues, which often involve probate proceedings, financial and construction investments, marketing projects, or tax advice. For clubs, this involves employment issues—such as labor law for employees outside the sports division, corporate law and corporate governance, infrastructure investments, and restructuring.

The scope of legal assistance provided by a team of lawyers within a sports law firm can and should be very broad.

What are your experiences as a sports lawyer? | Sports lawyer in Poland

In two words, very positive. Sports law is a truly fascinating and evolving subdiscipline of law and an exciting area of practice within a sports law firm. It involves solving genuinely interesting legal problems and representing athletes and coaches in complex legal disputes, especially at the intersection of different national jurisdictions in an international context. This includes issues such as compensation and tax matters.

Our firm has over 12 years of experience in sports law. During this time, we have handled numerous cases, representing football and basketball clubs, footballers, basketball players, and coaches in legal disputes. We have also negotiated many player contracts in football, basketball, boxing (commonly referred to as boxers), MMA athletes, including KSW and UFC fighters, football coaches, basketball coaches, table tennis players, and many others.

However, legal disputes are not the most important aspect. Sports, under the principle of "principia sportiva," are based on the principle of fair play, which we also uphold in our sports law firm. Therefore, we always strive to reach a settlement. No one wants to go down the legal path and take cases to arbitration or ordinary courts, depending on the sport and its subject matter. Disputes, even in arbitration, involve costs and time for all parties. As is well known, in war, there are no winners; only losers and those who have incurred losses. We like to win, and we usually do. This is the result of appropriate management of legal risks. However, amicable or "peaceful" protection of our clients' legal interests is not always possible, as the other party must think similarly. Unfortunately, this is not always the case.

Aside from disputes, we handle legal projects. These include the negotiation process for contracts—player contracts, transfer agreements, sponsorship agreements—as well as creating sponsorship and image strategies, and club restructurings. These are the best types of assignments related to services. They are the best because they are always a challenge and, in my opinion, the core of a sports lawyer's work. Negotiating and drafting contract clauses—contractual provisions—and preparing entire contract drafts aim primarily to protect our clients, but also to help, or at least not hinder, achieving the business goals of both parties to the agreement. A contract is meant to protect if the other party does not entirely share the same intentions or changes them during the contract's term and wants to terminate it, which is commonly but not quite correctly referred to as "breaking the contract."

Nonetheless, respecting our clients' privacy, I prefer not to discuss specific cases

 

What legal advice does a sports lawyer provide? | A professional sports law firm in Poland and Central and Eastern Europe

Indeed, this might have been overlooked earlier. However, it's because we strive to approach legal services for athletes, sports clubs, and agents comprehensively at our sports law firm. It's rare for our sports lawyers to provide isolated legal advice. These individual, ad-hoc legal consultations in sports law typically mark the beginning of a relationship.

For instance, an athlete might come to our law firm seeking a review of a contract—such as a player contract—that they received from a club or agent. If this is before the contract is signed, they usually also request representation during negotiations. Conversely, if a legal issue arises from an already active contract, after assessing the situation and preparing an "exit" strategy, we first attempt negotiations. If these negotiations do not seem likely to effectively secure our client's rights and interests, we proceed with representation in legal proceedings.

Returning to the specific question, a sports lawyer will certainly provide advice related to the legal terms of a transfer agreement, football contract, coaching contract, basketball contract, sponsorship agreement, or agreement with a football or basketball agent, and other sports-related contracts. A sports lawyer will also assess, for example, an athlete's legal situation concerning doping responsibilities, changes in the club's actual situation—recalling the infamous "Coconut Club," the athlete's image rights, or tax-related matters.

In essence, if a sports law firm comprises a team of lawyers, the advice can cover every aspect of an athlete's activities or a club's operations, ranging from the athlete's personal—property matters, divorce—to sports-related issues—player contracts, advertising contracts, sponsorship agreements—to inheritance, construction, and other matters.

In the case of clubs, such a law firm that provides legal services to the club and outsources the legal department can offer advice on restructuring, changing the legal form of running the sports club, contracts with employees and players, and many other issues, stemming from the comprehensive nature of legal services.

Regarding individual advice, it may also pertain to legal conditions, risk assessment, or entire projects, such as building an academy or capital or ownership changes within the sports club. In this context, the key attributes defining the legal advice provided by a sports lawyer are the "broad range" of legal advice and the need for comprehensive legal services in sports.A professional sports law firm in Poland and Central and Eastern Europe

Get to know our law firm and find out how we can help you in the field of sports law and more!

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