The EAT overturned the first-instance ruling that Quashie was self-employed and therefore unable to pursue her claim, stating that: “The judge’s repeated conclusion that there was no mutuality of obligation is frankly wrong.”

Judge McMullen QC, who heard the appeal, said the concession made by Casper Glyn QC on behalf of Stringfellows at the appeal stage that a contract existed between the appellant and respondent meant she was employed by the club.

“It seems to me that the vista has changed in the light of the realistic concession, properly made by Mr Glyn, that on each night the claimant was engaged she had a contract,” the judge said, adding that just because she was paid in vouchers did not render her self-employed – she was still paid.

The judgment stated: “On each night she attended the claimant was obliged to work as directed by the management”.

“If she didn’t provide the free dances or other duties, she could be fined. I infer from the findings that if the claimant were directed to a customer, she could not refuse.

“It seems to me that mere attendance on the night is pursuant to a requirement that she work; that is, that she turn up and stay throughout the night shift on pain of fine or deduction.”

Her unfair dismissal claim will now be referred back to the Employment Tribunal (ET).

A cross appeal by the respondents claiming that any contract would be illegal since it was directly prohibited by statute or it became illegal in its performance was also referred to the ET.

Stringfellows plans to appeal the EAT decision.

The former New Zealand cricketer, Chris Cairns was awarded damages of £90,000 by the High Court over a defamatory tweet in what is considered to be the first Twitter libel case to be heard in England.

Lalit Modi, tweeted in January 2010 that Cairns had been barred from the Indian Premier League due to ‘his past record in match-fixing’. Modi refused to apologise and maintained that his allegations were true. Whilst it was estimated that the tweet was only seen by 1,100 people, the judge stated that although publication was ‘limited’ that did not mean that damages should be reduced, noting that ‘nowadays the poison tends to spread far more rapidly’.

This case makes it clear that defamation on social media is treated just as seriously if it had been on mainstream media, if not more given the potential for the reputation damage to spread.

The second case reported was in relation to offensive/racial tweets made by a student.

10 days after the nation stood still as Fabrice Muamba collapsed from a cardiac arrest on the playing field at Tottenham, student Liam Stacey was sentenced to jail for 56 days.

Stacey, a 21 year old, tweeted several messages during the Spurs v Bolton FA Cup which were offensive or racist in nature. Although Stacey initially claimed his account had been hacked he subsequently tried to delete his account and tweets before he was arrested by the police. He was found guilty of inciting racial hatred and was jailed. District Judge John Charles told him: ‘In my view there is no alternative to an immediate custodial sentence to reflect the public outrage at what you have done.’

The outcome of these cases is a clear warning to all tweeters and alike. There is no excuse or defence in tweeting blindly. The courts are taking matters seriously as we have seen from the two recent cases and caution should be taken when tweeting. The advice to all tweeters is to stop and think before you tweet!

The basic example when law gets involved in sport is of course when a dispute arises, let’s say case 2005/2006 Uruguay Peñarol vs Paris St.Germain, in Uruguay a player could be unilaterally renew at the end of its contract if the play receives a 15% raise.

Carlos Bueno and Cristian Rodriguez wanted to go and play at PSG but the club unilaterally extended their contracts, subsequently they went to the Court of Arbitration for Sports and it was decided that FIFA regulations should prevail over the national law considerations when it comes to unilateral extension, this case was considered the Latin American Bossman.

So we have 3 different jurisdiction to apply ( Uruguay for Penarol and the players, French law for club PSG  and Swiss law for FIFA and CAS)

To understand better here is the law hierarchy pyramid in football (it is almost the same in every sport):

1. FIFA
2. Confederations (CONCACAF, COMEBOL,UEFA,CAF,ACF)
3. National federations(English football federation, Italian football federation, among others)
4. Clubs (Chelsea FC, Juventus)
5. Players

After all the steps for a claim are fulfilled (ex.national federations and then FIFA), the player is allowed to take his claim in front of the Court of Arbitration for Sports(CAS/TAS), after the CAS he can challenge  the decision in the Swiss Court for reasons  that we will see further on.

 Written by Roberto Rizzo

One may question where the legal argument is. From the face of it, it appears quite normal to leave one job for another. However, at the time of resignation Scott and Hurst were under contract via a contract of employment with Boston. Within that contract laid important clauses which Scott, Hurst and Grimsby did not comply with.

These were two-fold, firstly there was a requirement for Scott and Hurt to pay compensation (a defined pre-estimate of losses as opposed to a penalty clause) to Boston if they left the club before the expiration of their contract and secondly it was a requirement for any prospective employer/club to seek permission first from Boston to speak with Scott and Hurst.

