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EDITORIAL

As usual, it is with much pleasure that we welcome readers to the September 2021 edition (citation: SLT 2021/3) of our ground-breaking journal Sports Law and Taxation (SLT) and our new on-line database www.sportsandtaxation.com.

Despite doubts and widespread opposition from the Japanese themselves, the postponed 2020 Tokyo Summer Olympic Games finally took place in 42 venues across Japan between 23 July and 8 August 2021. The Games comprised 33 sports and there were 339 medal events. A packed programme, but largely without any spectators, due to the pandemic.

The prophets of doom were proved wrong and the Games, notwithstanding the unprecedented circumstances in which they were held, were considered to be a great success.

In his closing speech, the President of the International Olympic Committee, Dr. Thomas Bach, himself an Olympic gold medalist in fencing, said:

Athletes went faster, went higher and were stronger because they all stood together in solidarity. You inspired us with this unified symbol of sport. And it was even more remarkable because of what you faced in the pandemic. For the first time since the pandemic, the world came together.”

In view of their uniqueness, we invited one of our regular contributors and a leading sports lawyer and former athlete himself, Prof. Dr. Steve Cornelius of Pretoria University, South Africa, to let us have his personal take on the Games. As you will see, he was not impressed!

The Odd-lympic Games

In years to come, the Tokyo Olympics will be the subject of a trick question on trivia nights: when did the 2020 Olympic Games take place? Much like the questions: how long did the Hundred Years’ War last? (almost 116 years between 1337 and 1453); or: when did the October Revolution take place? (6 November 1917, but according to the outdated Julian calendar that was still in use in Russia, it was 24 October 1917), the 2020 Olympics did not take place in 2020. For reasons that should be fairly obvious, the International Olympic Committee (IOC) decided that the Games of the XXXII Olympiad should retain the “Tokyo 2020” branding. By the time the decision was made to postpone the 2020 Summer Olympic Games in March 2020 due to the global COVID-19 pandemic, virtually all the branding material, merchandise, uniforms, programmes, equipment, medals, certificates and other items required to host a successful Games, had already been produced. It would have cost millions of dollars to rebrand items and even more to replace those items and dispose of the ones already produced. It just did not make economic sense, but then, again, the Olympic Games itself makes no economic sense. More on that later. The second reason why the 2020 Olympic Games were not rebranded is that the 2021 date would not have fitted nicely with the well-established quadrennial cycle of the modern Olympics. We have got used to having the Summer Olympics in leap years and the Winter Olympics in even-numbered non-leap years. So, Tokyo 2021 would have been the odd one out. That brings me to another trick question for trivia evenings: apart from the 2020 Olympic Games which took place in 2021, the Summer Olympics has only once before not taken place in a leap year. Which year was that? The answer will be at the end of these comments.

So, Tokyo 2020 will forever be the odd Olympics where all is not what it seems. When asked by journalist Lilly Smith to comment on the branding of the Tokyo Olympics, Debbie Millman, chair of the masters in branding program at the School of Visual Arts summarized it very neatly:

 

“Keeping it the same identity signifies symbolically that nothing has changed,” she says. “And everything has changed [...] We have an opportunity to acknowledge this extraordinary circumstance in a way that pays homage to the fact that the global pandemic occurred and that we are acknowledging the impact it had on both the athletes and the world at large.”

 

So, perhaps the decision to retain the Tokyo 2020 branding was also a statement of defiance – an indication that we, as human, will not be beaten by a global pandemic and that we will rise above the challenges that we face. It was an affirmation that nothing has changed – that life will go on and that there is hope for the future.

Certainly, in many ways nothing has changed. The exorbitant cost of hosting an Olympic Games certainly has not changed. When Tokyo won the rights to host the Olympic Games in 2013, the Organising Committee for the Tokyo Olympics projected that hosting the Games would cost US$ 7.3 billion. By 2019, this was adjusted to US$ 12.6 billion. After the Games, the National Audit Board in Japan reported that the cost of hosting the Games amounted to at least US$ 22 billion, while Japanese analysts put the cost at US$ 29 billion. That is almost four times higher than the original estimate. Such cost overruns are not unique to Tokyo. The Olympic Games has a bleak history of severe cost overruns which range from an extreme 720% overrun for Montreal in 1976 to a “meagre” overrun of 76% for the London Olympics. The first lesson to learn here is not to trust any bid committee when they propose to bid for the rights to host the Olympic Games. That is why more and more citizens in potential host cities are casting their votes, in elections or referenda, in opposition to the hosting of the Olympic Games. This resistance, which reared its head with the 1976 Winter Games, has, in recent years, gained more momentum as voters in Hamburg, Calgary, Innsbruck, Rome, Oslo and Bern made their opposition to the Games clear. The question is rightfully asked: “What benefit is there to hosting the Olympic Games?”

