Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.

Unlike the International Association of Athletics Federations (IAAF), the International Paralympic Committee (IPC) was very much unaffected by the Russian doping scandal until the publication of the first McLaren report in July 2016. The report highlighted that Russia’s doping scheme was way more comprehensive than what was previously thought. It extended beyond athletics to other disciplines, including Paralympic sports. Furthermore, unlike the International Olympic Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio Paralympic Games were due to start “only” in September.

After the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled and deeply saddened at the extent of the state sponsored doping programme implemented in Russia”. He immediately announced the IPC’s intention to review the report’s findings and to act strongly upon them. Shortly thereafter, on 22 July, the IPC decided to open suspension proceedings against the National Paralympic Committee of Russia (NPC Russia) in light of its apparent inability to fulfil its IPC membership responsibilities and obligations. In particular, due to “the prevailing doping culture endemic within Russian sport, at the very highest levels, NPC Russia appears unable or unwilling to ensure compliance with and the enforcement of the IPC’s Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7 August, the IPC Governing Board decided to suspend the Russian Paralympic Committee with immediate effect “due to its inability to fulfil its IPC membership responsibilities and obligations, in particular its obligation to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which it is also a signatory)”. Indeed, these “obligations are a fundamental constitutional requirement for all National Paralympic Committees (NPCs), and are vital to the IPC’s ability to ensure fair competition and to provide a level playing field for all Para athletes around the world”. Consequently, the Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically, it was not entitled to enter athletes in competitions sanctioned by the IPC, and/or to participate in IPC activities. Thus, “the Russian Paralympic Committee will not be able to enter its athletes in the Rio 2016 Paralympic Games”.

This was an obvious blow to Russia’s Paralympic team and, as was to be expected, the RPC decided to challenge the decisions. Thanks to an agreement with the IPC, the case moved directly to the Court of Arbitration for Sport (CAS), which decided in favour of the IPC on 23 August. Nonetheless, the legal battle did not end there as Russian athletes continued the fight in the German courts. In this blog I will first review the CAS award and then discuss the follow-on disputes in German courts.

I.              The IPC’s triumph before the CAS

At play in front of CAS was the use of clauses 9.2.2 and 9.3 of the IPC Constitution to suspend the RPC for failing to fulfil its obligations as a member. Indeed, the member’s obligation provided in clause 2 of the IPC constitution, includes the obligation “to comply with the World Anti-Doping Code”[1] and to “contribute to the creation of a drug-free sport environment for all Paralympic athletes in conjunction with the World Anti-Doping Agency (WADA)”[2]. The RPC challenged the claim that it had failed to comply with these obligations. Furthermore, it considered that in any event the sanction applied was disproportionate.

A.    Did the RPC fail to comply with its membership obligations? 

The RPC contested in full the factual findings of the McLaren Report. Yet, the Panel held that the RPC failed to provide the necessary evidence to rebut McLaren’s factual claims. In particular, the RPC “decided not to cross-examine him although given the opportunity to do so”[3] and “did not call any athlete named by Professor McLaren as having been subject to the system he described”[4]. In other words, “Mc Laren’s evidence stands uncontradicted”[5]. However, in light of the lack of precise information, the Panel refused to conclude, like the IPC requested, that “the RPC and its Board Members were involved in, or complicit in, or knew of the existence of State sponsored doping of athletes and the methodologies as set out in the IP Report”.[6]

Nonetheless, the arbitrators also found that it is “undisputed that the RPC accepted the obligations imposed on it as a member of the IPC”, and amongst those obligations there is “the specific obligation under Article 20.1 of the WADA Code to adopt and implement anti-doping policies and rules for the Paralympic Games which conform with the WADA Code”.[7] Moreover, “the obligation vigorously to pursue all potential anti-doping rule violations within its jurisdiction and to investigate cases of doping (Article 20.4.10), are not passive”.[8] Thus, at a national level “the RPC is the responsible entity having the obligation to the IPC as well as to the IPCs’ members to ensure that no violations of the anti-doping system occur within Russia”.[9] Yet, the mere “existence of the system as described in the IP Report and in the McLaren affidavit means that the RPC breached its obligations and conditions of membership of the IPC”.[10]

Those are extremely important considerations to support the effectiveness of the world anti-doping system. In practice, the CAS is closing the door on national federations hiding behind the failure of other anti-doping bodies to deny their responsibility. If decided inversely, this would have led to a situation of organized irresponsibility, in which the bucket is simply passed over to a public institution (in Russia’s case RUSADA) that cannot be sanctioned under current anti-doping rules. Indeed, WADA declare RUSADA non compliant, but RUSADA is not a member of sporting associations, it does not enter athletes in international sporting competitions, thus SGBs would be hard pressed to find a way to impose any deterrent sanctions against it. If noncompliance is to be met with adequate sanctions, SGBs, which are tasked to supervise specific sports at national level, must bear the indirect responsibility for the systemic failure of the anti-doping system operating in their home country.

