Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

(A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

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. More...


(A)Political Games: A Critical History of Rule 50 of the Olympic Charter - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

Since its inception, the Olympic Movement, and in particular the IOC, has tirelessly endeavored to create a clean bubble around sport events, protecting its hallowed grounds from any perceived impurities. Some of these perceived ‘contaminants’ have eventually been accepted as a necessary part of sport over time (e.g. professionalism in sport),[1] while others are still strictly shunned (e.g. political protest and manifestations) and new ones have gained importance over the years (e.g. protection of intellectual property rights). The IOC has adopted a variety of legal mechanisms and measures to defend this sanitized space.  For instance, the IOC has led massive efforts to protect its and its partners’ intellectual property rights through campaigns against ambush marketing (e.g. ‘clean venues’ and minimizing the athletes’ ability to represent their personal sponsors[2]). Nowadays, the idea of the clean bubble is further reinforced through the colossal security operations created to protect the Olympic sites.

Nevertheless, politics, and in particular political protest, has long been regarded as one of the greatest threats to this sanitized space. More recently, politics has resurfaced in the context of the IOC Athletes’ Commission Rule 50 Guidelines. Although Rule 50 is nothing new, the Guidelines stirred considerable criticism, to which Richard Pound personally responded, arguing that Rule 50 is a rule encouraging ‘mutual respect’ through ‘restraint’ with the aim of using sport ‘to bring people together’.[3] In this regard, the Olympic Charter aims to avoid ‘vengeance, especially misguided vengeance’. These statements seem to endorse a view that one’s expression of their political beliefs at the Games is something that will inherently divide people and damage ‘mutual respect’. Thus, the question naturally arises: can the world only get along if ‘politics, religion, race and sexual orientation are set aside’?[4] Should one’s politics, personal belief and identity be considered so unholy that they must be left at the doorstep of the Games in the name of depoliticization and of the protection of the Games’ sanitized bubble? Moreover, is it even possible to separate politics and sport?  

Even Richard Pound would likely agree that politics and sport are at least to a certain degree bound to be intermingled.[5] However, numerous commentators have gone further and expressed their skepticism to the view that athletes should be limited in their freedom of expression during the Games (see here, here and here). Overall, the arguments made by these commentators have pointed out the hypocrisy that while the Games are bathed in politics, athletes – though without their labor there would be no Games – are severely restrained in expressing their own political beliefs. Additionally, they often bring attention to how some of the most iconic moments in the Games history are those where athletes took a stand on a political issue, often stirring significant controversy at the time. Nevertheless, what has not been fully explored is the relationship between the Olympic Games and politics in terms of the divide between the ideals of international unity enshrined in the Olympic Charter and on the other hand the de facto embrace of country versus country competition in the Olympic Games. While the Olympic Charter frames the Games as ‘competitions between athletes in individual or team events and not between countries’, the reality is far from this ideal.[6] Sport nationalism in this context can be considered as a form of politics because a country’s opportunity to host and perform well at the Games is frequently used to validate its global prowess and stature.

To explore this issue, this first blog will first take a historical approach by investigating the origins of political neutrality in sport followed by an examination of the clash between the ideal of political neutrality and the reality that politics permeate many facets of the Olympic Games. It will be argued that overall there has been a failure to separate politics and the Games but that this failure was inevitable and should not be automatically viewed negatively. The second blog will then dive into the Olympic Charter’s legal mechanisms that attempt to enforce political neutrality and minimize sport nationalism, which also is a form of politics. It will attempt to compare and contrast the IOC’s approach to political expression when exercised by the athletes with its treatment of widespread sport nationalism.More...

International and European Sports Law – Monthly Report – January 2020 - By Thomas Terraz

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

 

The Headlines

IOC Athlete Commission releases its Rule 50 Guidelines for Tokyo 2020

The IOC Athlete Commission presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive Board. It comes as Thomas Bach had recently underlined the importance of political neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of the Olympic Charter prohibits any political and religious expression by athletes and their team during the Games, subject to certain exceptions. The Guidelines clarify that this includes the ‘field of play’, anywhere inside the Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening, Closing and other official ceremonies’. On the other hand, athletes may express their views ‘during press conferences and interview’, ‘at team meetings’ and ‘on digital or traditional media, or on other platforms. While rule 50 is nothing new, the Guidelines have reignited a debate on whether it could be considered as a justified restriction on one’s freedom of expression.

