Sports law and governance is maturing nicely in Ireland, he said, commenting on the remarkable breadth of the connection to sport in this country.
Chief Justice Frank Clarke said that the Irish judiciary is well known for its love and knowledge of sport. He explained that he is a member of the Turf Club and adjudicates on disputes about interference and non-triers.
Under the Irish Constitution, the sole power of making law is conferred on parliament but the Chief Justice said the Turf Club is recognised in statute as a rule-making body and therefore is potentially subject to public law rules.
The Chief Justice said the laws of sport are, to a large extent, random so therefore can’t have rules and policies.
But he quoted his judicial colleague Donal O’Donnell in a judgment on the rules of sport: “It is the essence of any game that it requires some rules, otherwise it would not be possible to demonstrate sporting excellence or demonstrate sporting skill.
“But it’s also the case that many of those rules can be arbitrary, but sanctified by tradition.”
But why is a second serve permitted in tennis but not in golf, the Chief Justice quipped.
Games may be intrinsically trivial but they capture the imagination because they showcase athleticism, distil the human spirit, show the value of discipline and tread the fine line between triumph and tragedy.
Sports grounds are the fields of dreams and memories, the Chief Justice said.
“Sports law doesn’t exist as a discrete body of law like criminal or contract law.
"In one sense, it’s more interesting than that,” he said.
We have general laws which become interesting when we apply them in very different circumstances, he said.
A sports contract is subject to both employment law and contract law but there are peculiarities about the sporting context that might be relevant to how it is interpreted, the Chief Justice said.
What is interesting about sports law is that often antiquated laws are applied in new and different contexts for which they weren’t designed, he said.
The Appeal of Sports Law
Young lawyer Rebecca Patton, 24, from Donegal and with a family background in independent bookmaking, is determined to work in sports law.
Rebecca says the area has great appeal for young people because it involves dealing with talented athletes and has a varied workload.
Rebecca has just completed an international sports law Masters’ in Madrid.
As part of this Masters’ she did an internship with the British Horseracing Authority in London. She is now converting her Irish degree in order to work in London where she sees her future because the sports law business is so much more evolved over there.
Sports law appeals to Rebecca because it encompasses so many aspects of the law from drafting contracts, to working within regulatory frameworks, to IP law.
“It’s a really interesting area and a lot of young people will want to go into it,” she explained, saying she was disappointed with the absence of sports law modules from Irish third level curriculums.
The panel discussion on digital streaming of sporting clips heard that live sport succeeds as an arena spectacle but has both access and technology limitations.
However, new formats offer both revenue generation and fan base building opportunities.
Traditional broadcasters are very interested in digital content and shorter-form highlights, said Lynsey Mulvihill, senior legal counsel at World Rugby.
World Rugby is considering streaming services in ‘dark markets’ where they don’t have a TV rights holder established.
World Rugby is also moving towards ‘one click’ access and is live-streaming on its own social platforms.
While consumer behaviour is changing, the sports distribution model hasn’t wholly changed as yet but there is a growing need to become more sophisticated in the offering, the panel agreed.
Consumers are becoming more savvy in how they consume sports so there is a fine balance to be struck between monetising the content but not annoying the customer, the panel heard.
Sporting organisations are also using user-generated content to build narrative such as when players send their own footage and this is built into an Instagram feed.
Rugby Sevens generates that kind of content, Lynsey said.
She described a “whack-a-mole situation” of trying to clamp down on illegal broadcasts of “that wonderful try”.
“As soon as it pops up we try to get it taken down, but then it pops up somewhere else,” she said.
Competitive video games
International counsel for Riot Games Vyte Danileviciute addressed the conference on the topic of e-sports which is defined as organised competitive video games.
The beauty of e-sports is that there is no real world equivalent though there is ongoing debate about whether it is actually a sport, the conference heard.
Riot Games is the proprietor of League of Legends which is now in its ninth season, with huge growth driven by fan engagement and audience participation.
Disputes are certain to occur as in any industry Vyte said, and as a lawyer she deals with issues of doping, match fixing and the run of commercial issues.
Andrew Nixon, a sports lawyer at London media law firm Sheridans, said these e-sports events are now mature and just as sophisticated as major indoor arena sports.
Arbitrator and mediator Jeffery Benz, who works at the Court of Arbitration for Sport, said that e-sports have a centralised structure, teams, and this creates ample opportunities for disputes. There is increasing incidence of doping and match-fixing, he said.
These e-sports events are “pretty spectacular from a production perspective,” he said.
The demographic for these events is young, male, tech-savvy consumers and League of Legends is sophisticated from a tech perspective and more highly engaging for fans than traditional sports, some would argue.
E-sports are currently making losses but there is a long-term strategy to engage with a wider audience.
Jeff Benz commented that while e-sports revenue is growing by every metric, the governance remains immature.
“Governance is the area that we need to improve the most,” Vyte agreed, particularly in relation to match-fixing and doping.
The emergence of player unions will make this more of an even-handed transaction, the conference heard, though the top players already earn hundreds of thousands of euro annually.
Riot Games controls the regulatory environment for their e-sports but Andrew Dixon argued for the creation of a broader centralised regulatory framework, in relation to betting integrity and doping.
“One of the frustrations of e-sports is that you are talking about competing and immature organisations, many of whom are on a commercial land grab so the concept of integrity and regulation is quite far down their in-tray," he said.
These competing businesses don’t grasp that regulation, integrity and governance feeds directly into the commercial model they are trying to build and makes them more commercially viable, he believes.
Match fixing is one of the biggest threats to e-sports because unscrupulous third parties can infiltrate the games because of the huge betting odds. There are financial incentives to cheat but players are scanned for rogue USB sticks and reflective surfaces are checked.
For match-fixing, a global penalty index is available right up to a permanent ban, Vyke explained.
An enormous betting industry surrounds e-sports, because betting is done live in play.
Andrew Dixon said that he would genuinely refer to LOL players as athletes, but most Fortnite players are finished by age 26 or 27.
The conference heard that player welfare is a growing issue, with player education on proper health and nutrition and enforcement of working time regulations.
Session moderator and barrister David Casserly pointed out that all sports recognise it is in their own commercial interests to have integrity within their sport.