Editor’s note: Professor Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts. Professor Mitten is a member of the Court of Arbitration for Sport (CAS), and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi, Russia.

This Book Review is published at 26 Marquette Sports Law Review 247 (2015).

This comprehensive treatise of more than 700 pages on the Code of the Court of Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful to a wide audience, including attorneys representing parties before the CAS, CAS arbitrators, and sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars.  It also should be of interest to national court judges and their law clerks because it facilitates their understanding of the CAS arbitration process for resolving Olympic and international sports disputes and demonstrates that the Code provides procedural fairness and substantive justice to the parties, thereby justifying judicial recognition and enforcement of its awards.[1]  Because the Code has been in existence for more than twenty years—since November 22, 1994—and has been revised four times, this book provides an important and much needed historical perspective and overview that identifies and explains well-established principles of CAS case law and consistent practices of CAS arbitrators and the CAS Court Office.  Both authors formerly served as Counsel to the CAS and now serve as Head of Research and Mediation at CAS and CAS Secretary General, respectively, giving them the collective expertise and experience that makes them eminently well-qualified to research and write this book.

The extensive commentary and materials in this prodigious work are useful in understanding the history and operation of the CAS, as well as the process by which CAS arbitration resolves disputes and establishes an evolving, rich body of lex sportiva. The book’s many useful features include the following: a thorough and detailed index; a table of acronyms; integrated discussion of the Code’s provisions and their application by CAS panels, their relationship to and consistency with the Swiss Private International Law Act (PILA) requirements along with relevant comparisons to the Swiss Code on Civil Procedure (Swiss CCP), and judicial interpretation through review of CAS awards by the Swiss Federal Tribunal (SFT); thousands of footnotes and citations, reflecting the product of exhaustive research; comparisons to analogous International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), and United Nations Commission on International Trade Law (UNCITRAL) rules; an extensive bibliography; numerous charts and graphical illustrations; several sample provisions and documents; and comprehensive lists of all referenced CAS awards and SFT cases reviewing CAS awards.

Based on my perspective as a sports law professor and a CAS arbitrator who also arbitrates domestic sports, commercial, and consumer disputes in the United States, I found the authors’ discussion of many of the Code’s provisions to be particularly helpful and/or interesting.

Article R27 provides that the Code’s procedural rules apply when the “parties have agreed to refer a sports-related dispute to CAS.”[2]  A variety of important issues are carefully addressed, including the authority of a CAS panel to determine its jurisdiction (“Kompetenz- Kompetenz”), which also is discussed in connection with Article R39 (in which this authority is explicitly conferred), as well as the form and material conditions Article 178 of the PILA requires for a valid arbitration clause and for CAS jurisdiction to exist.  In addition, there is a thorough discussion of the relationship and differences among CAS jurisdiction, the arbitrability of particular disputes, the legal standing of the parties whose substantive rights are affected under Swiss law, and the relevance of foreign laws in resolving these issues.  Several examples of clauses permitting CAS jurisdiction to resolve sports-related disputes are provided in the accompanying Annexes.

Article R28 provides that the seat of any CAS arbitration is Lausanne, Switzerland, regardless of the geographical location of the arbitration proceeding.  The authors explain the importance and implications of this rule, which effectively provides that Swiss law governs the procedural aspects of all CAS arbitration proceedings throughout the world.  The creation of a uniform procedural regime establishes a stable legal foundation for CAS arbitrations that ensures coherence in determining the law governing the merits of the dispute pursuant to Articles R45 and R58, in the developing body of Olympic and international sports law established by CAS awards (with limited judicial review by the SFT under the PILA), and in equal treatment of the parties. 

Article R33 inter alia requires the independence and impartiality of CAS arbitrators and panels in connection with the cases to which they are appointed. Article R34 establishes the process pursuant to which the International Council of Arbitration for Sport (ICAS) considers and resolves challenges to an arbitrator’s independence or impartiality.  There is an elaborate discussion of this important topic that explains the distinction between “independence” and “impartiality,” provides guidance regarding an arbitrator’s disclosure obligations (with references to the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration), and gives illustrative examples of circumstances giving rise to objectively justifiable doubts regarding an arbitrator’s independence (and those that do not) from the perspective of the ICAS or the SFT.  The authors’ commentary provides a historical perspective regarding the application and evolution of these Code rules and identifies their underlying roots in Articles 179 and 180 of the PILA.

Article R37 is based on Article 374 of the CCP and enables the appeals or ordinary arbitration president or a CAS panel to grant provisional (i.e., interim) measures to either safeguard a party’s right that is at risk or to exercise its right during the pendency of a CAS arbitration proceeding.  For example, an athlete may request the stay of an appealed decision of a sport body imposing a doping or disciplinary suspension that prevents him from participating in an upcoming athletic event.  The text explains the prerequisites for granting provisional relief, including: exhaustion of potential legal remedies within the sports organization or tribunal rendering the appealed decision, plausible CAS jurisdiction, irreparable harm, reasonable likelihood of success on the merits, and balance of interests.  There is a detailed discussion of the irreparable harm requirement, which provides several illustrative examples.  The authors note that a party’s request for provisional relief constitutes a waiver of any right to request such relief from a court and that a CAS order granting or denying provisional relief cannot be challenged before the SFT because it is not a final CAS award. 

