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 have overlooked.
The Headlines
The McLaren Report on Russia’s State Doping System
It is difficult not to start this monthly
report without referring to the never-ending Russian doping investigation that
is shaking the sporting world. On 18 July, the independent investigation on
Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested
by the World Anti-Doping Agency (“WADA”), released its report. It confirmed
evidence of widespread, State-sponsored doping in Russian sports and called for
a full ban on the country from the next Rio Olympics. In response to the report,
the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the
run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles
calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation
against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible
legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the
appeal of the Russian Olympic Committee and 68
Russian athletes against the International Association of Athletics Federations
(“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF
membership given the evidence of a state-sponsored doping system. As a
consequence, Russian track and field athletes were also banned from Rio 2016
Olympics. With the IAAF
welcoming this decision, one could think that nothing was standing in the way
of a full Olympic ban for all Russian athletes. While some Russian athletes announced
that they would appeal the CAS award to the Swiss Federal Court. Yelena
Isinbayeva, the banned pole vault champion, even took it a step further by
claiming that she would challenge the IAAF decision as far as the European Court of
Human Rights. Yet, it is very improbable that any of
these challenges be decided in time for the Rio Games.More...
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...
Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.
Introduction
On Tuesday
the 12th of April, João
Carvalho passed away in the Beaumont Hospital after sustaining serious injuries
from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The
fighter was knocked out in the third round of a welterweight fight against
Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises
a number of interesting legal issues. This opinion piece will discuss the
possible civil and criminal liability that may result from the untimely death
of the Portuguese fighter.
It is
important to note at the outset that MMA has few rules and permits wrestling
holds, punching, marital arts throws and kicking. MMA appears to have little
regulation and a lack of universally accepted, standardised rules. There is no
international federation or governing body that regulates MMA. It is largely
self-regulated. MMA is not recognised under the sports and governing bodies
listed by Sport
Ireland, the statutory body established by the Sport
Ireland Act 2015 which replaced the Irish
Sports Council. MMA is considered a properly constituted sport so long as the
rules and regulations are adhered to, there are appropriate safety procedures,
the rules are enforced by independent referees, and it appropriately
administered.
The
Acting Minister for Sport, Michael Ring, has called for the regulation
of MMA. Currently there are no minimum requirements
when it comes to medical personnel; nor are there any particular requirements
as to training of medical personnel. The promoter decides how many doctors and
paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17
MMA promoters in Ireland requesting that they implement safety precautions in
line with those used by other sports including boxing and rugby.
Despite
this lack of regulation, this does not exempt MMA from legal liability as the
discussion below demonstrates.More...
Editor's note: Conor
Talbot is a Solicitor at LK Shields Solicitors in Dublin and an
Associate Researcher at Trinity College Dublin. He can be contacted at
ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at
www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.
Sport is an integral part of the culture of almost
every nation and its ability to shape perceptions and influence public opinion
should not be underestimated. The United
Nations has highlighted the potential for using sport in reducing
discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing
health and well-being, fostering empowerment, facilitating social inclusion and
challenging gender norms.
In spite of the possible benefits, the successful
implementation of sport-related initiatives aimed at gender equity involves
many challenges and obstacles. Chief
amongst these is the way that existing social constructs of masculinity and
femininity — or socially accepted ways of expressing what it means to be a man
or woman in a particular socio-cultural context — play a key role in
determining access, levels of participation, and benefits from sport. This contribution explores recent
developments in the interaction between transgender and intersex rights and the
multi-billion dollar industry that the modern Olympic Games has become. Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes
and, while there has been progress as part of a long and difficult journey to afford transgender people full legal
recognition through the courts, it seems clear that sport could play an increasingly
important role in helping change or better inform social attitudes.More...
Footballleaks is now operating since nearly half a year and has already provided an
incredible wealth of legal documents both on TPO (and in particular Doyen’s
contractual arrangements) and on the operation of the transfer system in
football (mainly transfer agreements, player contracts and agents contracts).
This constant stream of information is extremely valuable for academic research
to get a better grip on the functioning of the transfer market. It is also
extremely relevant for the shaping of public debates and political decisions on
the regulation of this market. As pointed out on the footballleaks website, it has triggered a series of press
investigations in major European news outlets.
In this blog, I want to come to a
closure on our reporting on Doyen’s TPO deals. In the past months, we have
already dealt with the specific cases of FC Twente and Sporting Lisbon, reviewed Doyen’s TPO deals with Spanish clubs, as well as discussed the compatibility of the TPO ban with EU law. In the Sporting
Lisbon case, Doyen has since earned an
important legal victory in front of the CAS (the ensuing award was just
published by Footballleaks). This victory should not be overstated, however, it
was not unexpected due to the liberal understanding of the freedom of contract
under Swiss law. As such it does not support the necessity of TPO as an
investment practice and does not threaten the legality (especially under EU
law) of FIFA’s ban.
