Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – June 2016. By Kester Mekenkamp

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.   


The headlines

What a month June turned out to be. Waking up the morning after the 23rd, the results of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently there is nothing that cannot happen today”, might provide the most apt description of the mood felt at the time.[1] The Leave campaign’s narrow victory has brought along tremendous economic, political and legal uncertainties for both the UK and the (other) Member States. To give but one example, with regard to the implications of Brexit on Europe’s most profiting football league, we recommend an older blog by Daniel Geey and Jonny Madill.

Perhaps just as shocking as the UK’s wish for secession, was the Bundesgerichtshof decision in the infamous Pechstein case. On 7 June the highest German civil court ruled in favour of the validity of forced CAS arbitration and the independence of the CAS, leaving Claudia Pechstein to cough up roughly EUR 300 000 in legal expenses. For a critical analysis of the decision see Antoine Duval’s blog.

Operación Puerto, deemed “one of the most infamous and obscure doping sagas in history”, saw a new chapter being added on 14 June. A Spanish special criminal appeal chamber held that the more than 200 blood bags of professional athletes (which had been stored since their confiscation in 2006) can be delivered to the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). Oskar van Maren examined the case in a blog.

Last but not least, in June we witnessed the IAAF upholding its decision not to reinstate the Russian Athletics Federation (RusAF) for IAAF Membership. This means that Russian athletes will still not be allowed to compete in International Competitions under IAAF Rules including the European Championships and the Rio 2016 Olympic Games. A few days later, the 21th of June, the IOC endorsed IAAF’s position. Though it also potentially opened the door for Russian athletes to demonstrate that they are clean. The IAAF’s decision was appealed collectively by 61 Russian athletes to the CAS, and the final decision is due before the start of the Olympic Games in Rio. 


Case law

On June 3rd a temporary injunction was granted by the Landgericht München in the case between the International Basketball Federation (FIBA) and FIBA Europe versus several basketball clubs. The court ruled that FIBA may not prevent these clubs from participating in the so-called Euroleague competitions. The alleged abuse of a dominant position is addressed in a blog by Marine Montejo. Yet the injunction was annulled in a subsequent decision of the LG München.

Famous tennis star Maria Sharapova was found to have violated anti-doping rules for the use of the controversial ‘meldonium’. A specially appointed independent tribunal imposed a two-year ban, disqualifying her from professional tennis from 26 January 2016 to 25 January 2018 (see also this piece by James Segan). In reply, she appealed the decision to the CAS, which is due to decide the case in September. This will prevent her from participating at the Olympic Games in Rio.

A key player in our Unpacking Doyen’s TPO deals blogs, football club FC Twente, found itself in a rollercoaster of conflicting decisions during the end of season 2015/2016. On 18 May the licensing committee of the Dutch football federation (KNVB) issued a decision in which it relegated the club to the second (and lowest) professional league. It did so by creating a new ad hoc license for the second league, which did not exist before. Subsequently on 10 June, in summary proceedings before the district court, FC Twente’s request for provisional measures got rejected, and the relegation approved. Yet only a week later, the KNVB’s appeal committee overturned the licensing committee’s initial ruling. As a result FC Twente will stay in the highest professional league 


Official documents and Press releases

CAS – Statement on the decision made by the German Federal Tribunal in the case between Claudia Pechstein and the International Skating Union (ISU)

CAS – Maria Sharapova files an appeal at the Court of Arbitration for Sport, Tennis, Anti-doping

CAS – List upcoming hearings

CAS – KS Skenderbeu files an appeal at the Court of Arbitration for Sport, Football

CAS – The Appeal filed by Galatasaray SK is rejected by the Court of Arbitration for Sport

European Council - Council conclusions on enhancing integrity, transparency and good governance in major sport events

European Commission - Mapping and Analysis of the Specificity of Sport, A Final Report to the DG Education & Culture of the European Commission

FIBA - FIBA Europe welcomes Munich court decision to cancel temporary injunction

FIFA - Attorneys for FIFA provide update on internal investigation and details on compensation for former top officials

FIFA - Overview of Important Provisions contained in the Employment Contracts of Messrs. Blatter, Valcke and Kattner since 2007

FIFA - Circular no. 1542, Amendments to the Regulations on the Status and Transfer of Players

FIFA - Circular no. 1545, FIFA Forward Programme/2016 financial support - operational costs