What in fact happened, Scott and Hurst with the aide of their ‘un-named agent’ entered into negotiations with Grimsby, without the knowledge of Boston and which led them to secure new positions. Not only had Scott and Hurst attended interviews with Grimsby, with the help of the ‘un-named agent’ remuneration packages were discussed along with other terms.

All of this happened prior to Grimsby requesting permission from Boston and negotiations continued even when permission was not granted. Without having regard to Boston, Scott and Hurst entered into new agreements with Grimsby which was found to be a clear breach of their contract with Boston.

The mere fact that Scott and Hurst handed in their resignations did not on its own make them valid. The resignations had to be accepted by Boston.

Although Grimsby were not a party to the contract between Scott, Hurst and Boston, the judge found that they were reckless in their conduct as a professional club and found to have induced the breach of contract.

The message is clear from this case, prospective clubs wishing to appoint new managers/players should not solely rely upon the information provided by an agent. To avoid unnecessary rifts and breaches of contracts, they should approach the club direct and seek permission before moving any further. If permission is not granted they should either wait until the manager/player is no longer under contract or walk away from the transaction.

The judge found that Boston’s Chairman, David Newton had conducted himself in an honest and transparent manner which was a persuasive factor in Boston succeeding in their claim against all three defendants.

This is a fantastic opportunity for you to meet the FrontRow Legal Team on an informal basis and really get to know us for who we are.

Feel free to pose legal and non-legal questions to us or alternatively feel free to come for an informal chat.

Food and refreshments will be served so we should be grateful if you could kindly RSVP richard.cramer@frontrowlegal.com by 19 March 2012 with names and numbers of attendees. There is ample car park facilities on site and in the surrounding area.

We look forward to meeting you all.

FrontRow Legal Team

Each year a complicated process is undertaken to plot the season’s fixtures according to a set of “golden rules” – for instance, that no club should have three consecutive home and away matches, in any five consecutive matches no club should have four home or away matches, all clubs should have played as far as possible an equal number of home and away matches at any given point in the season, and an equal number of mid-week matches for each club should be home or away matches. The resulting process therefore involves a large amount of information crunching, as well as liaison with the clubs and other interested parties such as the Police, whose resources are needed to police the matches. The job involved therefore is clearly highly skilled and involves a considerable amount of judgement and discretion.

The resulting fixture lists have a value to news media, betting companies and a multitude of publications in all media, and under the regime administered by Football Dataco have been made available on payment of fees. Those who have reproduced the lists or extracts from them without paying the required fees have been treated as infringing intellectual property rights.

Two principal intellectual property rights have been invoked. The first, the so-called “database right”, arises when there has been a substantial investment in obtaining, verification or presentation of the contents of the database concerned. When that right arises it protects the owner of the database from unauthorised extraction or re-utilisation of the whole or a substantial part of the database. Authorities of the European and English courts have already determined that the football fixture lists in question here are not protected by that right.

The latest ruling suggests strongly that copyright protection likewise will be unavailable. As this is a reference to the Court of Justice it does not determine facts finally, so there is the possibility for more developments. However, the Court of Justice has ruled that for all the skill and judgement involved in the process of generating the fixtures that does not qualify them for copyright protection under the relevant Database Directive (Directive 96/9) on the following basis. The Directive requires for protection to exist that the author of the database has made an original expression of his or her creative freedom in the selection or arrangement of the data which the database contains, rather than merely used skill and judgement to navigate around technical considerations, constraints or rules.

There will doubtless be much learned debate on the issue, but the simple issue that faces those involved in creating these fixture lists is the potential loss of a considerable income stream that is passed on to the clubs. In the grand scheme of things the loss to the game may not be huge, but it adds to the financial squeeze many clubs and participants in the game are experiencing.

Barbados International McCammon, 33, claims that he and other black players at Gillingham FC were treated less favourably than white players.

He alleges that the League Two club took different stances over punishments handed out for missing training, medical treatment for injuries and pay cuts after relegation from League One.

McCammon is suing his former club and its chairman Paul Scally for race discrimination and unfair dismissal. He is seeking substantial damages.

His claims will be heard at Ashford Employment Tribunal in Kent later this year. His claims are strongly denied by Gillingham.

Gordon Taylor, Chief Executive of the Professional Footballers Association, revealed he has tried in vain to mediate in the dispute. He said: ‘This is a very unusual case. We had hoped to settle this matter within football but that hasn’t happened on this occasion, so the tribunal will have to resolve it on matters of fact’.

It follows high-profile incidents involving Chelsea and England defender John Terry and Liverpool forward Luis Suarez. Former England Captain John Terry is due to stand trial over the summer on charges that he racially abused QPR’s Anton Ferdinand. And earlier this month, Luis Suarez was forced to apologise for refusing to shake hands with Manchester United’s Patrice Evra before the teams played at Old Trafford. Suarez had only just returned to action after an eight-match ban for racially abusing Evra during a match in October.

