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

International and European Sports Law – Monthly Report – November and December 2019- By Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively.  As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.More...


Balancing Athletes’ Interests and The Olympic Partner Programme: the Bundeskartellamt’s Rule 40 Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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

The International Olympic Committee (IOC), after many years of ineffective pushback (see here, here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities. More...

Is UCI the new ISU? Analysing Velon’s Competition Law Complaint to the European Commission - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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

The UCI may soon have to navigate treacherous legal waters after being the subject of two competition law based complaints (see here and here) to the European Commission in less than a month over rule changes and decisions made over the past year. One of these complaints stems from Velon, a private limited company owned by 11 out of the 18 World Tour Teams,[1] and the other comes from the Lega del Ciclismo Professionistico, an entity based in Italy representing an amalgamation of stakeholders in Italian professional cycling. While each of the complaints differ on the actual substance, the essence is the same: both are challenging the way the UCI exercises its regulatory power over cycling because of a growing sense that the UCI is impeding the development of cycling as a sport. Albeit in different ways: Velon sees the UCI infringing on its ability to introduce new race structures and technologies; the Lega del Ciclismo Professionistico believes the UCI is cutting opportunities for semi-professional cycling teams, the middle ground between the World Tour Teams and the amateur teams.

While some of the details remain vague, this blog will aim to unpack part of the claims made by Velon in light of previous case law from both the European Commission and the Court of Justice of the European Union (CJEU) to give a preliminary overview of the main legal issues at stake and some of the potential outcomes of the complaint. First, it will be crucial to understand just who/what Velon is before analyzing the substance of Velon’s complaint. More...

International and European Sports Law – Monthly Report – October 2019 by Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 


The Headlines

International Sports Law Journal (ISLJ) Conference 2019

The T.M.C. Asser Institute and the Asser International Sports Law Centre held the third International Sports Law Journal (ISLJ) Conference on October 24-25. The Conference created a forum for academics and practitioners to discuss, debate and share knowledge on the latest developments of sports law. It featured six uniquely themed panels, which included topics such as ‘Transfer systems in international sports’ and ‘Revisiting the (in)dependence and transparency of the CAS’ to ‘The future of sports: sports law of the future’. The ISLJ Conference was also honored to have two exceptional keynote speakers: Moya Dodd and Ulrich Haas. To kick off the conference, Moya Dodd shared her experiences from an athlete’s perspective in the various boardrooms of FIFA. The second day was then launched by Ulrich Haas, who gave an incredibly thorough and insightful lecture on the importance, function and legal basis of association tribunals in international sport. For a detailed overview of this year’s ISLJ Conference, click here for the official conference report.

The Asser International Sports Law Centre was delighted to have been able to host another great edition of the ISLJ Conference and is thankful to all the participants and speakers who made this edition such a success.

Moving towards greater transparency: Launch of FIFA’s Legal Portal

On October 31, FIFA announced that it was introducing a new legal portal on its website that will give greater access to numerous documents that previously were kept private. FIFA explains that this is in order to help increase its transparency, which was one of the key ‘Guiding Principles’ highlighted in FIFA 2.0: The Vision for the Future released in 2016. This development comes as many sport governing bodies face increasing criticism for the opacity of its judicial bodies’ decisions, which can have tremendous economic and societal impacts. The newly available documents will include: ‘decisions rendered on the merits by the FIFA Disciplinary Committee and the FIFA Appeal Committee (notified as of 1 January 2019); decisions rendered on the merits by the FIFA Ethics Committee (notified since 1 January 2019); decisions rendered on the merits by the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber; non-confidential CAS awards in proceedings to which FIFA is a party (notified since 1 January 2019); list of CAS arbitrators proposed by FIFA for appointment by ICAS, and the number of times they have been nominated in CAS proceedings’. The list of decisions from all the aforementioned bodies are updated every four months, according to their respective webpages. However, time will ultimately tell how consistently decisions are published. Nevertheless, this move is a major milestone in FIFA’s journey towards increasing its transparency.

