Update | Sports law: doping and lifetime bans, and ambush marketing

Doping and lifetime ban

Dwain Chambers and David Millar, both convicted of doping offences in the past, were selected for Team GB's athletics squad and cycling road race squad respectively, on 3 and 4 July. Their selection followed the British Olympic Association (BOA), in May this year, overturning its policy of a lifetime Olympic ban for drugs cheats as a consequence of losing its appeal at the Court of Arbitration for Sport (CAS) that it brought against the World Anti-Doping Agency (WADA).

The BOA Bye-Law 7.4 imposed lifetime bans for athletes convicted of doping offences carrying a suspension of more than six months (see box).

In November 2011, WADA informed the BOA that this bye-law was not compliant with the WADA code. The code was implemented in 2004 by sports organisations before the Olympic Games in Athens, harmonising the rules and regulations governing anti-doping across all sports and all countries for the first time.

More than 600 sports organisations (including international sports federations, national anti-doping organisations, the International Olympic Committee, the International Paralympic Committee and a number of professional leagues) have adopted the code to date.

WADA's declaration was a direct result of the CAS decision in the doping appeal case of the American 400-metre Olympic champion LaShawn Merritt, handed down on 4 October 2011. This case centred on Rule 45 of the International Olympic Committee's Olympic Charter, known as 'Osaka rule'. The rule bans those that have been convicted of doping from competing in the following Olympics. In that case, the IOC argued that the rule was an eligibility one but the arbitration court held that it was also an unfair additional disciplinary sanction, because its effect was to impose an automatic ban on the athlete concerned which could take effect after the sanction provided for in the WADA code had ?been completed.

The court followed the same legal logic for the BOA's appeal in April this year and held that the BOA bye-law was an additional sanction imposed on athletes hoping to qualify for membership of Team GB in the Olympics, despite BOA's argument that the lifetime bans were part of a larger policy - namely, that the British selected only athletes of good character.

As in the Merritt case, CAS held that the BOA bye-law was incompatible with Article 10 of the Code (which sets out sanctions), of which the BOA is a signatory. It stated that 'the bye-law imposed a permanent ineligibility to participate in the Olympic Games, which did not appear in article 10 of the WADA Code or anywhere else in ?that Code. Therefore, the non-selection is ?a sanction in addition to those in the WADA Code, and it is of a much ?lengthier duration.'

Furthermore, CAS drew attention to the fact that 'Article 23.2.2 of the WADA Code'¦provides that certain provisions must be implemented by Signatories without substantive change (including the provisions regarding sanctions found in Article 10 WADA Code).' Consequently, the BOA bye-law introduced an additional provision which altered the effect of the Code beyond the sanctions contained in the Code. In essence the BOA was not entitled to vary that particular aspect of the Code for its own jurisdiction.

BOA informed WADA on 17 May this year that it had abolished BOA Bye-Law 7.4.

In its judgment, however, CAS stated that it was only seeking 'a consistent fight against doping' across the world, and the BOA and IOC were free to persuade other Olympic authorities that a lifetime ban should be part of the WADA code in future.

Indeed, WADA is currently working on a new draft code, to be approved in autumn 2013 and implemented in 2015. Clause 10.15 in this draft code, entitled 'Limitation on Participation in the Olympic Games' states that in serious doping cases 'as an additional sanction, the athlete or other person shall be ineligible to participate in the next Summer Olympic Games and the next Winter Olympic Games taking place after the end of the period of ineligibility otherwise imposed.'

WADA's overriding message is that it does not want organisations like the BOA trying to introduce further sanctions against their athletes. As it states: 'The Code's objective of harmonisation would be seriously undermined if multiple Anti-Doping Organisations were each allowed ?to impose their own anti-doping participation rules'.

Ambush marketing

Ambush marketing has again been in the news recently with UEFA's decision to impose a one match ban on Nicklas Bendtner, the Denmark striker, and fine him £80,000, for exposing a Paddy Power-sponsored waistband as he celebrated ?a goal in Euro 2012. Paddy Power had no legitimate affiliation to the tournament and UEFA was therefore required to act quickly to show that ambush marketing would not be tolerated.

UEFA imposed the penalties on Bendtner pursuant to Law 4 of FIFA's 'Laws of the Game' which stipulated that: 'Players must not reveal undershirts which contain slogans or advertising. A player removing his jersey to reveal slogans will be sanctioned by the competition organiser' and article 18.18 of the Regulations of the UEFA European Football Championship 2010-12 which stated that: 'All kit items worn during the final tournament must be free of any sponsor advertising.'

In what was presented as a gesture of good faith, Paddy Power announced it would pay the fine on Bendtner's behalf. However, the sizeable penalty is likely to have been dwarfed by the value of the publicity the stunt has gained. Bendtner's celebration was seen worldwide by an audience of millions and significant mainstream media interest, coupled with concerted social media debate over the proportionality of UEFA's punishment (when compared to the smaller fines imposed on several national Football Associations on grounds of fan racism during the same tournament), has ensured wide exposure for Paddy Power.

UEFA, though, will be sure to use the example of Bendtner to try to educate players that ambush marketing will not be tolerated and to show its official sponsors that it has taken an extremely robust approach to enforcing its rights.

Ambush marketing has also been a key concern in relation to the forthcoming London 2012 Olympic Games. As a reminder, in the UK there has traditionally been no single law to protect against ambush marketing. Instead, intellectual property rights (IPRs) - trademarks, copyright, design rights and passing off - are generally used to protect authorised rights-holders. However, Ambush marketing is often a more subtle activity than most IPRs are equipped to deal with effectively and governing bodies and event organisers are increasingly looking for other ways to protect the rights of official sponsors who have paid millions for the privilege of an exclusive association

The Act has been criticised by some commentators as overly restrictive, with wide prohibitions on usage of 'everyday' words and infringement potentially leading to criminal sanctions and civil remedies including injunctions, damages, delivery-up of infringing goods and accounts of profits. However, even in the grip of a global recession, the Act has helped LOCOG (London Organising Committee for the Olympic Games) to raise in excess of £700m with more than 50 companies officially associated with the event.

In the lead-up to the Games, LOCOG appears to have favoured a pragmatic approach to those who have attempted to associate unofficially with the Olympics, opting not to take legal action where possible. However, as the Games draw nearer and ambush marketing is likely to become increasingly prevalent and brazen, more stringent enforcement action is bound to follow.

It will also be interesting to see whether the LOAR will be viewed as an anomaly in the UK or if additional legislation will be put in place for future sporting events to restrict businesses and individuals from being able to create unauthorised associations with those events.