In this blog we continue unpacking Doyen’s TPO deals based on the documents obtained via footballleaks. This time we focus on the battle between Doyen and Sporting over the Rojo case, which raises different legal issues as the FC Twente deals dealt with in our first blog.

I.              The context: The free-fall of Sporting

Sporting Lisbon, or Sporting Club de Portugal as the club is officially known, is a Portuguese club active in 44 different sports. Although the club has the legal status of Sociedade Anónima Desportiva, a specific form of public limited company, it also has over 130.000 club members, making it one of the biggest sports clubs in the world.

The professional football branch of Sporting is by far the most important and famous part of the club, and with its 19 league titles in total, it is a proud member of the big three cartel, with FC Porto and Benfica, dominating Portuguese football. Yet, it has not won a league title since 2002.

The members of Sporting get to elect the club’s president. A typical election campaign is akin to a political one with regard to status, media coverage and campaign funds. In fact, former Sporting president Pedro Santana Lopes went on to become the Prime Minister of Portugal in 2004-2005. In 2011, the elections were hotly disputed with Godinho Lopes defeating his main rival Bruno de Carvalho by only 300 votes. A request by De Carvalho to recount the votes was later dismissed, causing local unrests and police intervention.

Under Godinho Lopes’ presidency, Sporting obtained very poor sporting results, including a seventh place in the 2012/13 season, the worst ranking in the club’s history. New elections were held in 2013 and won by Bruno de Carvalho in a landslide. In addition to underwhelming results on the field, it turned out that the financial health of the club off the field was also at risk. Bruno de Carvalho faced a loss of €43 million in the 2012/13 season alone. This large financial debt was one of the reasons why on 1 October 2014, the General Assembly approved the proposal by the new Board of Directors to press liability charges against Godinho Lopes for breaching due diligence duties.

In the midst of the financial and managerial chaos surrounding Sporting, one dispute stands out as being relevant to our series of blogs on Doyen’s TPO deals. Faced with financial difficulties, Godinho Lopes had recourse to Doyen Sport to finance the recruitment of a number of players, amongst them Marco Rojo, an Argentine defender coming from Spartak Moscow in 2012. After two years at the club, the player was transferred against a healthy €20 million fee to Manchester United in 2014. However, the club staunchly refused to pay out the share of the economic rights owned by Doyen. Thus, giving way to a legal dispute on which we will put the spotlight in this blog. Although the case is still pending in front of CAS, several documents related to it were published on the footballleaks website.[1]

II.            The facts: the Rojo case

Before analysing the fine prints of the Economic Rights Participation Agreement (ERPA) between Doyen and Sporting concerning the economic rights of Rojo, a bit of background on the player and his career is needed. Marcos Rojo is an Argentine professional football player who appeared on the elite football scene at a young age. In 2009, by the age of 19, he won the Copa Libertadores with his side Estudiantes de la Plata, and in 2011, aged 21, he was a regular starter for the Argentinian national team during the Copa America. Sporting, under Godinho’s presidency, signed Rojo from Spartak Moscow for €5.43 million in July 2012.[2] In order to finance the signing of Rojo, Sporting needed fresh money, thus it turned to Doyen as a “last resort initiative”.[3] As provided by the ERPA, the Maltese investment company paid € 3 million and obtained in return 75% of Rojo’s Economic rights. The agreement includes similar provisions to the ones outlined in detail in our FC Twente blog. Notably, in the case Sporting would receive a transfer offer for Rojo of more than €8 million, Doyen could request that the club accept the offer or pay an amount equivalent to 75% of the offer to buy back the rights of the player from the fund. Moreover, in the case the club was to renew the contract of the player or failed to avoid that his contract runs out, it was bound to pay a minimum fee of €4.2 million (in case of renewal, Doyen could also chose to keep its share of the player’s economic rights).

Rojo’s outstanding 2014 World Cup (he was selected for the World Cup All-Star Team) triggered interest from English Premier League clubs, most notably Southampton and Manchester United. Both sides were keen on signing him in the summer of 2014, but Sporting president De Carvalho had no intention of selling him. According to De Carvalho, Rojo was key to the club’s ambition of becoming Portuguese champion. Sporting claimed that Doyen, via its director Nelio Lucas, was “promoting and forcing this transfer” and, thus, “violating his duty to respect Sporting’s independence in transfer related matters”.[4] De Carvalho maintained that Doyen’s influence breached then art.18bis of the FIFA RSTP. In retaliation against Doyen’s perceived influence, Sporting refused to pay to Doyen the agreed 75% share of the proceeds from the transfer of Rojo to Manchester United. Instead, it argued that Doyen had breached its contractual duties and declared the ERPA (and the guarantees attached to it) null and void. Nonetheless, the club did transfer back to Doyen the €3 million it invested at the outset. Hence, Sporting put Doyen’s contractual edifice to the test and Doyen was forced to go to court (and more precisely to the Court of Arbitration for Sport) to try to enforce its rights under the ERPA agreement.