Hong Kong Protests, Human Rights and (e)Sports Law: The Blizzard and NBA controversies

Both Blizzard, a major video game developer, and the NBA received a flurry of criticism for their responses to persons expressing support for the Hong Kong protests over the past month. On October 8, Blizzard sanctioned Blitzchung, a professional Hearthstone player who expressed support of the Hong Kong protest during a post-match interview, by eliminating the prize money he had won and suspending him for one year from any Hearthstone tournament. Additionally, Blizzard will cease to work with the casters who conducted the interview. With mounting disapproval over the sanctions,  J. Allen Brack, the president of Blizzard, restored the prize money and reduced the period of ineligibility to 6 months.

The NBA controversy started when Daryl Morey, the general manager of the Houston Rockets, tweeted his support for the protests in Hong Kong. The tweet garnered much attention, especially in China where it received a lot of backlash, including an announcement from CCTV, the official state broadcaster in China, that it was suspending all broadcasts of the NBA preseason games. In attempts to appease its Chinese audience, which is a highly profitable market for the NBA, Morey deleted the tweet and posted an apology, and the NBA responded by saying that the initial tweet was ‘regrettable’. Many scolded these actions and accused the NBA of censorship to which the NBA Commissioner, Adam Silver, responded that the NBA remains committed to freedom of expression.

Both cases highlighted how (e)sport organizations may be faced with competing interests to either guarantee greater protection of human rights or to pursue interests that perhaps have certain financial motivations. More...


International and European Sports Law – Monthly Report – August and September 2019 - By Thomas Terraz

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

Another Russian Doping Crisis? Inconsistencies Uncovered in the Data from the Moscow Lab

Storm clouds are brewing once more in the Russian Doping Saga, after several inconsistencies were uncovered by WADA from data retrieved from the Moscow Laboratory. More specifically, a certain number of positive tests had been removed from the data WADA retrieved from the Moscow Laboratory compared to the one received from the original whistleblower. WADA launched a formal compliance procedure on 23 September, giving three weeks for Russian authorities to respond and provide their explanations. WADA’s Compliance Review Committee is set to meet on 23 October in order to determine whether to recommend declaring Russia non-compliant.

Russian authorities are not the only ones now facing questions in light of these new revelations. Criticism of WADA’s decision to declare Russia compliant back in September 2018 have been reignited by stakeholders. That original decision had been vehemently criticized (see also Edwin Moses’ response), particularly by athlete representative groups.

The fallout of these data discrepancies may be far reaching if Russian authorities are unable to provide a satisfying response. There are already whispers of another impending Olympic Games ban and the possibility of a ban extending to other sports signed to the WADA Code. In the meantime, the IAAF has already confirmed that the Russian Athletes would compete as ‘authorised neutral athletes’ at the World Athletics Championship in Doha, Qatar.

Legal Challenges Ahead to Changes to the FIFA Football Transfer Market

FIFA is set to make amendments to its player transfer market that take aim at setting new boundaries for football agents. These changes will prohibit individuals from representing both the buying and selling club in the same transaction and set new limits on agent commissions (3 percent for the buying club and player representative and 10 percent for the selling team). FIFA is already in the process of creating a central clearinghouse through which all transfer payments would have to pass through, including agent commissions. FIFA will be making a final decision on these proposed changes at the FIFA Council meeting on 24 October.

If these proposed changes are confirmed, they will almost certainly be challenged in court. The British trade organization representing football agents, Association of Football Agents, has already begun its preparations for a costly legal battle by sending a plea to its members for donations. It claims that it had not been properly consulted by FIFA before this decision had been made. On the other hand, FIFA claims that ‘there has been a consultation process with a representative group of agents’ and that FIFA kept ‘an open dialogue with agents’. Regardless, if these proposed changes go through, FIFA will be on course to a looming legal showdown.

CAS Public Hearing in the Sun Yang Case: One Step Forward for Transparency?

On 20 August, 2019, the Court of Arbitration for Sport (CAS) announced that the hearing in the appeal procedure of the Sun Yang case will be held publicly. It will be only the second time in its history that a public hearing has been held (the last one being in 1999, Michelle Smith De Bruin v. FINA). WADA has appealed the original decision of the FINA Doping Panel which had cleared Sun Yang from an alleged anti-doping rule violation. The decision to make the hearing public was at the request of both parties. The hearing is set to take place November 15th and is likely to be an important milestone in improving the CAS’ transparency.