B.    Is the sanction imposed by the IPC proportionate?

As the Panel recognized from the outlet: “the more difficult question for consideration is whether the decision to suspend the RPC without reservation, or alleviation of the consequences to Russian Paralympic athletes, was proportionate”.[11] The RPC submited “that the IPC could have adopted a “softer measure” that still permitted clean Russian athletes to compete in the Paralympic Games in Rio”.[12] Furthermore, it argued, “that a blanket prohibition is not justified, as it has not been established that all para-athletes nominated by the RPC have ever been implicated in doping”.[13]

1.     Whose right are disproportionately affected?

The Panel considered first that as para-athletes are not parties to this appeal, “[q]uestions of athletes’ rights that may not derive from the RPC, but of which they themselves are the original holder, such as rights of natural justice, or personality rights, or the right to have the same opportunities to compete as those afforded to Russian Olympic athletes by the IOC in its decision of 24 July 2016 regarding the Olympic Games Rio 2016, are not for this Panel to consider”.[14] Instead, the “matter for review by this Panel is thus not the legitimacy of a “collective sanction” of athletes, but whether or not the IPC was entitled to suspend one of its (direct) members”.[15] Furthermore, “the collective member cannot hide behind those individuals that it represents” .[16]

Here the Panel adopts a relatively formalistic reasoning by denying the RPC the competence to invoke the potential rights of its athletes. This might contradict the idea that athletes bear a responsibility for the noncompliance of their national federation with the rules of an international federation as put forward by the Panel in the IAAF case. The RPC does, at least partly, represent the athletes, and there is a good case that can be made for it to be allowed to raise the potential infringements of the personality rights of its members in this procedure. It does not mean that the rights of the athletes were disproportionately affected, only that they should have been considered and not brushed aside as the Panel did in the present instance. 

2.     The (extraordinary) nature of the RPC’s regulatory failure

Unfortunately, the award’s analytical structure can lead to some confusion when dealing with the proportionality analysis of the IPC’s decision. There are two (implicit) steps that are key in the decision. First, an analysis of the depth (and consequences) of the RPC’s regulatory failure, and second an analysis of the proportionality of the sanction responding to this failure. The former will be dealt with in this section.

The Panel points out that the IPC “was faced with probative evidence of widespread systemic doping under the RPCs “watch””.[17] Moreover, as argued by the IPC, the RPC’s failure to act is even more acute in light of the IPC’s dependence on national members to implement its policies at national level. Thus, in particular, “the IPC relies on the RPC to ensure compliance in Russia with its zero tolerance anti-doping policy”.[18] More generally, “this federal system with complementary international and national obligations is the core back-bone of the fight against doping”.[19] In this context, the fact that the RPC claims that “it did not know what was happening and that it had no control over those involved in the system described by Professor McLaren does not relieve the RPC of its obligations but makes matters worse” [20]. Though it is unclear from the formulation used in this section of the award, the outcome of the case points undoubtedly to the fact that the Panel endorses the IPC’s understanding of the scope of responsibility of the RPC. Furthermore, the arbitrators insist that the “damage caused by the systemic, non-compliance is substantial” [21]. Finally, it finds again that the RPC “had a non-delegable responsibility with respect to implementing an anti-doping policy in conformity with the WADA Code in Russia”.[22] Thus, the RPC could not simply “delegate the consequences [of this responsibility] where other bodies within Russia acting as its agent implement a systemic system of doping and cover-up”.[23]

In this section of the award, the Panel recognizes, rightly in my view, that the effectiveness of the transnational regulation of international sports relies on the compliance of national federations and this is even more so in the case of the anti-doping fight.

3.     The proportionality of the sanction

The key question in the proportionality analysis was whether the sanction inflicted upon the RPC was adequate and necessary to attain its aim. The reasoning of the Panel is piecemeal and spread around a number of paragraphs of the award, which are regrettably not well connected together.

The first question is whether the IPC was pursuing a legitimate objective when imposing that sanction on the RPC. On the IPC’s own account, the sanction was considered “the only way to ensure that the system, and systematised doping, in Russia no longer continued”.[24] It adds “that it was a legitimate aim to send a message that made clear the lack of tolerance on the part of the IPC to such systemic failure in a country”.[25] The Panel recognizes that the “concern that clean athletes, inside and outside of Russia, have confidence in the ability to compete on a level playing field, and the integrity and credibility of the sporting contest, represent powerful countervailing factors to the collateral or reflexive effect on Russian athletes as a result of the suspension”[26], and constitutes “an overriding public interest that the IPC was entitled to take into account in coming to the Decision”.[27]

The second question linked to the proportionality of the sanction relates to its necessity. Was there a less restrictive alternative sanction available to attain the aim pursued? The IPC argued that the suspension of the RPC’s membership was necessary for three reasons:

• “to provoke behavioural change (for the future) within the sphere of responsibility of the RPC”
• “the suspension took into account that the failures in the past had resulted in a distorted playing field on an international level, because the IPC anti-doping policy was not being adequately enacted and enforced vis-à-vis para-athletes affiliated to RPC”
• “a strong message had to be issued to restore public confidence, since the Paralympic movement depends – much more than other sports – on the identification with moral values”[28]

The Panel held that the suspension was “a powerful message to restore public confidence”. It insisted also that there “was no submission to the Panel of an alternative measure that would, comparably and effectively, restore a level playing field for the present and the immediate future, affect future behavioral change and restore public trust”.[29]

Finally, the Panel concluded that “in light of the extent of the application of the system described by Professor McLaren and his findings of the system that prevailed in Russia, made beyond reasonable doubt, the Decision to suspend the national federation was not disproportionate”.[30] Moreover, it insisted that the consequences for the athletes were following logically from the suspension of the RPC and therefore proportionate, as it had decided in the IAAF case. The Panel also brushed aside the RPC’s attempt to portray the IPC’s decision as contrary to the IOC Decision dated 24 July 2016. On the one side, it found the IOC Decision to be irrelevant for the IPC and, on the other, it considered the IPC’s suspension to be in any event compatible with the IOC Decision.