III.         The showdown: The CAS as ultimate arbiter of the legality of Doyen’s TPO contracts

The ERPA signed by Doyen and Sporting contains both a clause defining Swiss law as the law applicable to the contract and the CAS as the jurisdiction competent to deal with disputes arising out of the contract.[5] Henceforth, it was mandatory for Doyen to turn to the CAS as soon as it became obvious that it would not recoup the 75% it believes it was owed on Rojo’s transfer. The dispute was finally heard by a CAS panel in June of this year and the final decision is still, as far as we know, pending (see the outstanding coverage of the issue by Tariq Panja from Bloomberg, here and here). The case is of great importance to Doyen, if the CAS finds that Doyen’s ERPA is contrary to Swiss law, this finding will most likely apply to each of Doyen’s TPO deals that are based on a similar model and dramatically weaken its contractual position. The good news for Doyen is that it probably has only relatively few ERPA’s still in place (for example FC Twente and Doyen agreed to put an end to their agreement), as the FIFA ban should have blocked it from entering into new agreements.

This case is not about former article 18bis of the FIFA RSTP, as is often misunderstood. This would come only into play if FIFA were to sanction Sporting for having had recourse to an ERPA with Doyen, an issue that might still arise and a configuration potentially already at play in the FC Twente case. The Rojo dispute between Sporting and Doyen, however, is of a purely contractual nature. It is only about whether Doyen’s TPO deals are compatible with Swiss civil law. In this regard, footballleaks has recently published a very interesting document: a confidential report by a Swiss law firm on the legality of Doyen’s Model ERPA in light of Swiss law. This report raises a number of thorny legal issues that the CAS will have to weigh on.

The ERPA between Doyen and Sporting must abide by the requirements of Swiss civil law. In general, the Swiss Civil Code is favourable to contractual autonomy, yet there are some restrictions to the freedom of the parties. To be valid, an agreement should not be contrary to the bonos mores. In other words, the moral values or ethical principles supported by the Swiss legal system. Indeed, as foreseen by Art. 20.1 of the Swiss Code of Obligations, a “contract is void if its terms are impossible, unlawful or immoral”.

The whole Rojo case in front of the CAS is likely to hang on the determination whether Doyen’s ERPA model is immoral or not from the Swiss perspective. Immorality is constituted especially if the contract introduces a serious imbalance between the obligations of the parties. The Swiss law firm mandated by Doyen doubted the signature of an ERPA would create such imbalance, simply because “both the FUND [Doyen] and the Club have rights and obligations according to the Agreement”.[6] This falls a bit short. As we have seen, Doyen uses the leverage offered by the financial difficulties of clubs (FC Twente or Sporting) to impose very harsh contractual conditions and high interest rates. This harshness is clearly acknowledged in the ERPA. For example, clause 10.6 indicates that Sporting “is conscious of the harshness and the severity of the consequences of clauses 10.4 and 10.5”. Whether the embedded contractual imbalance in the ERPA is sufficient to be deemed immoral under Swiss law is for the CAS to decide, but it is not a possibility that should be discarded lightly. Moreover, this potential immorality is also supported by the willingness of FIFA to ban TPO as it points at the conflicts of interest and integrity risks arising out of its use.

The ERPA could also be contrary to art. 27.2 of the Swiss Civil Code, which provides that: “No person may surrender his or her freedom or restrict the use of it to a degree which violates the law or public morals”. According to the Swiss law firm contracted by Doyen, this is especially the case if a legal entity’s “economic freedom is restricted in such a way that its economic existence is in danger”.[7] It also argued that, “the undertakings of the Club cannot in principle be considered excessive”, as “there is no obvious disparity between the considerations of the Parties”.[8] Here again, the arguments provided by Doyen’s law firm are feeble at best. In fact, the contractual imbalance is openly acknowledged in Doyen’s own contract. The economic freedom of Sporting (or FC Twente for that matter) is so drastically reduced that a club is forced into selling its best players at Doyen’s will.[9] Those players are at the heart of the “economic existence” of a club. In fact, the fate of FC Twente illustrates how the loss of its best players led to the club facing financial and sporting bankruptcy.

Finally, Sporting is also likely to have argued that Doyen was in breach of its contractual duties. Clause 14 of the ERPA stipulates that Doyen “recognizes that the Club is an independent entity in so far as the Club’s employment and transfer-related matters are concerned and [Doyen] shall not, either though this Agreement or otherwise, seek to exert influence over these matters […]”. The Club claimed in its termination letter of the ERPA that “Doyen has seriously and irremediably violated its obligations of non-influence in Sporting transfer policy […] which constitutes a material breach of the agreement”. Swiss contract law may entail the right for Sporting to refuse to execute its part of the deal in case of breach of contract by Doyen. In that regard, Sporting would have had to factually demonstrate the faulty character of Doyen’s intervention in Rojo’s transfer.