Sun Yang, who has already served a doping ban for a previous violation in 2014, has also been at the center of another controversy, where Mack Horton, an Australian swimmer, refused to shake hands and stand on the podium with Sun Yang at the world championships in Gwangju. More...

ISLJ International Sports Law Conference 2019 - Conference Report - By Thomas Terraz

On October 24th and 25th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.More...

Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity - By Sofia Balzaretti (University of Fribourg)

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.

 

The International 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...

International and European Sports Law – Monthly Report – June and July 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

The European Court of Justice finds that rule of a sports association excluding nationals of other Member States from domestic amateur athletics championships may be contrary to EU law

On 13 June 2019, the European Court of Justice (ECJ) delivered a preliminary ruling at the request of the Amtsgericht Darmstadt (Local Court Darmstadt, Germany) filed in the course of the proceedings involving Mr Daniele Biffi, an Italian amateur athlete residing in Germany, and his athletics club TopFit based in Berlin, on the one hand, and the German athletics association Deutscher Leichtathletikverband, on the other. The case concerned a rule adopted by the German athletics association under which nationals of other Member States are not allowed to be awarded the title of national champion in senior amateur athletics events as they may only participate in such events outside/without classification. The ECJ’s task was to decide whether or not the rule in question adheres to EU law.

The ECJ took the view that the two justifications for the rule in question put forward by the German athletics association did not appear to be founded on objective considerations and called upon the Amtsgericht Darmstadt to look for other considerations that would pursue a legitimate objective. In its judgment, the ECJ analysed several important legal questions, including amongst others the applicability of EU law to amateur sport or the horizontal applicability of European citizenship rights (for detailed analysis of the judgment, please see our blog written by Thomas Terraz).

Milan not featuring in this season’s edition of Europa League following a settlement with UEFA

On 28 June 2019, the Court of Arbitration for Sport (CAS) rendered a consent award giving effect to a settlement agreement between UEFA and the Milan Football Club, under which the Italian club agreed to serve a one-year ban from participation in UEFA club competitions as a result of its breaches of UEFA’s financial fair play regulations over the 2015/2016/2017 and the 2016/2017/2018 monitoring periods, while the European football’s governing body agreed to set aside previous decisions of the Investigatory and Adjudicatory Chamber of its Club Financial Control Body which had found Milan guilty of the respective breaches.   

This was not the first intervention of the CAS related to Milan’s (non-)compliance with UEFA’s financial fair play regulations. In July 2018, the CAS annulled the decision of the Adjudicatory Chamber of the UEFA Club Financial Control Body of 19 June 2018 which was supposed to lead to the exclusion of the Italian club from UEFA club competitions for which it would otherwise qualify in the next two seasons (i.e. 2018/2019 and 2019/2020 seasons). Following such intervention of the CAS – which concerned the 2015/2016/2017 monitoring period – it may have appeared that Milan would eventually manage to escape a ban from participation in UEFA club competitions for breaches of UEFA’s financial fair play regulations. However, Milan’s case was again referred to the Adjudicatory Chamber of the UEFA Club Financial Control Body in April 2019 – this time its alleged breaches of UEFA’s financial fair play regulations concerned the 2016/2017/2018 monitoring period – and such referral apparently forced Milan into negotiations with UEFA which led to the settlement agreement ratified by the CAS.      

Swiss Federal Tribunal gives Caster Semenya a glimmer of hope at first but then stops her from running at the IAAF World Championships in Doha

Caster Semenya’s legal team brought an appeal to the Swiss Federal Tribunal in late May against the landmark ruling of the CAS which gave the IAAF the green light to apply its highly contentious Eligibility Regulations for Female Classification (Athlete with Difference of Sexual Development) preventing female athletes with naturally elevated levels of testosterone from participating in certain athletic events unless they take medication to supress such levels of testosterone below the threshold of five nmol/L for a continuous period of at least six months. The appeal yielded some positive partial results for Caster Semenya early on as the Swiss Federal Tribunal ordered the IAAF on 3 June 2019 to suspend the implementation of the contested regulations. However, the Swiss Federal Tribunal overturned its decision at the end of July which means that Caster Semenya is no longer able to run medication-free and this will most likely be the case also when the 2019 IAAF World Athletics Championships kick off in Doha in less than one month’s time. The procedural decisions adopted by the Swiss Federal Tribunal thus far have no impact on the merits of Caster Semenya’s appeal.More...

