Sport and the Law, Jack Anderson looks at some precautions sports organisations could take to protect themselves

Sports law as a concept has evolved largely from disputes at the elite level of the professional industry. However, a review of sport in this country in 2004 reveals that, at all levels, Irish sports organisations have had to become increasingly familiar with the workings of the legal system.

The GAA has attracted its share of publicity in this regard. The fallout from the assault by Down's James McCartan on Westmeath's Ken Larkin, under which McCartan avoided a conviction on payment of a donation to charity, has been debated at length. Nevertheless, four brief points are noteworthy and apply for Irish sport in general.

Firstly, in strict legal terms, there was little in what Judge William Early said in the Dublin District Court, save that it is not stated often enough, and that is, "striking without legal justification is a crime whether it takes place in the street, in the family home or the football pitch or elsewhere".

It is interesting to note that similar sentiments were expressed recently by a Canadian provincial court in British Columbia when it ruled that the prosecution of Todd Bentuzzi of the NHL's Vancouver Canucks, for an alleged assault on an opponent, can begin in January of next year.

In a series of events that will be familiar to those who play contact sports, it is alleged that Bentuzzi attacked the victim - Steve Moore of the Colorado Avalanche - in retaliation for some aggressive play by Moore in a previous game.

Clearly, participants should now think twice before retaliating against an opponent or seeking revenge for a team-mate. Quite simply, you must play within the rules and spirit of your game or you may face legal liability.

Second, the GAA, or more precisely its Games Administration Committee, investigation of the McCartan incident was sloppy. To be fair, the GAA has done much in recent times to address the perceived problem of ill-discipline. Its mooted independent appeals tribunal is to be welcomed, and if given precise terms of reference and adequate resources will enhance GAA administration.

At another level, this week's decision by a Wicklow GAA investigation committee to ban a number of players for up to two years as a result of a fracas two minutes from the end of the county's senior club hurling final in October, though subject of an appeal to the Leinster Council, is significant.

Third, litigation resulting from violence on the sports field is rare and seldom satisfactory. At Castlebar District Court this week, Judge Mary Devins dismissed an assault case against a 17-year-old Gaelic footballer accused of deliberately injuring a player on the opposing team in last year's Mayo Under-21 club final.

Judge Devins did not consider that the teenager had the motive or intent to inflict serious injury. The judge was, however, clearly frustrated with the unsatisfactory nature of the case in which the only independent evidence, of a reasonably well-attended final, was a video recording of the game.

And fourth, it is suggested that in the long term the most interesting repercussion from the McCartan incident for the GAA may in fact have little to do with increased legal exposure and more to do with a review of football's playing and safety rules, notably the tackle rule and the need for a "sin-bin".

Admittedly, the last thing a sports organisation needs is to have its playing rules overseen by lawyers; however, to minimise its legal risks, should the GAA consider the fact that much of the violence in the McCartan incident may have been related to frustrations with the tackle-rule?

THE TACKLE-RULE may be clearly defined in the rule book, but it is manifestly obvious that players and referees have difficulty in its application and interpretation.

If the only practical way a defender can hinder a forward, particularly a quick forward with a low centre of gravity, is by obstructing, pulling and dragging, is it any wonder some forwards get frustrated and retaliate? This is no excuse for an unacceptably violent reaction, but it may put some context on the cause of that reaction.

The decision to experiment with the sin-bin, which has long been operating successfully in many sports, in next year's leagues is to be welcomed.

The issue may be slightly more clouded when it comes to the championship. In GAA terms, championship victory at intercounty or club level rarely involves more than half a dozen games. Referees are aware that a straight red card may see that player miss a disproportionately large percentage of the championship.

By giving referees the power to sin-bin players, the pressure on officials is eased, players are punished in an effective and proportionate manner and a "cooling-off" period reduces the risk of subsequent violent, retaliatory incidents.

Moreover, a sin-bin may prove be useful in combating what for the GAA was the most worrying legal development of 2004. A number of players - notably Rory O'Connell of Westmeath - who were suspended on disciplinary grounds early in a championship sought interlocutory injunctions in order to put a stay on the suspension and participate in later stages of that championship. This mechanism permitted O'Connell to play for Westmeath in their first Leinster senior football title victory.

