Index
ADR in tennis: see also collective bargaining
collective disputes between players and professional tennis associations, 148
rules-based infraction, reasons for exclusion, 148
settlement by negotiation (contract-based disputes), 148
agency (player-agent relations)
introduction,
historical background
commercial returns, 26
earlier focus on individual sports (golf, tennis etc), 25
extension of services to a wide gamut of tennis-related projects, 26
IMG/Proserv,
increase in the number of agents, 26
predominance of popular team sports,
sparcity of the literature, 24
agency (player-agent relations (contracts)),
overview (a broad consensus),
agency (player-agent relations (legal interests arising from)),
agency (regulation of agencies/agents) (domestic rules),
from no lex specialis to close regulation, 29,
mixed model (USA),
applicability of the general rules of obligation, 33
Miller-Ayala Act, 34
Revised Uniform Athlete Agents Act (2015), 30
UAAA model rules (limitation to student athletes),
UAAA model rules (states’ varying implementation of), 34
no lex specialis (British practice)
absence of statutory provision/LTA regulation, 29
applicability of laws relating to self-employed workers/businesses, 30
common law of agency, 30
no lex specialis (German/Netherlands practice), 30
agency (regulation of agencies/agents) (transnational rules) (ITF/ATP/WTA),
lack of specific applicability to agents, 35
sanctions, 36
standards of behaviour,
anti-doping (introduction)
concerns over doping in child athletes, 204
doping as a breach of fairness and equality, 211
early efforts to control, 211
establishment of WADA (1999)/Prohibited List, 211
on-site anti-doping investigations,
WDAC, a complex but necessary set of harmonized rules, 211
anti-doping rules (TADC/CAS/ITF jurisprudence)
Burdekin, 222 n.15
Buttifant, 220
Catana, 223
Cilic,
Dylan Scott, 100 n.46,
Gasquet, 224
I, 222 n50
Kaskova,
Kendrick, 223
Koubek, 223
Perry, 224
Sharapova, 226 n.65
Stanic, 222 n.51
Suarez, 101
Tagliaferri, 222
Villaneuva, 221
X, 100 n.49
applicable law
overview, 9
broadcasting rights agreements (Rome Convention), 61
building a new role, 43
CAS appeals, 165
design rights (WIPO Hague System), 54
the dilemma, xxxiv
domain name complaints (UDRP), 66
interacting possibilities,
ITF Independent Tribunal, 158
tennis governance, 1, ,
ATP
ATP PAC
advisory powers, limitation to, 127
composition, , 176
election/eligibility, 126
Federer as president, 121
term of office, 126
ATP-ITF relationship, 10,
Board of Directors (tournament representative)
multiple representation of clients and interests,
significant business interests, 127
criticism of (conflicts of interest),
ousting of Kermode,
treatment of PTPA,
establishment (1972), 174
from mere players’ association to dominant governing body on the men’s circuit, 175,
full commercialisation of tennis events, 175
impact on the organization of professional tennis,
as a non-profit entity, 10
original purpose (safeguarding of players’ interest within the ITF and WCT), 174
Becker, Boris, 72 n.10
broadcasting rights agreements,
applicable law (Rome Convention (1961)), 61
commercial importance to sports organizations, 60
complexities
multiple territories/type of rights and media, 61
significant variations between national IP laws, 61
piracy issues
importance of effective legislation, monitoring and enforcement, 61
loss of revenue, 61
theft of identity/personal data, 61
Sky Sports deal with ATP and WTA (2023),
CAS: see also anti-doping rules (TADC/CAS/ITF jurisprudence)
applicable law (procedure vs substance), 165
CAS Code, amendment (2005), 148
composition
criticism of, 125
FIFA’s recognition of, 5 n.15
headquarters (Lausanne), 5 n.15
jurisdiction
ATP disputes, 166
basis for, 128,
challengeable decisions of the IOC, 124
disputes involving Olympic Games participants, 124
ITF recognition of, 124
procedure (appeals), , 228: see also TADP Procedural Rules in numerical order, 13.2 (appealable decisions)
applicable law (CAS Code), 165
deadline for filing, 165
effect of appeal on the decision, 165
limitation of challenge to set-aside proceedings, 165
proportionality and fairness requirement,
restraint of trade, relevance,
Casals, Rosie, 115
collective bargaining,
commercialization of IP rights: see also broadcasting rights agreements; merchandising agreements; sponsorship/endorsement agreements
overview, 56
contract-based disputes (domestic court litigation)
introduction
examples of contractual agreements, 147,
limited resort to, 168
preference for litigation/English law/courts, 168
choice of court (ITF or ATP/WTA liberty to change the status of a tournament), 168
Deutscher Tennis Bund v. ATP Tour Inc.,
copyright
purpose, 54
corporate capture, 18
corruption
TACP jurisdiction, 230
Court, Margaret, 115
damages or account of profits (IP infringements), 68
design rights
particular importance in the sports industry, 53
purpose, 53
dispute resolution (overview): see also CAS
ADR, role of,
changes to the ITF Constitution and the ITF internal mechanisms, 148
contract-based disputes, 7, 147, : see also contract-based disputes
parties’ right to determine dispute resolution mechanics, 147
ITF Ethics disputes, 148
ITF internal mechanisms, , 149: see also dispute resolution (ITF on-site quasi-adjudicatory mechanisms)
applicability,
as the main generator of disputes, 147
