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

Brexit and EU law: Beyond the Premier League (Part 2). By Marine Montejo

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. 


Part 2. EU competition law and sports funding

The first analysed impact of Brexit on sport was the one regarding EU internal market rules and free movement. However, all sport areas that are of interest to the European Union will be impacted by the result of the future Brexit negotiations. This second part of the blog will focus on EU competition law and the media sector as well as direct funding opportunities keeping in mind that if the UK reaches for an EEA type agreement competition law and state aid rules will remain applicable as much as the funding programs.  More...


With or without them? Russia’s state doping system and the Olympic fate of Russian athletes. By Antoine Duval, Kester Mekenkamp and Oskar van Maren

On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian doping program surrounding the 2014 Sochi Winter Olympics. The report was expected to seriously threaten the participation of Russian Athletes to the rapidly approaching Rio Games, starting on 5 August. In the weekend prior to the report’s publishing, Reuters obtained a leaked letter drafted by the CEO’s of the US and Canadian anti-doping agencies, which according to the New York Times was backed by “antidoping officials from at least 10 nations— including those in the United States, Germany, Spain, Japan, Switzerland and Canada — and 20 athlete groups”, urging the International Olympic Committee (IOC) to ban all Russian athletes from the upcoming Olympics.

Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg

More...

Brexit and EU law: Beyond the Premier League (Part 1). By Marine Montejo

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.

The result of the Brexit referendum on 23 June 2016 took the European Union (almost) by surprise. A lot has been said and written about the impact of the United Kingdom leaving the EU. As in all other areas, the British sport sector will also face the effects of the modification of the relationship between the EU and its (probable) former Member State, the UK. It is nearly impossible to foresee all consequences as the UK has not even triggered article 50 TFEU yet to officially start the exit negotiations. However, as the UK position toward the EU will change in any case, this two-part blog aims to examine the main practical implications of such an exit for the UK, but also for the EU, in relation to the actual application of EU law in sport and the EU sport policy.

Unless stated otherwise, the use of the terms Brexit in this blog should be understood as a complete exit of the UK from the European Union. This blog focus in particular on this worst case scenario and its consequences for UK sport. However, it is highly improbable that the future Brexit negotiations with the EU will end up without some kind of special agreement between the two parties the first of which being an EEA type of agreement with full access to the internal market and applicability of EU law. 

The first part of this blog will examined the consequences for UK sport in terms of access to the EU internal market and the applicability of free movement principles. The second part is focused on specific impacts with regard of others domain of EU law for professional and grassroots UK sport.  More...

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. More...


The EU State aid and sport saga: The Showdown

It’s been a long wait, but they’re finally here! On Monday, the European Commission released its decisions regarding State aid to seven Spanish professional football clubs (Real Madrid on two occasions) and five Dutch professional football clubs. The decisions mark the end of the formal investigations, which were opened in 2013. The Commission decided as follows: no State aid to PSV Eindhoven (1); compatible aid to the Dutch clubs FC Den Bosch, MVV Maastricht, NEC Nijmegen and Willem II (2); and incompatible aid granted to the Spanish football clubs Real Madrid, FC Barcelona, Valencia CF, Athletic Bilbao, Atlético Osasuna, Elche and Hércules (3). 

The recovery decisions in particular are truly historic. The rules on State aid have existed since the foundation of the European Economic Community in 1958, but it is the very first time that professional football clubs have been ordered to repay aid received from (local) public authorities.[1] In a way, these decisions complete a development set in motion with the Walrave and Koch ruling of 1974, where the CJEU held that professional sporting activity, and therefore also football, is subject to EU law. The landmark Bosman case of 1995 proved to be of great significance as regards free movement of (professional) athletes and the Meca-Medina case of 2006 settled that EU competition rules were equally applicable to the regulatory activity of sport. The fact that the first ever State aid recovery decision concerns major clubs like Real Madrid, FC Barcelona and Valencia, give the decisions extra bite. Therefore, this blog post will focus primarily on the negative/recovery decisions[2], their consequences and the legal remedies available to the parties involved.[3] More...

International and European Sports Law – Monthly Report – May 2016. By Marine Montejo

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

Challenged membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has rendered an award, on 27 April 2016, ordering the FIFA Council to submit the application of the Gibraltar Football Association (GFA) for FIFA membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of UEFA and FIFA. In May 2013, it became a member of the UEFA and went on to seek membership of FIFA. More...


Operación Puerto Strikes Back!

Forget the European Championship currently held in France or the upcoming Olympic Games in Rio. Doping scandals are making the headlines more than ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of the controversial ‘meldonium’, to the seemingly never-ending doping scandals in athletics. As if this was not enough, a new chapter was added on 14 June to one of the most infamous and obscure doping sagas in history: the Operación Puerto.

The special criminal appeal chamber,  the Audiencia Provincial, has held that the more than 200 blood bags of professional athletes that have been at the center of the investigations since 2006 can be delivered to the relevant sporting authorities, such as the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). In other words, there is now a good chance that the identities of the involved athletes might eventually be revealed.

Source: http://www.telegraph.co.uk/sport/othersports/cycling/9834122/Operation-Puerto-doctor-Eufemiano-Fuentes-treated-tennis-players-athletes-footballers-and-a-boxer.html

This case note will analyze the court’s ruling and summarize its most important findings. Given the amount of time passed since the scandal first came to light (2004), the blog will commence with a short background summary of the relevant facts. More...

