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A ‘Flowery’ reaction; Should Ben Flower be spending his six months on the sidelines or in the scrubs?

Two years ago an amateur rugby player Jack Weston was jailed for six months after he punched an opponent so hard during an on-pitch row over a tackle that he broke his jaw.

 

Contrast those facts with last Saturday’s Grand Final between St Helens and Wigan Warriors; Ben Flower punched Lance Hohaia with such vigour he knocked the New Zealander unconscious with a single strike. Flower then proceeded to land a second blow on the defenceless Hohaia whilst he lay motionless on the ground.

Flower was charged by the Rugby Football League with a Grade F offence – the most serious in the sport’s disciplinary rules – of “violent and aggressive punching” and “punching an off-guard opponent”, a charge which carries a minimum of an eight-game ban. Flower has been given a six month ban which equates to the longest ban for such conduct in Super League history.

The incident has generated a massive talking point from those in the game, not least from Jamie Peacock’s Tweet:-

“Absorbing 1st half…As for the sending off…if you did that in a pub car park you’d be spending 6 months at her majesty’s pleasure”

This statement raises the question as to why so few players have been prosecuted outside the laws governing their particular sport. The 44 days spent by Duncan Ferguson in Barlinnie prison in 1995 for headbutting Raith Rovers defender Jock McStay is one of the very few instances where an on-field incident in professional sport has resulted in a criminal conviction.

The police have confirmed they are examining the incident, although they have stated that they have not received any public complaints. Their investigation will require consultation between the relevant parties before deciding a course of action, which includes Hohaia, St Helens, the RFL and the Criminal Prosecution Service.

Criminal proceedings are generally reserved for the most serious situations as discussed above. The law is more commonly involved in civil claims where an action is brought by one player against another for negligence. In 2009 Everton striker Victor Anichebe settled out of court for a six-figure settlement in damages after instigating legal action over a tackle from Kevin Nolan that left Anichebe unable to play for 11 months.

The latin phrase Volenti non fit injuria means ‘no wrong is done who consents’. Therefore if you consent to the possibility of injury and you are injured then you cannot claim you have been wronged. This is a complete defence for a claim for negligence. So should the laws of the land be left on the touchline? Should consideration be given to the importance of protecting players from serious injury balanced against the reasonableness of finding another player liable? The case law surrounding these instances tells us that violent acts will trump an injured party’s consent. Where there is difficulty in application is across the spectrum of sports. What players will consent to in boxing, cage fighting and rugby is far greater than what players will consent to when they take to the field for a football match or game of cricket.

It is clear that away from the realms of professional sport there are clear examples of criminal sanctions intervening in cases of on-field violence. Rhys Garfield playing in the amateur Welsh leagues was jailed for 15 months for stamping on an opponent’s head back in 2006. Mark Chapman pleaded guilty to Grievous Bodily Harm in 2010 following a tackle made on opponent Terry Johnson and became the first Sunday league footballer to be jailed when he was sentenced to 6 months in prison. It seems unlikely that Flower will face any criminal repercussions as on the day of the hearing at the RFL, Hohaia (who had earlier accepted a one-match ban for the forearm strike which sparked the incident) and his club St Helens made it clear there would be no legal action forthcoming.

Andy Boyde – Sports Consultant

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Ambush marketing: What it means for the 2015 Rugby World Cup and EURO 2020

It is an exciting time for sport in England and the rest of the United Kingdom

The 2015 Rugby World Cup starts in less than a year while both Wembley and Hampden Park will play host to games during EURO 2020. These tournaments will be of particular importance to advertisers who will look to seize on the lucrative marketing and advertising opportunities that come with prominent sporting events.

Unsurprisingly it can be expensive to sponsor and advertise during such events and this had led to a number of brands undertaking the recent phenomena of ambush marketing (sometimes known as guerrilla marketing) in order to avoid paying substantial amounts of money in sponsorship agreements to organisers. Ambush marketing consists of companies with no sponsorship affiliation to the event deliberately misleading the audience into believing they are in fact associated with said event. One innovative example of ambush marketing was seen during the 2012 Olympics when Paddy Power placed advertising boards throughout London which stated “Official sponsor of the largest athletics event in London this year”. In slightly smaller lettering was the confirmation that London was in reference to the small village of London in Burgundy, France and the athletic event was in fact the annual egg and spoon race held in the village. This attempt resulted in legal action being taken by the organising committee in relation to a breach of sponsorship agreement but ultimately conceded defeat and the advertising boards remained.

The 2012 Olympic Games in London enjoyed a considerable amount of legislative protection against ambush marketing. The London Olympic Games and Paralympic Games Act 2006 strict advertising regulations held that unauthorised sponsors and companies were not allowed to trade within ‘event zones’ and a number of words with Olympic connotations were blacklisted. In essence those without sponsorship agreements could not make any reference to the Olympics, their location and what year they took place.

Neither the 2015 Rugby World Cup nor the matches being hosted for EURO 2020 will be able to utilise legislation like this. Instead hosts are keen to employ existing laws to combat the problems of ambush marketing. This may be due to the criticism that such legislation is draconian or perhaps the fact that implementing fresh legislation can be a costly process. It should be highlighted however that there is always the possibility of temporary emergency laws being brought in for the duration of the event. This measure happened throughout the 2006 World Cup in Germany and should serve as a warning that typical intellectual property laws may not be in place and therefore there is the potential to be caught out.

Trademark and copyright laws will certainly give both the IRB and UEFA a large amount of protection should a party use their property without permission should no legislative defence be in place. This will help tackle the larger issue of illicit use of property within advertisements as it is likely that both UEFA and the IRB have registered a range of trademarks. It does however have limitations as it would not be able to prevent advertisements being placed in close proximity to a stadium or event zone.

The law of passing off in tort can provide an important tool in ensuring ambush marketing that associating indirectly with an event can be prevented. The IRB and UEFA’s products will certainly have particular identifiable features due to their highly regarded reputation and consequently will have goodwill attached to them.

Evidently the 2015 Rugby World Cup and EURO 2020 have marked a change in how host organisers combat ambush marketing. It would be fair to assume that the Rio 2016 organiser would take a similar approach however they have opted to revert back to similar safeguards that were established for London 2012. The Rio 2016 organising committee released guidelines in February 2014 for advertising and even goes as far as to dedicate a whole section to ambush marketing and goes into considerable detail over what can and cannot be used in advertising campaigns. The Brazilian government has also taken the decision to enact nine new pieces of legislation specifically designed for the Olympic Games

While all the tournaments mentioned are of the highest level, the protection of sponsors, and thus finances, is perhaps more highly regarded in Olympic and Paralympic events. It demonstrates their universal popularity and the appeal it can have on a truly global audience. Such a powerful advertising platform is certainly worth considerable safeguards. That said the risk of legal action being taken against advertisers who ambush is still high regardless of the event and marketing departments should take care not to overstep the line should they choose to employ ambush marketing techniques.

Jim Pearson Sports Consultant

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