Manager Minefield; the factors involved in Hiring and Firing

The news out of Stamford Bridge is that Chelsea FC are looking to hire their first in-house lawyer. robbie_savageThe club has not yet revealed what the job specification for the role is but one would hazard a guess that Employment law could be high on the list.

Since 1 July 2003, a reign of just over 10 years, has seen Chelsea owner Roman Abramovich pay out in the region of £90million in compensation to 7 sacked managers. To put this into context, Chelsea FC had just 8 managers in their first 75 years of existence. Two of the managers that must feel most hard done by are Guus Hiddink who had 3 months in charge between February 2009 to May 2009, losing only one game in charge, won the FA Cup and narrowly missed out on the Champions League Final. Roberto Di Matteo was deemed surplus to requirements just six months after delivering Abramovich’s most sought after prize, the Champions League Trophy.

Chelsea’s decision to have a legal advisor on hand may come in the wake of the enactment of the Enterprise and Regulatory Reform Bill. The new “Protected Conversation” rule should open the door for clubs to invite managers to sit down and speak face to face averting the previous fears of such talks being admissible in court in an unfair dismissal claim. The new ruling should encourage clearer lines of communication throughout a managerial tenancy and when the writing is on the wall for club and manager, settlement discussions on a without prejudice basis, should take place to the benefit of both parties.

Currently there are three options for a departing manager; the employment tribunal, traditional court proceedings and the Premier League Manager’ Arbitration Tribunal (“MAT”). The employment tribunal is not fit for purpose as the maximum payable to an employee in an employment tribunal will be the lesser of £74,200, or a year’s salary. These caps do not really marry up with the ‘Special One’s’ £250k weekly wage. With court proceedings there is no cap on compensation but costs can quickly escalate and eclipse those of the employment tribunal. In addition neither party wishes to bear the opposing side’s legal costs if the court’s ruling finds against them. The final option available to a manager is the MAT, used successfully by both Alan Curbishley and Kevin Keegan in relation to their constructive dismissals in 2008 and 2009, respectively. The MAT is favoured by managers as the panel is made up of barristers who are experts in the football industry specialising in sports employment issues.

A factor that may discourage owners such as Roman Abramovich from being so gung-ho in sacking and replacing their current manager are the new fair play rules which state that teams have to “balance or even break even” their accounts or they will face serious sanctions. The hiring and firing of Andre Villas Boas probably highlights how costly the process can be. AVB cost Abramovich a cool £13.3million to lure him from Porto but just 9 months later the Russian had to pay out £12million in compensation to the Portuguese manager.

Clubs and managers should ensure that the contract in place for the manager reflects the specific nature of the football industry and a standard employment contract will not suffice. The reality of a well drafted manager contract will only become apparent when the termination provisions are brought into play.

Robbie Savage – Sports Consultant




Think before you Ink – Celebrities could face being sued over their tattoos

Sunday evening will see the San Francisco 49ers take on the Jacksonville Jaguars here in England at Wembley Stadium. The 49ers quarterback Colin Kaepernick is nearly as famous for his distinctive tattoos as he is for reaching last year’s Super Bowl.


However, Kaepernick could find himself in hot water following lawsuits that are being filed in America surrounding intellectual property rights and tattoo artists.

In America in late 2012 tattoo artist Chris Escobedo sued THQ, the creators of the computer game ‘UFC Undisputed’, for copyright infringement. In summary, in 2009 Escobedo inked a large tattoo of a lion into the ribcage of mixed martial arts fighter Carlos Condit. He then filed a claim when the fighter and his lion tattoo were digitally recreated in 2012 to appear in the UFC Undisputed computer game. Escobedo claimed that THQ did not have his prior permission to recreate the lion tattoo. Escobedo was ultimately awarded $22,500 which incidentally was the same figure that Condit was paid to feature in the game.

In the wake of the Escobedo settlement the NFL Players Association has begun advising players to obtain copyright waivers or licenses from their tattoo artists. The NFL wishes to distance itself from any potential liability, no more evident than the revenue stream it enjoys yearly from the hugely successful Madden NFL franchise. Electronic Arts, the creators of Madden will have been put on notice by the outcome of the Escobedo settlement.