preference over domestic courts, reasons,
relationship with CAS, 147
responsibility for doping and integrity violations, 147
regulatory disputes
examples of parties involved, 147
as infractions of ITF, WTA, ATP and tournament rules, 147
obligatory nature of the rules, 147
transnational character,
dispute resolution (ITF on-site quasi-adjudicatory mechanisms): see also anti-doping rules (TADC/CAS/ITF jurisprudence)
ITF Board’s power to prosecute a claim against a national tennis federation,
referral of matter to the IAP/Independent Tribunal,
ITF Executive Director’s authority to suspend a player, 150
ITF’s investigatory powers, 150
appointment of independent experts to review the evidence, 150
challenge to the expert’s independence, 150
referral of finding to the ITF Review Board, 150
scope (corruption and doping offences as main focus), 149
Edberg, Stefan, 120
entertainment business, ,
competing in the digital age, 43
digital aids, examples of, 43
financial statistics 2021–2028, 42
‘OneVision’ (2022) (ATP), 43
tennis heroes,
Ethics Code by article
1.3 (covered persons),
1.6 (as contractual obligation),
2 (overview), 290
2.1.1 (highest standards of honesty integrity), 290
2.1.3 (autonomy from government interference and political neutrality), 290
2.1.4 (refraint from fraudulent or corrupt act bringing sport into disrepute), 290
2.2 (undivided loyalty), 291
2.2.1 (action in the best interests of the ITF, members and tennis as a whole), 291
2.2.2. (disclosure of a potential disclosure of interest), 291
2.2.2.1–2.2.3.3 (recusal), 291
2.3 (bribery and corruption),
2.5.1 (undermining the integrity of a competition), 292
2.5.2 (avoidance of facilitation of breach of the rules), 292
2.6 (applicability of ethical rules to Board of Directors elections),
2.7 (integrity of the bidding process), 292
2.8 (cooperation and reporting obligation), 294
Ethics Commission
establishment (2019), 182
Ethics Commission (ITF Code of Ethics (Appendix 1)) by article
1.1 (establishment as independent body to carry out functions under the Code of Ethics), 295
‘independent’,
1.2 (appointment of Chair and members/legal qualifications), 296
1.4 (removal for just cause), 296
1.7 (Legal Secretary’s role), 296
1.9 (oversight of elections and/or appointments to the Board of Directors), 296
2.1 (eligibility to file a claim), 296
2.3 (Chair’s right to seek further information), 296
2.5 (appointment of an independent ITF investigator), 296
2.6/2.7 (Chair’s right to raise ex proprio/without giving grounds), 296
2.8 (Chair’s options to the challenged official),
2.9 (Chair’s choices in case of potential breach of local law), 297
4.2 (finality of the Commission’s decision in the absence of a decision to appeal), 298
4.3.1–4.3.4 (notification of right of appeal), 298
4.3.5 (notification of hearing by ITC Independent Tribunal: implications),
4.4.3 (applicability of Tribunal’s Rules), 299
5.1.1 (official’s admission of charges), 300
5.1.2 (official’s dispute of charges: referral to Independent Tribunal), 300
5.2 (waiver of right to a hearing/acceptance of charges), 300
5.3 (direct referral to the CAS), 300
5.3 (proceedings in the name of the Commission), 300
5.4 (appeal to the CAS), 300
6.4 (costs to successful official), 299
7.1 (exclusion of notice of breach more than twelve years after the alleged offence), 298
Ethics Commission (ITF Code of Ethics) by article
3.1 (investigation initiated by Chair: notification of alleged violations), 297
4.1 (Chair’s alternatives following conclusion of the investigation), 298
ethics regulation,
alternative models
competitive regulation, 287
outcomes-based, 287
rules-based, 287
self-enforcement, 287
examples of professions covered by, 286
justification for regulation of the legal services (Clement, 2004), 286
from ethical standard to hard rule (international arbitration proceedings),
core requirements/varying standards of impartiality, 288
courts of the seat as ultimate arbiters/reliance on institutional standards, 288
international instruments
UN Convention against Corruption (2003), 292
Whistleblower Directive (2019), 292
‘liberal professions’ (EU Directive on Recognition of Professional Qualifications (2005)), 286 n.6
inclusion of non-recognized professions,
as regulatory rules, 286
EU economic law and tennis (overview)
failure to test compliance of regulatory rules of tennis with EU rules, reasons, 263
judicially constructed justifications,
Meca-Medina/Gebhard,
SGB conflicts of regulatory and commercial functions, 263
testing compliance (restriction of market access/wild cards), 264
EU economic law and tennis (good governance standards)
summary of recommendations,
composition of decision-making boards (‘red flags’),
absence of publicly available ATP rules, 265
ATP Chair’s conflicting interests,
a central aspect, 265
composition of the PAC/casting vote, 265
players’ consultative role, 265
a ‘privilege’ to vote (ATP Rule 1.21), 265
unbalanced board structures, 266
EU competition law scrutiny, 266
EU recognition of SGB independence
dependence on good governance standards,
Nice Declaration (2000), 264
the standards, 264
SGBs’ domination of decision-making process,
tennis governance as a network, 264
EU economic law and tennis (market access) (summary of the challenged ADP Rules),
OneVision (2021)
ATP website confirmation of market dominance, 275
