1 Introduction

One must distinguish between regulatory and contract-based disputes in professional tennis. The latter are resolved by reference to the parties’ contract, which dictates their obligations, choice of dispute resolution forum (i.e. litigation or arbitration) and the place, as well as the chosen applicable law. Contractual disputes typically arise between players and agents, tournament organisers/player associations and advertisers/sponsors and others. Regulatory disputes concern infractions of rules set out and agreed in advance by the International Tennis Federation (ITF), Women’s Tennis Association (WTA), Association of Tennis Professionals (ATP) and, to a lesser degree tournament organisers, to which players and national tennis federations have agreed to adhere. The dispute resolution mechanisms spelt out by these rules are thus obligatory on the parties involved, chiefly players and professional associations and the ITF. Unlike contractual disputes where players negotiate the terms of access to justice in the event of dispute, there is no such possibility on the occasion of regulatory disputes. This chapter will focus mostly on ITF-related mechanisms given that these generate the biggest number of disputes, namely, its internal mechanisms, the Internal Adjudication Panel and the ITF Independent Tribunal. Another sub-section will deal with the relation of these entities with the Court of Arbitration for Sport (CAS), and yet another will explore dispute resolution in the context of the ATP. It should be stated from the outset that since the ITF is the sport governing body (SGB) recognised by the International Olympic Committee (IOC), all doping and integrity (e.g. match-fixing) violations by ATP and WTA players are handled by the ITF and its adjudicatory mechanisms (subject to some exceptions, such as an ATP tour violation). This is why this chapter reserves only a limited amount of discussion to the relevant mechanisms of the WTA and ATP. A small sub-section at the beginning of this chapter will demonstrate the limited role for mediation and alternative dispute resolution (ADR) (other than arbitration) more generally. The role and jurisdiction of the ITF Ethics Commission and of the Independent Panel in the resolution of disputes arising from the ITF Code of Ethics will be explored in detail in Chapter 13 of this volume. Appeals to CAS against decisions from national anti-doping organisations are explored in Chapter 10 of this volume.

While this book was going into production in late 2024, several developments occurred which concern this chapter. First and foremost, the 2025 ITF Constitution has changed the sequence of provisions on dispute resolution analysed here and the pertinent provisions on the jurisdiction of the CAS are more elaborate in comparison to their predecessors. In addition, in 2025, new procedural rules were promulgated for both the Independent Tribunal and the Internal Adjudication Panel. These changes come into effect on 1 January 2025 and hence the authors and editors are unable to incorporate these into the book as the cut-off date was late May 2024. Readers are advised to compare the text in this chapter with the amended constitution and regulations.

2 ADR in Tennis

The regulatory ‘disputes’ as set out in the introduction concern specific rules-based infractions and hence are not amenable to negotiation and mediation. In any event, the pertinent judicial and quasi-judicial institutions do not enjoy authority to make or accept mediated settlements. Settlements are, however, common in contract-based disputes, chiefly by means of negotiation, irrespective of the stage of the proceedings before the courts or arbitral tribunals. A sphere of disputes which is not discussed in this chapter concerns collective disputes between players and professional tennis associations. Although these are not common, there have existed circumstances where players threatened to boycott a tournament if fundamental concerns were not met. These disputes were resolved through ADR mechanisms without having to resort to litigation.Footnote ¹ Collective bargaining negotiations and settlements are explored in Chapter 6 of this volume. In addition, there is a limited scope in corruption offences whereby a covered person may in consultation with the International Tennis Integrity Agency (ITIA) agree on a sanction in line with the appropriate sanctioning guidelines. This is exceptional, however.

3 Internal ITF Mechanisms

The following sub-section will explore in brief key ITF/ITIA mechanisms set up to undertake on-site investigations and impose sanctions at first instance. The on-site authority of the various ITF/ITIA entities does not strictly pertain to dispute resolution, particularly those dealing with disciplinary sanctions and doping and corruption offences in professional tennis. Their inclusion in this chapter serves to allow readers to achieve a comprehensive and rounded account of the ITF judicial and quasi-judicial architecture. Similar on-site mechanisms exist in the ATP Code.Footnote ² This chapter will not discuss disciplinary actions under the ITF Code of Ethics.

4 The Internal Adjudication Panel

Article 9.1(j) of the ITF Bylaws sets forth the Internal Adjudication Panel, the powers and functions of which are spelt out in the Panel’s Procedural Rules. The jurisdiction of the Panel and the Independent Tribunal over alleged infractions of ITF rules by professional athletes is grounded in the initial agreement of national tennis federations to abide by such rules governing ITF tournaments. Professional players, as members of national federations, are hence bound by such rules, which in turn provide jurisdiction to the Panel and the Independent Tribunal.

Article 33 of the 2023 ITF Constitution provides for concurrent jurisdiction to both the Panel and the Independent Tribunal in respect of disputes falling within the ITF’s Rules of Tennis. The ITF Constitution, however, provides no further information about the Panel. The Procedural Rules of the Panel were promulgated in late 2018 and became effective on 1 January 2019 and form an integral part of the ITF Constitution. The delineation of authority between the Panel and the Tribunal is described in the following sections and sub-sections.

5 The Independent Tribunal

The Independent Tribunal’s jurisdiction is chiefly found in Article 33 of the ITF Constitution. Paragraph (a) of Article 33 provides for the scope of such jurisdiction, which encompasses all types of disputes arising between: (1) the legal entity of the ITF and one or more of its members (essentially national federations); (2) the ITF and any individual or legal person that does business with the ITF, or which is otherwise involved in any of the circuits or competitions under the aegis of the ITF, ‘or that otherwise operates within the sport of tennis’; and (3) one or more members of the ITF.

The ITF Constitution, as well as the Independent Tribunal’s Procedural Rules, operate as an agreement to arbitrate in the sense of Article 7 to the UN Commission of International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, or as terms and conditions appended to ITF contracts with contractors to the same effect (as an agreement to arbitrate). That is precisely why Article 33(b) to the ITF Constitution stipulates that where a dispute between parties under paragraph (a) arises and falls under ITF rules and regulations, the parties are deemed to have accepted the exclusive authority of the Independent Tribunal under its procedural rules and that in turn they have waived the right to litigation or arbitration in another forum. In equal measure, Article 1.3 of the Independent Tribunal’s Procedural Rules stipulates that consent to the ITF Rules (in the umbrella sense provided above) serves to confer jurisdiction to the Independent Tribunal, with proceedings seated in London. It is implied that the parties have waived recourse to litigation. Domestic and international courts have unanimously accepted that such waivers do not offend the right to fair trial where the arbitral mechanism in question satisfies fair trial guarantees.Footnote ³⁴ It is for this reason that the ‘right to a hearing’ is expressly recognised in the ITF Rules.Footnote ³⁵ Alternatively, where a particular dispute does not fall under the ITF’s rules and regulations, the parties are presumed to have accepted the jurisdiction of the CAS, and agree to be bound by the CAS award.Footnote ³⁶ Of course, what the parties may not validly do, even voluntarily, is to waive their right to set aside proceedings under the laws of the seat, as this is considered a fundamental procedural guarantee.Footnote ³⁷

It is beyond any doubt that the Independent Tribunal is an arbitral institution in the same manner as other similar institutions. This is clearly spelt out in two relevant instruments. First, the Panel’s Procedural Rules emphasise that the Independent Tribunal is an arbitral tribunal, whose proceedings are governed by English law and subject to the English Arbitration Act.Footnote ³⁸ This is equally reiterated by Article 1.3 of the Tribunal’s own Procedural Rules. Even so, Article 3.2 of the Tribunal’s Procedural Rules goes on to say that the primary source of (substantive) obligations is to be found in the ITF Rules and the Tribunal’s Procedural Rules, with English law retaining a subsidiary role. Moreover, in the event of conflict, the ITF Rules prevail over those governing the Independent Tribunal. No doubt, this hierarchy makes absolute sense, albeit it needs to be consistent throughout the ITF’s various instruments.Footnote ³⁹

Just like other sports tribunals, as well as international criminal tribunals established in the context of transitional justice, the ITF Independent Tribunal has assumed more than just a dispute resolution role. It clearly perceives itself as the guardian of the integrity of the game of tennis and the purity of its image to young athletes and their parents across the globe. In the Nastase case, which involved a string of welfare violations, including sexual harassment, assault and racist behaviour, the ITF Tribunal declared that it was:

This so-called ‘public purpose’ of broader adjudicatory mechanisms,Footnote ⁴¹ as opposed to narrow arbitral institutions that are client-oriented, as is the case with the ITF Independent Tribunal, is emblematic of its broader function.

6 Appeals against the Independent Tribunal’s Awards to CAS

Article 9.2 of the Independent Tribunal’s Procedural Rules allows appeals to the CAS. As a general rule, only first-instance awards of the Independent Tribunal may be appealed to the CAS and not its appellate awards – given that the latter were already the subject of an appeal from a decision of the Panel.Footnote ⁶⁴ Once again, the right to appeal a first-instance award to the CAS must be found in the ITF Rules. Article I.E.4 of the Men’s World Tour Rules stipulates that unless otherwise provided: ‘c) decisions of the Independent Tribunal (sitting as a first-instance tribunal) may only be challenged by way of appeal to the Court of Arbitration for Sport, as set out in the Independent Tribunal Procedural Rules.’Footnote ⁶⁵ In equal measure, first-instance awards rendered by the Tribunal in respect of major offences shall be appealed to the CAS.Footnote ⁶⁶

It should be noted that the CAS is governed by its own procedural rules, known as the CAS Code of Sports-Related Arbitration.Footnote ⁶⁷ The CAS operates at both first-instance (ordinary arbitration division) and appellate (appeals arbitration division) levels and further encompasses an anti-doping division.Footnote ⁶⁸ In the case at hand, appeals from the ITF Independent Tribunal to the CAS engage the jurisdiction of the CAS Appellate Chamber. The CAS Code includes a set of Procedural Rules. Rule 27 serves as the basis for the jurisdiction of the CAS Arbitral Chamber. It goes on to say that:

The reference or otherwise agreement to arbitrate before the CAS clearly arises in the various ITF Rules, as well as Articles 9.2 and 9.4 of the ITF Independent Tribunal’s Procedural Rules. In accordance with Article 9.3 of the Independent Tribunal’s Procedural Rules, the deadline for filing an appeal to the CAS shall be twenty-one days from the date of receipt of the decision in question by the appealing party. The decision being appealed will remain in full force, pending determination of the appeal unless the CAS orders otherwise. Once the application has been submitted, it is the CAS Code that prevails from a procedural point of view,Footnote ⁶⁹ albeit the governing substantive law remains the ITF Rules and English law in a subsidiary role.Footnote ⁷⁰

In closing, it should be emphasised that an appeal against the Independent Tribunal’s award is highly unusual from the perspective of transnational arbitral practice. Awards rendered by arbitral tribunals, such as the ITF Independent Tribunal, are not susceptible to further layers of appeal, but only set aside proceedings for failure to observe a closed list of procedural safeguards.Footnote ⁷¹ An appeal to the CAS against a decision of the Panel or an ITF entity is certainly acceptable, albeit an appeal against a final award does not sit well with the arbitral nature of the ITF Independent Tribunal.

7 ATP Dispute Resolution

As has already been made clear from the introduction, doping and match-fixing (as well as other pertinent regulatory matters) infractions/allegations are handled under the aforementioned ITF procedures. As regards anti-doping claims, on-site investigations are administered by the ITIA, the decisions of which may be appealed to the CAS Anti-Doping Tribunal under the same grounds as decisions from the ITF judicial mechanisms. This is specifically mentioned in Article 1.07(2) of the ATP Circuit Regulations. Any other disputes, whether contractual or regulatory, arising from the ATP Rules are subject to those Rules’ dispute resolution mechanism.

