2.1 Background to Sports Agents in General and Tennis Agents in Particular

While little has been written to date on the law pertaining to professional tennis agency, there are relatively comprehensive works to be found in the literature on the sport of tennis per se, including its societal context and historical evolutionFootnote ¹ – and in some of these publications one does encounter references to tennis agents in particular, with at least one such work dedicating an entire chapter to the subject.Footnote ² As Ruth eloquently expounds, player agents and sports managers have a long history in the realm of tennis, to the extent that the origins of tennis agency can be traced back to, and are actually intertwined with, those of professional sports agency itself. Indeed, whereas much of the attention in the literature (and certainly in legal scholarship) on sports agency has (perhaps understandably) been devoted to popular team sports (and most frequently to football,Footnote ³ as well as the traditional major league sports in North AmericaFootnote ⁴), it is worth recalling that the very first agencies to provide professional athlete representation services originally concentrated their activities on individual sports, and most notably on tennis, alongside golf.Footnote ⁵ This was true of ‘the earliest, most successful, and most historically significant agency’,Footnote ⁶ namely, the US-based International Management Group (IMG), which at its outset in the 1960s preferred to enrol tennis players and golfers as clients over players of team sports.Footnote ⁷ This was in large part due to financial considerations, as it was cheaper to ferry individual athletes to sporting exhibitions than entire teams, thereby making them more versatile in terms of their earning potential, for they could then also generate income from such events at the same time as bringing revenues from product endorsements (i.e. particularly clothing and equipment).Footnote ⁸ And while IMG’s very first clients were golfers,Footnote ⁹ the company’s expansion coincided with the International Tennis Federation’s (ITF) opening of hitherto exclusively amateur tennis tournaments (including the Grand Slam competitions) to professional tennis playersFootnote ¹⁰ and the signing of its first tennis client in 1968 in the form of the world number 1 at the time, the legendary Australian player Rod Laver. In fact, tennis also lay at the root of the well-documented tussle between IMG and its historically closest and similarly renowned competitor, ProServ, whose first clients were Arthur Ashe and Stan Smith, the top two American players at the time. ProServ was founded in 1970 by Donald Dell, the former US Davis Cup captain (and teammate of Ashe and Smith). Dell had received overtures of allegiance two years earlier from IMG’s founder and fellow lawyer Mark McCormack, who was afraid of the potential competition Dell could bring to bear should he decide to venture into the sports agency business on his own account, given Dell’s more sizeable network in the tennis world.Footnote ¹¹ But when contract talks between IMG and Ashe – arranged by Dell – came to nothing, Dell ultimately did just that, agreeing to represent Ashe himself through his own sports management firm, which would specialise in the representation of tennis players.Footnote ¹² In this way, Dell became what one might term the first tennis agent proper, and the arena of professional sports management firms emerged.

IMG and ProServ would go on to dominate this arena for the rest of the century, amassing between them a broad and star-studded array of clients along the way. Among these were the biggest names in tennis of the era (from Bjorn Borg to Martina Navratilova), as well as superstars of other sports (like Muhammad Ali and Michael Jordan).Footnote ¹³ Furthermore, these agencies extended their representation services to other bodies in tennis (such as the Russian Tennis FederationFootnote ¹⁴), and even to tennis events themselves, including Wimbledon, or more precisely the All England Lawn Tennis and Croquet Club (AELTC).Footnote ¹⁵ And, in turn, this also precipitated an expansion of their areas of representation, beyond merchandising and licensing deals and into sponsorship agreements and broadcasting contracts.Footnote ¹⁶ By the turn of the millennium, IMG (which remained the largest sports management agency, dwarfing even ProServ) had represented hundreds of sportspeople and sporting entities and was grossing over a billion dollars a year, with operations in multiple countries across the globe.Footnote ¹⁷ At the same time, a number of other prominent sports agents and management firms had also entered the scene.Footnote ¹⁸

2.2 Types and Roles of Agents in Professional Tennis

Since the dawn of corporate sports agency in the 1960s, the sector has come to be populated by agents with differing backgrounds; commonly legal, but also financial and commercial.Footnote ¹⁹ Many of these work for large-scale transnational agencies such as IMG or Octagon (a successor to ProServ), which provide a range of services to players, entities and event organisers in a variety of sports, including tennis. However, more recent years have also seen the emergence, alongside these ‘all-inclusive’ agencies, of smaller ‘bespoke’ firms, which are focused specifically on tennis representation and talent management, and ‘built around a stable of select player clients’.Footnote ²⁰ These are often established by players themselves, such as Roger Federer, who left IMG together with his long-lived agent to found the Team 8 Global management firm in 2012.Footnote ²¹ In addition, agency and representations services may also be provided, to one extent or another, by specialised law practices, accountants, financial advisers, investment companies and sports marketing firms, or some combination of them.Footnote ²² Indeed, agents may perform a variety of different roles in professional tennis. When it comes to player agency, as was already alluded to, contract representation constitutes the tennis agent’s core activity, including contracts of endorsement and sponsorshipFootnote ²³ and licensing (e.g. for exhibitions or of image rights), as well as negotiations with coaches and (significantly, in terms of both the potential sporting and legal implications) for entries and appearances at tournaments.Footnote ²⁴ At the same time, player agents may also (or possibly instead) provide tennis players with a range of managerial and administrative services, such as career counselling and advice, handling sporting schedules, travel and accommodation arrangements, or press and social media relations.Footnote ²⁵ Furthermore, tennis agents may also, or alternatively, represent other bodies in the sport, or even play a role in the promotion and management of tournaments, including the solicitation of sales and sponsorship therefor, as well as television rights.Footnote ²⁶ In so doing, the agent’s primary function is to maximise revenues for the client (or ‘principal’), through the deployment of specialist knowledge and expertise, which the principal does not necessarily possess.Footnote ²⁷

As far as the market on which tennis agents operate is concerned, while the sport itself continues to generate ever-larger profits, earning multiple millions from broadcasting rights and ticket sales to one Grand Slam event alone,Footnote ²⁸ the size of the tennis agency sector would appear to remain relatively limited. Admittedly, statistics on sports agency are hard to come by, but, according to one rare study on sports agency that was produced for the European Commission in 2009,Footnote ²⁹ there were an estimated twenty-two official tennis agents active in the European Union across eleven Member States at that time.Footnote ³⁰ This is likely due in part to the tendency for individual players to engage one of the larger management firms,Footnote ³¹ combined with the fact that the higher earning potential is concentrated in the top-ranked tennis players, with a wide financial gap existing between these more dominant players and those ranked outside the top 100.Footnote ³²

3.1 Domestic Rules

Depending on the given jurisdiction, there may exist an assortment of domestic rules of specific application to the work of tennis agents. More precisely, there may be special rules relating to sports in general or tennis in particular that are material to the tennis agent’s vocation, which might derive from contract-based regulations and in some cases could even be laid down in statutory law. Alternatively, in other countries there may be no lex specialis on the matter at all. Furthermore, of those jurisdictions where pertinent sports-related rules do exist, the scope of such rules may be limited to certain aspects of the conduct of agents and provision of agency services in the tennis sector, or could even extend to tennis agency as a lawful occupation.

To depart from the non-specialised end of the regulatory spectrum, there are many countries in which no specific provision has been made for professional tennis agency, either in national law or by means of private regulations of national tennis governing bodies. Take the United Kingdom, for example: not only is there an absence of statutory legislation on the subject there,Footnote ³³ but the regulations of the national governing body in Britain (the Lawn Tennis Association, LTA) are also silent on the matter.Footnote ³⁴ Obviously, this is not to say that the activities of tennis agents on British soil are entirely unregulated. On the contrary, being registered as self-employed workers or as businesses, tennis agents in the United Kingdom are officially recognised in one way or another by government authorities and, as such, must adhere to all attendant laws and statutes.Footnote ³⁵ These will comprise not only applicable labour and/or company laws, but also statutes like the Fraud Act 2006 or the Bribery Act 2010, to name but just two. In addition, as will be further elaborated in the next sub-section, the common law of agency has developed an intricate body of legal authority covering the activities of intermediaries, including those active in the sport of tennis. However, beyond such regulations, legal rules specially applicable to tennis agency – whether of state origin or of a private nature – are essentially non-existent in Britain.Footnote ³⁶ And the same can be said about various other countries one might care to mention, including civil law jurisdictions such as Germany and the Netherlands.Footnote ³⁷ In many of these jurisdictions, one finds statutory regulations on private employment agencies and job placement services that may be of application to the business of sports agents as they are to other forms of agency;Footnote ³⁸ but apart from these laws the activity has not been the object of any particular regulatory attention.

At the other end of the spectrum, there are other (if apparently fewer) countries in which one encounters both national legislation specific to sports agents (i.e. including tennis agents) and relevant regulations adopted by national tennis associations or federations. The prime example in this respect is France, where the sports agent’s profession is primarily regulated in the Code du sport. This special codified statute, created in the 2000s, contains various provisions applicable to sports agents, which lay down strict requirements and standards on sports agency.Footnote ³⁹ Most notable among these is the requirement for individuals to hold an official licence in order to legally carry out sports agency activities in the French jurisdiction.Footnote ⁴⁰ Unlicensed individuals who undertake sports agency activities in France face a possible criminal penalty of two years’ imprisonment along with a fine of at least €30,000,Footnote ⁴¹ and this may also be accompanied by a temporary or even permanent ban on obtaining the licence and carrying on the occupation.Footnote ⁴² At the same time, the issuance of said licence and the precise conditions attached thereto are assigned by the Code du sport to competent national sports federationsFootnote ⁴³ – which in the case of tennis corresponds to the Fédération française de tennis (FFT). For this purpose, the FFT constitutes a Sports Agents Commission within the meaning of the Code du sportFootnote ⁴⁴ and maintains a list of sports agents authorised to exercise the profession in the realm of tennis.Footnote ⁴⁵ In order to obtain the requisite licence from the FFT, the applicant must, among other things, pass an entry examination.Footnote ⁴⁶ This exam consists of two parts, the first of which is designed to assess the candidate’s aptitude to exercise the sports agent’s profession (particularly in terms of their cognisance of relevant social, legal and sporting matters), while the second tests their knowledge of regulations enacted by the FFT, by international federations of which the FFT is a member, by the Association of Tennis Professionals (ATP) and by the Women’s Tennis Association (WTA).Footnote ⁴⁷ Applicants must also meet strict conditions of integrity, which prohibit access to the profession inter alia to persons ‘convicted of acts contrary to honour, probity or rules of morality’Footnote ⁴⁸ or ‘affected by personal bankruptcy or a ban on management’.Footnote ⁴⁹ Additionally, once licensed, FFT agents must comply with several good practice rules, including reporting obligations (such as the duty to regularly communicate activity reports, accounting documentation and contractual agreements to the FFT),Footnote ⁵⁰ as well as conflict-of-interest-related requirements (and particularly the duty to refrain from the so-called double mandat, or dual representation).Footnote ⁵¹ Failure to do so can result in disciplinary sanctions being imposed by the FFT on the licensed agent, including pecuniary fines as well as temporary suspension, if not permanent revocation of their licence.Footnote ⁵² Thus, the applicable sports law in France, as enshrined in the Code du sport and transposed in the FFT’s Règlement des agents sportifs, not only prescribes rigorous requirements for access to the tennis agent’s profession, but also couples these with stringent professional conduct regulations.

