Demystifying the Athlete Biological Passport

Introduction

Following a three-day hearing before the Court of Arbitration for Sport on 7-9 February 2024, the outcome of Simona Halep’s appeal against her doping suspension is imminent and eagerly awaited. In September 2023, the former world number 1 tennis star was banned for four years by an independent tribunal for breaches of Article 2 of the Tennis Anti-Doping Programme (“TADP”)[1], which broadly mirrors the WADA Code. The 2019 Wimbledon champion was held to have committed anti-doping rule violations (“ADRVs”) in respect of two distinct (but inter-connected) charges:

the presence of Roxadustat[2] (prohibited anti-anaemia medication) in a urine sample collected during the 2022 US Open; and

the use of a prohibited substance and/or method during 2022 on account of irregularities in her Athlete Biological Passport (“ABP”).

Aside from being one of the most high-profile sportspersons to be suspended for ‘intentional’ doping in recent memory, the first instance proceedings were notable for the number of experts deployed (four on each side, some of whom presented diametrically opposed opinions) and that the International Tennis Integrity Agency (“ITIA”) had sought a six-year sanction on the basis that there were “Aggravating Circumstances”[3]. Ms Halep has vehemently maintained her innocence (blaming a contaminated collagen supplement called Keto MCT) but, aged 31, her career and reputation hang in the balance.

Tennessee and Virginia Are Challenging NCAA NIL Restrictions

By Andrew King on February 1, 2024 Posted in College Sport, Name Image Likeness (NIL)

A new lawsuit was filed on January 31, 2024, that could significantly impact the NCAA’s ability to regulate Name, Image, and Likeness (“NIL”) in collegiate athletics. Filed by the Attorneys General of Tennessee and Virginia in the U.S. District Court for the Eastern District of Tennessee[1], the lawsuit challenges certain NCAA restrictions of NIL payments as an illegal restraint of trade under federal antitrust law.

The NIL landscape was ushered in by a landmark decision from the United States Supreme Court, Alston v. NCAA. In Alston, former collegiate athletes argued that the NCAA violated federal antitrust law by placing limits on the education-related benefits colleges and universities can provide to their student-athletes. The Supreme Court determined that the NCAA’s rules limiting such benefits were unreasonable because they substantially suppressed and destroyed competition, thus violating a federal antitrust law known as the Sherman Act.

Importantly, the Supreme Court made it clear in Alston that the NCAA is subject to, and bound by, federal antitrust law, remarking that “[n]owhere else in America can businesses get away with agreeing not to pay their workers a fair market rate… And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”[2]

Name, Image & Likeness: New Class Action Could Determine Whether NIL Activities Are Subject To US Federal Law Prohibiting Sex Discrimination In Education

By Lauryn Durham and Sarah Rathke on January 22, 2024 Posted in Case review, College Sport, Discrimination, Diversity, Equity, Inclusion (DEI), Governance, Name Image Likeness (NIL), Rules and regulations, US Sport, Women in Sport

Women’s sports are on the rise, and so are the conversations regarding Name, Image, and Likeness (“NIL”) in connection with women athletes. NIL activities have created an exciting new area for college athletes, and with that the importance of equity in opportunities and support for women’s teams. The legal framework of NIL is evolving on a near-daily basis — many states are creating their own legislation,^[1] while discussions of a federal NIL law continue.^[2] With differing NIL laws and no regulatory or governing body over NIL activities, the question remains: How will universities and colleges ensure equity?

How Artificial Intelligence is Changing the Game of Professional Sports

By David Elkins, Lauryn Durham and Nicole Brenner on December 22, 2023 Posted in Artificial Intelligence, Data Protection, Gambling, Governance, Intellectual Property, Technology, Technology in Sport, US Sport

Our sister blog, Global IP & Technology Law previously reported that artificial intelligence (“AI”) is changing the landscape of all aspects of our modern economy. The world of professional sports is no exception. Emerging technologies are transforming the games we know and love. From player recruitment to athlete recovery, AI’s integration into sports is opening doors for optimized performance and real-time risk analysis. As more teams and organizations employ the use of AI, counsel should be aware of the ways their clients can and do leverage AI. A critical eye should focus on the relevant legal issues: including both state and federal regulatory developments, data privacy concerns, and how AI tools could potentially affect the applicable intellectual property (“IP”) rights. In this article we consider the relevant legal and regulatory framework from a US perspective.

All I Want for Christmas is Effective Sports Governance

By Molly McKenna, Andrew Bennett and Wayne Barnes on December 20, 2023 Posted in Case review, Data Protection, Discipline, Governance, Government, Law, Reputation Management, Rules and regulations, Sport England, Sports Policy, UK Sport, Uncategorized

At the start of this year, following his appointment as Chair of the UK’s Department for Culture, Media, and Sport (“DCMS”), Damian Green MP put sports governance firmly on the agenda.

This commitment came after the publication of the Whyte Review in June 2022 (the “Review“), which was an independent report into allegations of mistreatment in the sport of gymnastics led by Anne Whyte KC.

Sport England’s CEO Tim Hollingsworth and UK Sport’s CEO Sally Munday, the two individuals who commissioned the report, provided a joint statement following the Review, which included a commitment to “not rest until [we] have a sporting system that fully champions and enables participant and athlete wellbeing”.

Sports governance is a multi-faceted issue; systematic failings cannot be solved overnight. Effective and comprehensive investigations are needed to uncover the existing issues before remediation can take place.