exacerbation of existing problems,
failure to consult players, 273 n.37
Gaudenzi’s role, 273 n.37
manipulating the future,
the new commitment,
purpose (prevention of an alternative tour), 272
EU economic law and tennis (market access) (blocking rivals’ access)
manipulating the exploitation market,
‘organizational market’,
requiring prior approval of the governing body, 267
restrictive regulatory measures, 267
EU economic law and tennis (market access) (legal framework)
‘abuse of dominant position’ (TFEU 102)
ATP as dominant undertaking,
ATP, Grand Slams and ITF as collectively dominant position, 275
conflation of regulatory and commercial powers as risk, 268
qualification as, 268
jurisprudence
Bosman, 282
Gebhard, , 282
Hoöfner and Elser, 268
Ordem dos Técnicos Oficiais de Contas, 272 n.31
Wouters, 268
EU economic law and tennis (market access) (legality of ADP Rules/reinforcing practices),
ATP as dominant undertaking,
ATP, Grand Slams and ITF as a collective dominant position, 275
Evans, Dan, 83
Evert, Chrissie, 115
Gaudenzi, Andrea (ATP Chairman)
as an ATP Media Director,
as architect of OneVision, 273 n.37
conflicts of interest, 266
PTPA, hostility towards, 138
Gimelstob, Justin, 83
good governance: see EU economic law and tennis (good governance standards); ITF (governance); PTPA (governance)
Goolagong, Evonne, 115
Graf, Steffi, 72 n.10
Grand Slam tournaments
ATP’s approach to, 113, 121
ATP as a dominant undertaking (EU competition law),
avoidance of clashes, 187
players’ obligation to play four Grand Slam tournaments, 273
use of ATP ranking system, 11,
wild cards (TFEU 56),
controlling on-court behaviour, 245
grunting, 257
on-court coaching,
Osaka’s mental health issues, 262
variable enforcement, 255
domain name complaint (Grand Slam Tennis Properties), 67
Grand Slam Board (responsibilities), 8,
morality clauses, 71
WTA and, 130,
human rights and professional tennis (compliance obligations) (international materials)
CESCR General Comment 24 (2017), 3
CRC General Comment 19 (2010), 3
ECSCR General Comment 24 on state obligation in the context of business activities (2017), 3
EU Commission Working Paper Operational Guidance on taking account of fundamental rights in Commission impact assessments (2011), 3
EU Directives on Public Procurement and on Non-Financial Information Disclosure, 3 n.11
ICCPR (1966), 108
ICESCR (1966), 108
ILO principles and standards, ,
International Bill of Human Rights, 108
UDHR (1948), 108
UDPR (WPA Universal Declaration of Player Rights) (2017), 109
UNGPs on Business and Investment Rights (2011), 107
UNGPs on Extreme Poverty and Human Rights (HRC) (2012), 3
UNGPs on HRIAs for Trade and Investment Agreements (2011), 3
human rights and professional tennis (compliance obligations): see also unionization (professional tennis players)
applicability of rules, principles and fundamental guarantees attaching to other sporting activities, 16
contractual obligations (domestic law/UNIDROIT), 4,
criminal sanctions,
ITF’s obligations to comply/enforce, 17
private dispute resolution mechanisms (fair trial obligations), 17
trade union rights of professional tennis players,
IAP
overview, 151
concurrent IAP/Independent Tribunal jurisdiction, 151
Procedural Rules/ITF Constitution, relationship, 151
Chair
right to consolidate proceedings/act as emergency arbitrator, 160
tasks,
terms of appointment, 150
decisions
appeal to the Independent Tribunal, 152
enforcement powers,
Independent Tribunal Rules/ICC Arbitration Rules distinguished,
functions/powers
composition of the Olympic event, 16
conduct of investigations, 153
to invite submissions, 153
judicial function, evidence of, 153
kompetenz-kompetenz power, 152
non-arbitral role, 152
to require ITF personnel and entities to provide information/attend hearings, 153
selection of Independent Tribunal, 216
similarity to expert determination,
as a standing committee, 151
jurisdiction (as an appellate entity), 153,
a hotch-potch of conflicting provisions,
proceedings requiring a re-hearing vs those not, 156
jurisdiction (as a first-instance entity), 153,
change of nationality requests, 154
matters covered, 154
‘reciprocity (ITF Code of Conduct, Art. IX),
jurisdiction (supervisory powers), 153
arbitral set-aside proceedings compared, 156
scope (complaints not susceptible to a judicial hearing), 156
Sport Resolution’s responsibility for, 159
image rights/rights of publicity
international diversity, 55
protection by other IP rights, 55
revenues from commercial exploitation, 55
a rough definition, 55
IMG,
business model,
vs ProServ,
injunctions (IP infringements), 68
integrity in tennis (overview),
international law, relevance to professional tennis, : see also human rights; Olympic movement and professional tennis
limitation of discussion to human rights/investment capacity,
IOC
IP rights (overview), : see also broadcasting rights agreements; copyright; image rights/rights of publicity; merchandising agreements; patent rights; sponsorship/endorsement agreements; trade secrets/confidential information; trademarks
ownership of
complexity of the possibilities,
factors to consider in negotiating an IP protection strategy, 45
territoriality,
role,
IP rights infringements, remedies,
overview
IIP registry proceedings, limitations, 67
judicial litigation, time and cost of, 67