IAAF – Ethics board statement 10 June 2016

IAAF - Response to Ethics Board statement

IAAF - Decision on Russia's participation in Rio Olympics

IAAF – IAAF Taskforce: Interim report to IAAF Council, 17 June 2016

IOC - Declaration of the Olympic Summit

ISU - Decision of the Bundesgerichtshof in the case of Ms. Claudia Pechstein

KNVB – Besluit licentiecommissie betaald voetbal 26 november 2015

WADA - International Standard for Laboratories (ISL)

WADA - WADA Update regarding Maria Sharapova Case

WADA - Acknowledges Madrid Court decision to provide access to "Operation Puerto" athlete blood bags

WADA - WADA Suspends the Accreditation of the Almaty Laboratory 


In the news

Athletics

Rebecca R. Ruiz, Juliet Macur and Ian Austen - Even With Confession of Cheating, World’s Doping Watchdog Did Nothing

Cycling

Stuart Clarke - Judge rules athletes implicated in Operation Puerto can be identified

Culture, Media and Sport Committee – Whistleblower Dan Stevens in front of the Committee

Football

Guardian - Football clubs in England’s top four tiers generated more than £4bn in 2014-15

Brian Homewood - No formal proceedings against FIFA chief Infantino says ethics committee

Mary Papenfuss - Auditor KPMG pulling out of Fifa because of 'lack of commitment' to reform

SBD - Barcelona Pleads Guilty To Fraud In Neymar Case, Agrees To Pay $6.2M Fine 

Olympics

Nick Butler - Exclusive: Clause at centre of European Championships contract row is "superseded"

James M. Dorsey - Kuwaiti Rulers Fight their Internal Battles on the Sports Field

Sam Morshead - 'It's like a badminton player playing tennis': Boxing comes under fire after voting for professionals to compete at Rio Olympics just 10 weeks before the Games

Dan Roan - Russia and Rio 2016: How the IOC is working up an Olympic compromise

SBS - Sailors take Olympic appeal bid to CAS

Pechstein case

Deutschlandfunk - "Sportler sollten Gerichtsbarkeit wählen können"

FAZ - Claudia Pechstein droht Schuldenberg

FIFPro - Despite decision, Pechstein must trigger reform

Johannes Herber - Urteil im Fall Pechstein, "Siegen oder sterben"

Swimming

Kor. Herald - Park Tae-hwan resumes arbitration proceedings against Olympic ban

David Leggat - Kane Radford, Charlotte Webby set to appeal Olympic snubs 


Academic materials

Dawn Aquilina and Angelo Chetcuti, The Aftermath of a Match-Fixing Case that Shook Two Nations: Insights into How Malta and Norway Are Seeking to Redeem Their Football

Bruce W. Bean, FIFA — The Reform Charade Continues

Richard Bunworth - Egg-shell skulls or institutional negligence? The liability of World Rugby for incidents of concussion suffered by professional players in England and Ireland

Antoine Duval, Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport

Antoine Duval, Herman Ram, Marjolaine Viret, Emily Wisnosky, Howard L. Jacobs and Mike Morgan - The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium

Arnout Geeraert and Edith Drieskens, Theorising the EU and International Sport: The Principal-Agent Model and Beyond

Andrew C. Harmes, Forecheck, backcheck . . . paycheck? Employment status of the quasi-professional athlete: A case study of the CHL and the Major junior hockey player

Thomas Margoni, The Protection of Sports Events in the EU: Property, Intellectual Property, Unfair Competition and Special Forms of Protection

Despina Mavromati, The Legality of an Arbitration Agreement in Favour of CAS Under German Civil and Competition Law - The Pechstein Ruling of the German Federal Tribunal (BGH) of 7 June 2016

Karen Petry, The Beginnings and Development of European Sport Research at Universities: From Marginalisation to Fragmentation?

Ryan M. Rodenberg, Jeff Sackmann and Chris Groer - Tennis integrity: a sports law analytics review

Stephen Kirwan, Levelling the Playing Field? Remuneration Caps, EU Competition Law and Article 7(3) of the FIFA Regulations on Working With Intermediaries

Zachary Shapiro, Regulation, prohibition, and dantasy: The case of FanDuel, DraftKings, and Daily Fantasy Sports in New York and Massachusetts

Joshua D. Winneker, Philip Schultze and Sam C. Ehrlich, Lights, Camera, … Injury! The NBA Needs to Ban Courtside Cameramen 


Books

Michael Barry, James Skinner and Terry Engelberg, Research Handbook of Employment Relations in Sport

Antoine Duval, Ben Van Rompuy (Eds.), The Legacy of Bosman, Revisiting the Relationship Between EU Law and Sport

LawInSport and the British Association for Sport and Law, Sports Law Yearbook 2015/16 - UK, Ireland and EU eBook.

