英语论文网

the sport itself. For these reasons, courts will be giving sporting associations' considerable latitude. Critically, it is submitted that it will be important for the golf associations to establish their reasons ex-ante - the danger that if this is not done, the arguments presented may simply be seen as some form of ex-post rationalisation for what has occurred.

In terms of rules setting, two broad approaches could be adopted. The first, which is what the golfing associations have done is to adopt broad performance benchmarks. Provided the club or piece of equipment operates within the limits set by those benchmarks, then the item can legitimately be used. In many respects these types of parameters may well encourage competition as golf manufacturers alter shapes, move weight distribution, or provide changeability within the club to meet the personalised needs of an individual golfer. An alternative is to set specification standards. However, these are prescriptive by nature and may actually stifle design far more than benchmark limits. For example, the rules of tennis provide that: “No energy source that in any way changes or affects the playing characteristics of a racket may be built into or attached to a racket.” It is submitted that this is far more likely to fall foul of anti-competition provisions that the benchmarks standards associated with golf. It is quite conceivable that a manufacturer could design a tennis racquet that would have an energy source attached, but which did not affect, in any way, how tennis has traditionally been played.

Were all Stakeholders given the Opportunity to Comment?

The attitude of the United States Golf Association and the Royal and the Ancient is clearly delineated in its Statement of Principles. As innovation occurs, they will continue to consult with interested parties, with this including their notice and comment procedures involving the publication of proposed changes, and discussion with stakeholders. An example of this procedure working to the benefit of all parties illustrated by the new rules for the adjustability in irons and woods that commenced January 1, 2008. Manufacturer input was that this would create new opportunities for golfers as well as innovators, without in any way diminishing the challenge of the game. Developers are also encouraged to submit any clubs to the regulators prior to release on the market. The importance of procedural fairness recognised in Gunter Harz Sports Inc v United States Tennis Association where the Court commented:

“The [International Tennis Federation's (ITF)] notice and comment procedure concerning the proposed rule was sufficient to inform those potentially affected by the rule of the ITF's concern about rackets which imparted excessive topspin to the ball, as well as to allow interested parties to be heard regarding the proposed rule. In view of the [United States Tennis Association's (USTA)] relationship to the ITF and its decision to delegate its rule making authority to that body, the USTA assumed vicarious responsibility for any failure of the ITF to provide procedural safeguards, but, on the other land, escapes liability under [the Antitrust] legislation when the ITF's procedures are found sufficient under the [legislation].”