judicial remedies, 68
award of costs, 68
damages or account of profits, 68
IP rights (enforcement action)
overview
dependence on local laws, 63
domain/company name complaints, 63
extra-judicial proceedings (registered IP rights), 63
cease and desist letters, 63
mandatory requirement for (UK Civil Procedure Rules), 63
purpose/desirability, 63
company name complaints
Company Names Tribunal’s list of decision, 67
required elements, 67
submission to Company Names Tribunal option, 67
domain name complaints
applicable law (UDRP), 66
choice of forum, 66
expedited administrative proceedings, 66
Grand Slam Tennis Properties, 67
required elements, 67
invalidity action
bad faith,
IP rights owners’ need to make a strong case, 66
registration of a later identical or similar trademark, 66
monitoring infringements,
comprehensive brand protection schemes, benefits,
manual approach, limitations, 62
monitoring services, 62
responsibilities of brand owners, 62
social media, role, 62
revocation actions
action in respect of an entire or partial registration, 64
genuine use obligation, 65
grounds for action,
trade validity and revocation actions
grounds for challenge, 64
importance of maintaining the validity and enforceability of their trademarks, 64
as part of a wider infringement dispute, 64
right to initiate action, alternatives, 66
IPIN/ATP/WTA player zone registration, 231
ITF (governance): see also Ethics Code; ethics regulation
powers (Constitution 3.1),
responsibilities
Fed and Hopman Cups, 174
transnational status, 1
ITF Independent Tribunal, : see also anti-doping rules (TADC/CAS/ITF jurisprudence)
appeals to CAS: see also CAS
appeal against a decision of the Panel or ITF panel, 165
applicable law, 165
basis for,
CAS procedure,
ITF Rules as basis for, 164
limitation of challenge to set-aside proceedings, 165
limitation to first-instance awards, 164
jurisdiction, 157
acceptance of the Tribunal’s jurisdiction/waiver of right to another forum, 157
applicability of CAS jurisdiction in absence of ITF jurisdiction, 157
fair trial considerations, 157
ITF Constitution/Tribunal’s Rules as agreement to arbitrate (UNCITRAL Model Law), 157
seat of proceedings, 157
waiver of right to litigation/setting-aside proceedings, 157
transitional justice and
Nastase,
Tribunal’s perception of its extra-dispute resolution role,
ITF Independent Tribunal (jurisdiction),
as appellate body, 162
first-instance jurisdiction,
major offences (ITF Code of Conduct),
Men’s/Women’s World Tennis Tour Regulations,
TADP Rules, 163
as supervisory body, 162
ITF Independent Tribunal (procedures),
binding effect of a final court award/competent arbitral decision, 162
constitution, , 216
appointment by Panel Chair, 159
challenge to arbitrator, grounds,
parties’ lack of control of,
ITF International Adjudication Panel,
ITIA (introduction)
ITIA Sanctioning Guidelines (2021),
(overview)
drafting history, 241
examples of category A1 offenders, 243
as guidance/a framework, 241
key principles/scheme for calculating an appropriate remedy, 242
purpose (proportionate punishment/deterrence),
examples,
stage 1 (determining the offense category)
A. high culpability, 241
B. medium culpability, 241
C. lesser culpability, 241
Categories 2 and 3 impact, 242
Category 1 impact,
stage 2 (starting point and category range)
aggravating/mitigating factors, 242
AHO’s discretion to cross the boundaries, 242
itemised outcomes for A1 to C3 on the category range, 242
stage 3 (covered persons’ cooperation), 242
labour status, : see also players and the ATP/WTA
collective bargaining arrangements/institutional protection of rights, absence, 13
excluded benefits, 13
steps towards/limited scope and number,
growing unionization/PTPA, 13
as independent contractors under ATW/WTA control,
limitation of membership to men,
Lendl, Ivan, 49
licensing arrangements, : see also sponsorship agreements (IP rights) (key provisions), licensing arrangements
McNamee, Paul,
merchandising agreements
description of, 60
importance of quality control provisions, 60
inclusion of standard licensing IPR provisions, 60
moral clauses: see also sponsorship/endorsement agreements
alternatives to, 80
confidentiality of clauses,
criticism of,
factors impacting on endorsement agreements
activism, 80
‘bringing the game into disrepute’, 81
doping offences,
sexual orientation,
geographical spread,
history, 77,
justification for, 76
negotiations,
achieving a fair protection of both parties,
a broad vs a narrow clause, 78
importance of precise language, 78
personality of player, relevance, 79
as a standard-setting tool,
termination of tennis contracts on ethical grounds,
use of,
Na, Li, 121
nationality
request to change, 154
Navratilova, Martina, 26, ,
Netflix, 43
Newcombe, John, 112
Nice Classification system,
Nice Declaration on the Specific Characteristics of Sport and Its Social Function in Europe, 264
Noah, Yannick/Noah Clothing, 65
Nouza, Petr, 123
Olympic movement and professional tennis,
history (in date order)
inclusion in the first Olympic Games (1896), 15
admission of women players (1900), 15
clash between the 1912 Olympic Games and Wimbledon, 172
IOC/ITF frictions leading to the removal of tennis from the 1924 Olympics, 15,
changes in IOC approaches/re-entry of tennis to the games (1973–1988),
current arrangements
applicability of ITF Regulations, 16
