EDITORIAL SLT Nr. 2 2024

It is with much pleasure that we welcome readers to the June 2024 edition (citation: SLT 2024/2) of our ground-breaking journal Sports Law and Taxation (SLT) and online database www.sportslawandtaxation.com.

With the forthcoming Summer Olympic Games, to be held in Paris, from 26 July-11 August 2024, one of our distinguished and regular contributors, prof. dr. Steve Cornelius of the Sports Law Centre at the University of Pretoria, South Africa, takes a wry look at Olympism, past and present, and tests our readers’ knowledge of the Games, often described as the greatest sporting show on Earth!

“The weird and the wonderful Summer Olympic Games!

The vision

On the eve of the 2024 Paris Olympic Games, it seems appropriate to talk about the great vision of Baron Pierre de Coubertin more than a century ago, to revive the ancient Olympic Games and establish the International Olympic Committee. Had he been alive today, I am certain that he would have been very proud to see the Games of the XXXIII Olympiad return to the capital of France. In so doing, Paris becomes only the second city, after London (1908, 1948, 2012), to host the Summer Games on three separate occasions (1900, 1924, 2024). It also marks a century since the Games had last been in Paris, so somehow, it just seemed right that Paris should be the host in 2024.

The dark side

However, it has not all been plain sailing and I am also certain that there are some instances where Baron de Coubertin would have just dropped his head in shame and wondered whether he should have done the trouble at all. Arguably the darkest moment in Olympic history, is the massacre of Israeli athletes at the 1972 Munich Olympics – a major embarrassment for a German government, still reeling from the Nazi legacy and the Holocaust, which demonstrated its complete ineptness in handling the crisis. In a world teetering on the abyss, with a major escalation in the Israeli-Palestinian conflict, as well as the war in Ukraine, one can only pray that the Games will be without any major incident. If other parts in the world give an indication of what to expect, the Israeli athletes will certainly be the target of protests and one can only hope that the Parisian and French authorities have sufficient measures in place to ensure the safety of everybody involved. One can also only pray that all interested parties observe the ancient Olympic truce and refrain from using the showcase of the Olympic Games to settle age-old scores.

Trivia

To lift the mood and avoid the doom and gloom of conflict, here are a few trivia questions about the Summer Olympic Games to test your knowledge and perhaps set aside some misconceptions as well, but be warned, some are trick questions. The first one is a double trick question.

1   The Summer Olympic Games are normally held every leap year according to the Gregorian calendar. However, on two occasions, they took place in years other than leap years. Which years were they?

• The Olympic Games are hosted by one city, but one Olympiad was hosted in two cities in two different countries. When was that?
• Only one person has had the honour of opening the Olympic Games at two different Olympiads. Who was that?
• Which Olympic Games suffered from mass boycotts by blocks of nations?
• African athletes have become a dominant force in the middle- and long-distance races. In what distance event did African athletes for the first time dominate the race from start to finish? And at which Olympic Games did black African athletes participate for the first time?

Answers

The Olympic Games will surely provide enough suspense, so I will spare some suspense here and immediately provide the answers to the trivia questions.

1   The Summer Games normally take place in leap years, but, due to the COVID-19 pandemic, the 2020 Games in Tokyo only took place in 2021 – however, it is still recorded as the 2020 Olympic Games. On a more technical note, the Games of 1900 in Paris were also not held in a leap year. The reason is that, according to the Gregorian calendar, every year that is exactly divisible by four is a leap year, except for years that are exactly divisible by 100. These century years are leap years only if they are exactly divisible by 400. So, 1900 was not a leap year.

• The 1956 Summer Olympic Games were hosted by Melbourne, Australia. However, due to the strict quarantine laws relating to importation of animals into Australia and an outbreak of foot-and-mouth disease in Britain, the equestrian events were hosted by Stockholm in Sweden.
• Queen Elizabeth II opened the 1976 Olympic Games in Montreal, Canada, as well as the 2012 Olympic Games in London. The British monarch was still the head of state for many former British colonies, including Canada.
• When Olympic boycotts are mentioned, the 1980 Games in Moscow and the 1984 Games in Los Angeles immediately spring to mind. The United States and some of its allies decided to boycott the Moscow Games due to the Soviet invasion of Afghanistan. The Soviet block of nations returned the favour in 1984, citing rampant crime and security concerns as the reasons why they decided not to send teams to Los Angeles. However, the 1976 Montreal Games were also affected by a boycott when African countries withdrew their teams. Prior to the Games, the New Zealand All Blacks rugby team had toured South Africa in defiance of the growing calls for the total exclusion of South Africa from all international sport because of its Apartheid policies at the time. South Africa had already been barred from the Olympic Games since 1964. To put further pressure on South Africa, African countries called for the exclusion of New Zealand from the 1976 Games in protest against the rugby tour to South Africa. Because rugby union was not an Olympic Sport at the time, the International Olympic Committee declined to sanction New Zealand and the African countries decided to stay home.
• The first time that African athletes dominated a distance event at the Olympic Games was in the 1912 Stockholm Olympics. The marathon was won by a South African policeman and former postman, Kenneth McArthur, whilst his team mate, Christopher Gitsham, finished second. The two almost came to blows at the finish line. In what has also become a hallmark of African distance running, the two South Africans agreed to stay together and pace each other to break down their opponents. This worked exceedingly well with the pair building a commanding lead, until Gitsham stopped for water a few kilometers from the finish. McArthur left Gitsham behind and raced off to take the gold medal. When Gitsham finished in second place, he stormed towards McArthur and shared some unkind words to voice his displeasure at the “unsportsmanlike” behaviour of McArthur. Sadly, this was also the event that recorded the first Olympic fatality. The race was run in very hot conditions and only 36 of the 68 competitors finished the race. The Portuguese runner, Francisco Lázaro, collapsed during the race and later succumbed in hospital.

