Asser International Sports Law Blog

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

[New Publication] - The European Roots of the Lex Sportiva: How Europe Rules Global Sport - Antoine Duval , Alexander Krüger and Johan Lindholm (eds) - Open Access

Dear readers, 


I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing. 



You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473


Abstract

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.


Table of contents

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva 

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger


[Online Event] The ECtHR's  Semenya  ruling: A human rights game-changer for the transnational governance of sport? - 13 October 2023

During the 2023/2024 academic year, the Asser International Sports Law Centre will dedicate special attention to the intersection between transnational sports law and governance and gender. This online discussion is the first of a series of (online and offline) events which will explore the way in which international SGBs and the CAS define the gender divide in international sports, police gender-based abuses, and secure gender-specific rights to athletes.


Caster Semenya, a South-African runner and Olympic champion, was dominating her favorite distance, the 800m, for a number of years, when in 2018 the World Athletics (then known as IAAF) adopted a new set of regulations (colloquially known as the DSD Regulations), which imposed new conditions to the eligibility of athletes for certain female competitions, such as the 800m. Semenya, who has a condition known as differences in sex development (DSD), was forced to decide between subjecting to a specific medical treatment aimed at diminishing the level of testosterone in her body or stopping competing on her preferred distance. As she refused to undergo any medical treatment to regain eligibility, she decided to challenge the legality of World Athletics DSD Regulations before the CAS in Lausanne. While the CAS acknowledged that the Regulations were discriminatory and were disregarding the legal sex of Semenya in the name of a so-called sporting sex, the arbitrators also considered that this discrimination was justified and proportionate. Semenya’s challenge against the award was rejected by the Swiss Federal Tribunal (SFT) in August 2020. As a last resort, she decided to lodge an application with ECtHR against Switzerland.


On 11 July 2023, the ECtHR released its judgment in the much-awaited Caster Semenya v. Switzerland case. In short, the Strasbourg Court sided with Semenya and concluded that Switzerland failed to comply with its positive obligations stemming from the European Convention on Human Rights. The ruling is an important milestone in the interaction between the CAS and (European) human rights law. It will likely affect the place of human rights (and in particular the ECHR) at the CAS, the intensity of the supervision exercised by the SFT, as well as the justification of the regulatory decisions of the SGBs. We look forward to discussing these with our two speakers, who have followed closely the case and already blogged (here and here) about the judgment:


The online discussion will be introduced and moderated by Dr. Antoine Duval and Dr. Daniela Heerdt, and will include short presentations by the speakers and a Q&A with the audience.


Registration is available for free at: https://www.asser.nl/education-events/events/?id=4325

12th round of Caster Semenya’s legal fight: too close to call? - By Jeremy Abel

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

 

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations. More...


WISLaw Blog Symposium - Freedom of Expression in Article 10 of the ECHR and Rule 50 of the IOC Charter: Are these polar opposites? - By Nuray Ekşi

Editor's note: Prof. Dr. Ekşi is a full-time lecturer and chair of Department of Private International Law at Özyeğin University Faculty of Law. Prof. Ekşi is the founder and also editor in chief of the Istanbul Journal of Sports Law which has been in publication since 2019.


