An Introduction to Sports Law: Key Legal Areas and Issues in Sports

By Lesedi Mphahlele | Director and Sello Ramanyana | Candidate Attorney

Introduction
In a world where sports continues to evolve and shape the fabric of society, the importance
of sports law has never been more evident. From ensuring fair competition to protecting
the rights of athletes and organisations, sports law is the invisible force that underpins the
integrity and growth of the global sports industry. As we delve into the complexities of
sports law, it is clear that it is not just a set of rules, but a critical tool in maintaining fairness,
justice, and the very spirit of sports itself.

1. Sports law and its importance in the Sports sector

Over the years, the sports sector has seen transformation and a surge in commercial
investment from a wide array of stakeholders, each driven by their own motives. This
growing financial interest has, in turn, created capacity for the active participation of
other key players, all working together to ensure the integrity of the sports sector’s core
principles. It’s a game of rands and values where profit and principle are both at play.
Sports attorneys (and sports law firms) are some of the key players whose role has
become extremely important in upholding the said core principles. Sports law in today’s
sports sector encompasses a broad range of legal fields that apply to the world of
professional and amateur sports, athletes, teams, governing bodies, and other
stakeholders. It integrates multiple legal fields, including contract law, labour law,
intellectual property law, competition law, governance, risk and compliance, and more,
all tailored to the unique nature of each sporting code.

2. Key legal areas in sports law

2.1.Contract Law in sports law

Player Contracts: Legal agreements between athletes and teams, outlining terms of
employment, compensation, performance expectations, and other conditions which
are necessary.• Endorsement Deals: Athletes often enter into contracts with brands and sponsors for
endorsements, which are subject to negotiation and legal regulation.

Transfer Agreements: In team sports, transfers of players between teams are often
governed by complex contracts and negotiations, subject to regulations by governing
bodies like the Premier Soccer League (PSL) and South African Rugby Union (SARU).

2.2. Labour and Employment Law in sports law

Workplace Safety: Legal frameworks protect athletes from unsafe working conditions
and ensure that health standards are met and that every stakeholder exercises its duty
of care to avoid negligence and injuries. Concussions and long-term health concerns,
such as CTE (chronic traumatic encephalopathy), are growing concerns in the sports
sector.

2.3. Competition Law in sports law

Prevents unfair competition: Competition laws in sports seek to prevent unfair sports
practices that may give athletes and/or sports clubs an unfair advantage over the other.
Upholding competition laws is necessary for competition, fairness and the integrity of
sports.

Player Movement Restrictions: The regulations governing player transfers, both
within and outside of established transfer windows, are increasingly being viewed as
restrictions on athletes’ fundamental right to freedom of movement, inadvertently
fostering anti-competitive practices. This issue was highlighted in the Lassana Diarra
v FIFA case, where Diarra was unable to register with a new club unless that club paid
transfer fees to his previous team and obtained a clearance certificate. This system,
designed to regulate the transfer of players, ultimately places barriers on the athlete’s
ability to freely pursue his career. The case exemplifies how such rules, intended to
regulate transfers, may instead create an environment of unjust restrictions and
inequality in the world of football.

2.4. Intellectual Property (IP) in Sports Law

Trademarks and Branding: Sports teams, leagues, and athletes protect their brands
through trademark law. This includes team logos, player names, and event branding.For the registration of the said trademark to pass, it requires sports attorneys to ensure
that all legal requirements are met. Moreover, when intellectual property is infringed
upon, it is these sports law experts who step in to protect the interests of stakeholders,
defending the very identity that fuels the multi-billion rands sports industry. Without this
legal shield, the value of these brands could be left vulnerable to exploitation and
unauthorised use.

Broadcasting Rights: Media companies frequently secure high-value deals for
broadcasting rights, sometimes gaining exclusive rights that they can then sell to other
stakeholders. However, this becomes problematic when digital streaming platforms
and piracy emerge as alternatives to these subscription-based offerings. These
platforms often infringe upon the intellectual property rights of legitimate broadcasters,
undermining the value of their exclusive content and disrupting the industry’s
established business models.

2.5. Drug Testing and Doping Regulations in sports law

Anti-Doping Laws: International sports bodies like the World Anti-Doping Agency
(WADA) enforce anti-doping regulations to ensure fair competition. Athletes are subject
to drug testing, and violations can lead to suspensions, fines, or lifetime bans.