Article R44 governs the CAS ordinary arbitration procedure (e.g., written submissions, hearing, evidentiary proceedings, expedited procedure, and default awards). The authors provide a detailed overview of each of these procedures, while pointing out that all evidence (e.g., exhibits and\ summaries of the testimony of witnesses and experts) must be filed at the same time as written submissions—which are mandatory—and that a hearing is optional.  They note the responsibilities of the CAS panel president in connection with these procedures and offer guidance regarding the steps to be taken to ensure appropriate discharge of the procedures. There is a particularly useful explanation regarding a CAS panel’s discretion in determining the admissibility of evidence, as well as its authority to order the production of evidence (e.g., documents, examination of witnesses) from a party and appointment of independent experts and the procedure for doing so.  The Annexes include a helpful checklist regarding the eight stages of a CAS hearing (i.e., opening of hearing, preliminary remarks by parties, hearing of witnesses, hearing of experts, examination of parties, closing of evidentiary proceedings, closing oral arguments, and the deliberation by the panel) that supplements the discussion in the text. 

Articles R47, R48, R49, R51, R55, and R56 collectively constitute the key Code provisions governing the CAS appeals arbitration procedure for appeals against a final decision of a sports federation or association, the largest group of cases before the CAS.[3]  Similar to their discussion regarding the CAS ordinary arbitration procedure, the authors provide detailed commentary regarding the appeals arbitration procedure, which is more complex and governed by more rules.  Among the important topics covered are the following: prerequisites for CAS jurisdiction, including the need for a final decision by a sports body and exhaustion of its internal legal remedies, along with a valid arbitration agreement; the importance and method of determining applicable deadlines for each stage of the appeals arbitration procedure, as well as the consequences of late submissions; and the required components of an appellant’s statement of appeal and appeal brief as well as a respondent’s answer.  The accompanying Annexes for these rules provide checklists and illustrative charts that significantly facilitate an understanding of the appeals arbitration procedure.

Articles R45 and R58 determine the substantive law applicable to the merits of cases arising under the CAS ordinary and appeals procedures, respectively.  The authors explain that parties’ agreement to submit their dispute to CAS arbitration for resolution, which constitutes their agreement to have the Code and Swiss law provide the applicable procedural rules, does not necessarily mean that Swiss law is the substantive law to be applied regarding the merits of a dispute.  They note that: (1) both Articles permit parties to choose the applicable rules of law, which may be a system of rules other than national law (e.g., the Olympic Charter, International Federation statutes, or the World Anti-doping Code in an appeals arbitration proceeding) if the laws “satisfy the need of rationality, security and foreseeability”[4] and are relevant to the disputed issues; (2) each Article identifies the governing national law in ordinary Swiss law or appeals arbitration (“law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled”[5]) if the parties do not do so; and (3) a CAS panel should apply laws considered to be “mandatory” according to Article 19 of the PILA (e.g., European Communities law).  The authors identify and discuss the narrow limits on parties’ freedom to choose the law to be applied to the merits of their dispute (i.e., the chosen law cannot manifestly violate international or transnational public laws).  They point out the important distinction between the provision of Article R45, which empowers a CAS panel to rule ex aequo et bono (i.e., as a matter of equity rather than according to specific legal rules) if the parties authorize the panel to do so, and the differing provision of Article R58, which authorizes a panel to apply the “rules of law [it] deems appropriate”[6] and to give reasons for its decision, while providing detailed explanations of both provisions and the CAS practices pursuant thereto. They observe that a CAS panel should apply the parties’ validly chosen rules of law to avoid a judicial challenge to a CAS award on the ground it violates the right to be heard, while noting that its mere failure to do so or to apply the wrong law is not a per se violation of a party’s right to be heard.  A CAS award will be vacated by the SFT pursuant to Article 190 paragraph 2(e) of the PILA on the ground that public policy is violated only if application of the chosen or appropriate law would change an award’s outcome. 

