EDITORIAL 13.4 Sports Law & Taxation, December 2022
It is with much pleasure that we welcome readers to the December 2022 edition (citation: SLT 2022/4) of our ground-breaking journal Sports Law and Taxation (SLT) and online database www.sportslawandtaxation.com.
Football has continued to dominate the media, not least the controversial 2022 Qatar World Cup held between 20 November and 18 December, including claims of “sports washing” of the country’s human rights record, particularly concerning gay issues, and also “greening” claims regarding the organisation and holding of the event.
A leading article entitled “Doha Dreams” published in “The Times” newspaper on 21 November stated that:
“Now that the World Cup has started, it is time to stop the demonisation of the emirate and enjoy the football.”
The article also pointed out that the time to object to the World Cup being held in Qatar was twelve years ago when the event was awarded by FIFA.
These sentiments echo those of Gianni Infantino, the President of FIFA, which he expressed in a lengthy monologue on the eve of the start of the World Cup, that now is the time to focus on the football, not the politics. However, in practice, it is difficult to separate the two. He also promised “the greatest World Cup ever”!
Also, Cristiano Ronaldo has left Manchester United FC in controversial circumstances after claims that he has been recently side-lined and after making other controversial remarks in a TV interview, and there are reports that the club is up for sale by the Glazer family, who have owned the club for 17 years. Such a sale will be welcomed by the club’s supporters.
However, in this Editorial, leaving football aside, important though it is, we will concentrate on another popular sport, cricket. We will address the question, raised in some quarters, of whether there is now too much of it, with its different formats and events. So, we invited Prof. Dr. Steve Cornelius of the Centre for Sports Law, University of Pretoria, who is a regular contributor to SLT and a cricket fan, to provide his thoughts on this matter as follows.
“The game of cricket was once described as a game like no other:
“There is no game in which amiability and an unruffled temper is so essential to success, or in which virtue is rewarded, half as much as in the game of Cricket. Dishonest or shuffling ways cannot prosper; the umpires will foil every such attempt – those truly constitutional judges, bound by a code of written laws – and the public opinion of a cricket club militates against this preferment. […] Such a national game as Cricket will both humanise and harmonise our people. It teaches a love of order, discipline and fair play, for the pure honour and glory of victory.”[1]
Indeed, in many ways cricket is a unique sport. Certainly, one aspect which makes cricket different from any other sport, is the way in which cricket has consistently found ways to reinvent itself without sacrificing the core essence of the game. Whilst many sports have dabbled with versions of the game that employ fewer players or smaller playing fields, none have shown the variety that cricket has shown.
Whilst there are many purists who would not consider any format, other than the traditional five-day matches, to be cricket, the vast majority of cricket fans have embraced the various formats. Some of the changes were a matter of necessity.
Prior to World War Two, the laws of cricket made provision for matches to continue until a result was achieved. This resulted in the so-called “timeless test” in 1939, when a match between South Africa and England continued for twelve days, without a result. The only reason why the match was eventually abandoned, was because the captain of the ship on which the English team were to travel back home, refused to wait any longer. This led to the introduction of the current five-day limit on test matches.
Most of the revised formats of cricket were the result of economic considerations and greed. Cricket authorities had long since realised that spectators, except for a handful of die-hard purist fans, would lose interest in long, stretched out matches. So, from the 1950s onwards, cricket authorities in India and England began to experiment with limited-over cricket. This immediately proved popular with the newly established commercial television networks and ensured that limited, shorter-duration versions of cricket would be the future.
In the 1970s, Australian media mogul, Kerry Packer, really upset the cricket world order. Not only did he establish an unsanctioned rebel league, called the World Series Cricket, but he also abolished the traditional white outfits of players in favour of colourful team kit. In addition, Packer ensured that he attracted the world’s best cricketers by paying the players significantly more than they would have earned by playing in domestic leagues and international matches.
National and international cricket authorities could either stand by and watch the best players slip from their grasp, or they could adapt and bring the rebel tours into the fold of mainstream cricket. They chose the latter option, reluctantly at first, but eventually cricket authorities realised that the new shorter formats of the game and colourful team kit would attract significant amounts in terms of media rights and sponsorships.
This has led to the establishment of three different formats of international cricket: traditional five-day test cricket; one day international cricket (played over fifty overs per team); and twenty20 (or T20) international cricket (played over twenty overs per team).