While Article 10 of the European Convention on Human Rights (‘ECHR’) secures the right to freedom of expression, Rule 50 of the Olympic Charter of 17 July 2020 (‘Olympic Charter’) restricts this freedom. Following the judgments of the European Court of Human Rights (‘ECtHR’) relating to sports, national and international sports federations have incorporated human rights-related provisions into their statutes and regulations. They also emphasized respect for human rights. For example, Article 3 of the Fédération Internationale de Football Association (‘FIFA’) Statutes, September 2020 edition, provides that “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights”. Likewise, the Fundamental Principles of Olympism which are listed after the Preamble of the of the Olympic Charter 2020 also contains human rights related provisions. Paragraph 4 of Fundamental Principles of Olympism provides that the practice of sport is a human right. Paragraph 6 forbids discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition, the International Olympic Committee (‘IOC’) inserted human rights obligations in the 2024 and 2028 Host City Contract.[1] The IOC Athletes’ Rights and Responsibilities Declaration even goes further and aspires to promote the ability and opportunity of athletes to practise sport and compete without being subject to discrimination. Fair and equal gender representation, privacy including protection of personal information, freedom of expression, due process including the right to a fair hearing within a reasonable time by an independent and impartial panel, the right to request a public hearing and the right to an effective remedy are the other human rights and principles stated in the IOC Athletes’ Rights and Responsibilities Declaration. Despite sports federations’ clear commitment to the protection of human rights, it is arguable that their statutes and regulations contain restrictions on athletes and sports governing bodies exercising their human rights during competitions or in the field. In this regard, particular attention should be given to the right to freedom of expression on which certain restrictions are imposed by the federations even if it done with good intentions and with the aim of raising awareness. More...


New Event! The Court of Arbitration for Sport at the European Court of Human Rights - Prof. Helen Keller - 26 May - 16:00

On Wednesday 26 May 2021 from 16.00-17.00 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fifth Zoom In webinar on the Court of Arbitration for Sport (CAS) from the perspective of the European Court of Human Rights (ECtHR).

We have the pleasure to be joined by Prof. Helen Keller, former Judge at the ECtHR and a prominent dissenter to the majority’s ruling in the Mutu and Pechstein case.

The ECtHR decision in the Mutu and Pechstein case rendered on 2 October 2018 is widely seen as one of the most important European sports law rulings. It was also the first decision of the Strasbourg court dealing with a case in which the CAS had issued an award. The applicants, Adrian Mutu and Claudia Pechstein, were both challenging the compatibility of CAS proceedings with the procedural rights enshrined in Article 6(1) of the European Convention on Human Rights (ECHR). The court famously declined to conclude that the CAS lacked independence or impartiality, but did find that, insofar as Claudia Pechstein was concerned, she was forced to undergo CAS arbitration and, therefore, that CAS proceedings had to fully comply with the procedural rights guaranteed in the ECHR. In particular, the court held that the refusal by CAS to hold a public hearing, in spite of Claudia Pechstein’s express request, was contrary to Article 6(1) ECHR. Beyond this case, as highlighted by the recent decision of Caster Semenya to submit an application to the ECtHR, the decision opens the way for a more systematic intervention of the Strasbourg court in assessing the human rights compatibility of CAS awards and more broadly of the transnational sports regulations imposed by international sports governing bodies.

Prof. Helen Keller will discuss with us the implications of the ECtHR’s Mutu and Pechstein decision and the potential for future interventions by the court in the realm of the lex sportiva.

The webinar will take the form of an interview followed by a short Q&A open to the digital public. 

Please note the discussion will NOT be recorded and posted on our Youtube channel. 

Register HERE!


The SFT’s Semenya Decision under European human rights standards: Conflicting considerations and why a recourse could be successful at Strasbourg - By Kevin Gerenni

Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.


Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.More...


The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

International and European Sports Law – Monthly Report – January 2018 - 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 

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

 

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

 

The CAS award in Joseph Odartei Lamptey v. FIFA 

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments.  More...


Asser International Sports Law Blog | From Lord of the Rings to Lord of the Drinks – A legal take on the downfall of Yuri van Gelder at the Rio Olympics. By Guido Hahn (Erasmus University Rotterdam)

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

From Lord of the Rings to Lord of the Drinks – A legal take on the downfall of Yuri van Gelder at the Rio Olympics. By Guido Hahn (Erasmus University Rotterdam)

Editor’s note: Guido graduated cum laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.


Introduction

This blog is a commentary on a recent case that hit like a bombshell in the Netherlands (and beyond) during the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC (NOC*NSF) after a night out in Rio and launched legal proceedings in front of a Dutch court to claim back his place in the finals. This commentary will attempt to explain the Dutch ruling and evaluate whether a different legal route would have been possible and preferable.