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

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 3 June 2016, the Landgericht München (“Munich Regional Court”) ordered temporary injunctions against the International Basketball Federation (“FIBA”) and FIBA Europe, prohibiting them from sanctioning clubs who want to participate in competitions organized by Euroleague Commercial Assets (“ECA”). The reasoning of the Court is based on breaches of German and EU competition law provisions. FIBA and FIBA Europe are, according to the judge, abusing their dominant position by excluding or threatening to exclude national teams from their international competitions because of the participation of their clubs in the Euroleague. This decision is the first judicial step taken in the ongoing legal battle between FIBA and ECA over the organization of European basketball competitions.

This judgment raises several interesting points with regard to how the national judge deals with the alleged abuse of a dominant position by European and international federations. A few questions arise regarding the competence of the Munich Regional Court that may be interesting to first look at in the wake of an appeal before examining the substance of the case. More...

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

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre.

On 17 February 2016, the Landesarbeitsgericht Rheinland-Pfalz delivered its highly anticipated decision in the appeal proceedings between German goalkeeper Heinz Müller and his former employer, German Bundesliga club Mainz 05.[1] The main legal debate revolved around the question (in general terms) whether the use of a fixed term contract in professional football is compatible with German and EU law. 

In first instance (see our earlier blog posts, here and here), the Arbeitsgericht Mainz had ruled that the ‘objective reasons’ provided in Section 14 (1) of the German Part-time and Fixed-term Employment Act (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, “TzBfG”), the national law implementing EU Directive 1999/70/EC on fixed-term work, were not applicable to the contract between Müller and Mainz 05 and therefore could not justify the definite nature of that contract.[2] In its assessment the court devoted special attention to the objective reason relating to the nature of the work, declining justifications based thereupon.[3] Tension rose and the verdict was soon labelled to be able to have Bosman-like implications, if held up by higher courts.[4] More...

The BGH’s Pechstein Decision: A Surrealist Ruling



The decision of the Bundesgerichtshof (BGH), the Highest Civil Court in Germany, in the Pechstein case was eagerly awaited. At the hearing in March, the Court decided it would pronounce itself on 7 June, and so it did. Let’s cut things short: it is a striking victory for the Court of Arbitration for Sport (CAS) and a bitter (provisory?) ending for Claudia Pechstein. The BGH’s press release is abundantly clear that the German judges endorsed the CAS uncritically on the two main legal questions: validity of forced CAS arbitration and the independence of the CAS. The CAS and ISU are surely right to rejoice and celebrate the ruling in their respective press releases that quickly ensued (here and here). At first glance, this ruling will be comforting the CAS’ jurisdiction for years to come. Claudia Pechstein’s dire financial fate - she faces up to 300 000€ in legal fees – will serve as a powerful repellent for any athlete willing to challenge the CAS.More...



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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

Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally? - A Comment by Marjolaine Viret (University of Neuchâtel )

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. Her latest book Evidence in Anti-Doping at the Intersection of Science & Law was published in 2016 in the International Sports Law Book Series of T.M.C. ASSER Press.


INTRODUCTION

On 30 September 2016, a panel of the Court of Arbitration for Sport (“CAS”) rendered its award in the matter opposing high-profile tennis player Maria Sharapova to the International Tennis Federation (“ITF”). Maria Sharapova was appealing the two-year ban imposed on her by the ITF Tribunal in June 2016 for her use of Meldonium, a substance newly added to the WADA Prohibited List 2016[1]. Since neither the ITF nor WADA had chosen to challenge the Tribunal’s decision, the stakes of the case were rather simple: would the player convince the CAS panel that she should benefit from a finding of “No Significant Fault or Negligence”[2], thereby allowing for a reduction of the sanction down to a minimum of one year, or should the decision of the Tribunal be upheld? In its award, the CAS panel decided to grant such finding and reduced the sanction to 15 months.

This blog does not purport to be a ‘comment’ on the CAS award. Rather, it seeks to place the Sharapova matter into a broader context with respect to a specific issue: the expectations on Athletes when it comes to their awareness of the prohibited character of a substance, specifically when taking a medication[3]. In July 2016, I presented at the T.M.C Asser Institute in The Hague various current challenges of anti-doping that the Meldonium cases exposed (see the video here). One of these challenges concerned the modalities for including new substances onto the Prohibited List. This blog represents a follow-up on my presentation, in the light of the findings contained in the CAS award. More...



Case note: State aid Decision on the preferential corporate tax treatment of Real Madrid, Athletic Bilbao, Osasuna and FC Barcelona

On 28 September 2016, the Commission published the non-confidential version of its negative Decision and recovery order regarding the preferential corporate tax treatment of Real Madrid, Athletic Bilbao, Osasuna and FC Barcelona. It is the second-to-last publication of the Commission’s Decisions concerning State aid granted to professional football clubs, all announced on 4 July of this year.[1] Contrary to the other “State aid in football” cases, this Decision concerns State aid and taxation, a very hot topic in today’s State aid landscape. Obviously, this Decision will not have the same impact as other prominent tax decisions, such as the ones concerning Starbucks and Apple

Background

This case dates back to November 2009, when a representative of a number of investors specialised in the purchase of publicly listed shares, and shareholders of a number of European football clubs drew the attention of the Commission to a possible preferential corporate tax treatment of the four mentioned Spanish clubs.[2]More...



International and European Sports Law – Monthly Report – September 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

September hosted the very last bit of the sport summer 2016, most notably in the form of the Rio Paralympic Games. Next to the spectacular achievements displayed during these games, in the realm of sports law similar thrilling developments hit town. The first very much expected #Sportslaw highlight was the decision by the German Bundesgerichtshof in the case concerning SV Wilhelmshaven. The second major (less expected) story was the Statement of Objections issued by the European Commission against the International Skating Union.More...