The first time a Black African athlete participated in a distance event at the Olympic Games, was at the 1904 Games in St. Louis. Two BaTswana men from the British colonies that would become the Union of South Africa in 1910, participated in the marathon. They were in St. Louis as part of a South African exhibit featuring the recent Anglo-Boer War at the 1904 World’s Fair. Both had been message runners during the war. Len Taunyane, called Len Tau by the organisers, primarily because the American announcers could not pronounce Taunyane (Town-yarn-ee), but also to play on the SeTswana word “tau”, meaning lion, finished 9th, but only after Len the Lion had been chased miles off the course by a pack of stray dogs, while Jan Mashinani finished 12th overall. A participant attacked by stray dogs was just one of the features that made the 1904 marathon the strangest race in Olympic history.

The strangest race

The 1904 marathon was truly stranger than fiction and had all the elements that would make a great Hollywood movie. The race was run during the hottest part of the day in 32°C heat, on dusty country roads with only two sources of water – a water tower at the six-mile mark and a well situated past the twelve-mile mark. Apparently, the organizer, James Sullivan, was conducting an experiment on purposeful dehydration. This was the time of the eugenics movement and experimentation on human beings was not yet frowned upon even if it almost proved fatal. There were 32 runners from seven “nations” that included former winners of the Boston marathon, a French immigrant with dubious papers, a Cuban postman who had lost all his money gambling in New Orleans, as well as the two South Africans mentioned earlier.

The harsh conditions were exacerbated by two other factors: the officials rode in motor vehicles ahead of and behind the runners. This inevitably produced severe dust clouds that caused the runners to choke. In addition, the course was not cleared of traffic for the race, so runners had to deal with delivery wagons, trains trolley cars and pedestrians. Three of the US runners, 1903 Boston winner John Lordan, 1902 Boston winner Sam Mellor and William Garcia, had all succumbed to the dust and dropped out of the race. Garcia began to cough up blood and collapsed. A passer-by discovered the unconscious runner at the side of the road and saved his life.

The Cuban, Andarin Carvahal, who had lost all his money gambling, barely made it on time to the start. He had not eaten in 40 hours. During the race, he stole two peaches from a spectator and later found an orchard with apples. Eating fruit on an empty stomach, whilst competing in a long-distance run, is ill-advised in the best of times. It is little surprising that Carvahal collapsed with severe stomach cramps. He blamed rotten apples for his ordeal. Carvahal slept off the worst of the cramps, stumbled back to his feet and eventually finished in 4th place!

The first athlete to arrive at the finish line was Fred Lorz of the United States. Alice Roosevelt, the daughter of US president Theodore Roosevelt, greeted him with a laurel wreath and was about to hand him the gold medal when spectators accused Lorz of cheating. He had dropped out of the race at the nine-mile mark with severe cramps. He then hitched a ride with a passing motorist. At the twenty-mile mark, the car broke down and Lorz jogged the rest of the distance to the finish line. When confronted, Lorz admitted his sins and was disqualified. He was initially banned for life, but later reinstated and won the 1905 Boston marathon.

Next across the finish line was Thomas Hicks. With less than ten miles to go, Hicks had built up a commanding lead over what remained of the field, but he was tired and just wanted to lie down and sleep. His trainers gave him a cocktail of brandy, egg white and strychnine and pushed him back into the race. They had to repeat this a few times more before the finish line came into view. By the time Hicks reached the stadium, he was in a severe state of hallucination. His trainers carried him over the line between them. In his state of confusion, the dangling Hicks shuffled his feet as if he was still running. He had to be carried off on a stretcher and only the timely intervention of doctors saved his life. Hicks was awarded the gold medal.