Article R57 governs a CAS appeals arbitration procedure hearing. The authors note that,

this provision is the milestone of the CAS appeals procedure, since it not only specifies the scope of the Panel’s review of the case . . . but also provides essential information on the conduct of the hearing and the power of the Panel to proceed with the hearing in case one of the parties is duly summoned but fails to appear.[7] 

Because Article R57 provides a panel with “full power to review the facts and the law”[8] (i.e., de novo review), the scope of CAS arbitral review is broader than the more limited arbitrary or capricious standard of judicial generally exercised by sport governing body decisions in Swiss and other national courts.[9]  The authors point out that this broader scope of review has significant legal consequences:

The Panel is thus not limited in merely reviewing the legality of the decision challenged, but can issue a new decision on the basis of the applicable rules . . . [admit] new prayers for relief and new evidence and [hear] new legal arguments . . . [and correct] procedural flaws, which occurred during the proceedings of the previous instance.”[10] 

Limits on the CAS’s de novo power of review, which preclude the panel from adjudicating issues other than those raised by the parties, changing or rewriting sports federation rules, and reviewing field of play decisions, are also identified and discussed.  They note that a CAS panel should be cautious about exercising its discretion under Article R57 “to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”[11] in order “to guarantee the parties’ access to justice and a full review by an independent arbitral tribunal.”[12] The authors also describe the eight main stages of an appeals arbitration hearing (which are the same as those for an ordinary arbitration appeal) in both the text and an accompanying checklist in the Annex, as well as provide an overview of how a hearing generally is conducted and issues that may arise in connection therewith.

Articles R46 and R59 apply to the award in ordinary and appeals arbitrations, respectively.  The authors note that awards in both proceedings are by majority decision; must state brief reasons for each resolved issue and be written, dated, and signed; set forth the basis of CAS jurisdiction; determine which party bears the arbitration costs;[13] are final and binding on the parties with res judicata effect; and are enforceable on the date the parties are notified of the operative part of the award.  The CAS Secretary General reviews all awards for form (e.g., errors in grammar, spelling, or calculation of numbers are corrected) and fundamental issues of principle.  Although CAS arbitration awards do not constitute binding precedent or have a stare decisis effect in subsequent similar cases, CAS panels frequently cite to and rely on prior awards. This effectively “accord[s] to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.”[14]  Thus, the CAS Secretary General’s review of an award regarding fundamental issues of principle includes pointing out any departure from well-established CAS jurisprudence without adequate reasons and suggesting revisions in an effort to “ensure that there is no unjustified change in the CAS established case law under the same or similar conditions.”[15] However, the authors note that “the CAS Secretary General may only suggest some changes and cannot impose them to the Panel, which remains solely responsible for the award and is free to accept the suggestions or not.”[16]  They observe that CAS ordinary arbitration awards, which typically resolve commercial disputes between the parties, generally are confidential and not published; whereas CAS appeals arbitration awards, which resolve appeals from final decisions of sports federations, are usually published to facilitate the development of a uniform body of Olympic and international sports law (including interpretation and application of the World Anti-doping Code).  The commentary regarding Article R59 includes a comprehensive discussion of the grounds on which the SFT may vacate a CAS ordinary or appeals arbitration award pursuant to Article 190 paragraph 2 of the PILA: (1) irregular composition of the CAS panel (e.g., lack of independence or impartiality); (2) lack of CAS jurisdiction over the parties or claims; (3) failure to decide a validly raised claim, or deciding a claim or issue not raised by a party; (4) violation of the parties’ right to be heard or equal treatment; and (5) violation of procedural or substantive Swiss and international public policy (i.e., the essential and widely recognized values prevalent in every legal system).  The authors provide a detailed qualitative analysis of each of these defenses, as well as provide aggregate statistics regarding their respective success, and identify the SFT cases in which a particular defense is successful. 

This excellent book is a must-read for attorneys representing parties before the CAS and CAS arbitrators.  It is a valuable resource for sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars concerning the CAS arbitration process for resolving Olympic and international sports disputes.  This book is an important addition to my library of sports law materials, which I anticipate consulting and referencing frequently.

[1] See James A. R. Nafziger, International Sports Law, Handbook on Int’l Sports Law 27–28 (James A. R. Nafziger & Stephen F. Ross eds., 2011) (the CAS has established the “gold standard in resolving sports-related disputes” by “ensuring fairness in terms of even-handedness, impartiality, acting in good faith, and coherence.”); Matthew J. Mitten, The Court of Arbitration for Sport’s Jurisprudence: International Legal Pluralism in a World Without Boundaries, 30 Ohio St. J. on Disp. Resol. 1, 42 (2014) (“The CAS arbitration system ‘demonstrates how civil and common law legal systems can function effectively together within an international tribunal to resolve a wide variety of complex, time-sensitive disputes between parties of different nationalities,’ which produces ‘globally respected adjudications” of Olympic and international sports disputes’).

[2] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport – Commentary, Cases, and Materials 19 (2015).

[3] The authors also provide helpful commentary regarding Articles R50, R53, and R54 that addresses the number, nomination, appointment, and confirmation of arbitrators as well as Article R52, which addresses initiation of the appeals arbitration proceeding by the CAS, as well as expedited and consolidated proceedings.

[4] CAS 2006/A/1123& 1124, Al-Gharafa SC v P. Wanchope Watson & P. Wanchope Watson v. Al-Gharafa SC, award of 18 December 2006, §67.