Book Review - Football and the Law, Edited by Nick De Marco - By Despina Mavromati (SportLegis/University of Lausanne)

 Editor's Note: Dr. Despina Mavromati, LL.M., M.B.A., FCIArb is an Attorney-at-law specialized in international sports law and arbitration (SportLegis) and a Member of the UEFA Appeals Body. She teaches sports arbitration and sports contracts at the University of Lausanne (Switzerland) and is a former Managing Counsel at the Court of Arbitration for Sport.


This comprehensive book of more than 500 pages with contributions by 53 authors and edited by Nick De Marco QC “aims to embody the main legal principles and procedures that arise in football law”. It is comprised of 29 chapters and includes an index, a table of football regulations and a helpful table of cases including CAS awards, UEFA & FIFA Disciplinary Committee decisions and Football Association, Premier League and Football League decisions. 

The 29 chapters cover a wide range of regulatory and legal issues in football, predominantly from the angle of English law. This is logical since both the editor and the vast majority of contributing authors are practitioners from England.

Apart from being of evident use to anyone involved in English football, the book offers additional basic principles that are likely to be of use also to those involved in football worldwide, including several chapters entirely dedicated to the European and International regulatory framework on football: chapter 3 (on International Federations) gives an overview of the pyramidal structure of football internationally and delineates the scope of jurisdiction among FIFA and the confederations; chapter 4 explains European law and its application on football deals mostly with competition issues and the free movement of workers; and chapter 29 deals with international football-related disputes and the Court of Arbitration for Sport (CAS).

In addition to the chapters exclusively dealing with international football matters, international perspectives and the international regulatory landscape is systematically discussed – in more or less depth, as the need might be – in several other chapters of the book, including: chapter 2 on the “Institutions” (from governing bodies to stakeholders groups in football); chapter 6 on the FIFA Regulations on the Status and Transfer of Players (RSTP); chapter 8 dealing with (national and international) player transfers; chapter 11 (on Third Party Investment) and chapter 16 on Financial Fair Play (mostly discussing the UEFA FFP Regulations); chapter 23  on disciplinary matters (very briefly discussing the disciplinary procedures under FIFA and UEFA Disciplinary rules); chapter 24 on domestic and international doping-related cases in football, with an overview of the CAS jurisprudence in this respect; and finally chapter 23 on corruption and match-fixing (with a very short description of the FIFA and UEFA regulations).

Furthermore, the book offers extensive chapters in less discussed – yet of high importance – football topics, including: chapter 13 on image rights and key clauses in image rights agreements; chapter 14 on taxation (referring also to taxation issues in image rights and intermediary fees); chapter 15 on sponsoring and commercial rights, with a guide on the principal provisions in a football sponsoring contract and various types of disputes arising out of sponsorship rights; chapter 17 on personal injury, discussing the duty of care in football cases (from the U.K.); and chapter 18 on copyright law and broadcasting (with short references to the European law and the freedom to supply football broadcasting services).

Some chapters seem to have a more general approach to the subject matter at issue without necessarily focusing on football. These include chapters 27 (on mediation) and 22 (on privacy and defamation), and even though they were drafted by reputable experts in their fields, I would still like to see chapter 27 discuss in more detail the specific aspects, constraints and potential of mediation in football-related disputes as opposed to a general overview of mediation as a dispute-resolution mechanism. The same goes for chapter 22, but this could be explained by the fact that there are not necessarily numerous football-specific cases that are publicly available. 

As is internationally known, “football law” is male-dominated. This is also demonstrated in the fact that of the 53 contributing authors, all of them good colleagues and most of them renowned in their field, only eight are female (15%). Their opinions, however, are of great importance to the book due to the subject matter on which these women have contributed, such as player contracts (Jane Mulcahy QC), player transfers (Liz Coley), immigration issues in football (Emma Mason), broadcasting (Anita Davies) or disciplinary issues (Alice Bricogne).

