Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at
the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in
International Law. In addition to research in human rights and feminist
legal theory, she has also carried out some research in legal philosophy and on
the relationship between gender and the law.
Association of Athletics Federations (IAAF), the monitoring body of track and
field athletics, regularly submitted South African middle distance runner and
Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it
began questioning her sexual characteristics and speculating whether her body
belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often
defined as an “intersex condition” which affects the clear development of
either/or genitalia, gonads and chromosomes into one distinctive sex or
another. The spectrum of the intersex condition is particularly wide, and the
disorder can sometimes be minimal - some cases of female infertility can actually
be explained by an intersex condition.
The IAAF deemed the
controversial sex verification tests necessary on the grounds that it was
required to prove Semenya did not have a “medical condition” which could give
her an “unfair advantage”. It was eventually found that, because of an intersex
trait, Semenya did have abnormally high levels of testosterone for a woman,
which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments
in order for her to keep competing in the women’s category. The IAAF also funded
research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018,
it issued Eligibility Regulations on Female Classification (“Athlete with
Differences of Sexual Development”) for events from 400m to the mile, including
400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of
an existing high level of testosterone, suppression or regulation by
chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory
in order to take part in these events.
Semenya and her
lawyers challenged the IAAF Regulations in front of the CAS, who, in a very
controversial decision, deemed the Regulations a necessary, reasonable
and proportionate mean “of achieving the aim of what is described as the
integrity of female athletics and for the upholding of the ‘protected class’ of
female athletes in certain events” (§626). More...
note: Thomas Terraz is a third year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
organizational structure of sports in Europe is distinguished by its
pyramid structure which is marked by an open promotion and relegation system. A
truly closed system, without promotion and relegation, is unknown to Europe,
while it is the main structure found in North American professional sports
leagues such as the NFL, NBA and the NHL. Recently, top European football clubs
along with certain members of UEFA have been debating different possibilities
a more closed league system to European
football clubs have even wielded the threat of
forming an elite closed breakaway league. Piercing through these intimidations
and rumors, the question of whether a closed league system could even survive
the scrutiny of EU competition law remains. It could be argued that an
agreement between clubs to create a completely closed league stifles
competition and would most likely trigger the application of Article 101 and
Interestingly, a completely closed league franchise system has already
permeated the European continent. As outlined in my
previous blog, the League of Legends European
Championship (LEC) is a European e-sports competition that has recently
rebranded and restructured this year from an open promotion and relegation
system to a completely closed franchise league to model its sister competition
from North America, the League Championship Series. This case is an enticing
opportunity to test how EU competition law could apply to such a competition
a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’
sport competition and makes the assumption that the LEC could be considered as
a sports competition.
Editor's Note: Ryan Gauthier
is Assistant Professor at Thompson Rivers University in Canada. Ryan’s
research addresses the governance of sports organisations, with a
particular focus on international sports organisations. His PhD research
examined the accountability of the International Olympic Committee for
human rights violations caused by the organisation of the Olympic Games.
Big June 2019 for Olympic Hosting
On June 24, 2019, the International
Olympic Committee (IOC) selected Milano-Cortina to host the 2026 Winter Olympic
Games. Milano-Cortina’s victory came despite a declaration that the bid was “dead”
just months prior when the Italian government refused
to support the bid. Things looked even more dire for the Italians when 2006 Winter Games
host Turin balked at a three-city host proposal. But, when the bid was presented to
the members of the IOC Session, it was selected over Stockholm-Åre by 47 votes to 34.
Just two days later, the IOC killed
the host selection process as we know it. The IOC did this by amending two
sections of the Olympic Charter in two key ways. First, the IOC amended Rule 33.2, eliminating the
requirement that the Games be selected by an election seven years prior to the
Games. While an election by the IOC Session is still required, the
seven-years-out requirement is gone.
Second, the IOC amended Rule 32.2 to
allow for a broader scope of hosts to be selected for the Olympic Games. Prior
to the amendment, only cities could host the Games, with the odd event being
held in another location. Now, while cities are the hosts “in principle”, the
IOC had made it so: “where deemed appropriate, the IOC may elect several
cities, or other entities, such as regions, states or countries, as host of the
The change to rule 33.2 risks
undoing the public host selection process. The prior process included bids
(generally publicly available), evaluation committee reports, and other
mechanisms to make the bidding process transparent. Now, it is entirely
possible that the IOC may pre-select a host, and present just that host to the
IOC for an up-or-down vote. This vote may be seven years out from the Games,
ten years out, or two years out. More...