Yuri van Gelder is a Dutch gymnast, who is specialized in the rings. He became internationally known as ‘The Lord of the Rings’ after winning the gold medal at the World Championship in Melbourne in November 2005. After some setbacks in his career, he was not able to qualify for the 2008 Beijing Olympics. In 2009, during the Dutch Championships he was tested positive on the use of cocaine. He admitted that he had a drug problem and had been using cocaine for some years. He was suspended for a year by the Dutch Gymnastics Federation (KNGU), excluded from the 2012 London Olympics under the regulations of the IOC and even lost his job in the military. After winning the gold medal at a World league game in Gent on his comeback in 2010, he was taken off the team for the World Championships by the KNGU, claiming that he had used cocaine again.

In October 2011 the CAS found the IOC-rule that excluded athletes, who had been suspended for six months or longer, from future Olympic Games to be invalid and unenforceable. Van Gelder was therefore allowed to participate at the 2012 London Olympics, but again was not able to qualify, after failing to meet the required score at the World Championship in Tokyo at the end of 2011. From that moment on, the athlete decided to fully focus on the 2016 Rio Olympics, for which he eventually qualified. Like all other Dutch athletes who qualified and had been selected for the 2016 Rio Olympics, Van Gelder had to sign a so called ‘Athlete Agreement’ with NOC*NSF, which encapsulates the period of preparation before as well as the duration of the Games. At 33 years of age, these Olympics were his last chance to finally win that Olympic medal he so anxiously craved for.


Sent home from the Olympics

On Saturday 6 August in Rio, Van Gelder qualified for the individual finals on the rings, which were to take place nine days later, on 15 August. That same Saturday night he left the Olympic village and came back somewhere around 5 am. On Sunday he stayed in bed until approximately 3 pm, thereby missing a scheduled training session with the team. On Monday 8 August, the NOC*NSF, after hearing Van Gelder, disqualified him from further participation in the Games. That same day, an NOC*NSF employee was sent with the athlete to escort him to the airport from where he was flown back to the Netherlands. The NOC*NSF then removed Van Gelder from the finals through the International Gymnastics Federation (FIG), which appointed a replacement. A short press release by NOC*NSF stated that, in consultation with the KNGU, Van Gelder was sent home after the Federation had informed the NOC that he had come back to the village early in the morning, in spite of the team rules. It further stated that the athlete had admitted to the use of alcohol. This fueled speculation in the media, considering Van Gelder’s past. However, there was also criticism regarding the NOC*NSF’s decision, as many felt that it was disproportionate to disqualify an athlete, who had worked so hard to reach the finals, for celebrating one night out with still more than a week to go to those finals.

Van Gelder, now back in the Netherlands, took a lawyer and decided to start proceedings in front of the Dutch interlocutory judge of the Court of Gelderland (the Van Gelder Case). The oral proceedings, broadcasted live on Dutch television, took place on Friday 12 August, three days before the Olympic finals.


The ruling of the interlocutory Judge of Gelderland

Van Gelder’s lawyer requested from the court to order NOC*NSF to do everything in its power to make sure Van Gelder could participate in the individual finals on the rings on 15 August, including starting proceedings before the CAS Ad Hoc Division in Rio, or that NOC*NSF assist Van Gelder in starting proceedings for the CAS Ad Hoc Division and grant him a fee in advance for the costs.[1]

The court had to determine on which grounds the decision(s) to disqualify Van Gelder from participating in the Games had been taken and whether the severity of the measure(s) was proportionate in relation to the noncompliance with the obligations laid down in the Athlete Agreement. In doing so, the interlocutory judge applies a ‘marginal test’, which means he will keep certain deference towards the challenged decision and will consider only whether the decision ‘could reasonably have been made’.