It is certainly not a given that the CAS will consider Doyen’s ERPA contrary to Swiss law or for Doyen to be in breach of its contractual duties, but there are credible legal arguments that point in both directions. Surely, the hubris of the management of Sporting and FC Twente is chiefly responsible for the terrible deals closed with Doyen. Yet, Doyen leveraged their dire financial situations and irrational ambitions to strong-arm them into one-sided agreements that are imposing unfair terms on the clubs. Doyen takes on very little risk: If a player fails to become a star, the fund will recoup its investment plus very reasonable interests (unless the club is bankrupt); if a player breaks through, it will pocket the jackpot. The fund is a true vulture fund geared to the football industry. It buys under-priced assets (economic rights attached to players) in fire sales and hopes for a huge profit.

We will hear soon from the CAS whether it deems this practice legal under Swiss law. In any event, FIFA has decided to ban TPO outright, raising the opposite question of the compatibility of the ban with EU law. This will be the subject of our final blog.

[1] The documents used, especially the ERPA applicable to Rojo and the termination letter send out by Sporting, might be blocked or unavailable due to complaints lodged by Doyen. They are on file with the authors.

[2] http://www.transfermarkt.nl/marcos-rojo/profil/spieler/93176.

[3] Rojo ERPA, 23 August 2012, p.2.

[4] Letter of termination of the ERPA, 14 August 2014, para.15. See also paras 17-20.

[5] Rojo ERPA, 23 August 2012, clause 22 and 23.

[6] FRORIEP, ‘Memorandum on certain questions of Swiss law in relation to a draft ERPA’, para.16.

[7] Ibid, para.23.

[8] Ibid, para.25.

[9] Doyen could not ignore the fact that those clubs were in such financial difficulties, that they would be unable to pay on their own the share of a transfer offer above the agreed amount and thus retain their player.

Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two.

2.     The Legal Framework

a.     Athlete Led Political Protest

The groundwork for political neutrality is set out in the Fundamental Principles of Olympism (point 5) and Rule 2 (5) of the Olympic Charter. As was illuminated in the first blog, this is presented by the Olympic Charter to ensure the autonomy of sport. One of the specific ways in which the Olympic Charter tries to secure this ideal is through Rule 50 which bans political protest at Olympic sites.[8] Last year, the IOC Athletes’ Commission released its Guidelines on Rule 50 which underscored the far-reaching prohibitions Rule 50 entails. Athletes are not allowed to display any sort of ‘political messaging’ or make any ‘gestures of a political nature’. This includes no ‘signs or armbands’, no ‘hand gestures or kneeling’. Even ‘refusal to follow the Ceremonies protocol’ is considered a violation of Rule 50. Rubbing salt in the wound is the fact that the geographic scope of this ban extends to ‘all Olympic venues’, thus even covering the Olympic Village. Athletes may only disperse their political speech during ‘press conferences and interviews’, ‘team meetings’ and through ‘digital or traditional media, or on other platforms’. The Guidelines, however, underline that this exception only applies to ‘expressing views’, making a distinction from ‘protests and demonstrations’, which includes the actions described above. Arguably, drawing such a line may be blurry in practice. In other words, at what point does an athlete’s expression of a view become political protest? This question is particularly relevant given the broad interpretation the Guidelines have taken on what constitutes political protest. In the end, while the Guidelines claim that this is only to ensure that everyone ‘can enjoy the experience of the Olympic Games without any divisive disruption’, such a broad interpretation of Rule 50 arguably goes beyond the attempt to prevent any ‘disruption’ to athletes’ achievements.

The consequences for athletes who do not follow these rules can be very serious. Bye-Law 1 to Rule 50 states that if such ‘propaganda’ appears on an athlete’s clothing or equipment (e.g. an armband or hidden t-shirt), they may be disqualified. The Guidelines, on the other hand, remain rather vague. Instead, each case is to be decided by the athlete’s ‘National Olympic Committee, International Federation and the IOC’ and ‘disciplinary action’ will be decided on an individual basis. Nevertheless, given simply the looming threat of a disqualification, it is likely that the vast majority of athletes will simply fall into line.[9]

b.    Sport Nationalism and Medal Tables

The clearest example of the wilful disregard of the Olympic Movement to combat sport nationalism is its tacit acceptance of Olympic medal tables despite an explicit ban in the Olympic Charter. The foundations of this ban can be found in Rule 6 of the Olympic Charter which stipulates that the ‘Olympic Games are competitions between athletes in individual or team events and not between countries’ (emphasis added). Rule 57 then specifically addresses medal tables, stating that the ‘IOC and the OCOG shall not draw up any global ranking per country’. Finally, Rule 27 (6) highlights how NOCs bear a special responsibility to ‘preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter’. With this framing, while the IOC and OCOG are not allowed to create a medal table, the NOCs have essentially been left off the hook. In practice, NOCs have not hesitated to boast of their performances on medal tables. For instance, the United States Olympic Committee jumped at the opportunity to celebrate how it had topped the medal chart for the ‘6th straight games’ at Rio 2016.[10] In the meantime, political leaders and the media continue to gush over the achievements of their countries through their standing in the medal table.[11] While hosting Olympic athletes at the White House, Obama emphasized how Team USA had ‘won the most medals by far’ at the Rio Games.[12] Additionally, national governments are aware of their standings in medal tables and have used them to shape their sport policies, including funding for elite sport.[13] NOCs play a role here as well. For example, the Dutch NOC*NSF, in its overview of its elite sport strategy and finance, has set its goal to be a top 10 nation in elite sport, which involves ‘striving for more medals’.[14] Indeed, the determination of whether a nation is in the top 10 presupposes the creation of some sort of ‘global ranking per country’. Lastly, concerning the media, the IOC’s editorial guidelines for Olympic properties at Rio 2016 even clearly states that it has ‘no objection’ to medal tables in published material.[15]