[5] Mavromati & Reeb, supra note 3, at 535.

[6] Id.

[7] Id. at 505.

[8] Id. at 503.

[9] “The full review by the CAS is the principal reason for excluding a full review by the state courts (i.e., in case of a subsequent appeal against a CAS award to the SFT, the later will not fully review the case but will act as a cassatory court based on the exhaustively enumerated grounds of Article 190 paragraph 2 PILA).”  Id at 520.

[10] Id. at 507–08.

[11] Id. at 519.

[12] Id. at 520.

[13] Article R64 applies to CAS ordinary and appeals arbitration costs, but Article R65 pertains only to CAS appeals arbitration costs in proceedings involving appeals against decisions issued by international federations in disciplinary matters; both of which the authors comprehensively discuss in their commentary and Annexes regarding these rules.  

[14] CAS 2008/A/1545, Anderson et al v IOC, award of 16 July 2010, §116.

[15] Mavromati & Reeb, supra note 5, at 367.

[16] Id. at 366–67.

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996.

While the CAS proceedings for the appeal filed by Legia against UEFA and Celtic FC are pending and the grounds of dismissal by the CAS of the application for provisional measures have not been publicly known, the CAS is called to rule on the interpretation of the proportionality principle with regard to the application of the 3-0 defeat sanction against a club that fielded an ineligible player. The cornerstone question is whether the final award on the merits will be in line with UEFA and CAS jurisprudence suggesting a literal interpretation of Article 21.2 of the UEFA Disciplinary Regulations (UEFA DR) or whether the CAS will allow for a broader interpretation of the proportionality principle in case of mere technical administrative errors. 

Background and facts of the case

Legia’s adventures began when Legia’s player, Bartosz Bereszynski, was sent off in their final Europa League tie of last season against Apollon Limassol FC and was sanctioned by the UEFA Control and Disciplinary Body decision of 13 February 2014 with three-match suspension.  UEFA regulations are clear in that a ban applies to a player if he is listed in a club’s squad for matches. Bereszynski did not play in Legia’s games with St Patrick’s Athletics and in the first leg against Celtics FC. However, due to a technical error of Legia’s administrator, which was to prove fatal, the player was not registered in the squad list for the St Patrick’s tie and the first two games of his suspension were never properly recognized. As a result of the player’s failure to serve the suspension, Bereszynski’s participation in the second leg against Celtics FC as a 86^th minute substitute triggered the application of Article 18 of the Regulations of the UEFA Champions League 2012-2015 and Article 21.2 of the UEFA DR and Legia was to be sanctioned for fielding a suspended player. Therefore, the match was declared forfeited; for UEFA’s purposes, Legia lost the game 3-0 and the initial 6-1 aggregate defeat for Celtic was reversed to a 4-4 aggregate score, opening the door for Celtic to progress in UEFA CL play-offs on away goals.  

The Legia case in the light of UEFA jurisprudence

At a first glance, the case at issue seems to present several factual similarities with the Bowyer and Matoukou cases brought before UEFA’s Control and Disciplinary Body, which, however, have never been appealed before the CAS.

In the first case, similarly to the Legia case, due to an administrative error of Newcastle United FC, Bowyer had not been registered as ‘eligible to play’ in the six UEFA matches in 2004. As a result, UEFA’s Control and Disciplinary body, applying UEFA Regulations, decided that Bowyer had not served the suspension carried over from his days as a Leeds United player and was banned for the next six European matches. This decision was challenged by Newcastle and the English Football Association (FA) before the UEFA’s Appeal Body, which upheld the initial decision. It is remarkable that the FA supported Newcastle’s appeal, expressing its concerns with regard to the ambiguous language of the rules on players’ eligibility.

In the second case, Matoukou while playing for KRC Genk against FC Porto on 19 August 2010 in a UEFA Europa League qualifier, received a red card and as a consequence was sanctioned with a two-match suspension. Matoukou sat out the second leg of that tie and, after Genk’s elimination, played no further European games for Genk. On 2 August 2012, Matoukou, as a player of Arsenal Kiev FC, scored against ND Mura 05. However, Matoukou had not served the second part of his suspension before taking part to this game. As a result of his ineligibility, UEFA’s Control and Disciplinary Body declared the match forfeited. Although there is no doubt that the player did not serve the two-match suspension, this case illustrates the most recent example of the clear-cut application of Disciplinary Regulations by UEFA.