The Athlete Agreement states that the athlete is expected to make every effort to ensure that he is capable of the maximum athletic performance, in preparation for and during the Olympics, and thereto devotes himself to the ‘Program’ completely and with optimal athletic effort.[2] Furthermore, the athlete is expected to behave as a good member of ‘TeamNL Rio 2016’ both during competition and elsewhere, having in mind the rules of the IOC Code of Ethics but not only.[3] If the athlete is not complying with the obligations as laid down in the Agreement, the NOC*NSF can decide to exclude the athlete from participating in the Games and/or impose a loss of (the right to) a medal bonus.[4] Before taking such a decision the athlete always needs to be heard/questioned.[5]

The court held for a fact that Van Gelder was told by his trainer through ‘WhatsApp’ not to stay out too late, that he should not drink and that he had to train the next day with the team.[6] However, the court was not convinced of Van Gelder’s noncompliance with the ‘behavioral rules’ enshrined in article 6, paragraph 4 of the Athlete Agreement. The Athlete Agreement or the IOC Code of Ethics do not define or specify clearly what these ‘behavioral rules’ stand for, even though the measures the NOC can take can severely affect the athlete. The court considers that these kind of behavioral rules should be drafted more precisely and should be communicated more clearly to the athletes. Thus, merely leaving the Olympic village without permission, drinking, and coming back early in the morning cannot be seen as violating article 6, paragraph 4 of the Agreement with the NOC.[7]

However, the fact that Van Gelder was warned and still went out drinking, came home early in the morning and missed a scheduled training, is undoubtedly coming short of the obligation laid down in article 6, paragraph 3 of the Athlete Agreement. This behavior is contrary to his duty to commit to the training and competition schedule.[8] Furthermore, the court continued, the athlete’s behavior undermined the team’s efforts and, considering Van Gelder’s past, this has resulted in a breach of trust with his trainer and with the NOC*NSF. Although it is possible that, based on this behavior, another NOC would have taken a different decision than kicking the athlete out of the Olympics, the court considers this irrelevant as it only applies a marginal test.[9] In addition, Van Gelder was questioned and heard twice before the decision was made. The decision therefore cannot be considered to have been made in haste or without proper deliberation.[10] In the end, the court determined that the NOC*NSF could reasonably decide that Van Gelder has committed a serious breach of his contractual duties under the Athlete Agreement. The same applied to the decision to disqualify Van Gelder from further participation in the Games.


A different legal route: The CAS Ad Hoc Division in Rio

Could Van Gelder, instead of going to the Dutch court, have taken a different strategic approach in this case? In the author’s opinion this would have been possible, as the CAS has (since the 1996 Atlanta Olympics) set up an Ad Hoc Division with the purpose of providing for arbitration of disputes, insofar as they arise during the Games, within 24 hours.[11] In the case of a request for arbitration against a decision by an NOC, the claimant must, before filing such a request, have exhausted all the internal remedies available to him pursuant to the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective.[12] In this case, the internal remedy can be found in the Athlete Agreement, which states that when a dispute arises between the parties during the Games concerning or related to the compliance of the Agreement, the concerned party informs the so-called ‘Chef de Mission’. If the Chef de Mission is incapable of resolving the dispute, it will be send to a committee of binding advisors.[13] This committee has jurisdiction in case of urgency and where the athlete and NOC*NSF both choose an advisor, both advisors in turn choose an independent chairman, after which the committee gives a binding decision to end the dispute.[14]

Why Van Gelder had not chosen to apply the internal dispute resolution procedure of article 22, paragraph 3 and 4 of the Athlete Agreement is not clear from the facts of the case. In that regard, the events of 8 August, when Van Gelder was questioned or heard, become (even more) important. The Dutch courts stated that Van Gelder was questioned twice by the NOC*NSF, but did not clarify what was discussed. The only sure thing is that directly after the decision by the NOC*NSF, Van Gelder was escorted to the airport and flew back to the Netherlands. Would he still have left the country if he had been informed that the Agreement provided for an internal procedure within NOC*NSF, aimed at resolving disputes during the Games, in which he had the right to appoint one of the binding advisors? If such a procedure would have taken place and Van Gelder would have lost, an appeal in front of CAS would still have been possible. Furthermore, would he have chosen to fly back, if he had been advised that the CAS Ad Hoc Division had jurisdiction in cases of urgency or if the NOC was unwilling or unable to trigger its internal procedure? Would he have made the same choices had he known that it would help his case before the CAS Ad Hoc Division if he had attended any hearing in person?