Under Articles 8.01(G) and 8.03(G) of the ATP Code, authority for on-site investigations is conferred to the Senior Vice-President, Rules and Regulations. Appeals against its decisions are available before the Tribunal established by the ATP’s Board of Directors and CEO, in accordance with Article 8.04(K) of the ATP Code. Decisions of the Senior Vice-President concerning major offences may be appealed to the ATP CEO, in accordance with Article 8.05(B) of the ATP Code within five days from the day the decision was rendered. Once the CEO offers the decision on appeal, this is final on the parties.Footnote ⁷² Not all disputes, however, can be resolved under this mechanism. Article 8.07 of the ATP Code provides as follows:

8 WTA Dispute Resolution

The WTA’s extensive RulebookFootnote ⁷³ sets out a number of obligations on all stakeholders. The enforcement of this body of rules has given rise to three distinct internal organs, each with specific competence. In brief, the Code of Conduct Committee possesses jurisdiction to hear disputes concerning alleged violations of the WTA Code of Conduct.Footnote ⁷⁴ The Standards Committee examines disputes in connection with its Standards.Footnote ⁷⁵ Any violations of these Rules which do not specify a process for imposition of a penalty shall be decided by the CEO and such decision of the CEO may be appealed to the Board of Directors.Footnote ⁷⁶ The Board of Directors possesses other quasi-judicial authority, as, for example, in respect of deciding applications for reinstatement of tournament class membership.Footnote ⁷⁷

Just like the ATP, only disputes arising from the WTA’s Rulebook are susceptible to the arbitral mechanism envisaged in section XIX of said Rulebook. Unlike the ATP and the ITF, the WTA has not opted for an internal tailor-made arbitral mechanism. Instead, Article B(2) of section XIX provides that any dispute – save for those arising out of a change in tournament class membership status – that has not been finally resolved by other means provided for in the Rulebook shall be submitted to the American Arbitration Association (AAA). The AAA is an arbitral institution just like the ICC. It is instructive that the parties are restricted to the AAA’s Expedited Procedures Commercial Arbitration Rules;Footnote ⁷⁸ that the dispute be heard by a single arbitrator; and that the request be filed with the AAA within twenty-one days from the date the action for the request arose. Where the parties are unable to mutually choose an arbitrator, he or she shall be selected by the AAA in accordance with its own rules.Footnote ⁷⁹ It is a credit to the WTA that while all submissions shall remain confidential, the dispute itself and the findings of the arbitral tribunal and the other three aforementioned internal entities shall be made public.

9 Contractual Disputes and the Role of National Courts

The range of disputes discussed in the aforementioned sections concerned regulatory infractions predicated on the internal rules of the ITF (and its integrity affiliates), the ATP and the WTA. In both professional and amateur tennis, however, a good number of relationships are established by contracts and these are wholly distinct from the rules set out in ITF, WTA and ATP regulations. Such relationship may include player–agent agreements, agreements between tournament organisers and sponsors/advertisers, players and sponsors and many others. Any disputes arising from such agreements may be submitted to the most appropriate national court, unless the parties mutually agree to bring the matter before an arbitral tribunal. Moreover, disputes might also arise from an alleged infraction of the law, as is the case with unlawful reproduction of tennis tournaments, as well as similar infractions of intellectual property rights. Given the absence of a contract in the latter cases, the injured party will seek redress from the courts.

The limited available case law indicates that litigation is prevalent, with choice of court clauses favouring English courts, in conjunction with English substantive law as the parties’ choice of law in player–agent disputes. The tennis-specific case that stands out is Zverev v. Ace International Group Ltd, despite the fact that the parties ultimately settled.Footnote ⁸⁰ Although the agent, based in London, had no doubt driven the choice of law clause (the player was not at any time a UK national or resident), in the circumstances of the case, the application of the common law doctrine of restraint of trade turned out to favour the player.Footnote ⁸¹

For disputes concerning the contractual liberty of the ITF or ATP/WTA to remove a tournament from its calendar or relegate it to a lower tier, choice of court clauses vary. In Deutscher Tennis Bund v. ATP Tour Inc.,Footnote ⁸² two ATP tournaments, namely, Hamburg and Doha (Qatar), had been relegated to a lower tier, which necessarily meant brand depreciation and an inability to attract top tennis players to the tournaments. This in turn had a direct impact on profits. Both tournament organisers challenged their downgrading before US courts. The District Court rejected the arguments, confirming in the process that the ATP can re-organise professional tournaments and relegate one or another to a lower tier without breaching anti-trust rules.Footnote ⁸³ Here, the claimants’ argument, unlike Zverev, centred on anti-trust violationsFootnote ⁸⁴ as well as breach of contract. Ordinarily, and in line with Article 8.07 of the ATP Code, this dispute should have been referred to the CAS. The claimants, however, relied on their anti-trust claim, which is of a public policy nature, to submit the dispute before a US district court.

Other chapters in this volume discuss the role of litigation in tennis disputes, particularly as regards the enforcement of morality clauses,Footnote ⁸⁵ competition claimsFootnote ⁸⁶ and intellectual property infractions.Footnote ⁸⁷

1 Introduction

The aim of this chapter to is introduce the structure and function of governance in global tennis and to contribute to the wider debate concerning sport-related governance, considering legal, organizational and functional dimensions. Although sport governance has been one of the most researched contemporary topics, the governance landscape in tennis deserves additional attention. The professional nature of tennis has transformed the relationship among its various stakeholders, both externally and internally. Despite the existence of relatively robust governing bodies, players constitute the vehicle of professional tennis, and are more often than not far more important than the states they represent. Professional tennis remains an ambiguous activity straddling not-for-profit entities and the highly commercial and lucrative nature of the sport and related actors.Footnote ¹ The particular challenge lies in the distribution of power and potential jurisdictional overlap, especially in times of specific external disarray, such as pandemics or war in Europe.Footnote ² Consequently, concern has been raised about the players’ representation in decision-making processes and the emergence of unionization, revenue distribution and potential merger of professional bodies in tennis. That said, this chapter represents an overview of the development of professional tennis, particularly highlighting institutional interrelationships framed and directed within a largely corporate and business environment. Further, it focuses on several structural aspects of tennis governing bodies and assesses their organizational and operational relationship through coordinative, collaborative and competitive frameworks.

The contemporary tennis governance is comprised of rather complex institutional interrelationships at the macro-level, as these are shaped by largely corporate and business-style contexts. That said, the focus of this chapter is on the structural aspects of tennis governing bodies and their organizational and operational interdependence. Despite the absence of a singular authority on top, professional tennis governance is structured in the form of a vertical semi-pyramidal organizational ladder. The systematic approach represents a main feature in understanding the complexity between communication, collaboration and competition among the key governing bodies, players, the private sector and other stakeholders.Footnote ³ Professional tennis falls within the category of so-called “closed governance structures” with coordinated effort among a variety of entities shaped by on-court competition and commercial activities, all of which are intertwined. To understand the governance of professional tennis, it is important to look at the institutional relationship among key stakeholders. On the one hand, the International Tennis Federation (ITF), the Association of Tennis Professionals (ATP) and Women’s Tennis Association (WTA) operate as the sport’s dominant stakeholders. The institutional interrelation among these actors is both complex and stable at the same time. On the other hand, the role of athletes, coaches and competition organizations changes over time. In contemporary dynamics, the governance structure of tennis is reshaped primarily toward a species of corporate governance, further infused with bilateral and multilateral arrangements, with the participation of a number of other stakeholders ranging from nation states, companies, media and others. Furthermore, the governance complexity is multiplied by National Sports Federations (NSFs) operating within national geographic boundaries and citizenship/nationality links. Therefore, the interrelation between these actors within the global tennis ecosystem is intertwined with hybrid regulatory frameworks, both contractual and intra-regulatory, as these are generated by state and non-state actors bypassing opposing interests within sport and non-sport-related contexts. The concerted effort is achieved primarily through the interdependence of sport-related entities.

As regards the sport-related context, the ITF exercises a leading governance role. However, due to the importance of the ATP and WTA, especially their engagement and scope of activities, global tennis governance resembles a network rather than a vertical-based organizational structure. The scheduling of events requires concerted effort in order to avoid overlapping and attract broader support, considering the different competences and scope of operations of the ITF, ATP and WTA. To understand this specific institutional and organizational relationship, it is important to elaborate on the role of each of these three global tennis stakeholders in detail. Additionally, NSFs may equally engage in the organization of events that may be part of the ITF/ATP/WTA structure, although in terms of operations, NSFs fully adhere to the ITF regulatory framework if they wish to maintain their membership status and have access to the Olympics. With this in mind, the coordination is particularly important in the relationship with players, including athletes’ entourage and tournament organizers. This relationship has evolved mainly due to the excessive commercialization of tennis. The professionalization of tennis has been a historical challenge for the world of tennis and for a larger community, namely, the Olympic Movement.

From the early beginnings of the contemporary Olympic Games in 1896, the friction between the governing body of tennis at that time, the International Lawn Tennis Federation (ILTF), and the International Olympic Committee (IOC) was visible. This was particularly acute mainly in terms of event scheduling, at a time when the Olympic Games in Sweden overlapped with the organization of the Wimbledon tournament in 1912. The second reason is that tennis had long been a highly professionalized sport, and many players demanded appropriate conditions for the organization of the tennis event during the Olympic Games. Third, the ILTF demanded proper planning for the tennis event at the Olympic Games. At that time, the IOC used its dominant role within the Olympic Movement, by adopting the obligatory oath for participating athletes with a view to preserving amateurism. The absence of the ILTF in the preparatory phase of the Olympic Games of 1920 and 1924 in both scheduling and organization is therefore striking, but hardly surprising. Although these tennis events attracted many players, the friction between the IOC and the ILTF was deep, especially as the ILTF insisted on being in charge of the event. The IOC, in turn, insisted on adhering to the core principle of Olympism, namely, amateurism, along with the demand that the ILTF cancel all its major events during the year of the Olympic Games.Footnote ⁴ The organizers of major events led by the British Lawn Tennis Association decided to reject the IOC’s position. In order to maintain its dominant role, the IOC’s Executive Board adopted the decision to remove tennis from the Olympic Games.

This decision was approved by the Board during the 27th IOC session. It was clear that the ILTF could maintain its dominant status in the world of tennis, despite the role of the IOC and the significance of the Olympic Games. However, this governance struggle reflected primarily the character of the game of tennis and its opposing organizational philosophies. Despite a renewed application in 1957, tennis was not admitted to the Olympic program, despite the fact that the ILTF revised its rules, by which it sought to maintain a certain degree of amateurism. At the political level, football was not removed from the Olympic program, despite the fact that many football players were in fact fully-fledged professionals. The lack of institutional support for athletes and their specific labor status forced many participants to either move to professional sport or to drop off. At the national level, the NSFs failed to adopt appropriate regulatory frameworks to safeguard athletes effectively. The solution of semi-professional status that would ensure eligibility to participate in amateur competitions was not supported, as the IOC maintained its rigid position on the concept of amateurism. However, the discussions on the governance of tennis and the appropriate balance that needed to be struck between amateurism and growing professionalism under the support from the US Lawn Tennis Association (USLTA) ultimately led to the reintroduction of tennis in the Olympic Games of 1968 in the form of a demonstration sport.Footnote ⁵ In parallel, while the governing body was under pressure concerning a series of integrity claims, the All England Lawn Tennis Club adopted a decision to allow professional players to compete at Wimbledon.Footnote ⁶ The changes within the IOC along with geopolitical dynamics led to a rethinking of the concept of amateurism. It resulted in opening a new perspective for cooperation between the IOC and the ILTF. In that respect, the IOC during a session in 1976 recognized the ILTF as the umbrella governing body for tennis. Following the change of status of tennis in 1981, the sport was readmitted to the Olympic program in 1988. This change was dominantly affected by the new developmental direction of the Olympic Movement and global sports.Footnote ⁷

2 The Governance Structure of Tennis

From its beginning, the governance of tennis was developed between rigid amateurism and uncontrolled professionalism. For many years, the ITF was the dominant governing body in charge of promoting the game of tennis. The ITF is in charge of the administration, structure, organization and promotion of the game of tennis.Footnote ⁸ The Grand Slam tournaments (Wimbledon from 1877, US Open from 1881, Roland Garros from 1891 and the Australian Open from 1905) have been the most prominent tennis events where only amateur athletes were allowed to participate until major changes under the “Open Era” in 1968. Besides its authority to organize the Grand Slam circuit, the ILTF was responsible for the Davis Cup, the Fed Cup, the Hopman Cup and junior competitions. With the diminishing of the boundary between amateurism and professionalism, a number of new actors emerged. This eventuality gave rise to new and different competition formats for men, which signaled an attempt to reduce the dominance of the ILTF. The World Championship Tennis (WCT) and National Tennis League (NTL) were considered as the first promoters in professional tennis, limiting their players’ ability to only compete at the ITF’s Grand Prix tournaments. It was quickly realized that a coherent competition structure was needed in order to maximize commercialization potential and media exposure. In respect of men’s tennis, in 1972, the Association of Tennis Professionals was duly established. First, it was set up to safeguard athletes’ rights within the ITF and WCT, which took the dominant role over the NTL. Its creation led to a new ranking system, as well as registration for tournaments in a manner that enhanced operations and the creation of the Men’s International Professional Tennis Council (MIPTC). The composition of the MIPTC reflected the various interests of tennis’s major stakeholders: namely, the ITF, the ATP and tournament organizers. The main competence of the MIPTC was to manage tournaments. However, due to the dominance of the ATP, which was reflected in its widespread support from players, a new format competition was created – the ATP Tour. The new format was based primarily on the principle that players and organizers share similar interests, while the ATP and ITF retained their role as the governing bodies responsible for the men’s circuit. Further reforms led to the introduction of the Master Series tournaments with a world tour format from 250, 500 and 1000 series. The dominance of the ATP on these reforms reflected a shift toward a complete commercialization of tennis events. The organizational structure and regulatory framework were consolidated, especially in terms of scheduling, ranking system and tournament entry criteria. Moreover, the conferral upon the ATP of capacity to determine the size of particular tournaments resulted in a gradual transition from a mere players’ association to a dominant governing body in the men’s circuit.