II.            The Russian appeals in the German courts

The RPC’s appeal to the Swiss Federal Tribunal failed on 30 August because it could not demonstrate its ability to fulfil its obligations with regard to the anti-doping rules of the IPC and WADA, not unlike the one of the Russian athletes and RusAF in the IAAF case,. Nor could RusAF demonstrate that its interests would override those of IPC to fight effectively against doping and protect the integrity of sport. 

Yet, interestingly, new challenges against the RPC’s suspension were quickly lodged in German courts. Indeed, as the IPC is seated in Bonn, a number of Russian athletes tried to obtain provisory judgments from the Landgericht (LG) Bonn to participate in the Rio Paralympics. These cases were appealed to the Oberlandesgericht (OLG) Düsseldorf, and even ended up in front of Germany’s constitutional court, the Bundesverfassungsgericht (BVerfG). It would have been ironical if the German courts had quashed the decision of the IPC, bearing in mind that it is the German public broadcaster (ARD) which brought the Russian doping scheme to the fore in the first place.

A.    The decisions of the LG Bonn

On 5 and 6 September the LG (first instance tribunal) Bonn rendered two judgments (available here and here) on the matter. Both rejected the claims of the Russian athletes.

The first judgment found that the athletes could not rely on any contractual claims, as no contract existed between them and the IPC. This is due to the fact that the RPC is supposed to nominate them to participate in the Paralympic Games, for the court there is no contract between the IPC and the athletes.[31] Even where the IPC foresees in its rules that it can directly nominate athletes to participate in the Paralympic Games, one cannot derive that it has a contractual duty to select the claimants. Instead, it enjoys certain discretion in doing so. However, the LG recognized that the Russian athletes’ interests are affected by the IPC’s Decision of 7 August 2016, but it also acknowledged that the IPC justified its decision by the existence of a state-run doping scheme in Russia.[32] Thus, the final decision to enter or not athletes in the Paralympic Games of Rio should be left to the IPC. The fact that the IOC applied a different regime to the Russian athletes willing to participate in the Rio Games is deemed not binding upon the IPC, as it is a separate legal entity.

The second judgment, rendered the day after, follows a very similar line of reasoning. The LG added a pointed rebuttal of the claim that the Russian athletes were discriminated against. It insisted that the other countries are not suspected of running state doping schemes.[33] The court recognized that athletes cannot easily change their nationality, but it insisted that the Olympic Games are more than any other sporting competition characterized by the fact that athletes participating are not primarily representing themselves but their home country.[34] In this context, athletes must accept to face restrictions for which they might not be personally responsible.[35] Furthermore, the ineligibility of the Russian athletes was not deemed a disproportionate restriction on the freedom to work or on the fundamental personality rights of the claimants. The LG considered that authorizing specific athletes to compete under a neutral flag would not have been a milder solution to fight against doping, as the Russian public would still have identified them as Russian.[36] Instead, as members of the RPC, the claimants must accept such a restriction to their individual rights.

The LG Bonn strongly supported the decision adopted by the IPC. The court has, as the CAS did, declined to consider the suspension of the RPC, and the ensuing ineligibility of Russian athletes for the Rio Paralympic Games, as discriminatory or disproportionate.

B.    The Appeal to the Oberlandesgericht Düsseldorf

The appeal decision of the OLG Düsseldorf is probably the most interesting of the German decisions analysed here. In the first part of its judgment, the OLG criticized harshly the Russian athletes for failing to request earlier a provisory order from the German courts. Indeed, at the time of the decision, 13 September 2016, the Paralympic Games were almost one week underway (7 September). Consequently, many (if not all) of the appellants would be unable to compete at the Games anyway, even if the court were to grant the requested order.

Yet, the core of the OLG’s ruling, and its most important contribution to the world anti-doping system, is its assessment of the balance of interests between the Russian athletes and the IPC. In a nutshell, the OLG found that the IPC’s interest in declaring the Russian athletes ineligible prevails because there is a legitimate suspicion that those athletes have been involved in doping in the previous years.[37] To come to this conclusion, the court conducted a fairly comprehensive assessment of the opposing interests. On the one side, the Russian athletes have an interest in participating in the Paralympic Games to secure economic revenues deriving primarily from sponsoring. On the other side, stands the IPC’s “fundamental interest in the organization of a fair sporting competition excluding athletes who have used doping or against which there is a strong suspicion of doping”.[38] In this case, the OLG held that the interest of the IPC for “clean” Paralympic Games prevails and justifies the rejection of the complaint.[39] For the Düsseldorf court, the personal guilt of the athletes is irrelevant, as the fact that they had the possibility to exercise their sport with the support of doping without risking to be discovered justifies in itself a general suspicion of doping against all Russian athletes.[40] Thus, the IPC can, for the preservation of the fairness of its competitions, declare them ineligible for the Paraympic Games. Only the athletes for whom it can be confidently demonstrated that they have not doped can be exempted from this exclusion.