Legal Defence Against Doping Allegations: Athletes who test positive for banned
substances have the right to challenge the results in court or arbitration, often
presenting complex legal and scientific defences. During these times, sports attorneys
play a crucial role, working to refute the allegations or negotiate for reduced sanctions
on behalf of the athlete.

2.6. Sports Governance and Compliance in sports law

Governing Bodies: National and international sports organisations (e.g., FIFA, SAFA,
CSA, SARU) play a major role in shaping the rules and policies that govern sports
within their sporting codes. These bodies enforce the rules of competition, fairness,
eligibility, and safety.

Compliance with Regulations: Teams, athletes, and organisations must comply with
regulations set by the governing bodies. This includes compliance with transfer
regulations, drug testing standards, and player eligibility rules.2.7. E-Sports and Technology law

E-Sports Regulation: The rise of e-sports has led to the development of a new branch
of sports law. Issues include intellectual property, player contracts, and tournament
governance.

Technological Advancements: The use of technology in sports, such as video
assistant referees (VAR) in soccer, wearable tech for performance tracking, and
Artificial Intelligence in team strategy, has legal implications, particularly in terms of
data privacy and intellectual property rights.

3. Dispute Resolution in sports law: Arbitration and litigation

Arbitration and Mediation: Sports law often emphasises alternative dispute
resolution methods such as arbitration and mediation as methods to resolve conflicts
efficiently and cost effectively. The Court of Arbitration for Sport (CAS) is one such
international body that handles disputes between athletes, teams, and sports
federations are in dispute.

Player and Team Disputes: Disputes between players and teams over contract
breaches, disciplinary actions, and/or contract negotiations are common. Sports
attorneys (and sports law firms) often represent athletes in these cases. Fairbridges
Wertheim Becker Attorneys is one such law firm with specialised skills and resources
and the necessary capacity to effectively represent athletes.

A complete disregard of alternative dispute resolution processes is discouraged. In Ria
Ledwaba v SAFA, the court dismissed the the matter due to, amongst other, Ledwaba’s
failure to observe the internal dispute resolution mechanisms available at SAFA as
codified in the SAFA constitution. In Royal AM v Samir Nurkovic, the matter only saw
the corridors of CAS after the matter had been fully ventilated by both the PSL Dispute
Resolution Chamber and FIFA’s Football Tribunal respectively. This gives credence to
the alternative dispute resolution processes in sports, and further highlights the
important role that they play in resolving disputes expeditiously and cost effectively.

4. Doping an Integrity issues in sports

Sports attorneys play a crucial role in handling doping and integrity issues in sports,
representing athletes, teams, governing bodies, and other stakeholders in legal
matters related to performance-enhancing drugs (PEDs), ethical breaches, and
maintaining fair competition. Sports attorneys play a role in the following ways:

4.1. Representation of Athletes in Doping Cases

• Challenging Doping Allegations: When an athlete tests positive for a banned
  substance, sports attorneys are essential in defending their client’s rights and
  reputation. They may challenge the results of drug tests, question the procedures
  followed, or argue that the athlete’s actions were unintentional or the result of
  contamination.
• Appeals and Arbitration: Sports attorneys often handle appeals against sanctions or
  suspensions imposed by sports’ governing bodies (e.g., World Anti-Doping Agency
  [WADA], South African Institute for Drug-Free Sport [SAIDS], National Federations,
  and the International Olympic Committee). Many doping cases are heard before
  specialised tribunals like the Court of Arbitration for Sport (CAS), where sports
  attorneys represent the athlete in an effort to reduce or overturn penalties.

4.2. Advising on Anti-Doping Compliance

• Education and Prevention: Sports attorneys help educate athletes and teams about
  the rules and regulations of anti-doping policies, such as the substances banned by
  WADA and the procedures for drug testing. This advice is crucial in preventing
  unintentional violations, such as taking supplements that may contain banned
  substances.
• Legal Compliance: Sports attorneys advise athletes, coaches, and organisations on
  how to comply with anti-doping laws and regulations. This includes ensuring that
  athletes know how to properly declare substances they use, how to handle medication
  exemptions, and how to avoid inadvertent violations.• Therapeutic Use Exemptions (TUEs): If an athlete needs to use a banned substance
  for a legitimate medical reason, sports attorneys may assist in applying for a
  Therapeutic Use Exemption (TUE) to avoid violating anti-doping rules. This involves
  providing medical documentation and supporting evidence to governing bodies like
  WADA.