France is certainly not alone in having regulations governing the occupation and activities of tennis agents – although other states that have also introduced statutory legislation specifically on sports agency while delegating its promulgation in specie to regulatory authorities for the sport concerned, such as Hungary and Italy,Footnote ⁵³ have adopted a registration-based model.Footnote ⁵⁴ In Italy, for instance, a budgetary law of 2017Footnote ⁵⁵ established the requirement for all sports intermediaries to be registered with the National Olympic Committee (the Comitato Olimpico Nazionale Italiano, CONI) and, in turn, with the relevant national sporting federation, which for tennis is the Federazione Italiana Tennis e Padel (FITP). Contracts entered into by professional sportspeople with unregistered agents would thereafter be deemed null and void.Footnote ⁵⁶ An individual’s registration is subject to successful completion of a habilitation exam intended to determine the candidate’s suitability, especially with regard to knowledge of the sport and attendant law (in the same vein as the French licence exam).Footnote ⁵⁷ To be eligible to take this qualifying test, applicants must be in possession of a secondary school diploma and free from certain criminal convictions (again, along similar lines to the French conditions of integrity).Footnote ⁵⁸ Accordingly, only agents entered in the FITP’s register are permitted to operate as ‘agents of FITP athletes’Footnote ⁵⁹ and those associated tennis players are only allowed to enlist the services of FITP-registered agents.Footnote ⁶⁰ For their part, the FITP regulations stipulate a series of obligations and rules of conduct to which registered tennis agents must adhere, from general principles of honesty, good faith and professional diligenceFootnote ⁶¹ to accounting and fiscal duties,Footnote ⁶² as well as the duty to avoid conflicts of interest with their clients and FITP members in general.Footnote ⁶³ Furthermore, upon registering, the agent is bound to respect CONI’s ‘Code of sporting conduct’.Footnote ⁶⁴ The infringement of any of these requirements may give rise to disciplinary and pecuniary punishments administered by the FITP’s federal tribunal,Footnote ⁶⁵ which can include suspension of the agent from the register.Footnote ⁶⁶ Furthermore, players themselves can be sanctioned for making use of unregistered or suspended agents.Footnote ⁶⁷

As far as the United States is concerned, arguably the situation lies somewhere in the middle of the two extremes just described. In addition to general rules of the law of obligations that are applicable to fiduciary relationships (comparable to those applicable in the United Kingdom under the English common law of agency), there do exist statutory regulations on sports agents’ activities (including in the field of tennis) at state level, which are modelled on the National Conference of Commissioners on Uniform State Laws’ Uniform Athlete Agents Act (UAAA), adopted in 2000 and last amended in 2019.Footnote ⁶⁸ Yet, while these model rules have been enacted in most States of the Union, they have not been introduced in all fifty and, moreover, they are specifically targeted at sports agents representing student (i.e. amateur) athletes.Footnote ⁶⁹ It is true that the involvement of agents in the collegiate context stretches up to the intersection of amateur with professional sports (i.e. when college athletes complete their university studies and look to turn professional),Footnote ⁷⁰ but the point remains that the UAAA only covers agents who recruit, advise or manage student athletesFootnote ⁷¹ – and this would appear to be reflected in most of the individual state enactments.Footnote ⁷² However, individual states are of course at liberty to adapt the UAAA when implementing it into their own laws, and some have done so. The California athlete agents regulation (now known as the Miller-Ayala Act), for example, is not limited to amateur athletes, but rather applies to sports agents in their dealings with both student athletes and professional athletes.Footnote ⁷³ In addition, the Miller-Ayala Act provides greater substantive requirements and stricter sanctions for infringements as compared to those envisaged in the UAAA, with agents found to have violated the Act being subject to a mandatory revocation of their entitlement to operate in the state for at least one year, not to mention punishment by a fine of up to $50,000 and/or imprisonment of up to one year.Footnote ⁷⁴ Similarly, while the vast majority of states that have implemented the UAAA have adopted the registration system and accompanying integrity standards and duties that are foreseen by the UAAA,Footnote ⁷⁵ not all have opted to impose registration requirements on sports agentsFootnote ⁷⁶ and even those that have may have chosen differing modalities (such as the need to register with a Secretary of State, or a department of professional registration, or a labour commission).Footnote ⁷⁷ Still, these registration systems do converge around the position of the UAAA that, unlike in Italy, the passing of an examination does not form part of the requirements for registration. Instead, certification is based on an individual’s prior training and experience, along with an absence of convictions for crimes involving moral turpitude and the like.Footnote ⁷⁸

In short, then, there exist sharply contrasting regulatory approaches of relevance to the profession and activities of tennis agents, not only between but even within individual countries. For reasons of scope, we have limited ourselves to looking at a few prominent examples, but these alone serve to demonstrate some of the salient differences in this respect. In particular, it has become apparent that jurisdictions diverge in terms of whether to specifically regulate the sports agency business at all; whether to regulate only the conduct of the profession or also access to it; whether to make such access subject to a system of licensing or registration, based on an entry examination or some other criteria; and which sanctions to impose in the event of non-compliance. These kinds of disagreements are certainly not confined to the sport of tennis, but clearly they do impinge upon it as in other sports.Footnote ⁷⁹

3.2 Transnational Rules

Before turning our attention to the contracts that agents enter into with professional tennis players, the place of the regulations of international governing bodies in the regulatory panorama of tennis agency should also be acknowledged. Indeed, there are some rules of significance to tennis agents contained in the ITF Code of Conduct, the ATP Rulebook and the WTA Rulebook. Admittedly, these are not so extensiveFootnote ⁸⁰ and for the most part are applicable to agents insofar as they fall under the broader category of ‘related persons’ to players (i.e. along with coaches, physicians, family members, etc.), rather than dealing distinctly with their particular activities.Footnote ⁸¹ Nevertheless, these regulations do provide some standards of behaviour with which player agents (among others) are bound to agree and to comply in providing their services during the tournaments concerned. In particular, as persons assisting players in their participation in tennis tournaments, agents are under an obligation to refrain from engaging in aggravated or abusive behaviour or other conduct that is contrary to the integrity of the game of tennis.Footnote ⁸² Infractions of these rules can lead to an agent being stripped of their tournament accreditation and denied access to any tournament governed by the given association, potentially even permanently.Footnote ⁸³ Being established by private regulatory authorities, these rules are grounded not in state laws but in contracts, meaning their enforcement is also necessarily contractual. On the other hand, because the rules laid down by the ITF, ATP and WTA – to which players and national tennis federations also agree to adhere – are inherently transnational, unlike domestic legislation they are not territorially limited (or at least not in and of themselves), and are therefore applicable to the actions of tennis agents across different jurisdictions.Footnote ⁸⁴

4.1 The Law on Player–Agent Contracts

In general terms, unlike the law on tennis agency as a profession, there are greater similarities in the regulatory approaches taken to tennis agency contracts across distinct jurisdictions. While the specific rules applicable to player–agent contracts and sources thereof may well differ, a broad concordance can be identified in the substance of the laws governing such contracts, and particularly in terms of the standards to which agents are under a duty to adhere in their contractual dealings with players. In fact, it was already seen that where there exist sports laws governing the activities of tennis agents, such laws impose duties of good faith and conflict-of-interest-related obligations on them, including in their contractual relations with players. And the same is true of the general rules of private law that are applied to player–agent contracts in different countries.

In the case of civil law jurisdictions, the overarching, mandatory principle of good faith under general contract law (which is often enshrined in the national civil codeFootnote ⁸⁵) governs the negotiation, formation, construction, interpretation and execution of contracts, including contracts of agency, and being a ‘super-provision’ this obviously has wide-ranging applications and far-reaching implications in and of itself. There may also be special rules of civilian contract law applicable to agency contracts, however. In Germany, for example, the civil code also contains a number of provisions covering brokerage contracts, such as rules on brokerage fees.Footnote ⁸⁶ Similarly, the French civil code comprises a separate title on ‘mandates’ whereby a party confers upon an authorised representative the power to act in their name.Footnote ⁸⁷ This prescribes certain obligations for the representative (not to mention the mandator), like the obligation for the agent to report to the mandator on their management of the mandate.Footnote ⁸⁸ As for common law countries, there exist comparable obligations – which include an expansive utmost good faith obligation – under predominantly precedential rules of agency and fiduciary relationships.Footnote ⁸⁹ Indeed, while the requirement to act in good faith is not a typical feature of the common law of contract in general, it famously is of the law on fiduciary relations in particular. Thus, as already alluded to, both the English and American legal systems recognise a common law doctrine of agency controlling the principal–agent relationship, by virtue of its fiduciary nature as one where an agent is given authority to act on behalf of a principal in their dealings with third parties.Footnote ⁹⁰ The fiduciary duty of good faith requires the agent to act in accordance with general private law obligations of loyalty, honesty and openness, which fundamentally entail that fiduciaries must pursue their beneficiary’s interest and place it above their own.Footnote ⁹¹ In the words of Lord Justice Jacob in the English case of Imageview Management Ltd v. Jack (which involved a football intermediary):

More particularly, it follows from these long-standing and well-established standards of fidelity that the sports agent is duty-bound to disclose to their athlete-client any real possibility of a conflict of interest that may arise in the agent’s performance of his representative role, and to obtain the client’s consent to said conflict before proceeding.Footnote ⁹³ While this does not go as far as the outright ban on dual representation provided under the French sports law code,Footnote ⁹⁴ it does mean that as a matter of principle the common law ‘denies the right of an agent to assume any relationship that is antagonistic to his duty to his principal’.Footnote ⁹⁵

4.2 Legal Issues Arising from Player–Agent Relations in Professional Tennis

Following directly on from the previous point, one of the most notable legal issues that can arise from player–agent relations is that of conflicts of interest on the part of agents; a potential issue that is all but inherent in the multitude of services that player agents provideFootnote ⁹⁶ and one that has only grown in magnitude since the advent of large-scale sports agencies.Footnote ⁹⁷ As regards specifically professional tennis, such conflicts can arise not only due to the fact that (especially larger) agencies usually represent a plurality of players, whereby serving the interests of one player may come at the expense of another,Footnote ⁹⁸ but also because (as already mentioned) tennis agents have also expanded their operations into the management of tournaments, which can give rise to legal questions if they wish for players they represent to appear in the tournaments they promote.Footnote ⁹⁹ Both of these scenarios arose in the case of Lendl v. ProServ Inc.,Footnote ¹⁰⁰ for instance, which concerned an action brought by Ivan Lendl against ProServ, his erstwhile representative agency, on the ground of breach of fiduciary duty. Lendl argued that ProServ had engaged in practices amounting to a conflict of interest in two respects: first, by signing him up to merchandising agreements and sporting events together with other tennis player clients as a way of securing more income for those clients, but on less advantageous conditions for himself; and second, by having him participate in events managed by ProServ for fees that were lower than the market rate he could command, in order to acquire greater profits for themselves.Footnote ¹⁰¹ While the case was ultimately settled out of court, it provided an early example of the contractual disputes between players and agents that can ensue under the common law of agency. Furthermore, the added role of player agents in the promotion of tennis tournaments might also give rise to issues under competition law. Since tennis agents (and again particularly all-inclusive agencies) can effectively attain monopoly power in their representation of top players, this may result in a spill-over monopolisation of their management of tournaments, to the illegal exclusion of actual and potential competing tournaments.Footnote ¹⁰² As Hainline puts it, ‘[w]ith this power, the player agents can determine the success of any tournament by deciding what top ten players will participate in a given event. If the players follow their agent’s advice, the agent’s event is likely to succeed at the expense of his competitors.’Footnote ¹⁰³ It was in light of these concerns that the now-disbanded Men’s International Professional Tennis Council (MIPTC) actually adopted a ‘conflicts of interest rule’ prohibiting player representatives from simultaneously promoting and managing professional tournaments.Footnote ¹⁰⁴ This itself led to an asserted violation of competition law in the United States, however, in the case of Volvo v. MIPTC.Footnote ¹⁰⁵ In that case (which was also ultimately settled), IMG and ProServ (both of which were frequently involved in the management of tournaments) joined Volvo, a sponsor-client of ProServ, in challenging the MIPTC’s rule on the basis that it infringed the Sherman Antitrust ActFootnote ¹⁰⁶ – while the MIPTC counterclaim alleged anti-trust violations based on the agents’ dual roles.Footnote ¹⁰⁷

Another important (and related) legal issue that was raised in that case – and that also concerns agents in their dealings with players – is that of restraint of trade. This common law doctrine rather concerns contractual restrictions on freedom to conduct business, and assesses the extent to which such restrictions are enforceable according to a reasonableness standard and with regard to public policy and the interests of the parties.Footnote ¹⁰⁸ The most well-known tennis-specific case illustrating the issue of restraints in agency agreements is that of Zverev v. Ace Group International Ltd,Footnote ¹⁰⁹ which involved a dispute between Alexander Zverev and his former sports agency Ace. In that case, Ace claimed a breach of contract on the part of Zverev (as well as his parent guarantors), since he had purported to end his relation with Ace notwithstanding the fact that the term of the representation agreement he had entered into with the agency at the age of 15 was not due to expire for another nine years. Zverev then sought a declaration before the UK High Court that the contract was unfair and oppressive. More precisely, Zverev contended that the lengthy duration of the contract, given its exclusive character, amounted to an unlawful restraint of trade that was not justified as reasonable, and was therefore unenforceable. And while the parties again eventually settled, the nature of the settlement firmly in Zverez’s favour suggests that the High Court would have agreed with Zverez’s contentions.Footnote ¹¹⁰ What is particularly remarkable about this outcome is that Zverev did not even claim to have sustained any financial disadvantage by reason of his protracted contract with Ace, which is the traditional line of argumentation in actions founded on the restraint of trade doctrine. Instead, it was the interest in having an agency relationship based on continued trust and confidence that motivated Zverev’s claim, bearing in mind the particular importance of tournament prizes and image rights in professional tennis.Footnote ¹¹¹ This case could therefore have significant ramifications for player–agent agreements and the ability of players to make alternative representational choices. Conversely, for agents this could entail a further limitation on the degree of contractual autonomy that they enjoy and the freedom to shape their relations with players as they desire.