A similar example is the harsh sanction of 3-0 defeat applied against PAOK Saloniki in 2004 for fielding the suspended player, Laisis Louca, in the first leg of the CL third qualifying round against Maccabi Tel Aviv. NK Zepce was also punished with the same severity in 2005 for fielding a suspended player in the first half of their match against FK Baskimi. The inevitable conclusion of this brief overview of UEFA jurisprudence is that UEFA’s practice has been consistent; UEFA Regulations on players’ eligibility are sufficiently clear and they give no room for a different interpretation. However, it should be noted that the UEFA decisions can be appealed before the CAS. Therefore, the CAS jurisprudence needs to be examined in order to assess whether the CAS in interpreting UEFA Regulations has deviated from this rather simplistic clear-cut approach of UEFA.  

The Legia case in the light of CAS jurisprudence

The Sion[1] case has been the CAS landmark case with regard to the proportionality of the sanction of forfeiture for clubs fielding ineligible players. In this case, the CAS confirmed that FC Sion was banned from registering five new players in the summer transfer period of 2011/12 pursuant to the FIFA decision and was excluded from UEFA Europa League. Funnily enough, Celtic was also back then the lucky club, which enjoyed a ‘second bite of the cherry’. While this case presents only few factual similarities with the Legia case, its importance lies in that the CAS had to rule whether a club’s exclusion mandated by UEFA Regulations is in conformity with Swiss antitrust law and the proportionality principle.

The CAS confirmed that UEFA is an undertaking enjoying a dominant position on the market of international football competitions.[2] However, according to the CAS,  Article 18 of the UEFA Regulations authorizing UEFA to sanction clubs which field ineligible players does not constitute an abuse of its dominant position, but rather ‘guarantees the efficiency and equal treatment of the clubs’[3]. Relying on its mandate to establish uniform regulations applicable equally to all clubs and to guarantee legal certainty in sports competitions, the CAS found that the sanction of forfeiture for clubs fielding ineligible players is an appropriate, necessary and proportionate measure.[4] To reach this conclusion, the CAS applied a twofold test for the proportionality principle to be enforced: (1) the capacity of the sanction of forfeiture to achieve the aim it pursues, i.e. to ensure the equal treatment of the clubs; and (2) the necessity of the sanction, i.e. the absence of alternative measures, since during the qualification phase of the tournament other sanctions such as the deduction of points are not possible.

In this case, the CAS deviated from the strict literal interpretation of Article 21.2 of UEFA Disciplinary Regulations and elaborated an interpretation of the forfeiture sanction in the light of the proportionality principle, applying the twofold test. It is highly likely that the CAS in the Legia case will follow this interpretation, relying on the necessity of the sanction, i.e. because of the absence of alternative measures, and its mandate to protect the equal treatment of the clubs and will confirm, therefore, the conformity of the UEFA decision with Article 21.2. However, it is the suggestion of this case commentary that a different interpretation of Article 21.2 in the light of the proportionality principle could also be elaborated on.  

Mapping an alternative interpretation of Article 21.2 of UEFA Disciplinary Regulations

In this attempt to elaborate a different interpretation of Article 21.2 in the light of the proportionality principle, this article will use as a benchmark the CAS finding that ‘other elements such as the systematic context, the purpose and history of the rule may contribute to the correct understanding of the meaning of the rule’[5]. Although the wording of Article 21.2 is clear and seems to create a lex specialis rule with regard to the forfeiture sanction in case of a player’s ineligibility, it is suggested that a different interpretation of Article 21 can be envisaged if it is examined in conjunction with the General Principles laid down in Article 17.1 of the UEFA Disciplinary Regulation.

Specifically, Article 17.1 states that the disciplinary body determines the type and extent of the disciplinary measures to be imposed in accordance with the objective and subjective elements of the offence, taking account of both aggravating and mitigating circumstances.[6] This means that a sanction may be scaled down when proper consideration is given to the specific circumstances. This provision is in line with the well-established in Swiss law, EU law and CAS jurisprudence[7] proportionality principle, namely that in disciplinary matters a reasonable balance must be struck between the violation and the sanction.

Therefore, in the case at issue the question could be articulated as such: Could an interpretation of Article 21.2 in the context of Article17.1 and the proportionality principle result in a different sanction than forfeiture?

In the light of Article 17.1, an argument deriving from the specific ‘aggravating and mitigating’ circumstances of Article 17.1 could be that the ineligible player did actually abstain from three matches and it was due to a mere technical error that the player did not serve his suspension correctly. It could be suggested, therefore, that the forfeiture sanction is too harsh, since Legia acted in good faith and it was only because of this administrative error that the player was considered ineligible.

Furthermore, in the same spirit, Legia could claim that the sanction should be scaled down given that the player in question played for only four minutes as a substitute with the aggregate score of 6-1 in Legia’s favour. Considering that the ineligible player did not have any considerable impact on the tie[8], Legia could claim that the forfeiture sanction is too harsh as compared to the violation committed by the club. In a similar case, in 2010, UEFA fined Debrecen VSC for fielding in a good faith an ineligible player, instead of declaring the match forfeit: UEFA considered that Debrecen ‘had no interest in fielding this player for the three last minutes of additional time, when the score was so clearly in its favour’. It should be pointed out that in the Debrecen case the ineligible player was free to play if registered and, as a result, Article 21.3 applied. By contrast, in the Legia case the player was suspended and therefore excluded from the competition.