events, 16
ITF Independent Tribunal’s discretionary powers, 16
factors complicating the relationship
failure of NSFs to safeguard players effectively, 173
ILTF/national federations insistence on more involvement in decision-making, 15
IOC conservatism particularly its insistence on amateur status, 15,
poor organization of the 1920 and 1924 events, 15
factors contributing to reinstatement
ALTC’s decision to admit professionals to Wimbledon, 173
evolution of the amateurism rule, 15,
geopolitical dynamics,
growing commercialization of professional sport,
IOC’s financial difficulties, 15
Los Angeles Games (1988) as a blueprint, 16
Samaranch doctrine,
USLTA’s support, 173
‘OneVision’ (2022) (ATP), 43: see also EU economic law and tennis (market access) (summary of the challenged ADP Rules)
Osaka, Mari,
patent rights
athletes’ indirect dependence on, 55
difficulty and expense of maintenance, 55
exclusion from protection, 55
protection offered/requirements for (UK Patents Act 1997), 55
shape marks as alternative, 49
personal branding: see also brand investment
brand protection,
building rapport with a global audience, 43
private lives, growing interest in, 43
ranking required to break even,
player rights, pay and conditions (the ATP/WTA Rulebooks)
ATP Baseline pilot project (2023), 133
players and the ATP/WTA, , : see also labour status
ATP/WTA membership benefits
Baseline (financial safety net), 178
medical insurance,
pension scheme, 178
prize money
ATP agreement to forgo individual salaries, 113,
comparison with other sports, ,
Covid-related unfairness, 128
disparity between men and women, 112, , ,
examples, 114
a Pyrrhic victory (King), 120
US Open awards equal prize money (1973), 115
disparity between prize money and costs (Independent Review of Integrity in Tennis (2018)),
players’ dissatisfaction with prize money pools, 118,
players’ rejection of the collective bargaining model,
players’ varying perspectives on the inequalities in tennis, 123
WCT plans to exclude independent professionals from their tournaments/reversal of decision (1970/1972),
‘professional tennis
a broad choice,
difficulties of definition,
PTPA (establishment/reactions to)
establishment (2020) (Pospisil/Djokovic), ,
exclusive action
exclusion of members from the ATP Board, 129
WTA’s refusal of players’ demands to be represented by PTPA, 130
objective
‘a union’ (Pospisil), 138
an independent self-governance structure, 138
‘an independent voice from the traditional men’s tour,
scope of envisaged activities, 138
tension between players happy with the existing situation and those not as key issue,
Querrey, Sam, 129
regulating on-court tennis indiscipline, overview: see also Rules of Tennis
the Code as the principal basis for disciplinary action in tennis, 245
ATP/WTA/Grand Slam variants, 245
impact of the social origins of tennis, ,
ITF Rules of Tennis as the definition of playing tennis, 245
the role of rules, 244
regulating on-court tennis indiscipline, (changing the rules)
a relative rarity in tennis, 258
subtle shifts (mental health) (Osaka)
refusal to attend post-match press conference (2021), 262
Roland-Garros’s implementation of a tool to protect against online abuse, 262
strong support leading to change of approach, 262
subtle shifts (race),
experiences of Venus and Serena Williams,
normalizing a black aesthetic, 261
race-based misperceptions/misapplication of the rules, 261
still a white space, 260
the Wimbledon dress code,
regulating on-court tennis indiscipline (commodification of ‘bad boy’ tennis)
(introduction), 252
regulating on-court tennis indiscipline (the Code)
audible obscenity, visible obscenity and verbal abuse
examples (Tarango),
examples of common code violence, 248
in-game violations, penalties
decisions as ‘final and irrevocable’ (Code IC(R)), 248
‘immediate default’ (Code IV(S)), 248
‘point penalty schedule’ (Code IV(R)), 248
restraint of trade (English common law) (introduction)
as a contractual remedy, 89
effective imposition of restraint, need for, 89
right to invoke in the absence of a contract, 89
types of agreements giving rise to, 90
description of, 88
domination of English law, reasons for,
fluidity of the boundaries, 90
protection of the weaker party, 90
justification/rationale,
unenforceability/voidness of an unjustified restriction on trade,
restraint of trade (English common law) (disciplinary bans),
heavy sentences
restraint of trade offences, 99
jurisprudence
Luis Suarez, 99
proportionality and fairness requirement, 99,
restraint of trade (English common law) (disciplinary bans)
heavy sentences
doping/illegal gambling, 99
tennis offences (ITF Rules),
breach of rules of conduct,
doping and corruption,
restraint of trade (English common law) (national federation and state regulation),
balancing justification and improper restraint,
professional/public interest, need for,
proportionality, 93
examples of domestic law constraints, 93
restraint of trade (English common law) (players’ contracts with agents),
negative consequences for the athlete,
royalties from direct sports earnings,
restraint of trade (English common law) (professional tennis): see also agency (player-agent relations)
introduction, 96
restraint of trade (English common law) (qualification for national tennis teams),
benefits from national team selection, 103