Hence, the OLG considered that the factual constellation of the case justifies that each and every Russian Paralympian can be legitimately suspected of having been involved in doping over the recent years. Furthermore, Paralympic athletes were, as corroborated by the McLaren Report and his affidavit, also a target of the Russian doping system.[41] This suspicion cannot be rebutted by the oath taken by 68 (out of 84) of the appellants that they have not tested positive for doping in the last two years. Indeed, it cannot be demonstrated that the athletes have been subjected to non-manipulated doping tests.[42] In the end, the OLG fully endorsed the IPC’s decision to prioritize its objective of providing “clean Games” to the detriment of the interests of Russian Paralympians in participating.

C.    Final Stop at the Bundesverfassungsgericht

The next, and final stop, for the claimants was the BVerfG in Karlsruhe. The court, which rendered its ruling on 15 September, was faced with the demands of Russian athletes for a provisory order allowing them to participate (at least) to the closing ceremony of the Paralympic Games due to take place on 18 September.

The court’s balancing exercise between the interests of the IPC and those of the Russian athletes is favourable to the former. Thus, the BVerfG found that if it would grant the provisory order and later reject a related constitutional complaint, this would have irreparable consequences for the pending Paralympic competitions and closing ceremony and would send a (negative) signal to sport in general.[43] Even if, to their credit, the individual athletes are not directly involved in the state-run doping scheme unearthed by the McLaren Report, the Court believed that the decision of the IPC and the CAS to declare the whole Russian team ineligible must be respected. The entering of athletes through the national courts would intrude substantially on the autonomy of the IPC and of the CAS[44] and the deterring signal send by the RPC’s exclusion, which aims at scaring off national federations from supporting or tolerating systematic doping schemes, would be substantially weakened.[45]

Furthermore, if instead the provisory order is rejected and the Russian athletes prevail in a later constitutional complaint, the interests of the athletes to participate in the closing ceremony is still of significantly less weight than the IPC’s interest to ensure that the use of doping in sport is fought against effectively.[46] In particular, one cannot ignore that, besides one of the appellants, all the others will in any event not be able to participate to competitions which have already taken place.[47] Even for the only athlete potentially able to participate there are legitimate doubts regarding her material ability to compete in the Rio Paralympic Games. Therefore, the BVerfG rejected the appellants’ plea and definitely put an end to their hope in participating to the Rio Paralympic Games.

Conclusion

At the time of writing, the RPC is still suspended by the IPC and the second McLaren Report has corroborated with more evidence the extensive nature of the Russian doping scheme. The IPC has developed, in collaboration with WADA, a set of tough reinstatement criteria to be met by the RPC in order to be reinstated. The compliance of the RPC with the criteria will be monitored by a special taskforce. Thus, the IPC demonstrated its willingness to tackle head-on the Russian doping scheme. In doing so, it followed a radically different approach than the IOC and declared all Russian Paralympians to be ineligible.  

The CAS and the German courts later fully endorsed this approach. In fact, it seems that the national courts were even going beyond the findings of the CAS by emphasizing that there was a legitimate presumption from the side of IPC that all the Russian Paralympic athletes were doped. The CAS and the German courts also insisted that a balancing exercised between the interests of the athletes to participate in the Paralympic Games and the interests of the IPC to defend clean and doping free competitions, would be decided to the benefit of the latter. Even so athletes might not be directly responsible for the state-run doping scheme, they share the responsibility (as in the IAAF case) for the governance failures of their sports governing bodies. In the eyes of the German courts, this responsibility is reinforced by the fact that they are representing their country at the Paralympic Games.

In the end, the CAS (and the German courts) had to choose between:

1. Burdening athletes for the systematic failure of the Russian sports governing bodies to comply with their anti-doping commitments and risk to sanction innocent athletes;
2. or let the athletes compete and risk to jeopardize the already weak effectiveness of the world anti-doping system.

In general, this is the big fork-in-the-road question raised by the Russian scandal. On the one side, we can double down on anti-doping, beef up compliance mechanisms, and endure collateral damages: some innocent athletes. Or, on the other side, we acknowledge the total failure of the world anti-doping system as it is and de facto (or de jure) condone the use of doping in international sporting competitions. The CAS and the German courts clearly decided to follow the regulatory route, but this is only the beginning of a very long anti-doping journey.

[1] Clause 2.1.1.

[2] Clause 2.27.

[3] CAS 2016/A/4745, Russian Paralympic Committee v. International Paralympic Committee, award of 23 August 2016, para.43.

[4] Para.44.

[5] Para.43.

[6] Para. 54 and 55.

[7] Para. 56.

[8] Para. 59.

[9] Para. 60.

[10] Ibid.

[11] Para. 73

[12] Para. 76.

[13] Ibid.

[14] Para.79.

[15] Ibid.

[16] Ibid.

[17] Para. 81.

[18] para. 82.

[19] Ibid.

[20] Ibid.

[21] Para. 86.

[22] Para. 86.

[23] Para. 86.