Prior to the release of The Hangover II tattoo artist S. Victor Whitmill sued Warner Bros, seeking damages for copyright infringement of the Mike Tyson facial tattoo. Although the case settled relatively quickly, US district judge Catherine D. Perry indicated at a preliminary hearing that the artist had ‘a strong chance of prevailing’. Whitmill was not objecting to the use of Tyson’s tattoo in the movie itself as he had brought no lawsuit when Tyson appeared in the prequel The Hangover rather that the image was replicated and depicted on actor Ed Helm’s face in the movie and was the chosen image for all advertising in the build up to the box office release of the film.

So what would be the position in the English Courts? David Beckham found himself at the centre of copyright controversy when his tattoo artist Louis Malloy took exception to the proposed promotional campaign that was to focus on the guardian angel that Molloy had designed and tattooed on the ex-footballer’s back.

The legislation for copyright is housed in the Copyright, Designs and Patents Act 1988 (section 4). Although tattoos are not explicitly listed within the section the scope of the Act does not appear to exclude tattoos.

The majority of the cases which have been filed, centre around a commercial interest for the tattoo artist’s celebrity client. There is an implied licence that exists between the tattoo artist and the celebrity which allows the client to display the tattoo without prior permission from the tattoo artist. It is reasonably foreseeable that a celebrity client will appear across various media platforms and as a result so will the tattoo.

As it stands no cases involving tattoos and copyright have made it to the English courts. We wait in anticipation to see how the courts will decide between the interests of the tattoo artist and the client. In the meantime we would strongly suggest that tattoo artists and their respective clients sign copyright agreements which outline their respective intellectual property rights. By making the implied licence explicit there will be greater transparency of the intentions of both parties which should prevent costly litigation in the future.

If you need any advice on registering trademarks or general copyright advice please do not hesitate to contact our specialist team.

Andy Boyde – Sports Consultant




TVCatchup Caught Out: High Court bans TVCatchup from streaming content over mobile networks

Are you one of the 10 million active users of TV Catchup? Do you have the mobile app installed on your smartphone?


Following a successful High Court challenge by three of the UK’s biggest broadcasters, ITV, Channel 4 and Channel 5 (“the Broadcasters”), the TVCatchup service has been forced to alter the services it provides.

The TVCatchup business model involves the relay of free-to-air TV channels to computers and mobile devices. The service is free to use, but limited to those persons who can access the internet in the UK and who hold a valid TV licence. As of April 2009, the site has been using stringent IP monitoring facilities to detect and block access from many proxy servers, to ensure that users are situated within the UK.

TVCatchup retransmits free-to-air channels over the internet on the authority granted under section 73 of the Copyright, Designs and Patents Act 1988 (“the Act”), which allows for the retransmission of ‘qualifying services’.  S.73 of the Act essentially provides for a ‘carve out’ from the separate rights that broadcasters are granted. It permits the unlicensed retransmission of broadcasts over a cable network or of a regional or national Channel 3 service, Channel 4, Channel 5 and S4C.

Yet when the Broadcasters became aware of the TVCatchup service they challenged it in Court on the grounds that the retransmission of programmes amounted to copyright infringement. In support of its challenge the Broadcasters sought to rely on a European Information Society Directive which provides the Broadcasters with the right to authorise or prohibit any communication to the public of their works, by wire or wireless means.

Therefore the key question for the Court to consider was whether TVCatchup’s live streaming amounted to a ‘communication to the public’ and therefore infringed the copyright evident in the Broadcasters broadcasts. In 2011 Judge Mr Justice Floyd said that it was his ‘provisional opinion’ that the streaming service operated by TVCatchup constituted a “communication to the public” but he referred the matter to the Court of Justice of the European Union (“CJEU”) to clarify how the EU’s Information Society Directive should be interpreted before definitively ruling on the point. The CJEU said:-

“The concept of ‘communication to the public’ … covers a retransmission of the works included in a terrestrial television broadcast where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.”

In his latest ruling Mr Justice Floyd held that by streaming the Broadcasters programmes TVCatchup were communicating with the public and as a result had infringed the Broadcasters copyright. He granted an injunction refraining TVCatchup from streaming any of the programmes of the Broadcasters without a licence or their prior consent and TVCatchup were saddled with a hefty adverse costs order. However, TVCatchup were granted permission to appeal and this may not be the end of the road yet for this legal battle.