ITF Constitution (IOC provisions), 103
Oksana Kalashnikova and Ekaterine Gorgodze,
possibility of an amendment to ITF Rules, 194
Rules of Tennis: see also regulating on-court tennis indiscipline
ITF International Adjudication Panel,
objectives (balancing tradition and the development of the sport (Appendix XII)), 246
Rules of Tennis Committee
composition, 181
election to, 181
removal of a member, 181
responsibilities, 181
term of office, 181
Ruling Board’s role, 181
Russian Tennis Federation, 26
safeguarding in tennis (introduction)
a catalyst for action, 190
examples of action in date order
2001 (addition of a Child Protection in Sport Unit to NSPCC’s portfolio), 190
2008 (AusAID’s implementation of a Child Protection Policy), 190
2012 (UNICEF’s International Safeguards for Children in Sport), 190
relevant legal materials
CRC (Art. 19),
CRDP (Art. 30),
national sport-specific legislation,
specific criminal laws, 190
relevant rules and codes
ATP draft Code (in progress), 191
ATP Independent Safeguarding Report (2021), 191
ATP Tour Director of Safeguarding (2021), 191
ITF Safeguarding Adults Policy (2023), 191
ITF Safeguarding Children Policy (2023), 191
US Center for Safesport’s Code for the US Olympic and Paralympic Movement (2023), 191
WTA Safeguarding Code of Conduct (2023), 191
safeguarding in tennis (a duty of care),
reasonableness test, 193
relationship of trust doctrine
ITF’s Safeguarding Policy for Children (relationship of trust doctrine),
WTA’s Safeguarding Code of Conduct, 194
safeguarding in tennis (abuse in sport)
inequality of the relationship across a range of situations as the main factor, 194
main concerns (sexual, physical and emotional abuse and violence), 194
main perpetrators, 194
safeguarding in tennis (adult athletes) (notable differences from policy for children),
failure to address gambling issues,
negligible/inappropriate reference to issues affecting adults,
safeguarding in tennis (child-adult relationships) (ITF’s safeguarding policy),
absence of a published policy, 198 n.32
accommodation concerns/ITF’s attempts to address,
absence of an implementing mechanism,
appointment of a Safeguarding Manager and Designated Safeguarding Officer, 199
Safeguarding Manager’s responsibilities/necessary skills, 199
detecting abuse
key indicators (Art. 18), 202
a listening culture (Art. 19), 202
a responsibility of all covered persons and the organization as a whole, 202
disallowed conduct (Art. 15), an extensive list including
abuse, harassment, violence and sexual exploitation, 200
inclusion of ‘poor practice’, ‘neglect’ and ‘emotional abuse’, 200
social media rules, 200
examples of
parents’ and caregivers abuse’/ITF’s obligation to monitor and report,
poor practice,
psychological and emotional neglect,
unacceptable conduct (Art. 16),
focus on a safer recruitment policy,
ITF reports to national authorities/follow-up action,
safeguarding in tennis (child-adult relationships) (safeguarding against future harm),
conditions leading to, 202
difficulty of identifying appropriate action/obligations of stakeholders, 204
need for expansion of successful programmes to national federations,
a responsibility of the ITF, ATP and WTA to address?,
safeguarding in tennis (child-adult relationships) (WTA)
2004/2014 reviews, 196
a holistic approach, 196
safeguarding in tennis (conduct of tennis athletes against non-athletes)
absence of a relationship of trust in the sporting context,
fiduciary duties of agents to clients (contractual, statutory and common law), 209
stakeholders’ safeguarding duties as potential base, 209
Zverev case (reversal of ATP’s intention to treat as a ‘safeguarding investigation’), 209
safeguarding in tennis (consequences of failure to meet obligations)
safeguarding in tennis (health and safety)
Health and Safety Act at Work 1974 (UK),
limited ITF reference to/national responsibility for, 206
LTA Coach Qualification Health and Safety Policy, 207
Safin, Marit, 121
Seles, Monica,
‘Seven Kingdoms’
membership of the group (ITF, ATP, WTA and Grand Slams), 124
Shuai, Peng, 18
sponsorship agreements (IP rights) (overview): see also broadcasting rights agreements; merchandising agreements; sponsorship/endorsement agreements
commercial factors for consideration, 57
definition, 56
endorsement contracts distinguished, 60
key provisions, 57
potential benefits, 56
risks,
sponsorship agreements (IP rights) (key provisions)
ambush marketing
definition, 59
example (Heineken/Stella Artois (2011)), 59
legal, statutory and regulatory framework, territorial basis, 59
legality/illegality/in-between, 59
mitigating the effects,
sponsorship agreements, importance of protective provisions, 59
trademarks, copyright and designs, role, 59
sponsorship/endorsement agreements: see also brand investment; moral clauses; regulating on-court tennis indiscipline (commodification of ‘bad boy’ tennis)
agents’ role, 26,
digital aids to finding, 42
scandals, cancellation of contracts consequent on/examples, 74,
TACP overview (vulnerabilities)
as an individual sport, 229
appetite/opportunities for online betting, 230,
difficulties of funding a professional career,
TACP (jurisprudence)
Affi, Gharsallah and Snene,
Crepatte, 232 n.92
Fayziev, 236
Feitt, 238
Grigaitis, 238
Khabibulin, 236
Köellerer, 236 n.109
Lescure, 236
Okala, 236 n.109
Oriekhov,