The Olympic Charter requires the IOC ‘to oppose any political ... abuse of sport and athletes’.[16] All the above examples are illustrations of using sport and athletes’ achievements for political purposes.[17] Given this picture, it could be argued that the IOC has increasingly taken a rather laid back approach to medal tables and does not seem to mind how other actors – both within and outside the Olympic Movement – use them to stimulate a country versus country narrative around the Olympic Games.[18] In essence, medal tables paint those countries at the top as the winners and those at the bottom as the losers, further elevating nationalist politics: the myth of the nations of the innately strong and those of the weak. The IOC, as the ‘supreme authority’ of the Olympic Movement, could adopt a stronger tone to push back against the omnipresent nature of medal tables within the Games as it stands in complete opposition to its fundamental principles.[19] Indeed, part of the IOC’s mission is to ‘to take action to strengthen the unity of the Olympic Movement, to protect its independence, to maintain and promote its political neutrality and to preserve the autonomy of sport’ (emphasis added).[20] But there is no unity in the Olympic Movement concerning medal tables, only disarray, ranging from tacit acceptance to zealous celebrations of a nation’s ranking.

3.     Unveiling the Hypocrisy

In view of this, there seems to be a disparity in the Olympic Movement’s approach to politics when it comes from athletes, where there is the potential for severe sanctions, compared to sport nationalism arising from medal tables, where it seems to have all but accepted their existence. Looking beyond simply medal tables, so much of the Olympic Games emphasizes a competition between countries, further stimulating sport nationalism: (1) an opening ceremony where athletes march into an arena behind their nation’s flag and where the host puts on ‘cultural performances’ that ‘dramatize national myths, experiences, and values’[21]; (2) national anthems that are religiously played during each medal ceremony while national flags are hoisted up; (3) the way in which many team sports are played between countries. More credence is given to this view when one also observes how the media – and sometimes even NOCs -  help push a country versus country narrative, which can potentially overshadow athletes’ individual accomplishments.^[22] The constant flood of national imagery during the Games casts doubt on the idea that the Olympic Games is not a competition between countries, creating greater friction between the ideas of ‘universalism and nationalism’.[23] It should also be recalled, as was pointed out in the first blog, that states use sport nationalism to help push foreign and internal political agendas.  Some have argued that in this way sport can be ‘regarded as compensation, a sense of nostalgia or as a cure against the erosion of national identity’, even becoming ‘an alternative to war’.[24] Others have taken another view that instead of acting as a sort of pressure release, the Games ‘may provide opportunities for extending and exacerbating nationalist-inspired conflicts’, further entrenching nationalism.[25]

However, this blog is not arguing that the IOC should take heavy handed action to discourage the media from tallying up medals or to reel in a NOC’s pride in the performance of its athletes or to rid the Olympic Games of all signs of national imagery. On the contrary, it seems that the idea to minimize sport nationalism through the inclusion of Rule 6 and 57 of the Olympic Charter should be characterized as an expression of a lofty ideal that personifies international unity – i.e. something to be aspired to but not some concrete goal to be realized through rigorous enforcement. Again, it is completely legitimate for the Olympic Movement to strive for this ideal and to also defend its political neutrality. Yet, given how the IOC has all but accepted this form of politics (sport nationalism), it is puzzling why it has not taken a more tolerant approach to political expression from athletes, including protests/demonstrations, especially when considering how medal tables arguably pose a far greater threat to the fundamental principles of the Olympic Movement.[26] Perhaps given how sports can help stir national pride within a populace, it is possible that this phenomenon may encourage more viewership hours. Consequently, presenting the Games as a country versus country competition may be more lucrative. On the other hand, potentially unpredictable athlete protests may risk dividing audiences and may also put Olympic sponsors on edge. But assuming this is the case, is this reason enough to ban such expression altogether?

