In the aftermath of AFCON, Legal Business Day sits with Beverley Agbakoba-Onyejianya, the head of Olisa Agbakoba Legal’s Sports, Entertainment, and Technology Practice Group, to discuss the dynamics of Nigerian sports law.
These are the key questions she was asked during the media interview session as as a Nigerian Sports Legal Expert, as well as her tailored responses to those questions.’
How did you get involved with Sports Law?
My involvement in Sports Law came about a few years after I founded a youth sports academy, Lagos Tigers FC, in 2012, which was previously called Little Tigers FC. We celebrate 10 years this year and I am very proud that a decade later, it is still trying to make an impact in grassroots youth football.
It was my foray into football that gave me the opportunity to connect my passion to my career. Seeing a big gap in the industry for skilled sports lawyers, I set up a sports law department where I work, OAL, and it has opened up so many opportunities, ever since. Sports law practice is a mosaic of many different familiar areas of law such as contract law, employment law, Intellectual property law, immigration law, etc under the context of sports. Very few individuals actually practice sports law exclusively….what happens in reality is sports law practice is combined with other complimentary practice areas, such as media and entertainment law. For instance, I practice sports, entertainment, and technology law. A triple combo. Our practice group at OAL is known as S.E.T.
Seeing as Sports Law is a mosaic of many fields of law, do you find that specialisation is necessary within this field?
As mentioned, Sports law is the practical application of many conventional areas under the umbrella of sports. However, it is not quite as simple as that because an understanding of contract law may not be enough to prepare you adequately for the nuances that exist in sport law. There is a further need to understand the technicalities of whichever game you decide to specialise in. It could be football or swimming or tennis or motor sports or gymnastics and so on. Sport is a heavily regulated industry with many governing bodies and complex governance structures, so it helps to have a genuine interest in sport and understand the rules of the game. Specialisation in specific areas in sports law, drilling down into specific areas in sports, for instance, esports, gives you credibility and enhances your marketability. We live in a world which values specialisation and rewards it well. Being a generalist is still a good thing, but it really pays to specialise [in a sport].
What key agreements must a professional athlete enter to secure his or her interests?
There are quite a few agreements a professional athlete would typically encounter during his or her career. Player/Athlete contract being the most important; this is the contract of employment that ties him or her to a professional club. It will set out key terms such as wages, holiday, insurance cover, maternity, etc. Some other agreements a professional athlete could secure with the help of a good agent could be a sponsorship/ brand endorsement contract. It is not uncommon in the West to see top athletes from Serena Williams to Neymar to Tiger Woods sign lucrative contracts for brands. In Nigeria, the sports betting companies and the FMCG companies tend to have the finances to bankroll sports stars which has led to some football icons advertising sports betting brands, energy drinks, and so on. Good medical insurance cover is critical as players and athletes are prone to injury and a failure to have the right cover in place could spell the early end of a career due to injury or even financial ruin because the athlete cannot afford to pay for treatments.
On the African football scene, especially, we have heard of underpaid players and coaches, and wages that are not honoured after the termination of a contract. Why is this pervasive? Even with the provisions of Rule 9.45 NPFLR?
Honestly, it is such an unfortunate and pathetic situation, and the fact that many African players are going through this in 2022 is really baffling. It is more common than we realise for players to go unpaid for months or to endure harassment and intimidation from people supposed to be protecting them. It’s akin to modern day slavery, however, this time, it’s in sports. There must be better respect and regard for contracts and player rights. We need the sporting regulatory bodies and administrators to do more; until then, these unethical practises will continue.
Owning a sports team is a risky and speculative endeavour, what can owners do to protect their interests and maximize their franchise, in Nigeria, and by extension Africa?
I would not describe it as risky or speculative, rather I would describe it as a very capital intensive, requiring an intense commitment on the part of the owner. Ultimately, how you measure the output depends on the objective of the owner; is it for the purpose of rehabilitation, community social needs, recreation or financial. Contracts are a good way to protect interests for those who invest in sports as a business. For people interested in bringing popular sports brands, franchise contracts can help fulfil the objectives.
It is trite that a welcoming legal environment encourages investment. What investments are we seeing in the Nigerian/African sports sector and what else can we do to improve on the opportunities for these investments?