Almost as strange

Len the Lion was not the only African Olympian to feature in an absurd race at the Summer Olympics. Almost a century later, Eric Moussambani represented Equatorial Guinea at the 2000 Summer Games in Sydney. Moussambani, who had never seen an Olympic-sized swimming pool before in his life, was there to compete in the 50-meter and 100-meter freestyle for men events. In his heat of the 100-meter, Moussambani produced the worst ever time in Olympic history for the 100-meter freestyle – and that includes the women’s 100-meter freestyle as well – of 1:52.72. This was more than double the times of the men’s gold medalist, Pieter van den Hoogenband (48.30) and women’s gold medalist, Inge de Bruijn (53.83). What makes this dubious achievement even stranger, is that Moussambani managed to win his heat with the worst time in history. There were only two other swimmers in that heat and both were disqualified for false starts, leaving Moussambani to swim unopposed!

In my humble opinion, the award for the greatest moment in Olympic history and for the embodiment of what Olympism is truly about, should go to the spectators assembled that day in the Sydney International Aquatic Centre. Australia is a country with an exemplary history of producing world-beating swimmers. The crowd of mostly Australian fans could so easily have jeered at the struggling swimmer, but they did not. Instead, the crowd did the exact opposite. They embraced the moment and Moussambani was enthusiastically cheered on and finished the race with loud cheers from the crowd and a standing ovation. Eric the Eel, as the media had named him, had not only set a dubious Olympic record, but he had also won his race, set a new Equatoguinean national record and became a national hero. But most importantly, he had taken part in the Olympic Games against all odds. As Baron de Coubertin once said: “The most important thing in the Olympic Games is not to win but to take part.” Eric the Eel took part and the Sydney crowd celebrated his glorious achievement. That is what the Olympic Games are all about.

Strange Olympic sports

The Summer Games also have no shortage of strange sports that had, at one stage or another, made it onto the Olympic programme. Undoubtedly, the weirdest gold medal ever awarded for any “sport” at the Olympic Games, is the one that went to Avril Lafoule for poodle clipping. Yes, you read that right – poodle clipping – and as you would probably have guessed, such an event could only have been staged in Paris. It happened at the 1900 Games. There were 128 competitors and a crowd of 6,000 spectators showed up to watch the exciting event. Participants had to clip the fur off as many poodles as they could in two hours. Lafoule managed to clip 17 poodles. My heart goes out belatedly to the poodles of Paris who had to endure such a demeaning fate for the sake of human entertainment.

Nonetheless, the poodles were better off than the pigeons of Paris in 1900. By current standards, the most questionable event at the 1900 Olympic Games, was the live pigeon shooting. Contestants had to shoot pigeons and were eliminated if they missed two pigeons in a row. More than 300 birds met their demise and the gold medalist, Leon de Lunden from Belgium, accounted for 21 of them.

The 1900 Games were not the last time that pigeons were in the firing line at the Olympic Games. At the 1988 Summer Games in Seoul, pigeon shooting was no longer an Olympic Sport, yet somehow, the demise of pigeons made headlines across the world. During the opening ceremony, 2,500 white pigeons were released into the stadium as a symbol of peace. This had been a feature of opening ceremonies since the 1920 Olympic Games in Antwerp. The problem was that, in Seoul, the pigeons dit not fly away. Many of them settled into the cauldron where the Olympic flame was about to be lit. To ensure that the flame would light up without difficulties, organisers had begun to release the flammable mixture of butane and propane gas into the cauldron. This appeared to overwhelm the pigeons. The torch bearers, like everybody else, expected the pigeons to fly off when they lit the flame. But the pigeons were too intoxicated to oblige, with the result that the symbols of peace were brutally incinerated.

At least the pigeon kind has the solace of knowing that the pigeons, released at the 1936 opening ceremony in Berlin, took collective revenge for all the ill treatment that their kind had received at the Olympic Games past and future. A total of 30,000 pigeons were released in Berlin. As the pigeons rose into the sky and began to circle over the stadium, a ceremonial cannon was fired to mark the opening of the Games. Apparently, that spooked the pigeons who began to poop on the spectators below. Whether it was really the sound of the cannon, which caused the mass of droppings, is not clear. What cannot be doubted, however, is that 30,000 pigeons circling overhead will, at the best of times, inevitably produce a rain of droppings on the spectators below. Somehow, it seems like poetic justice for the Nazis releasing symbols of peace at an unprecedented scale at a time when they were already planning war and genocide on an unprecedented scale.