2.1 Territoriality of IP Rights

As a preliminary matter, it should be noted that all IP rights are territorial in nature. As far as registered trademark rights are concerned, it is therefore necessary to obtain protection in all countries in which the rights are commercialised or intended to be commercialised in the future. While the basic concept of IP rights is similar worldwide, there are significant differences between the various legal systems. The registration and protection of IP rights are governed by local law in each country. Unless otherwise indicated, the following sections will refer to the position under EU and/or UK IP law.

3.1 What Is a Trademark?

A trademark is any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings.Footnote ⁷ As such, the primary purpose of a trademark is to indicate the origin of the good and services concerned. The registration of a trademark conveys exclusive rights on the trademark owner to use and enforce the trademark. There are certain signs that cannot be registered as trademarks, as defined under national legislation or case law. If a sign applied for which an application is made falls within one of those defined categories, it is likely to be refused by the relevant trademark office. Most commonly, trademark applications will be refused if their subject matter cannot be clearly identified, or they lack distinctive character, are descriptive of the goods and services applied for, or have become customary in trade.Footnote ⁸ Particular challenges can arise in the context of event-related trademarks, which may often be considered non-distinctive – for example, because they refer to a particular sport, location and/or the year in which the event takes place (e.g. the US Open). There are also other grounds for refusal which are outside the scope of this chapter.Footnote ⁹

Trademarks are widely regarded as the strongest form of IP protection as they are capable of being protected indefinitely, provided that the trademark owner keeps using it and pays the renewal fees when they are due, whereas all other IP rights have limited life spans. Registered trademarks provide the strongest form of protection against third-party infringements. Some countries, such as the United Kingdom, equally recognise unregistered trademarks which may become enforceable by means of an action of passing off. In addition to requiring proof of reputation and goodwill in a trademark, it is also necessary to show that there has been a misrepresentation that could mislead the public, as well as proof of damage, such as financial loss or damage to goodwill. An action for passing off can therefore be both difficult to prove and expensive.

4.1 Designs

Design rights are intended to protect the appearance of a product in whole or part. In the European Union and United Kingdom, designs can be either registered or unregistered. Design rights are of particular importance in the sports industry to protect innovative shapes and designs of products in 2D or 3D, such as the design of shoes, trophies and mascots. Unregistered design protection protects against unauthorised copying of the design and the mechanism in place arises automatically. Unregistered UK design rights provide protection for the lesser of (1) fifteen years from the end of the calendar year when the design was first recorded in a design document or (if earlier) from when an article was first made to the design; or (2) ten years from the end of the calendar year when articles made to the design were first made available for sale or hire.Footnote ²⁵ EU unregistered design rights last for three years.Footnote ²⁶

In the European Union and United Kingdom, it is possible to apply for registered designs as long as they are (1) novel; (2) of individual character; and (3) not excluded by statute.Footnote ²⁷ Unlike trademarks, registered design protection lasts for a maximum of twenty-five years, provided renewal fees are paid every five years. The protection of designs at the international level can benefit from the World Intellectual Property Organization’s (WIPO) international protection Hague System.Footnote ²⁸

4.2 Copyright

Copyright is intended to protect original artistic, musical, dramatic and literary works, including computer programs, certain databases, sound recordings, films, broadcasts and typographical arrangements of published works. It arises automatically upon creation of the work. Copyright in relation to artistic, musical, dramatic and literary works lasts for seventy years from the death of the author. Sound recordings are protected for seventy years from the date of publication, whereas broadcasts are protected for a period of fifty years from the date of making.Footnote ²⁹

It is important to note that copyright does not protect the idea itself, but only the expression of an idea. Therefore, it only protects against the copying of a work and not the independent development of the same idea. The copyright owner is entitled to prevent the unauthorised use of the work, for example, making copies.

The sports industry is an image industry which is built on images of athletes and teams. Accordingly, copyright is an important means of protecting the visual content associated with sports events. However, there is a lack of harmonisation of copyright protection internationally, which gives rise to challenges. The main areas in which copyright is relevant in the tennis industry include: (1) protection of sports performances and of the recording of sports performances; (2) protection of broadcasters; (3) protection of organisers of sports events; and (4) protection of databases relating to sports events.Footnote ³⁰

4.3 Image Rights/Rights of Publicity

The image of tennis players can be protected by so-called ‘image rights’ or ‘rights of publicity’ which play a very important role in the sports industry. Image rights are not recognised everywhere in the world and the scope of protection can differ significantly depending on the legal system in question. Broadly speaking, the term ‘image rights’ covers all the identifying features of an individual (such as names, initials, signatures, voice, body features and achievements). Some of these elements can also be protected by other IP rights, in particular trademarks or copyright. The commercialisation of image rights can yield significant revenues for prominent tennis players. Image rights can also provide tennis players with a means of preventing the unauthorised commercial use of their image or other personal features.

4.4 Patents

Given that the sports industry is very much driven by innovation, patents are also of prime importance in the tennis industry. While individual athletes might not own patent rights, they rely extensively on technology to improve their performance. By way of example, many tennis players, such as the top German player Alexander Zverev, use virtual reality trainers alongside their normal on-court training.Footnote ³¹ The sports goods industry also invests heavily in technological developments. Perhaps the most famous example is electronic line calling, such as Hawkeye, that is phasing out the need for human lines-people.

Patent protection provides inventors with a twenty-year monopolyFootnote ³² over inventions and protects new and inventive technical features of products and processes. In order to attract patent protection, an invention must be new, involve an inventive step, be capable of industrial application and not be specifically excluded from protection.Footnote ³³ Examples of matters that are excluded from protection are computer programs, business methods and methods of medical treatment.Footnote ³⁴ Patents are difficult and expensive to maintain.

4.5 Trade Secrets/Confidential Information

Trade secrets or confidential information are not strictly speaking IP rights, but serve to protect sensitive information, which can be commercial, technical or both in nature. They play a very important role in the tennis industry, giving a competitive advantage to athletes and the highly innovative sporting goods industry which relies on trade secrets and confidential information to commercialise its products. Accordingly, robust protection of trade secrets is very important in this sector. Protection of confidential information is implemented by local IP laws.Footnote ³⁵ Generally speaking, in order to be considered enforceable, the information concerned must (1) be confidential in nature; and (2) have been imparted in circumstances in which an obligation of confidence arises. Furthermore (3), its unauthorised use must be to the detriment of the person imparting it.

5.1 Sponsorship Agreements

Sponsorship is a prime source of revenue for a number of stakeholders in the tennis industry and refers to a form of marketing whereby a sponsor (usually a business organisation) pays for marketing rights to associate itself with the particular event, activity, venue, content, organisation, individual athlete or sporting team being sponsored. Sponsorship can offer businesses exposure for a brand, the chance to reach new audiences and reinforce, or change, existing consumer perceptions while providing those sponsored with much-needed revenue. However, there are risks and pitfalls inherent in any sponsorship arrangement to navigate. For example, the actions taken by those sponsored as well as event organisers will be linked to the sponsor and the sponsor has no control over the same. Thus, negative behaviour by a sponsored party could significantly impact the brand value of the sponsor.Footnote ³⁶

Stakeholders first need to have a clear understanding of what they want to achieve from the sponsorship relationship. There are many commercial factors to be considered, such as whether the relationship provides the right exposure, reaches the right audience, and fits with the brand values of the sponsors and those being sponsored. Planning the communication and implementing a clear branding strategy, as well as a carefully drafted sponsorship agreement, can make all the difference. A formal, written sponsorship agreement is a major tool in safeguarding any brand. A contract that gives sponsors robust protection will include morality clauses, which will specify prohibited behaviours that trigger other rights under the contract – such as the right to suspend payments or terminate the agreement. Robust termination provisions within the contract are important, as are force majeure clauses that account for unforeseeable events that prevent performance of the contract.

Other important aspects of a title sponsorship agreement will include payment provisions that facilitate staggered payments, which are weighted against large upfront payments. Exclusivity clauses will help protect the investment made by the sponsor in the event and can be supported by further contractual safeguards against ‘ambush marketing’ activities – where other brands look to unfairly piggyback on an event to leverage marketing of their own brand. IP and associated rights will shape the strategy around any potential co-branding activities. Each stakeholder will aim to ensure that they have as much control as possible over how their brand is used and monitor that any brand guidelines are strictly adhered to.

5.2 Endorsement Contracts

The terms ‘sponsorship agreement’ and ‘endorsement contract’ are often used interchangeably and as a result their contractual mechanisms and content tend to be similar. However, while a sponsorship deal is primarily focused on a financial transaction, an endorsement deal usually involves a contract between an individual athlete and a company, whereby the athlete actively endorses a particular product, for example, by appearing in marketing campaigns and being a brand ambassador. The provisions relating to the licensing of IP rights would closely mirror those in sponsorship agreements, as explained above.

5.3 Merchandising Agreements

A merchandising agreement grants a licence to a third party to use IP rights for the creation of consumer products in respect of distribution, sale and marketing. By way of example, all tournaments offer a wide range of branded products to tennis enthusiasts during the event and, in the case of prestigious Grand Slams, all year long. A merchandising agreement includes the same terms as other licensing agreements in the sports industry. Additionally, a robust merchandising agreement will also include quality control provisions allowing a licensor to examine the quality of the licensed merchandise and related advertising before the parties’ mutual release and during the term of the merchandising agreement. This is crucial for the licensor in order to be able to control its reputation and brand image, as inferior merchandise could devalue a brand. This is particularly vexing in situations where products might not be fit for purpose and give rise to product liability claims.

5.4 Broadcasting Rights Agreements

Broadcasting rights, also known as media rights, generate the highest revenue for sports organisations and are highly sought after by broadcasters who make lucrative offers for the exclusive right to broadcast sporting events live. By way of example, Sky Sports entered a blockbuster deal with the ATP and WTA at the end of 2023 to broadcast live tennis tournaments in the United Kingdom and Ireland for forty-eight weeks of the year. The deal covers eighty tournaments a year, with the broadcaster reportedly paying £10 million per year for the rights.Footnote ⁴⁰

The grant of broadcasting rights is complex and can involve granting rights in all media for one or more territories or a split according to the types of rights and media involved. There are different legal and regulatory frameworks for broadcasting in television and television available over the Internet. This complexity is further exacerbated by the range of IP laws governing broadcasting, which vary significantly from country to country. Copyright and related rights govern the relationship between sports organisations and broadcasters.Footnote ⁴¹

Piracy in live sport broadcasting is a growing issue, which disincentivises investment. It is estimated to cost event organisers up to €28 billion in lost revenue each year. Illegal streams of live sports events can also harm end users by exposing them to identity theft, malware or theft of credit card details and other personal data. Existing legislation is not necessarily robust enough to protect event organisers, broadcasters and their significant investment.Footnote ⁴² It is therefore crucial that sports bodies and owners of broadcasting rights for sports events invest in monitoring for illegal streaming and consider the options they have for enforcing their rights against infringers in the context of their commercial objectives.Footnote ⁴³

6.1 Monitoring Infringements

To identify infringements, brand owners must monitor third-party uses and infringements and take appropriate enforcement action where such infringements are identified. There are a variety of different services available to monitor third-party infringements, including trademark watches, domain name watches and company name watches. Subscribing to such services will allow brand owners to identify any trademarks, domain names or company names applied for or registered by third parties that are in contravention of identical or similar trademarks and which are lawfully registered.