The book is a success not only due to the great good work done by its editor, Nick De Marco QC but first and foremost due to its content, masterfully prepared by all 53 authors. On the one hand, the editor carefully delimited and structured the scope of each topic in a logical order and in order to avoid overlaps (a daunting task in case of edited volumes with numerous contributors like this one!), while on the other hand, all 53 authors followed a logical and consistent structure in their chapters and ensured an expert analysis that would have not been possible had this book been authored by one single person.  

Overall, I found this book to be a great initiative and a very useful and comprehensive guide written by some of the most reputable experts. The chapters are drafted in a clear and understandable way and the editor did a great job putting together some of the most relevant and topical legal and regulatory issues from the football field, thus filling a much-needed gap in the “football law” literature.

Can a closed league in e-Sports survive EU competition law scrutiny? The case of LEC - 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

The 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 of introducing a more closed league system to European football. Some 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 102 TFEU.[1] 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 structure.

As 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.[2]

More...



Asser International Sports Law Blog | Book Review: Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport—Commentary, Cases, and Materials (Wolters Kluwer International 2015). By Professor Matthew Mitten

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

Book Review: Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport—Commentary, Cases, and Materials (Wolters Kluwer International 2015). By Professor Matthew Mitten

Editor’s note: Professor Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts. Professor Mitten is a member of the Court of Arbitration for Sport (CAS), and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi, Russia.

This Book Review is published at 26 Marquette Sports Law Review 247 (2015).


This comprehensive treatise of more than 700 pages on the Code of the Court of Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful to a wide audience, including attorneys representing parties before the CAS, CAS arbitrators, and sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars.  It also should be of interest to national court judges and their law clerks because it facilitates their understanding of the CAS arbitration process for resolving Olympic and international sports disputes and demonstrates that the Code provides procedural fairness and substantive justice to the parties, thereby justifying judicial recognition and enforcement of its awards.[1]  Because the Code has been in existence for more than twenty years—since November 22, 1994—and has been revised four times, this book provides an important and much needed historical perspective and overview that identifies and explains well-established principles of CAS case law and consistent practices of CAS arbitrators and the CAS Court Office.  Both authors formerly served as Counsel to the CAS and now serve as Head of Research and Mediation at CAS and CAS Secretary General, respectively, giving them the collective expertise and experience that makes them eminently well-qualified to research and write this book.

The extensive commentary and materials in this prodigious work are useful in understanding the history and operation of the CAS, as well as the process by which CAS arbitration resolves disputes and establishes an evolving, rich body of lex sportiva. The book’s many useful features include the following: a thorough and detailed index; a table of acronyms; integrated discussion of the Code’s provisions and their application by CAS panels, their relationship to and consistency with the Swiss Private International Law Act (PILA) requirements along with relevant comparisons to the Swiss Code on Civil Procedure (Swiss CCP), and judicial interpretation through review of CAS awards by the Swiss Federal Tribunal (SFT); thousands of footnotes and citations, reflecting the product of exhaustive research; comparisons to analogous International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), and United Nations Commission on International Trade Law (UNCITRAL) rules; an extensive bibliography; numerous charts and graphical illustrations; several sample provisions and documents; and comprehensive lists of all referenced CAS awards and SFT cases reviewing CAS awards.

Based on my perspective as a sports law professor and a CAS arbitrator who also arbitrates domestic sports, commercial, and consumer disputes in the United States, I found the authors’ discussion of many of the Code’s provisions to be particularly helpful and/or interesting.

Article R27 provides that the Code’s procedural rules apply when the “parties have agreed to refer a sports-related dispute to CAS.”[2]  A variety of important issues are carefully addressed, including the authority of a CAS panel to determine its jurisdiction (“Kompetenz- Kompetenz”), which also is discussed in connection with Article R39 (in which this authority is explicitly conferred), as well as the form and material conditions Article 178 of the PILA requires for a valid arbitration clause and for CAS jurisdiction to exist.  In addition, there is a thorough discussion of the relationship and differences among CAS jurisdiction, the arbitrability of particular disputes, the legal standing of the parties whose substantive rights are affected under Swiss law, and the relevance of foreign laws in resolving these issues.  Several examples of clauses permitting CAS jurisdiction to resolve sports-related disputes are provided in the accompanying Annexes.