What is clear is that Van Gelder got legal representation when he was back in the Netherlands. At that point a flight back to Rio was rather costly for the athlete. An internal procedure with the NOC*NSF might have been impractical to carry out with eight days remaining to the final, but informing the NOC*NSF in writing that there was a dispute and requesting an internal procedure could have (regardless of the NOC’s reaction) helped to establish the jurisdiction of the CAS Ad Hoc Division if needed. This CAS Ad Hoc Division procedure could also have been started from the Netherlands.


Conclusion

The remaining unknown is whether the CAS Ad Hoc Division would have ruled in favor of Van Gelder and/or have granted him access to the finals. As the Dutch court stated, the Athlete Agreement is rather unclear with respect to the obligation of an athlete to act as a good team member. The CAS Ad Hoc Division might have taken this vagueness into consideration. Furthermore, the CAS Ad Hoc Division would not have applied the same level of deference as the Dutch court. It could have also taken into account the fact that the consequences of the decision of the NOC*NSF were very severe for the athlete, especially since this would be his last Games. Against all this, the fact would have remained that the behavior of the athlete did breach article 6, paragraph 3 of the Athlete Agreement and that a replacement for Van Gelder in the finals was already appointed. Yet, even if the CAS had invalidated the decision by the NOC without granting Van Gelder a place in the finals, he would have been in a good position to claim damages.

The conclusion that can be drawn from this episode is that Van Gelder could have followed a different legal route. This might have provided the athlete a better chance at winning his legal challenge and get back into the Olympics. The Dutch court has made it clear that it wants the ‘behavioral rules’ drafted by the NOC*NSF, or other sports bodies for that matter, to be more precise and better communicated to the athletes, especially when the measures at the disposal of the NOC can severely affect the rights of an athlete. Besides not drinking, going to bed on time, and never missing training a week before the most important finals of your life, there is another lesson to be learned from the case. As an athlete, when facing sanctions from a Federation, NOC or other SGBs, it is wise to get legal representation immediately. This might increase your chances of successfully challenging the decision and taking part in the Olympic Games or any other competition.



[1] Van Gelder Case, point 3.1.

[2] Article 6, paragraph 3, Athlete agreement. The Program is defined in the agreement as: The training and competition schedule for the Athlete, approved by the Federation after consultation with NOC*NSF, with the goal of qualifying for and participating in the Olympic Games.

[3] Article 6, paragraph 4, Athlete agreement. TeamNL Rio 2016 is defined in the agreement as: The group of both athletes and their trainers/coaches, that is participating in the Olympic Games (and with whom NOC*NSF has a written agreement for the Olympic Games Rio 2016) and that has asked for accreditation by OCOG through NOC*NSF.

[4] Article 20, paragraph 1, sub a and b, Athlete Agreement.

[5] Article 20, paragraph 2, Athlete Agreement.

[6] Van Gelder Case, point 4.3.

[7] Ibid, point 4.6.

[8] Ibid, point 4.7.

[9] Ibid, point 4.9.

[10] Ibid, point 4.10.

[11] See on the CAS Ad Hoc Division for example: C. Keidel and A. Engelhard,’The Legal Framework of the CAS Ad Hoc Division at the Rio Olympic Games’, LawInSport August 4 2016, via: http://www.lawinsport.com/articles/item/the-legal-framework-of-the-cas-ad-hoc-division-at-the-rio-olympic-games, viewed on the 24th of August 2016. And from the same authors: ‘Key Ad Hoc Division Cases handed down at the Olympic Games, LawInSport August 4 2016, via: http://www.lawinsport.com/articles/item/key-cas-ad-hoc-division-cases-handed-down-at-the-olympic-games, viewed on the 24th of August 2016.

[12] See Article 1 of the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games.

[13] Athlete agreement, Article 22, paragraph 4.

[14] Ibid, Article 22, paragraph 3.

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