De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt. By Antoine Duval and Kester Mekenkamp.

Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of people. Many intermediaries are trying their best to lawfully defend the interests of their clients, but some are not. The key focus should be on providing an adequate legal and administrative framework to limit the opportunities for corrupt behaviour in the profession. This is easier said than done, however. We are dealing with an intrinsically transnationalized business, often conducted by intermediaries who are not subjected to the disciplinary power of federations. Sports governing bodies are lacking the police power and human resources necessary to force the intermediaries to abide by their private standards. In this context, this blog aims to review a recent case in front of the regional court of Frankfurt in Germany, which highlights the legal challenges facing (and leeway available to) national federations when regulating the profession. More...

Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association. By Marine Montejo

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 3 June 2015, Sepp Blatter resigned as President of FIFA after another corruption scandal inside the world’s football governing body was brought to light by the American authorities supported by the Swiss prosecutor office. Two months after Michel Platini announced he would be a candidate for the next FIFA Presidential election, on 25 September 2015, the Swiss prosecutor opened an investigation against S. Blatter on an alleged disloyal payment he authorised to M. Platini. On 8 October 2015, the FIFA Ethics Committee announced both of them were provisionally suspended upon their hearings, a suspension that was later confirmed by CAS. In the end, M. Platini was sanctioned with an eight years ban from all football activities, later reduced to a six years ban by FIFA Appeal Commission on 24 February 2016. In the meantime, he withdrew his candidacy to become the next FIFA President. On 9 May 2016, after M. Platini appealed this sanction, the CAS confirmed the suspension but reduced it to four years, leading to his resignation from the UEFA presidency and the announcement of his intention to challenge the CAS award in front of the Swiss Federal Tribunal.

On 19 September, the CAS finally published the full text of the award in the dispute between M. Platini and FIFA. The award is in French as M. Platini requested that the procedure be conducted in that language. You will find below a summary of the ‘highlights’ of the 63-page decision. More...

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act V: Saving the last (Russian) woman standing: The Klishina miracle

Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:


Act V: Saving the last (Russian) woman standing: The Klishina miracle 

Darya Klishina is now an Olympic celebrity. She will enter the history books not because she won a gold medal or beat a world record. Instead, her idiosyncrasy lies in her nationality: she was the sole Russian athlete authorized to stand in the athletics competitions at the Rio Olympics. And yet, a few days before the start of the long jumping contest in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina appealed the decision to the CAS ad hoc Division and, as all of you well-informed sports lawyers will know, she was allowed to compete at the Olympics and finished at a decent ninth place of the long jump finals.

Two important questions are raised by this case:

  • Why did the IAAF changed its mind and decide to retract Klishina’s authorization to participate?
  • Why did the CAS overturn this decision? More...


The Russian Ballet at the CAS Ad Hoc Division in Rio - Act IV: On Bringing a sport into disrepute

Editor's note: This is the fourth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.


Act IV: On Bringing a sport into disrepute

Paragraph 2 of the IOC Decision: “The IFs will also have to apply their respective rules in relation to the sanctioning of entire NFs.” 

 

In paragraph 2 of its Decision, the IOC mentioned the possibility for IFs to “apply their respective rules in relation to the sanctioning of entire NF's”.This is exactly what the International Weightlifting Federation (IWF) did when it decided on 29 July 2016 to exclude the whole Russian Weightlifting Federation (RWF) from the Rio Olympics for having brought the sport into disrepute. Indeed, Article 12. 4 of the IWF Anti-doping Policy, foresees that:

“If any Member federation or members or officials thereof, by reason of conduct connected with or associated with doping or anti-doping rule violations, brings the sport of weightlifting into disrepute, the IWF Executive Board may, in its discretion, take such action as it deems fit to protect the reputation and integrity of the sport.”More...



The Russian Ballet at the CAS Ad Hoc Division in Rio - Act III: On being sufficiently tested

Editor's note: This is the third part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.


Act III: On being sufficiently tested 

Paragraph 2 of the IOC Decision: “The IFs should carry out an individual analysis of each athlete’s anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete’s sport and its rules, in order to ensure a level playing field.”

Daniil Andienko and 16 other members of the Russian rowing team challenged the decision of the World Rowing Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18 month period”.[1] In their submissions, the Russian applicants did not challenge the IOC Decision, and thus the criteria enshrined in paragraph 2, but only its application by FISA.[2] The Russian athletes argued that FISA’s decision deviated from the IOC Decision in that it was imposing as an additional requirement that rowers must “have undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18-month period”.[3] The Panel acknowledged that “the IOC Executive Board decision does not refer explicitly to the requirement of three tests or to a period of 18 months”.[4] Nonetheless, it “finds that the Challenged Decision is in line with the criteria established by the IOC Executive Board decision”.[5] Indeed, the IOC’s Decision “provides that in order to examine whether the level playing field is affected or not (when admitting a Russian athlete to the Rio Olympic Games), the federation must look at the athlete's respective anti-doping record, i.e. examine the athlete's anti-doping tests” and that “[i]n doing so, the IOC Executive Board decision specifies that only "reliable adequate international tests" may be taken into account”.[6] In this regard, the Panel, and FISA, share the view that “a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia”.[7]More...



The Russian Ballet at the CAS Ad Hoc Division in Rio - Act II: On being implicated

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 implicated


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 Decision.

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 sample."

