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
We
are looking for an International Sports Law Intern (with a particular interest
in the CAS)! More information can be found here.
The (terrible) State of the World
Anti-Doping System
The fight against doping is still on
top of the agenda after the Russian doping scandal. The national anti-doping
organizations (NADOs) have reiterated their call for an in depth reform of the
World Anti-Doping Agency at a special summit in Bonn, Germany. These reforms are deemed urgent
and necessary to “restore confidence of clean athletes and those who value the
integrity of sport” and secure “the public’s desire for a fair and level
playing field”. The NADOs propose, amongst others things, to separate the
investigatory, testing and results management functions from sports
organizations, and to remove sports administrators from crucial anti-doping
executive functions. More...
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...
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...
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...
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...
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...
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...
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...
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...
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...