The WTA represents a leading association in professional women’s sports, with over fifty worldwide events organized annually. For its operations, the WTA has adopted an annual rulebook.Footnote ⁹ The WTA is the product of the pioneering skills of Billie Jean King, formally established in 1973. Besides King’s efforts, one also finds the separate tour known as Virginia Slims that later merged with the USLTA, which originally had its own women’s tour. The commercialization of the game of tennis led to the sharp increase in a number of broadcasted tournaments, albeit due to the inequality in prize money, top women players threatened to boycott major events. Nine female players agreed to break away and went ahead to sign a contract with Gladys, thus marking the start of the Virginia Slims Tour with more than a dozen tournaments in the first quarter of 1971. At the same time, the existence of the competing USLTA women’s tour prevented all efforts at unifying professional women’s tennis. The frictions led to the formation of the Women’s International Tennis Federation as the governing body of the Virginia Slims Tour. However, the USLTA used its monopoly status to force female players to adhere to their regulatory framework as a way of forcing them to compete at the Grand Slam events. The solution came in the new framework, which gave rise to the formation of the WTA that jointly with the USLTA worked on creating a unified tour for women’s tennis. The main motive behind this effort was to create equality for both sexes in professional tennis, primarily regarding prize money. This goal was achieved in the first decade of the 2000s for tournaments within the Grand Slam circuit. However, the challenge regarding economic imbalance and gender gap remains in other tournaments, with the more opposing voices coming from the men’s circuit. This spurred ongoing political debate – between one underlining the importance of gender equality, and others stressing that tennis is professional, commercialized, televised and ultimately a competitive activity organized under market principles.Footnote ¹⁰ Further, development in both the women’s and the men’s circuits led to organization of joint events by the ATP and the WTA, which adopted specific provisions within their respective major regulations (rulebooks) in order to maintain autonomy and expand commercial opportunities.Footnote ¹¹

3 Players’ Councils

Both professional governing bodies have players’ councils that are focused around safeguarding players’ rights on and off the court. The ATP Council, with twelve members on board, has the power to influence developments and revision of the ATP Rulebook.Footnote ¹² The composition of the CouncilFootnote ¹³ reflects the existing ranking system:

• four players from the top 50 players on the ATP in singles;

• two players from the 51–100 players on the ATP in singles;

• two players below the top 100 on the ATP in singles;

• two players from the top 100 on the ATP in doubles;

• a player alumnus;

• one coach.

The WTA’s Council is composed of eight members and differs from the composition of the ATP’s Council. It is structured as follows:

• four players from the top 20 players on the WTA in singles;

• two players from the top 21–50 players on the WTA in singles;

• one player from the top 51–100 on the WTA in singles;

• one player ranked in doubles on the WTA.

4 The Relationship between Players and the ATP/WTA

There is an absence of information about the meetings, decisions and plans of the Councils. However, both the ATP and the WTA offer a range of support for a relatively restricted group of players. This support is based on each player’s membership and the individual ranking. To be part of the world of tennis, a player must be bound to sport-related regulation. By the mere act of registering, a player is bound to all ITF/ATP/WTA rules, including integrity-related provisions. Moreover, a player must respect and adhere to the World Anti-Doping Code (WADC) and accompanying regulations. Both the ATP and the WTA offer two types of membership (full and associate), which relate to voting in the Players’ Council, insurance policy and pension plan. The ATP membership is divided into two divisions: (1) on the date of one’s application for membership, the person is ranked in the top 200 in the Pepperstone ATP rankings, or among the top 100 players in the Pepperstone ATP Doubles rankings, and pays ATP dues; (2) on the date of one’s application for membership, the person is ranked in the top 500 in the Pepperstone ATP rankings, or among the top 250 players in the Pepperstone ATP Doubles rankings, and pays ATP dues. According to the WTA rules, the annual cost for full membership is set at US $1,000, while for associate membership the cost is US $500. For full membership, the eligibility criteria are based on the ranking system (for a singles player top 150 and for a doubles player top 50), with a minimum of six tournaments played (including ones from the Grand Slam events). As regards associate members, singles players under 750 on the WTA Singles ranking or top 250 on the WTA Doubles ranking must have participated in at least one WTA tournament. Full members possess the right to vote with the opportunity of reappointment in the Players’ Councils. In both arrangements, members are entitled to a broad range of medical insurance, while depending on the number of years one has competed in ATP/WTA singles/doubles tournaments and membership status, there is a further entitlement for a pension scheme.Footnote ¹⁴ In 2023, the ATP announced that it was planning to establish a financial safety net for the top 250 ATP-ranked players. The program is called “Baseline.” The first pillar of the program is known as “Guaranteed Base Earnings,” which guarantees minimum income levels for the top 250-ranked singles players each season. In case a player’s prize money earnings finishes below the guaranteed threshold, the ATP will step in to cover the shortfall. For the 2024 season, these levels are $300,000 (top 100), $150,000 (101–175) and $75,000 (176–250).Footnote ¹⁵

For both the men’s and women’s circuits, the relevant governing bodies adopted a code of conduct that legally binds players to sponsorship and broadcasting deals. For example, on the day of event, players are obliged to undergo a pre-match interview followed by a post-match conference. Exceptions are possible in the case of injury or physical inability to attend. Violation of these rules leads to fines starting from $1,000 and depends on the player’s ranking. In addition, the ATP STARS program established in 2008 is aimed at utilizing media and commercial interest in tennis. All players from the main draw are obliged to participate in ATP-sponsored events. If a player fails to participate in the ATP STARS activities, he or she would be subject to a fine depending on his or her ranking. Similarly, for media appearance, dress code has been in almost 150 years in the case of Wimbledon narrowed to all-white uniforms. According to the ATP/WTA regulations, players are obliged to present themselves in a professional manner during tournaments, official practice sites and media appearances. Failure to comply with this rule may lead to a fine or default from the tournament. It is hardly uncommon for a discretionary power to be conferred upon tournament officials (Chair Umpire or Supervisor) by which to order a player to comply with the pertinent rules and regulations.Footnote ¹⁶ However, in 2023, women are allowed to wear dark-coloured undershorts, departing from the original and strict application whereby players incurred fines. From 2019, the WTA has eased the rules for players, but even so, approval is needed for some forms of attire, such as footwear. As an alternative, players may submit a sample shoe for approval no later than ninety days from entering a tournament.Footnote ¹⁷

5 The Relationship between National Tennis Federations and the ITF

The NSFs and organizations where the Grand Slam events are organized prevailed over time. Before the Open Era, the dominance of some amateur-oriented NSFs was strong and decisive in terms of national ranking systems and representation, with players forced to adhere to the rules if they desired to participate in both national and international events. There are currently 213 NSFs under the global governing body, the ITF. Out of these 213, 160 possess voting rights. These rights are divided between different member classes (B and C) of participants. According to the ITF Constitution, the following classes enjoy “exclusive voting rights”:

• Class B – five leading NSFs (Australia, Great Britain, France, Germany and the United States) with twelve votes;Footnote ¹⁸

• Class B – fourteen NSFs with nine votes;

• Class C – NSFs with seven, five, three and one votes.

Besides the NSFs endowed voting rights, there are fifty-three member federations from within Class C without voting rights. NSFs are structured within a framework of continental federations or confederations as follows:

• Asian Tennis Federation;

• Central American and Caribbean Tennis Confederation;

• Confederation of African Tennis;

• Oceania Tennis Federation;

• South America Tennis Confederation; and

• Tennis Europe.

The conferral of voting rights clearly concerns the NSFs’ capacity to participate and influence the AGM of the ITF and its overall operations. The membership procedure is twofold. NSFs need to prove their ability to operate in their geographical territory of origin. This requires that they are following that country’s legislative framework. Second, concerning the NSF’s organizational capacity, the ITF will grant membership status in accordance with the applicable criteria. A two-thirds majority of the Council at the AGM is needed to grant membership status. As per Class B, the Council shall adopt an appropriate resolution in accordance with Article 3 of the ITF Constitution, by which it grants particular NSFs membership status.

A potential member is obliged to present all relevant details related to the development of the game of tennis for its respective territory.Footnote ¹⁹ As per Class B requirements, the Board of Directors assigns an envoy or representative to visit the applicant with a view to submitting an appropriate report. The procedure includes the ITF’s Council adopting the resolution at the AGM. According to the ITF Constitution, the Council may take a range of actions against NSFs, including suspension and expulsion from their membership where they are responsible for damaging the image of the ITF (and the game of tennis) or failing to comply with the ITF’s rules.Footnote ²⁰

6 Contemporary Governance Setting and Challenges

In accordance with Article 10 of the ITF Constitution, the ITF is organized and registered as a limited liability company under the laws of the Commonwealth of the Bahamas, but retains its headquarters in London. This is unusual, because the vast majority of sports governing bodies are organized in the form of non-profit entities.Footnote ²¹ In the contemporary setting, the three main governing bodies of global tennis continue to operate in a rather concerted manner. Despite their autonomous competences, as a result of their business orientation, their mutual interaction without conflict reflects their desire for functional sustainability. The latter is particularly important for scheduling purposes despite the possible opposing interests. Although not impactful as before the Open Era, the ITF is considered as the sole sports governing body in the world of tennis. As an important part of policymaking, the ITF adopts the Rules of Tennis.Footnote ²² These rules are subjected to the review of the Rules of Tennis Committee that further recommends revisions (when needed) to the ITF’s Board of Directors. Besides the President, the composition of the Board includes:

• fourteen individuals elected in accordance with Article 21 of the ITF Constitution; and

• two Athlete Representatives (one from each sex) appointed by the elected members of the Board of Directors in accordance with Article 21 of the ITF Constitution.

Members, excluding the President, are elected by Class B members during the AGM for a term of four years. There is a clause that limits terms for not more than twelve years in total. A member may be removed by the Council by a two-thirds majority resolution adopted by the Board of Directors. The ITF adopts and/or updates on a yearly basis the ITF Rules of Tennis aimed at setting up a framework for the organization of competitions under the predictable format of play, as well as maintaining the traditional character and integrity of the game of tennis. In ensuring the consistency of rules with possible changes (e.g. technological ones), the ITF appoints the Rules of Tennis Committee to monitor, evaluate and prepare when needed recommendations to the AGM as the authority in charge for making any changes to the ITF Rules of Tennis. These rules are issued by a Ruling Board appointed by the President of the ITF.Footnote ²³ The Chairperson of a Ruling Board determines the appropriate procedure for review/hearing if and when necessary.