Editor's note: Daniela Heerdt is a PhD
candidate at Tilburg Law School in the Netherlands. Her PhD research deals with
the establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
About three years ago, the Fédération Internationale de Football
Association (FIFA) adopted a new version of its Statutes,
including a statutory commitment to respect internationally recognized human
rights. Since then, FIFA undertook a human rights journey that has been praised
by various stakeholders in the sports and human rights field. In early June, the
FIFA Congress is scheduled to take a decision that could potentially undo all
positive efforts taken thus far.
FIFA already decided in January 2017 to increase the
number of teams participating in the 2026 World Cup from 32 to 48. Shortly
after, discussions began on the possibility to also expand the number of teams for
the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility
study, which revealed that the expansion would be feasible but require a
number of matches to be hosted in neighbouring countries, explicitly mentioning
Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One
does not have to be a human rights expert to be highly alarmed by this list of
potential co-hosting countries. Nevertheless, the FIFA Council approved of the
possibility to expand in March 2019, paving the way for the FIFA Congress to
take a decision on the matter. Obviously, the advancement of the expansion
decision raises serious doubts over the sincerity of FIFA’s reforms and human
rights commitments. More...
Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.
Since the spectre of the EU General Data
Protection Regulation (‘GDPR’) has loomed over the sports sector,
a new wind seems to be blowing on anti-doping, with a palpable growing interest
for stakes involved in data processing. Nothing that would quite qualify as a
wind of change yet, but a gentle breeze of awareness at the very least.
Though the GDPR does mention the fight
against doping in sport as a potential matter of public health in its recitals,
EU authorities have not gone so far as to create a standalone ground on which
anti-doping organisations could rely to legitimise their data processing.
Whether or not anti-doping organisations have a basis to process personal data –
and specifically sensitive data – as part of their anti-doping activities, thus
remains dependent on the peculiarities of each national law. Even anti-doping
organisations that are incorporated outside the EU are affected to the extent
they process data about athletes in the EU.
This includes international sports federations, many of which are organised as private
associations under Swiss law. Moreover, the Swiss
Data Protection Act (‘DPA’) is currently
under review, and the revised legal
framework should largely mirror the GDPR, subject to a few Swiss peculiarities.
All anti-doping organisations undertake at a minimum to abide by the WADA International
Standard for Privacy and the Protection of Personal Information (‘ISPPPI’),
which has been adapted with effect to 1 June 2018 and enshrines requirements
similar to those of the GDPR. However, the ISPPPI stops short of actually
referring to the GDPR and leaves discretion for anti-doping organisations to
adapt to other legislative environments.
The purpose of this blog is not to offer a
detailed analysis of the requirements that anti-doping organisations must abide
by under data protection laws, but to highlight how issues around data
processing have come to crystallise key challenges that anti-doping
organisations face globally. Some of these challenges have been on the table since
the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but
are now exposed in the unforgiving light of data protection requirements. More...
In the last five years, the Striani
case has been the main sword of Damocles hanging over UEFA’s Financial Fair
Play Regulations. At the very least, the only real judicial threat they have
faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian
player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis
Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s
CL&FFP Regulations with EU law. Striani lodged a complaint with the
European Commission (which was quickly rejected in October 2014) and initiated a private
action for damages before the Brussels Court of First Instance. The latter
deemed itself not competent to decide on the matter, but nevertheless accepted to
order a provisory stay of the enforcement of the UEFA FFP Regulations pending a
preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s
blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani
decided to appeal the first instance ruling to the Court of Appeal, which
rendered its decision on 11 April. It is unclear at this stage whether Striani
will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil
Court), however this would entail considerable risks and costs and his lawyers
to date have not indicated that they would do so (see here).
While the ruling of the Court of
Appeal does not touch upon the much-discussed question of the compatibility of
UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to
discuss broader questions related to the procedural ease in challenging
regulatory decisions passed by sports governing bodies (SGBs) based in
Switzerland. Competition law constitutes the main legal tool available to
sports stakeholders looking to challenge existing regulatory arrangements from
the outside (e.g. not going through the internal political systems of the SGBs
or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or
the Rule 40 decision of the German competition
authority, have demonstrated the potency of competition law to question the
legality of the rules and decisions of the SGBs.
