Tim Curtis surveys current issues in the world of sport – on and off the pitch – and then considers a quaint area of English law which could still knock the unwary for six.
SPORTING SNIPPETS
Recent weeks have seen more instances of the Law’s involvement in sporting activities and the business of sport.
The CPS announced that it would be proceeding with a re-trial of the footballers Bruce Grobbelaar, John Fashanu and Hans Segers after the jury failed to reach verdicts at Winchester Crown Court on charges of corruption.
The possible effect of pay per view television in the coming years is reported to be a factor in Aston Villa taking a more cautious approach to re-developing their stadium. It is understood that the club want to be sure that pay per view will not cause significant reductions in match attendances before committing to significant building work. Several other leading football clubs are know to be very keen on developing pay per view television, but many people take the view that this will only benefit those elite clubs with national and international followings. Such a development would probably lead to enormous increases in income for those top clubs, thereby enabling them to keep purchasing the best players and ensuring continued success. It remains to be seen whether those clubs not in the elite would be prepared to continue to be cannon fodder.
The serious matter of the scope of legal duties owed by a referee, as exemplified in the case of Smolden -v- Whitworth (Court of Appeal judgment 17 December 1996) is perhaps cheapened by the report that some fans of Leicester City Football Club are suing the Football Association (for œ140) because of a controversial penalty award made against Leicester in favour of Chelsea by referee Mike Reed in the recent FA Cup 5th Round Replay. It is inevitable that there will be increasing legal examination of the responsibilities of referees in all sports, not only to players who are injured, but to clubs who businesses are affected, in instances where referees make bad decisions. However, the Smolden case emphasised that referees are in a difficult position. In the words of the law report from The Times of 18 December 1996, all should appreciate ‘how difficult it was for any plaintiff to establish that a referee failed to exercise such care and skill as was reasonably to be expected in the circumstances of a hotly contested game of rugby football’.
An injunction was granted in the High Court stopping the suspension of an Ebbw Vale rugby player, Mark Jones, who was disciplined after having been sent off in a match. The Judge held that the disciplinary procedures that had been used had not been fair. Since the injunction, the Welsh Rugby Union have introduced new disciplinary procedures.
In cricket, it was reported that discussions between the Professional Cricketers’ Association and the England and Wales Cricket Board were likely to lead to new, more liberal, regulations regarding player registration and transfers. Although professional sportsmen are often employed by clubs and are therefore subject to normal rules of employment law, the circumstances of the engagement of a professional sportsman are special. Long fixed-term contracts are not only common, but are necessary. Clubs will make plans at the beginning of a sporting season and have to avoid mid-season disruption as much as possible. Were players able to leave on short periods of notice, one could find that a team playing poorly at the start of a season could lose not only matches but all of its players. Relatively large salaries are the recompense for the sportsmen and women. Cricket has already been the subject of one leading case (Greig -v- Insole), and soccer has had its fair share of reported cases. With the number of lawyers involved in the administration of rugby union, it would not take a crystal ball to forecast that the next major sports law case could well spring from that quarter.
Emphasising the increasing links between sport and general marketing of products and services, the Virgin Group have purchased a sizeable stake in the rugby league team, the London Broncos. Presumably there are no plans to change the club’s name, nor invest in an Australian rules team.
THE USE OF ARMORIAL BEARINGS
It may seem rather odd to find on a website dealing with sports law, both of which are examples of modernity, an article dealing with the ancient topic of the use of armorial bearings. It is, however, a subject which may have some importance for all sporting organisations which do not have their own independently created logo, which is common where a club comes from a particular town or city. Sports clubs are businesses and, in order to compete on the pitch, clubs have to find every source of revenue generation available. The use of a club’s logo on shirts, ties, leisure wear and other forms of merchandise will inevitably grow. One only has to look at the world’s most popular soccer team, Manchester United, to see that, effectively, it is a brand which has worldwide appeal. For this reason, the club protects its rights very keenly, being particularly vigilant against pirate merchandise emanating from the Far East.