It is often said that there are three benefits to hosting the Games. Firstly, preparing for the Games means substantial investment in essential infrastructure and facilities. However, investments in road or rail upgrades that would in any event have been made, are often linked to the hosting rights to make it appear more lucrative. And, as some South Africans learnt after the 2010 FIFA World Cup, such investments can come with a nasty surprise, such as the introduction of tolls, which not only makes the use of such infrastructure more onerous, but also adds to inflationary pressures. And as the citizens of Athens and Rio de Janeiro have learnt, sports and accommodation facilities built especially for the Games, lie derelict in a state of rot, overgrown with plants and utterly useless for anyone. To be fair, the IOC does require a legacy plan as part of each bid. However, the IOC does absolutely nothing to ensure that those legacy plans are viable or that they are in fact followed through. Nor do national or regional governments. Much like projected budgets, legacy plans are neatly adorned in whitewash before the Games and exposed as hollow lies after the Games. For once, it would be nice to see senior officials in government, the organising committee, or even the IOC, to be held to account for the failure to implement and see through these legacy plans.

A second benefit, that is often touted, is increased tourism with an inevitable increase in tourist income. While this sure is a big, tangible benefit, it is of a fleeting nature and, in the case of the Olympic Games, the lion’s share of the tourist income goes to the host city. On the other hand, the enormous investment of public funds normally taps into the broader national fiscus. In addition, the large number of tourists congregating in one city, also brings a lot of drawbacks, including massively increased congestion; disproportionate inflation as businesses all seek to exploit the influx of tourists; shortages of basic commodities; and excessive wear and tear of public amenities. Other mega events, such as the FIFA World Cup, fare better in this respect, as the distribution of venues also means a broader distribution of tourist income. In the current COVID-19 environment, any possible benefit that Tokyo could have obtained from tourism during the Olympic Games, was nullified and replaced with a US$ 2 billion dollar bill to postpone the Games.

Hosting a mega event does create jobs as extensive construction works are undertaken and the hospitality industry employs more people to deal with the anticipated influx of tourists. Other industries do likewise. This certainly has a positive effect on the local economy and the IOC likes to refer to this as the “Olympic effect”. The implication is that host cities and countries will continue to enjoy the fruits of this economic growth for many years to come. However, the experience in countries, such as Greece and Brazil, and South Africa after the FIFA World Cup, is that the effect is short lived as most of the jobs created are related directly to the event and, therefore, not sustainable in the medium to longer term. The result is that a period of apparent economic growth is followed by a slump as unsustainable jobs evaporate and the hard reality hits home.

Organising committees usually also emphasis the marketing value of hosting a mega event, such as the Olympic Games. For sixteen days, the eyes of the world are focused only on the Olympic Games and the host city. If one considers the cost of hosting a mega event as opposed to the cost of an intensive campaign, to market a city as a tourist destination, the cost of hosting an Olympic Games is arguably the least efficient way to spend marketing money.

Furthermore, it is said that hosting a mega event creates a new sense of national pride. It is certainly true that sport can be a very powerful tool to instill a sense of pride and improve the morale of people. The iconic moment of Nelson Mandela handing the Webb Ellis Trophy to Francois Pienaar at the 1995 Rugby World Cup and the last public appearance of Nelson Mandela at the opening of the 2010 FIFA World Cup have certainly contributed to a major sense of pride for South Africans. But it comes at a huge risk. The Brazilian sense of pride for hosting the 2014 FIFA World Cup disappeared very quickly when Brazil crashed out to a record 7-0 defeat against Germany in the semi-final and then lost 3-0 to The Netherlands in the third-place play-off. Similarly, South African pride was crushed when its cricket team failed to make the play-offs in a tournament which it hosted. Hosting an Olympic Games is slightly different, though, and the sense of pride displayed by people in London or Rio de Janeiro was evident and inspiring. But this effect tends to disappear quickly as the harsh realities of everyday life with high costs of living, crime, political scandals and other challenges set in.