The Board of Directors appoints the ITF International Adjudication Panel to decide any eligibility issues related to decisions under the ITF Rules of Tennis, the ITF Davis Cup Regulations, the ITF Fed Cup Regulations, the ITF Pro Circuit Regulations, the ITF Wheelchair Tennis Regulations, the ITF Wheelchair Classification Manual, the ITF Junior Circuit Regulations, the ITF Junior Team Competitions Regulations, the ITF Senior Regulations, the ITF Beach Tennis Rules and the Code of Conduct for Officials.Footnote ²⁴ The competence of the Panel is broad and includes interpretation of the ITF Rules, determining possible breaches thereof, hear/determine appeals made by other governing bodies under the ITF Rules and propose changes to the ITF Rules before appropriate governing entities.Footnote ²⁵

According to the ITF Constitution, the ITF Code of Ethics is set to ensure that the game of tennis and governing structures are governed in accordance with the highest standards of ethics and integrity.Footnote ²⁶ The Director of the ITF, the ITF President, its CEO and any person serving on an ITF committee or commission are obliged to adhere to the ITF Code of Ethics.Footnote ²⁷ The ITF Ethics Commission was formed in 2019 to ensure compliance with principles of integrity and ethics under the ITF Code of Ethics. The major governing bodies in the world of tennis, the ITF, ATP and WTA, along with related bodies and stakeholders, are bound and must comply with the Code of Conduct for Officials. The Code is issued and could be revised by major governing bodies, contributing to the shared responsibility, network-based and complex governance structure.

There were steps between 2008 and 2009 to establish an appropriate anti-corruption body (Tennis Integrity Unit, TIU). However, in order to address wider challenges associated with integrity and ethics in a more autonomous manner, the International Tennis Integrity Agency (ITIA) was established by the ITF, ATP, WTA, the Australian Open, French Open, US Open and Wimbledon. The ITIA adopted two programs, the Tennis Anti-Corruption Program (TACP) for tackling corruption and the Tennis Anti-Doping Program (TADP) for ensuring a clean game of tennis.

The composition of the main decision-making body of the ATP, its Board of Directors, besides encompassing a chairperson, includes three players’ representatives and three tournament representatives. The ATP Players’ Council elects players’ representatives. The composition of the ATP Tournament Council includes thirteen members of organizers from the regions of the Americas, Europe and the International Group of tournaments. The WTA’s Board of Directors is composed of a chairperson, and three players’ and three tournaments’ representatives, in addition to the WTA CEO and an ITF representative. The composition of the WTA Tournament Council includes nine members, three each from the regions of the Americas, Europe and Asia-Pacific. The recent emergence of players’ associations/union(s), such as Djokovic’s Professional Tennis Players Association (PTPA) established in 2020, disrupted the supremacy of the ATP and caused tensions. The tension between players and the ATP, in particular, are not new; however, its financial challenges for players are multiplying, thus giving rise to yet another challenge to the existing governance ecosystem in tennis. The level of mistrust was obvious during Djokovic’s attempt to run for the ATP’s Players’ Council. He was not allowed to run because he is a member of the PTPA. The ATP initiated a campaign to prevent players from joining the PTPA. Despite these frictions, 250 players are members of the PTPA, thus signaling the need for necessary changes. In parallel, the ATP is under discussion on possible streamlines of reforms in order to improve players’ conditions. As a result, the Baseline financial security system was launched, which, as already explained, aims to enable tennis professionals at the lower end of the rankings to make a fair income. The program aims to provide base salaries, compensate players in the case of injury and provide financial support for newcomers. Within the proposed system there are three levels of support, depending on ranking (up to 250 on ATP) and threshold earnings.

From 2019, both professional governing bodies have been discussing the potential of taking their cooperation to another level. The main motive behind this is related to utilizing media and commercial interests in a number of joint events. However, their respective positions are significantly apart, with the ATP focusing on media, while the WTA plans to achieve equal compensation with their male counterparts by 2033. That said, there are a number of challenges to be resolved before proceeding to a potential merger, as both actors have their own sponsorship and broadcasting deals. In addition, the involvement of investment companies is taking pace. While the WTA accepted a proposal from CVC Capital Partners to sell 20 percent of their media rights from WTA Ventures, the ATP rejected the same proposal.Footnote ²⁸ Similarly, the ATP announced it will organize the NEXT Gen in Saudi Arabia. While questioning a potential merger, the PTPA addressed another governance challenge – the relationship with betting authorities. The PTPA suggested that 50 percent of revenues from betting sponsorship deals with tournament organizers should be awarded to athletes.Footnote ²⁹

7 Epilogue

There are currently three major initiatives at the table for wider discussion – namely, reshaping the profit-sharing formula, the merger of professional associations and ATP’s Baseline program. Contrary to football, these discussions are limited and related to internal processes within existing organizational structures, with a possible outcome being the granting or decentralization of power and responsibility with a view to achieving unique organizational and operational interdependence. This reflects a continuous interplay between political legitimacy and institutional governance focusing on the manner in which power is being practiced, and the scope of the influence within a given regulatory framework that facilitates to some extent the prevailing corporate governance. The democratic deficit within global tennis was manifested during the unionization process, especially during the formation of the PTPA.Footnote ⁴⁷ Quickly, the ATP dislocated its focus from a number of challenges, including the devastating effects of the pandemic, to supress such developments because of their potential impact on existing governance that is already complex and, in some cases, proved to be uncoordinated or fragmented. This was particularly obvious following the Russia–Ukraine war, when the All England Lawn Tennis and Croquet Club (AELTC), organizer of the Wimbledon tournament, decided in concert with the LTA to unilaterally ban Russian/Belarussian tennis players from participating in 2022. With support from the UK government, the LTA declined entries to Russian/Belarussian athletes to take part in any UK tennis event. The official holder of the Grand Slam circuit, the ITF and both professional associations failed to apply their own regulations, except for removing points from all categories for competition, including the ATP/WTA imposing fines on the LTA/AELTC. This confirms the limited authority and enforcement of rules over particular tournament organizers, cumulatively confirming a deficit of contemporary tennis governance and the need for comprehensive reforms.

1 Introduction

High-profile scandals, chiefly involving coaches,Footnote ¹ have served as the catalyst for legislative change and the promulgation of robust safeguarding policies with a focus on vulnerable persons, chiefly children, and disabled athletes. In 2001, the United Kingdom extended the scope of the National Society for the Prevention of Cruelty to Children (NSPCC) by the introduction of a Child Protection in Sport Unit.Footnote ² In 2008, AusAID became the first bilateral donor to implement a Child Protection Policy,Footnote ³ with a view that funding is only provided to sports organizations that implement robust safeguarding policies. In 2012, UNICEF adopted a set of International Safeguards for Children in Sport,Footnote ⁴ and a working group was set up as a follow-up mechanism. Despite the significance of safeguarding for children in sport, the subject has received very little attention in the legal literature. This may, of course, be due to the fact that the well-being of children is also the subject matter of specific criminal lawsFootnote ⁵ and human rights standards pertinent to children, chiefly as articulated by the Convention on the Rights of the Child (CRC),Footnote ⁶ as well as Article 30 of the Convention on the Rights of Persons with Disabilities (CRPD).Footnote ⁷ Even so, all these laws are focused exclusively on child–adult relationships; are unconcerned with the particular sporting context; fail to consider the well-being of adults; and, equally, do not account for all those situations that pose a likelihood of ‘harm’ to athletes in their future life without the intervention of any criminal conduct. The latter category includes ‘burn out’, no alternative career transition upon termination of a sporting career, health and safety concerns on the court, child-to-child abuse, bullying and others.

It should be stated from the outset that there is an extensive body of rules on safeguarding generated by tennis academies and clubs, and the International Tennis Federation (ITF) has promulgated a Safeguarding Children Policy,Footnote ⁸ and another for adults.Footnote ⁹ The Women’s Tennis Association (WTA) released a Safeguarding Code of Conduct on 26 December 2024, at a time when this book was already in production.Footnote ¹⁰ Hence, this late-December 2024 development will not be discussed here. The Association of Tennis Professionals (ATP) has drafted an instrument, but has not promulgated a discreet safeguarding code, and as far as this author is aware such a process is ongoing.Footnote ¹¹ There is also a good number of general safeguarding codes,Footnote ¹² as well as others that are tennis-specific and generated by national tennis associations.Footnote ¹³ Safeguarding policies and codes are further supplemented – and superseded where in conflict – with national legislation. Such legislation may be sport-specific, such as the US Protecting Young Victims from Sexual Abuse and Safesport Authorization Act of 2017, upon which the USTA Safe Play Handbook is predicated, as well as others of a more general nature aiming to protect children athletes from abusive behaviour.

In order to avoid a legalistic approach to the subject by squeezing into a relatively short chapter an abundance of rules from a variety of instruments, the chapter relies principally on ITF and WTA instruments. Space constraints sadly dictate that the analysis is not exhaustive, the aim being to provide an overall perspective of the legal aspects of safeguarding. The chapter adopts a broad definition of safeguarding, which encompasses all aspects of the safety and well-being of tennis players, whether children or adults, the enforcement of which is incumbent on all tennis professionals and tennis institutions enjoying a direct relationship with players. This duty is not exhausted by one stakeholder (e.g. the ITF or an academy) on account of the fact that another stakeholder (e.g. a parent) enjoys a closer relationship with a particular player. It should be understood that safeguarding obligations are not ethical duties, at least in the sense of largely personal decisions about what is good or bad; rather, as will be explained, they are concrete duties imposed by law or contract on the pertinent stakeholders.

2 Safeguarding as a Duty of Care

It is by no means an easy task to locate the legal premise of this duty of safeguarding.Footnote ¹⁴ However, it is important for the purposes of this discussion to do so because one needs to be aware of the consequences for a stakeholder’s failure to uphold the requisite safeguarding standards. The law requires that those entrusted with a ‘duty of care’ over others must exercise such duty to the best of their abilities and by considering the best interests of the protected person. The law does not always spell out all such relationships (i.e. parent–child or teacher–child), but there are tests to ascertain these. In the English case of Donoghue v. Stevenson, Lord Aitkin set out the contours of ‘good neighborliness’ as follows:

This is a test for tort-based liability and not a mere reference to expected ethical conduct lacking enforcement. Common law and civil law jurisdictions have further elaborated this duty on sports coaches and by extension also to academies – as a direct tort liability based on a duty of care, or alternatively on the basis of vicarious liability. By way of illustration, in Shone v. British Bobsleigh and Skeleton Association (BBSA), it was held that the BBSA, through the actions of its coaches, ‘owed the claimant [athlete] a duty to take reasonable care of her safety [ultimately resulting in injuries]. … The BBSA owed a duty of care to the claimant to take all reasonable actions to ensure she was reasonably safe in the course of her activities on the bobsleigh run, in accordance with the prevailing standard of reasonable practice.’Footnote ¹⁶ While the duty of care for sports professionals is extensive, the standard is hardly an impossible one. It is based on a test of reasonableness.Footnote ¹⁷ The various rules set out by tennis clubs and the ITF effectively clarify and contextualise what is reasonable in the realm of a tennis relationship. While no doubt such rules do not bind the courts about what is in fact reasonable,Footnote ¹⁸ they do give rise to general principles and at the very least provide concrete guidelines to the club, coaches and other stakeholders about their duties of care. However, such duty is clearly broader than said rules and injured players and their families may well argue for broader tort-based liability. Article 14 of the ITF’s Safeguarding Policy for Children correctly adopts the trust-based model of the duty to care, as follows: ‘[T]o address the risk of sexual abuse perpetrated by adults exploiting an imbalance of power over a child or young person, the ITF applies the “Relationship of Trust” doctrine. This covers relationships between a covered person who cares for, advises, supervises, trains or supports any child participating in any tennis activity.’ This model is unconcerned with the age of consent to engage in sexual relations. Any covered person engaging in sexual activity with a child athlete (i.e. below the age of 18) is considered to be in breach of the ITF’s Safeguarding Policy.Footnote ¹⁹ This has also long been part of the WTA’s Safeguarding Code of Conduct, as contained in its Rulebook. This model is in line with the laws of most countries. In 2022, the United Kingdom’s 2003 Sexual Offences Act was amended to include a new Article 22A, which extends the ‘position of trust’ to include any adult that regularly coaches, teaches, trains, supervises or instructs a 16- or 17-year-old in sport. This category of people is presumed to be aware of the power imbalance they hold over children and are under a duty not to use this for personal advantage or gratification.

