Asser International Sports Law Blog

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

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

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

 

The Headlines

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

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

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

Sung Yang’s Historical Public Hearing at the CAS

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

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

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

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

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


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

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

 

1.     Introduction

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

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

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

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


The Headlines

International Sports Law Journal (ISLJ) Conference 2019

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

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

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

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

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

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

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

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


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

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

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

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

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

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

 

The Headlines

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

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

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

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

Legal Challenges Ahead to Changes to the FIFA Football Transfer Market

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

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

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

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

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

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

Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in International Law. In addition to research in human rights and feminist legal theory, she has also carried out some research in legal philosophy and on the relationship between gender and the law.

 

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626). More...

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

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


1.     Introduction

The organizational structure of sports in Europe is distinguished by its pyramid structure which is marked by an open promotion and relegation system. A truly closed system, without promotion and relegation, is unknown to Europe, while it is the main structure found in North American professional sports leagues such as the NFL, NBA and the NHL. Recently, top European football clubs along with certain members of UEFA have been debating different possibilities of introducing a more closed league system to European football. Some football clubs have even wielded the threat of forming an elite closed breakaway league. Piercing through these intimidations and rumors, the question of whether a closed league system could even survive the scrutiny of EU competition law remains. It could be argued that an agreement between clubs to create a completely closed league stifles competition and would most likely trigger the application of Article 101 and 102 TFEU.[1] Interestingly, a completely closed league franchise system has already permeated the European continent. As outlined in my previous blog, the League of Legends European Championship (LEC) is a European e-sports competition that has recently rebranded and restructured this year from an open promotion and relegation system to a completely closed franchise league to model its sister competition from North America, the League Championship Series. This case is an enticing opportunity to test how EU competition law could apply to such a competition structure.

As a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’ sport competition and makes the assumption that the LEC could be considered as a sports competition.[2]

More...



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

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


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

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

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

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

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

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

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

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

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

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...


International and European Sports Law – Monthly Report – April and May 2019. By Tomáš Grell

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

 

The Headlines 

Caster Semenya learns that it is not always easy for victims of discrimination to prevail in court

The world of sport held its breath as the Secretary General of the Court of Arbitration for Sport (CAS) Matthieu Reeb stood before the microphones on 1 May 2019 to announce the verdict reached by three arbitrators (one of them dissenting) in the landmark case involving the South African Olympic and world champion Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the conclusion that the IAAF’s regulations requiring female athletes with differences of sexual development to reduce their natural testosterone level below the limit of 5 nmol/L and maintain that reduced level for a continuous period of at least six months in order to be eligible to compete internationally at events between 400 metres and a mile, were necessary, reasonable and proportionate to attain the legitimate aim of ensuring fair competition in female athletics, even though the panel recognised that the regulations were clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For the time being, this appears to be a good move since the tribunal ordered the IAAF at the beginning of June to suspend the application of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run medication-free.

 

Champions League ban looms on Manchester City

On 18 May 2019, Manchester City completed a historic domestic treble after defeating Watford 6-0 in the FA Cup Final. And yet there is a good reason to believe that the club’s executives did not celebrate as much as they would under normal circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club Financial Control Body (CFCB) had decided to refer Manchester City’s case concerning allegations of financial fair play irregularities to the CFCB adjudicatory chamber for a final decision. Thus, the chief investigator most likely found that Manchester City had indeed misled UEFA over the real value of its sponsorship income from the state-owned airline Etihad and other companies based in Abu Dhabi, as the leaked internal emails and other documents published by the German magazine Der Spiegel suggested. The chief investigator is also thought to have recommended that a ban on participation in the Champions League for at least one season be imposed on the English club. The club’s representatives responded to the news with fury and disbelief, insisting that the CFCB investigatory chamber had failed to take into account a comprehensive body of irrefutable evidence it had been provided with. They eventually decided not to wait for the decision of the CFCB adjudicatory chamber, which is yet to be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.

 

The Brussels Court of Appeal dismisses Striani’s appeal on jurisdictional grounds

The player agent Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction to entertain his case targeting UEFA’s financial fair play regulations. On 11 April 2019, the respective court dismissed his appeal against the judgment of the first-instance court without pronouncing itself on the question of compatibility of UEFA’s financial fair play regulations with EU law. The court held that it was not competent to hear the case because the link between the regulations and their effect on Mr Striani as a player agent, as well as the link between the regulations and the role of the Royal Belgian Football Association in their adoption and enforcement, was too remote (for a more detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the European Court of Justice and the European Commission as both these institutions had likewise rejected to assess the case on its merits in the past.

 

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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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