Regardless, in the same way sport nationalism will likely never be completely erased, athletes’ political expression will continue to be part of the Olympic fabric. Fundamentally, it all boils down to whether it is truly possible to disentangle politics and sport? If so, is it realistic or even desirable? One could maybe argue that this unbundling is necessary to promote international unity and to ensure the universality, neutrality and autonomy of sport. However, how far should the Olympic Movement go to achieve this result and is such a consequentialist approach appropriate considering the pressures it places on athletes – i.e. do the ends justify the means? I would argue that this process of sanitization is burdened with too many moral concerns and is an enforcement minefield in practice. While outside the scope of this blog, it should be noted that it is not difficult to imagine an athlete challenging the concerned provisions on the basis of human rights and/or EU law.

All things considered, the IOC chooses the kind of politics it is willing to tolerate within its sphere of influence. The national structures within the Olympic Movement, the influence of national governments, and the seducing narratives of nationalism create significant headwinds in favor of the politics of sport nationalism. Therefore, the IOC, an entity that embodies the transnational, has a responsibility to be a counterbalance in this system.[27] In doing so, the IOC - the leader of the Olympic Movement – should defend, or at least tolerate, the free expression of its ‘people’, the athletes. This is not a radical proposition. It is worth remembering that athletes form an integral part of the Olympic Movement.^[28] Simply respecting the free expression of athletes does not automatically sacrifice the political neutrality of the Olympic Movement.

4.     Conclusion

Over the past year, the IOC has faced increasing public pressure, particularly from athlete stakeholders (see here, here and here) to reverse its course concerning Rule 50 of the Olympic Charter. As a result, it announced that the IOC Athletes Commission would conduct a consultation process concerning Rule 50. The IOC Athletes Commission just recently finished its consultation and its ‘recommendations will be presented to the IOC Executive Board by the end of April 2021’. Meanwhile, NOCs have also individually taken certain steps to allow more athlete activism, such as the US Olympic and Paralympic Committee (USOPC) which has committed to not sanction athletes who ‘peacefully and respectfully’ protest ‘in support of racial and social justice for all human beings’. In this regard, the USOPC declared that ‘human rights are not political, calls for equity and equality must not be confused with divisive demonstrations’. While perhaps attractive at first glance, the USOPC is only moving the goalposts by playing semantics with ‘politics’ by narrowing its definition to eliminate ‘human rights’[29] from its ambit. In doing so, the USOPC does not explain why human rights are not political issues. The reality is that the scope and implications of human rights remain hotly contested issues everywhere in the world, they can hardly be depoliticized. Nevertheless, the softening of the USOPC’s position and its acknowledgement of some its past mistakes is a good start.[30]

In view of today’s strong social currents, the IOC may be forced to abandon its dream of a pure and apolitical Olympic Games. Politics has and will continue to ooze into the sanitized spaces of the Olympic Games. Allowing athletes to raise their voice during the Games would allow them to share their political views with the world, instead of confining them to remaining passive laborers in the Olympic economy subject to the power politics of states.

[1] Although the current IOC President, Thomas Bach, would likely dispute this point. Bach recently argued: ‘Neither awarding the Games, nor participating, are a political judgment regarding the host country.’ See Thomas Bach, ‘The Olympics are about diversity and unity, not politics and profit. Boycotts don't work’ (The Guardian, 24 October 2020).

[2] This is by no means an exhaustive list.

[3] Philip Barker, ‘The forbidden Olympic table’ (Inside the Games, 24 January 2020).

[4] See how the Washington Post gleefully counts the number of US gold medals and celebrates the fact that the U.S. has ‘more than double any other country’s count’. See Team GB’s (British Olympic Association) fervent count of its medals at Rio 2016. See also Team USA’s (U.S. Olympic and Paralympic Committee) glorification of its record-breaking medal count at the Rio 2016.

[5] For example when athletes are used during photo ops for political leaders around the world. See United States (Trump and Obama), Russia (here and here), and The Netherlands among many others.

[6] Ivo van Hilvoorde, Agnees Elling and Ruud Stokvis, ‘How to influence national pride? The Olympic medal index as a unifying narrative’ [2010] 45 International Review for the Sociology of Sport 87.

[7] Jackie Hogan, ‘Staging The Nation: Gendered and Ethnicized Disources of National Identity in Olympic Opening Ceremonies’ [2003] 27 Journal of Sport and Social Issues 100.

[8] Rule 50: ‘No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.’

[9] Indeed, athletes have been banned for life in the past for political actions. For instance, Vince Matthews and Wayne Collett who were banned for life after a podium protest at the 1972 Munich Olympics. Recently, there have been calls to undo their life bans.

[10] See also Team GB’s tracking of its own ‘record-breaking’ medal performance at the Rio Games.

[11] For some examples of the media obsession around the Olympic Games’ medal tables see: ‘Tokyo Olympics 2020 medal table: How does it work, which country usually wins and what are Britain's hopes?’ (The Telegraph, 26 January 2021); ‘Rio Olympics 2016: Team GB’s record breakers return home from Rio’ (BBC, 23 August 2016). ‘2020 Olympics: USA forecast to top medals table with GB and Australia fifth’ (The Guardian, 23 July 2019); Lazaro Gamio, Kim Soffen and Chiqui Esteban, ‘1,000 Times Gold’ (The Washington Post).