However, it could be argued that UEFA’s decision in the Debrecen case could serve as a guideline for a more flexible interpretation of Article 21.2. While the wording of Article 21.3 itself gives enough room for discretion to UEFA to declare a match forfeit (‘a match may be declared forfeit’), an interpretation of Article 21.2 in the light and purpose of Articles 17.1 and 21.3 could lead to a less draconian sanction, taking into consideration the specific circumstances of the case. Although the difference in the wording between Articles 21.2 (‘a match is declared’) and 21.3 draws a clear distinction between the consequences of fielding a suspended player and an ineligible player, it is the suggestion of this commentary that this distinction is at odds with the proportionality principle. Considering the proportionality’s principle status as a ‘general principle of law governing the imposition of sanctions of any disciplinary body’[9], it is surprising that Article 21.2 imposes the forfeiture sanction, without any reference to the proportionality of the sanction as compared to the violation committed. In this sense, the sanction of forfeiture leading to Legia’s exclusion from UEFA CL – and to the enormous economic loss for the club that this exclusion entails- seems disproportionate in the light of the specific circumstances of the case. In other words, a literal interpretation of Article 21.2, even in cases where the violation is the result of a mere technical error and the fact that the Club had no interest in fielding the suspended player, seems to overturn the reasonable balance between the violation and the sanction. 

Conclusive remarks

Until today, in the name of legal certainty, UEFA and the CAS have applied in a consistent way a literal interpretation of Article 21.2 of UEFA Disciplinary Regulations. While legal certainty is the ratio legis and justification of the sanctions imposed by UEFA[10], this commentary argued that the ‘without-exemption’ application of the forfeiture sanction can undermine the proportionality principle, which is also a fundamental principle recognized by the CAS jurisprudence. In this light, it has been demonstrated that a flexible interpretation of Article 21.2 in the context of the general provisions of Article 17.1, i.e. an interpretation which would render the act of fielding a suspended player subject to the full scale of disciplinary measures and would leave sufficient room for discretion to UEFA disciplinary body and to the CAS, would be in compliance with the proportionality principle. To this extent, construing a method for interpretation of Article 21.2 in conjunction with Articles17.1 and 21.3 is an important step to arrive at a better evaluation of the existing regime and to clarify the complex and still unsettled interplay between the intensity of the violation and the sanction.

Therefore, it remains to be seen whether the CAS will follow the path -strikingly consistent until now- of a literal interpretation of Article 21.2 or whether it will opt for a tailored sanction, which would be in compliance with the proportionality principle.

[1] CAS 2011/O/2574 UEFA v. Olympique des Alpes SA/FC Sion

[2] CAS 2011/O/2574 (n 5), para 115.

[3] Ibid, paras 124 & 130.

[4] Ibid, para 135.

[5] CAS 2007/A/1363 TTF Liebherr Ochsenhausen v/ETTU, award of 5 October 2007, para 12

[6] Article 17.1 (n 1).

[7] CAS 2001/A/330 R. v. Fédération Internationale des Sociétés d'Aviron (FISA), Award of 23 Nov 2001

[8] By contrast, see Sion case (n5) where Pascal Feindouno, one of Sion’s ineligible players, scored against Celtic.

[9] G. Kaufmann-Kohler and A. Rigozzi, ‘Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft WADA Code with the Fundamental Rights of Athletes’, 42.

[10] CAS 2007/A/1278&1279,  para 131.

Yesterday the sports law world was buzzing due to the Diarra decision of the Tribunal de Commerce du Hainaut (the Tribunal) based in Charleroi, Belgium. Newspapers were lining up (here, here and here) to spread the carefully crafted announcement of the new triumph of Jean-Louis Dupont over his favourite nemesis: the transfer system. Furthermore, I was lucky enough to receive on this same night a copy of the French text of the judgment. My first reaction while reading quickly through the ruling, was ‘OMG he did it again’! “He” meaning Belgian lawyer Jean-Louis Dupont, who after a string of defeats in his long shot challenge against FIFA’s TPO ban or UEFA’s FFP (see here and here), had [at least I believed after rushing carelessly through the judgment] manufactured a new “it”: a Bosman. Yet, after carefully re-reading the judgment, it became quickly clear to me that this was rather a new Mutu (in the sense of the latest CAS award in the ‘Mutu saga’, which I have extensively analysed on this blog and in a recent commentary for the new Yearbook of International Sports Arbitration) coupled with some reflections reminding a bit (but not really as will be explicated below) the Pechstein case.

In this blog, I will retrace briefly the story behind the case and then analyse the decision of the Belgium court. In doing so, I will focus on its reasoning regarding its jurisdiction and the compatibility of article 17(2) RSTP with EU law.