To all the streaming services that re-use copyrighted works without the permission of the original creator of the works this ruling will not be welcomed. The decision confirms that copyright owners cannot be excluded from decisions regarding the re-use of their original works. If the courts had found in TVCatchup’s favour the decision would have struck a serious blow to the fundamentals of copyright law, which allow copyright owners to control the distribution and misuse of their works. TVCatchup has had the wind taken out of them and their strap line “Never miss a show again” is currently on the ropes. We will keep you up to date with the latest legal developments of online streaming.

If you have any issues surrounding copyright infringement please do not hesitate to contact us.

Andy Boyde – Sport Consultant

One Choice One Team



Asians Can Play Football – Nearly another decade on!

“The Asian build is not that of a footballer…it may well be Asian ingredients in food, or the nutrition they intake, [but it is] not ideal for building up a physical frame” (the then Sheffield Utd manager Dave Basset, BBC TV 1995)

The quote above sparked a report published in 1996 by Jas Bains and Raj Patel titled ‘Asians Can’t Play Football’ which was seen as an important breakthrough in reflecting both the frustrations and the aspirations of a section of the British community that seemed to be largely alienated by a sport they were so passionate about.

In 2001 the Census put the percentage of Asians (Indian, Pakistani, and Bangladeshi) at 4% of the total population and in 2011 that figure rose to 5.5%. If we roll back to 1996 it was estimated the figure of young Asian players connected to English professional clubs to be a tiny 0.2%, but by late 2004 it had barely improved, rising only to 0.8% in Academies at Premier League Clubs.

When it comes to British Asians playing with any degree of regularity there is one in the Premier League (Swansea City defender Neil Taylor), one in the Championship (Blackpool forward Michael Chopra) and one in the lower divisions (Wolves defender Danny Batth). There are another five players on professional contracts, only one of whom, Walsall’s Malvind Benning, has made a first-team appearance, and three more on scholar terms. That is a mere 11 in total.

It is clear to see that there is a huge disparity between the total number of Asians who are resident in the UK and the number that are breaking through the football ranks. As far back as 1991 a Manchester University survey found that young Asian males had amongst the highest rates of participation in football of any ethnic grouping. 60% of Bangladeshi, 43.1% of Pakistanis and 36.5% of Indians boys played football. The same survey found that 47% of young ‘white caucasian’ boys played regularly.

So what are the obstacles in the way for the British Asians to break into the ranks of the football leagues? We have all heard the reasons why Asians don’t make it; Asian parents want their kids to be doctors; Asian kids are too weak; Asians prefer cricket; the Asian diet is unsuitable for a professional sportsman.

Don’t these cultural stereotypes all sound familiar? Weren’t Black players haunted by cultural stereotypes, no more poignant then Ron Atkinson’s description of French defender Marcel Desailly; “He’s what is known in some schools as a F***ing lazy thick n****r”

If we look back over history we can see that times can change. The cultural landscape of British football has changed dramatically for Black players in the game. Forty years ago there were hardly any black players in the game now many Premiership squads could field a starting XI of Black players.

So what needs to change for Asian players to break through the ranks and establish themselves as Premiership players? Zesh Rehman, who made 21 Premier League appearances for Fulham between 2004 and 2006, believes that British Asians need to come out of their comfort zone and play in competitive leagues with players from other backgrounds;

“It can be said though that Asians don’t help themselves by playing in Asian-only leagues. I can understand the reasons as to why they were set up but the Football Association should promote mixed leagues rather than communities setting up their own teams for their own people.”




The Beat Goes On: Ministry of Sound sues Spotify for copyright infringement

Are you signed up to Spotify? Have you created an ‘Ibiza Annual 2013’ playlist to pay homage to your summer pilgrimage to the White Isle? Then you may have got Spotify in hot water!


Ministry of Sound claims that Spotify has refused to delete their subscriber’s playlists that recreate existing Ministry of Sound compilation albums to the point where “Ministry of Sound” can be found in the actual playlist title.