Götz Schulze, Aktuelle Rechtsfragen im Profifußball: Psychologische Faktoren und rechtliche Gestaltung Taschenbuch  


Blogs

Gregory Basnier, Joint selling of French Rugby’s tv rights: A review of the recent competition law cases

Carol Couse and Jake Cohen, The potential impact of Brexit on European football

Johanna Croon-Gestefeld, Der BGH und Pechstein: Transnationaler Konstitutionalismus sieht anders aus

Thomas Croxford and Nick De Marco, Fiduciary duties, football, and the fundamental importance of the contractual relationship

Juan de Dios and Crespo Pérez, Operación Puerto: A long and winding road in the fight against doping

Antoine Duval, The BGH’s Pechstein Decision: A Surrealist Ruling

Antoine Duval, The Pechstein case: Transnational constitutionalism in inaction at the Bundesgerichtshof

Antonia Foster, Advice for Athletes facing false allegations by the press – Practical and Legal Options

Ryan Lake, Signing new talent: How the entry draft system works in the National Hockey League

Daniel Lowen, Determining the level of compensations for out of contract football players: The PFCC Danny Ings Award

Jonny Madill and Jack Jones, Sharing sports clips in the digital age: 6 things you should know

Oskar van Maren, The EU State aid and Sport Saga: Hungary revisited? (Part 2)

Oskar van Maren, Operación Puerto Strikes Back!

Kester Mekenkamp, The Müller case: Revisiting the compatibility of fixed term contracts in football with EU Law

Lance Miller, Celeste Koravos and Nick Fitzpatrick, Sustainable procurement at Tokyo 2020 Olympics: Top 10 tips for a winning bid

Marine Montejo, FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München

Kimberly Morris and Barry Lysaght, How FIFA TMS Investigations increase transparency and accountability in international football transfers

Tim Owen, Sport, corruption and the criminal law: the need for an expert investigative body

Fabian Reinholz, Das Pechstein urteil nimmt dem sport reformdruck

Jennifer E. Rothman and Eugene Volokh, Brief of 28 constitutional law and intellectual property law professors as Amici Curiae in support of petitioner in, No. 15-1388, In the Supreme Court of the United States, National Collegiate Athletic Association, petitioner, v. Edward C. O’Bannon et al., Respondents

James Segan, A riddle wrapped in a mystery inside an enigma: the Sharapova case

Andrew Smith, A review of the updates to FIFA’s Regulations on the Status and Transfer of Players

The Swiss Rambler, Nottingham Forest - From The Ritz To The Rubble

The Swiss Rambler, Wolverhampton Wanderers - After The Gold Rush

WADC Commentary Team, Meldonium and Moral Fault: Five Lessons Learned from the Sharapova ITF Tribunal Decision

Mathias Wittinghofer and  Sylvia Schenk, A Never Ending Story: Claudia Pechstein’s Challenge to the CAS

John Wolohan, The integrity of education in college sport: does the NCAA model compromise athlete welfare? 


Upcoming events

14 July - Sports Corruption 2016 Conference, MBL Seminars London

19 – 21 July - Executive Programme in International Sports Law, Sports Law and Policy Centre, Ravello, Italy

2 & 3 September - International Sport Arbitration 6th Conference CAS & SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland

16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK

26 September - Soccerex - Global Convention 2016, Manchester, UK 




[1] Mark Twain, American author (30 November 1835/21 April 1910)

Loading
Asser International Sports Law Blog | 20 Years After Bosman - The New Frontiers of EU Law and Sport - Special Issue of the Maastricht Journal of European and Comparative Law

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

20 Years After Bosman - The New Frontiers of EU Law and Sport - Special Issue of the Maastricht Journal of European and Comparative Law

Editor's note: This is a short introduction written for the special Issue of the Maastricht Journal of European and Comparative Law celebrating the 20 years of the Bosman ruling and dedicated to the new frontiers of EU law and Sport (the articles are available here). For those willing to gain a deeper insight into the content of the Issue we organize (in collaboration with Maastricht University and the Maastricht Journal) a launching event with many of the authors in Brussels tomorrow (More info here).