Carly Barnes warns clubs that ‘there is no limit to the amount of financial loss that can be awarded in a successful discrimination case. Litigation can also involve significant management time and legal costs, which are usually not recoverable.’

But how many clubs have a proper diversity and equal opportunities policy in place to address race discriminaton within their club? And how many act on and implement its contents?

The purpose of such a policy is to provide diversity and equality to all employees irrespective of gender, race, ethnic origin, disability, age, nationality, national origin, sexuality, religion or belief, marital status and social class, to prevent all forms of unlawful and unfair discrimination.

Any such policy should promote a working environment where all employees are treated fairly and equally; it should be detailed in the club’s company handbook and in player’s contracts, monitored annually and implemented across the whole club. Any breaches of policy should be regarded as misconduct with the potential to lead to discplinary proceedings.

Barnes said, ‘Football clubs are employers like any other business and, as such, they are subject to employment law rules and regulations which include the need to implement clear and effective Equal Opportunities Policies.’

‘English football leagues are cosmopolitan, with players from all over the world, and yet many clubs are falling behind other industries by failing to create and effectively implement fair equal opportunities policies.’

FIFA’s official position is that when a player suffers racist abuse, the matter should be dealt with by the sport rather than the courts but is this an appropriate sanction for an act that can lead to substantial damages in the employment tribunal and criminal charges in court?

David Cameron has warned the sport it cannot brush the issue under the carpet. He convened a meeting at 10 Downing Street attended by former England players John Barnes and Graeme le Saux as well as representatives of the Football Association, Premier League, Football League, Professsioanl Footballers Association and League Manager’s Association.

The government has given the FA two months to come up with a firm plan of action to tackle issues of discrimination.

One such area that should not be overlooked is by clubs themselves who should look to draw up and enforce proper diversity and equality policies from the out-set. Not only will this go some way towards addressing discrimination but it will help avoid a possible flurry of claims as other aggrieved players follow McCammon’s lead.

The rift between professional football both here and in Scotland with HMR is glaringly obvious.
Messrs Redknapp, Storey and Mandaric have all been exonerated from criminal prosecution of tax fraud from events going back several years during their period together at Portsmouth. It does beggar belief that over £8 million has allegedly been spent on prosecuting a case which on the face of it had all the appearances of a genuine “civil dispute”.

However, the Redknapp case became very much a show trial and demonstrated that HMRC clearly do not like the way football at the highest level runs itself. Clearly lessons need to be learned and there can be no doubt that all chief executives and finance directors at professional football clubs will want to ensure they have all of their tackle in order.

In the last couple of days we have seen two well-known clubs be forced into administration. Portsmouth entered into administration for the second time in two years. It looks like they have had problems paying the tax man.

More glaringly however is the potential demise of Glasgow Rangers-a powerhouse not only in Scottish football but in Europe given their annual participation in the Champions League.

Different messages are coming out but it looks like HMRC have flexed their muscles. There is talk of a potential liability of £75 million to HMRC in relation to liabilities arising from Employment Benefit Trusts (EPT’s) with another £9 million of outstanding PAYE accumulated in the last 12 months and during the period of Craig Whyte’s ownership. Yesterday, was high drama in the Scottish courts with HMRC threatening to appoint their own Administrators if the club themselves had chosen not to enter into administration. The true level of debt will no doubt surface in the next few weeks but it looks as if “the bubble is starting to burst” and the worry is that many other clubs in the Britain could be teetering on financial survival.

In the past HMRC took a fairly relaxed approach towards football clubs. They may have come under pressure from MP’s ‘to go easy’ and to ensure that the fabric of the community was not destroyed. However, given the economic climate and times of austerity the Treasury are under pressure to collect as much tax as possible.

This is not the end of the on-going battle because we are shortly to receive a decision from Mr Justice David Richards on the status of the “football creditor rule” which has irked HMRC for several years.

The one lesson that all football clubs can learn is that HMRC will do no favours. Winding up petitions will be issued like confetti if the trend of using HMRC as a ‘second bank’ continues. It looks like a reality check is coming the way of professional soccer in this country. The likely outcome is that there will be a suppression of wages (some may say long overdue) and with the UEFA financial Fair Play Rules starting to bite we are in for a new dawn of financial prudence.

Specifically, these allegations are concerned with the existence of an agreement between the Club and a third party in respect of the player’s economic rights, and the alleged failure by the Club to notify the FA of that agreement before the player was registered to play in England in July 2009.

For a football player to play for a professional football team in either England or Scotland his registration must be owned by that Club, therefore meaning that the Club has the ownership right over that players services. In recent years, however, there has been a growing trend of footballers being subject to third party ownership.

