Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.
Act II: On being
Paragraph 2 of the IOC Decision: “The IFs to
examine the information contained in the IP Report, and for such purpose seek
from WADA the names of athletes and National Federations (NFs) implicated.
Nobody implicated, be it an athlete, an official, or an NF, may be accepted for
entry or accreditation for the Olympic Games.”
The second, and by far largest,
wave of complaints involved Russian athletes barred from the game under
paragraph 2 of the IOC Decision. None of those were successful in their appeals
as the CAS sided with those IFs which took a tough stance with regard to the
Russian State doping system. The first set of cases turned on the definition of
the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this
regard, on 2 August the IOC sent a communication to the IFs aiming at providing
some general guidelines. It reads as follows:
"In view of
the recent appeals filed by Russian Athletes with CAS, the IOC considers it
necessary to clarify the meaning of the notion "implicated" in the EB
The IOC does not
consider that each athlete referred to in the McLaren Lists shall be considered
per se "implicated. It is for each International federation to assess, on
the basis of the information provided in the McLaren lists and the Independent
Person Report, whether it is satisfied that the Athlete in question was
implicated in the Russian State-controlled doping scheme.
To assist the
International Federations in assessing each individual case, the IOC wishes to
provide some information. In the IOC's opinion, an athlete should not be
considered as "implicated" where:
The order was a "quarantine".
The McLaren List
does not refer to a prohibited
substance which would
have given rise
to an anti-doping rule violation or;
The McLaren List
does not refer to any prohibited substance with respect
to a given
The CAS went on to address this
question concretely in three cases analysed below. More...
Since it was first introduced at
the Atlanta Games in 1996,
the CAS ad hoc Division has never been as crowded as it was during this year’s Rio
Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their
ineligibility to compete at the Games. The CAS recently revealed that out
of 28 awards rendered, 16 involved Russian athletes challenging their
ineligibility. This Russian ballet is
a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA).
McLaren’s investigation demonstrated that the Russian State was coordinating a
sophisticated doping system. The revelation triggered an outrage in the media
and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian
delegation from the Olympics. The IAAF decided to exclude
the whole Russian athletics team, 
with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead,
to put in place a specific procedure to assess on a case-by-case basis the
eligibility of Russian athletes.
The IOC’s Decision (IOC
Decision) of 24 July foresees that the International Federations (IFs) are
competent to determine whether each Russian athlete put forward by the Russian
Olympic Committee (ROC) to participate in the Olympics meets a specific set of
conditions. Moreover, the ROC was also barred from entering athletes who were
sanctioned for doping in the past, even if they have already served their
doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some
of them did not, and many of the latter ended up fighting for their right to
compete at the Rio Olympics before the CAS ad hoc Division.
In the following blogs, I will analyse the ten published CAS awards related to
Russian athletes. It
is these legal fights that I suggest to chronicle in the following parts of this
blog. To do so, I have divided them in five different (and analytically coherent)
Editor’s note: This report compiles all relevant news, events and materials on
International and European Sports Law based on the daily coverage provided on
our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section
below, feel free to add links to important cases, documents and articles we
might have overlooked.
For the world of Sport, the elsewhere known “sleepy month” of August
turned out to be the total opposite. Having only just recuperated from this
year’s Tour de France, including a spectacular uphill sprint on bicycle shoes
by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of
marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de
Editor's note: Marine Montejo is a graduate from the
College of Europe in Bruges and is currently an intern at the ASSER
International Sports Law Centre.
On 14 July 2016, the
Belgian competition authority refused to grant provisional measures to the
White Star Woluwe Football Club (“The White Star”), which would have allowed it
to compete in the Belgian top football division. The club was refused a licence
to compete in the above mentioned competition first by the Licences Commission
of the national football federation (“Union Royale Belge des Sociétés de
Foootball Association” or “URBSFA”) and then by the Belgian court of
arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The
White Star lodged a complaint to the national competition authority (“NCA”) and
requested provisional measures. The
Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to
accept the reviewability of an arbitral award’s conformity with EU competition
law (articles 101 and 102 TFEU). More...