[12] Some have even suggested that the US performance at the 2012 London Olympics could have contributed to a boost in Obama’s polling for the presidential election that year. See John Cassidy, ‘Did the Olympics Boost Obama?’ (The New Yorker, 10 August 2012).

[13] See Germany’s concern of its place in medal rankings to justify restructuring its funding for elite sport. This is also acknowledged by van Hilvoorde, Elling and Stokvis (n 6).

[14] Original: ‘We streven naar meer medailles, in meer disciplines, met meer impact.’

[15] The Pyeongchang editorial guidelines (page 14) do not discourage their use.

[16] Rule 2 (11) Olympic Charter.

[17] See also other examples of the abuse of sport and athletes for political purposes by ‘states that use the Games for geo-political posturing’ in the first blog of this series.

[18] On the narratives around medal tables and the Games see van Hilvoorde, Elling and Stokvis (n 6).

[19] Rule 1 (1) Olympic Charter. Principles such as political neutrality and the autonomy and universality of sport.

[20] Rule 2 (5) Olympic Charter.

[21] Hogan (n 7).

[22] The media may also help stir nationalism by depicting the athletes of its home-nation as ‘succeeding because of their intellect, commitment, and consonance’ while foreign athletes fail due to insufficient ‘strength and skill’. See James Angelini, Andrew Billings and Paul MacArthur, ‘The Nationalistic Revolution Will Be Televised: The 2010 Vancouver Olympic Games on NBC’ [2012] 5 International Journal of Sport Communication 193. Also – Andrew Billings and others, Nationalistic Notions of the Superpowers: Comparative Analyses of the American and Chinese Telecasts in the 2008 Beijing Olympiad [2011] 55 Journal of Broadcasting & Electronic Media 251. Again, on narratives surrounding the Games and medal tables see van Hilvoorde, Elling and Stokvis (n 6).

[23] See Hogan (n 7). See also John Hargreaves, ‘Olympism and Nationalism: Some Preliminary Consideration’ [1992] 27 International Review for the Sociology of Sport 119.

[24] van Hilvoorde, Elling and Stokvis (n 6). See also George Orwell’s description of nationalism and sport in ‘The Sporting Spirit’.

[25] Hargreaves (n 23). It is interesting to note Hargreaves mentions how the Olympic Movement in of itself could perhaps be a sort of counterweight to such a ‘international relation model’. However, given how the Olympic Movement seems to have in many respects abandoned its fight against sport nationalism in the decades since, this caveat has arguably lost much of its weight.

[26] IOC President Thomas Bach even recognizes the trends of ‘rising nationalism’.

[27] This relates to Hargreaves’ point of the Olympic Movement acting to a certain extent autonomously and not simply ‘instruments of foreign policy’ of states. See Hargreaves (n 23).

[28] Rule 1 (1) Olympic Charter: ‘Under the supreme authority and leadership of the International Olympic Committee, the Olympic Movement encompasses organisations, athletes and other persons who agree to be guided by the Olympic Charter. The goal of the Olympic Movement is to contribute to building a peaceful and better world by educating youth through sport practised in accordance with Olympism and its values.’ (emphasis added)

[29] It is possible that the USOPC primarily is referring to ‘racial and social justice’.

[30] The USOPC also recognized its past errors in taking positions against athletes in previous instances.

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

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Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

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Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

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Speakers 

• Ariel Dulitzky (University of Texas)  

• Burak Gemalmaz (Istanbul University) 

• Pedro José Mercado Jaén (European University Institute) 

• Cathérine Van de Graaf (University of Cologne) 

• Seamus Byrne (Manchester Metropolitan University)  

• Layckan van Gensen (Stellenbosch University)  

• Jules Boykoff (Pacific University, Oregon) 

• Brendan Schwab(Schwab Legal) 

• Roddy Cairns (University of Strathclyde)  

• Katarina Pijetlovic (Catolica University)  

• Béatrice Martel (McGill University)  

• Marcus Mazzucco (University of Toronto)  

• Shubham Jain (Cambridge University)  

• Veronika Yefremova (Leiden University)  

• Sarah Carrick (Manchester Metropolitan University)  

• Miquel Aznar Company (Universitat de València)  

• Niyati Pandey (Gujarat National Law University) 

• Tarun Tarun (Gujarat National Law University) 

• Khalida Popal (Afghan National Team) 

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Introduction[1]

The Court of Arbitration for Sport (CAS) registers approximately 300 cases every year. Recently, the Swiss Federal Supreme Court – which is the sole judicial authority to review arbitral awards rendered in Switzerland – reminded in the Matuzalém Case (Case 4A_558/2011) that CAS awards may be enforced in other States that are parties to the New York Convention on the recognition and enforcement of foreign arbitral awards.