In this regard, the decision of the Brussels Court of Appeal narrows the range
of parties allowed to challenge in European courts the SGBs’ rules and
decisions on the basis of competition law. More...
Editor's note: Daniela Heerdt is a PhD candidate at Tilburg
Law School in the Netherlands and works as Research Officer for the Centre for Sports and
Human Rights. Her PhD research deals with the
establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting
regulations by FIFA, the IOC and UEFA strengthen access to remedy for
mega-sporting events-related human rights violations.
26th, the Human Rights Advisory Board
of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief
evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory
Board (hereinafter: the Board) based on the content of the recommendations and
FIFA’s efforts to implement the Board’s recommendations. The third part of this
blog briefly reflects on the broader implications of some of the new
recommendations issued for FIFA’s internal policies. The conclusion provides
five more general points of observation on the report. More...
Editor’s note: Sven Demeulemeester and Niels Verborgh
are sports lawyers at the Belgium law firm, Altius.
16 November 2018 judgment, the Court of Justice of the
European Free Trade Association States (the EFTA Court) delivered its eagerly
awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski
On 17 October
2016, Kristoffersen had taken the NSF to the Oslo District Court over the
latter’s refusal to let the renowned alpine skier enter into a sponsorship with
Red Bull. At stake were the commercial markings on his helmet and headgear in
races organised under the NSF’s umbrella. The NSF refused this sponsorship because
it had already granted the advertising on helmet and headgear to its own main
sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the
NSF should be ordered to permit him to enter into an individual marketing
contract with Red Bull. In the alternative, Kristoffersen claimed damages up to
a maximum of NOK 15 million. By a letter of 25
September 2017, the Oslo District Court referred several legal questions to the
EFTA Court in view of shedding light on the compatibility of the rules that the
NSF had invoked with EEA law.
If rules do not relate to the conduct of the
sport itself, but concern sponsorship rights and hence an economic activity,
these rules are subject to EEA law. The EFTA Court ruling is important in that
it sets out the framework for dealing with - ever more frequent - cases in
which an individual athlete’s endorsement deals conflict with the interest of
the national or international sports governing bodies (SGBs) that he or she
represents in international competitions.More...
Season 2 of #FootballLeaks is now underway
since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of)
transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For
me, as a legal scholar, this new series of revelations is an exciting
opportunity to discuss in much more detail than usual various questions related
to the operation of the transnational private regulations of football imposed by
FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what
has been unveiled was known or suspected by many, but the scope and precision
of the documents published makes a difference. At last, the general public, as
well as academics, can have certainty about the nature of various shady practices
in the world of football. One key characteristic that explains the lack of
information usually available is that football, like many international sports,
is actually governed by private administrations (formally Swiss associations),
which are not subject to the similar obligations in terms of transparency than
public ones (e.g. access to document rules, systematic publication of decisions,
etc.). In other words, it’s a total black box! The football leaks are offering
a rare sneak peak into that box.
Based on what I have read so far
(this blog was written on Friday 9 November), there are three main aspects I
find worthy of discussion:
- The (lack of) enforcement of UEFA’s
Financial Fair Play (FFP) Regulations
- The European Super League project and
EU competition law
(lack of) separation of powers inside FIFA and UEFA More...
Editor’s note: Stefano
Bastianon is Associate Professor in EU Law and EU sports law at the University
of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of
the IVth Division of the High Court of Sport Justice (Collegio di
Garanzia dello sport) at the National Olympic Committee.
1. On the
20th July 2018, the Court of Arbitration for Sport (hereinafter
referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan
and UEFA. The subject matter of this arbitration procedure was
the appeal filed by AC Milan against the decision of the
Adjudicatory Chamber of the UEFA Financial Control Body
dated 19th June 2018 (hereinafter referred to as “the contested
decision”). As many likely know, the CAS has acknowledged that, although AC
Milan was in breach of the break-even requirement, the related exclusion of the
club from the UEFA Europe League was not proportionate. To date, it is the
first time the CAS clearly ruled that the sanction of exclusion from UEFA club
competitions for a breach of the break-even requirement was not proportionate.
For this reason the CAS award represents a good opportunity to reflect on the
proportionality test under Art. 101 TFEU and the relationship between the
landmark ruling of the European Court of Justice (hereinafter referred to as
“ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...