My favourite speed skater (Full
disclosure: I have a thing for speed skaters bothering the ISU), Claudia
Pechstein, is back in the news! And not from the place I expected. While
all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG
or German Constitutional Court), I should have looked to the European Court of
Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending
for a long time (since 2010) and I did not anticipate
that the ECtHR would render its decision before the BVerfG. The decision released last
week (only available in French at this stage) looked at first like a renewed
vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling
in the Pechstein case), and is being presented
like that by the CAS, but after careful reading of the judgment I believe this is rather
a pyrrhic victory for the status quo
at the CAS. As I will show, this ruling puts to rest an important debate
surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its
much-used appeal format in disciplinary cases) forced arbitration. Furthermore,
stemming from this important acknowledgment is the recognition that CAS proceedings
must comply with Article 6 § 1 of the European Convention of Human
Rights (ECHR), in particular hearings must in principle be held in public and
decisions freely available to all. Finally, I will criticise the Court’s
finding that CAS complies with the requirements of independence and
impartiality imposed by Article 6 § 1 ECHR. I will not rehash the well-known facts of both cases, in order to
focus on the core findings of the decision. More...
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
Anti-doping whereabouts requirements declared
compatible with the athletes' right to privacy and family life
On 18 January 2018,
the European Court of Human Rights rendered a judgment with important consequences for the world of sport in
general and the anti-doping regime in particular. The Strasbourg-based court
was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite
athletes provide their National Anti-Doping Organisation or International
Federation with regular information about their location, including identifying
for each day one specific 60-minute time slot where the athlete will be
available for testing at a pre-determined location – is compatible with the
athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2
Protocol No. 4 of the Convention. The case was brought by the French cyclist
Jeannie Longo and five French athlete unions that had filed their application
on behalf of 99 professional handball, football, rugby, and basketball players.
While acknowledging
that the whereabouts requirements clash with the athletes' right to private and
family life, the judges took the view that such a restriction is necessary in
order to protect the health of athletes and ensure a level playing field in
sports competitions. They held that ''the
reduction or removal of the relevant obligations would lead to an increase in
the dangers of doping for the health of sports professionals and of all those
who practise sports, and would be at odds with the European and international
consensus on the need for unannounced testing as part of doping control''. Accordingly,
the judges found no violation of Article 8 of the Convention and, in a similar
vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable
to the case.
Football stakeholders preparing to crack down on
agents' excessive fees
It has been a
record-breaking January transfer window with Premier League clubs having spent
an eye-watering £430 million on signing new acquisitions. These spiralling
transfer fees enable football agents, nowadays also called intermediaries, to
charge impressive sums for their services. However, this might soon no longer
be the case as the main stakeholders in European football are preparing to take
action. UEFA, FIFPro, the European Club Association and the European
Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the
activities of intermediaries/agents. They recognise in broad terms that a more
effective regulatory framework is needed and call among other things for a
reasonable and proportionate cap on fees for intermediaries/agents, enhanced
transparency and accountability, or stronger provisions to protect minors.
The CAS award in Joseph Odartei Lamptey v. FIFA
On 15 January 2018,
FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of
Arbitration for Sport (CAS) in the dispute between the
Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with
FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision
of the FIFA Appeal Committee which (i) found him to have violated Article 69(1)
of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup
qualifying match between South Africa and Senegal that took place on 12
November 2016; (ii) as a consequence, banned him for life from taking part in
any football-related activity; and (iii) ordered the match in question to be
replayed. In reaching its conclusion, the CAS relied heavily on multiple
reports of irregular betting activities that significantly deviated from usual
market developments. More...