 

The IOC has made the case that it is defending the neutrality of sport and that the Olympics is an international forum that should help bring people together instead of focusing on divisions. Specifically, Richard Pound has recently made the argument that the Guidelines have been formulated by the athletes themselves and are a justified restriction on free expression with its basis in ‘mutual respect’. However, many commentators have expressed their skepticism to this view (see here, here and here) citing that politics and the Olympics are inherently mixed, that the IOC is heavily involved in politics, and that the Olympics has often served as the grounds for some of history’s most iconic political protests. All in all, the Guidelines have certainly been a catalyst for a discussion on the extent to which the Olympics can be considered neutral. It also further highlights a divide between athlete committees from within the Olympic Movement structures and other independent athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).

 

Doping and Corruption Allegations in Weightlifting 

The International Weightlifting Federation (IWF) has found itself embroiled in a doping and corruption scandal after an ARD documentary was aired early in January which raised a wide array of allegations, including against the President of the IWF, Tamás Aján. The documentary also included hidden camera interviews from a Thai Olympic medalist who admits having taken anabolic steroids before having won a bronze medal at the 2012 London Olympic Games and from a team doctor from the Moldovan national team who describes paying for clean doping tests. The IWF’s initial reaction to the documentary was hostile, describing the allegations as ‘insinuations, unfounded accusations and distorted information’ and ‘categorically denies the unsubstantiated’ accusations. It further claims that it has ‘immediately acted’ concerning the situation with the Thai athletes, and WADA has stated that it will follow up with the concerned actors. However, as the matter gained further attention in the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual Papandrea, IWF Vice President, while ‘independent experts’ will conduct a review of the allegations made in the ARD documentary. Richard McLaren has been announced to lead the investigation and ‘is empowered to take whatever measures he sees fit to ensure each and every allegation is fully investigated and reported’. The IWF has also stated that it will open a whistleblower line to help aid the investigation.More...


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

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1        Introduction

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

I’m A Loser Baby, So Let’s Kill Transparency – Recent Changes to the Olympic Games Host City Selection Process - By Ryan Gauthier (Thompson Rivers University)

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.


Big June 2019 for Olympic Hosting

On June 24, 2019, the International Olympic Committee (IOC) selected Milano-Cortina to host the 2026 Winter Olympic Games. Milano-Cortina’s victory came despite a declaration that the bid was “dead” just months prior when the Italian government refused to support the bid. Things looked even more dire for the Italians when 2006 Winter Games host Turin balked at a three-city host proposal. But, when the bid was presented to the members of the IOC Session, it was selected over Stockholm-Åre by 47 votes to 34. 

Just two days later, the IOC killed the host selection process as we know it. The IOC did this by amending two sections of the Olympic Charter in two key ways. First, the IOC amended Rule 33.2, eliminating the requirement that the Games be selected by an election seven years prior to the Games. While an election by the IOC Session is still required, the seven-years-out requirement is gone.

Second, the IOC amended Rule 32.2 to allow for a broader scope of hosts to be selected for the Olympic Games. Prior to the amendment, only cities could host the Games, with the odd event being held in another location. Now, while cities are the hosts “in principle”, the IOC had made it so: “where deemed appropriate, the IOC may elect several cities, or other entities, such as regions, states or countries, as host of the Olympic Games.”

The change to rule 33.2 risks undoing the public host selection process. The prior process included bids (generally publicly available), evaluation committee reports, and other mechanisms to make the bidding process transparent. Now, it is entirely possible that the IOC may pre-select a host, and present just that host to the IOC for an up-or-down vote. This vote may be seven years out from the Games, ten years out, or two years out. More...


New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)


Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part I: IOC and UEFA – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.


It has been more than seven years since the FIFA Executive Committee awarded the 2022 World Cup to Qatar. And yet only in November 2017 did the Qatari government finally agree to dismantle the controversial kafala system, described by many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant workers have reportedly been exposed to a wide range of abusive practices such as false promises about the pay, passport confiscation, or appalling working and living conditions.[1] On top of that, some workers have paid the highest price – their life. To a certain extent, all this could have been avoided if human rights had been taken into account when evaluating the Qatari bid to host the tournament. In such a case, Qatar would not have won the bidding contest without providing a convincing explanation of how it intends to ensure that the country's poor human rights record will not affect individuals, including migrant workers, contributing to the delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an integral part of the bid.