[24] Para.83.

[25] Para.84.

[26] Para.84.

[27] Para.84.

[28] Para. 88.

[29] Para.89.

[30] Para. 91.

[31] „Anders als die Antragsteller meinen, kommt allein durch die Ausrichtung der Paralympics zwischen den Parteien kein Vertragsverhältnis oder vertragliches Vorverhältnis i.S.v. § 311 Abs. 2 BGB zustande. Da die Nominierung zur Teilnahme an den Paralympics im Regelfall durch das S und nicht durch den Antragsgegner erfolgt, ist nicht ersichtlich, dass die Parteien potentielle Vertragspartner wären.“ Landgericht Bonn, 20 O 323/16, at II.

[32] „Das Gericht verkennt nicht, dass die russischen Para-Athleten durch die Entscheidung des Antragsgegners vom 07.08.2016 nachhaltig in ihren sportlichen und auch wirtschaftlichen Interessen betroffen werden. Jedoch hat der Antragsgegner seine Entscheidung nachvollziehbar mit dem Vorwurf des organisierten Staatsdopings in Russland begründet. Insoweit muss es dem Antragsgegner selbst überlassen bleiben, von seinem Recht zur Zulassung einzelner Athleten Gebrauch zu machen oder aber nicht.“ Ibid.

[33] „Soweit die Antragsteller auf eine Ungleichbehandlung im Vergleich zu den Para-Athleten aus anderen Ländern abstellen, ist dem entgegenzuhalten, dass diese anderen Länder nicht dem Verdacht des organisierten Staatsdopings unterliegen.“ Landgericht Bonn, 20 O 325/16,  at II.

[34] „Zwar haben die Antragsteller keine Möglichkeit, ihr Land oder ihren Verband zu wechseln. Jedoch werden die Olympischen Spiele sowie die Paralympics weit mehr als Weltmeisterschaften oder andere sportliche Wettkämpfe dadurch gekennzeichnet, dass die Athleten an ihnen nicht nur auf eigene Rechnung, sondern vor allem für ihr Land teilnehmen.“ Ibid.

[35] „Der Charakter und die Besonderheit der Spiele können so auch dazu führen, dass der einzelne Athlet von ihm selbst nicht verschuldete Einschränkungen hinnehmen muss. Insoweit ist auch kein Verstoß gegen das Diskriminierungsverbot der §§ 19, 20 und 33 GWB zu erkennen.“ Ibid.

[36] „Die Zulassung einzelner Sportler bei Beibehaltung der Suspendierung des S wäre – als die Antragsteller meinen – nicht als milderes Mittel gleichermaßen geeignet zum Kampf gegen das Doping. Zwar liefen die russischen Para-Athleten dann nicht mit ihrer Landesfahne auf und träten dabei nicht offiziell für ihr Land auf. Sie würden aber dennoch von den Zuschauern mit ihrem Land identifiziert.“ Ibid.

[37] „Die Abwägung der widerstreitenden Interessen führt zu dem Ergebnis, dass der Antragsgegner den Antragstellern eine Teilnahme an den Paralympischen Spielen 2016 in Rio de Janeiro verwehren darf, weil der begründete Verdacht gerechtfertigt ist, dass diese Sportler in den vergangenen Jahren Doping betrieben haben.“ Oberlandesgericht Düsseldorf, VI-W (Kart) 13/16, at B.2.a.

[38] „Auf der Seite des Antragsgegners, der die Paralympischen Spiele 2016 veranstaltet, steht demgegenüber das fundamentale Interesse, einen fairen und sportlichen Wettkampf zu gewährleisten und alle diejenigen Sportler von den Spielen fernzuhalten, die entweder des Dopings überführt sind oder gegen die der hinreichend begründete Verdacht des Dopings besteht.“ Ibid., at B.2.a.bb.(2).

[39] „Im Streitfall führt das überragende Interesse des Antragsgegners an „sauberen“ Paralympischen Spielen zu dem Ergebnis, dass die streitbefangenen Zulassungsbegehren abzulehnen waren.“ Ibid., at B.2.a.bb.(3).

[40] „Diese ein Doping begünstigenden Rahmenbedingungen rechtfertigen gegen alle Athleten, die unter dem System trainiert haben, einen Dopingverdacht.“ Ibid.

[41] Ibid., at B.2.a.bb.(3) (3.1)..

[42] Ibid., at B.2.a.bb.(3) (3.3)..

[43] „Würde die beantragte einstweilige Anordnung ergehen, die noch zu erhebende Verfassungsbeschwerde aber später erfolglos bleiben, hätte dies erhebliche Auswirkungen für die noch ausstehenden Wettkämpfe und die Durchführung der Abschlussfeier der Paralympischen Spiele am 18. September 2016 in Rio de Janeiro und eine Signalwirkung nicht nur für paralympischen Sport, sondern für den Sport insgesamt.“BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 15. September 2016, 1 BvQ 38/16, at II.3.a).

[44] „Eine Zulassung einzelner Athletinnen und Athleten durch die staatlichen Gerichte griffe erheblich in die Verbandsautonomie des IPC und der internationalen Sportgerichtsbarkeit ein.“ Ibid.