However, at local or franchise level, other formats of professional cricket, such as 100-ball cricket, double wicket or “pairs” cricket (involving two teams of two players each), one-on-one cricket, sixes (involving six players per team), T10 cricket and even three team cricket have developed. All of this has meant that the schedule for professional cricket has become increasingly congested.
A study of Australian cricket[2] has shown that, over a ten-year period, the number of matches played per team, increased from 42 one day and 62 first class (traditional form of cricket) matches to 62 one day, 62 first class and 35 T20 matches.
At the international level, the number of matches played by the Australian national cricket team, increased from 12 test matches and 23 one day international matches, to 11 international T20 matches, 15 test matches and 39 one day international matches. The number of days played at domestic level, has increased from 42 days for one day matches and 222 days for first class cricket, to 35 days for domestic T20 cricket, 62 days for one day matches and 234 days for first class matches.
At the international level, the number of days played have increased from 23 days for one day international matches and 53 days for test cricket, to 6 days for international T20 matches, 39 days for one day international matches and 72 days for test matches. The number of player hours have increased from 1819 hours for domestic one day matches and 8658 hours for first class matches, to 588 hours for domestic T20 matches, 2685 hours for one day matches and 9126 hours for first class matches. At the international level the total player hours have increased from 996 hours for one day international matches and 2067 hours for test matches, to 104 hours for T20 matches, 1689 for one day international matches and 2808 hours for test matches.
Since this study was published, the cricket calendar has become even more congested as one national federation after the other introduced its own domestic T20 leagues. The escalation in the number of domestic T20 leagues may seem insignificant for the global outlook. However, it has long since been the practice in cricket, before there was a uniform global cricket season, that players from the South would spend their off-season playing for English county teams, whilst players from the North would play for domestic teams in the South. This trend of foreign players participating in domestic leagues has also been a feature of the more recently established T20 leagues.
To understand these developments, it is also crucial to understand the global economics of cricket. Professional cricket around the globe is essentially sustained by only three markets: India, Australia and England. Of these, India is arguably the most significant with more than 500 million avid cricket fans and more than 300 million Indian people engaging in various forms of gambling on cricket.
The Indian Premier League (“IPL”) tournament was established in 2007. At the time, the title sponsorship rights were sold to an Indian real estate company for US$ 5 million per annum for a period of five years. By 2022, the annual cost of the title sponsorship had risen to US$ 62.4 million. In addition, the broadcasting rights to the IPL were initially sold to Sony for US$ 1 billion for ten years. In 2017, Star India secured the media rights for US$ 2.5 billion for a five-year period. By 2022, the next five-year broadcasting deal was concluded for a staggering US$ 5.1 billion. If one keeps in mind that this is just one tournament, involving one format of cricket (T20) played over nine weeks and these amounts exclude team sponsors, one gets a clear view of how vast the Indian cricket market truly is.
In view of the staggering success of the IPL, other national federations have sought to capitalise on the popularity and success of the IPL by introducing their own versions of that competition. However, the massive success of the IPL has eluded them. The market for cricket in India is significantly bigger than the total global market for cricket outside India and, therefore, no other league has the same potential for success. Nonetheless, some of the top professional players are cashing in, with some earning US$ 2 million for their part in the IPL. If one considers that some of the top international players earn between US$ 1 million and US$ 2 million for an entire season of international cricket across various formats, the lure of leagues, such as the IPL, becomes apparent. Most players earn the equivalent of an entire year’s earnings in less than two months.
Whilst other leagues may not pay as handsomely as the IPL, players can still earn proportionately more by participating in these leagues. All of this places more and more strain on the annual cricket calendar, players, match officials and administrators. Not surprisingly, the injury rate among cricket players has increased from a total of 143 injuries per 1,000 player days of play, to as much as 184 injuries per 1,000 days of play, before improving somewhat to 155 injuries per 1,000 days of play.
One reason for this improvement may be that, according to the Federation of International Cricketers’ Associations, the number of professional cricket players has increased from 3,162 in 2018, to 4,191 in 2020. Another reason could also be that some players have begun to focus more or exclusively on one format of the game. The end result is that many individual players tend to play less cricket, despite the global increase in matches.
The increase in the number of leagues and matches played, has also placed more strain on the International Cricket Council’s Anticorruption Unit. The market for gambling on cricket is estimated to be worth more than US$ 200 billion annually, with less than 15% of that figure taking place through legal gambling operators. The proliferation of domestic leagues has, undoubtedly, created a fertile new market for illegal gambling, which, in turn, creates a significant new risk for match-fixing and corruption taking place.