The CAS went on to address this question concretely in three cases analysed below. More...




The Russian Ballet at the CAS Ad Hoc Division in Rio - Act I: Saved by the Osaka Déjà-Vu

Since it was first introduced at the Atlanta Games in 1996,[1] 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, [2] 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.[3] In the following blogs, I will analyse the ten published CAS awards related to Russian athletes.[4] 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) Acts:

Asser International Sports Law Blog | Regulating the human body in sports: Lessons learned from the Dutee Chand case - by Dr Marjolaine Viret & Emily Wisnosky

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

Regulating the human body in sports: Lessons learned from the Dutee Chand case - by Dr Marjolaine Viret & Emily Wisnosky

Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.

Introduction

A remarkable aspect of the run-up to the 2016 Rio Olympic Games was the stream of negative media reports portraying broad-scale public mistrust in sport, with the most prominent topic being the doping scandals in athletics and questions surrounding the participation of Russia.  

A different controversy, but one also directed at the credibility of sports, has exposed a few female Olympians to repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported that Indian track-and-field athlete Dutee Chand had qualified for the Rio Olympic Games by breaking the national record, thus to become the first Indian athlete to run the 100m at the Olympics since 1980. The attention that Dutee Chand’s qualification attracted within international media, however, was not related only to her outstanding results. It came as part of a medical, ethical and legal controversy that has existed for many years relating to ‘policing’ the male versus female divide in sports. Another athlete who has found herself in the midst of this controversy is South African runner Semenya Caster, whose participation in the Olympics has been the object of much conjecture.

The divide between male and female athletes forms the core of most sports’ competition rules, including athletics. The justification for this basic divide has rarely been questioned as such, but has been a matter for debate when it comes to handling atypical situations on both sides of the ‘dividing line’ ­ such as ‘transgender’ or ‘intersex’ athletes. A category of athletes that has, especially, been viewed as a challenge to the divide is composed of female athletes affected by ‘hyperandrogenism’, a health condition that results in naturally elevated androgen levels, including testosterone levels.

On 24 July 2015, a CAS panel rendered a decision involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the ongoing debate about the policies regulating hyperandrogenism in sport. Much has been reported in the media about the case: controversial issues include whether the CAS was the appropriate forum to assess these questions; whether the decision was appropriate, both on the merits and on the procedure; and what the consequences of the CAS award would be, for the parties, for athletics and for the sporting community at large.

Much like the current crisis surrounding doping in sports, the public attention on women with (proven or suspected) hyperandrogenism is driven by a concern that an athlete’s physiology – natural or artificially induced ­ could distort competition, destroying the ‘level playing field’ that supports the Olympic ideal. Both topics are also often brought back to the goal of protecting an athlete’s health. Parallels are further found in the strong reactions both topics evoke, and the steps taken by the regulating authorities to convince the public that everything in their power is being done to preserve a level playing field.

A less obvious but equally important point of comparison can be found in the issues both topics raise concerning the legal validity of decisions made by sports organizations, especially in a science-related context. This blog focuses on those more ‘legal’ aspects, through the prism of the decision of the CAS in the Dutee Chand matter and its legal implications. After touching briefly on the background of the case, we will comment on two aspects of the Chand award with respect to challenges in regulating hyperandrogenism in sport within the confines of the law: First from the viewpoint of a CAS panel called upon to evaluate the validity of a set of regulations, and second from the viewpoint of the sports organizations seeking to both adequately protect fairness in sport and to provide a legally valid (and effective) regulatory solution.[1]


Background of the Case

In 2014, Dutee Chand, an internationally successful, young track-and-field athlete, was provisionally suspended from participation in any athletic events by the Athletics Federation of India (the “AFI”),[2] as a result of a series of medical examinations that suggested her “male hormone” levels were elevated.[3] Dutee Chand filed an appeal against this decision to the CAS, naming both the AFI and the IAAF as respondents. She asked the CAS panel to (i) declare the Hyperandrogenism Regulations invalid, and (ii) overturn the AFI’s decision and clear her to compete. The second request for relief, however, was dropped during the course of the proceeding, thus the award addressed only the issue of the Regulation’s validity.

The IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (“Hyperandrogenism Regulations” or “the Regulations”) govern the eligibility of female athletes with a condition known as ‘hyperandrogenism’ to participate in the female category of athletic events. Schematically, the Regulations provide that in order to be eligible to participate in the female category, a woman must have androgen levels below the “normal male range,” which is defined as testosterone levels falling below a threshold of 10 nmol/L.[4] An athlete with testosterone levels reported above this threshold may still be allowed to compete if she establishes, by a balance of probabilities, that she “derives no competitive advantage from having androgen levels in the normal male range”.[5] Cases of suspected hyperandrogenism may be investigated according to three levels of medical assessment, potentially including tests targeting physical, laboratory, genetic, imaging, and psychological assessments. Should an athlete be eventually diagnosed with hyperandrogenism, the stakes are high: in order to return to competition, athletes need to undergo medical treatment to reduce their testosterone levels below the ‘admissible’ threshold.

Dutee Chand challenged the Regulations’ validity on several grounds, which the CAS panel considered after addressing the parties’ respective burdens and standards of proof in an initial section. The grounds examined were unlawful discrimination, lack of scientific validity, breach of proportionality, and conflict with the World Anti-Doping Code (“WADC”).


Challenges CAS panels face in assessing the validity of sports regulations

The Chand award formidably illustrates the challenges an arbitration panel faces when asked to reach a conclusion on the ‘legal validity’ of a set of sports regulations, especially when such assessment implies delving into complex scientific issues. Each of these challenges can provide valuable ‘lessons learned’ for future CAS panels confronted with comparable issues.