[45] „Die mit dem Ausschluss des RPC von den Paralympischen Spielen beabsichtigte Signalwirkung, die insbesondere nationale Sportverbände von der Duldung, Unterstützung oder Organisation systematischen Dopings abschrecken soll, würde erheblich beeinträchtigt.“ Ibid.

[46] „Zwar erscheint das Interesse der Antragstellerinnen und des Antragstellers auch dann durchaus gewichtig, wenn ihnen nur die Teilnahme an der Abschlusszeremonie am 18. September 2016 möglich sein sollte. Im Vergleich zu dem Interesse des IPC, den Einsatz von Dopingmitteln im Sport nachhaltig und effektiv zu bekämpfen, hat dies jedoch deutlich weniger Gewicht.“ Ibid., at II.3.b).

[47] „Zudem kann nicht unberücksichtigt bleiben, dass - abgesehen allenfalls von der Antragstellerin zu 5) - die übrigen Antragstellerinnen und der Antragsteller wegen des inzwischen weitgehend durchgeführten Gesamtprogramms der aktuellen Paralympischen Spiele nicht mehr an den sportlichen Wettkämpfen teilnehmen können und ihnen damit insoweit nur noch ein bloßer Zuschauerstatus zukommen könnte, den sie auch ohne Erlass der einstweiligen Anordnung wahrnehmen können.“ Ibid.

Since last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal crusade against FIFA’s TPO ban. It has lodged a competition law complaint with the EU Commission and started court proceedings in France and Belgium. In a first decision on Doyen’s request for provisory measures, the Brussels Court of First Instance rejected the demands raised by Doyen and already refused to send a preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing, decided to appeal this decision to the Brussels Appeal Court, which rendered its final ruling on the question on 10 March 2016.[1] The decision (on file with us) is rather unspectacular and in line with the first instance judgment. This blog post will rehash the three interesting aspects of the case.

·      The jurisdiction of the Belgian courts

·      The admissibility of Doyen’s action

·      The conditions for awarding provisory measures

I.      The jurisdiction of the Belgian courts

Doyen was not the only party to the dispute dissatisfied with the first instance ruling; FIFA and UEFA also appealed the decision challenging the territorial competence of the Belgian Court to hear the claims raised against FIFA’s TPO ban. They consider that the Swiss courts are solely competent to deal with civil disputes involving its rules and decisions.

As in first instance, the thrust of the ruling on this question turns on the interpretation of the Lugano convention of 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In principle, under Article 2(1) of the Convention: “Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.” Thus, translated to the present dispute this would imply that FIFA and UEFA, which are Swiss Associations, are in principle to be sued in front of Swiss courts.

Moreover, to support their view that Swiss Courts have an exclusive jurisdiction, FIFA and UEFA also invoke Article 22(2) Lugano Convention stipulating that “proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the State bound by this Convention in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law”. Yet, the Appeal Court is of a different opinion and refers to the jurisprudence of the CJEU indicating that Article 22(2) should be interpreted as referring to disputes lodged based on company law or their statutes against decisions of a company or association.

The principle enshrined in Article 2 Lugano Convention is not absolute, many exceptions are provided in the Lugano Convention itself. In particular, Article 5(3) Lugano Convention foresees that in delictual matters the court of the place where the harmful event occurred or may occur is competent. This entails both the place were the harmful conduct was put in motion and the place where the harm was felt. In the present case, the Appeal Court argues that it is “difficult to contest that by hindering the appellant to execute their partnership agreement and enter in future TPO or TPI agreements over specific players, the attacked ban is producing harmful effects on the Belgian territory”.[2] Furthermore, the TPO agreement between Doyen Sports and the ASBL RFC Seraing is not deemed fictitious, as it has been invoked by FIFA to hand out disciplinary sanctions to the ASBL RFC Seraing.[3]

Additionally, the Court derives also its competence from Article 6(1) Lugano Convention. This article provides that a party can be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. The key question is whether there is sufficient connectedness between the claims raised against l’URBSFA, FIFA and UEFA. The Court refers to the recent case law of the CJEU, which is relevant to the interpretation of the Lugano Convention, on the identical provision in the Brussels Regulation (notably the case C-352/13 at para. 20). It is of the view that “FIFA and URBSFA share a regulatory and disciplinary power that enables them both, acting jointly or separately, to adopt the contested ban, to enforce it and to adopt an individual decision susceptible to block, compromise and/or restrict the execution of the contract signed by the appellants”.[4] Thus, “the autonomous regulatory power of the URBSFA justifies its participation in this proceeding, alongside FIFA in order (i) to obtain that both be prevented to act; (ii) that each of them be deprived of the opportunity to contest the opposability of a decision to which they would not have been part and lastly (iii) to deny FIFA the possibility to circumvent an interdiction pronounced against it by having recourse to the regulatory power of the URBSFA”.[5] Finally, the Court argues “if the appellant were forced to lodge a claim against FIFA in front of the Swiss courts and against URBSFA in front of the Belgian Courts, this could potentially lead to irreconcilable solutions”.[6] As far as the claims against UEFA are concerned, which has not contrary to FIFA explicitly banned TPO, the Appeal Court is also convinced of their connectedness. It is so because UEFA “imposes to the clubs needing a license to participate in its competitions that they comply with the statutes and regulations of FIFA and, thus, with the disputed TPO ban “.[7]