As a result, hosting an event, such as the Olympic Games, is an exorbitantly expensive exercise with many apparent benefits that are just that – apparent, rather than real. What is more, there is an element which is hardly ever disclosed to the public and which is conveniently mostly ignored by researchers who investigate the economic impact of mega sports events. The host city contracts usually contain terms which require that the International Federation concerned will be exempt from tax. The IOC and IFs, such as FIFA, earn hundreds of millions of dollars in sponsorship, advertising, marketing and broadcast revenue, but instead of being socially responsible and putting some of those funds back into the local economy by way of taxes, they contract themselves out of a tax burden in a way that no other multi-national corporation will be allowed to do. In addition, national governments are normally required to provide extensive financial guarantees which include guarantees that venues will be ready on time and that the event will take place. Some even go so far as to hold national or regional governments liable for loss of earnings of the IF if the event should not take place. There is a very important reason why the Japanese government insisted that the Tokyo Games should take place. The cost of not doing so, would not only have included wasted expenditure, the Japanese government would undoubtedly have been faced with a huge bill from the IOC if the Games were cancelled. In a way, mega sports events have become the ultimate Ponzi scheme: taxpayers fork out billions of dollars to construct the venues and host the event, local citizens volunteer to work at the event and governments provide guarantees so that there is almost zero risk for the IF and the potential for massive reward. That is why I applauded the South African government when it refused to accept the host city agreement after Durban was awarded the rights to host the 2022 Commonwealth Games. The host contract contained very onerous guarantee clauses and accepting it would have posed a serious economic risk for the South African government. At the same time, there would have been little to gain from hosting the event. As a result of the government’s refusal to accept the terms, it was announced that Durban did not have the financial means to host the event and it was reassigned to Birmingham. With the current COVID-19 pandemic and the uncertainties that still prevail, it is clear that the government made a prudent choice.

Clearly then, it would seem that nothing has changed. The Games still pose a massive financial burden for host cities and countries, while offering very little sustainable benefits. The Games are still dominated by the old colonial powers who can afford to invest heavily in sport, while most countries in the Global South have far more pressing issues. The inequalities perpetuate the myth of European mastery and feed a resurgent racism that is rearing its head in Europe. Nowhere was this more evident than the treatment dished out to the silver medalist in the women’s 200m. Various media outlets reported calls from former European athletes for the verification of Christine Mboma’s sex, on the basis that she was just “too fast”. Reports also indicated that she was barely beaten to the finish line by the gold medalist. In fact, Elaine Thompson-Herah from Jamaica set a new world record and beat Mboma by 0.28 seconds. In sprinting terms, that is a country mile!! Apologists for this racist anti-African stance, which also saw South African middle distance runner Caster Semenya ostracized, would argue that the gold medalist is also a black athlete and that their warped view is not based on race. However, the true racism lies in imposing Western ideas of femininity upon all athletes. Thompson-Herah conforms to Western norms of how a female athlete should look, whereas Mboma and other African athletes, like Semenya, do not. And that, more than any possible advantage they may or may not have, is the true reason why they are being victimised and ostracized. The silence of the IOC was deafening and the reaction of World Athletics (WA) is highly predictable. I am willing to bet a fair amount that the current regulations on athletes with difference of sex development, will in the not-too distant future be extended to other events. WA has already set the stage for this by admitting, out of the blue, that the 2017 research paper, on which the regulations were based, is flawed. This is by no means a mea culpa moment of a federation seeking redemption for an injustice perpetrated against some Asian and African women. It is a clever ploy to set the stage so that WA can argue that other events, where higher testosterone levels do not coincide with better athletic performance, should not be interpreted as proving any correlation or lack of correlation and, therefore, those events can now also be included under the regulations. WA has more data at its disposal, but this will not be published as it is as flawed as the 2017 study which preceded it. In fact, there is still no credible conclusive scientific evidence that endogenous testosterone in an adult athlete has any correlation with athletic performance. The only studies that support the testosterone myth, are based on the use of exogenous testosterone.