Article R28 provides that the seat of any CAS arbitration is Lausanne, Switzerland, regardless of the geographical location of the arbitration proceeding.  The authors explain the importance and implications of this rule, which effectively provides that Swiss law governs the procedural aspects of all CAS arbitration proceedings throughout the world.  The creation of a uniform procedural regime establishes a stable legal foundation for CAS arbitrations that ensures coherence in determining the law governing the merits of the dispute pursuant to Articles R45 and R58, in the developing body of Olympic and international sports law established by CAS awards (with limited judicial review by the SFT under the PILA), and in equal treatment of the parties. 

Article R33 inter alia requires the independence and impartiality of CAS arbitrators and panels in connection with the cases to which they are appointed. Article R34 establishes the process pursuant to which the International Council of Arbitration for Sport (ICAS) considers and resolves challenges to an arbitrator’s independence or impartiality.  There is an elaborate discussion of this important topic that explains the distinction between “independence” and “impartiality,” provides guidance regarding an arbitrator’s disclosure obligations (with references to the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration), and gives illustrative examples of circumstances giving rise to objectively justifiable doubts regarding an arbitrator’s independence (and those that do not) from the perspective of the ICAS or the SFT.  The authors’ commentary provides a historical perspective regarding the application and evolution of these Code rules and identifies their underlying roots in Articles 179 and 180 of the PILA.

Article R37 is based on Article 374 of the CCP and enables the appeals or ordinary arbitration president or a CAS panel to grant provisional (i.e., interim) measures to either safeguard a party’s right that is at risk or to exercise its right during the pendency of a CAS arbitration proceeding.  For example, an athlete may request the stay of an appealed decision of a sport body imposing a doping or disciplinary suspension that prevents him from participating in an upcoming athletic event.  The text explains the prerequisites for granting provisional relief, including: exhaustion of potential legal remedies within the sports organization or tribunal rendering the appealed decision, plausible CAS jurisdiction, irreparable harm, reasonable likelihood of success on the merits, and balance of interests.  There is a detailed discussion of the irreparable harm requirement, which provides several illustrative examples.  The authors note that a party’s request for provisional relief constitutes a waiver of any right to request such relief from a court and that a CAS order granting or denying provisional relief cannot be challenged before the SFT because it is not a final CAS award. 

Article R44 governs the CAS ordinary arbitration procedure (e.g., written submissions, hearing, evidentiary proceedings, expedited procedure, and default awards). The authors provide a detailed overview of each of these procedures, while pointing out that all evidence (e.g., exhibits and\ summaries of the testimony of witnesses and experts) must be filed at the same time as written submissions—which are mandatory—and that a hearing is optional.  They note the responsibilities of the CAS panel president in connection with these procedures and offer guidance regarding the steps to be taken to ensure appropriate discharge of the procedures. There is a particularly useful explanation regarding a CAS panel’s discretion in determining the admissibility of evidence, as well as its authority to order the production of evidence (e.g., documents, examination of witnesses) from a party and appointment of independent experts and the procedure for doing so.  The Annexes include a helpful checklist regarding the eight stages of a CAS hearing (i.e., opening of hearing, preliminary remarks by parties, hearing of witnesses, hearing of experts, examination of parties, closing of evidentiary proceedings, closing oral arguments, and the deliberation by the panel) that supplements the discussion in the text. 

Articles R47, R48, R49, R51, R55, and R56 collectively constitute the key Code provisions governing the CAS appeals arbitration procedure for appeals against a final decision of a sports federation or association, the largest group of cases before the CAS.[3]  Similar to their discussion regarding the CAS ordinary arbitration procedure, the authors provide detailed commentary regarding the appeals arbitration procedure, which is more complex and governed by more rules.  Among the important topics covered are the following: prerequisites for CAS jurisdiction, including the need for a final decision by a sports body and exhaustion of its internal legal remedies, along with a valid arbitration agreement; the importance and method of determining applicable deadlines for each stage of the appeals arbitration procedure, as well as the consequences of late submissions; and the required components of an appellant’s statement of appeal and appeal brief as well as a respondent’s answer.  The accompanying Annexes for these rules provide checklists and illustrative charts that significantly facilitate an understanding of the appeals arbitration procedure.