Infringement often takes place online – for example, on social media platforms. Combatting infringement of IP rights online can be challenging and requires a clear enforcement strategy. IP rights holders can undertake manual searches online on an ad hoc or regular basis, although this is unlikely to eradicate the problem. Online platforms are typically fitted with reporting tools and take-down procedures so that IP rights holders can complain of IP infringements. However, the manual approach and reporting has the downside of potentially missing infringements.

There are comprehensive brand protection solutions which allow rights holders to monitor and enforce the use of their IP rights online through a single platform that can be used to identify potential infringements. These platforms can be utilised to issue take-down notices. These services also have the added benefit of maintaining a record of infringing activity which can be used to provide proof of infringements on a platform existing in real time. Many of the brand protection solutions are equally able to provide more sophisticated brand protection solutions, such as monitoring of online abuse of athletes on social media (which is becoming an increasingly serious issue).Footnote ⁴⁴

6.2 Enforcement Action

The appropriate cause of action depends in large part on the type of IP right involved, the nature of the infringement and jurisdictional variations. Examples include litigation against trademark, design and copyright infringement (using the same or similar logo) and counterfeiting (imitating of genuine goods), as well as piracy (i.e. unauthorised copying, use, reproduction or distribution of materials protected by copyright). In respect of registered IP rights, in particular trademarks and designs, it is also possible to take action before the relevant IP registries in extra-judicial proceedings. Registered IP rights, in particular trademarks and design rights, are likely to be the most frequently invoked and strongest enforcement tools in combatting IP infringements. Other proceedings can include domain name complaints and company name complaints. The available enforcement actions and associated procedures will differ depending on the country in question.

6.3 Remedies

It is important to note that in proceedings before IP registries, there are no remedies as such. The result of such proceedings is that the registry will determine whether the relevant IP right has been infringed and the third-party application will be refused, allowed to proceed or declared invalid. There may also a be a small costs award. However, a successful claim before IP registries will not automatically lead to an alleged infringer stop using the particular mark in question. Therefore, if an infringer decides to continue using a mark without registration, the only redress is often to bring legal action in the courts, which tends to be a time-consuming and expensive process.

If an IP owner is successful, the courts may award a variety of remedies. The available remedies depend on the type of IP rights that was infringed and the specifics of the situation. Ultimately, the IP rights owner will be keen to maintain brand value for commercialisation purposes and be compensated for any losses incurred as a result of an infringement.

3.1 Restraints Arising from National Federations and State Regulation

Sports governing bodies (SGBs) have developed internal rules that govern their relationship with their corporate members, namely, clubs that are parties to a national league/federation, as well as with tournament organisers. In some instances, as is the case with professional tennis, these internal rules govern the relationship between the federation and players. It is not rare for such internal rules to impose restraints on what their members/signatories can and cannot do. Many of these restraints, although otherwise incompatible with competition law, are justified under national and regional anti-competition rules for a number of public interest objectives, namely: in order to maintain the integrity and stability of national and international sporting competitions; to reinforce the sport’s commercial and cultural viability; to encourage youth development and promote the sport’s competitive balance; and to protect national teams. Even so, drawing a sensible balance is not always easy and restraint of trade claims have been raised by players in an individual capacity and by clubs.Footnote ²⁴ Often, the internal rule posited by a federation against its members is the result of domestic law. This notwithstanding, the interplay of interests involved in such rules, irrespective of their origin, may well motivate the club, the national team or other entity to impose an unnecessary, unfair and undue restraint of trade on athletes.

The leading case in English sports law is Eastham v. Newcastle United Football Club Ltd. During the 1960s, according to the rules of the Football Association (FA) which were framed in a contract with FA-registered clubs, a player could be ‘retained’ by his club at the end of the season, even without a new contract. During such retention the player was not allowed to sign for any other club willing to offer him a contract. Clearly, this rule was in the interest of clubs and could be applied in a manner that effectively prevented a player from earning a living from the sport. The player moved for a declaration against the club and the Association that the system of retention was invalid because it restrained players’ freedom of employment. The Chancery Division of the High Court and Wilberforce J in particular accepted that while some restriction was essential for the proper administration of professional football in England, the restriction imposed by the rules was far too disproportionate on liberty of employment.Footnote ²⁵ In Greig v. Insole, the International Cricket Conference and the English Test and Country Cricket Board had issued resolutions disqualifying players from test and country matches if they had competed in games or tournaments organised by a private promoter. Greig was banned after signing a contract to play in the World Cricket series, which was at the time a lucrative event for cricket players who earn their living during the English summertime. The Chancery Division of the High Court and Slade J, in particular, held that such a restriction constituted an unreasonable restraint of trade.Footnote ²⁶ English courts have generally taken the position that restraints unjustified by any professional or public interest imposed by sporting entities are unenforceable, as was the case with the Jockey Club’s prohibition of trainer licences to women.Footnote ²⁷

In a similar manner, the International Skating Union (ISU) foresaw the danger to its own financial interests from rival skating organisers trying to ‘poach’ its athletes by offering them more lucrative participation deals. It subsequently proceeded to issue Communication No. 1974, titled ‘Open International Competitions’,Footnote ²⁸ which demanded advance authorisation for the organisation of a competing event, as well as participation therein (so-called ‘prior authorisation rules’). The EU Commission had no problem seeing the obvious incompatibility of the ISU Communication with fundamental tenets of EU competition law, chiefly Article 101 of the Treaty on the Functioning of the European Union (TFEU).Footnote ²⁹ This was followed suit by the General Court, which came to the same conclusion regarding the ISU’s eligibility rules.Footnote ³⁰ Although the General Court did not rely on restraint of trade, it emphasised that SGBs are free to safeguard their legitimate interests, but any rule they promulgate must not deprive members or non-members from access to the same market, especially where the market in question generates profit.Footnote ³¹

3.2 Restraints Arising from Players’ Contracts with Agents

Restraints arising from agreements between agents and players are not uncommon.Footnote ³² Depending on the subject matter of the agreement, they concern two issues. The first relates to royalties from direct sports earnings, while the second revolves around royalties from image rights. English courts have drawn a further distinction between restraints imposed during the ordinary life cycle of the contract, which are subject to the criteria identified above, and those imposed post-termination of the contracts, which have been found to be unlawful.

In Proactive Sports Management Ltd v. Rooney, the 17-year-old football star had entered into an image rights representation agency agreement with a company called Stoneygate. The latter agreed to pay a 20 per cent commission to Proactive for the duration of its agreement with Rooney. When a few years later Rooney terminated its contract, the agent sued for breach of contract. The Court of Appeal found the particular terms of the agency agreement unenforceable on two grounds, namely: (1) Rooney at the time was a minor without the benefit of legal advice; (2) the duration of the contract was unduly long and certainly far beyond what was customary at the time. What is more interesting is the fact that the restraint was held to be questionable even though Rooney’s image rights were not his primary trade; at the time he was a highly paid footballer and top of his game. Moreover, the Court of Appeal, while invalidating the image rights clause in Rooney’s contract with Proactive, had no issue retaining the contract as a whole. It was never in doubt that Proactive provided significant services to Rooney, all of which led to lucrative deals.Footnote ³³

The most serious manifestation of restraint of trade concerns restrictions to the competitive life of professional athletes in a manner that not only prevents them from making a living from their ‘trade’, but most importantly because such restrictions negatively impact athletes’ competitive edge and drive away their self-confidence. Athletes lacking these two qualities find it hard to get back to top form and ultimately this produces negative consequences on their game and their earnings. In this light, any agreement with an agent that effectively causes an athlete to forego significant part of his or her income without reasonable effort on behalf of an agent, or any action by which the agent can sideline an athlete because the latter refuses to honour an unreasonable commission, may constitute unnecessary and abusive restraints. In Watson v. Praeger, a professional boxer and his manager had entered a contract whose form was prescribed by the British Boxing Board of Control. The agency contract was subject to a term of three years, but was extendable for a further three-year term at the option of the agent, without the consent of the athlete. When the agent/manager exercised this option, the boxer refused to concede that it was enforceable. Scott J agreed on the grounds that the contract was not the result of free negotiation by the parties, but had been proscribed by the governing body. He further considered that this restraint of trade could not be justified on the basis of the interests of the parties and the public.Footnote ³⁴

In the next section, we will examine the outcome in the Zverev case as a particular manifestation of contractual player–agent restraints in the field of professional tennis.

4.1 Restraints in Agency Agreements

The tennis-specific case that stands out is Zverev v. Ace International Group Ltd, despite the fact that the parties ultimately settled.Footnote ³⁵ At the age of 15, Alexander Zverev entered into a representation agreement with the sports agency Ace. The term of the agreed representation was for a period of eleven years, albeit commission was payable for sixteen years, which meant that Zverev would effectively be shackled to his contract from the very beginning of his playing career until close to its end. It is crucial to note that Zverev’s parents were fully engaged in the negotiations and agreed to act as guarantors thereof. Seven years into his contract, Zverev decided to leave Ace, which sued for breach of contract and made a claim against the player’s parents. Zverev’s legal team argued that the duration of the contract, coupled with its exclusive nature, was unreasonable and constituted a restraint of trade.Footnote ³⁶ It is interesting to highlight here that like other sports-related trade restraint cases, Zverev did not argue that he suffered financial harm or that he could make more money through another agency; quite the contrary, Ace had worked hard to bring lucrative endorsements for Zverev. This is important to note because it provides a non-financial dimension to the restraint of trade doctrine, which in theory, at least, should invalidate any pertinent claim. If this non-financial dimension is viewed by the common law courts as an integral part of the doctrine, then the very concept of ‘trade’ is not only about making a living from one’s sporting endeavours, but also about the right to choose those partners that instil confidence and trust in an athlete.

It is no wonder, therefore, that Ace centred its arguments not only on pacta sunt servanta (i.e. that contracts are enforceable), but that the agency had amassed a fortune for Zverev. In fact, Ace called in an expert who produced a comparative report of players’ earnings and contract durations in order to demonstrate that Zverev’s contract duration was hardly unusual in professional tennis and his earnings comparatively higher as compared to other players. The expert report was crucial in the progression of the trial, but parts of it were redacted, namely, players’ names. The report was confidential and obviously unavailable, and when Zverev’s legal team sought to lift the redacted parts,Footnote ³⁷ Ace decided to drop its entire case and settle. The settlement suggests that Zverev’s contractual duration, as well as perhaps the age at which he entered into the contract, made it crystal clear to all the parties witnessing the expert report that the High Court could only come to the conclusion that the particular terms constituted a restraint of trade. This in turn demonstrates that there is a consensus in the sporting legal community that a contract of this duration, especially when entered into by a 15-year-old player, fails to provide the right to seek alternative choices. Moreover, it confirms what was suggested elsewhere in this section, that for athletes earning significant sums of money from tournament prizes and image rights, restraint of trade gives rise to altogether different issues as compared to professional athletes simply making a living from their sport. For top-earning tennis players such as Zverev, the prospect of a non-acrimonious relationship with an agent, the proximity of the agent to tennis rather than all sports and the availability of more choices (e.g. in branding) are perhaps more important than earning additional income.

While the Zverev proceedings were progressing, the UK Supreme Court had the opportunity to reshape the restraint of trade doctrine in Peninsula Securities Ltd v. Dunnes Stores (Bangor) Ltd.Footnote ³⁸ A developer of a shopping centre granted a long (exclusive) lease encompassing part of the property to an anchor tenant. Under the terms of the lease, the tenant undertook not to set up a retail unit of a particular size that was commercially active in the trade of textiles or groceries. Several decades after the adoption of the lease, the tenant sought a declaration that the exclusion was unenforceable on the ground that it was an unjustified restraint of trade. In parting with the House of Lords’ judgment in Esso Petroleum Co. Ltd,Footnote ³⁹ the Supreme Court adopted the so-called ‘trading society’ test. According to this test, a term in an exclusive agreement will not engage the restraint of trade doctrine if the term in question ‘passed into the accepted and normal currency of commercial or contractual or conveyancing relations’ and which may therefore be taken to have ‘assumed a form which satisfies the test of public policy’.Footnote ⁴⁰ Although the judgment in Peninsula Securities is seemingly unrelated to professional sport, this is not the case. It will be recalled that the turning point in Zverev’s claim was the comparator in the expert’s report. If it were determined that it was ‘normal currency’ in tennis representation agreements for young athletes to sign long-term contracts in return for lucrative agreements, it is doubtful that the parties or the courts could reach an outcome that the contract in question restrained Zverev’s ability to apply his trade. It remains to be seen how in practice English courts will come to reconcile the trading society test with the non-financial interests inherent in restraint of trade claims brought by tennis players against their agents. The balance is a delicate one, but the Zverev outcome clearly demonstrates that it is ‘normal currency of commercial or contractual’ tennis relations for parties to value the player–agent relationship on grounds that are not exclusively financial.