However, in that case, the Federal Court failed to recognize the main intent of FIFA, which is to avoid foreign State courts’ interference – even to the detriment of a plaintiff’s right of having the option to challenge a CAS award in a non-Swiss jurisdiction. Article 67(2-3) FIFA Statutes requires that provision shall be made to CAS arbitration and prohibits FIFA members to have recourse to courts of law unless provided for by FIFA regulations. Member associations must accordingly insert an arbitral agreement in their statutes on the recognition of CAS to resolve disputes under Article 10(4)(c) FIFA Statutes. Regarding labour-related disputes, Article 22 FIFA Regulations on the Status and Transfer of Players in conjunction with Article 5 FIFA Statutes 2003 has carved out an exception to the aforesaid FIFA ‘exclusion’ and ‘allows’ FIFA members to seek redress before civil courts. Nonetheless, FIFA could still use its disciplinary power to enforce decisions (e.g. CAS awards). In addition, Article 64(1) FIFA Disciplinary Code explicitly stipulates that ‘[a]nyone who fails to pay another person […] or FIFA … money…, even though instructed to do so by … a subsequent CAS appeal decision …, or anyone who fails to comply with another [CAS appeal] decision …’, will be disciplinary sanctioned (e.g., fine, ban on any football-related activities, expulsion (member association), relegation (club) and transfer ban (club)). This is a typical case of so-called ‘arbitration with a reduced consensual character’ (Steingruber 2012), which is contrary to the consensual spirit that underlies private arbitration.

It should also be noted that in the Cañas case (Case 4P.172.2006, par. 4.3.2.2) the Swiss Federal Supreme Court recognized and tolerated the athlete’s reduced consent to arbitration (under Article 2 of the Player's Consent and Agreement to ATP Official Rulebook) in order to be able to practice tennis as a professional. It is moreover ‘based on the continuing possibility of an appeal acting as a counterbalance to the “benevolence” with which it is necessary to examine the consensual nature of recourse to arbitration where sporting matters are concerned’ (Case 4P.172.2006, para. 4.3.2.3). In other words, the application of ex post reviews of CAS awards by the Federal Court is a sine qua non to its acceptance of an athlete’s reduced consent to arbitration.

CAS awards could be challenged before courts, however, if they are incompatible with public policy (of Switzerland or EU Member States et cetera). 

CAS awards – Swiss notion of substantive public policy

As far as arbitration is concerned, national courts generally adopt a deferent attitude to arbitration, mainly reviewing the due process components and only entering substantial matters if they are incompatible with substantive public policy. Accordingly, the parties involved can only challenge arbitral awards on substantive grounds if they contravene the national notion of substantive public policy.

The Swiss Federal Supreme Court has only once annulled an international arbitral award rendered in Switzerland for being incompatible with substantive public policy. Interestingly, the case concerns a CAS (appeal) award.

It should be noted that the national notion of public policy may vary per jurisdiction. Accordingly, enforcing arbitral awards that have been annulled at the seat of arbitration – e.g. the Matuzalém case – could still be enforced in e.g. Austria, Croatia, Denmark, France[2], Ireland, Luxembourg, The Netherlands[3], Poland and Spain.[4] However, arbitral awards that have been set aside at the seat of arbitration are likely to be refused enforcement in e.g. Germany, Hungary, Italy and the United Kingdom.[5] 

CAS awards – EU notion of substantive public policy

From an EU law perspective, it must be taken into consideration that enforcing arbitral awards like, e.g., CAS awards by Member States’ courts may affect the internal market. The Court of Justice already dealt with this topic and introduced a broad notion of public policy in the Eco Swiss Case (Case C-126/97) by ruling that Article 101 TFEU may be regarded as a public policy matter in the sense of Article V(2)(b) of the New York convention. In the Manfredi Case (Joined cases C-295/04 to C-298/04), the Court further stated (para. 31): ’Articles … [101-102 TFEU] are a matter of public policy which must be automatically applied by national courts …’. In other words, national courts do have an ex officio duty to exercise control during inter alia enforcement proceedings of arbitral awards. In the Nordsee Case (C-102/81), the Court further stressed the importance of ex post reviews of arbitral awards by national courts.

The latter is especially relevant in reference to their obligation to ensure the uniform application of EU law. The Court stated (para 13) that private arbitral tribunals are not to be considered as ‘any court or tribunal’ under Article 267 TFEU and therefore are not allowed to directly submit an application for a preliminary ruling on EU law. However, in case an arbitral tribunal is, inter alia, established by law, permanent, independent, has a compulsory jurisdiction, its procedure is inter partes and it applies rules of law, the Court of Justice recently (Case C‑555/13) characterised it as ‘any court or tribunal’. Consequently, a mandatory arbitral tribunal established in a Member State may refer questions to the Court of Justice for a preliminary ruling.