This is again a powerful reminder that Sports Governing Bodies (SGBs) seated in Switzerland cannot evade the jurisdiction of the national courts of EU Member States when EU competition law is involved.[8] Under Article 5(3) Lugano Convention, EU Member States courts will be competent to deal with a civil liability claim based on EU competition law if the damage caused by the disputed measure/decision/regulation can be felt on the national territory of a Member State. Furthermore, if, as is usually the case for sports regulations, the rules have to be implemented by national sporting associations, the claims raised against the national SGBs will most likely be deemed connected to the original decisions/regulations of the international SGBs and justify the jurisdiction of the court of the domicile of the national SGB.[9]

II.    The admissibility of Doyen’s action

In this proceeding, as well as in the one initiated in front of the Paris court (FIFA’s legal submission in the Paris procedure has been published by football leaks), FIFA argues that Doyen’s action is not admissible due to the fact that the wrong administrator has initiated it. Indeed, under article 11.1 of Doyen’s own statutes the judicial representation is to be exercised by the local administrator designated by shareholder A acting in conjunction with the local administrator designated by shareholder B or by any other person designated by the general assembly. Yet, in practice Nelio Lucas, who fulfils none of the relevant criteria and was thus not authorized to act in Doyen’s name in judicial matters, lodged the action. However, Doyen could have under Belgium procedural rules ratified the judicial initiative taken by an incompetent organ. Doyen tried to do so but failed to organize the general assembly necessary to ratify Nelio Luca’s decision. Thus, the Court deems the action initiated by Doyen inadmissible. Luckily for Doyen it was not the sole party to the proceedings as the ASBL RFC Seraing joined the procedure. The Court believes the intervention of RFC Seraing in the proceedings is admissible and its interest to act is acknowledged. On this latter point, FIFA was arguing that RFC Seraing’s interest to act was inexistent due to the fact that the partnership agreement between Doyen and Seraing was contrary to the public order. However, in light of the divergent positions regarding the legality of TPO/TPI and of the on-going proceedings before various national courts and the European commission, the Belgium court is reluctant to admit that the interest of Seraing to act in this matter is illegitimate.

III.  Doyen’s (un)likelihood to prevail

Concerning the likelihood to prevail, however, the Court sided with the federations and refused to admit that the TPO/TPI ban was likely to restrict article 101(1) TFEU. On the one hand, as indices of the compatibility of the ban with EU law, it pointed out that the Commission was inclined to support the TPO ban, that FIFPro was clearly opposed to TPO and invokes fundamental values in support of the ban, and that the ban was adopted after a collective reflection involving many stakeholders and is aimed at tackling the negative externalities listed by the first instance court.[12] On the other hand, it refers to an academic article authored by Marmayou contesting the compatibility of TPO with EU law (this reference appears poorly chosen as the article is dedicated primarily to the FIFA regulations for intermediaries, for a stronger challenge to the compatibility of the TPO ban with EU law see Lindholm).[13] In any case, “it is obvious that a preliminary assessment cannot lead the Court to conclude, with sufficient certainty, that the ban would be contrary to EU competition rules”.[14] Finally, and this is the part of the ruling that seems to have been slightly misinterpreted by the press. The Court pointed out that Seraing and Doyen were asking in the main proceedings for a preliminary reference to the CJEU and that they were, therefore, conscious that they are not certain to prevail. However, the Appeal Court cannot, in the framework of a procedure involving provisory measures, ask a question to the CJEU, as it is unable to comply with the CJEU’s requirements for the admissibility of preliminary references (see the failed attempt in the UEFA FFP case). Hence, it is for the Commercial Court of Brussels, which is competent in the main proceeding, to decide whether it is necessary to do so. The Appeal Court (and the claimants as it cheekily points out) seems to believe that it could be needed, as it is not at all clear that the ban is contrary to EU competition law.

Conclusion

There are number of lessons that can be drawn from the judgment of the appeal court. Three stand out:

1. FIFA and UEFA cannot evade the jurisdiction of EU courts. Indeed, if an EU competition law violation of their rules is invoked they can be brought before the jurisdictions of the Member States
2. Doyen messed up in its original court filing by failing to abide by the procedure enshrined in its own statutes. This has no dire consequences in the Belgium proceedings due to presence of Seraing, but it might be a different story before the Paris court, where Doyen stands alone and the same procedural irregularity is invoked by FIFA.
3. To FIFA’s great satisfaction, the case against the TPO ban is not deemed strong enough to allow for the adoption of provisory measures blocking its implementation. As pointed out in our previous blog (and here) EU competition law is not a golden bullet that can be invoked easily to strike down FIFA or UEFA regulations. There is a high justificatory burden and the claimants will face an uphill battle to demonstrate that the ban is disproportionate (especially in light of the broad support for the ban amongst many key stakeholders).

This was only a small skirmish in a long legal war still before us. It will not be definitely over until the CJEU decides the matter (in 2018 at the earliest) or Doyen bows out of the game in the face of the high legal fees incurred. What is already certain is that the way EU law applies to sport is not straightforward and does not entail an economic/neoliberal logic blindly favourable to an unrestricted freedom to invest.