3 The Sporting Context of Abuse

Sexual, physical and emotional abuse, as well as violence, are the most prevalent safeguarding concerns in sports, most often perpetrated by sports professionals in a position of trust against children athletes. The cultural context of abuse is predicated upon the unequal and discriminatory power differentials across a range of social and individual factors. It has been reported that on average, 40 to 50 per cent of athletes have experienced some degree of mild harassment to severe abuse during their lifetime in organised sport.Footnote ²⁰ On average, 44–75 per cent of athletes have experienced psychological abuse by stakeholders in sports settings.Footnote ²¹ Sexual abuse is particularly pervasive and in a study conducted on 159 cases of sexual abuse in sport-related contexts, 98 per cent of the perpetrators were coaches or sports personnel.Footnote ²² Significantly, research demonstrates that elite young athletes are more likely to be sexually assaulted and abused than their lower-level counterparts.Footnote ²³

It is no accident that the International Olympic Committee (IOC),Footnote ²⁴ UNICEFFootnote ²⁵ and the European Union,Footnote ²⁶ among many others, have adopted several instruments, reports and guidelines in order to counter sexual and other types of abuse in the sporting context. All of these instruments emphasise the close link between elite athletes and their coaches – as well as other stakeholders – which is easily manipulated, thus mandating increased safeguarding by all covered persons.

4 Safeguarding in Child–Adult Relationships in Tennis

The following sections focus on safeguarding in child–adult relationships. The various sub-sections explain the pioneering contribution of the WTA but go on to analyse safeguarding in this context on the basis of the ITF Policy.

5 Safeguarding for Future Harm

A particular concern that is hinted (i.e. poor practices) in the ITF Safeguarding Policy but not highlighted enough is the likelihood of future harm to children. Indeed, the majority of talented tennis players train long hours, engage in several long-distance trips in any one year (and hence spend many hours travelling) and as a result fail to keep up with their academic pursuits. This is further fuelled by family and tennis professionals. When the child is either burnt out or ultimately realises that a professional career is not feasible, the family is already in significant debt and the child has no fall-back plan.

The question then arises whether the future welfare of child tennis players should be a concern for the ITF, WTA and ATP and top-flight tennis academies and whether this should constitute a recognisable duty of care.Footnote ⁴³ In the opinion of this author, the answer is self-evident. All three entities would be rendered meaningless and generate no profit without the struggle of junior players to make it into the professional circuit. Top professional players do not just happen; they are part of a process involving intense competition at the junior ranks and it is because of this competition with other players through the course of multiple years that they later achieve stardom. Simply using those other players to create the tennis stars of tomorrow and in the process deprive them of future prospects is as bad as all the evils that safeguarding aims to eradicate. It is for this reason that the WTA Rulebook sets out in its section X a series of Age Eligibility Rules (AERs) which, among others, require ‘minimum educational requirements’ for children participating in its pro-path phase: ‘Each player must submit to the WTA an official certificate from her country of legal residence verifying that she is meeting or has met her country’s minimum educational requirements. A player must submit updated documentation annually until she reaches 18 years of age.’Footnote ⁴⁴ The same requirement is demanded in respect of the WTA’s introductory phase,Footnote ⁴⁵ and during the rookie phase players must participate in educational programmes offered by the WTA’s PDP.Footnote ⁴⁶ Female players who succeed to the elite phase are required to undergo several education programmes, crucially including fundamental financial planning and career development.Footnote ⁴⁷ Even players ranked in the top 100 of the WTA rankings, and who are below 18 years of age, must not only attend the WTA’s mandatory courses, but equally provide evidence that they are meeting their countries’ minimum educational requirements.Footnote ⁴⁸ It is no accident that the vast majority of WTA-ranked players are multilingual, with many pursuing a university degree. A longitudinal study commissioned by the WTA aptly demonstrated that:

While this is a splendid example of preventing future harm to junior tennis players, it does not account for the fate of other junior players at the lower tiers of the game. It would be extremely impactful if the ITF, WTA and ATP used some of their resources with a view to collaborating with national tennis federations to create similar programmes and set out minimal educational requirements for their top 100 (or more) nationally ranked players. Top-flight tennis academies should play a major role in this development and assume the development role required.

There is also a worrying trend of doping among children in a variety of sports settings. The latest World Anti-Doping Agency (WADA) report did not single out tennis, as opposed to weightlifting, swimming and athletics, but it did highlight six areas of concern arising from doping in junior categories, namely: trauma, isolation, impact, pressure, ignorance and abandonment.Footnote ⁵⁰ This should be a safeguarding concern for the International Tennis Integrity Agency (ITIA). Given the absence of anti-doping control in the majority of junior tennis tiers, it is very difficult to have an overview of the prevalence of doping among children tennis players.Footnote ⁵¹ While it might be difficult, from an ethical, financial and logistical perspective, to undertake doping controls in national junior circuits, there is little doubt that tennis stakeholders can and should educate parents, players, clubs and tennis professionals on a mandatory basis.

6 The Safeguarding of Adult Athletes

The ITF’s Safeguarding Policy for Adults is modelled on its equivalent policy for children.Footnote ⁵² In order to avoid overlap, this section will explore only notable differences. Article 4 of the Adults’ Policy emphasises that in the adult context safeguarding refers to ‘vulnerability to risk or harm’. Risk and vulnerability are considered interchangeable, and each is dependent on personal circumstances, such as disability, poverty, homelessness, domestic violence and others. Unfortunately, however, despite two articles on the likely risks to disabled tennis players, the Adults’ Policy is an almost verbatim iteration of the Children’s Policy and is hardly personalised to the plight of adult players.Footnote ⁵³ This is, in the opinion of the author, a disappointing effort that very much ignores the real problems faced by young adult tennis players and aims to confirm the ITF narrative that organised gambling in the lower tiers of the sport is good for the game of tennis.Footnote ⁵⁴

It has been demonstrated elsewhere that adult tennis players who are unable to make a living from prize money (i.e. mid- and lower-tier ranked athletes) are susceptible to match manipulation where organised gambling has been introduced at these lower tiers.Footnote ⁵⁵ By way of illustration, in March 2021, the ITF announced the results of a match-fixing investigation against two Nigerian tennis players. One was ranked 986 and the other was not ranked at all; yet their matches were amenable to betting by the ITF and the two had gone on to bet on their own games.Footnote ⁵⁶ The Independent Tennis Integrity Review pressed the point that:

This is hardly a surprising outcome. If the ITF is serious about the safeguarding of adult players, apart from abuse and violence, it has to confront the evils of integrity and manipulation of the game as a matter of safeguarding also. The Independent Review of Integrity in Tennis emphasised in its 2018 report that:

An additionally egregious practice plaguing the adult professional game is the use of social media to inflict fear, distress and mental harm. Professional players are public figures and are ‘easy’ prey for malicious users. The ATP and WTA have a duty, as far as possible, to protect their prized assets from such harmful practices, and recently the AI-powered tool Matrix was pioneered with a view to monitoring players’ public-facing social media for abusive and threatening content.Footnote ⁶⁰

7 Health and Safety as a Safeguarding Duty

The safeguarding policies of the ITF refer to health and safety in very general terms. The regulation of health and safety is undertaken at national level through general or specific legislation. In the United Kingdom, for example, the Health and Safety Act at Work of 1974, as updated, regulates the responsibility of employers towards employees and third persons while working or being present at their work premises, or using work-related equipment. For the purposes of this section of the chapter, sections 2 and 3 of the 1974 Act stipulate that employers are under a continuous duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees and any other person present at their place of work. An important part of this legislation is the duty to train all employees in health and safety matters. It is clear that health and safety legislation is of paramount importance in the safeguarding of adult and children tennis players. The Lawn Tennis Association’s Coach Qualification Health and Safety Policy emphasises that: ‘All individuals have a legal responsibility, as stated under section 7 of the Health and Safety at Work Act 1974, to do everything practicable to prevent an accident or injury to themselves and to others.’Footnote ⁶¹ Clubs, academies and national associations, tennis professionals acting as consultants or any other entity operating tennis or training facilities, whether privately owned or leased, are charged under the law with ensuring as far as practically possible that all equipment and facilities are safe and do not pose a health hazard. A violation of this duty gives rise to criminal liability and possible tort claim by the person suffering an injury.

8 Consequences for Failure to Meet Safeguarding Obligations

There is nothing in the safeguarding policies examined thus far explaining the legal consequences for failure to meet the stated safeguarding obligations, save for the LTA health and safety policy which refers to consequences arising from statute. The ITF frames the pertinent duties twofold: (1) situations that implicate criminal and child welfare laws, which give rise to a criminal investigation on the part of the territorial state against the alleged perpetrators; and (2) duties that do not fit in category (1), but whose legal implications are somewhat vague. The relevant safeguarding policies may, but not necessarily, give rise to tort-based liability, as well as contractual liability. By way of illustration, the sexual grooming of a child athlete is clearly a criminal offence and the accused will undergo a criminal prosecution to determine his or her culpability. However, this process does not address the potential liability of the club, the national federation or the pertinent sport governing body (e.g. the ITF) for their failure to detect the offence and protect the athlete. If the law treats the relationship between these three entities and the victim athlete as one entailing a concrete duty of care, failure to execute this duty to the best of their abilities gives rise to liability in tort and perhaps also criminal liability.

If the prospect of tort-based liability for stakeholders is remote, chiefly because such a duty is not predicated in common law or statute, then the pertinent safeguarding policy may serve as a contract between the athlete and the institution that has produced the policy. Where the policy is framed as an offer made by the institution to the athlete and the latter accepts it tacitly or expressly and both form a common intention that the institution is bound to adhere to its terms, then such terms are contractual in nature. In the case of the ITF Safeguarding Policy for Children, the offer is clear in Article 2, which reads: ‘The International Tennis Federation (ITF) is committed to safeguarding all children participating in tennis tournaments, events, projects and programmes that it delivers or sanctions and rejects all forms of harassment, abuse, violence and exploitation’ (emphasis added). It is absurd to suggest that welfare policies simply express hortatory principles which the institution is not bound to enforce, especially where the policy in question uses language suggesting commitment. The very fact that the ITF, in addition to its express commitment, has set up the post of Safeguarding Manager subject to elaborate procedures furnishes proof of its commitment to the terms of the Safeguarding Policy. If the institution fails to adhere to the terms in its policy, it is in breach of said policy and the victim may seek recognition of this breach, as well as damages, financial or moral, if these are proven. It is of no significance that the institution might argue that its safeguarding policy is not a contract, especially if its terms are such that leave no doubt about its contractual nature. It is unclear if the ITF Safeguarding Policies constitute ‘ITF Rules’, which in turn confer authority on the ITF’s Internal Adjudication Panel and Independent Tribunal. If this is not the case, an aggrieved athlete can raise a civil claim before the courts against the institution in breach of the contract/policy and seek damages.

In practice, safeguarding-based claims are predicated on the law of torts where there exists an extensive array of duties of care,Footnote ⁶² and hence contract-based claims are extremely rare. This author is not aware of aggrieved athletes making contract-based claims, as explained in this section, against institutions for failure to adhere to their safeguarding policies.

9 The Boundaries of Safeguarding Duties

The various safeguarding policies explained in this chapter concerned abusive conduct, criminal offences or poor practices against tennis players, whether children or adults. They did not in any way discuss equivalent conduct by tennis athletes against non-athletes. It seems fair that safeguarding rules do not apply in such circumstances, chiefly because this does not give rise to a relationship of trust in the sporting context – save where one athlete is being abusive to another athlete. The welfare of the victim, non-athlete, can be adequately remedied by the laws on domestic violence, or violence against one’s person. Even so, when allegations of domestic violence against Alexander Zverev emerged, the ATP was quick to institute a ‘safeguarding investigation’, the aim of which was to make wide-ranging recommendations to ‘ensure safeguarding is embedded across all aspects of ATP organisational activity. Topics covered include prevention, reporting and investigation of abuse, disciplinary measures, policy statements, event safety, training, information sharing, collaboration with other bodies of tennis and the appointment of dedicated safeguarding leads.’Footnote ⁶³ By January 2023, at which time the investigation was completed and Zverev exonerated due to a lack of evidence, the ATP’s press statement made no reference to safeguarding whatsoever and instead justified the investigation on the basis of the ATP’s On-Site Offenses or Player Major Offenses rules.Footnote ⁶⁴ It is clear that the ATP reversed its original thinking that the incident in question pertained to safeguarding and went on to dismiss such a notion.