Reconciling the ‘abstract’ and ‘concrete’ facets of the dispute

Ostensibly, the object of the CAS proceedings was for Dutee Chand to be cleared to resume competing as a female athlete, in other words, for the decision rendered against her by the AFI to be set aside[6]. But this ‘concrete’ request for relief was dropped at the hearing, leaving the panel with only the ‘abstract’ question of the Regulation’s validity to consider. It appears that the CAS panel was asked between the lines to render an informal advisory opinion on the legitimacy of the current approach to hyperandrogenism in sport; the formal advisory opinion is an instrument no longer available under the CAS Code.[7]

This left the CAS panel in an uncomfortable position: having to decide on abstract legal questions without the benefit of a concrete set of facts to rely upon. Symptomatically, the background presented in the award regarding the Athlete’s actual situation is tenuous. The award does not even discuss whether Dutee Chand’s testosterone levels actually exceeded the 10nmol/L threshold set in the Hyperandrogenism Regulations[8]. The CAS panel simply conducted its entire assessment under the - unverified - assumption of her being genuinely an athlete with hyperandrogenism within the meaning of the Regulations.

Moreover, real questions of defence strategy relevant to counsel appearing before CAS can be raised here: had Dutee Chand not waived her request for relief directed against the AFI decision, the CAS panel would have been forced to render a final award on her case and could not have left her in the legal limbo in which she is now (see below, on the rendering of an interim rather than a final award).

The CAS has often – explicitly or through the decision of its panels ­shown ambition to act as a harmonising body, an ‘international’ or ‘supreme’ court of sport.[9] From a perspective of sports policy, that may be – depending on the opinion – a desirable objective, or an illegitimate attempt for sports governing bodies to shield their regulations from the judicial review of state courts. From a strictly legal perspective, it is questionable whether CAS panels have at their disposal the means to fulfil this ambition. CAS panels are arbitration tribunals in arbitral proceedings conducted under Swiss arbitration law. As such, they only have the power to rule on a dispute brought before them by two – or more – specific parties, and they can only render decisions on requests for relief that a party has submitted to them, within the framework of the facts put forward by the parties. Approaches such as the one taken in the Chand award should not be encouraged, especially in this odd combination in which a CAS panel would accept to rule on abstract requests for relief that are not directly decisive to the outcome of the dispute.

Allocating the burden of proof to prove or disprove the Regulation’s validity

For reasons that are not readily apparent from the award, the CAS panel separated its assessment of the Regulations’ scientific basis into two limbs: i.) one referred to as an assessment of the ‘scientific validity’ of the Regulations, for which Dutee Chand was said to have accepted the burden of proof, and ii.) one referred to as a justification for the prima facie discrimination and considered part of the proportionality assessment, for which the IAAF was assigned the burden of proof[10]. For both limbs, the CAS panel ended up holding that the party bearing the burden of proof failed to discharge its burden, due to lack of sufficient scientific evidence.

The reasoning of the CAS panels in the award makes it rather obvious that the two limbs are conceptually one and the same: Both assess the question of whether the infringement upon female athletes’ rights entailed by the Regulations could be justified by a sufficiently strong scientific basis. Assigning the burden with respect to the general ‘scientific validity’ to Dutee Chand (i.e. the use of testosterone as a valid marker for purposes of the Regulations) and the burden with respect to another aspect of ‘scientific validity’ (i.e. the threshold set in the Regulations for that marker) to the IAAF (via the proportionality test), as the panel did, created an artificial separation in the legal analysis, by dressing the same issue in two different hats.

From the viewpoint of legal technique, this separation appears questionable and unnecessarily complicated. The assumption, from a viewpoint of judicial policy, is that the separation provided the arbitrators with an argument to both support the general thinking underpinning the Regulations (i.e. the use of testosterone levels as a marker) by considering that it was not without scientific basis, while at the same time finding the Regulations lacked sufficient strength in their modalities (i.e. the extent of the advantage conferred to hyperandrogenic athletes by their testosterone levels) to be upheld.

Differentiating between fact-finding and legal appreciation

Whether sports regulations have a sufficiently strong basis in science does not pertain to the fact-finding process, but to the CAS panel’s appreciation of the legal validity ­ or justification (including proportionality) ­ of those regulations. In this particular set-up, the question of ‘scientific validity’ is thus not strictly speaking one related to the burden of proof, as the Chand award would imply, but reflects which party suffers consequences if a CAS panel is not able to make sense of the scientific state-of-knowledge. The prospect of suffering adverse consequences indirectly provides an incentive for parties to present studies and expert opinions in support of their position, but does not qualify as a burden of proof stricto sensu, which only applies to issues of fact[11].

Nevertheless, the outcome of the CAS panel’s reasoning in the Chand matter appears justified: To the extent that the Hyperandrogenism Regulations represent an infringement on certain athletes’ rights (or, as the award considered it, in cases of discrimination), such infringement or discrimination has to be justified to be considered valid. In the case of the Hyperandrogenism Regulations, the alleged justification was based on the scientific basis behind the mechanics of the regulations. Thus, if no such basis could be shown, the CAS panel was bound to consider the Hyperandrogenism Regulations invalid. The CAS panel, in the particular matter, reached the same outcome by assigning the burden of proof on the issue it ultimately declared decisive to the IAAF, i.e. whether the manner in which testosterone was used as marker in the Regulations (especially the threshold value) could claim a sufficiently solid scientific basis.