Urged by Professor John Ruggie and his authoritative recommendations,[2] in October 2017 FIFA decided to include human rights within the criteria for evaluating bids to host the 2026 World Cup, following similar steps taken earlier this year by the International Olympic Committee (IOC) and UEFA in the context of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part blog critically examines the role human rights play in the new bidding regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on the IOC and UEFA. The second part then takes a closer look at FIFA and aims to use a comparative analysis to determine whether the new bidding regulations are robust enough to ensure that selected candidates abide by international human rights standards.More...


International and European Sports Law – Monthly Report – September 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

The Olympic Games and Human Rights – Part II: Human Rights Obligations Added to the Host City Contract: Turning Point or Empty Promise? – By Tomáš Grell


This is a follow-up contribution to my previous blog on human rights implications of the Olympic Games published last week. Together with highlighting some of the most serious Olympic Games-related human rights abuses, the first part has outlined the key elements of the Host City Contract ('HCC') as one of the main legal instruments regulating the execution of the Olympic Games. It has also indicated that, in February 2017, the International Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights obligations. Without questioning the potential significance of inserting human rights obligations to the 2024 HCC, this second part will refer to a number of outstanding issues requiring clarification in order to ensure that these newly-added human rights obligations are translated from paper to actual practice. More...


The Olympic Games and Human Rights – Part I: Introduction to the Host City Contract – By Tomáš Grell

Editor’s note: Tomáš Grell is currently an LL.M. student in Public International Law at Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a part-time intern.


In its press release of 28 February 2017, the International Olympic Committee ('IOC') communicated that, as part of the implementation of Olympic Agenda 2020 ('Agenda 2020'), it is making specific changes to the 2024 Host City Contract with regard to human rights, anti-corruption and sustainable development. On this occasion, IOC President Thomas Bach stated that ''this latest step is another reflection of the IOC's commitment to embedding the fundamental values of Olympism in all aspects of the Olympic Games''. Although the Host City of the 2024 Summer Olympic Games is scheduled to be announced only in September this year, it is now clear that, be it either Los Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human rights obligations.

This two-part blog will take a closer look at the execution of the Olympic Games from a human rights perspective. The first part will address the most serious human rights abuses that reportedly took place in connection with some of the previous editions of the Olympic Games. It will also outline the key characteristics of the Host City Contract ('HCC') as one of the main legal instruments relating to the execution of the Olympic Games. The second part will shed light on the human rights provisions that have been recently added to the 2024 HCC and it will seek to examine how, if at all, these newly-added human rights obligations could be reflected in practice. For the sake of clarity, it should be noted that the present blog will not focus on the provisions concerning anti-corruption that have been introduced to the 2024 HCC together with the abovementioned human rights provisions. More...



Asser International Sports Law Blog | FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München. By Marine Montejo

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München. By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 3 June 2016, the Landgericht München (“Munich Regional Court”) ordered temporary injunctions against the International Basketball Federation (“FIBA”) and FIBA Europe, prohibiting them from sanctioning clubs who want to participate in competitions organized by Euroleague Commercial Assets (“ECA”). The reasoning of the Court is based on breaches of German and EU competition law provisions. FIBA and FIBA Europe are, according to the judge, abusing their dominant position by excluding or threatening to exclude national teams from their international competitions because of the participation of their clubs in the Euroleague. This decision is the first judicial step taken in the ongoing legal battle between FIBA and ECA over the organization of European basketball competitions.

This judgment raises several interesting points with regard to how the national judge deals with the alleged abuse of a dominant position by European and international federations. A few questions arise regarding the competence of the Munich Regional Court that may be interesting to first look at in the wake of an appeal before examining the substance of the case. 