But what of other sports professionals, particularly agents, who enter into agency or advertising agreements with tennis players in a manner that is contractually abusive or is otherwise in violation of restraint of trade rules?Footnote ⁶⁵ Agents owe fiduciary duties to their clients upon entering into the agency agreement, these being contractual and statutory,Footnote ⁶⁶ as well as common law-based. Good faith and loyalty are among these. In addition, prior to entering the agreement, the agent negotiating with a child, or even an adult athlete, must make truthful representations. Besides this contractual realm, however, it is obvious to this author that other stakeholders have a duty to address unequal and unhealthy/predatory athlete–agent relationships as part of their ordinary safeguarding commitments.

1 Introduction

Tennis, like all sports, takes the maintenance of integrity in all its events with the utmost seriousness. Tackling the issues of corruption and doping, which this chapter focuses on, has been a cornerstone of the approach adopted by the governing bodies of tennis for a significant period. Corruption issues, where a player, coach or official might contrive some or all of a match in a variety of ways for a financial return were first investigated by the Tennis Integrity Unit (TIU) in 2009 and managed under the Tennis Anti-Corruption Program (TACP). The International Tennis Federation (ITF) has dealt with doping matters for far longer under the Tennis Anti-Doping Program (TADP). In December 2020, the International Tennis Integrity Agency (ITIA) was formed. It is a private company limited by guarantee and without share capital with a registered office in the United Kingdom. The ITIA is an operationally independent organization with the aim of addressing integrity issues in tennis. On January 1, 2021, it took over responsibility for investigating and prosecuting corruption matters from the TIU and took over responsibility for investigating and prosecuting doping matters from the ITF a year later.

The ITIA employs over forty individuals and is led by a CEO, currently Karen Moorhouse. There are significant teams investigating breaches of the TACP and TADP, analyzing data and addressing education. The ITIA is overseen by the Tennis Integrity Supervisory Board, which has nine members and is independently chaired by Jennie Price CBE. Of those members, four are from each of the tennis governing bodies in membership of the ITIA, being the ITF, the Association of Tennis Professionals (ATP), the Women’s Tennis Association (WTA) and the Grand Slam Board (as the umbrella body for the four Grand Slam tournaments). The remaining five, including the non-executive chair, are independent of the sport of tennis, ensuring that the ITIA’s decision-making is as independent as it possibly could be. Funding for the ITIA is received from the governing bodies.

2 Anti-Doping

The concept of anti-doping is an evocative one. The vast majority of professional athletes, together with all stakeholders in sport from governing bodies, sponsors, fans and others, are firmly opposed to doping. It is cheating and it should have no place in professional sport. Sport is, of course, based upon the principles of fairness and equality. If one athlete seeks to change that through artificially enhancing their own performance, then the basic concepts of sport that so many love will start to break down. It is, therefore, natural that there must be rules to regulate the doping of athletes, and hopefully dissuade them from doping in the first place. Sport has dealt with anti-doping issues before harmonization of the international approach, with the incorporation of the World Anti-Doping Agency (WADA) in November 1999 to regulate anti-doping on a global basis. The WADA brought a consistency to how athletes were held to account and sanctioned. The Prohibited List was born, which set out what the Prohibited Substances were (and the related Prohibited Methods). It categorized them – some were more serious than others, some had legitimate uses, while others did not. It is scientific and technical in nature, making it complicated for all.

In order for the WADA to address this complexity, its rules were necessarily lengthy and detailed. The World Anti-Doping Code itself is currently over 150 pages long. There are several supporting regulations known as International Standards encompassing all areas of anti-doping which also run to hundreds of pages when taken together. This results in a complex but necessary set of harmonized rules for both the regulators and the athletes, as well as a significant amount of case law.

3 Anti-Corruption

While there are corruption risks associated with betting in almost all sports, there are three factors in tennis which create certain vulnerabilities justifying tennis’s robust and early response to the threat of betting-based competition manipulation. First, tennis is, primarily, an individual sport. If one player is corrupted, they can clearly influence the outcome of any match they play. Contrast this with a team sport, say football, where influencing the outcome of a match is far more difficult since you may need to corrupt more players (or the referee), meaning that corrupt acts on the football pitch are more likely limited to spot fixing (unless they involve the referee or possibly the goalkeeper). Second, tennis is not profitable for many individuals trying to make their way up the significant pathway to the elite level of the sport. It is very expensive to compete with numerous outgoings for players, including coaching, travel and accommodation costs, and prize money is limited at the lower levels.Footnote ⁸⁴ These developing players will generally need support from their national federation, club or private sponsorship. Only players in the top 200 or so of either the ATP or WTA tours are likely to turn a profit from their prize money and it is really only a ranking in the top 100 that will start to earn a player more significant sums.Footnote ⁸⁵ That is a stark reality for one of the most popular global sports. Contrast this with football, where the Premier League in England can sustain over 500 professionals at any one time earning, on average, over £3 million a year.Footnote ⁸⁶

Therefore, as tennis players at the lower end of the sport seek to move up the rankings or where they are on the way down, they may struggle to afford their professional lifestyles. The philosophy of the tennis pyramid is entirely merit-based in that players who do not win sufficiently eventually work their way down and out of the professional level of the sport based on their decreasing ranking and their places are taken by emerging players on the way up. This structure may make a small minority of players vulnerable to corruption as they struggle to cling on to evaporating opportunity and financial rewards. While the vast majority of players will say no to a corrupt approach, the financial pressures alongside other personal factors mean a small number may succumb and say yes.

Third, there is huge appetite for online betting on tennis, including point-by-point in-play betting. Those markets exist right down to the lower rungs of professional tennis where male and female players ply their trade on the ITF World Tennis Tour. There are hundreds of ITF World Tennis Tour events per year,Footnote ⁸⁷ meaning numerous events and hundreds of matches taking place every week, with betting markets available for the matches in all of those events. A combination of a small cohort of potentially vulnerable players and available betting opportunities mean the risk of corruption is real.

1 Introduction

Rules are a defining and indispensable feature of sports. As Vamplew writes: ‘It is rules that differentiate one sport from another. It is also rules that distinguish the sophisticated games of sport from the more naïve ones of play.’Footnote ¹ A sport’s rules dictate by whom and how it is played; they seek to ensure that the on-field contest is free from corrupting influences such as doping or match-fixing; and they set standards of behaviour that players – and indeed others involved in the sport – must conform to, both on and off the field of play.

Among other purposes, and depending on the sport, the rules are in place to protect the participants’ safety, ensure fair competition, and maximise the sport’s enjoyment and entertainment value for those participating and spectating. The latter function is particularly important in tennis, a sport which places an emphasis on player decorum to maintain its character and aesthetic appeal to participants, spectators and sponsors. Lake describes tennis as ‘a sport characterized and self-regulated by an unwritten code of sportsmanship and restrained gentlemanly behavior since its inception in the mid/late nineteenth century’.Footnote ² As Lake points out, ‘key aspects of the traditional code of conduct were modelled on British amateur ideals’.Footnote ³ The historical development of tennis was grounded in its middle-class roots, and the behavioural and aesthetic expectations of the sport continue to reflect this: ‘The cultural expressions of upper-class taste sought by the most aspirational upper-middle-class players had a lasting impression upon the sport. From its very beginnings, principally because of its noble heritage … and also due to its earliest upper-class enthusiasts, lawn tennis attracted those seeking to improve their social positions.’Footnote ⁴

This chapter looks at the rules governing participant behaviour that are contained in the International Tennis Federation (ITF) World Tennis Tour Code of Conduct (hereinafter, the ‘Code’).Footnote ⁵ The Code is the principal basis for disciplinary action in tennis,Footnote ⁶ with some variations where a matter falls under the jurisdiction of the Association of Tennis Players (ATP), the Women’s Tennis Association (WTA) or the organisers of the four Grand Slam tournaments, with each having their own ‘Rulebooks’.Footnote ⁷ The Code augments and operates alongside the ITF’s ‘Rules of Tennis’,Footnote ⁸ which ‘constitute and define what counts as playing’ tennis.Footnote ⁹ Foster refers to the rules of the game as ‘lex ludica’, the composition, adjudication and enforcement of which are matters almost entirely within the control of a given sport’s governing bodies. The Court of Arbitration for Sport (CAS), for example, does not generally accept appeals or otherwise interfere in disputes over the interpretation and enforcement of these rules.Footnote ¹⁰ Sports governing bodies therefore form a kind of ‘private government’,Footnote ¹¹ and the ITF enjoys great power in the devising, promulgation and enforcement of its rules, including the Code.Footnote ¹²

2 The Code

The ‘Rules of Tennis’ acknowledge the need to strike a balance between maintaining tradition and the development of the sport. This is set out explicitly in the ‘objectives’ cited in Appendix XIII, which state that the ITF is committed to:

This idea of ‘[p]reserving the traditional character and integrity’ while ‘encouraging improvements’ is therefore central to the regulation of tennis. The Code is a key means to achieving this; its purpose is set out in Article I(A) as follows: ‘The International Tennis Federation promulgates this Code of Conduct … in order to maintain fair and reasonable standards of conduct by players, Related Persons, Covered Persons and the organisers of Men’s and Women’s ITF World Tennis Tour tournaments, and to protect their respective rights, the rights of the public and the integrity of the Sport of Tennis.’Footnote ¹⁴

Serious integrity breaches are beyond the scope of the Rules of Tennis or the Code (and of this chapter).Footnote ¹⁵ Until 2021, the ITF (in conjunction with the WTA, ATP and Grand Slams) oversaw the Tennis Integrity Unit, which administered the integrity rules related to doping, match-fixing and other forms of corruption. From 2021, this is the responsibility of the International Tennis Integrity Agency (ITIA), which describes itself as ‘an independent body established by the international governing bodies of tennis to promote, encourage and safeguard the integrity of professional tennis worldwide’.Footnote ¹⁶ To this end, the ITIA administers the Tennis Anti-Corruption Program (TACP) and the Tennis Anti-Doping Program (TADP). Breaches of the integrity rules can have serious consequences for the offender, including large fines and lifetime bans from participation in the sport. Because of this, there are appeals mechanisms in place, which involve independent tribunals and the potential for an appeal to the CAS. It should be noted that the behaviours captured by these codes may also comprise criminal offences.

Contravention of the Code can lead to the imposition of penalties. These range from in-game sanctions (warnings, points penalties, forfeiture of games or even matches) to (usually more severe) out-of-game punishments, such as fines, disqualification from tournaments, suspensions or even participation bans. Although this chapter is concerned primarily with on-court player misconduct, it is important to note that the applicability of the Code goes well beyond this, both in terms of the conduct it captures and the ‘covered persons’ who are subject to it. This breadth of application can be seen in the case of Ilie Năstase, who was punished in his capacity as Romanian Fed Cup captain for misconduct in the build-up to and during a home tie against the Great Britain team in April 2017 in Constanta, Romania.Footnote ¹⁷ The misconduct comprised: a comment made in relation to Serena Williams’s pregnancy that the ITF alleged was ‘unethical, unprofessional, unacceptable, offensive, derogatory, and may be interpreted as racist’; repeated and unwelcome sexual advances towards GB team captain Anne Keothavong; alleged intimidation of the GB players;Footnote ¹⁸ repeated abuse of the media; repeated accusations of umpire bias during the match; and abusive language directed at the umpire and the GB team.Footnote ¹⁹

At a hearing before the ITF Internal Adjudication Panel (IAP) in July 2017, Năstase was found guilty of several breaches of the Fed Cup Welfare Policy, which reproduced in identical language the behavioural standards set out in the ITF Code of Conduct’s Welfare Policy.Footnote ²⁰ The IAP imposed a fine of $10,000 and a two-part suspension. The first part of the suspension applied to Năstase’s attendance at ITF events and was for one year and eight months. The second part of his suspension related more narrowly to his ‘acting in an official capacity’ at ITF-sanctioned events and was for the longer duration of three years and eight months. Năstase appealed the decision of the IAP to the Independent Tribunal, which upheld the original decision, but altered the penalty. The fine was doubled (from US$10,000 to US$20,000), but both periods of suspension were reduced by around eight months, to one year and three years, respectively.