One can also question whether the proliferation of cricket matches over the past twenty years is leading to cricket fatigue among fans of the sport. With the possible exception of India, cricket leagues across the globe have encountered dwindling spectator attendance over the past decade. This was felt none more acutely than in Australia where regular records for the lowest crowd attendance at various matches were set for domestic and international matches.
To add to these woes, one would have expected that 2022 would be a bumper year for sports attendance after the COVID-19 pandemic forced leagues to play in empty stadia or with very limited crowds during 2020 and 2021. Sadly, in 2022, the cricket stadia for international and domestic matches resembled the COVID-19 restricted crowds of the preceding years. This must be a stark warning to cricket authorities that fans are getting an overdose of cricket. If these dwindling numbers are not addressed in the medium to longer term, it will have the knock-on effect that sponsorships and media coverage will also dwindle.
The current congestion of the cricket calendar is the result of greed as national federations, leagues and players seek to squeeze the maximum financial benefit from their sport. However, in the process, they may just slowly be killing the goose that lays the golden egg!”
Food for thought indeed and now we turn our attention to the articles that you will find in this issue.
On sports law side, we would draw your particular attention to the article by Rafael Braegger of the Pachmann law firm, Zurich, Switzerland, on the latest changes to the CAS Code of Sports-related Arbitration, which came into effect on 22 November 2022. In his Introduction he points out that:
“The Court of Arbitration for Sport (“CAS”) in Lausanne, Switzerland is the world’s most pivotal and powerful ruling body in sports-related disputes, handling around 1,000 cases each year. CAS is a body of the International Council of Arbitration for Sport (“ICAS”), a foundation under Swiss law, more specifically arts. 80 ss. of the Swiss Civil Code, domiciled in Lausanne as well.
The fundamental document of both ICAS and CAS is the Code of Sports-related Arbitration (“the CAS Code”). The CAS Code consists of two principal sections, the first one being the Statutes of the Bodies Working for the Settlement of Sports-Related Disputes (art. S1 to S27 of the CAS Code); the second one the Procedural Rules (art. R27 to R70 of the CAS Code). […] This new edition implements several material changes both to the Statutes and the Procedural Rules. This article outlines these changes and subjects them to a critical review in terms of their meaning and consequences.”
In the Conclusion to his article, Rafael Braegger makes the following observations regarding the latest changes to the CAS Code.
“The latest revision of the CAS Code, in force since 1 November 2022, has brought about several major modifications. Whilst some of them are welcome changes to the former status quo, for example, the institutionalization of case management conferences or the implementation of detailed cost breakdowns, others are not only highly likely to be ineffective but even to be counterproductive. This, in particular, applies bearing in mind today’s three main problems of CAS, namely, appearance of lack of independence and impartiality; excessive duration of proceedings; excessive costs of proceedings. Time will tell what the impact of the latest CAS Code amendments on these problems will be and if they can effectively change the situation for the better. Unfortunately, there is little basis for hope that this will be the case.”
On the sports tax side, mention may be made of the article on tax implications of the loan of football players in The Netherlands by Patrice van Oostaijen and Erik Jan Peffer, who are partners at Maguire Tax & Legal B.V., Amsterdam. In their Introduction, they point out that:
“The main focus of this article will be on the loan of players to Dutch clubs (inbound), but it will also touch on the Dutch fiscal playing field when players are lent out by Dutch clubs to foreign clubs (outbound). This article starts with outlining the basics of Dutch tax residency for players and the general fiscal consequences of tax residency for employment income. The article ends with some specifics from the daily practice. It does not cover social insurance.”
An interesting contribution to this taxing issue!
As you will see from the Table of Contents of this issue, we include a wide range of other sports law and sports tax articles, which will also engage and inform our readers’ attention and also provide them with with much “food for thought”.
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.sportslawandtaxation.com.
Finally, we are taking this opportunity of wishing all of our contributors and readers the compliments of the season and all the best in the New Year!
So, now read on and enjoy the December 2022 edition of SLT.
Dr. Rijkele Betten (Managing Editor)
Prof. Dr. Ian S. Blackshaw (Consulting Editor)
December 2022
[1] Pycroft, The Cricket-field (1862), p. 29-30.
[2] Orchard, James, Koutouris and Portus, “Changes to injury profile (and recommended cricket injury definitions) based on increased frequency of Twenty20 cricket matches”, in: Journal of Sports Medicine, 2010, 1, p. 63-76. Available at www.ncbi.nlm.nih.gov/pmc/articles/PMC3781856 (accessed 7 December 2022)