I.              The facts of the case

On 20 August 2013, the French footballer Lassana Diarra and the Russian top-tier club FC Lokomotiv Moscow (Lokomotiv) agreed on a four-year contract (Contract). Article 8 (3) of the Contract provided that in case Lokomotiv terminates the Contract for disciplinary reasons, Mr. Diarra would be liable for compensation amounting to EUR 20,000,000 (Compensation).  One year later, on 22 August 2014, Lokomotiv terminated the Contract due to Diarra's recurring failures to perform his obligations arising thereof. Lokomotiv relied on Article 8 (3) of the Contract and claimed the Compensation.

Less than a month later, Lokomotiv lodged a request for compensation with the FIFA Dispute Resolution Chamber (DRC) against Diarra. Diarra subsequently filed his counterclaim in which he asked for the payment of bonuses and wage arrears as well as the compensation amounting to the remuneration which would still have to be paid between August 2014 and 30 June 2017, the term provided for in the Contract. On 10 April 2015, the DRC rendered its decision ruling that Lokomotiv’s decision to terminate the Contract was justified (DRC Decision). Regarding the compensation due by Diarra, the DRC noted that Article 8 (3) of the Contract provided for the Compensation (amounting to EUR 20,000,000) claimed from Diarra. On the other hand, in case a compensation was due by Lokomotiv, Article 8 (5) of the Contract set a limit to three months of Diarra’s salary (approximately EUR 1,500,000). Taking into account the discrepancy, the DRC noted that the respective rights of the parties were completely disproportionate and the Contract should be disregarded. The DRC nevertheless decided that the consequences of the Contract's termination had to be assessed in light of Article 17 (1) of the FIFA Regulation for the Status and Transfer of Players (RSTP). In line with the said provision, the DRC decided that Diarra had to pay Lokomotiv the amount of EUR 10,500,000 for having repeatedly breached the Contract. Although this issue was not directly related to the case, the DRC pointed out that, following the termination of the Contract, Diarra did not immediately manage to find a new club so that Article 17 (2) RSTP (making a professional player and his new club jointly and severally liable for a compensation owed to a previous club) was in principle not applicable to the case. Furthermore, the DRC ruled that, having regard to the date of the Contract's termination and the time elapsed between that date and the issuance of the DRC Decision, Article 17 (2) would not apply in case Diarra finds a new club in the future.

Yet, during the period between 22 August 2014 and 10 April 2015, Diarra had attracted attention from several European clubs (e.g. Inter Milan, West Ham United, Celtic Glasgow and Sporting Charleroi). Negotiations, however, did not succeed for the reason that those clubs were afraid of being held jointly liable for a compensation which could have been potentially awarded by the DRC. On 19 February 2015, the Belgian football club Sporting Charleroi (Charleroi) offered Diarra a 15-month contract concerning the period between 30 March 2015 and 30 June 2016. This offer was, however, subject to the following conditions:

1. Diarra is registered and qualified as a member of Charleroi by 30 March 2015 at the latest; and
2. The governing bodies, Belgian Football Association (URBSFA) and FIFA, expressly confirm that Charleroi is not required to pay the compensation for which Diarra could be held liable at the end of the proceedings before the DRC.

On this second condition, Diarra and Charleroi demanded confirmation from FIFA and the URBSFA. Both governing bodies refused to adopt a concrete position with respect to the application of Article 17 (2) RSTP to the case at hand. On 27 March 2015, in light of the abovementioned replies obtained from FIFA and URBSFA, Diarra referred the case to the President of the Commercial Court of Brussels asking to order FIFA and URBSFA:

1. To register and qualify him as a professional football player of Charleroi, thereby allowing him to play for the rest of the 2014/2015 season;
2.  Not to apply Article 17 (2) and (4) RSTP to Charleroi.

No order had been delivered before the DRC Decision was issued. Furthermore, the DRC Decision confirmed that Article 17 (2) RSTP was not applicable to any new club which would hire Diarra in future. As a result, Diarra decided to withdraw his action from the Commercial Court of Brussels. However, he was not able to play as a professional player for Charleroi until the end of the 2014/2015 season. In July 2015, Diarra entered into a contract with the French top-tier club Olympique Marseille. This contract is still in force. 

Diarra also appealed against the DRC Decision before the CAS in Lausanne. On 27 May 2016, the CAS rendered its award by which it confirmed the DRC Decision. In the end, Diarra filed a lawsuit with the the Tribunal de Commerce du Hainaut. Diarra sued both FIFA and URBSFA for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. Finally, on 19 January 2017, the Hainaut Commercial Tribunal – Charleroi division rendered the judgment analysed in this blog.            