Editor’s note: Guido graduated cum
laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus
Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.
This blog is a commentary on a recent case that hit
like a bombshell in the Netherlands (and
the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van
Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC
(NOC*NSF) after a night out in Rio and launched legal proceedings in front of a
Dutch court to claim back his place in the finals. This commentary will attempt
to explain the Dutch ruling and evaluate whether a different legal route would
have been possible and preferable. More...
This is part two of the blog on the Willem
II and MVV State Aid decisions. Where
part one served as an introduction on the two cases, part two will analyze the
compatibility assessment made by the Commission in two decisions.
compatibility of the aid to MVV and Willem II (re-)assessed
Even though it was the Netherlands’
task to invoke possible grounds of compatibility and to demonstrate that the
conditions for such compatibility were met, the aid granted to both Willem II
and MVV was never notified. The Netherland’s failure to fulfill its notification
obligation, therefore, appears to be at odds with the Commission’s final
decision to declare the aid compatible with EU law. Yet, a closer look at the
Commission’s decision of 6 March 2013 to launch the formal investigation shows
that the Commission was giving the Netherlands a ‘second chance’ to invoke
grounds that would lead to a justification of the measures.More...
The European Commission’s decisions of 4 July 2016 to order the recovery of the State aid granted to seven
Spanish professional football clubs
were in a previous blog called historic. It was
the first time that professional football clubs have been ordered to repay aid
received from (local) public authorities. Less attention has been given to five
other decisions also made public that day, which cleared support measures for five football clubs in the Netherlands. The clubs in question were PSV Eindhoven, MVV Maastricht, NEC Nijmegen,
FC Den Bosch and Willem II.
Given the inherent political sensitivity of State aid recovery
decisions, it is logical that the “Spanish decisions” were covered more widely
than the “Dutch decisions”. Furthermore, clubs like Real Madrid and FC
Barcelona automatically get more media attention than FC Den Bosch or Willem
II. Yet, even though the “Dutch decisions” are of a lower profile, from an EU
State aid law perspective, they are not necessarily less interesting.
A few days before entering the quiet month of August, the Commission
published the non-confidential versions of its decisions concerning PSV Eindhoven, Willem II and MVV Maastricht (hereinafter:
“MVV”). The swiftness of these publications is somewhat surprising, since it often
takes at least three months to solve all the confidentiality issues.
Nonetheless, nobody will complain (especially not me) about this opportunity to
analyze in depth these new decisions. More...
Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.
On Sunday, August
21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight
will dim not only on the athletes who return to their home countries to ply their
trade in relative obscurity, but also on the country of Brazil.
Once the Games have ended, life will go ‘back to normal’, although for many
residents of Rio de Janeiro, what is ‘normal’ is anything but. More...
Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.
Over the past days, we have been flooded by
media reports discussing the “Caster Semenya-case”, reports rapidly relayed in
social networks. Since the debate has a distinct legal component and since
almost every report appears to draw significantly from the legal background, I granted
myself permission – as compensation so to speak - to publish a somewhat more personal,
less legal, post than I usually would.
Let me make one thing clear from the outset
– I am still ‘agnostic’ about the question of how to solve the issues
surrounding the male versus female divide in sports. Each time I have been
asked to write or speak on the subject, I have tried to stick to describing the
legal situation and its implications. I do not have the miracle solution as to
how to handle this infinitely complex issue. And I am not sure anyone can claim
to hold that solution at this point. Like everyone, I am doing my research and
trying to be humble enough to stay within the realm of my competences. More...
Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized
in sports and nationality issues. He is also Legal Affairs Manager at the Fédération
Internationale de Volleyball. Yann is
an editor of the ASSER International Sports Law Blog and has previously
published on the blog on nationality conundrums at the FIFA World Cup 2014 in
Brazil (see here).
This contribution aims to decipher
the relationship between sporting nationality and the Olympic Games. To this
end, the author will first define sporting nationality and discuss athletes’
eligibility in national team in the context of the Olympic Games. Then,
selected issues in relation with sporting nationality and the Olympic Games
(with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated.