Editor's note: Ben Van Rompuy, Head of the ASSER International Sports Law Centre, was recently interviewed by LexisNexis UK for their in-house adviser service. With kind permission from LexisNexis we reproduce the interview on our blog in its entirety. 

How does competition law affect the sports sector?  

The application of EU competition law to the sports sector is a fairly recent and still unfolding development. It was only in the mid-1990s, due to the growing commercialization of professional sport, that there emerged a need to address competition issues in relation to, for instance, ticketing arrangements or the sale of media rights.  

Apart from the evident link between competition law and commercial activities related to sport, competition law also has a vital role to play in relation to the regulatory aspects of sport. Most markets for the organization of sports events are a textbook example of monopolistic markets. As a result, sports associations exercise pure monopsony power: athletes have no choice but to accept unilaterally imposed restrictions. Albeit limited to case-by-case inquiry, competition law is thus a meaningful instrument to curb the otherwise unfettered private regulatory power of sports associations. Unfortunately, it remains underutilized. Only a handful of international sports federations have truly experienced the “Bosman effect” and faced scrutiny of their regulatory activity under the EU antitrust rules.   

Have there been any important sports-related antitrust cases in recent years? 

Not at the EU level. Regarding commercial activities, the latest case dates from 2006, namely the Commission’s commitment decision on the joint selling of the Premier League media rights. And after some politically difficult uphill battles around the 2000s against FIFA and the International Automobile Federation the European Commission has been extremely reluctant to intervene in regulatory matters. Lasts year’s rejection of the complaint against UEFA’s Financial Fair Play Rules was the latest “achievement”. In the last few months, however, the Commission has received a number of new interesting complaints. 

Since the decentralization of EU antitrust enforcement in 2004, National Competition Authorities have addressed more than 40 decisions concerning the joint selling of sports media rights. For the most part, the remedy package designed by the Commission has been replicated, but there are some differences: the more widespread use of a “no single buyer” obligation and the acceptance of exclusive rights contracts exceeding three years. 

Regarding regulatory aspects, a string of recent national cases have challenged rules that disproportionally restrict athlete participation in events not organized and promoted by the official federation, notably in smaller sports such as motor sport, horseracing and bodybuilding (Ireland, Italy, Sweden). What characterizes these cases is that the remedial action was purely national in scope. In Germany, by contrast, two exploitative abuse cases are making their way up through the courts that have the potential of becoming important EU-wide precedents. Both are concerned with unfair trading conditions – a rarity these days: mandatory arbitration clauses (International Skating Union) and rules concerning the mandatory release of players to the national team without compensation (International Handball Federation).  

What other aspects of competition law are important in the sporting context? 

The State aid rules are the last unexplored frontier. For decades, national and regional public authorities have directly or indirectly financed sports organisations, sports infrastructure or individual clubs, but these measures have blissfully remained under the radar of EU State aid control. Yet in the last four years, the number of complaints against alleged unlawful State aid to professional sport, mostly football clubs, has been rising. Interestingly, citizens filed most of these complaints. 

With the enactment of the new Block Exemption Regulation and several formal decisions on for instance Belgian, French, German, and Swedish State aid for the construction and renovation of stadiums, the Commission has developed a coherent set of principles for infrastructure funding. The most complex cases are still pending. They concern land swaps/sale of State property (Spain, the Netherlands), tax advantages (Spain), and bank loans, guarantees or debt waivers (Spain, the Netherlands). The beneficiaries include top clubs like Real Madrid and Barcelona so the decisions are bound to attract huge media interest. 

Are there likely to be any developments in the future? 

Competition problems related to the sale of sports media rights will continue to arise at the national level. Public authorities will inevitably face stricter State aid control when supporting professional sports. State aid control could also be an effective instrument to put an end to the practice that selective tax exemptions for UEFA, FIFA, the IOC, etc. are a condition for applications to host international sporting events. 

The European Commission is currently examining a new complaint against FIFA’s ban on third-party ownership of players’ economic rights (TPO) in football and one concerning FIFA’s new regulations for player’s agents. These could result in high-profile cases. 

I do hope that the Commission will reclaim its responsibility for ensuring that rules and practices of international sports associations comply with EU competition law, particularly when athletes lodge complaints. National competition authorities lack the political power to confront international federations. And for most athletes, the possibility of private enforcement is not a real alternative given clauses barring access to national courts, the costs and the length of proceedings. For example, I am currently advising two Dutch Olympic speed skaters whose faith lies entirely in the hands of the Commission. They filed a complaint against the International Skating Union, who threatens them with a lifelong ban if they would participate in lucrative events outside the official calendar. The European Parliament has urged the Commission to open a formal investigation so we are optimistic that the Commission will take its responsibility and handle this case.  

What should lawyers in this field advise their clients? 

It is all about justifications. What you often see is that, in an attempt to shield certain practices from competition law scrutiny, much effort is put into arguments that, for example, sports associations or clubs are not “undertakings”. And only when these fail, recourse is made to underdeveloped arguments about the specificity of sport. Yet the true test lies here: are the restrictive effects reasonably necessary for the organization and proper conduct of sport? This obviously necessitates a good understanding of the sports sector and its internal dynamics. Even more so because competition authorities and courts typically give considerable deference to the legitimate role and expertise of sports associations in regulating their competitions.  

Given that most sports-related antitrust cases are now being addressed at the national level, there is a strong need to learn and draw from this decisional practice and case law. I am currently developing a database that reports and comments on all these cases, which should be a useful resource for those advising clients in the sports world.

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet!

The following arguments are intended to discuss how international human rights law, has not been properly examined in Caster Semenya’s case:

1.     CAS arbitral panels are not primarily concerned with the application of international human rights law since sport arbitrations are conducted based on regulations of sport governing bodies, predominantly in the absence of a human rights clause within that framework (OHCHR, para 44). Even if they were, a proper consideration of human rights aspects in any dispute, including whether there is a necessary, proportional and legitimate exception to the human rights rule or whether there are more important rights worthy of protection, needs individuals that are knowledgeable about the international human rights system to carefully scrutinize the issues based on human rights norms. Even if the CAS includes human rights experts in its pool of arbitrators, there are still questions regarding the dependability and the weight of their interpretation of the human rights treaties considering their appointment process by private actors in compare with for example judges in the ICJ, ECtHR or members of the UN treaty bodies.

2.     The Semenya case is a suitable example of this gap. In fact, when it comes to the issue of discrimination and international human rights law, the panel finds the UN amicus curiae and other expert submissions useless (CAS, para 554). The panel argues that the submissions failed to address the three-prong spear of necessity, proportionality and legitimacy and therefore are not helpful for the task in front of the panel. Despite acknowledging the relevancy of some human rights arguments (CAS, para 554), the panel finds a more important value to protect, namely: fairness in sports; and builds up its analysis of necessity, proportionality and legitimacy based on this concept. Whether this assessment is in line with international human rights, remains a question since the issue has not been considered by a panel with adequate human rights expertise. The player is on the bench!

3.     Furthermore, the issue of female athletes’ eligibility is not related only to gender-based discrimination. As the report of the OHCHR makes clear it is also about the right to work and just and favorable working conditions; the right to highest attainable standards of physical and mental health; the right to sexual and reproductive health; prohibition of arbitrary interference with privacy; the right to bodily integrity and the right to human dignity (OHCHR, para 34). None of these rights have been considered in the CAS award and subsequently by the SFT within the international human rights law context.

4.     More importantly, the enforcement of DSD regulations raises questions regarding the prohibition of torture, cruel, inhuman and degrading treatment (OHCHR, para 34(a)). The OHCHR report explains that enforcement of DSD regulations are “medically unnecessary, and potentially harmful” (para. 32), brings the targeted individuals with “shame and ridicule” (para. 33), inflicts physical and psychological harm (para 34(c)) and is a form of forced medical intervention (para 34 (c)) which triggers issues related to article 7 of the International Covenant on Civil and Political Rights. This prohibition in most cases trumps any exception or justification. Therefore, Article 7 of the ICCPR on prohibition of torture, cruel, degrading and inhuman treatment, ratified by Monaco in 1997, can be a potentially bigger threat to DSD regulations rather than the issue of non-discrimination.

5.     Challenging an arbitral award in national jurisdictions, other than the public policy grounds, is limited to issues pertinent to procedural matters. Therefore, the scope of reviewing the issues at stake in the arbitral award is very limited and if any of the above rights have not been already scrutinized during the arbitration, they will fall outside the scope of the appeal. For example, the SFT finds that the contradiction of taking oral contraceptives with religious and moral values of the individual is an inadmissible claim since it hasn’t been raised in front of the CAS at the first place (para 10.6).

6.     A fundamental discordance between the human rights framework and the approach adopted by the SFT, emerges when the SFT argues that the non-discrimination principle based on the Swiss Constitution is restricted to the treatment of individuals by public entities not private bodies such as sport organizations (para 9.4). Nevertheless, the SFT observes that sport governing bodies possess a status similar to states (which is in itself an interesting finding and I will touch upon this later in this note) and then deals with public policy grounds. However, the legal protections in international human rights law are of a different nature. Positive obligations of the states in guaranteeing the enforcement of human rights norms within their jurisdiction is an indispensable part of the legal regime created by international human rights law. The UN Human Rights Committee is clear when it states “the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities”. The practice of international courts and tribunals corroborates this view where in many cases public officials were held accountable for failing to do their due diligence in preventing human rights violations within their jurisdictions (See e.g. Fadeyeva v. Russia, paras 89-93; CCPR Concluding Observations on Germany, para 16).

7.     The SFT delves into the public policy issues and by relying on the findings of the CAS (para 9.8.2; 9.8.3.1) comes to the same conclusion as to the priority and legitimacy of the principle of fairness in sports (para 9.8.3.3, 9.8.3.4) and ultimately finds no breach of public policy (para 10.7). Based on paragraph 1 and 2 of this note, the analysis of the CAS, which the SFT relies upon it, is disputable from the human rights perspective.

8.     The SFT refers to the decision of the ECtHR in FNASS and others v. France and finds the analysis applicable to this case. This seems reasonable as both cases are justifying certain restrictions to protect the rights of third parties. However, the pivotal argument of the ECtHR in FNASS not only mentions the protection of public health (para 165) but also the risks of doping for physical and mental health of the doped athletes (paras 171-173); the SFT’s stance on this topic is in conflict with serious concerns asserted by the OHCHR on how DSD regulations pose a serious risk to the right to health of the individuals requiring them to undergo unnecessary and potentially harmful medical treatment (OHCHR para 32, 33, 34(a), 34(b), 34(c), 34(d)). Additionally, in FNASS the right to privacy is examined in the face of whereabout regulations plus being available for an hour each day for testing purposes; the ECtHR finds that the protection of health, which is the aim of the doping control system, is more important than revealing the whereabout information. However, in the present case reasonable concerns are over endangering the health and safety of individuals rather than disclosing the information about the place of residence. Article 3 of the Additional Protocol to the Oviedo Convention concerning biomedical research can be illuminating in this regard: “The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science”.

9.     At times, the SFT finds itself relying on the notion of consent in relations between athletes and sport governing bodies and employs it as a justifying factor for example for the intrusive examination of athletes’ body that if they object, such examinations would not take place (para 10.2, 11.2). The SFT further points out that athletes’ defective consent to requirements set by the IAAF, justifies taking oral contraceptives and it is not a treatment imposed on an unwilling individual (para 10.2).