3 Indiscipline and the Rising Popularity and Commercial Success of Tennis

Two observations should be made about the misconduct of Jeff Tarango described above. First, it was out of character; he had not received a Code violation before the events described above, and he never did in his subsequent tennis career. Second, it came at or towards the end of the high point of bad behaviour in tennis. In the 1970s and 1980s, tennis had witnessed the outspoken and iconoclastic antics of players such as John McEnroe, Jimmy Connors and Ilie Năstase. Lake notes that these three players, whom he refers to as the ‘bad boys’ of tennis, were also apt to be crowd favourites, and thus an inevitable crowd draw.Footnote ³⁹ The increasing popularity of tennis brought commercial opportunities, and what Lake refers to as ‘the commodification of “bad boy” tennis’ was at least partly responsible for the increasing popularity of the sport in the 1970s and 1980s.Footnote ⁴⁰

4 Adjudication and Enforcement

Reinstating Năstase was an egregious example, but it illustrates the point that adjudication and enforcement of the Code can be as important as its substantive contents.Footnote ⁵² Studies have suggested that ‘home advantage’ could contribute to inconsistent decision-making by tennis officials,Footnote ⁵³ and this potential for bias extends to disciplinary matters.Footnote ⁵⁴ As I have written elsewhere, popular opinion and media representations of players may influence the disciplinary action taken in relation to certain players:

The significance of enforcement practices independent from the substantive rules has importance beyond any implicit bias on the part of the officials. Some of the Rules of Tennis are routinely broken without any consequence for the offending players. For instance, a study of Grand Slam matches by Kolbinger, Großmann and Lames found that time rule violations occurred in relation to 58.5 per cent of serves (i.e. beyond the 20 seconds permitted between points), with only 0.1 per cent of these violations penalised by the umpire.Footnote ⁵⁶

As long as it is applied consistently, this deviation from the law on the books is unlikely to prove controversial. But the appropriateness of ‘temporal variance’ in sport, whereby different rules are enforced in different ways at different points in a match, is more divisive. Berman discusses temporal variance in the application of the ‘foot fault’ rule in the 2009 US Open semi-final match between Serena Williams and Kim Clijsters. In this match, Williams was penalised for a foot fault by stepping over the baseline when serving. In arguing with the chair umpire about this, Williams was given a Code violation which ultimately resulted in her losing the match. For Berman, a minor infraction such as a foot fault should not be called at crucial points in a tennis match.Footnote ⁵⁷ For Standen, however, this variance in the enforcement of the rules is never appropriate.Footnote ⁵⁸

5 The Case of Grunting

The practice and treatment of ‘grunting’ in tennis has also proven a controversial topic in recent decades. Aside from often-expressed aesthetic objections to grunting, there are legitimate sporting reasons to be concerned about the practice. Although some studies point to grunting as a useful – even necessary – technique in tennis,Footnote ⁵⁹ other research shows that it could affect the opponent’s anticipation of the ball trajectory, and that this could confer an unfair competitive advantage over the opponent.Footnote ⁶⁰ This is potentially contrary to Rule 26 of the Rules of Tennis, which provides: ‘If a player is hindered in playing the point by a deliberate act of the opponent(s), the player shall win the point’, going on to say that an unintentional hindrance will result in a replay of the point. In addition to potentially being captured under the Rules of Tennis, grunting could also fall foul of Article IV(L) of the Code, as an example of ‘unsportsmanlike conduct’.

Grunting has been happening in tennis since at least the 1970s, with Jimmy Connors a noted practitioner, but it became something of a ‘moral panic’ when young female players like Monica Seles started grunting in the late 1980s. The noises made by Seles during her 1992 Wimbledon semi-final win over Martina Navratilova led to complaints from her opponent and negative media coverage for Seles,Footnote ⁶¹ and prompted a newspaper report that read: ‘Few would deny that the sound of Seles is one of the least aesthetic features of the sport. Though far removed from John McEnroe’s obscenities, Seles’s constant stream of exclamations, a cross between ‘Je t’aime’ and Tarzan, is offensive to the ears of spectators and opponents alike.’Footnote ⁶² For many, this juxtaposition of sexualisation (the reference to the Serge Gainsbourg and Jane Birkin song ‘Je t’aime’) and masculinisation (the reference to Tarzan) illustrates the gendered and sexist nature of the debate about grunting in tennis. Stahl suggests that ‘efforts to police the sound reinscribe weakness onto femininity’, and that this ‘weakens her performance for the pleasure of the spectators and the neutralization of a competitive advantage’.Footnote ⁶³

Grunting continues to be a point of contention. During Wimbledon in 2009, the loud grunts of Portuguese player Michelle Larcher de Brito drew attention and complaints from both spectators and opponents. Although there was significant discussion about the possibility of implementing measures to control excessive grunting, Larcher de Brito was not formally penalised for her grunting.Footnote ⁶⁴ Three years later, the WTA announced that it was working with the Grand Slam tournaments and the ITF to ‘drive excessive grunting out of tennis’.Footnote ⁶⁵ Despite considerable attention devoted to the subject, and the potential to use both the Rules of Tennis and the Code to combat it, no prominent player has been disciplined for grunting. There are no records of the hindrance rule being used as a response, nor are there any recorded instances of a player being given a Code violation for grunting.

6 Changes to the Rules

As Lumer notes, sports’ rules and their enforcement are constantly evolving to meet the expectations of players and others: ‘The rules of the various sports games are reformed constantly in practice … or formally by the respective sports association. Usually, the reason for such reforms is raising social or moral desirability of the games: to make them more exciting or to adapt them to the individual preferences.’Footnote ⁶⁶ Given its adherence to tradition, it is perhaps unsurprising that rule changes in tennis are a relative rarity, but developments in relation to on-court coaching and the Wimbledon dress code are recent standout examples where amendments have been made.

1 Introduction

Sports governing bodies (SGBs) are normally entities in a position of regulatory monopolies that simultaneously occupy the dominant position on the organisational market for their sport. The conflict of interest created by such conflation of regulatory and commercial functions enables them to use their regulatory powers to protect their commercial dominance by imposing various market restrictions on actual and potential commercial rivals, players and investors. Unlike many other sports, the restrictive regulatory rules that govern professional tennis have never been tested under the European Union’s competition and free movement laws. The reasons for this can be traced back to the culture of compliance resulting from the inadequate governance standards, including issues with representation, transparency and accountability. The same reasons are the likely culprit behind the adoption and maintenance of Association of Tennis Professionals (ATP) restrictions on the economic activity of some groups of stakeholders in the tennis industry. Such regulatory restrictions emanating from SGBs are not necessarily illegal in the EU law order: the analytical framework supplied by the Meca-Medina case in competition law,Footnote ¹ and the functionally equivalent Gebhard caseFootnote ² concerning freedom of movement, can be utilised by private regulators to defend their prima facie illegal rules, rendering them compliant if they satisfy certain requirements. To benefit from these judicially constructed justifications, rules that impede economic activity must be intended for the attainment of legitimate objectives in the public interest, inherent in, and proportionate to those objectives.

This chapter will test two distinct ATP rules for their compliance with EU competition law and free movement as set out in the Treaty on the Functioning of the European Union (TFEU or the Treaty) and elaborated in the jurisprudence of the Court of Justice of the European Union (CJEU or the Court). They include rules and practices that restrict access to the market for tournament organisers and therefore hinder additional commercial opportunities for players, and discriminatory distribution of wild-card entries for the professional tennis tournaments. Before diving into the analysis, we will first address relevant governance issues to briefly explain the regulatory environment that enabled the adoption of the restrictive rules in the first place. The applicable legal framework and the main case law will then be detailed and lead into the discussion on the legality of the two selected ATP rules.

2 Good Governance Standards in Light of EU Law and Policy

Monopolistic private regulation stands in contrast to the competitive private regulation in which multiple private regulatory schemes compete for members on the basis of price and quality. Tennis belongs to neither of these categories. It is governed neither by a single global regulator, nor multiple regulators competing for members on the same segment of the market. As commented by Begović, ‘global tennis governance resembles a network rather than a vertical-based organizational structure’.Footnote ³ The ATP, Women’s Tennis Association (WTA) and the International Tennis Federation (ITF) have split the areas of regulatory competence and market among themselves, but closely cooperate on issues such as the international tennis calendar, ranking system and criteria concerning entry to tournaments. The European Council recognised the independence of SGBs and their right to organise themselves through appropriate associative structures in the way they see fit.Footnote ⁴ However, this right is not unfettered: in EU sports law and policy, it is conditional upon respect for law and principles of good governance, including transparency, democracy, accountability and proper representation of all affected stakeholders.Footnote ⁵ The European Union’s emphasis is therefore not on the form of the organisational model, but on the standards of governance that exist within the chosen model in its internal dimension, and the respect for law in its external dimension.Footnote ⁶

One of the very central aspects of any governance structure is the composition of its main decision-making boards. It is surprising that there are no (publicly available) rules specifying the composition, procedure and powers of the various ATP bodies. When it comes to tennis governance, the lack of transparency surrounding deliberations and agenda of the decision-making bodies makes any independent governance report, and therefore any criticism of the system, difficult. This may well be one of the reasons for the chronic lack of external scrutiny by the media and certainly explains why many players do not truly understand the tennis governance ecosystem and willingly accept the rules that might be working to their own detriment. The reference to their ‘privilege’ instead of right to participate and vote in the ATP, as enshrined in Rule 1.21 of the ATP Rulebook, is illustrative of the role they are assigned to play in the governance of their sport. In the ATP, while players are its most important stakeholders, they do not have a decisive influence. The ATP Players Advisory Council, which consists of nine current players, a coach and an alumni player, is given a consultative rather than a decision-making role.Footnote ⁷ This is seemingly compensated by the fact that the Council has the power to elect its representatives to the ATP Tour Board of Directors. The Board of Directors is composed of all-white male members. It consists of four player representatives and four tournament representatives, and in case of a voting tie between these two groups, the Chairman casts a decisive vote.Footnote ⁸ The current Chairman of the ATP, Andrea Gaudenzi, also serves on the Board of Directors of the ATP Media (the global sales, broadcast production and distribution arm of the ATP World Tour rights) and the ATP Data Innovations. The latter is a joint venture between the ATP Tour and ATP Media initiated by Gaudenzi in his first term as ATP Chairman, to manage and commercialise data including betting, media and performance. This represents a glaring conflict of interest in favour of the tournaments under the aegis of the ATP Tour Board of Directors.

Finally, it must be noted that the top players, as well as players from Europe and North America, are overrepresented in the ATP Players Advisory Council, while other groups are significantly underrepresented. An alternative design idea for the governance of men’s tennis is to separate the tournament and player representative bodies altogether and engage in collective negotiations between the two parties, with equally strong bargaining positions.Footnote ⁹

Whereas the EU economic provisions do not directly address the internal structure of the undertakings, the external economic effects of the rules governing the internal dimension of private regulation are subject to competition law scrutiny.Footnote ¹⁰ The poor governance standards in either case usually produce unfair or badly designed regulatory measures that negatively affect the economic activity of some of its participants. Against this background, we will now turn to the organisational market and applicable TFEU provisions and jurisprudence before evaluating the compliance of the two selected ATP rules with the legal demands set out therein.

3 Access to the Organisational Market for Rival Tennis Tours under Competition Law

4 Wild Cards under the Lens of Article 56 of the TFEU on the Freedom to Provide Services

5 Recapitulation

The key legal concerns regarding the organisation of sporting competitions and provision of professional player services usually stem from the governance structures in which SGBs, with or without a small segment consisting of top contestants, dominate the decision-making process. The rules that emerge from such process are usually heavily tilted in favour of their dominant members. Within the ATP structures, it appears that players – particularly those ranked outside the top 100, as well as players outside Europe and North America – are not properly represented. Without the ability to represent one’s interests in the governance scheme, there is no ability to improve one’s position in the tennis ecosystem. It has been suggested that the two rules discussed in this chapter merely reflect those broader governance issues. Not many professional players would agree to have a wild-card system left to the discretion of tournament organisers, as it inherently enables discrimination. Likewise, most professional players would welcome an opportunity to participate in the alternative tournaments that offer better financial incentives and benefits, especially if they were integrated into the ATP ranking point system, or have a sufficient number of ATP tournaments throughout the year that compete on prize money. The legal criteria laid down in ESL, ISU and MOTOE apply to all SGBs, including the ATP, when it comes to blocking an entry to the organisational market. These cases carry a clear signal from the CJEU that performing regulatory functions by non-public entities entails responsibilities to comply with law and implement good governance standards in terms of the practices, substantive rules and procedural regulations they adopt. Prioritising private commercial goals over public interests, discriminating between players or treating them unfairly might eventually produce a system-changing lawsuit. The best chance for any private regulator to remain unchallenged is to make a genuine effort to improve accountability, transparency, democracy and equal representation of all affected stakeholders on their decision-making boards.