Articles R45 and R58 determine the substantive law applicable to the merits of cases arising under the CAS ordinary and appeals procedures, respectively.  The authors explain that parties’ agreement to submit their dispute to CAS arbitration for resolution, which constitutes their agreement to have the Code and Swiss law provide the applicable procedural rules, does not necessarily mean that Swiss law is the substantive law to be applied regarding the merits of a dispute.  They note that: (1) both Articles permit parties to choose the applicable rules of law, which may be a system of rules other than national law (e.g., the Olympic Charter, International Federation statutes, or the World Anti-doping Code in an appeals arbitration proceeding) if the laws “satisfy the need of rationality, security and foreseeability”[4] and are relevant to the disputed issues; (2) each Article identifies the governing national law in ordinary Swiss law or appeals arbitration (“law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled”[5]) if the parties do not do so; and (3) a CAS panel should apply laws considered to be “mandatory” according to Article 19 of the PILA (e.g., European Communities law).  The authors identify and discuss the narrow limits on parties’ freedom to choose the law to be applied to the merits of their dispute (i.e., the chosen law cannot manifestly violate international or transnational public laws).  They point out the important distinction between the provision of Article R45, which empowers a CAS panel to rule ex aequo et bono (i.e., as a matter of equity rather than according to specific legal rules) if the parties authorize the panel to do so, and the differing provision of Article R58, which authorizes a panel to apply the “rules of law [it] deems appropriate”[6] and to give reasons for its decision, while providing detailed explanations of both provisions and the CAS practices pursuant thereto. They observe that a CAS panel should apply the parties’ validly chosen rules of law to avoid a judicial challenge to a CAS award on the ground it violates the right to be heard, while noting that its mere failure to do so or to apply the wrong law is not a per se violation of a party’s right to be heard.  A CAS award will be vacated by the SFT pursuant to Article 190 paragraph 2(e) of the PILA on the ground that public policy is violated only if application of the chosen or appropriate law would change an award’s outcome. 

Article R57 governs a CAS appeals arbitration procedure hearing. The authors note that,

this provision is the milestone of the CAS appeals procedure, since it not only specifies the scope of the Panel’s review of the case . . . but also provides essential information on the conduct of the hearing and the power of the Panel to proceed with the hearing in case one of the parties is duly summoned but fails to appear.[7] 

Because Article R57 provides a panel with “full power to review the facts and the law”[8] (i.e., de novo review), the scope of CAS arbitral review is broader than the more limited arbitrary or capricious standard of judicial generally exercised by sport governing body decisions in Swiss and other national courts.[9]  The authors point out that this broader scope of review has significant legal consequences:

The Panel is thus not limited in merely reviewing the legality of the decision challenged, but can issue a new decision on the basis of the applicable rules . . . [admit] new prayers for relief and new evidence and [hear] new legal arguments . . . [and correct] procedural flaws, which occurred during the proceedings of the previous instance.”[10] 

Limits on the CAS’s de novo power of review, which preclude the panel from adjudicating issues other than those raised by the parties, changing or rewriting sports federation rules, and reviewing field of play decisions, are also identified and discussed.  They note that a CAS panel should be cautious about exercising its discretion under Article R57 “to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”[11] in order “to guarantee the parties’ access to justice and a full review by an independent arbitral tribunal.”[12] The authors also describe the eight main stages of an appeals arbitration hearing (which are the same as those for an ordinary arbitration appeal) in both the text and an accompanying checklist in the Annex, as well as provide an overview of how a hearing generally is conducted and issues that may arise in connection therewith.

