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

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 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

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

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Upcoming Events

Call for papers - Third Annual International Sports Law Conference of the International Sports Law Journal - 24 and 25 October 2019 - Asser Institute

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on International Sports Law, which will take place on 24 and 25 October 2019 at the Asser Institute in The Hague. The ISLJ, published by Springer and Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports with renowned academic experts and practitioners.


We are delighted to announce the following confirmed keynote speakers:


  • Beckie Scott (Chair of the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former member of the WADA Executive Committee and the International Olympic Committee (IOC)),
  • Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator), and
  • Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity and Compliance).


We welcome abstracts from academics and practitioners on any question related to international sports law. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes:


  • The role of athletes in the governance of international sports
  • The evolution of sports arbitration, including the Court of Arbitration for Sport
  •  The role and functioning of the FIFA transfer system, including the FIFA TMS
  •  The intersection between criminal law and international sports (in particular issues of corruption, match-fixing, human trafficking, tax evasion)
  • Hooliganism
  • Protection of minor athletes
  • Civil and criminal liability relating to injuries in sports


Please send your abstract of 300 words and CV no later than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.


The selected participants will be expected to submit a draft paper by 1 September 2019. All papers presented at the conference are eligible (subjected to peer-review) for publication in a special issue of the ISLJ.  To be considered for inclusion in the conference issue of the journal, the final draft must be submitted for review by 15 December 2019.  Submissions after this date will be considered for publication in later editions of the Journal.


The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant please indicate it in your submission. 

A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)

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.

 

On November 26th, the Human Rights Advisory Board[1] 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...

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 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 Federation (NSF). 

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 football leaks: A review of the first episodes

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
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

Asser International Sports Law Blog | A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

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

A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s 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.

 

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions.

 

2.     Applicability of EU Law to Amateur Sport

The CJEU has long made the distinction that sporting activity falls under the scope of EU law “in so far as it constitutes an economic activity.”[1]  Since this ruling in the 1974, treaty revisions, the natural development of the CJEU’s case law, and the increasing economic interests involved in sport has meant that defining the boundaries of EU law’s application to sport has become increasingly difficult. These borderline cases can especially arise when an amateur athlete is barred from a competition, since amateur athletes prima facie do not have an economic interest. For example, the CJEU in the Deliège case explored the extent to which amateur athletes may enjoy market freedoms. The Court ruled that amateur athletes may come within the scope of EU law when the exercise of their sporting activity is sufficiently connected to an economic sphere. In this case, an amateur athlete’s sponsorship contracts and grants were considered to be sufficient economic activity to fall within the scope of the freedom to provide services.[2] Amateur athletes in this case still needed to demonstrate that they had a minimum economic interest that was being affected by a sport rule. Sporting rules lacking economic effect would thus fall outside the scope of the market freedoms.

The TopFit ruling changes this understanding because Mr. Biffi is an amateur athlete and instead of invoking the market freedoms, he decided to rely on his European citizenship rights. These rights derive from being a citizen of the Union and do not require the exercise of an economic activity to be applicable. Indeed, Article 21 TFEU gives the free movement of persons a whole new dimension where an economic interest is no longer a prerequisite to fall under the aegis of the fundamental freedoms.[3] The CJEU confirmed this reality in Baumbast when it declared that the introduction of Union citizenship “has conferred a right, for every citizen, to move and reside freely within the territory of the Member States” regardless of their status as economically active or nonactive.[4] Thus, the Court in TopFit states, in reference to other cases, that one’s exercise of their free movement under their European citizenship, includes the “access to leisure activities” and that Article 21 (1) TFEU also intends “to promote the gradual integration of the EU citizen concerned in the society of the host Member State.”[5] It then extends this reasoning to sport by relying on Article 165 TFEU, the Article which explicitly introduced sport into the Treaties, which “reflects the considerable social importance of sport” and that the practice of an amateur sport helps “to create bonds with the society of the State” or “to consolidate them.”[6] The Court goes even further to unequivocally state that this is the “case with regard to participation in sporting competitions at all levels.”[7] On this basis, it is possible for amateur sportspersons to rely on Article 18 and 21 TFEU.[8] Therefore, the Court has confirmed that EU law, through rights derived from European citizenship, may apply to restrictions of free movement that arise from ‘all levels’ of amateur sport, basically extending the reach of EU law applicability to all types of sports activity on the territory of the EU, provided by public authorities or (as we will see in the next section) by private ones.  

 

3.     Horizontal Applicability of European Citizenship Rights

The next issue that materializes from the ability of amateur sports persons to rely on European citizenship rights is whether these rights may be invoked against private entities, the sport governing bodies. Indeed, sports throughout the European Union is primarily governed by a network of private associations integrated in the famous pyramid of sports. Treaty articles may be relied upon horizontally, meaning against other private parties, by individuals so long as the relevant article is “sufficiently clear, precise and unconditional to be invoked by individuals.”[9] AG Tanchev rightly argued in his opinion that giving Article 21 TFEU horizontal direct effect would be a “significant constitutional step” by being the “first time this century that a provision of the Treaty has been selected to join the small number of provisions having the quality of horizontal direct effect.”[10] In particular, the AG explains that Article 21 TFEU has always been used in relation to disputes arising between an individual and the State and giving horizontal direct effect to Article 21 TFEU could damage legal certainty.[11] 