It is no coincidence that the female track and field athletes are the most scantily clad at the Games. They are more naked than the swimmers, divers or beach volleyball players. And the camera crews and editors did not miss opportunities in Tokyo to capture some revealing and compromising shots. I for one, was somewhat embarrassed to watch the track events with my teenage daughter. WA is all too aware that sex sells and the frames of strong African women just do not fit their sexualized vision of track and field athletics.

The Games also produced the inevitable doping cheats and undoubtedly, more will be exposed in the coming years as samples are retested when better technologies become available.

Yes, in many ways, the Tokyo Olympic Games was more of the same, but in many ways it was also so much different. The current dystopian environment necessitated due to the COVID-19 pandemic created scenes reminiscent of the best post-apocalyptic movies that Hollywood can offer. The sparse crowds and the lack of tourists flocking to the host city, detracted immensely from the spectacle of the Games. In any other Olympic year, businesses all over the globe would defy regulations against ambush marketing and try to capitalize on the Olympic frenzy by sneaking on some Olympic reference into their stores or marketing material. Official sponsors would make sure that any businesses that sell their products or services, is adorned with references to the Olympic sponsorship. In 2021, this was all very low key as many businesses struggle to overcome the economic hardships brought about by COVID-19 and most being too engaged in their contribution to disease control, to care much about the Olympic Games.

The 2020 Olympic Games will also be remembered and simultaneously forgotten for being the Games of Protest. Prior to the Games, there were significant anti-Olympic protests which only gained momentum when COVID-19 reared its head. It was patently clear that the decision to host the 2020 Olympic Games was not a popular one and that significant numbers of Japanese felt that the funds could have been spent more prudently.

It was also a Games during which the IOC and Organising Committee braced themselves for protests on the field of play and during medal ceremonies as it followed in the wake of the Black Lives Matter movement which had seen protests spreading from US sports across the globe. There was even an open letter with more than 150 signatories, which appealed to the IOC to respect freedom of expression and not to sanction athletes who protest. I was also invited to sign the letter, but I declined. In times when protest becomes fashionable, it loses its impact. The protests by Tommie Smith and John Carlos at the 1968 Olympic Games will forever be hailed as one of the great moments in world sport. The reason is that these athletes took a stance with complete disregard for the personal consequences they would certainly face. They were willing to sacrifice their greatest achievement to make a statement. The same goes for Colin Kaepernick. His career ended the day he took a knee, but it had a profound impact. It becomes a bit meaningless if football players, racing drivers and cricket players take a knee and then continue to earn millions of pounds. Where is the sacrifice in that? But now many of them can portray themselves as champions of human rights causes and earn a few marketing points from it. Protests did take place at the Games, but the media hardly took notice of them.

I also declined the invitation to sign the open letter because the Games themselves are an embodiment of inequality. The most lavish event is staged at immense cost while millions of people face starvation. Somehow, this seems a bit obscene and, somehow, the current COVID-19 crisis has made me more aware of this, as once-wealthy neighbours and acquaintances were left unemployed and destitute.

Perhaps the Games were different because of the sense of loss, as more and more colleagues, friends, relatives and acquaintances succumbed to the disease, that dampened many a mood. Perhaps it was the knowledge that the best women’s 800m runner ever, was not allowed to compete because she does not look the way some aristocrats in high office believes she should, that spoiled the moment. Perhaps it was the realization that more than one medal will, in time, have to be returned due to doping violations that are discovered later. Or perhaps I am just becoming a grumpy old man. But, for me, it was just not an Olympic Year.

Now, to get back to the trick question posted earlier: apart from the 2020 Olympic Games which took place in 2021, the Summer Olympics have only once before not taken place in a leap year. Which year was that? The answer is 1900. Usually, any year number which is evenly divisible by 4, is a leap year. However, if the year number is evenly divisible by 100, the year will only be a leap year if it is also evenly divisible by 400. Therefore, 1900 was not a leap year in terms of the Gregorian calendar. There were also the 1906 Olympic Games in Athens, but the IOC does not recognize them as an official Olympic Summer Games.”

Other recent sporting items worthy of mention follow.