Accounting for the role of scientific uncertainty

A truly important message to retain from the CAS award on scientific validity is the crucial role that ‘scientific uncertainty’ bears for the legal rule-making or adjudicative process. ‘Scientific uncertainty’ here refers to situations in which no consensus can be found within the scientific community, in which various expert positions coexist, or in which experts agree that the state-of-knowledge does not allow for a definitive answer. In all cases, the science is ‘unsettled’ in a manner that makes it impossible for the legal actors to extract a clear-cut finding that would suit their purposes. By nature, situations of ‘scientific uncertainty’ are the most likely to lead to legal disputes. CAS panels are frequently confronted with this constellation in doping matters or other science-related disputes brought before them.

The result of the panel’s assessment of the scientific foundations for the Regulations – whether desirable or not, justified or not – was hence utterly predictable. It was pre-determined from the moment the CAS panel decided that the IAAF would have the burden of proof on the very issue that would ultimately prove decisive for the outcome of a dispute. Allocating the burden of proof on a scientific issue amounts to assigning to one party (or one category of party) the risk of scientific uncertainty. Since disputed scientific issues are likely to result in the panel being unable to make up its mind one way or another, thus having to fall back on the burden of proof, the party that carries this risk of scientific uncertainty is almost certain to lose its case.

(Avoiding) reaching a legal conclusion on a highly sensitive issue

At the end of their analysis, the CAS arbitrators reached the conclusion that the IAAF had not discharged its burden of proof and that they were therefore unable to uphold the validity of the Hyperandrogenism Regulations based on the evidence before them[12]. The logical (and legal) consequence would have been for the panel to render a final award in accordance with these conclusions and grant the athlete’s request for relief. However, the panel took a different – and unusual ­ option, of issuing a decision they referred to as “interim award” instead.

One fails to see the rationale for such a decision. The approach may well be pragmatic, since it relieved (at least temporarily) the CAS panel of the need to make a final binding decision on a complex social and political issue, and allowed Dutee Chand to resume competition while at the same time providing a (provisional) framework for international athletic competitions with respect to participation of hyperandrogenic athletes.[13] However, issuing an “interim award” in this matter is not justifiable from the perspective of arbitration law. This is all the more true given that none of the parties appears to have requested the issuing of a preliminary decision in the proceedings, nor even to have contemplated this type of outcome. Its legitimacy under the CAS Code – which is conceived to guarantee an efficient procedural framework on CAS proceedings – is equally questionable. Moreover, the choice of issuing an ‘interim award’ has far-reaching legal and practical consequences for the dispute that further call into doubt the nature of Dutee Chand’s ‘victory’, including the following:

  • The CAS proceeding number ‘CAS 2014/A/3759’ is not closed. The CAS panel remains formally constituted for the remainder of the two-year period assigned to the IAAF. If the IAAF does not submit further evidence, the CAS panels will need to make a final award taking note of such failure and drawing the consequences thereof, which could then be appealed before the Swiss Supreme Court;
  • The “interim award” can only be appealed to the Swiss Supreme Court on very restrictive grounds under the Swiss Private International Law Act (Article 190, para. 3). Only an appeal for grounds of irregular composition of the tribunal or lack of jurisdiction could be filed, none of which would seem of relevance to the present matter. The other grounds for challenging an arbitral award – in particular the right to be heard or public policy – cannot be raised in an appeal against an interim award. This de facto bars the parties from appealing the award before the elapse of the two-year period; and
  • The award does not acquire a res iudicata effect and cannot be enforced, though it binds the panel itself to its own determinations (as opposed to a mere procedural order).[14] Its effect for other athletes potentially concerned by decisions made under national regulations implemented to reflect the Hyperandrogenism Regulations is thus uncertain. In theory, but for the panel’s expectations that the IAAF will act based on the sport hierarchy, a national federation that was not a party to the dispute could still make a decision against an athlete.

While CAS panels may order further evidentiary measures on their own initiative and request a party to adduce further evidence, the CAS Code certainly does not envisage that a party could be given a period of two years to do so. Rendering an interim award in these circumstances could be considered to amount to a denial of justice, i.e. a refusal by the CAS panel to rule on the request for relief properly submitted to it. The time limit granted unilaterally, to one of the parties only, could also be seen as conflicting with equality of the parties.[15] Should the IAAF return with additional evidence during the two-year period, would Dutee Chand also be granted an equivalent time limit to respond to the evidence?


Challenges sports organisations face in navigating the interface between law and science

The debate surrounding the definition of male and female is a complex one, not only in sport but in various domains of society. This means that a sports organisation’s task of making policy decisions that adequately account for these complexities is far from straightforward.

Unlike former policies in sport, the manner in which the IAAF – and other sports federations based on the policy of the IOC – set out to deal with hyperandrogenism as of 2012 does not formally aim at defining an athlete’s sex. Hence, it does not represent a ‘gender or sex testing’ process stricto sensu. Instead, the CAS panel in the Dutee Chand case acknowledged that whether a person is to be considered ‘female’ from the viewpoint of participation in athletics relies on the criterion of whether a person is a female as a matter of law[16]. The Hyperandrogenism Regulations do not – at least not from a legal viewpoint ­ purport to decide whether someone is female or not. Ironically, this shift in approach that was to take away from sports authorities the controversial power to assign a ‘gender’ to an individual for purposes of taking part in its competitions is precisely what has brought those authorities into the dilemma of having to introduce corrective factors in the name of a level playing field.