4.2 Disciplinary Bans as Restraint of Trade?

English courts have not yet encountered claims whereby disciplinary bans imposed by clubs or sporting federations may amount to a restraint of trade. Indeed, the likelihood of such claims being upheld are slim, particularly since the grounds for disciplinary bans are limited and the steep sentences involved are justified in the public interest, as is the case with doping and illegal gambling.Footnote ⁴¹ Even so, the Appellate Chamber of the Court of Arbitration for Sport (CAS) in Luis Suarez and Others v. FIFA considered that the four-month ban from all football activities imposed on the FC Barcelona (at the time) star, although correct on merit, was disproportionate as to its outcome on the athlete. It held that ‘the stadium ban and the prohibition to engage in “any football-related activity” was excessive in this case given the fact that such measures are not appropriate to sanction the fault committed by the player and that they would still have an impact on his activity beyond the end of the suspension’.Footnote ⁴² The rationale here is that a four-month ban from all football activities (including training with his team, playing in friendly games, etc.) imposed against a player at the top of his form meant that he could not be conditioned into his club once the ban expired and there was the danger that the player’s overall form would deteriorate beyond repair.

In the tennis context, disciplinary bans are related to discreet offences set out in the ITF’s Rules. The most common among these are corruption and doping offences. Article 6.1 of the Independent Tribunal’s Procedural Rules stipulates that ‘facts may be established by any reliable means’.Footnote ⁴³ The consistent practice of the CAS and other specialised sports tribunals, especially as regards doping and corruption, has created an elaborate body of evidentiary rules that have attained precedential value and which the ITF Independent Tribunal cannot depart from. By way of illustration, the ITF Tribunal has accepted the CAS approach in WADA v. Abdelrahman,Footnote ⁴⁴ whereby it was held that the standard of evidence tendered has to be persuasive, specific, objective and concrete.Footnote ⁴⁵ As to the burden of proof in doping cases, in following CAS jurisprudence, the ITF Tribunal has held that the literal reading of Article 10.2.3 of the Tennis Anti-Doping Program (TADP) 2020 requires the player to disprove engaging in conduct that he or she ‘knew constituted an Anti-Doping Rule Violation’ or ‘knew that there was a significant risk that the conduct might constitute or result in an Anti-Doping Rule Violation and manifestly disregarded that risk’. This means that the player must not only be unaware that the action constituted an anti-doping rule violation (ADRV), she or he must also have not known that there was a significant risk.Footnote ⁴⁶ Moreover, other instruments already set out evidentiary rulesFootnote ⁴⁷ to which the ITF Tribunal must turn to when deciding pertinent cases.Footnote ⁴⁸

The CAS Appeals Chamber has not reversed on merit any bans imposed by the ITF Independent Tribunal,Footnote ⁴⁹ although in practice the CAS will assess whether the ban is proportionate by reference to whether a clear departure from the text of a rule would violate public policy.Footnote ⁵⁰ The same approach has been adopted also by the ITF’s Independent Tribunal.Footnote ⁵¹ Fairness is paramount in the ITF Independent Tribunal’s practice, as well as sports tribunals more generallyFootnote ⁵² concerning fines and penalties imposed on athletes.Footnote ⁵³ Given that the offences and their attendant sanctions are known in advance and the ITF Independent Tribunal, as well as the CAS, apply these sanctions proportionally and fairly, it is natural that no claims of restraint of trade have been raised in respect of disciplinary sanctions in tennis, and sports more generally. Even the Suarez appeal did not specifically refer to this doctrine or other equivalents. There are several reasons for this. First, the doctrine has been developed and enforced by common law courts. All disciplinary bans have been imposed by specialised tribunals, which need not rely on English law, since their own internal rules suffice for the imposition of sanctions. Second, a restraint of trade claim, even if applicable, would be pointless, particularly since bans for serious offences such as doping and cheating/illegal gambling are part and parcel of the commercial and contractual currency of tennis and all athletes are aware of the severe consequences.

The same cannot be said, however, for infractions of rules of conduct other than doping and illegal activities. Penalties for rage,Footnote ⁵⁴ walking off the court without being injured, and insulting umpires and the audience are subject to misconduct fines under the ITF’s Welfare Rules, as well as tournament organisers and national tennis federations.Footnote ⁵⁵ No doubt, if a minor disciplinary offence were to receive a ban that was so disproportionate that it prevented an athlete from retaining his or her form, it would rightly be subjected to a reversal on grounds similar to or with the same effect as restraint of trade.Footnote ⁵⁶ Some commentators have argued that even if the sanction imposed by the ITF is not oppressive, the lack of procedural fairness is nonetheless disturbingFootnote ⁵⁷ and may (in the opinion of this author) justify claims concerning restraint of trade if the appropriate threshold is met.Footnote ⁵⁸

In some instances, a disciplinary sanction may not culminate in significant financial loss for a tennis athlete, yet it may cause high levels of distress and exacerbate an existing condition. When US star Naomi Osaka felt compelled to withdraw from the French Open, subsequently facing fines because she did not want to make media appearances, she was poorly portrayed in the press and no accommodation was made available even though she was undergoing mental health issues.Footnote ⁵⁹ Although the fine was insignificant for the athlete, it exacerbated her mental health issues and the distress caused prevented her from competing for some time.

4.3 Qualification for National Tennis Teams and Restraint of Trade

Although the battleground for professional tennis is predicated around ITF/ATP and WTA tournaments and the ranking therefrom, selection and participation in national teams is highly sought after by players at all ranks. It is not only that national teams pay salaries to players,Footnote ⁶⁰ but more importantly, national team selection brings several privileges to players who do not as a rule make a viable living from tournament prizes. A player selected in a national team may play in the Olympics, become employed in his or her country’s civil service, be granted a pension or simply accumulate sufficient recognition to be given a wild card in a tournament for which he or she would not have otherwise qualified. For all of these reasons, at the very least, wrongful exclusion from a national team may give rise to a justifiable claim for restraint of trade.

In principle, each national federation recommends athletes for the Olympics, irrespective of merit, and this decision is transmitted to the federation’s National Olympic Committee (NOC), which then transmits the names of those selected to the International Olympic Committee (IOC).Footnote ⁶¹ The same is true in the case of tennis. In Oksana Kalashnikova and Ekaterine Gorgodze v. ITF, Georgian National Olympic Committee (GNOC) and Georgian Tennis Federation (GTF),Footnote ⁶² the applicants were the top-ranked female doubles team in Georgia. Prior to the 2020 Tokyo Olympics, they had received verbal assurances that they would be placed on Georgia’s entry list. It turned out that the GNOC failed to enter them in the original and revised entry lists. The two players requested that it was unfair that they were excluded, and that the ITF intervene through a revised list. They further argued that the verbal assurances received from the GNOC and GTF estopped the latter from reneging on their promise. The CAS was forced to reject the players’ application on the grounds explained above, albeit a different outcome might have transpired if the same dispute was submitted to an English court (assuming it possessed jurisdiction) pursuant to a restraint of trade claim. The application of this doctrine is not necessarily reliant on the legality of a particular rule, but whether its otherwise oppressive nature is justified and reasonable in the public interest and whether in the process it deprives an athlete of his or her livelihood. In the case at hand, the two female athletes ranked 73 and 108 in the WTA singles rankings and were in their early 30s. If one assumes that at that point in their career their best chance to make a living from the sport was through their participation in the Georgian national team (assuming that they could not expect to seriously contend for prize money), then being deprived of this opportunity on unfair and discriminatory grounds constitutes a restraint of trade. While national tennis federations possess sole authority to determine access to national teams, it is advisable and in the best interests of the ITF to amend its rules and demand that membership in national teams be achieved on a competitive basis. This could be based on ATP/WTA rankings or by competing in national rounds. This author sees no legal impediment for the ITF to suggest that any other outcome would violate an athlete’s right to make a living and would be discriminatory.

2.1 From Collective Action to Shared Governance

Some fifty years ago, the world’s greatest professional tennis players – both women and men – successfully unionized when the game was tumultuously shifting from a sport to a business. They acted militantly, collectively, innovatively, with principle, and, in so doing, led and accelerated the game’s economic and cultural transformation. The players – unlike their counterparts in major professional team sports – didn’t convert their activism into collective bargaining. Instead, they chose to be business partners in the tours. The legacy of that monumental decision is still being felt and understood today.

For the greatest part of the professional era of “Open Tennis” since 1968, the players have sought to influence the governance and business of the game through the transformation of their two main player associations – the Association of Tennis Professionals (ATP) and the Women’s Tennis Association (WTA) – into the governing bodies of the respective professional tours and significant transnational businesses in their own right.Footnote ¹ The reasons driving these transformations and whether they have been in the best interests of the generations of players who have followed raise necessary questions that are likely to inform the future development of both the governance of the professional game and the collective representation of the players, including the potential role and impact of the PTPA.

2.2 What Is a Professional Tennis Players’ Union?

A fundamental question in this discussion is what is a professional tennis players’ union? Given that tennis players – like all professional athletes – are workers, the most appropriate way to approach this question is through the principles and standards of the International Labour Organization (ILO), including its fundamental conventions: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);Footnote ² and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).Footnote ³ In essence, a tennis players’ union is one in which: players “have the right to establish and … join … of their own choosing without previous authorisation”; exists for the purposes of “furthering and defending the interests” of the players;Footnote ⁴ and, inter alia, “is protected against acts of interference,” including acts designed to support the organization “by financial or other means, with the object of placing [it] under the control of employers or employers’ organisations.”Footnote ⁵ The ILO sees “recognition of the principle of freedom of association” as “a means of improving conditions of labour” and “essential to sustained progress,” so much so that the enunciated “principles should form the basis for international regulation.”Footnote ⁶

The ATP and the WTA can only be considered as having been professional tennis player unions when they were functioning as player associations and prior to their transformations into governing bodies, a fact unaltered by both having player representatives within their governance structures. Under international human rights principles and standards, the ATP and the WTA shifted from being holders of the human rights of players (including their trade union rights) to having the responsibility to respect those rights. The recent evolution of global sports law to encompass internationally recognized human rights is therefore highly relevant.Footnote ⁷ That legal evolution has occurred due to the myriad of egregious and adverse human rights impacts with which global sport has been associated and the recognition by international sports governing bodies – especially the International Olympic Committee (IOC) and the Fédération Internationale de Football Association (FIFA) – that the business of global sport and global sports law must be conducted in accordance with the United Nations Guiding Principles (UNGPs) on Business and Human Rights.Footnote ⁸ Meeting the corporate responsibility to respect human rights is therefore a minimum standard of expected conduct of the ATP and the WTA, as it is of the International Tennis Federation (ITF), tennis’s world governing body.Footnote ⁹

2.3 The Trade Union Rights of Professional Tennis Players

Trade union rights comprise the rights to freedom of association (including to form or join trade unions), to organize and to effective recognition of collective bargaining. Being one of five fundamental principles of work declared by the ILO in the ILO Declaration on Fundamental Principles and Rights at Work (1998), as amended in 2022 (ILO Declaration),Footnote ¹⁰ they are among the internationally recognized human rights expressly referred to in the UNGPs.Footnote ¹¹ Trade union rights are also expressed in the International Bill of Human Rights.Footnote ¹² The Universal Declaration of Human Rights provides that “[e]veryone has the right to form and join trade unions for the protection of his [sic] interests,”Footnote ¹³ as does the International Covenant on Civil and Political Rights (ICCPR) in the context of the broader enabling right of freedom of association.Footnote ¹⁴ The International Covenant on Economic, Social and Cultural Rights (ICESCR) expands on the rights by making it clear that they encompass the right to join a union of one’s “choice,” the right of unions themselves to form “national federations or confederations” as well as “international trade-union organizations,” the right of those unions to “function freely” and “the right to strike.”Footnote ¹⁵