Innovations in cricket

The new Hundred competition

A new cricket competition has been launched, known as “The Hundred”. But will it score runs and widen the appeal of the game as intended? It is a 100-ball competition that commenced in July 2021 and features world-class players from around the world. Eight new city-based men’s and women’s teams compete for five weeks and are broadcast on Sky Sports and the BBC. Each team is formed of a men’s and women’s squad of 15 players with a maximum of three overseas’ “stars”.

Men’s teams are selected by a draft system and the women’s teams by their own particular player selection process.

The eight new teams, which have been created, with their grounds, are as follows:

–   Birmingham Phoenix (Edgbaston);

–   London Spirit (Lord’s);

–   Manchester Originals (Emirates Old Trafford);

–   Northern Superchargers (Emerald Headingley);

–   Oval Invincibles (Kia Oval);

–   Southern Brave (Ageas Bowl);

–   Trent Rockets (Trent Bridge); and

–   Welsh Fire (Sofia Gardens).

There are no overs, no wickets but “outs” and players are known as “batters”! For more information, log onto www.thehundred.com/info/what-is-the-hundred.

It will be interesting to see what effect the new competition has on traditional cricket fans and also on other formats of the game, especially the popular Twenty20 format and, in particular, the highly successful Indian Premier League.

One cricket enthusiast, who is a Member of Lord’s, has remarked as follows:

I guess that there will be fewer teams than in the domestic T20 competition and they are independent of the County Teams, so presumably it means that the new competition will only feature the very best players. I do not know what rules apply to the new competition, but matches will be 16% shorter than T20, so over relatively quickly. Whether there is space in the market, I do not know, but if it takes funds away from the Counties then that is a very bad thing. The First-Class Counties are the bedrock and the cradle and nursery of cricket in the UK, but they already struggle for funds.”

So, the jury is out on this new cricket competition and, as they say in English, “the proof of the pudding is in the eating”!

Bamboo bats!

Scientists at Cambridge University have undertaken some research and produced some cricket bats made from laminated bamboo, which they state are much stronger than those traditionally made from willow. They claim that it is much easier to hit fours or sixes with these bats. However, these bats are 40% heavier. But they also say that lighter bats could be made from bamboo, which would generate speed and transfer more energy than traditional cricket bats.

According to the current rules of the sports’ governing body, the MCC (Marylebone Cricket Club), bats must be made from wood. Bamboo is categorised as grass. Whether lighter versions of these bamboo cricket bats would be approved by the MCC and replace those made from willow remains to be seen. If so, cricket players and fans would have to get used to the sound of leather on bamboo rather than the familiar sound of leather on willow!

First woman referee in men’s international competition!

Another milestone has been reached for women in traditionally male-dominated sports! Sue Redfern was appointed, on 22 June 2021, by the England and Wales Cricket Board as a referee (umpire) in the men’s international T20 match between England and Sri Lanka, which took place in Cardiff, Wales, on 23 June 2021.

Redfern, who is 43 years old, has represented England as a cricketer on 21 occasions – 6 times in test matches and 15 times in one-day internationals between 1995 and 1999. She has also acted, to date, as an umpire in 32 women’s internationals, as well as a further 12 as a TV umpire. So, she is well qualified for this latest challenge in her professional cricketing career. Will other female umpires follow?

Age is no barrier to sport!

This year’s postponed London Marathon finally takes place on 4 October 2020. Due to the COVID-19 pandemic, the event is being run locally by competitors. Amongst the competitors is 87-year-old Ken Jones, who is taking part for the fortieth time and is running laps around the Strabane countryside in Northern Ireland, where he lives, to train for this event. Jones, who has competed in over 112 marathons, is the oldest competitor in this year’s event and has competed every year since the event was first held in 1981.

Another sportsman still going strong is Japanese professional footballer, Kazuyoshi Miura, who is the captain of the top-division club Yokohama, and is 53 years old. His playing career is at least 15 years longer than average and there are no signs of his retirement. Known as “King Kazu”, he is in the Guinness Book of Records as “the world’s oldest goal scorer” and has achieved a God-like status in Japan.

We salute both of them and it all goes to show that age is no barrier to sport either at the elite or grass roots’ levels!