Articles R46 and R59 apply to the award in ordinary and appeals arbitrations, respectively.  The authors note that awards in both proceedings are by majority decision; must state brief reasons for each resolved issue and be written, dated, and signed; set forth the basis of CAS jurisdiction; determine which party bears the arbitration costs;[13] are final and binding on the parties with res judicata effect; and are enforceable on the date the parties are notified of the operative part of the award.  The CAS Secretary General reviews all awards for form (e.g., errors in grammar, spelling, or calculation of numbers are corrected) and fundamental issues of principle.  Although CAS arbitration awards do not constitute binding precedent or have a stare decisis effect in subsequent similar cases, CAS panels frequently cite to and rely on prior awards. This effectively “accord[s] to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.”[14]  Thus, the CAS Secretary General’s review of an award regarding fundamental issues of principle includes pointing out any departure from well-established CAS jurisprudence without adequate reasons and suggesting revisions in an effort to “ensure that there is no unjustified change in the CAS established case law under the same or similar conditions.”[15] However, the authors note that “the CAS Secretary General may only suggest some changes and cannot impose them to the Panel, which remains solely responsible for the award and is free to accept the suggestions or not.”[16]  They observe that CAS ordinary arbitration awards, which typically resolve commercial disputes between the parties, generally are confidential and not published; whereas CAS appeals arbitration awards, which resolve appeals from final decisions of sports federations, are usually published to facilitate the development of a uniform body of Olympic and international sports law (including interpretation and application of the World Anti-doping Code).  The commentary regarding Article R59 includes a comprehensive discussion of the grounds on which the SFT may vacate a CAS ordinary or appeals arbitration award pursuant to Article 190 paragraph 2 of the PILA: (1) irregular composition of the CAS panel (e.g., lack of independence or impartiality); (2) lack of CAS jurisdiction over the parties or claims; (3) failure to decide a validly raised claim, or deciding a claim or issue not raised by a party; (4) violation of the parties’ right to be heard or equal treatment; and (5) violation of procedural or substantive Swiss and international public policy (i.e., the essential and widely recognized values prevalent in every legal system).  The authors provide a detailed qualitative analysis of each of these defenses, as well as provide aggregate statistics regarding their respective success, and identify the SFT cases in which a particular defense is successful. 

This excellent book is a must-read for attorneys representing parties before the CAS and CAS arbitrators.  It is a valuable resource for sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars concerning the CAS arbitration process for resolving Olympic and international sports disputes.  This book is an important addition to my library of sports law materials, which I anticipate consulting and referencing frequently.



[1] See James A. R. Nafziger, International Sports Law, Handbook on Int’l Sports Law 27–28 (James A. R. Nafziger & Stephen F. Ross eds., 2011) (the CAS has established the “gold standard in resolving sports-related disputes” by “ensuring fairness in terms of even-handedness, impartiality, acting in good faith, and coherence.”); Matthew J. Mitten, The Court of Arbitration for Sport’s Jurisprudence: International Legal Pluralism in a World Without Boundaries, 30 Ohio St. J. on Disp. Resol. 1, 42 (2014) (“The CAS arbitration system ‘demonstrates how civil and common law legal systems can function effectively together within an international tribunal to resolve a wide variety of complex, time-sensitive disputes between parties of different nationalities,’ which produces ‘globally respected adjudications” of Olympic and international sports disputes’).

[2] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport – Commentary, Cases, and Materials 19 (2015).

[3] The authors also provide helpful commentary regarding Articles R50, R53, and R54 that addresses the number, nomination, appointment, and confirmation of arbitrators as well as Article R52, which addresses initiation of the appeals arbitration proceeding by the CAS, as well as expedited and consolidated proceedings.

[4] CAS 2006/A/1123& 1124, Al-Gharafa SC v P. Wanchope Watson & P. Wanchope Watson v. Al-Gharafa SC, award of 18 December 2006, §67.

[5] Mavromati & Reeb, supra note 3, at 535.

[6] Id.

[7] Id. at 505.

[8] Id. at 503.

[9] “The full review by the CAS is the principal reason for excluding a full review by the state courts (i.e., in case of a subsequent appeal against a CAS award to the SFT, the later will not fully review the case but will act as a cassatory court based on the exhaustively enumerated grounds of Article 190 paragraph 2 PILA).”  Id at 520.

[10] Id. at 507–08.

[11] Id. at 519.

[12] Id. at 520.

[13] Article R64 applies to CAS ordinary and appeals arbitration costs, but Article R65 pertains only to CAS appeals arbitration costs in proceedings involving appeals against decisions issued by international federations in disciplinary matters; both of which the authors comprehensively discuss in their commentary and Annexes regarding these rules.  

[14] CAS 2008/A/1545, Anderson et al v IOC, award of 16 July 2010, §116.

[15] Mavromati & Reeb, supra note 5, at 367.

[16] Id. at 366–67.

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