1. FIBA Europe/FIBA vs Euroleague: the dispute’s background

FIBA and FIBA Europe are involved in a bitter struggle with ECA for the control of the European basketball competitions. The dispute commenced with FIBA Europe (fully supported by FIBA) announcing the creation of a Basketball Champions League starting from the 2016-2017 season at the end of last year. Through the new “official” competition, FIBA intends to reinstate its hold over the organization of European championships. Back in 2001, ECA took over the organization of the European professional clubs’ competition after a harsh row with FIBA. FIBA did not trademark the name “Euroleague”, leaving the organisation without any legal avenues to prevent its use elsewhere. It battled for a year with ECA but finally left the organisation of those competitions to ECA in order to promote uniformity at that level of competition. Since then, Euroleague and Eurocup, the continent’s top two clubs’ competitions, are overseen by ECA, a commercial private body owned by the clubs participating in those tournaments. The status quo has now been challenged by the creation of a FIBA rival competition and the newly created fracture in European professional basketball is showing no signs of letting up, risking the possibility of having two continental leagues in competition with each other as of next season. In response to the creation of the FIBA Champions League, ECA announced its intention not only to maintain its competitions but to evolve toward a closed, franchise-based league. In retaliation, FIBA Europe (publicly backed by FIBA) put pressure on national federations by threatening to withdraw their rights to participate in its international competitions, including EuroBasket 2017, if they would continue allowing their clubs to participate in the ECA competitions (Euroleague and Eurocup). FIBA’s position, in that FIBA Executive Committee decided to fully support FIBA Europe’s decision, has also raised concerns surrounding possible sanctions on national teams for the 2016 Rio Olympic Games.  

At this point the dispute moved away from the basketball court to the legal field. The first shoot out occurred in relation to the Euroleague which, in February, filed a complaint before the European Competition against FIBA for alleged abuses of their dominant position (art. 102 TFEU) by threatening national federations to force their professional clubs and leagues to rescind their participation in the Euroleague competitions. From its back court, FIBA caught the ball and, in April, filed a complaint against FIBA Executive Committee decided to fully support FIBA Europe’s decision. FIBA Executive Committee decided to fully support FIBA Europe’s decision. FIBA Executive Committee decided to fully support FIBA Europe’s decision. ECA before the same EU Commission for the same breaches of EU competition law provisions. Possibly for the first time in EU competition law, we have two undertakings filing two different complaints against the same parties for the same alleged breaches of article 102 TFEU. DG COMP, now in the place of a referee, has to decide whether it will open an investigation into the matter and if it so decides, it probably will have to open two procedures (or at least join both of them). 

 

2. The procedure and the jurisdiction of the Munich Regional Court 

One could think that it was a tight game in the hands of the Commission, but Euroleague, along with 12 professional basketball clubs, decided to spin dribble and scored a buzzer-beater by asking for preliminary injunctions before the Landgericht München. Preliminary injunctions (einstweilige Verfüngung) are interim remedies, provided by the German Code of Civil Procedure, for exceptional cases in civil and commercial matters. They are granted to secure the enforcement of a final judgement that may be endangered before the rights of the parties have been finally determined. Where the case is urgent, the Court is allowed to make a decision ex parte, namely without giving the respondent an opportunity to be heard and without an oral hearing. In the decision, the judge referred to the provision on urgency (section 937(2) of the Code of Civil Procedure) which implies that he felt the pressure of the run-up to the 2016 Rio Olympic Games and the 2016 Basketball Qualifying Tournament scheduled to take place at the beginning of July. Moreover, in its press release following the judgement, FIBA regretted that it was not invited, along with FIBA Europe, to present their views which tends to confirm that, in this case, the conditions for urgency were met and that both the international and European federations were ex parte in the dispute. 

The territorial jurisdiction of the Munich Regional Court is not of concern for FIBA Europe as it is seated in the same city. However, for FIBA, situated in Mies, Switzerland, the question should be addressed. The Court retained its competence from the Lugano Convention of 2007 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters to which Germany and Switzerland have signed. It then states that “pursuant to article 6(1) (of the) Lugano Convention, in proceedings against a number of defendants that involve the same matter and that it is expedient to hear together in order to avoid irreconcilable judgments, the proceedings may be heard in the place where one of the defendants is domiciled. In this case, this is Munich”. The Court may be too straightforward in establishing its competence.  