1 Introduction

It may not be apparent in what manner a discussion of ethics will add value to this book and its specialist subject matter. Indeed, non-ethics experts are usually surprised when they realise the range of issues left untouched by normative-based regulation. It is also surprising to learn that ethical rules are no less normative, as are their consequences. This chapter aims to fill the ethical gap that was not touched upon in other chapters in this book. The chapter’s focus shall be restricted to the extensive ethical regulation of the International Tennis Federation (ITF) and hence will not examine equivalent developments in national tennis federations, the Women’s Tennis Association (WTA) or the Association of Tennis Professionals (ATP).Footnote ¹ Given the limited length of the chapter, we shall not cover the 2024 ITF Code of Conduct for Officials, which jointly covers ITF, ATP, WTA and Grand Slam Board. Unlike the ITF Code of Ethics, which applies ‘at all times’, the Code of Conduct applies during official tennis duties.Footnote ² It is hoped that based on the analysis offered in this chapter, readers will be able to appreciate ethical rules in all tennis entities.

The chapter concentrates on the various ethical duties set out in the ITF Code of EthicsFootnote ³ and the consequences that arise from their breach. As will be demonstrated, these duties are of a contractual nature and by extension their breach entails breach of contractual consequences in the form of prescribed sanctions. The chapter goes on to show that while the Ethics Commission enjoys the right to investigate alleged breaches of the Code and impose sanctions where the official in question does not contest the findings of the investigation or the sanction, where the official denies the charges or the sanction, the matter is referred to the ITF’s Independent Tribunal. The Ethics Commission further enjoys authority to assess whether candidates comply with the ITF’s Candidacy Rules.

2 What Are Ethics and Are They Different from Law?

Ethics or ethical conduct is generally conduct that is fair and serves the best available outcome under the particular circumstances. While there is a body of ethical rules that guide social life and inter-personal relations in a non-binding manner (i.e. lying or cheating on one’s spouse), many ethical rules have found their way into the regulatory realm. Tax professionals, certified accountants and lawyers are subject to ethical rules as part of their profession, whether nationally or internationally.Footnote ⁴ To understand why this is so, it is perhaps instructive to briefly examine the key justifications for the regulation of lawyers, namely: the cynical, the client protection and the public interest perspectives. In one of the major reviews of the legal profession in England and Wales in 2004, Sir David Clementi identified the roles justifying regulation of the legal profession, namely: access to justice, maintenance of the rule of law, protection of consumer interests, promotion of healthy competition among well-trained lawyers and promotion of a public understanding of citizens’ rights.Footnote ⁵

Such ethical rules with defined consequences arise for most professional fields, regardless of their classification as regulated ‘professions’ or not.Footnote ⁶

There are several models of regulation for the professions and it is assumed that these models apply also to non-recognised professions, such as the executive, judicial or governing entities and persons of sports governing bodies.Footnote ⁷ These models consist of: rules-based, enforced by a regulatory body; outcomes-based, which relies significantly on personal discretion to achieve fair outcomes (premised on consequentialism and rule-consequentialism); self-enforcement, in the sense that a profession develops ethical rules and procedures that must meet the approval of a regulator; and competitive regulation, which is grounded on enhanced regulation following consultation with the profession.Footnote ⁸

In practice, the professions have been allowed to self-regulate attendant ethical issues and considerations and the same is true with regard to sports governing bodies through so-called lex sportiva.Footnote ⁹ While self-contained entities such as the ITF can devise their own internal ethics rules, the creation of a coherent body of transnational ethical rules is more complex and requires consistent practice over time. A good example is illustrated by the regulation of the impartiality of arbitrators in international arbitral proceedings. While originally an ethical standard whose breach entailed the ridicule of the impugned arbitrator and loss of future work, it is now a hard rule in all arbitral statutes. Article 12(1) of the UNCITRAL Model Law on International Commercial ArbitrationFootnote ¹⁰ posits a general principle in this sense by demanding that an arbitrator ‘shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.’ All institutional rules encompass relevant ethics provisions, in addition to more detailed ethical codes, such as the American Association of Arbitration (AAA) Code of Ethics for Arbitrators and the International Bar Association (IBA) Rules of Ethics for International Arbitrators.Footnote ¹¹ Although it is expected that arbitrators must be impartial and independent, lest the award be set aside under the lex arbitri or refused enforcement at a later stage, there is no single internationally accepted standard of impartiality.Footnote ¹² As a result, while ethical issues are largely driven by institutional codes of conduct which prescribe, among others, the extent of disclosure and possible conflicts of interest, the ultimate arbiter of such issues are the courts of the seat. These in turn are not averse to relying on the standards adopted in institutional rules.Footnote ¹³

There are several theories about the nature of ethical rules and the expected conduct of human actors. We will mention just two here with the aim of facilitating the discussion. Deontology pays less attention to the consequences of one’s actionsFootnote ¹⁴ and elevates one’s adherence or application to a set of rules. Thus, a deontologist will be justified to act immorally if the action is backed by rules, as is the case with lawyer–client confidentiality. Such rules-based confidentiality justifies adherence even if a client’s actions are otherwise illegal. Virtue ethics suggests that unless a person is born virtuous, virtue has to be acquired through acquiring the right habits, in which case both the socio-economic environment and the legal system play important roles in forming a virtuous person.Footnote ¹⁵ The keen reader will perhaps distil many of these theories in the ITF’s Code of Ethics.

3 The ITF’s Substantive Ethical Rules

As will become evident in this section, the ITF’s Ethics Rules concern integrity-related conduct by officials in governance, administrative or official positions (e.g. investigators, umpires). As such, they exclude integrity-related infractions committed by athletes and coaches, all of which are dealt under discreet rules and subject to the jurisdiction of the ITF’s judicial entities.Footnote ¹⁶ The point of reference for our discussion is the ITF’s Code of Ethics (hereinafter, the Code). It expressly builds on the International Olympic Committee (IOC) Code of EthicsFootnote ¹⁷ and best practice.

4 The ITF Ethics Commission

The relatively large volume of integrity infractions by athletes and coaches and the low number of ethical violations by ITF officials has necessitated their diffusion to two distinct bodies. Whereas the ITF’s judicial entities entertain infractions of ITF/International Tennis Integrity Agency (ITIA) regulations by athletes and coaches, the ITF’s Ethics Commission possesses jurisdiction over the conduct of its ‘officials’. While this bifurcation is consistent with the practice of sports governing bodies experiencing large volumes of violations, those with smaller volumes do not set up a discreet ethics commission and hence generally subsume ethical disputes within the jurisdiction of an existing judicial entity. By way of illustration, the Badminton World Federation’s (BWF) Independent Hearing Panel (IHP) is its key dispute settlement body in respect of intra-governance and regulatory/ethical disputes. Under the terms of Article 7.5.1 of the BWF Judicial Procedures, it possesses authority over: (1) integrity and ethics disputes as these arise under the BWF Code of Ethics;Footnote ³⁹ and (2) alleged breaches of the BWF Code of Conduct in respect of actions or omissions by electoral candidatesFootnote ⁴⁰ and elected officials.Footnote ⁴¹ It also encompasses alleged infractions arising from the BWF Code on the Prevention of Manipulation of Competitions and the BWF Para Badminton Classification Regulations in respect of intentional misrepresentation.Footnote ⁴² As the chapter will go on to demonstrate, the ITF’s Independent Tribunal does exercise authority over ethical breaches, but only above a specific threshold.

It should be stated from the outset that while the ITF Code of Ethics confers jurisdiction on the Commission to investigate any infraction of the duties set out in the previous section, where the impugned official entertains a grievance against this process, he or she may ultimately resort to the English courts.Footnote ⁴³ The case would be different where the ITF Constitution or other instrument conferred authority over such issues on the ITF’s other judicial organs. As we go on to show, where an impugned official does not admit a violation under investigation by the Commission, the Chair may among other options refer the case to the ITF’s Independent Tribunal, in accordance with Article 4.3 of Appendix 1 to the ITF Code of Ethics. In the event that such dispute is ultimately referred to English courts, they are bound to construe the Code in accordance with English law.Footnote ⁴⁴

Appendix 1 to the ITF Code of Ethics establishes the Ethics Commission and sets out its mandate. The Commission is an independent body.Footnote ⁴⁵ This in no way suggests that it is a judicial entity or an arbitral tribunal. It simply means that it is independent from other officials or entities within the ITF and that it is under no circumstances subservient to their authority or influence.Footnote ⁴⁶ Even so, the ITF Board appoints the Chair, following which the Chair appoints other members, at least three of whom (inclusive of the Chair) must have a legal background.Footnote ⁴⁷ No member may be removed other than for ‘just cause’. The need for enhanced legal expertise aptly demonstrates that the ITF Code of Ethics has effectively been transformed into the species of legal ethics one finds at lawyers’ bar associations and which bring about legal consequences. In short, these ethical duties are effectively binding duties. The Commission is aided by a Legal Secretary, to whom all communications are directed.Footnote ⁴⁸ The Commission is tasked with oversight of elections and/or appointments to the Board of Directors. This function is both regulatory (i.e. approval of candidate rules) and adjudicatory, particularly in respect of candidate eligibility,Footnote ⁴⁹ or concerning its determination as to whether an ethical duty has been breached.

5 Recourse to the Independent Tribunal and CAS

The procedure provides ample opportunities for non-contentious resolution.Footnote ⁷⁶ The official has fourteen days to respond to the notice of charges. Where the official admits the charges and consents to the proposed sanctions, this will be recorded by the Chair of the Commission in a published decision.Footnote ⁷⁷ Where the official disputes the findings of the investigation and/or the sanctions, the case is referred to the Independent Tribunal.Footnote ⁷⁸ In the event that the official does not offer a reasoned submission to the charges, it is presumed that he or she has not only waived his or her right to a hearing, but also accepted the charges. Consequently, the Commission will confirm the breaches in a public decision.Footnote ⁷⁹

Article 5.3 of Appendix 1 to the ITF Code of Ethics emphasises that while proceedings before the Independent Tribunal are brought in the name of the ITF, the prosecuting party is the Ethics Commission. The latter may act on its own or instruct legal counsel to act on its behalf.Footnote ⁸⁰ Exceptionally, if the official and the Ethics Commission so agree, the case may be referred directly to the CAS, the award of which will be subject to no further appeal.Footnote ⁸¹

The decisions of the Independent Tribunal may be appealed by the official or the Commission solely to the CAS, just like all other decisions of this entity.Footnote ⁸² In the event of an appeal by the official, the respondent will be the ITF and not the Commission.Footnote ⁸³ Appeals against the decisions of the Independent Tribunal are referred to the jurisdiction of the CAS:

6 The Elections and Eligibility Panel

The Ethics Commission enjoys authority over the eligibility of candidates for election to the various positions within the ITF. The Chair and two other Commission members will form a sub-group with oversight of elections and/or appointment to the Board of Directors. This sub-group is known as the Elections and Eligibility Panel.Footnote ⁸⁸ Its functions are:

In certain other sports governing bodies, this task, as well as/or the broader function of assessing applicants, is performed by so-called vetting bodies.Footnote ⁸⁹

Where the Commission is tasked with assessing the eligibility of candidates who have been the subject of criminal convictions, the Ethics Commission is once against transformed into the Eligibility Panel. These issues are regulated by the ITF Constitution, particularly Articles 19(c)(iii) and 21(k) thereof. The role of the Commission is to determine whether the criminal conviction of an ITF official should result in the post becoming vacant.Footnote ⁹⁰ The mere conviction of an ITF official does not automatically entail their dismissal from office. Indeed, the impugned official may plead their case by providing relevant documents and attend a hearing in inquisitorial proceedings if the Commission so determines.Footnote ⁹¹ The Commission shall determine the case by simple majority and provide reasons. Its decision shall be final without recourse to appeal. Its determination, however, can be subject to challenge as a decision of the Board of Directors, in accordance with the ITF Constitution’s provisions on internal arbitration (i.e. through the Independent Panel) and recourse to the CAS (ordinary arbitration procedure).Footnote ⁹²