In the US, this type of opportunistic legal tactic is called an "ambush" injunction, the most celebrated example of which was Tonya Harding's legal ambushing of the US Olympic Committee to permit her to compete in the 1994 Winter Olympics, despite being under investigation for an assault on her rival Nancy Kerrigan.

Returning to home, the frustration of the players involved is understandable, but the repercussions for the GAA and Irish sport are serious. Aggressively challenging such injunctions, which hitherto has not been the practice of the GAA, is an option, albeit an adversarial and expensive one.

Moreover, what if in next year's All-Ireland hurling semi-final an incident takes place similar to that which occurred between Brian O'Meara of Tipperary and Liam Dunne of Wexford in the semi-final of 2001, when the sending-off of both players was the focus of intense media scrutiny and sympathy, particularly for O'Meara who missed out on Tipperary's subsequent All-Ireland final victory? What odds that a player in a similar situation in 2005 will consider an ambush injunction?

Moving away from the GAA - but staying with disciplinary codes - recent developments in US and Australian sports law hint that all Irish sports organisations should be prepared to thoroughly review the appropriateness and fairness of their internal disciplinary structures. Two areas have become particularly vulnerable.

Internationally, athletes have become quite litigious in challenging perceived injustices in the application of selection criteria. For example, if an athlete feels they have been unfairly excluded or demoted from a representative or Olympic squad, there has been a tendency of late to seek judicial review.

Similarly, recent developments in international sports law have suggested that sports bodies should shy away from ambiguous clauses in their disciplinary codes which refer to "bringing the sport into disrepute". Recent case law has suggested that sports bodies have a tendency to abuse this power and are overly sensitive on what may be referred to as "conduct injurious to the sport".

This is particularly the case as regards the private, off-field activities of players. The obligations of professional players are, in this regard, regulated by contract and employment law, on which grounds Chelsea FC felt justified in terminating Adrian Mutu's contract.

However, overly drawn charges of the above nature against an amateur player are unnecessary and may even be of a potentially libellous nature.

Regrettably, the position of all those who contribute voluntarily to the administration of Irish sport has become the subject of legal analysis. Although the liability of referees, coaches, trustees and directors of local clubs has yet to be fully revealed in this jurisdiction, evidence from comparable jurisdictions hints at a certain vulnerability. The situation is analogous to that of teachers who have become increasingly cautious in their supervision of the school sports, school trips and even school yards.

One of the more interesting pre-emptive means of minimising legal liability may be to look at the manner in which the law in jurisdictions such as New Zealand has expressly encouraged the use of reasonable disclaimer, assumption of risk and arbitral mechanisms in order to reduce the legal exposure and insurance premiums of individual sports, particularly minority, adventure sports.

Quite simply, if the litigious nature of Irish society is allowed to focus its gaze unfettered on Irish sport, the consequences will be demoralising.

ANY REVIEW OF Irish sports law in 2004 cannot end without a reference to doping. At both domestic and international level, a number of internal, sports-specific investigations are at a critical stage. One international investigation, concerning a medical advisor to the Italian club, Juventus, has, however, been completed.

Last month, Riccardo Agricola was given a 22-month suspended prison sentence by a judge in Turin for administering banned substances to the club's players, six years after allegations were made by former Roma coach Zdenek Zeman.

Italy, like many European countries, has incorporated anti-sports doping provisions into its criminal code. In Ireland, similar measures - for example, criminal sanctions against the importation of EPO and growth hormones save for licenced clinical requirements - would be a definitive statement of this State's attitude to doping in sport.

Educational and ethical initiatives do not seem to deter the small number of participants who defraud the sporting public with the use of performance enhancing substances. Fraud charges, which are apparently being considered by the New York Yankees against star batter Jason Giambi, who, it's recently reported, admitted to a federal grand jury that he injected human growth hormone and used steroids, may, however, be an effective, if punitive, deterrent.

Finally, there is no doubt that in 2005 a number of Irish sports will find themselves in the Four Courts. Personally, it is argued that, although every citizen has a constitutional right of access to the courts, with the exception of commercial disputes and egregious violence, sport should be played, not litigated.

Jack Anderson lectures in law at Queen's University, Belfast