• First, the consent in this case is a flawed consent since it leaves “no real choice to the athlete, who has to choose between undergoing these intrusive medically unnecessary assessments and treatments with negative impacts on their health and wellbeing” (See here, p 5). This incomplete consent might survive when tested against imposing the arbitration clause on an athlete (Mutu & Pechestein case) but might fail when tested against more fundamental issues such as prohibition of cruel, inhuman and degrading treatment, non-discrimination, the right to health, bodily integrity and prohibition of medical intervention without free consent. Furthermore, consent should be considered in the light of the decision of the ECtHR in Chitos v. Greece in which a military staff resignation resulted in imposition of a financial penalty. In Chitos a new law was adopted after the applicant was recruited by the military, changing the conditions of the release of the personnel from the military service. The Court finds that the law pursues a legitimate aim and is proportionate, and it also takes account of the fact that “at the outset … the applicant cannot legitimately maintain that he was unaware of the rationale and scope of the obligations he had entered into” being aware of also the benefits that he would receive from this relation. The question in front of the Court was whether the applicant voluntarily offered himself since he had prior knowledge of rules and possible consequences. The Court maintains that the issue of mental constraint should be considered based on the situation at the time of the entry into force of the new law not at the time when the applicant was first recruited (para 97). Furthermore, in Van Der Mussele v. Belgium regarding the issue of prior consent and the existence of a threat the ECtHR maintains that: “This could be so in the case of a service required in order to gain access to a given profession, if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, [then] … the service could not be treated as having been voluntarily accepted beforehand” (para 37). As explained above an assessment of necessity, proportionality and legitimacy based on international human rights grounds can be different than the conclusions based on the principle of fairness in sports.

• Second, the OHCHR report calls attention to power imbalances in sports which hinges upon the notion of consent in relations between the athletes and sport governing bodies (para 34 (c)). The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health emphasizes the need for particular measures to protect “vulnerability of certain individuals whose rights are compromised owing to deeply rooted power imbalances and structural inequalities” in particular in clinical practice and medical research. “In sport, such power imbalances are compounded by athletes’ dependency on the sports federations requiring such medical interventions and the frequent absence of adequate and holistic support during the decision-making process” (OHCHR, para 34(c)).

• Third, the issue of consent becomes significantly important with respect to medical intervention in human body. For any type of medical intervention, free and informed consent of the individual is required. Article 5 of the Oviedo Convention on Human Rights and Biomedicine provides that any intervention in the health of individual should be conducted with free and informed consent including the consequences and risks involved. The OHCHR report calls attention to the “risk of unethical medical practice, particularly when the informed consent of the person concerned is not required” (OHCHR, para 34(c)). It is uncontested that human dignity and its health has priority over any type of scientific test or research even for the good of society. Article 3 of the Additional Protocol to the Oviedo Convention applies to this argument as well which provides: “The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science”.

• Fourth, individuals have the right to refuse or withdraw consent at any time without being subject to any form of discrimination (Article 5, 16 of Oviedo Convention; Additional Protocol, article 13(3)).

• Fifth, the argument that the CAS is open to future findings of the adverse effects of such treatments which is supported by the SFT (para 9.8.3.5), is in contrast with requirements of medical and biological interventions of human body in international human rights law as it is encouraging unethical and potentially harmful medical experimentation and at the same time overlooks the notion of free and voluntary consent. Any type of medical intervention and research should come with careful consideration of ethical acceptability of such practices including protection of “dignity, rights, safety and well-being of research participants” (Additional protocol to the Oviedo Convention, article 9).

Notwithstanding the above arguments, one of the findings of the SFT can be an interesting line of thought for further research; that the vertical structure of sports and the dominance of sport governing bodies in their realm, puts them in a similar position as states (para 9.4). Traditionally only states and international governmental organizations are direct subjects of public international law and therefore bearers of responsibility under its rules and principles including the responsibility to enforce the human rights standards. The finding of the SFT adds more weight to the argument that sport governing bodies have replaced states in certain functions in a way that states are no longer responsible for those operations. This is one criterion recognized by public international law scholars for recognition of international legal personality. Therefore, it will be interesting to study whether sport governing bodies are in a position to be recognized as de facto states although without a geographical territory.

Finally, what I argued above does not mean that ultimately, once the award of the CAS in Semenya case is scrutinized by a human rights body it will fail. It may or may not; but as long as this evaluation has not been conducted by a competent human rights court, there will always remain questions about the credibility of a CAS award which disregarded most of the human rights concerns touched upon in this blog.

Therefore, a key player in this game is still on the bench!