TACP Procedural Rules in numerical order
A (introduction) (purpose of the TACP), 230
B.10 (definitions: ‘covered person’),
B.22 (definitions: ‘major offence’), 232
B.24 (definitions: ‘notice of major offence’), 232
B.28 (definitions: ‘player’), 231 n.89
B.31 (definitions: ‘related person’), 231 n.89
B.34 (definitions: ‘substantial assistance), 242
B.39 (definitions: ‘tournament support personnel’), 231 n.89
D.1.a (betting by a covered person), 235
D.1.a-D.1.r (corruption offences), , 240
D.1.b (facilitation, encouragement or promotion of betting by a covered person), 235
D.1.d (contriving the outcome of an event), 216, 236, 239
financial return, relevance,
most common Art. D.1.d offence, 236
a typical methodology,
D.1.e to D.1.g and D.1.o (facilitating others to fix a match), 238
D.1.m (umpires fixing a match),
D.1.q (prohibition on engagement by a tennis betting operator),
D.2.a.i and D.2.b.i (reporting an approach to a covered person), 230
D.2.a.ii and D.2.b.ii (reporting a suspicion of an offence), 230
F.2.b (obligation to cooperate fully),
G.1 (commencement of proceedings), 232
G.1.a (notice of a major offence: scope),
G.1.f.ii (briefing on issues to be raised), 233
G.2 (conduct of proceedings), 232
G.3.a (burden of proof (ITIA): preponderance of the evidence), 232
G.3.b (burden of proof (alleged offender): preponderance of the evidence), 232
G.3.d (admissibility of evidence: AHO’s right to determine facts by any reliable means),
use of inference (Crepatte), 232
G.4.a and G.4.b (decision), 233
H (sanctions), : see also ITIA Sanctioning Guidelines (2021)
purposes (proportionate punishment/deterrence),
H.1.a(i) and (iii)/H.1.b(i) and (iii), 241
I.1/S.I.1 (right of appeal/scope), 233
I.4 (time limits), 233
TADP
conflict with the rankings system (Halep), , 158
Independent Tribunal jurisdiction in case of a disputed charge, 163
TADP Procedural Rules in numerical order: see also anti-doping rules (TADC/CAS/ITF jurisprudence); ITF Independent Tribunal
1.1.7 (ITF’s delegation of responsibility to ITIA), 212
1.3 (English courts’ exclusive jurisdiction), 89
2.1 (ADRV: presence of a prohibited substance), 212
establishing a presence, 213
exceptions, 213
Prohibited List (WADA), 213
2.1.1 (strict liability), 212,
out-of-competition exemption, 213
player’s personal responsibility to ensure compliance,
TEU exemption, 213
2.1.1.3 (other ADRVs), 214
2.2 (proceedings) (overview),
2.2.1 (notice), 215
2.2.2 (Charge Letter),
player’s options, 216
2.2.3 (hearing),
2.3-2.11 (list of ADRVs), 214
7.14.2 (ITIA’s reasoned decision), 216
8.1 (referral to an Independent Panel), 163,
8.2-8.3 (establishment of panel/pre-hearing issues), 216
8.4.3/8.4.5 (player’s fair hearing rights), 217
8.5.2 (Tribunal’s decision), 217
8.5.3/8.5.4 (costs), 217
10 (ineligibility sanctions),
10.2.1 (ineligibility sanctions: 4-year baseline), 217
10.2.1.1 (intent: non-specified substance (burden of proof on the player)),
presumption of intent (CAS jurisprudence),
10.2.1.2 (intent: specified substance (burden of proof on ITIA)), 218
10.2.2 (ineligibility sanctions: extenuating circumstances), ,
finding of no intention, 218,
level of fault requirements, 218
10.2.3 (‘intentional’ (knowledge an ADRV/risk of)), 100, 161, 219
establishing the source as evidence of lack of intent,
‘facts established by any reliable means’ (ITF Tribunal Procedural Rules), 161
‘other good reason’ (a high CAS threshold), 221
10.5 (no fault or negligence (elimination of period of ineligibility)),
contaminated substance (Code comment), 225
definition (TADP Appendix One), 222
‘every conceivable effort’ test,
examples of successful/unsuccessful defences, 224
requirements,
‘utmost caution’ test, 223
10.6.1 (no significant fault or negligence (reduction of period of ineligibility)), 222,
definition (TADP Appendix One), 225
examples of successful/unsuccessful defences, 225,
a high but not impossible standard (CAS), 226
objective assessment/relevant factors,
requirements, 225
subjective assessment (arbitral body)/relevant factors, 227
‘utmost caution’ rest,
10.6.2 (no significant fault beyond Art. 6.1), 222 n. 47
13.2 (appealable decisions), 228
13.2.1 (appeals involving international-level players), 228
13.2.2 (appeals involving other players or other persons), 228
13.8.1.1 (time limits: appealing player), 228
13.8.1.2 (time-limits: ITIA), 228
13.8.1.3 (time-limits: WADA), 228
tennis governance (ITF/APT/WTA) (introduction): see also EU economic law; unionization (professional tennis players)
complicating factors, : see also Olympic movement and professional tennis
existence of player-based organizations (ATP/WTA)/Grand Slams, 71
fundamental divergence of approach between players and governing bodies,
impact of international disarray, 170
importance of the players/pressure for greater involvement, 170
jurisdictional overlap, 170
ranges of actors involved, 71
rigid amateurism vs uncontrolled professionalism, 174
sanction-related power of governing bodies, 170 n.2
straddling between not-for-profit and intense commercialization, 170
tennis governance (ITF/APT/WTA) (structure): see also unionization (professional tennis players)
allocation of tasks,
fighting it out/factors influencing,
governing bodies in date order of establishment
USLTA (1881),
ILTF (1932) (renamed ITF (1977)), 174
NTL (1967–70), 174
WCT (1968–89), 174