Regardless, the Court in TopFit was not dissuaded and decided to allow Mr. Biffi to rely on Articles 18 and 21 TFEU against the DLV, a private entity. It explains that the fundamental objectives of the European Union “would be compromised if the abolition of barriers of national origin could be neutralised by obstacles” emanating from private entities.[12] The Court then goes on to elaborate that this principle applies “where a group or organisation exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms.”[13] Such an interpretation of the horizontal direct effect of Article 21 TFEU is in line with the ‘relatively’ limited horizontal direct effect already described by De Mol for Article 18 TFEU that “concerns private relations in which one party is weaker than the other party.”[14] Thus, in order for one to invoke Article 21 TFEU horizontally, it is necessary to scrutinize the nature of the relationship and power (im)balance between the parties. The more asymmetrical the relationship, the more likely Article 21 TFEU may be relied on horizontally. On the whole, TopFit confirms that not only may Article 21 TFEU have horizontal direct effect but that perhaps this horizontal effect is not completely unlimited, although it is questionable what the practical consequences of this distinction actually entails.

In the sporting context, however, the message is clear: non-economic sporting activity, such as amateur level sports with zero economic benefits derived from it, falls under the scope of EU law and Article 21 TFEU may be invoked by EU citizens against the private associations which are more often than not ruling sports at a local, regional and national level in the Member States. In short, all (economic and non-economic) sports activity is now subjected to the control of EU law (in particular with regard to anti-discrimination).


4.     Justifications and Proportionality of Access Restrictions to National Competitions

After having found that Mr. Biffi may rely on his European citizenship rights against the DLV, the Court quite readily finds that there has been a restriction to this right. It asserts that the DLV’s rules could result in non-German athletes receiving less investment from their clubs since they may not participate in the national championships in the same manner as German athletes. Consequently, “athletes of other Member States would be less able to integrate themselves” in their club and the wider society of the Member State, and the effects of this “are likely to make amateur sport less attractive for EU citizens.”[15] However, a restriction on a fundamental freedom may be justified if it pursues a legitimate objective and meets the proportionality requirements. The Court goes on to entertain several justifications put forward by the DLV and firmly rejects each as an illegitimate objective. These rejected justifications include: “the argument that the public expects that the national champion of a country will have the nationality of that country”; that the national champion is used to represent his country in the international championship (it was clear that this was not the case for those competing in the senior category); and a “need to adopt the same rules for all age categories” (since it was obvious the DLV had adopted different rules in regards to national selection depending on the age category).[16] In the end, the Court only accepts one justification concerning preventing the participation of non-nationals in the final heat specifically due to the nature of eliminatory heats in some sports. It recognizes that the participation of a non-national may prevent a national from “winning the championship and of hindering the designation of the best nationals.”[17]

Having found a legitimate justification, the Court moves on to considerations of proportionality and reasons that “non-admission of non-nationals to the final must no go beyond what is necessary”, and it recalls the fact that the exclusion of non-nationals is only recent.[18] In other words, the Court essentially finds it rather strange that a sudden rule change became necessary to prevent the participation of non-nationals in the finals and, in light of this, finds the means to be unnecessary and generally disproportionate to the aim sought.

Next, it also recalls that participation of non-nationals was also subject to the authorization of the organizers and had resulted in Mr. Biffi’s complete exclusion in one competition. The Court explains that such an authorization scheme must “be based on objective and non-discriminatory criteria which are known in advance” to be justified. In regard to proportionality, it finds that “total non-admission” of a non-national athlete to the national championship in this circumstance to be disproportionate because due to the DLV’s own admission, there were ways for athletes to compete in the competition, either in the preliminary heats and/or outside classification. None of the DLV’s justifications were able to survive the proportionality requirements.

However, this does not mean that there could never be a legitimate justification that can meet the proportionality requirements. Interestingly, before it examined any of the DLV’s submitted justifications, the Court essentially gave a hint to sport governing bodies wishing to introduce nationality restrictions to the organization of their national competitions. It states that it is legitimate to limit the award of the national title to a national of the relevant Member State because the nationality requirement is an essential feature of holding the title.[19] Thus, it seems the Court would readily accept a restriction to the ability of non-national athletes to actually win the title.


5.     Conclusion

The CJEU took full advantage of the case before it by demonstrating how a lack of an economic interest does not give sport governing bodies full reign to prevent amateur athletes seeking to further integrate themselves in their host Member State’s society through amateur sport. It also signals the Court’s willingness to observe and take into consideration the specific characteristics of the sport and competition structure in question. Additionally, TopFit has opened exciting new judicial avenues for the exercise and enforcement of European citizenship rights against powerful private entities. In particular, sport governing bodies should pay close attention to the TopFit ruling because it further illustrates how they may exercise their regulatory autonomy provided they follow the analytical framework imposed by the CJEU in its control of discriminatory restrictions to market freedoms and European citizenship rights.


[1] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405 para 4.

[2] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 51.

[3] See Section III, Ferdinand Wollenschlager, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ [2011] European Law Journal 1.

[4] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-08091 para 81 and 83.

[5] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:497 para 31-32.

[6] ibid para 33-34.

[7] ibid para 34.

[8] ibid para 35.

[9] Case C-438-05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 para 66; see also Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (6th edn, OUP 2015) 192.

[10] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 56 and 100.

[11] ibid para 101 and 103.

[12] TopFit (n 5) para 38.

[13] ibid para 39.

[14] Mirjam de Mol, ‘The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU law?’ [2011] Maastricht Journal of European and Comparative Law 109.

[15] TopFit (n 5) para 46-47.

[16] ibid para 54 and 56-57.

[17] ibid para 61.

[18] ibid para 62

[19] ibid para 50.

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