The clause on competence enshrined in Article 6(1) provides that “a person (…) may 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 legal concept for a national court to derive its competence from the Lugano Convention is whether the claims are so closely connected that a person/entity based in another State (in this case FIBA, Switzerland) may be subject to its scrutiny along with the others defendants (in this case FIBA Europe, Germany). In its decision, the Court enclosed three documents transmitted by the appellants through which the Slovenian, Italian and Hellenic national basketball federations were warned about potential sanctions they were facing due to the actions of their clubs entering into an agreement with ECA. These documents were signed by Kamil Novak, FIBA Europe Executive Director, and referred to FIBA Europe’s Board decision to ban national federations from participating in Senior men’s national team competitions organised by FIBA Europe because their clubs appear to be taking part in ECA competitions. These assumptions were based on press statements about their intention to take part in ECA competitions. The letters are only of relevance to FIBA insofar as a copy of the so-called letter was sent to the international federation. It takes a stretch of the imagination to consider, from these documents only, that the claim against FIBA is closely connected to the one against FIBA Europe.

Moreover, article 2(1) of the Convention provides that “persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the Court of that States”. FIBA could argue that this is the case of Swiss Courts. A number of exceptions exist to this general provision. Under article 5(3) “a person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued (…) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”. In that case, FIBA could be sued in Germany because its decisions may have an effect on German basketball clubs. Unluckily, none of the applicants are German basketball clubs which, again, put the competence of the Munich Regional Court into perspective as, in the case of FIBA, there is no harmful effect yet.

In order to justify the competence of the Munich Court, it may be easier to rely on article 6(1) of the Convention, referred to above. In case C-352/13, Cartel Damage Claims (CDC) Hydrogen Peroxide SA, on the interpretation of article 6(1) of Regulation 44/2001, the wording of which is identical to that of Article 6(1) of the Lugano Convention, the Court states that “it is necessary to ascertain whether, between various claims brought by the same applicant against various defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (…) In that regard, in order for judgments to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of fact and law” (p. 20). It is true that FIBA publicly backed FIBA Europe when it threatened to extend the ban to its competitions and participation in the Olympic Games) and that the claim before the European Commission was filed by both international and European federations. It seems that the requirement that the same situation of fact and law must arise is satisfied in those circumstances. Moreover, and the judge refers to it, under FIBA’s General Statutes, national federations have the obligation to ensure that their clubs, leagues and players participate only in official international activities and competitions (art. 9.1) upon the risk of sanctions in the event of non-compliance (art. 12). In that case, and as is often the case for sports governing bodies, national basketball federations must implement the rules and decisions from FIBA and FIBA Europe which confirms that there is a connection between the two entities on this particular case and that the Munich Regional Court is presumably competent; even if, in this case, a more in-depth analysis on the rule of jurisdiction would have been welcome. 

 

3. Is FIBA Europe abusing its dominant position? 

Given that the Munich Regional Court held that it was competent, it granted preliminary injunctions to FIBA on the ground of an abuse of a dominant position under EU law (art 102 TFEU) and under the corresponding provisions in German law.  

The Court defined two markets where FIBA and FIBA Europe each hold a dominant position. FIBA is dominant on the market for “competitions of the national team”. That dominant position relies, according to the judge, on article 1(2) of FIBA’s Statutes providing that “FIBA is the sole competent authority for basketball throughout the world and is recognised as such by the International Olympic Committee”. A broader market definition for FIBA, as a worldwide basketball regulator, would be the market for basketball competitions. It is not contested that international federations hold a dominant position at the top of a sports organisation nor that they regulate all matters related to their sports with other (continental and national) federations and bodies at lower levels. This position is then secure by the principle of solidarity which, in the case of basketball, can be found in article 1(4), which provides that “all bodies and officials of FIBA must observe the General Statutes, Internal Regulations, other rules and regulations, and decisions of FIBA”, and article 9, which lists the obligations of members. That principle is reinforced with a mechanism of sanctions (articles 10, 11 and 12). However, the market may appear too broad. A narrower market may be the market for international basketball competitions of the national teams excluding continental competitions. This market would specifically target the mission of FIBA as an international competitions organizer for basketball. In particular, FIBA is responsible for the organisation of the FIBA Basketball World Cup and the FIBA Olympic Qualifying Tournament, with both competitions determining which teams will participate in the Olympic Games. While defining a market for “competitions of the national teams”, the judge targeted both of the markets where FIBA holds a dominant position. For FIBA Europe, the judge defined a market for “European competitions of the national teams”. This market covers FIBA Europe’s mission to organise the EuroBasket. The alleged excluding practices are related to the participation in European and international competitions of the national teams, so it seems that both narrower markets are relevant in the case where FIBA and FIBA Europe hold dominant positions.