In practical terms, the ATP, ITF, WTA and other enterprises involved in the governance and business of professional tennis are expected by the UNGPs to “undertake human rights due diligence in order to assess and address adverse human rights impacts across their value chains, including impacts on [the] trade union rights [of professional tennis players].” The tennis bodies, for example, should not interfere with any decision of the players to associate, appreciate that the players are free to unionize and recognize representative organizations for the purpose of collective bargaining.Footnote ¹⁶ Moreover, according to Shift:

The ILO Declaration states that “the guarantee of fundamental principles and rights at work … enables the persons concerned to claim freely and on the basis of equality of opportunity their fair share of the wealth which they have helped to generate, and to achieve fully their human potential.”Footnote ¹⁸

In 2017, the World Players Association (WPA) launched the Universal Declaration of Player Rights (UDPR), which – “anchored in international human rights law and core [ILO] standards” – includes “labor rights” (including the trade union rights of players) as one of four pillars of player rights, alongside “access to sport,” “personal rights” and “legal rights.”Footnote ¹⁹ WPA research reveals that in the world of sport, professional players and athletes face many threats against and risks to the realization of their trade union rights, including the denial of the status of athletes as workers, widespread cultures of anti-union behavior, anti-union conduct including direct discrimination and harassment of union members, and union avoidance strategies, where management-controlled forms of athlete representation are imposed.Footnote ²⁰

In 2020, the ILO began to comprehensively address the labor rights of professional athletes by convening for the first time in its 100-year history representatives of employers, athletes, player associations, sports bodies and governments to discuss the challenges facing working athletes and the application of international labor standards.Footnote ²¹ The consensus points reached include that “[a]ll workers, including athletes, regardless of the type of employment relationship, require, as a minimum, to be protected by the fundamental principles and rights at work.”Footnote ²² This consensus accords with the well-established jurisprudence of the ILO’s Committee on Freedom of Association that the right to organize exists “without distinction whatsoever,” including “of any kind based on occupation.”Footnote ²³ The “criterion for determining the persons covered by the right to organize is not based on the existence of an employment relationship. Workers who do not have employment contracts should have the right to form the organizations of their choosing if they so wish.”Footnote ²⁴ Consequently, the trade union rights of professional tennis players are unaffected by their individualistic pursuit of sport as a career and their legal status as independent contractors.Footnote ²⁵ Measures should also be taken to ensure that the presence of elected worker representatives, such as player representatives within the governance of the ATP and the WTA, “is not used to undermine the position of the trade unions concerned.” In particular, the enterprise should “encourage co-operation on all relevant matters between the elected representatives and the trade unions concerned.”Footnote ²⁶

3.1 The Pivotal Role of Player Unionization and the Development of Professional Tennis 1967–75

Despite the emergence of professional tennis as early as the 1920s,Footnote ²⁷ it was not until the late 1960s that the world’s best tennis players effectively exercised the right to organize and form player unions as a solution to the many challenges confronting them, their careers and the industry of professional tennis. The matters requiring resolution were fundamental and wide-ranging in nature. Professionalism itself was being resisted by the game’s governors, principally the “old guard” at the world governing body,Footnote ²⁸ the International Lawn Tennis Federation (ILTF).Footnote ²⁹

The players had a bold vision of “Open Tennis,” where the elite could all play as professionals in the world’s most prestigious tournaments and venues, including Wimbledon, Roland Garros and Forest Hills. Only Open Tennis could maximize fan interest in the sport and provide a legitimate livelihood for players who were taking to “small-venue barnstorming” and “shamateurism” to survive.Footnote ³⁰ Contracts, playing fees, prize money, expenses and tournament conditions, as well as the schedule and eligibility, all needed to be negotiated.Footnote ³¹ Tennis, the players asserted, also had to boldly lead society on acute issues of the day, including matters of human rights, especially the battle for gender equality. Addressing these matters required the players – as a collective – to overcome many internal and naturally occurring divisions. But it was, in the end, one issue that prompted unprecedented and historic displays of player solidarity and militancy – the obsession of the old guard to remain in control and put commercialism and upstart players well and truly back in their place.Footnote ³² The players resisted, and the resulting labor unrest would finally propel tennis into the modern era.

In less than a decade – eight years in fact from 1967 to 1975 – the players would collectively drive a professional, business, and player and human rights revolution of the sport. The pace and extent of player-driven change was – and remains even with the benefit of hindsight – simply breathtaking.

3.2 Pro Tennis’s Labor Settlement – Business in Lieu of Bargaining

And so, by 1975, the framework for labor relations in professional tennis had largely been set. The settlements achieved by both the ATP and the WTA were historic and were to deliver real outcomes that would place the world’s very best tennis players at the top of global athlete earnings and prestige.Footnote ⁵⁵ The players had unquestionably won the rights to compete as professionals and to have a meaningful say in all decisions that affected them (especially on the questions of prize money, scheduling, governance and discipline). They had a seat at the table determined to drive the expansion of the professional men’s and women’s tennis and, in turn, the players’ prize money pools.Footnote ⁵⁶

It is noteworthy that both labor settlements took the form of the two player associations – the ATP and the WTA – taking seats in the global governance of the professional tours, and not the form of collective bargaining. In the same period, professional team athletes especially in the United States and European football were unionizing, legally challenging the long-standing restraints imposed by leagues and owners on their freedoms and earning capacities, and securing collective bargaining agreements which addressed essential player needs such as a minimum wage, guaranteed contracts, pensions and, through free agency, the right to offer one’s services to an employer of choice in a competitive labor market.Footnote ⁵⁷ The latter proved to be critical in ensuring that players would be paid, individually, their market rate and, collectively, a fair share of the game’s overall revenues.Footnote ⁵⁸ Upon the establishment of the WTA, Marvin Miller, the Executive Director of the Major League Baseball Players Association (MLBPA), had sent King and the players his congratulations in an interview with United Press International.Footnote ⁵⁹ Between 1968 and 1975, Miller had secured US pro-sports’ first ever collective bargaining agreement, led a successful strike over pension fund payments and secured free agency for his members.Footnote ⁶⁰ King regarded the “groundbreaking” Miller as “one of [her] heroes,” and said that his endorsement “meant the world” to her.Footnote ⁶¹

Yet, the world’s best tennis players took a very different path from that of their Major League Baseball (MLB) counterparts, which would fundamentally shift the purpose, structure and culture of both the ATP and the WTA away from trade unionism.

The world’s leading professional golfers had won a similar battle in 1968 against their governing body, the Professional Golfers’ Association of America (PGA), which had formed in 1916 as an organization of golf pros – the people who ran pro shops and gave golf lessons. Occasional events initially organized by the PGA to promote “golf tourism” had developed by the 1950s into an expanded schedule of events capable of supporting tour pros on a full-time basis. Add stars Arnold Palmer, Jack Nicklaus, Gary Player and television to the mix, and by 1968 tour prize money sat at $5.6 million, but was under the control of the PGA, with the old golf pros holding sway over the world-class professional golfers who played the tour. The tour’s best players – some 205 of them – established Professional Golfers America, Inc. (APG), and following a dispute fought over two years that threatened the PGA championships of 1967 and 1968, a settlement was finally reached. The settlement saw the PGA form a separate Tournament Players’ Division, a standalone entity governed by a ten-member policy board consisting of four APG-nominated players, three PGA executives and three consulting businessmen. A commissioner would run the tour, answerable only to the board.Footnote ⁶²

It is perhaps not surprising that the tennis players – like their golfing counterparts – would choose a model based on governance, entrepreneurialism and business, instead of the trade union rights and commitment to collective bargaining that were then transforming professional team sports and continue to this day to do so.Footnote ⁶³ Unlike the well-established professional team sports such as baseball and football, the business of tennis was rapidly evolving and constantly changing, with new organizers and tour concepts quickly emerging. There possibly was not yet a stable managerial counterpart with whom the players could reliably bargain. That had to be found and, if it couldn’t be, it would have to be created. But, more than that, tennis was a “rich man’s sport”:Footnote ⁶⁴ the men’s revolution had been shaped by Kramer – himself arguably the most established tennis promoter in the world – together with the game’s very best players who all could be sure to win a lion’s share of the increasing prize money that was bound to follow. King’s immense struggle for the women’s game is as remarkable for her success as a player and businessperson as it is her courage and principle. Working initially in partnership with Gladys Heldman,Footnote ⁶⁵ she relentlessly promoted and developed the tour and readily accepted the sponsorship of Phillip Morris as a business necessity despite her moral and health concerns with the tobacco company.Footnote ⁶⁶

In contrast, the unionization of professional footballers began at the turn of the twentieth century in industrial Manchester. It was, from the earliest of days, an industrial dispute between “Masters and Servants,”Footnote ⁶⁷ with professionalism “legalized” by the game’s authorities as early as 1885 (albeit reluctantly). The Players’ Union – now the Professional Footballers’ Association (PFA) – was established in 1907 after a struggle that started in the 1890s.Footnote ⁶⁸ A footballer’s status as a worker was legally recognized in 1910,Footnote ⁶⁹ and the early 1960s finally saw England’s best soccer players start to enjoy their rights and greater income-earning opportunities through a combination of a successful threatened strike which resulted in the abolition of the long-standing maximum weekly wage and litigation which ended the retain and transfer system.Footnote ⁷⁰ Similarly, a key part of Miller’s success at the MLBPA was instilling a “union consciousness” among the players.Footnote ⁷¹

Just as freedom of contract and free agency had transformed the earnings of English football and MLB players (and would, over time, transform the earnings of almost all professional team athletes), the competition between the main factions in the tennis wars had driven up player payments enormously, such as that between the WCT and the ILTF’s Grand Prix Masters tournament in the early 1970s. Even Ashe – dedicated to his status as an independent professional – found the opportunities irrefusable, signing a five-year WCT contract in 1971 worth $750,000, putting him on a par with the best-paid stars in the MLB, PGA and other major leagues.Footnote ⁷² Yet – as we have seen – the players became a driving force in the settlement of the tennis wars on terms which even saw the end of such rewarding and secure contracts and the embedding of an individualistic albeit potentially lucrative performance-based pay structure exclusively dependent on prize money. The players were – perhaps inadvertently – agreeing to stifle the very competition that had helped put them in such a strong position, a position powerfully reinforced by the solidarity demonstrated at Wimbledon in 1973. According to Evans, “[a]lthough the ATP was to squander the position it had earned for itself in later years,” the creation of the MIPTC meant that “the battle was not in vain.”Footnote ⁷³ This raises a question of cause and effect. The players had agreed to a seat at the industry’s top table while allowing the same industry to evolve into a monopsony, a buyers’ cartel for player services.

Ashe would reflect on the impact of the reforms years later: “For many of us, the deluge of money led to confusion and an unholy scrambling after dollars. Certain values and standards that had bonded players in my earlier years – certain codes of honor and a spirit of cooperation and camaraderie – disappeared.” He wondered, “how much we, the leaders of the players during the transition, contributed to the fall.”Footnote ⁷⁴ Perhaps one factor was the ATP’s inability to ensure that the game’s wealth was shared more equitably among all players on the tour. As early as 1972, Ashe had said that “the present prize-money breakdown gives too much money to a man at the top.”Footnote ⁷⁵

Within a decade, King was also questioning the state of things. “The trouble is, as ever, the players fight too much against each other and not enough against the real enemy.”Footnote ⁷⁶ She even grew concerned about the long-term impact of her early victory for equal prize money:

The ATP was to grow frustrated with the constraints of the MIPTC. In 1988, players including Mats Wilander and Stefan Edberg led the decision of the ATP to leave the MIPTC, by then renamed the Men’s Tennis Council.Footnote ⁷⁸ “We should be in control of our own destiny,” Edberg said, recalling that the “ATP was founded for the players by the players, but it [now] has no control. We’ve been continually told where to go … now we want our say.” Hamilton Jordan, the ATP’s CEO, announced in a carpark outside the US Open that the ATP would run its own tour.Footnote ⁷⁹ In 1995, the WTA merged with the WIPTC (by then the Women’s Tennis Council) to establish the WTA Tour.Footnote ⁸⁰ In so doing, both the ATP and the WTA effectively completed their transformations from player unions to tennis governing bodies and businesses.