As such, this blog will lay out five top tips for ensuring that all goes to plan when conducting a sports investigation.

Faster, higher, stronger. But also more global, sustainable and appealing to youth. A brief overview of how new sports are added to the Olympic Games programme.

By Jack Wood on December 4, 2023 Posted in Governance, Olympics, Rules and regulations, Sports Policy

For the first time in 128 years, cricket returns to the Olympics when it will feature at the Los Angeles 2028 Olympic Games (“LA28“). It has been a long leave of absence for the sport, which last featured at the 1900 Olympics in Paris, when Great Britain secured the gold medal against the host nation in the only match of the Games.

As announced by the International Olympic Committee (“IOC“) last month, baseball/softball, flag football, lacrosse and squash will join cricket as the approved “additional sports” for LA 28. But how exactly are new sports added to the programme for the Olympic Games and what considerations does the IOC take into account?

Tackling Online Abuse In Sport: The UK’s Online Safety Act 2023

By Dannielle Jones and Olivia Canessa Davies on December 1, 2023 Posted in Discipline, Discrimination, Governance, Government, Law, Rules and regulations, Social Media, Technology, Technology in Sport

After years in the making, the Online Safety Act (the “OSA”) has come into force after receiving Royal Assent on 26 October 2023 (as discussed in our blog here).

Amidst the proliferation of social media use, there has been a worrying increase in the levels of abuse that players, athletes, officials, managers, coaches and other individuals connected with the sports industry are facing. Notably, for the 2022/2023 football season, Kick it Out, an organisation which campaigns against discrimination in football, reported a 279% increase in reports of online abuse.^[1] To give a sense of the scale of and spikes in the abuse that those connected with the sports industry can face, the abusive comments on Bruno Fernandes’ social media pages following a penalty miss, increased 3,000% that day and he continued to receive hateful messages every hour for two weeks following the miss.^[2]

Given this context, it comes as little surprise that sports organisations such as the English Football Association (“FA”), Kick it Out, English Football League (EFL), Premier League and the Professional Footballers Association (PFA) worked closely with the Government on the OSA to help tackle discrimination against individuals online.^[3] Whilst online abuse of footballers often hits the headlines given the sports’ widespread popularity, the issues are unfortunately commonplace across the sporting landscape. The recent Rugby World Cup highlighted incidents of abuse not only targeted at players, such as Tom Curry in the wake of England’s semi-final with South Africa^[4], but also abuse of, and threats to, a number of officials^[5]. A further example includes reports of female tennis players facing online threats on social media from gamblers.^[6]

If enforced effectively, it is hoped the OSA could be a significant step forward in improving the online protection of those in sport as well as society more broadly. However, as the joint statement issued by the FA warns, there is still a lot to be done before real change is likely to be seen.^[7] Despite the OSA being over 250 pages long, the majority of its substantive provisions are not yet in force and require implementation via codes and secondary legislation.

Performance Improvement Technology In Elite Sports

By David Naylor and Nagia Paraschou on November 29, 2023 Posted in Data Protection, Football, Formula One, Health & Wellbeing, Intellectual Property, Technology, Technology in Sport

In competitive sport, small margins make the difference between winning and losing.

It is therefore no surprise that elite sport is experiencing transformational change due to the increasing use of performance improvement technology.

We have recently advised Formula 1 and Premier League football teams on their use of performance improvement technology solutions including in:

The adoption of bio-analytics services aimed at reducing injury, improving recovery rates and the creation of individualised insights for performance optimisation; and
The use of equipment and software for movement analysis, strength training and range of motion analytics.

New Lawsuit Addresses Eligibility Concerns for US Collegiate Athletes

By Andrew King on November 27, 2023 Posted in Amateur Sport, Basketball, Case review, College Sport, Name Image Likeness (NIL), Rules and regulations

It has been over two years since the National Collegiate Athletic Association (“NCAA”) lifted its prohibition on college athletes being able to profit from their name, image, and likeness (“NIL”). When people traditionally think of NIL, they think of student athletes at the collegiate level receiving payment for their likeness. However, collegiate athletes are not the only student athletes able to avail themselves of the burgeoning world of NIL.

To date, thirty-three states have enacted some form of legislation or executive order permitting high school athletes to profit from their NIL. As the NIL landscape continues to develop, one of the more interesting questions posed as a result of these new policies is whether or how a student athlete’s engagement in NIL at the high school level might affect their NCAA eligibility. A new lawsuit of first impression could address this very issue.

Rugby’s New Global Calendar – The Most Significant Development Since 1995

By Squire Patton Boggs on November 20, 2023 Posted in Rugby

The men’s Rugby World Cup (“RWC”) 2023 will be remembered for its nail-biting knockout games, not least the heavyweight quarter-final clashes between the northern and southern hemisphere. The tournament also saw the emergence of Tier 2 teams, such as Portugal and Uruguay.

Amidst this backdrop and four days prior to South Africa being crowned World Champions for a record fourth time, on 24 October 2023, World Rugby announced a transformational reform to the men’s and women’s global calendars. This aims to grow the game and align the international and club game. World Rugby Chair Sir Bill Beaumont described the reform as “the most significant development to the sport since the game went professional [in 1995]”.

Much of the reform is centred around adjustments to World Rugby Regulation 9. These adjustments will clarify windows of player release for international duties and develop so-called “Player Load Guidelines”.

This article will outline the changes World Rugby announced on 24 October.