In our previous blogs on Doyen’s
TPO deals we decided to focus only on specific deals, Twente and Sporting
Lisbon, or a specific country (Spain). However, nearly six months after the whole footballleaks project started, we can
now provide a more comprehensive analysis of the TPO deals signed by Doyen.
Though, it is still possible that other, yet unknown, deals would be revealed, I
believe that few of Doyen’s TPO agreements are still hidden. Thanks to footballleaks, we now know how Doyen
operates, we have a precise idea of its turnover, its return on investments and
the pool of clubs with which it signed a TPO agreement. Moreover, we have a
good understanding of the contractual structure used by Doyen in those deals.
This blog will offer a brief synthesis and analysis of this data.More...
Since
last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal
crusade against FIFA’s TPO ban. It has lodged a competition law complaint with
the EU Commission and started court proceedings in France and Belgium. In a first
decision on Doyen’s request for provisory measures, the Brussels Court of First
Instance rejected the demands raised by Doyen and already refused to send a
preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing,
decided to appeal this decision to the Brussels Appeal Court, which rendered
its final ruling on the question on 10 March 2016.[1] The
decision (on file with us) is rather unspectacular and in line with the first
instance judgment. This blog post will rehash the three interesting aspects of
the case.
·
The jurisdiction of the Belgian courts
·
The admissibility of Doyen’s action
·
The conditions for awarding provisory measures More...
This post
offers a basic literature review on publications on international and European
sports law in 2015. It does not have the pretence of being complete (our
readers are encouraged to add references and links in the comments under this
blog), but aims at covering a relatively vast sample of the 2015 academic
publications in the field (we have used the comprehensive catalogue of the Peace
Palace Library as a baseline for this
compilation). When possible we have added hyperlinks to the source.[1]
Have a
good read. More...
2015 was a good year for
international sports law. It started early in January with the Pechstein
ruling, THE
defining sports law case of the year (and probably in years to come) and ended
in an apotheosis with the decisions rendered by the FIFA Ethics
Committee against Blatter and Platini. This blog will walk you through the
important sports law developments of the year and make sure that you did not
miss any. More...
FIFA’s Third-Party Ownership (TPO)
ban entered into force on the 1 May 2015[1].
Since then, an academic and practitioner’s debate is raging over its compatibility with EU law,
and in particular the EU Free Movement rights and competition rules.
The European Commission, national
courts (and probably in the end the Court of Justice of the EU) and the Court
of Arbitration for Sport (CAS) will soon have to propose their interpretations
of the impact of EU law on FIFA’s TPO ban. Advised by the world-famous Bosman lawyer, Jean-Louis Dupont, Doyen
has decided to wage through a proxy (the Belgian club FC Seraing) a legal war
against the ban. The first skirmishes have already taken place in front of the
Brussels Court of first instance, which denied in July Seraing’s request for provisional
measures. For its part, FIFA has already sanctioned the club for closing a TPO deal
with Doyen, thus opening the way to an ultimate appeal to the CAS. In parallel,
the Spanish and Portuguese leagues have lodged a complaint with the European
Commission arguing that the FIFA ban is contrary to EU competition law. One
academic has already published an assessment of the compatibility of the ban
with EU law, and many practitioners have offered their take (see here and here for example). It is undeniable that the FIFA
ban is per se restrictive of the
economic freedoms of investors and can easily be constructed as a restriction
on free competition. Yet, the key and core question under an EU law analysis,
is not whether the ban is restrictive (any regulation inherently is), but
whether it is proportionate, in other words justified. More...
In this blog we continue unpacking Doyen’s TPO deals based on the
documents obtained via footballleaks. This time we focus on the battle between Doyen and
Sporting over the Rojo case, which raises different legal issues as the FC
Twente deals dealt with in our first blog.
I.
The context: The free-fall of Sporting
Sporting Lisbon, or Sporting Club de Portugal as the club is officially
known, is a Portuguese club active in 44 different sports. Although the club
has the legal status of Sociedade Anónima
Desportiva, a specific form of public limited company, it also has over
130.000 club members, making it one of the biggest sports clubs in the world.
The professional football branch of Sporting is by far the most
important and famous part of the club, and with its 19 league titles in total,
it is a proud member of the big three cartel, with FC Porto and Benfica,
dominating Portuguese football. Yet, it has not won a league title since 2002. More...