Business autonomy did not resolve the tension and division among the players. In 2003, the players again tried to unionize, with the establishment of the International Men’s Tennis Association (IMTA) with leading players such as Roger Federer, Marit Safin and Lleyton Hewitt signing up. The players’ concerns included the declining financial position of the ATP, the diminishing popularity of men’s tennis, and the inherent conflict of interest that existed in a body such as the ATP being responsible for advancing player rights while administering player discipline.Footnote ⁸¹ Federer, however, “consistently preferred to work within the system, lobbying and cajoling behind the scenes.” The IMTA would not succeed, and Federer would later serve as President of the ATP Player Advisory Council (PAC) – an advisory body within the ATP’s structure – from 2008 to 2014.Footnote ⁸² In the midst of his presidency and despite a substantial increase in ATP prize money between 2006 and 2011, players met to consider a boycott of the first tournament of 2012 – the Australian Open – over the prize money allocation of around $26 million from tournament revenues of $250 million, demonstrating that player complaints were focused on the Grand Slam tournaments as well as the ATP. Players indicated that prize money should at least be 30 percent of tournament revenues, arguably a “paltry” share in comparison with the major professional team sports in the United States.Footnote ⁸³

Ashe and King may have reflected harshly on themselves and their legacy, but they also did so presciently. Forty years after equal prize money was achieved at the US Open, the four highest paid women athletes in the world were all tennis players: Maria Sharapova, Li Na, Serena Williams and Caroline Wozniacki, each of whom made between $13 million and $27 million.Footnote ⁸⁴ When Ashe won the US Open in 1968, his prize money was $14,000, a reward he could not accept because of his army service.Footnote ⁸⁵ In 2021, both men and women US Open champions received $4 million.Footnote ⁸⁶

These amounts are relative and do not give the complete picture, however. Whether the world’s best tennis players are receiving a fair share of the revenue and wealth they create as well as keeping pace with the world’s best athletes in the 2020s are more salient questions, as is the position and well-being of all members of the profession. In 2023, only two tennis players were in the top 100 earning athletes – Novak Djokovic (46) and Carlos Alcaraz (56) – with prize money earnings of $15.9 million and $15.2 million and sponsorships of $29 million and $27 million, respectively. No woman was in the top 100, although women tennis players remained the world’s highest paid female athletes, with Coco Gauff being the top-earning female athlete, receiving $22.7 million in total combined earnings for her work and business activities on and off the court.Footnote ⁸⁷ Yet, tennis no longer monopolized the top 10 female income-earners, as it last did in 2019. Seven of the top 10 earners in 2022 and 2023 were tennis players, but only three were in 2021, highlighting the precarity of the tennis pay system in the context of the Covid-19 pandemic.Footnote ⁸⁸ In addition to the dramatic reductions in available prize money in 2020 and 2021,Footnote ⁸⁹ the players’ off-court earnings were also hit. According to Sportico, “almost every tennis sneaker and apparel contract is designed with minimum play requirements.”Footnote ⁹⁰

Unionized athletes in the intensely competitive sports of football, American football, baseball and basketball occupied eighty places in the top 100 in 2023.Footnote ⁹¹ The National Basketball Association (NBA) will pay its 450 players an average wage of $10.8 million in 2023/24,Footnote ⁹² an amount exceeded in 2023 prize money earnings by only three tennis players (all men) – Djokovic ($15.9 million), Alcaraz ($15.2 million) and Daniil Medvedev ($11.5 million). The 450th-ranked male tennis player in terms of annual prize money – Czechia’s Petr Nouza – earned a mere $48,428,Footnote ⁹³ while a rookie NBA player will be paid a guaranteed minimum wage of $1.1 million.Footnote ⁹⁴ And unlike NBA players, players like Nouza are “independent,” which means they are self-employed and responsible for overheads such as travel, coaching and other expenses, resulting in players commonly losing money on the tour.Footnote ⁹⁵ Many players don’t see this or the tour’s gross income inequality as unjust. When Covid-19 shut down the world of professional tennis in 2020 – even resulting in the cancellation of Wimbledon – the players were unable to reach a consensus on how to help the players most in need. Austria’s Dominic Thiem was one who refused to contribute to a relief fund: “There are many, many players who don’t put the sport above everything else and don’t live in a professional manner … I don’t really see why I should give such players money. None of us top players got anything handed to us, we all had to fight our way up.”Footnote ⁹⁶ The four majors, the ITF, the ATP and the WTA combined to fill a fraction of the need by establishing a $6 million Covid-19 relief package.Footnote ⁹⁷

In 2020, when Canadian Vasek Pospisil joined forces with Djokovic to establish the PTPA, he had already formed the view that “[t]here’s no way that tennis shouldn’t have 300 players making decent livings,” yet Chris O’Connell, the 139th best men’s tennis player, was “barely solvent.” As a Canadian, Pospisil had looked into the National Hockey League (NHL). There, the guaranteed minimum was $700,000 a season, and more than half were earning more than a million dollars. The answer, Pospisil was convinced, wasn’t because the NHL owners were benevolent. The players had a union.Footnote ⁹⁸ Djokovic had worked within the ATP PAC for years, alongside Federer and Rafael Nadal, then the undisputed “Big Three” of men’s tennis. Federer’s biographer Christopher Clarey writes, Djokovic was to “ultimately become the most radical of the Big Three” and led the launch of the PTPA that “sought to be an independent voice from the traditional men’s tour.”Footnote ⁹⁹ Some fifty years on, the players had come full circle.

4.1 The Voice of the Players in the Governance of Professional Tennis

According to Rothenberg, professional tennis is governed by “Seven Kingdoms”: the ITF, the ATP, the WTA and the four Grand Slam tournaments: the Australian Open, the French Open, the US Open and Wimbledon.Footnote ¹⁰⁰ Furthermore, given that tennis is an Olympic sport, the IOC – as the “supreme authority” of the Olympic Movement – exercises significant regulatory authority and control through international federations such as the ITF.Footnote ¹⁰¹ The IOC, for example, requires the “statutes, practice and activities” of the ITF to “be in conformity with the Olympic Charter,” including through “the adoption and implementation of the World Anti-Doping Code” (WADC). Moreover, the Court of Arbitration for Sport (CAS) has jurisdiction over all disputes involving a participant in the Olympic Games, challengeable decisions of the IOC, any dispute “arising on the occasion of, or in connection with, the Olympic Games”Footnote ¹⁰² and any appeal under the WADC.Footnote ¹⁰³ The ITF also recognizes the jurisdiction of the CAS in addition to its own adjudicating bodies.Footnote ¹⁰⁴ In 2021, the “Seven Kingdoms” established the International Tennis Integrity Agency (ITIA) “to promote, encourage, enhance and safeguard the integrity of their tennis events worldwide,”Footnote ¹⁰⁵ including by having carriage of the Tennis Anti-Doping Program (TADP) (which must accord with the WADC) and the Tennis Anti-Corruption Program (TACP), the focus of which includes the fight against match-fixing.Footnote ¹⁰⁶ This brings the total number of international bodies exercising legal and regulatory control over the rights, pay and conditions (including discipline) of professional tennis players to at least eleven. All eleven adopt modes of player and athlete engagement, representation and input into their decision-making bodies and processes, which: “regulate and control who can represent athletes”; are internal, subordinate and avoid player unions; and, in the case of the CAS, even involve – according to investigative journalist Grit Hartmann and sports governance think-tank, “Play the Game” – “[f]aking athletes’ representatives.”Footnote ¹⁰⁷

Moreover, the structures established to give players a voice exist within the tennis bodies and stand apart from one another. They are not designed and do not incorporate a player voice to holistically advance the rights and interests of the players in a way which is capable of addressing all eleven bodies at the same time in a united manner. In particular – absent the PTPA – there isn’t a directly organized player counterpart to the “Seven Kingdoms.” This also means – again absent the PTPA – that there isn’t a player body designed and structured to holistically support the players (both as athletes and people) as they navigate the various tours and confront the many professional and personal challenges involved in individually pursuing an elite playing career which, by its very nature, is transnational, short term and precarious, and will, for too many on the tour, define their sense of identity and self-worth.Footnote ¹⁰⁸

4.2 Player Rights, Pay and Conditions in Professional Tennis

The rights, pay and conditions of professional tennis players are extensively regulated. In addition to the TADP and the TADC, the principal means of regulation are the respective Rulebooks of the ATP and the WTA which, together, include some 956 published pages.Footnote ¹³⁸ As both are extremely complex – legally and commercially – a thorough analysis is beyond the scope of this chapter. Instead, this section will selectively focus on those aspects of the Rulebooks most pertinent to the pay and working conditions of professional tennis players and, connectedly, their historic, current and future union organizing efforts.

In several key respects, the Rulebooks continue to enshrine pro tennis’s first labor settlement of the first half of the 1970s, especially by embedding an independent model of professionalism, limiting player payments to prize money, monopolizing the respective tours and, in turn, creating a monopsonist labor market. The Rulebooks achieve this by providing for a system of work for players that has (at least) five main features: (1) player entry and mandatory terms (which incorporate the Rulebooks into a contract between the ATP or the WTA, on the one hand, and the player, on the other);Footnote ¹³⁹ (2) imposing strict minimum playing commitments (coupled with non-compete restraints);Footnote ¹⁴⁰ (3) limiting player payments to the forms of prize money, bonuses and other prizes;Footnote ¹⁴¹ (4) banning or restricting other forms of player payments and benefits, including appearance and promotional fees,Footnote ¹⁴² travel expensesFootnote ¹⁴³ and accommodation expenses;Footnote ¹⁴⁴ and (5) regulating player publicity, name, image and likeness, including mandating a player license to be granted in perpetuity for the purpose of advertising and promoting tennis events.Footnote ¹⁴⁵ The established system provides a potentially lucrative form of work for the top-performing and top-ranked players through the combination of prize money and the endorsements players can separately generate through the profile achieved from on-court success. However, the five features – when taken together – leave many players dependent on performance-based prize money for merely basic earnings, needing to generate sponsorship to meet the considerable costs involved in competing on tour, and unprotected in the event of injury or a lack of on-court success. In recognition of this, in late 2023, the ATP announced the three-year pilot of a new and potentially sixth feature of the system of work – ATP Baseline – which aims to provide minimum guaranteed income for the top 250-ranked players, a form of income protection for those players injured on tour and a financial investment in emerging talents in the form of an advance payment to eligible players ranked in the top 125. The ATP expects that about fifty players will receive financial support through the program. Eligibility is “based on a range of criteria,” including “a player’s ranking, career prize money earnings, and number of events players. Aligned with the purpose of the program, players with more than $15 [million] in career earnings are not eligible.”Footnote ¹⁴⁶

If a player is to lose his or her ranking, this can have a profound impact on the player’s earning potential and position on the tour. Many factors outside a player’s control can cause this. The WTA Rulebook includes a “special ranking rule” for players who are unable to compete for a minimum period of twenty-six weeks for reasons such as injury or pregnancy.Footnote ¹⁴⁷ The case of Simona Halep, however, reveals the fallout that can occur because of the combined effect of two complex sets of regulations which can run into conflict: the TADP and the rankings system. Halep successfully appealed her four-year doping ban to the CAS, with the suspension reduced to nine months. However, she had already been provisionally suspended and unable to play from August 2022 to March 2024.Footnote ¹⁴⁸ As a result, the WTA is contemplating another special ranking rule for players impacted by the TADP.Footnote ¹⁴⁹ This approach reveals that the WTA approaches these issues principally through the norms that have evolved on the tour – of which the rankings system is one – so that the basic rights of players can only be assured in exceptional circumstances and through “special” carve-outs to those norms.