The interconnectedness of sports and finance is demonstrated in a big way in countries like the USA where private equity is driving some big-ticket deals in sports. We have seen major naming rights deals initiated by the DeFI sector, AEG centre in America renamed to the Crypto.com Arena… etc. The newly created NBA Africa is enjoying some major investor patronage with the likes of President Barack Obama and Forrest Whittaker investing. The investment is attracting a new breed of African talent and top-notch sports execs into the African basketball space. The appointment of a talented female NBA CEO for Nigeria is also pretty exciting. Stakes in clubs in Europe have also been bought out by American private equity firms. The reason for this is simple – the projected growth. To see this level of activity here on the continent would be spectacular as you can imagine what the knock-on effect will be – more jobs, more capacity locally, etc. That is still a dream. For now, sports investment trickles bit by bit. It’s been exciting to see new sports brands like Upbeat emerge and add some much-needed variety to the sporting landscape but we still have a long way to go. The cost of land in Nigeria is prohibitively high which makes the barrier to entry, unfortunately, very high for most. The only way to scale with sports is through numbers.
There are so many stakeholders in a sport – from the players to the club, the managers to the sponsors. It must be a quagmire for intellectual property. Typically, who owns what?
This will be a pretty long conversation but, in a nutshell, image rights are a major aspect in intellectual property which is a big part of sports law practice. I explained previously that in the lifetime of a professional athlete especially a very bankable one they may sign a few image management contracts or a brand endorsement deal. The athlete licenses his or her image to a company permitting his image to be associated with the brand e.g. a credit card, a perfume, a luxury car, etc.
Let’s talk a bit about image rights. What are they? And what do African sportsmen or clubs need to do to position themselves to reap advantageously and to avoid pitfalls?
Image rights refer to the rights an individual has in relation to their expression, physical likeness, sound/voice and mannerisms and the right to license it to 3rd parties. You cannot use another person’s image commercially without their permission. Such use is a right which is naturally owned or licensed. As we know, Sports is a subset of entertainment, and it is intended to entertain, even wow audiences. Sports star athletes and players are selected by brands primarily for their extraordinary talent and abilities, but other factors are seriously considered such as the size of their social media following, physique, personality, and talent. International sports stars such as the King of the Court, Lebron James, has a huge social media following of 100m; this primes him very well to be courted by global brands looking to reach a bigger audience. Positioning oneself adequately for image rights deals and endorsements means being intentional about use of social media, positive association, perhaps even taking up a cause e.g., Marcus Rashford in the UK became a champion for the reinstatement of school dinners which won the hearts of the public and saw him get a knighthood.
Speak to us about dispute resolution in sports. Arbitration seems to be the preferred means of settlement; why is that? And what is the role of local courts in this regard?
Well, the truth is that sports dispute resolution evolved from litigation. However, during the 70’s and 80s, a major shift towards a need for greater autonomy led to the creation of the first Court of Arbitration for Sports (CAS). As we well know, litigation can be detrimental to sports disputes as it can be lengthy and shorten a player’s lifecycle. Judges may lack the technical knowledge of the game. Arbitration became popular in sports through centres like CAS. However, in Nigeria, we advocate for multiple ADR including mediation, arbitration, and conciliation. There is a growing interest in resolving disputes through mediation and it will be great to see more sports stakeholders use the relevant mediation clauses in contracts to trigger the mediation process when a dispute arises.
Recently, it was announced that Americans can bet on the Superbowl, legally. What do you think of this growing interconnectedness between sports and betting?
It’s interesting how much more advanced we are in some ways here in Nigeria compared to the USA. We have had sports betting in place for some time at the federal level governed by the National Lottery Act via the National Lotteries Board and at state level, in the case of Lagos State, the Lagos State Lottery Board. The connectedness between sports and betting is clear and unfortunately has led to undesirable and unethical consequences such as match-fixing and the likes. Sports betting is a billion-dollar industry generating millions of dollars per day, but like all things it needs to be managed responsibly.
What are the biggest issues you encounter as a sports lawyer and what are your top tips for staying successful?
It is interesting you ask because I consider the biggest issues encountered as a sports lawyer simultaneously present a huge opportunity for sports lawyers in Nigeria. It is, by and large, still considered widely unchartered territory and its success is still limited to the extent of the scope of activity of the sports industry in Nigeria. However, because there is a new awareness taking place in sports, there are more investments coming in, greater interest in the policy-making side of sports, as well as the realisation that sports administration has let sports down for years, these are all areas that sports lawyers can get involved with. I am involved to a large extent with sports governance issues as well as sports policy and development, and of course, contracts. The lack of structure and respect for contracts can be frustrating but it gives me the opportunity to speak and become an advocate for respecting player rights and welfare. Where there are challenges there’s plenty of opportunity for growth and development.
What is your outlook for the sector?
My outlook for the sector is positive. Honestly, I believe it can only get better from this point, with more awareness and advocacy and training for all stakeholders in the industry.