Third party ownership is the term which is used to describe the situation whereby a football player is registered to play for a Club, but that Club does not own the player and is not entitled to 100% of the future transfer value. From an economic perspective, the third party will give a Club or player money in return for owning a percentage of a players transfer fee or economic rights accruing from their contract.

It is a particularly common system in South America, and as such has crept into the European game due to the biggest Clubs fighting to sign the large number of high quality players coming out of Brazil and Argentina.

The Premier League first became fully aware of such a practice back in 2007 following the high profile dispute over Argentine striker Carlos Tévez, who had then signed for Premiership Club West Ham.

On 23 August 2006, Tévez confirmed on his website that both he and compatriot Javier Mascherano were signing for West Ham United on permanent deals for £12 million each. Media reports at the time speculated that other Premier League Clubs turned down the opportunity of signing Tévez and Mascherano because of stipulations put in place by Media Sports Investments, who owned both players’ rights.

After an investigation at the end of the 2006/07 season, the independent Premier League disciplinary tribunal fined the Hammers a record £5.5 million for the signing of Tévez and Mascherano as they were found to have been partially-owned by businessman Kia Joorabchian’s Media Sports Investment (MSI) Company. West Ham were not charged at the time with breaching the prohibition on third-party ownership because the rules were not yet then in place.

This decision was widely criticized at the time as many felt the fine was not severe enough; particularly as West Ham were not docked points and debate still rages as to Tevez’s ownership. Their disciplinary case was brought by the Premier League for their failure to supply all relevant documentation in a transfer and acting in bad faith, both of which are alleged to have been committed by QPR.  

The worrying feeling behind 3^rd party dealings is that players are seen as commodities, and individual or agent companies may act as a speculator by purchasing a percentage in a player from the Club in the hope that their value will go up. This is a situation which is simply not in the player’s best interests or in the interests of the game as the transfer fee does not go to the Club.

Following the West Ham and Tevez affair, The FA has imposed strict rules to regulate the involvement of third parties in transfers, thus hoping to create openness and clarity in transfer dealings.

Under the newly created Third Party Investment in Players Regulations, The FA has now raised allegations against QPR with specific reference to parts A1 and A2, being that, before registering a player for a Club, the FA must “be satisfied that there exists no agreement between the Club, player and a third party”. The FA is understood to allege Faurlin’s owner was a company and that QPR had submitted false information in documents lodged with the FA when Faurlin signed an extension to his contract in October 2010, much like the situation with West Ham in 2007.

No Club has yet been charged under the new rules, so the FA commission hearing the QPR case will be under pressure to set a convincing precedent if it upholds the charges. They will be keen to have the case decided soon, so that any penalty will come into effect this season to avoid a repeat of Sheffield United’s much benighted fall from grace after the Tevez affair. By way of comparison, in June 2008 Luton Town were docked 10 points by the FA for breaches of rules which included the dealing with unlicensed agents, none of which was as substantial as Faurlin’s.

These rules, introduced in June 2009, importantly do not act retrospectively, and as such existing third party player ownership which does not fall foul foot he previous regulations will be allowed until that player is transferred.

QPR issued a statement on Wednesday saying the Club will be “denying all of the charges and requesting a formal FA hearing to determine them. QPR are confident that there has been no deliberate wrongdoing involved”.

FrontRow Legal will provide further developments on this case as it progresses……………

The most recent example of protecting one’s brand arguably comes from Julian Assange who wants to trade mark his name.

Assange filed for three trademarks recently: WikiLeaks, WIKILEAKS and JULIAN ASSANGE. Assange’s application seeks to protect his name in the areas of “Public speaking services; news reporter services; journalism; publication of texts other than publicity texts; education services and entertainment services”. This is a rather confined list of specifications, compared with other trade marks that are on the Intellectual Property Register. Once the application is advertised, opponents will have two months (which can be extended to three months) to raise objections.

Trade marking a common name is not as difficult as one would imagine provided that there are not other brands in the market which pose a real risk of confusion. Where it will get interesting will be to see whether the owners of Wikipedia (Wikimedia) object to the registration of WikiLeaks. Assange will argue that he has had a strong presence in the market and that his product has enough of a reputation not to be confused with the internet encyclopedia. Rather, he may be looking to protect himself from his present and future competitors, such as OpenLeaks.

Brand protection is a vital commodity in today’s market. Assange has reportedly come under criticism for his new status as a celebrity, given his roots in waging a ‘war on secrecy’. However, in this case he is perhaps just following in the footsteps of others who have sought to protect their product, their image, and almost, one might argue, their livelihood.

Heidi Klum’s a model. She needs those legs. And Assange is now a household name which he needs to protect.

We will continue to track the progress of the trade marks.