Naomi Osaka’s experiences also reveal that the challenges involved affect even the most successful and higher-earning players.Footnote ¹⁵⁰ Her career has involved a struggle to reconcile her pursuit of a career as a professional tennis player with her advocacy for social justice following the killing of George Floyd, against racism and for her own mental health.Footnote ¹⁵¹ These are all internationally recognized human rights. Her experiences as a child athlete also bring to the fore the essential need for the industry to respect child rights, which encompass the right to be protected from “economic exploitation,” or from “performing any work that is likely to … interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.”Footnote ¹⁵² Naomi’s sister, Mari, retired at 21 after seven years on the tour with career earnings of $92,927, an average of little more than $13,000 per year, placing her 1,676th on the career earning list.Footnote ¹⁵³ Mari’s career best ranking was 280, but on the day Naomi became number one – January 28, 2019 – it had fallen to 332. A 2013 ITF study estimated that a female player would need to be ranked 253rd or higher to break even with minimal travel, lodging, equipment and coaching expenses, although, according to Rothenberg, “most in tennis thought the threshold was actually closer to 120th.” In 2018, Mari earned $15,002 in prize money, about 1/400th of Naomi’s $6,394,289.Footnote ¹⁵⁴

Jelena Dokic writes that “the tour can be a very difficult and lonely place for women,” for a number of reasons, especially that most begin at 15 or 16 years of age when still children and “very vulnerable”; most travel “without their parents, especially when they are starting out, because of a lack of finances,” and so “just take a coach for their tennis.” Dokic – who has revealed that she was physically and emotionally abused by her father Damir in the pursuit of her tennis career – argues that, while she agrees and supports with “[w]omen’s rights, gay rights, [and the] call for equal prize money … we need more people to stick up for the men, women, boys and girls who are being physically and emotionally abused.”Footnote ¹⁵⁵

Tables 6.4 and 6.5 respectively provide a comparative overview of 2023 prize money earnings on the ATP and the WTA Tours, taking into account the depth of player rankings. For the purpose of the overview, after including all in the top ten and players ranked fifty, rankings have been chosen based on ATP Baseline (the impact of which is also suggested in Table 6.4) and, for the WTA, the ITF’s “breakeven research” which highlights rankings 253 and, given Rothenberg’s suggestion, 120.Footnote ¹⁵⁶ Player 300 is included in each table to reflect the stated views of Pospisil on the establishment of the PTPA.Footnote ¹⁵⁷ The tables highlight the vast discrepancies in prize money between men and women.

5.1 Establishment of the PTPA in 2020 and the Reaction of the “Seven Kingdoms”

According to Steinberger, writing in 2021: “Tennis is brutally individualistic, and its lopsided economy, in which almost all the rewards go to a select few, inevitably makes collective action difficult if not impossible. It is a sport in which the superstars get most of the money and attention.”Footnote ¹⁵⁹ Ashe and King said pretty much the same, years ago. The world of professional tennis has evolved over a fifty-year period to aggressively reflect the ethos of the player movement, businesspeople and tennis authorities that brought about professional tennis’s first labor settlement – an ethos of business, entrepreneurialism, performance, vision, risk and growth in a system which pits player against player.Footnote ¹⁶¹ But Kramer, Heldman and the commercial pioneers of “Open Tennis” were impresarios, not monarchs. They did not intend to create the divisive culture which the game’s governors, whether deliberately or otherwise, have subsequently embedded. It was therefore ironic but unsurprising that the “Seven Kingdoms” responded to the establishment of the PTPA with a call for “collaboration, not division,” and for the players “to consider and act in the best interests of the sport, now and for the future.” Moreover, the tennis authorities reiterated that they “fully support the ATP in its role in representing the best interests of players.”Footnote ¹⁶² Key players concerned that the PTPA would be a divisive influence included Federer and Nadal.Footnote ¹⁶³ Along with four other members of the ATP PAC, both wrote to the players on the ATP Tour, expressing concerns over the possible implications of the PTPA, such as the tournaments “going against” the players and possible “fallout both with our careers, income and negativity.” In short, Federer and Nadal maintained, “[a] new Player Association cannot co-exist with the ATP.”Footnote ¹⁶⁴ ATP Chairman Andrea Gaudenzi also saw the PTPA as a competing organization and an existential threat to the ATP. “You have,” Gaudenzi said, “what other athletes in other sports would strive for – a seat at the boardroom table. That is what players fought for in the creation of the ATP Tour … It makes no sense why you would be better served by shifting your role from the inside to the outside of the governance structure.”Footnote ¹⁶⁵ Gaudenzi’s perspective is important, and raises for discussion whether the players would in fact be better and measurably served through external union representation, whether that representation necessitates a diminution of the position of the players within the governance of the ATP, and whether the ATP is willing to openly concede to the players its historical transformation from a player association to a governing body.

Djokovic and Pospisil – as the founding co-Presidents of the new PTPA – were clear that the “the goal of the PTPA is not to replace the ATP, but to provide players with a self-governance structure that is independent from the ATP and directly responsive to player-members’ needs and concerns.” Pospisil informed the players that the creation of the PTPA was “the first and most pivotal step” and that “[t]here will be a lot of work in building and perfecting the operations of this association” which will “essentially [have] the same function as a union.” Its stated goals include “revenue sharing, disciplinary actions, player pensions, travel, insurance and amenities at tournaments.”Footnote ¹⁶⁶

Importantly, the reaction of the “Seven Kingdoms” did not in any way acknowledge the trade union rights of the professional tennis players, nor the respective responsibilities of the tennis bodies to respect those rights. At the heart of this is the tension between the position of the players within the existing governance structures of the tennis bodies and the existence of an external and independent player union. While this tension – described immediately by management and some influential players as representing an existential threat – is novel to the world of professional tennis, it is not uncommon within international labor relations. In that broader context, by way of contrast, the presence of workers’ representatives within management structures are more commonly viewed as threats to the trade union, rather than to management. International labor standards “encourage cooperation on all relevant matters”Footnote ¹⁶⁷ and “contain explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned.”Footnote ¹⁶⁸ All parties will certainly need to strategically assess the interaction of both forms of player representation. It is quite wrong, however, for the tennis authorities or leading players to view the emergence of the PTPA in existential terms and jump to the conclusion that all can’t coexist.

5.2 The Developing Culture, Governance, Structure and Objectives of the PTPA

The PTPA, established as a not-for-profit corporation in Canada,Footnote ¹⁶⁹ is “committed to safeguarding and supporting men’s and women’s professional tennis players worldwide” and has adopted a series of principles “designed as a roadmap for the Association’s advocacy work on behalf of all professional tennis players.”Footnote ¹⁷⁰ The “five core tenets” of the principles, which were established in accordance with the WPA’s UDPR, are:

The principles are also designed to squarely address the player versus player dynamic that can be so at odds with the imperative of trade union solidarity. The first principle aims to build a consciousness of trade union rights among the PTPA membership, and incorporates the “collective,” “freedom of association” and “the right to organize.” It acknowledges that “[t]ennis is predominantly an individual sport, but that should not mean individual players are isolated and divided.”Footnote ¹⁷² The release of the PTPA’s principles in January 2023 coincided with the announcement of its inaugural Board, which, as shown in Table 6.6, includes co-founders Djokovic and Pospisil and is comprised with an eye to gender equality and cultural diversity.

The PTPA’s articulation of its purpose and principles shows that the developing culture of the PTPA is not one that seeks to be embedded in the existing norms of professional tennis, but instead in trade and player unionism, so that new industry norms can be created. The PTPA is well aware that the existing model of player representation in professional tennis has seen many players fall outside the protections of the system, and many fundamental issues of player rights such as abuse have been inadequately addressed, if at all. The PTPA also points to the achievements of player unions in major professional team sports and asks whether the ATP and WTA are offering the world’s best tennis players a deal which stands up in comparison. Organizing starts with education, and one of the key themes of the PTPA’s communications has been around the second tenet of its principles – the players’ share of the revenue and wealth of the sport. PTPA research indicates that the players’ estimated share of revenue at 17.5 percent is very low by comparison to the players in major professional team sports, which are much closer to a 50/50 split. The players’ share in tennis is even lower by comparison as in team sports major costs such as coaching, travel, accommodation, medical care and equipment are all borne by management, not by the players from their share.Footnote ¹⁷⁴ And, as Isner had already pointed out in describing a “broken system,” this only takes into account revenue, not the value of assets such as prestigious tournaments that appreciate over the long term.Footnote ¹⁷⁵

The creation of the PTPA comes at a historic time for the player union movement, which is undergoing a third wave of organizing.Footnote ¹⁷⁶ The first wave began in the 1960s, when the PFA – some fifty years after its establishment – won its first major labor disputes over the transfer system and the abolition of the maximum weekly wage.Footnote ¹⁷⁷ It was towards the end of this wave – which saw the creation of player associations in the major professional sports in the United States and European football – that the ITPA, ATP and WTA were created. The second wave began with the widespread growth of full-time professionalism in many sports with the advent of subscription television in the 1990s, which also saw earlier established player associations reformed, resourced, modernized and globalized. Australian rules football, basketball, cricket, football, Gaelic sports, rugby league and rugby union were among those that reached new levels of organization, which also saw the creation of international player union federations especially in sports such as cricket, football, rugby and on a multi-sport basis at the European and global levels to deal with the increasingly transnational nature of professional sport’s labor relations.Footnote ¹⁷⁸ It was in the midst of this wave that the IMTA was attempted.

The third and current wave is the most sophisticated. Dabscheck estimates over 200 player associations now exist,Footnote ¹⁷⁹ with 138 based in more than sixty countries representing some 85,000 professional athletes combining under the multi-sport international labor federation, the WPA.Footnote ¹⁸⁰ In addition to its scale, three key features of the third wave are the organized commitment of the player unions to embed human rights in sport,Footnote ¹⁸¹ including athlete trade union rights,Footnote ¹⁸² the sharing of expertise and knowledge among the unions on key issues such as the holistic personal development and well-being of players,Footnote ¹⁸³ and the embrace of commercialization in the conduct of the business of the players’ association so that the players have the resources, financial clout and leverage to match management at the bargaining table. This is being described as “the entrepreneurial era of player unions.”Footnote ¹⁸⁴ Nassar, appointed as the inaugural PTPA Executive Director in August 2022, is one of the era’s driving forces, having served as the founding CEO of One Team Partners and President of NFL Players Inc., which he helped grow into one of the largest for-profit marketing and licensing businesses in the world.Footnote ¹⁸⁵ In 2023, the NFL Players Association (NFLPA) was ranked by License Global as the 24th biggest licensor in the world (The Walt Disney Company was number one), with retail sales of $2.7 billion. A year earlier, NFLPA commercial revenue exceeded $300 million for the first time.Footnote ¹⁸⁶ One Team Partners aims to maximize the value of athlete name, image and likeness rights, and brings together the group licensing, marketing, media and investing activities of six major player associations, including the NFLPA, the MLBPA and two major groups of women athletes, the Women’s National Basketball Players’ Association and the US Women’s National [Soccer] Team Players Association.Footnote ¹⁸⁷ To this end, one of Nassar’s first initiatives was the raising of $26 million in equity to create the Winners Alliance, which will also serve as the PTPA’s for-profit arm.Footnote ¹⁸⁸ In addition to seeking to maximize through group licensing of the name, image and likeness rights of PTPA members, the Winners Alliance has partnered with the Federation of International Cricketers’ Associations (FICA) to “protect and optimize [the] global commercial rights of cricketers.”Footnote ¹⁸⁹

The creation of the PTPA also comes at a time when professional tennis itself is considering “seismic” change. A “Premier Tour” is under contemplation especially by the four majors, with research by the Boston Consulting Group revealing that 70 percent of tennis fans watched only the four majors, and 80 percent of the sport’s revenue comes from the top 10 tournaments, including the majors. A new tour could provide opportunities for the top 300 men and women players and result in equal prize money. The key, according to Tennis Australia CEO Craig Tiley, is for a “transformational way forward” to “become a player-centric and fan-centric proposal.”Footnote ¹⁹⁰ This will necessarily involve professional tennis forging a new labor settlement with its players.

Two key questions arise and will only be answered in the medium term. First, will the PTPA be required to organize and unify the players to attain a level of collective action such as that seen in 1973 when, as player unions, the ATP boycotted Wimbledon and the WTA won equal prize money at Forest Hills? And second, if the PTPA is, will that activism be converted – for the first time in the history of professional tennis – into collective bargaining? Perhaps then, one of the world’s greatest sports can successfully replace its Darwinian system with a culture that truly appreciates that players are people first, athletes a distant second, and that they deserve to be genuine partners in the business of the game.