[1] Cour d’appel Bruxelles, Doyen Sports et ASBL RFC Seraing United c. URBSFA, FIFA et UEFA, 2015/KR/54, 10 mars 2016.

[2] “Il est difficilement contestable qu’en empêchant les appelantes de poursuivre l’exécution de leur convention de collaboration et la conclusion de nouvelles conventions « TPO » ou « TPI » spécifiques à des joueurs, l’interdiction litigieuse produit des effets dommageables sur le territoire belge.” Ibid, para.50.

[3] “C’est également en vain qu’il est soutenu que la convention de collaboration litigieuse ne serait qu’un artifice destiné à saisir les juridictions belges. En effet, elle a connu une exécution par des payements de sommes de Doyen Sports à l’ASBL RFC Seraing et surtout, son existence a été invoquée par la FIFA pour mener des poursuites disciplinaires contre le club dirigé par l’ASBL RFC Seraing et lui infliger une sanction.” Ibid.

[4] “L’URBSFA et la FIFA se partagent donc un pouvoir réglementaire et de contrainte qui leur permet, à l’une et à l’autre, agissant ensemble ou séparément, d’adopter l’interdiction litigieuse, de la mettre en œuvre et de prendre une mesure ou une décision à caractère individuel de nature à empêcher, compromettre et/ou entraver l’exécution du contrat conclu entre les appelantes.” Ibid, para.57

[5] “Le pouvoir règlementaire autonome de l’URBSFA et son pouvoir d’action propre justifient sa présence dans la procédure, en même temps que la FIFA afin (i) d’obtenir l’empêchement d’agir de l’une et de l’autre ; (ii) de priver chacune d’elles de la possibilité de contester l’opposabilité d’une décision judiciaire qui serait rendue dans une cause à laquelle elle serait demeurée étrangère et enfin (iii) d’empêcher la FIFA de contourner une interdiction qui serait prononcée à son encontre en recourant au pouvoir réglementaire de l’URBSFA.” Ibid.

[6] “Si les appelantes étaient dans l’obligation d’attraire la FIFA devant les juridictions suisses tout en citant l’URBSFA devant les juridictions belges, cette situation serait susceptible de conduire à des solutions inconciliables […]”, ibid. para.58.

[7] “En ce qui concerne l’UEFA, la connexité existe également. En effet, si elle n’est pas l’auteur des dispositions réglementaires et si elle n’est pas intervenue comme soutien dans l’exercice de poursuites disciplinaires menées contre le RFC SERAING, elle impose aux clubs qui doivent obtenir une licence pour participer aux compétitions qu’elle organise, de se plier aux statuts et aux règlements de la FIFA et à l’interdiction en cause.” Ibid., para.59.

[8] The same solution was adopted in 2012 by the French Cour de Cassation (Highest French Civil Court) in a dispute opposing the French agent Piau to FIFA. See Cour de cassation, civile, Chambre civile 1, 1 février 2012, publié au bulletin.

[9] This solution was also adopted by the OLG in the Pechstein ruling, see Oberlandesgericht München, 15 January 2015, Az. U 1110/14 Kart, para.A.I.1.a)aa) and bb).

[10] « L’urgence est établie. L’ASBL RFC Seraing est sous le coup d’une sanction disciplinaire dont seule l’exécution a été suspendue et elle est susceptible d’encourir de nouvelles poursuites et sanctions pour le cas où elle conclurait de nouvelles conventions TPO/TPI avec Doyen Sports ou toute autre société menant des activités de financement similaires.” Cour d’appel Bruxelles, Doyen Sports et ASBL RFC Seraing United c. URBSFA, FIFA et UEFA, 2015/KR/54, 10 mars 2016, para.78.

[11] « Ensuite, il n’est pas douteux que l’interdiction de poursuivre la convention de collaboration du 30 janvier 2015 et de conclure de nouvelles conventions TPO/TPI la prive d’une source de financement, sans qu’il soit démontré par les intimées qu’elle pourrait lui trouver un substitut adéquat par des emprunts classiques auprès de tiers.”Ibid.

[12] « D’un côté, il faut constater que :
- la Commission paraît s’être orientée vers la condamnation de la TPO;
- la FIPpro y est clairement opposée et invoque à cette fin des valeurs essentielles;
- l’interdiction est le résultat d’une réflexion collective à laquelle ont participé de nombreux interlocuteurs - et non pas seulement l’UEFA ou certains de ses membres - et elle est l’aboutissement de plusieurs constats que relève le premier juge dans son ordonnance : opacité, absence de contrôle des instances dirigeantes, importance du phénomène puisqu’il concerne le marché mondial, environnement ouvert à la corruption et aux pratiques frauduleuses, importance des sommes en jeu, etc...” Ibid, para.81.

[13] « De l’autre, de sérieuses réserves sont émises à propos de la légalité de l’interdiction de la TPO/TPI (voir ainsi l’article de J.M. MARMAYOU, « La compatibilité du nouveau règlement FIFA sur les intermédiaires avec le droit européen » Les cahiers de droit du sport, 2015, p. 15, pièce 38bis des appelantes).” Ibid.

[14] « Il est patent qu’un examen en apparence ne permet pas de conclure, avec la force nécessaire, que l’interdiction porte atteinte aux règles de la concurrence.” Ibid, para.82.