Indeed, the Regulations seek to police a divide based on an issue of law (whether someone is a female ‘as a matter of law’) through a corrective factor that relies on a biological parameter, which is an issue of fact (the person’s level of testosterone); an approach that is bound to lead to a sense of unfairness in borderline situations. Undoubtedly, one major flaw in the system was that the corrective factor had the effect of excluding athletes from the category into which they fit as a matter of law, without offering them the option to compete in the category in which the corrective factor would place them. The IOC Medical & Scientific Commission statement subsequently issued (see below, in the concluding remarks) encourages a solution whereby legally female athletes who fail to meet the requirements of Hyperandrogenism Regulations would be authorized to compete in the male category. This solution would at least have the merits of removing this blatant inconsistency of the system. However, one can legitimately wonder if, de facto, it would not have the same effect of excluding hyperandrogenic women from elite competition entirely.

To entirely reframe the approach to sex categories in sport – without the mixture of legal and biological corrective factors chosen in the Hyperandrogenism Regulations – would suppose one of the following:

  1. redefining the definition of ‘sex’ for purposes of sports categories based only on biological criteria, i.e. the level of testosterone or other biological factors deemed appropriate,
  2. abandoning the use of corrective factors, and referring to an individual’s sex exclusively as a matter of law, or
  3. abandoning any form of sports category related to sex and/or gender altogether.

It seems predictable that any of these options would imply some sort of compromise and entail new legal challenges. In particular, it is important to note that even if one should simply abandon any regulation on hyperandrogenism (or, more generally, on intersex matters), the question of how to legally define a ‘female’ would remain. In particular, the CAS panel in the Chand matter noted that whether someone is a male or female “is a matter of law”[17]. This immediately raises a follow-up question, namely: “what law?”. And, of equal importance, how does the applicable law approach this question? Options could range from self-identification to reliance on a complex set of scientific criteria, with each solution bringing its own challenges. Relying exclusively, as has been suggested[18], on the manner in which a person was raised and/or perceives him-/herself within society might prove difficult to crystallize into a firm legal criterion.

Even as sports regulations strives towards fairness and removing barriers to ‘pure’ competition, it must be recognized that the best that sports organizations can aim for in this context is to strike a reasonable balance between seeking a level playing field and celebrating natural advantages. On a deeper level, it also supposes a discussion as to how lawyers can and/or may make decisions that will profoundly affect individuals when science appears unable to provide the data needed to make sound legal choices.

 

Concluding remarks

Perhaps the most striking aspect of the Chand matter ­ as revealed by its aftermath ­ is the limited impact a CAS award addressing abstract legal issues can exert in practice.

The Chand award did not end the hyperandrogenism debate. In November 2015 – over four months after the Chand award was published ­ the IOC Medical & Scientific Commission, after holding a Consensus Meeting on Sex Reassignment and Hyperandrogenism, reaffirmed its position by insisting on the need to have rules in place “for the protection of women in sport and the promotion of the principles of fair competition”. The statement also encourages the IAAF, with support of other sports organizations, “to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules”. The IOC’s reaction to the interim award rendered shows that little progress was made in resolving the dispute over the validity of the Hyperandrogenism Regulations. As an only sign of a shift in its position, the statement recommends that “to avoid discrimination, if not eligible for female competition the Athlete should be eligible to compete in male competition”.[19] The new IOC position, which in effect represents a step towards considering the testosterone threshold as the only decisive criterion for determining the boundary between male and female athletes, immediately triggered critical reactions – both as to the modalities of its adoption and as to its contents – on part of circles close to Dutee Chand’s defence and opposed to regulations on hyperandrogenism.

Thus, the CAS award does not seem to have altered either camp’s position. This may be in part a side effect of the panel’s decision to opt for an interim award, but also demonstrates more generally the limitations on the power of law, regulatory bodies and judicial authorities to resolve disputes of such scientific and ethical dimension.


[1] For a more detailed analysis of the Chand award, see M Viret and E Wisnosky, Controlling “Femaleness” in Sports: Regulatory challenges at the intersection of health, performance and identity, in A Duval and A Rigozzi, eds., Yearbook of International Sports Arbitration, to be published.

[2] CAS 2014/A/3759, Dutee Chand v. AFI & IAAF, 24 July 2015.at [27]­[28]. As reported in the award, the text of the Decision Letter read in relevant part: “Based on your medical reports received from Sports Authority of India and a copy of the same has already been handed over to you by SAI in person, you are hereby provisionally stopped from participation in any Competition in athletics with immediate effect.

To be eligible for participation, you are further advised to follow the annexed IAAF guidelines”. [27]. Ms. Chand stated that the letter incorrectly enclosed the IAAF Sex Reassignment Regulations rather than the Hyperandrogenism Regulations [28].

[4] Hyperandrogenism Regulations, art. 6.5(i).

[5] Hyperandrogenism Regulations, art. 6.5(ii).

[6] Dutee Chand initially submitted two requests for relief, namely that a.) “[T]he Hyperandrogenism Regulation[s] be declared invalid and void; and, b.)[T]he Decision Letter [note: rendered by the AFI against Ms. Chand] be set aside and she be declared eligible to compete (Chand award at [104]).

[7] CAS’ consultation proceedings were abrogated in the 2012 review of the CAS Code.

[8] Chand award at [36]

[9] “The ‘Digest of CAS Awards 1986-1998’ recorded the emergence of a lex sportiva through the judicial decisions of the CAS. It is true that one of the interests of this court is to develop a jurisprudence that can be used as a reference by all the actors of world sport, thereby encouraging the harmonisation of the judicial rules and principles applied within the sports world.” (CAS Digest II, Reeb, p. xxix).