 20 Years After Bosman - The New Frontiers of EU Law and Sport

By Antoine Duval

The Bosman ruling is not just another ruling of the Court of Justice of the EU (CJEU), it is by far the most well-known decision of the Court outside of the Euro-bubble.[1] In the UK the phrase ‘a Bosman’ is commonly used to qualify the free move of a football player to a new club at the end of his contract. Beyond its anchoring in the English idiom, Bosman stands out as a shared European reference. However, it is often – misleadingly - credited for all the ills and wrongs of football. In any case, it is part and parcel of the European (even worldwide) public debate on football and its regulation. If a European public sphere is to emerge at some point, the heated public discussion that was triggered in Europe by Bosman is probably an avant-goût of it. Therefore, 20 years after the ruling, the least a European sports lawyer and academic can do, is to acknowledge ones indebtedness and, to some extent, gratitude for this ruling.

One aspect that needs to be emphasized is that Bosman is not an instrument with the paramount objective to deregulate the football market or the world of sport in general. It is not, as many on the side of the Sports Governing Bodies (SGBs), and FIFA and UEFA in particular, have portrayed it, a decision aimed at destroying the transnational legal system (also known as lex sportiva) they had put in place to coordinate the organization and unfolding of transnational sporting competitions. On the contrary, SGBs have the possibility to justify their rules and regulations. As Stephen Weatherill rightly pointed out long ago, the only requirement SGBs have to fulfil to ensure that their regulations comply with EU law is to explain convincingly why they are needed.[2] Thus, a constructive (and positive) perspective on Bosman stresses its constitutional over its deregulatory function. Private regulations adopted by private powers, which are not particularly renowned for the quality of their governance, need to be subject to checks and balances. After Bosman, the EU free movement rights and competition law have impersonated such a check on (or counter-power to) the rules privately adopted and enforced by SGBs. In fact, it is here that the true, long-lasting legacy of Bosman lies.

This issue brings together a mixed line-up of both young and established scholars, sports law experts and EU law specialists, to discuss the legacy of Bosman and the future of the relationship between EU law and sport. Besides the synthetic and comprehensive introductory piece of Stefaan Van Den Bogaert that brings us back to the original crusade of Mr Bosman, all the contributions are geared towards the recent and future legacies of the ruling. A broad range of legal problems raised by the interaction of EU law and sport is touched upon. 

In the first article, Ben Van Rompuy builds on Advocate General Lenz’s conclusions in Bosman, the following practice adopted by the EU Commission as well as on the case law of the CJEU on competition law and sport to argue that competition law can be a powerful tool to impose a legal check on the regulatory practices of SGBs.

In the second piece, Phedon Nicolaides analyses a relatively new front line between EU law and sport: state aid. Although not directly connected to Bosman, state aid cases are taking a prominent place in the practice of the EU Commission in the field of sport. In fact, state aid law has become a useful legal proxy to control the way public authorities decide to support economically sporting organizations and their events.

The third piece by the editor of this issue is dedicated to the interaction between the Court of Arbitration for Sport (CAS) and EU law. Indeed, the emergence of the CAS is probably the most important institutional legacy of Bosman, and EU law now has a role to play in exercising a form of ‘Solange’ control over CAS’s judicial activity.

In the fourth article, which follows most clearly into the footpath of Bosman, Richard Parrish discusses the compatibility of the FIFA Regulations on the Status and Transfers of Players (RSTP) with EU law. He suggests that the RSTP as it stands can be deemed contrary to EU law.

The fifth article of the issue by Jacob Kornbeck, a former member of the sports unit of the European Commission, analyses the role of the Commission in the drafting process of the new World Anti-Doping Code recently adopted by the World Anti-Doping Agency. He highlights that the ethos of Bosman spread to other spheres of action of the EU in sport and shows concretely in what way it influenced the position of the EU in the negotiations over the new Code that entered into force in January 2015. Finally, Anna Sabrina Wollmann, Olivier Vonk and Gerard-René de Groot look at the growing problem of nationality requirements in sports. If Bosman stands more particularly for an Europeanization of football, globalization and the ease of cross-border movement for professional sportspeople have heightened the question of the sporting nationality of athletes worldwide. This contribution critically analyses the many calls for a separate sporting nationality and proposes an alternative path.


[1] Case C-415/93 Union royale belge des sociétés de football association ASBL v. Jean-Marc Bosman, Royal club liégeois SA v. Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v. Jean-Marc Bosman, EU:C:1995:463.

[2] ‘The ECJ has collapsed the idea that there are purely sporting practices unaffected by EC law despite their economic effect, but it has not refused to accept that sport is special. Its message to governing bodies – explain how!’, S. Weatherill, European Sports Law (T.M.C. Asser Press, 2007), p. 353.


Loading