4.3. Integrity in Sports and Ethics

• Match-Fixing and Corruption: Sports attorneys are involved in cases concerning
  match-fixing, bribery, or other forms of corruption that undermine the integrity of the
  sport. They may represent athletes, coaches, or officials accused of being involved in
  such activities, and/or they might represent governing bodies investigating the said
  allegations.
• Legal Action Against Fraudulent Practices: When match-fixing or corruption is
  suspected, sports attorneys help their clients navigate legal proceedings. This could
  involve criminal charges, civil lawsuits for damages, or disciplinary action from sporting
  organisations.
• Integrity and Governance Advice: Sports attorneys help sports organisations
  develop and enforce integrity policies to combat corruption and other unethical
  practices. This could involve advising on internal investigations, creating reporting
  mechanisms for whistleblowers, and implementing educational programs for players
  and officials.
• Promoting Integrity: As part of the advocacy for clean sport, it becomes important for
  sports attorneys to be involved in the promotion of integrity of sports because beyond
  defending athletes and clients’ interests, sports attorneys have a role to play in
  advocating for clean sport. This includes working with anti-doping organisations,
  educational institutions, and athletes to foster a culture of integrity, fairness, and
  transparency in sports.

5. Player Safety and Liability: The legal duty of care in sports law

Whilst injuries are unfortunate and at the same time [to some degree] inevitable in
contact sports, there are parties whose duty it is to exercise the reasonable duty of
care and thereby mitigate the risk of injuries to participants.

The legal duty of care through the lense of sports law refers to the responsibility owed
by different stakeholders to take reasonable steps to prevent harm to all participants.
This duty is underpinned by principles of negligence and aims to protect, in the main,
athletes from unnecessary risks and injuries. The stakeholders whose duty it is to
mitigate the risk of injuries in sports include, but are not limited to, the athletes,
coaches, team doctors and event organisers.

The single most important test for negligence is whether the injury was foreseeable,
and whether it could have been avoided by those whose duty it was to avoid it.

Duty of care owed by athletes:

In Roux v Hattingh, the Supreme Court of Appeal (SCA) made significant findings
about the duty of care owed by players to each other, and how this duty impacts the
liability for injuries sustained during a match.

The court acknowledged that players participating in contact sports like rugby
inherently accept the risks associated with the game. However, players still owe a duty
of care to one another. This duty requires players to act reasonably and not engage in
actions that are excessively reckless or that fall outside the accepted norms of the
sport. The court emphasised that whilst players accept the inherent risks of rugby, they
do not accept all risks, especially those arising from reckless or illegal actions (e.g.,
dangerous tackles, dangerous play, or intentionally causing injury). The SCA
distinguished between normal rugby-related risks (which players accept) and grossly
negligent behaviour (which is not acceptable). In this case, Hattingh’s actions were
within the ordinary course of the game and did not meet the threshold for recklessness
or gross negligence.

Duty of care owed by sports clubs:

Sports clubs equally have a duty of care towards athletes. It is a widely accepted
practice that athletes act on instructions of their coaches and advice of the club’s
medical team. Therefore, if an athlete gets injured or injures another after having taken
formal instructions from a coach and/or a club doctor, the club can be held vicariously
liable for having exposed the athlete(s) to one such unnecessary risk.

In Morne Mellett v Blue Bulls Rugby Union (Pty) Ltd, a former professional rugby
player, Morne Mellett, sued Blue Bulls and its team doctor for damages amounting to
R45 Million for negligence and failure to exercise reasonable duty of care after having
suffered a career-ending injury in 2015 in a Super Rugby match. Mellet injured his neck
during the match and the team doctor examined him on the field and cleared him to
keep playing the match. The hit to his neck caused a rupture to his vertebral vein which
caused Mellet to suffer a stroke minutes after the game. In Cillian Willis v Sale Sharks,
Willis sustained two head injuries during an LV Cup rugby match against Saracens on
10 March 2013. The team doctor allowed him to continue to play despite him being
concussed. As a result of the concussions, Willis was forced to retire. He later instituted
medical negligence claim against the club and the medical staff.

Duty of care owed by event organisers:

Event organisers and/or stadium management equally has a duty to ensure that they
comply with the safety measures encompassed in the Safety At Sports And
Recreational Events Act Of 2010.