While defining the relevant markets, the judge only targets competitions for national teams. Does the same still apply for club competitions? The core problem of the dispute is about the organisation of basketball professional club’s European competitions. If one would define a market for the professional basketball clubs’ European competitions that market may exists and ECA, as the sole organiser of Euroleague and Eurocup, is in a dominant position. The creation of the Basketball Champions League is an attempt from FIBA and FIBA Europe to enter that market and challenge that dominant position.  

Holding a dominant position on a market is not contrary to EU competition law provisions, but rather it is the abuse of that dominant position that needs to be examined. In the case of FIBA, the judge considers article 9(1) of FIBA Statutes regarding the obligations of the members, i.e., national federations. Under provision (d), “national member federations must (…) ensure at all times that their leagues, clubs, players and officials participate only in international activities and competitions officially recognised by the respective national member federations and by FIBA”. FIBA Europe sent a letter to three national federations advising them that their right to participate in Eurobasket 2017 had been withdrawn because some of their professional clubs chose to compete in the Euroleague 2016/2017. A copy of this letter was transmitted to FIBA, “which is competent to take any decisions it deems necessary regarding worldwide events”. From these letters, it is clear that FIBA and FIBA Europe used or will use their regulatory power to sanction national federations for a breach of their solidarity obligations. By doing so, national federations are excluded from all European and international competitions. Moreover, the pressure on national federations will probably lead to the exclusion of ECA from the market for professional basketball clubs’ European competitions as none of the clubs will be able to participate in the Euroleague. In that case, article 9(1) can rightly be qualified as an exclusivity clause that leads to an exclusionary abuse by dominant undertakings, and the judge is rightly assessing the situation, FIBA is abusing its dominant position by threatening to exclude national basketball teams from the 2016 Olympic qualifying tournament and, by extension, the 2016 Olympic Games. FIBA Europe is also abusing its dominant position by, in its case, excluding national basketball teams from the Eurobasket 2017. The fact that FIBA/FIBA Europe are creating a new European competition for clubs has nothing to do with their dominance; rather, a competition problem occurs when they use their power to sanction national federations by pressuring them to force their clubs to participate in the “official” competition. Similar situations are arising where international federations are fighting the emergence of “unsanctioned” private leagues by using their sanction powers. The Belgian competition authority already granted interim measures to the Longines Champions League in a dispute where the FEI tried to suspend riders and horses that were participating in the competition. A similar case involving ISU and suspended ice speed skaters is pending before the European Commission.  

Nonetheless, the German Court goes on to mention possible justifications to FIBA/FIBA Europe’s behaviour pertaining to article 101 TFEU. This is rather surprising, even though such a stance is permissible, after it just concluded there had been a breach of article 102 TFEU. If article 101 was to be applied, it could be argued that the fact that FIBA Europe and FIBA are excluding national federations constitutes concerted practices leading to restrictions upon competition on the market for professional basketball clubs’ European competitions. In that case, the analysis could move to article 101§3 and examine proportionate justifications. The judge seems sensible that the outcome of FIBA and FIBA Europe’s practices cannot lead to anything other than undermining the viability of Euroleague competitions by preventing clubs to participate. It does not appear, as such, as a proportionate justification.