We also salute Leonid Stanislavskyi, who is believed to be the world’s oldest competitive tennis player. He is Ukrainian and aged 97 and is still competing in world and European tennis championships for seniors and outplaying younger competitors. However, he is not moving around the court as fast as he used to before. He started playing tennis when he was 30 years old and has since been training three times a week. He is currently training for the 2021-Super-Seniors’ World Championship, scheduled to be held in Mallorca, Spain, in October this year. In fact, the International Tennis Federation has introduced, for the first time, a 90-and-over age group in this year’s event.

Stanislavskyi stated that tennis:

is a good physical exercise [and] you can play no matter what age you are.”

He attributed his longevity to good genes and regular sport. So, take note!

Pele turns 80!

Pele – Edson Arantes do Nascimento – the famous Brazilian retired footballer has turned 80. The veteran of three World Cup wins in 1958, 1962 and 1970 has dominated the world of football for more than fifty years. He has earned 92 international caps, scored 77 goals for the Brazilian team and is just one of four players to have scored in four World Cups.

In 1961, the Brazilian Government declared Pele an “official national treasure” to prevent him from being transferred out of the country.

Amongst many honours, in January 2014 he was awarded the first ever FIFA Ballon d’Or Prix d’Honneur in recognition of his contribution to world football. An 800 square metres street mural of him has been painted in the Brazilian city of Santos, where he first played as a professional footballer, by the Brazilian graffiti artist Eduardo “Kobra” in honour of his eightieth birthday.

He has also had a colourful life off the field of play.

Is he the greatest footballer of all time? Whether he is or is not, we salute him as a great sportsman and wish him a very happy birthday and many happy returns!

Articles in this issue

We now turn our attention to the articles that you will find in this issue. As you will see from the Table of Contents, we include a wide range of sports law and sports tax articles, which, we are sure, will engage our readers’ attention and provide them with much “food for thought”.

One article worthy of particular mention is by our association football expert, Jonathan Copping, on the subject of mental health in sport, which is increasingly coming to the fore and claiming the attention of the sporting world. In his article on mental health issues related particularly to football he concludes as follows:

“[I]t seems that the discussion on [mental health in profeesional football] is currently moving in the right direction but that there is a long way to go. The increased discussion should be commended, although it should be noted that this has largely occurred due to footballers speaking out, rather than being led by the governing bodies. Providing greater resources to combat mental health in professional football is necessary and this includes action to be taken at all levels from clubs, governing bodies, unions and, as can be seen with online abuse and bullying, social media companies and governments across the world.”

So, it is over to the national, regional and world governing bodies of the “beautiful game” to take the lead and initiative in this important, pressing and challenging issue!

As always, we would welcome and value your contributions in the form of articles and topical case notes and commentaries for our journal and also for posting on the SLT dedicated website www.sportsandtaxation.com.

So, now read on and enjoy the September 2021 edition of SLT.

Dr. Rijkele Betten (Managing Editor)

Prof. Dr. Ian S. Blackshaw (Consulting Editor)

September 2021

The Journal

Sports Law & Taxation features: articles; comparative surveys; commentaries on topical sports legal and tax issues and documentation.

The unique feature of Sports Law & Taxation is that this Journal combines  up-to-date valuable and must-have information on the legal and tax aspects of sport and their interrelationships.

Global Sports Law and Taxation Reports feature: articles; comparative surveys; commentaries on topical sports legal and tax issues and documentation.

The unique feature of Global Sports Law and Taxation Reports is that this Journal combines for the first time up to-date valuable and must-have information on the legal and tax aspects of sport and their interrelationships.

The Editors

The editors of  the Journal Sports Law & Taxation are Professor Ian Blackshaw and Dr Rijkele Betten, with specialist contributions from the world's leading practitioners and academics in the sports law and taxation fields.

The Editors

Managing editor
Dr. Rijkele Betten

Consulting editor
Prof. Dr. Ian S. Blackshaw

Editorial board

Prof. Guglielmo Maisto
Maisto e Associati, Milano

Dr. Dick Molenaar
All Arts Tax Advisors, Rotterdam

 

Mr. Kevin Offer
Hardwick & Morris LLP, London

Mr. Mario Tenore
Pirola Pennuto Zei & Associati, Milano

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