As regards to doping-related disputes, the WADA Code is mandatory in substance and must be followed by signatories like, e.g., National Anti-Doping Organizations. Moreover, all Member States have designated a National Anti-Doping Organization (Appendix 1 WADA Code) as the primary authority to adopt and implement inter alia anti-doping measures at the national level. In addition, Article 23.2.2 in conjunction with Article 13.2.1 WADA Code refers inter alia to the exclusive jurisdiction of the CAS Appeal Arbitration, which means that CAS has been recognized by all Member States as a mandatory arbitral tribunal (established in Switzerland) with regard to doping-related disputes. However, as opposed to the regulations of sports governing bodies like FIFA, the WADA Code explicitly mentions the application of ex post reviews of CAS awards by national courts.                                                       

According to the Court, reviewing arbitral awards should be limited in scope and refusing to enforce foreign arbitral awards (i.e. CAS awards) by national courts should only be possible in exceptional circumstances, both in the interest of efficient arbitral proceedings. As previously mentioned, national courts are generally deferent towards arbitral awards. Moreover, they do not review the way the law is applied by the arbitrators. A national court’s review is confined to the nature and impact of the decision and its procedural aspects. Accordingly, the Court accepted the national courts’ limited scope of review in reference to the principle of procedural autonomy to implement and enforce national and EU law. Moreover, in the interest of good administration, fundamental principles of procedure recognized by all Member States must prevail. This procedural autonomy finds its limit in the need to warranty the effet utile of EU competition law as fully as other public policy matters (i.e. principle of equivalence). Moreover, according to the Court, EU competition law is a fundamental provision for the realisation of the internal market and must therefore be regarded as a public policy matter by national courts when enforcing arbitral awards. Thus, the Court ruled that a national court’s limited review of arbitral awards must extend to EU competition law, which should be integrated in the Member State’s national notion of public policy in order to ensure that EU law actually takes effect (principle of effectiveness).

The Court furthermore stated that reviewing an arbitral award for being incompatible with public policy should only occur under exceptional circumstances. Only if the effects of enforcing an arbitral award by a national court contravene the most fundamental principles of law in the respective jurisdiction, it may be denied recognition and enforcement for being incompatible with public policy. In order to qualify as such, a competition law violation must therefore be regarded as very serious, e.g. a complete disregard of an obvious and serious violation such as a cartel. In addition, the Court especially referred to the prohibition laid down in Article 101(1) TFEU, which is primarily a matter of substance. In reference to the national courts’ limited scope of review, one can therefore argue that infringements to EU competition law may be regarded as substantive public policy violations during inter alia enforcement proceedings of arbitral awards.

Finally, competition law is not the internal market’s only fundamental provision. It could be extrapolated that the Court relied on a wide notion of public policy in Eco Swiss. For instance, the fundamental provisions of free movement may be applicable in a CAS award’s enforcement proceedings and could, in principle, qualify as public policy matters in exceptional circumstances. If, e.g., enforcement proceedings of the Matuzalém CAS award were sought before Member States’ courts, a violation of the freedom of workers (he played for Lazio Roma between 2008 and 2013) or service providers (e.g., personal sponsorship or endorsement deals) could be invoked to bar the recognition and enforcement of the award.

Conclusion

CAS awards are potentially fragile at the enforcement stage as they may contradict national States’ understanding of the public policy exception. This is even more so if one characterises EU competition law and EU free movement rights as public policy concerns. However, in practice the enforcement of CAS awards is very rarely used[6]. Sport governing bodies can rely on their contractual disciplinary power to ban athletes from the competition they organize and thus do not rely on national courts to enforce CAS awards. Nevertheless, banned athletes could initiate action for damages against sports governing bodies and force them to ask for the recognition and enforcement of the award in their defence plea. Thus, there is a very indirect (and protracted) way to challenge CAS award on the basis of EU public policy, but it is a windy and rocky legal path.

Epilogue

A personal message to Claudia Pechstein - German Speedskater and Olympic Champion (five gold, two silver and two bronze): Pursuant to Article 25(6) of the ISU Constitution, the ISU is also complicit and the respective CAS awards could accordingly be challenged for being incompatible with substantive public policy if they were to be enforced in a Member State …

[1] Notes are mostly ommitted. A comprehensive article will be published in 2014.

[2] E.g., Cour de cassation, 23 March 1994, Yearbook Commercial Arbitration, Vol XX (1995), p. 663.

[3] E.g., Amsterdam Court of Appeal, Case No. 200.005.269/01, April 28, 2009; Amsterdam Court of Appeal, Case No. 200.100.508/01, September 18, 2012.

[4] ICC Guide to national procedures for the recognition and enforcement of awards under the New York convention, ICC Court of Arbitration Bulletin (Vol 23, Special Supplement) 2012, p. 20.

[5] Ibid.

[6] It should be noted that, as far as we know, only one CAS ordinary award has actually been enforced in a Member State: IMFC Licensing B.V. v. R.C.D. Espanyol de Barcelona, Tribunal Superior de Justicia de Catalunya, 30 May 2012 (IMFC Licensing, B.V. v. R.C.D. Espanyol de Barcelona, S.A.D.) Yearbook XXXVIII (2013) pp. 462-464.