However, the judge may, again, be too straightforward in his application of articles 101 and 102 TFEU. FIBA and FIBA Europe may argue that there are justifications for using their sanctions power. The Court of Justice already held that not every sporting rule that is capable of restricting competition infringes articles 101 and 102 TFEU (C-519/04, Meca Medina). In that case, in assessing the compatibility of the obligation for national basketball federations to force their professional clubs to take part in the Basketball Champions League upon sanction by the international and European federations, the judge must take into account the Wouters criteria (C-309/99): (i) the objectives of FIBA and FIBA Europe measure; (ii) whether the consequential effects that restrict competition are inherent in the pursuit of those objectives; and (iii) whether they are proportionate to them. As seen before, the pressure on national federations will probably have an adverse effect on competition, making it impossible for ECA to organise a viable competition as no professional clubs will take part (this doesn’t take into account the third factor – that professional clubs do not have any interest in European and international competitions, and that they are probably better off keeping their players). Nonetheless, FIBA may bring previous case law and article 165 TFEU to the dispute and argue that there is no breach of EU competition law in the sense that restrictive effects on competition are, in this case, inherent and necessary to the organisation of basketball. The specificity of sports organisations, the solidarity mechanisms between different levels of competition and the pyramidal structures have already been recognised. FIBA Europe and FIBA are, here, making sure that national federations comply with article 9(1) of the FIBA Statutes and that professional clubs will participate in its European competitions. FIBA is then meant, as the sole legitimate basketball authority, to apply sanctions if its members do not comply with their obligations. All the reasoning will focus on proving that these effects are proportionate to the legitimate genuine sporting interest pursued. The impact of FIBA Europe’s decision (and FIBA potential decision) is really important, and, it is readily apparent that FIBA should not focus on its commercial exploitation of the Basketball Champions League competition as it has already been decided that rules prohibiting clubs or athletes from participating in competitions other than those organised by sports federations under the threat of penalties do not comply with EU competition law provisions (see for example the FIA Commission decision, IP/01/1523). On the other hand, the Lethonen case on transfer periods (C-176/96) may be useful as a rule whose objective is to ensure the regularity of competitions (competitive balance, functioning of the championships and effective calendar) is more likely to comply with articles 101 and 102 TFEU. Those are just possible justifications and there is sufficient flexibility in articles 101 and 102 TFEU for FIBA and FIBA Europe to justify more proactive behaviours under EU competition law.  

The German judge also disregarded possible objective justifications under article 102 TFEU. In that case, again, the monopolistic pyramid structure of sport may be taken into account.  

The judge goes on to say that FIBA must await the outcome of antitrust proceedings before the Europe Commission regarding whether ECA is also abusing its dominant position. This is, again, really surprising for two reasons. On one hand, the judge does not tackle the behaviour of ECA in his decision. As discussed, ECA enjoyed a monopoly over the organisation of European competitions that FIBA and FIBA Europe wanted to challenge by creating the Basketball Champions League. In that dispute, ECA is also using its monopoly position toward professional clubs and national leagues to consolidate its organisation. On the other hand, filing a complaint before the European Commission does not presume that DG Competition will open an investigation on the matter. DG COMP enjoys a broad discretion with regard to opening an investigation based on the complaint. What will happen to FIBA if the Commission decides to reject the complaint without analysing its substance? Moreover, an in-depth investigation is a (very) long procedure that can take years before the Commission issues a decision. The German judge is putting FIBA and FIBA Europe under a lot of legal uncertainty and, while protecting the rights of Euroleague, threatened the viability of the European Basketball League if, in the end, ECA is also abusing its dominant position. This is probably the most questionable point in this judgement. 

Finally, the judge finds that “the entitlement to take part in Olympic Games should be decided for sports reasons. The decision of certain clubs to take part in a certain club competition has, in terms of sport, nothing whatsoever to do with a national team’s participation in international competitions”. Putting aside the fact that national teams are composed of athletes coming from those clubs and the controversies that already exist about the release of players, it is difficult to understand what the judge meant by this. FIBA is recognised by the IOC as the sole worldwide competent authority for basketball. As such, national federations must respect the rules FIBA sets in order to qualify for the Olympics. Regardless of the contested practices at stakes, FIBA has the power to sanction a federation if the latter does not comply with its regulations and the participation in its competition may be one of the sanctions it can impose.  

As a conclusion, it may be recalled that this judgement is provisional and probably the first of a long series. FIBA has already announced its intention to appeal the judgement, highlighting the fact that the contested sanctions were already withdrawn by FIBA Europe’s Board a few days before the Munich Regional Court released its decision and ECA’s position hasn’t properly been assessed. However, these circumstances and facts should not obfuscate the key legal question here – namely, the assessment under EU competition law of the use by international federation of its regulatory powers to stop the emergence of unsanctioned competitions.


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