Virginia Slims Tour (1971),
ITF (1977) (formerly ILTF), 174
players’ councils,
WTA Council, 177
regional associations, 70
tennis governance (ITF/ATP/WTA) (common features),
background: see also unionization (professional tennis players), key events in date order
historical changes (1972–1989), , 10
impact of commercialization and professionalization, 7
rivalries and disputes,
applicability of transnational processes, 1,
applicable law: see also applicable law
domestic and transnational anti-trust laws,
human rights law, 3
public international law,
list of, 70
Tilden, Bill, 80 n.45
TISB (Tennis Integrity Supervisory Board),
trade secrets/confidential information
implementation by national IP laws (TRIPS 39), 56
importance in the tennis world, 56
requirements for protection, 56
trademarks (general), : see also copyright; design rights; image rights/rights of publicity; IP rights (enforcement action); patent rights; trademarks (general)
advantages
indefinite protection, 47
passing-off action (UK), 47
strength of protection against third-party infringements, 47
registration requirements
definition/purpose of ‘trademark’ (TRIPS 1(1)/EUTMR 4/national legislation), 46
grounds for refusal,
importance to sporting goods manufacturers, 45
non-registrable signs (TRIPS 1(1)/EUTMR 7(1)/national legislation),
territoriality, 46
scope of protection
Nice Classes of particular interest to the tennis sector,
Nice Classification system,
Nice Declaration on the Specific Characteristics of Sport and Its Social Function in Europe, 264
trademarks (types) (non-traditional)
general features
definition, 48
difficulty of registration, 48
increase in EU applications, reasons, 48
colour marks
AELTC struggles/2016 registration of Wimbledon colours, 49
balancing factors, 49
CJEU case law,
colour combinations (systematic arrangement requirement),
limited number of internationally accepted colours, 49
protection by registered designs and/or copyright as preferred alternative, 49,
single colour, 48
motion, gesture marks and holograms
increasing popularity, 31
likely requirements, 51
Usain Bolt’s ‘lightning bolt’ gesture, 51
‘Vicht’ salute (Kroon/Wilander vs Hewitt),
shape marks
AELTC decision to opt for logo protection, 50
CJEU case law, 50
non-registrable signs (EUTMR 7(1)(C) and (e)),
smell and taste marks
‘The Smell of Fresh Cut Grass’ registration (2009), 51
sound or video files, 48
unionization (professional tennis players): see also player rights, pay and conditions
introduction (coming in waves), 105, : see also key events below
1960s-70s, 141
1990s-2010s, 141
2020 (the third age),
collective action vs shared governance, ,
ATP/WTA efforts to become governing bodies/transnational businesses/success, 106, ,
PGA/APG choice of the commercial route, 117
US and European football distinguished/reasons for, ,
collective action vs shared governance (criticisms of the outcome)
Ashe on,
King on, 120
a stifling of rewarding and secure contracts in favour of lucrative individualist pay structures, 119
collective action vs shared governance (factors affecting the tennis players’ choice)
absence of a stable managerial counterpart, 228
a rich man’s sport/elite players’ domination, 118
defining a professional tennis players’ union,
ILO Global Dialogue Forum on Decent Work in the World of Sport (2020),
ILO principles and standards, applicability,
importance of trade union rights (Shift Project), 109
recognition of role of human rights, impact,
right to organized, independence from an employment relationship (ILO jurisprudence),
summary of UNGO obligations,
WPA findings on the risks to players’ trade union rights (2017), 109
initial attempts at unionisation (1967–75) (introduction)
matters requiring resolution, 111
the old guard resistance, 111
the Open Tennis vision, 111
a slow start/breathtaking progress, , 116
key events in date order
1968 (WCT established),
1968 (Wimbledon declared by the ITA as open), 112
1969 (ITFA established), 112
1970 (establishment of the Association of Independent Tennis Professionals/ITPA and ILTF threats to the WCT),
1970 (The “Original Nine” begin the campaign for equality in women’s tennis), 112
1972(1) USLTA peace deal, 113
1972(2) (ATP established with Kramer as Executive Director), 113
1972(3) (ATP’s refusal to admit women players), 113,
1973(1) (establishment of the WTA/key issues),
1973(2) (ATP boycott of Wimbledon following the Pilic showdowns), 115
1973(3) (King’s intelligence and entrepreneurial flare break the prize money lock), 115
1973(4) (settlement of USLTA’s to ban women players/launch of the Virginia Slims tour), 115
1974 (establishment of the MITPC/changes to meet ATP’s demands),
1975 (establishment of the WIPTC), 116
1988 (ATP leaves the MIPTC), 120
1994 (WTA merger with WIPRC),
2003 (establishment of the IMTA: the issues and the failure), 121
2012 (proposed boycott of the Australian Open on prize money grounds), 121
2020 (establishment of PTPA), ,
WADA Prohibited List, 213
wild cards
free movement of services (TFEU 5), jurisprudence
Deliège (proportionality/non-discrimination), 281
Meca-Medina/Gebhard/Bosman (rejection of nationality-based discrimination),
Walrave/Donà (permissible nationality-based discrimination), 282
Williams, Venus, 128,
Wozniacki, Caroline, 121
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