Ministry of Sound launched proceedings in the UK High Court early last month, seeking an injunction requiring Spotify to remove the copy cat playlists. Ministry of Sound is also seeking damages and costs. Ministry of Sound has come to the end of their tether with Spotify as several rounds of legal letters have failed to settle the dispute.

The case rests on whether the order in which particular songs are sequenced – rather than the songs themselves – is protected by intellectual property law. Ministry of Sound do not deny that Spotify has the rights to stream all the tracks on the offending playlists, Ministry of Sound themselves do not own the copyright to many of the tracks on its own compilations. The licence of the majority of the tracks comes from other record labels.

This is not the first time Ministry of Sound have turned to the legal system to protect their commercial interests.  In 2010 thousands of letters were sent out on behalf of the record label, one of which accused the recipient of illegally making available an album and demanding the accused to pay £350 or face court proceedings for infringing the rights of the label.

So what about the other compilation labels? The infamous Now! That’s what I call music compilation will mark 30 consecutive years of production when Now! 86 is released on 18 November 2013. The contrast with the Now! compilations and Ministry of Sound is that the former are a joint venture of industry giants Sony and Universal. The two heavyweights own the majority of the tracks on their playlists, and earn royalties every time they are streamed.

The closest legal comparison that can be made with Ministry of Sound’s allegations is that of the “Football Live” database compilation. The UK Court of Appeal in Football Dataco v Sportradar found that compiling the database “may sometimes involve some skill…but it is not creative skill” and therefore the ‘Football Live’ databases were not protected by copyright. Ministry of Sound will argue that their copyright is founded in the skill of the artistry in creating the compilation. Perhaps we will see Ministry of Sound promoting individual producers to evidence the creative process and skill that goes into creating their albums.

We will keep you in the loop as to what the High Court has to say when it hands down their judgment. If you have any copyright or intellectual property issues then please don’t hesitate to contact one of our team.

Andy Boyde – Sports Consultant




Check The Fine Print: Russian bank customer writes his own Ts&Cs!

Are you sick of junk mail through your letterbox, spam in your email inbox and salespeople armed with clipboards harassing you in the street all wanting you to sign up to a new credit card?


Over in Russia a gentleman named Dmitry Agarkov was particularly unhappy with yet another unsolicited offer of credit. Mr Agarkov was so appalled upon reading the small print that the real interest rate was 45 per cent, despite the bank’s advertisement offering a rate of 12.9 per cent.

Rather than just bin the offending proposal Mr Agarkov scanned the paperwork into his computer and made some amendments to the terms and conditions of the agreement.

Mr Agarkov opted for an unlimited line of credit, a 0 percent interest rate and no fees, adding that the customer “is not obliged to pay any fees and charges imposed by bank tariffs.” Agarkov also changed the URL of the site where the terms and conditions were published and hedged against the bank’s breaking of the agreement. For each unilateral change in the terms provided in the agreement, the bank would be asked to pay Mr Agarkov $91,000, or a cancelation fee of $182,000. Mr Agarkov’s amended contract was, alarmingly, accepted and he received a credit card.

After two years of use, the bank took the decision to terminate Mr Agarkov’s credit card because of overdue payments. The bank duly sued Mr Agarkov for $1,363 reflecting the remaining balance, fees and late payment charges, all of which violated the original agreement. Earlier this summer a Russian judge declared that the agreement that Agarkov had concocted was valid and all that he should pay to the bank was his outstanding balance, a mere $575. As the bank had signed the document (clearly without reading the contents of it) they were legally bound by it. Customers are always told to read the fine print, no more so in cases where banks face complaints from customers regarding their terms and conditions. In this instance it would have been prudent for the bank to take their own advice.

Not content with his day in Court Mr Agarkov is suing the bank for $730,000 (24-million-ruble) based upon his amended version of the original agreement. The bank’s owner Oleg Tinkov is bullish about the situation and has been quoted recently on twitter as saying:

“Our lawyers think, he is going to get not 24 million, but really four years in prison for fraud. Now it’s a matter of principle for @ tcsbank.”

The next hearing is due to take place before Christmas and we will keep you updated as the case evolves. If you feel you have suffered professional negligence at the hands of a financial institution than do not hesitate to contact one of our team.

Andy Boyde – Sports Consultant