Most clubs, in all sports, now employ a logo of some sort. Many clubs in a professional sport have benefited from creating their own logo which they can protect easily, through the laws relating to copyright and trade mark. However, there are a number of clubs, especially those whose origins lie in the 19th Century, who have, since their inception, carried as their logo the coat of arms of the city of their birth. Inevitably, especially in soccer, cricket and rugby union, where there is usually intense loyalty to one’s local team, a place will become identified with its own club and the use of the local coat of arms is not surprising.
It is likely that most entities who are entitled to bear arms have not given much thought to the question of the use of those arms by sporting clubs but, with the increasing amount of merchandise on sale, matters might change.
Intriguingly, and perhaps interestingly to lawyers of a particular disposition, the law of arms is found in the customs and usages of the Court of Chivalry. The leading book on the subject is Squibb’s High Court of Chivalry, which describes how arms can only be borne under lawful authority or by virtue of ancestral right. Lawful authority is granted by the English Kings of Arms and the Earl Marshal, whereas ancestral right (effectively a recognition that the right to bear arms has not been disallowed, despite the lack of a formal grant) would be proven by reference to the records of the College of Arms.
If there are any questions of law relating to the use of armorial bearings, then the Court of Chivalry, which is separate from the common law courts, is the venue for any hearings. Although its procedure might not come as any surprise to any litigation lawyer, its lexicon might. For example, the Court is presided over by the Earl Marshal, but a senior judge will effectively make the decision. He is called The Surrogate; a plaintiff ‘porrects’ the decision he seeks.
So much for the quaint history. One might be tempted to think that the lack of legal proceedings on the topic over the years is also a reflection of the fact that this is an area of the law which has no modern relevance. Indeed in Manchester Corporation -v- Manchester Palace of Varieties Limited (1955), in which those presenting the petition not surprisingly instructed Mr Squibb, it was stated that the Court of Chivalry had not sat for 200 years. In that case, the Manchester Palace of Varieties Limited used the Corporation’s coat of arms at the Palace Theatre in Manchester as decoration, and also used the coat of arms upon its own common seal, neither of which use had been approved by the Manchester Corporation, which was duly authorised to bear arms. The Court held that the use of the coat of arms on the common seal was unlawful as it sought to identify the Company with the Corporation. However, taking a very practical approach, Lord Goddard, as The Surrogate, felt that the use of the coat of arms as mere decoration, which had been carried on at the Palace Theatre for a number of years without complaint, was permitted. He recognised that there was a difficulty in strictly enforcing the law on armorial bearings in these instances, where coats of arms had been used as decoration without complaint. He stated that the line could only be drawn between permitted and forbidden usage ‘by the exercise of common sense’.
While this might be regarded as an easy way out (perhaps a damp squib), it might well be the case that those who are entitled to bear arms would now take a more robust approach to usage than in previous years. In this day and age, sport and entertainment are interlinked and both need merchandise and the promotion of goods and services to sustain themselves. It is undoubtedly the case that there is now a whirlwind of goods and services compared to what was available in 1955, and people generally are far more aware of their rights. In the 1990s, it is more likely that an action would be brought not by the Corporation, but the Manchester Palace of Varieties, seeking to prevent third parties from cashing in on any goodwill arising from its own activities. Furthermore, those clubs who do use their ‘local’ coat of arms might be well advised to create their own distinctive logo. The use of another’s coat of arms would not enable a club to protect its own interests because it would not be the copyright owner in the design, and there is some doubt as to whether the law on armorial bearings would allow what is, in effect, a sub-licence of rights to a merchandiser. The club would also not be able to register the coat of arms as its trade mark. If a club wants comfort, it should create its own logo. If it wants the buzz of being reckless, it should use a coat of arms and see if anybody notices.