In the Ellis Park Stadium disaster of 2001 where 43 attendees died and 158 were
injured, the Ngoepe Commission found that the event organisers breached their duty
of care by selling more tickets than the capacity of the stadium allows. The stadium
had a 60 000 capacity, yet 90 000 people were admitted into the stadium. This
inevitably caused a stampede. The commission further found that big screen
televisions outside of the stadium to accommodate the large crowd they anticipated,
the security personnels did not exercise their duty of care in terms of managing the
crowd, more ticket booths were not added to manage the speed of ticket sales and
access to the stadium, and there was general inadequate traffic control. The stadium
management was accordingly held liable for the disaster.6. In light of this, beyond rendering legal services in the context of instituting negligence claims on behalf of athletes and/or defending same on behalf of clubs, sports attorneys
have a continued duty to educate all stakeholders on their duties of care in order to mitigate risks of injuries.

6. The future of sports law and the evolving needs of the sports sector

The future of sports law is shaped by the evolving needs of the sports sector, driven
by technological advancements, globalisation, shifting societal expectations, and
accurate positioning to deal with emerging ethical challenges. As sports continues to
grow in complexity and global reach, sports law must adapt to address new issues,
trends, and challenges.

With technology and digital sports, new challenges emerge in respect of data privacy
and cyber security. As sports organisations collect more personal and performance
data from athletes (e.g., through wearables, apps, or social media), issues around data
privacy, security, and ownership will become increasingly important. Sports attorneys
will need to navigate evolving data protection laws such as the Protection of Personal
Information Act (POPIA), and protect athletes’ personal information from breaches.
One of the key aspects of POPIA is that organisations must obtain explicit consent
from individuals before collecting or processing their personal data, unless the data
processing is required by law. Collection of personal data and commercialising same
through e-gaming is not required by law. Therefore, athletes need to have an option to
exercise their right to withhold consent from having their personal data broadcasted on
an e-game.

A further challenge presented by technological advancements is in respect of
intellectual property and content ownership. Certain stakeholders such as Multichoice
hold exclusive broadcasting rights to the exclusion of others. This exclusion presents
opportunities for live streaming platforms to broadcast the match, which broadcasters
have little control over. The protection of broadcasting rights, digital content, and online
exclusivity will therefore need to be updated to address the increasing importance of
online and interactive sports experiences.

Whilst on the future of sports and the evolving needs of the sports sector, cognisance
must be taken in respect of the mental well-being of athletes. With growing recognition7. of mental health issues among athletes, including stress, anxiety, and depression, sports attorneys will need to expand their participation in the sports sector advocate for policies that support mental health care for athletes. Legal frameworks may evolve
to ensure that athletes have access to proper psychological support, insurance for
mental health treatment, and protections against mental health-related discrimination.
Similarly, further cognisance must be taken in respect of the growing litigious cases
that stem from player safety, particularly regarding head injuries, such as concussions,
and long-term health issues (e.g., chronic traumatic encephalopathy or CTE). Legal
challenges will involve the responsibility of sports organisations and/or clubs to protect
players, provide proper medical care, and ensure that long-term risks are addressed
in order to cub the scourge of claim for damages that arise from long-term risks.

7. Navigating sports law with legal services from specialised sports law firms

Sports lawyers (sports law firms) are essential in navigating the complex legal
landscape surrounding athletes’ contracts of work, allegations of doping and managing
integrity issues in sports. Fairbridges Wertheim Becker Attorneys sports practice group
does not only represent athletes and organisations in legal disputes but also help
shape the policies and regulatory frameworks that govern sports. Through the sports
law practice group’s work, we contribute to the preservation of fairness and ethics in
sports, ensuring that athletes and stakeholders are treated fairly, and that the integrity
of competitions is maintained. Whether defending against doping charges, advising on
regulatory compliance, negotiating, drafting and reviewing athletes’ contracts, or
helping prevent unethical practices, FWB sports law practice group is indispensable in
upholding the legal and ethical standards of modern sports.

Conclusion
Given the above, Fairbridges Wertheim Becker Attorneys sports law practice stands
out as the premier sports law partner. In the midst of uncertainty and insurmountable
legal challenges, our experienced team of sports law attorneys consistently delivers
effective and efficient legal solutions to our clients in the sports industry. Both law and
sports share one thing in common – unpredictability. Yet, with Fairbridges Wertheim
Becker Attorneys by your side, clients, whether new or existing, can focus on enjoying the game, free from anxiety borne from prevailing legal challenges. At Fairbridges
Wertheim Becker Attorneys, we turn the legal field into a winning arena for you.