Paris 2024

So to Paris 2024 and to all the participants at the Games of the XXXIII Olympiad, may the Games bring peace to a troubled world, even if it is only for 16 days; may 2024 be the crowning moment for the many athletes, coaches, support personnel, their friends and families, who have worked tirelessly to prepare themselves for competition at the highest level; may there be glorious moments of exceptional human achievement and endurance; may the Games be free from doping and other forms of cheating; may there be remarkable and memorable upsets when unlikely heroes emerge to claim victory; may there be moments when the crowds celebrate the mere fact that someone, somewhere has overcome incredible adversity just to compete, even if they are the worst performer in Olympic history; and may the poodles and pigeons of France be safe!”

These, we are sure, are wishes that we all share, and we look forward to celebrating the 2024 Paris Olympics accordingly!

This issue

As you will see from the Table of contents of this issue, we include a wide range of topical sports law and sports tax articles, which will engage our readers’ attention and provide them with much “food for thought”.

On the sports law side, we would draw your particular attention to the comparative article by Nick Poggenklaas and Sophia Gripps on the legal approach of dispute resolution bodies in football and basketball concerning conditions precedent in employment contracts. In their Introduction, they write:

“It is not uncommon for sports employment contracts to contain conditions precedent. The term “condition precedent” refers to a condition or event that must occur before the employment contract comes into effect. A condition precedent is a tool used in contract drafting to introduce flexibility and manage risks. In practice, clubs commonly use conditions precedent in athlete employment contracts as a risk management tool to manage risk exposure for the club.

For example, an athlete employment contract may consist of the following common conditions precedent:

• the athlete must pass a medical examination before the employment contract comes into effect; and/or
• the athlete (or coach) must obtain the relevant visas and work permits of the country of the new club.

The validity of conditions precedent in employment contracts is not undebated and sometimes regulated. In the sports industry, conditions precedent are often dealt with differently between sports.

Those who are familiar with both the FIFA regulations and the jurisprudence of the FIFA Dispute Resolution Chamber of the FIFA Football Tribunal (“FIFA DRC”) and the jurisprudence of the Basketball Arbitral Tribunal (“BAT”) know that such conditions precedent are treated differently in these two great sports.

As described in an earlier article in SLT , conditions precedent are, generally, deemed valid in the world of professional basketball, whereas in football a stricter legal regime applies.

Through a comparative analysis, in this article we aim to shed light on the contrasting approaches employed by the FIFA DRC and the BAT when addressing the subject of common conditions precedent.”

And they conclude their article as follows:

“In all respects, we believe that it is essential to monitor the distinctions between “football law” and “basketball law”. Whilst there may not be ample justification for unifying the regulations governing athlete employment contracts across all sports, we must remain receptive to diverse perspectives. By maintaining an open-minded approach, various sports and arbitral tribunals can gather insights from one another. This collaborative exchange has the potential to result in fairer outcomes in legal proceedings.”

And on the sports tax side, we would mention the article by dr. Rijkele Betten, the Managing Editor of SLT, on the special income tax regimes for sportspersons and income from the exploitation of image rights in The Netherlands.

In the introduction to his article, he sets the scene as follows:

“Although the Netherlands income tax system does not provide for a specific tax regime for sportspersons, there is an advantageous tax regime – the 30% income tax regime (hereinafter 30% regime) – for employees immigrating into The Netherlands.

The regime needs to be applied for by the employer and can only be effected at the level of the employer by paying out tax-free reimbursements in addition to the salary by the employer.

Since many incoming professional sportspersons fulfil these conditions, the 30% regime is commonly applied in the sports’ sector to incoming sportspersons.”

And he concludes his article as follows:

“Incoming sportspersons that are going to be employed, may, during the first 5 years, benefit from the 30% tax treatment. Such sportspersons may, currently, also avoid The Netherlands tax liability regarding business, companies and assets that are not located in The Netherlands. Incoming sportspersons that have accumulated wealth and investments outside The Netherlands will be able to avoid the Netherlands income tax therein as long as the 30% tax treatment is applicable.

In order to separate income from the exploitation of image rights, one would need a very good business case, and, ideally, the image rights should not, in any way, be related to the sports’ activities. Imagine, for example, a famous singer who, after a career in that field, becomes a professional sports person and still receives substantial income from exploitation of his/her already built-up image as a singer. Even then, it would be highly recommendable to seek up front agreement with such treatment from the Netherlands tax authorities.

As of 2025 the possibility to opt for taxation as a non-resident will be deleted from the Netherlands tax legislation.[1] There have been reports in Dutch press that the worsening of the 30% tax treatment may be made undone by the government to be possibly formed in the course of the year 2024.”

We also include on the sports tax side two articles by Luca Ferrari and others and Kevin Offer on some important proposed changes to the non-domicile status in the UK of international sportspersons.

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. Please do not hesitate to send them to us!

So, now read on and enjoy the June 2024 edition of SLT.

Dr. Rijkele Betten (Managing Editor)

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

June 2024