[10] A detailed analysis of the CAS panel’s reasoning can be found in Viret and Wisnosky 2016.

[11] For more details, see Viret and Wisnosky 2016, on the lack of clear distinction between issues of fact (which parties can agree upon) and issues of law, such as the burden and standard of proof and scientific validity (which is for a hearing panel to decide) in the Chand award.

[12] Chand award at [536].

[13] J Paulsson, Assessing the Usefulness and Legitimacy of CAS, SchiedsVZ 2015, pp. 263-269, p. 269.

[14] G Kaufmann-Kohler and A Rigozzi, International Arbitration: Law and Practice in Switzerland, Oxford University Press, Oxford 2015, paras 7.105-7.106.

[15] See Chand award at [442]. In particular, the Athlete accepted the burden of proof with respect to the “issue of scientific basis” of the Hyperandrogenism Regulations, a burden that the CAS panel considered had equally not been discharged.

[16] Chand award at [510]

[17] Chand award at [510].

[18] See e.g. M Genel, J L Simpson and A de la Chapelle, The Olympic Games and Athletic Sex Assignment, Journal of the American Medical Association, Published online August 04, 2016.

[19] IOC (2015) IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015

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Asser International Sports Law Blog | All posts tagged 'Solidarity-Mechanism'

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Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 5: Rethinking Redistribution in Football - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better?  More...


Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 4: The New FIFA Clearing House – An improvement to FIFA’s training compensation and solidarity mechanisms? - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 3: The Curious Non-Application of Training Compensation to Women’s Football – By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As recently as September 2020, questions were raised in the European Parliament on the non-application of training compensation to women’s football. Whilst this blog will predominantly consider potential inconsistencies in reasoning for and against training compensation in men’s and women’s football, the questions before the Commission were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating that: “The TFEU does not give the Commission the competence to interfere in the internal organisation of an independent international organisation such as FIFA.” This might be true in theory, though one might feel some degree of uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory overhaul.

It is currently explicit in the regulations and the commentary, that in women’s football, signing clubs are not required to compensate training clubs for developing players, through the training compensation mechanism that exists in men’s football. Though it is a contentious comment and as will be expanded below, this may not have always been the case.

At Article 20 of the FIFA Regulations on the Status and Transfer of Players (RSTP), one will find that the principles of training compensation shall not apply to women’s football. Further, in FIFA’s recently released Women’s Football Administrator Handbook (the handbook), it states that disputes relating to training compensation are limited for the moment to male players only.[1]

Regulations on solidarity contributions on the other hand do apply to women’s football, but given transfer fees are not so common, the use of the mechanism is not either. As an indication of how uncommon the activation of the solidarity contribution mechanism in women’s football might be, FIFA reported in the handbook just four claims with the Players’ Status Department in 2016 (three claims involving the same player), and zero since.[2] That is in comparison to hundreds of claims made per season in men’s football, where signing and owing clubs had not fulfilled their obligation to pay the solidarity contribution.

Given the aforementioned, this blog will largely focus on training compensation and how it came to be the case that this mechanism, often presented as critical in the context of men’s football, does not apply in women’s football. To do so, I will first discuss the reasoning advanced in an unpublished CAS award, which one may reasonably suspect played a fundamental role in shaping the current exemption. I will then turn to FIFA’s timely response to the award and the adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s decision to adopt two radically different approaches to the issue of training compensation in male and female professional football. More...


Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 2: The African Reality – By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


Having considered the history and justifications for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African context. This appears to be a worthwhile undertaking given these global mechanisms were largely a result of European influence, so understanding their (extraterritorial) impact beyond the EU seems particularly important. Moreover, much has been written about the “muscle drain” affecting African football and the need for such drain to either be brought to a halt, or, more likely and perhaps more practical, to put in place an adequate system of redistribution to ensure the flourishing of African football that has essentially acted as a nursery for European football for at least a century. In the present blog, I intend to draw on my experiences as a football agent to expand on how FIFA’s redistributive mechanisms function in practice when an African player signs in Europe via one of the many kinds of entities that develop or purport to develop talent in Africa. I will throughout address the question of whether these mechanisms are effective in a general sense and more specifically in relation to their operation in Africa.More...



Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


In 2019, training compensation and solidarity contributions based on FIFA’s Regulations on the Status and Transfer of Players (RSTP) amounted to US$ 75,5 million. This transfer of wealth from the clubs in the core of the football hierarchy to the clubs where the professional players originated is a peculiar arrangement unknown in other global industries. Beyond briefly pointing out or reminding the reader of how these systems work and the history behind them, this blog series aims to revisit the justifications for FIFA-imposed training compensation and the solidarity mechanism, assess their efficacy and effects through a case study of their operation in the African context, and finally analyse the potential impact of upcoming reforms of the FIFA RSTP in this context.

First, it is important to go back to the roots of this, arguably, strange practice. The current transfer system and the legal mechanisms constituting it were largely the result of a complex negotiation between European football’s main stakeholders and the European Commission dating back to 2001. The conclusion of these negotiations led to a new regulatory system enshrined in Article 20 and Annex 4 of the RSTP in the case of training compensation, and at Article 21 and Annex 5 in the case of the solidarity mechanism. Before paying some attention to the historical influences and how we arrived at these changes, as well as the justifications from the relevant bodies for their existence, let us briefly recall what training compensation and the solidarity mechanisms actually are. More...