II.            The decision of the Tribunal of Charleroi

A.    Does the Tribunal of Charleroi have jurisdiction?

FIFA (and the Belgium federation) argued that the Tribunal lacked jurisdiction for two (main) reasons: Diarra was bound by a CAS arbitration clause and the Belgium court is incompetent based on the Lugano Convention. Let’s turn to the Tribunal’s rebuttal of both objections.

1.     The inexistence of a CAS arbitration clause

FIFA argued that M. Diarra was bound, through his registration as a professional football player with the French Football Federation, by the CAS arbitration clause included in the Statutes of FIFA.[1] In particular it refers to Article 68 of the FIFA Statutes. 

The Tribunal finds that this provision poses difficult problems of interpretation. Especially, Article 68(3) FIFA Statutes does not stipulate that the prohibition to have recourse to ordinary courts entails necessarily an arbitration clause in favorem of the CAS. Instead, the Tribunal finds this lack of clarity in the wording of the provision to play in favour of the player. Thus, it concludes that the FIFA Statutes do not create an obligation for the player to turn to the CAS to solve this dispute.

The judges add that even if one considers the FIFA Statutes to be sufficiently clear and precise, the parties must have concluded an arbitral convention in the sense of Article 1680 of the Code Judiciaire Belge (Belgian Judicial Code). In this regard, FIFA needs to demonstrate through documentary evidence (not necessarily signed by the parties) the existence of an agreement fulfilling the law’s requirements of clarity and precision.[2] Yet, in the present case, FIFA was unable to show that it had any contractual links with Diarra. Hence, the judges concluded that there were no elements demonstrating that Diarra would have consented expressly or implicitly to arbitrate at the CAS disputes stemming from its relation with FIFA. Additionally, the Tribunal refers in footnote 7 to the evident contradiction between FIFA’s claim and the agreement signed with the European Commission to put an end in 2001 to the Commission’s investigation into the FIFA RSTP. Indeed, this agreement clearly stipulates that “arbitration is voluntary and does not prevent recourse to national courts”.[3] Finally, the Tribunal insists that any general prohibition (as the one included in FIFA’s statutes) to have recourse to national courts would be contrary to Ordre Public and, therefore, must be disregarded by the Tribunal.

Is it a new Pechstein? Hardly. FIFA is not relying on a specific arbitration clause included in its Statutes, nor does it refer to any arbitration clause included in the Statutes of the French Football Federation. In the Pechstein case (on ‘Pechstein’ see our blogs here and here), Claudia Pechstein was forced (as a condition of entry to the competitions of the ISU) to sign an arbitration agreement in favour of the CAS. In the Diarra case, the player never signed anything and the Tribunal just highlighted that the vague language included in the FIFA Statutes cannot be constructed as a sufficient legal basis for a general arbitration agreement binding all football players (and clubs) for all disputes involving FIFA or national federations around the globe.

2.     The competence of the Tribunal of Charleroi on the basis of the Lugano Convention

The second objection raised by FIFA and the URBSFA regarding the competence of the Tribunal is related to the Lugano Convention. In principle, as pointed out by the respondents, Article 2.1. Lugano Convention foresees that one should be sued in the courts of her domicile. Any derogation to this general rule is, in their view, limited to exceptional circumstances in which there is a particularly close linked between the dispute and the jurisdiction other than the one of the domicile of the respondent.

Yet, the Tribunal refers to Article 5.3. Lugano Convention, which stipulates that “in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”. It held that this special competence is grounded on the existence of closed connecting factors between the dispute and the place where the damage occurred. The judges refer to the Mines de potasse and Shevill jurisprudence of the Court of Justice of the EU to conclude that the notion of harmful event covers both the place where the damage materialized and the place where the event occurred. In the present case, it entails that Diarra is not forced to lodge a complaint in Switzerland, where FIFA adopted the controversial regulation. Instead, he could also submit a complaint at the place where the damage was felt. More precisely in Belgium (and more specifically Charleroi) due to the missed opportunity to be employed by Sporting Charleroi.

This is (with other cases we have chronicled on this blog, see here and here) a good reminder that FIFA’s regulations, as long as they have damaging effects outside of Switzerland, are easily subjected to challenges in the EU Member States. In particular due to a potential incompatibility with EU free movement and competition law.

B.    The compatibility of article 17(2) FIFA RSTP with EU law?

The core of the substantial evaluation of the case plays out mainly around the question of the compatibility of article 17(2) FIFA RSTP with EU law. Unfortunately for the European Sports Law geek, but reasonably in the context of the factual construction of the case, the Tribunal did not pick on the request of Diarra’s lawyer to send a preliminary reference to the CJEU regarding the compatibility of article 17(1) FIFA RSTP with EU free movement law. [4]

Instead, the Tribunal focused on the interpretation (at least until April 2015) by FIFA (and the URBSFA) of article 17(2) FIFA RSTP. Indeed, it refers to the legislative history of the FIFA RSTP and in particular the EU Commission-FIFA agreement to strongly affirm that “there is no doubt that the European Commission would have never given its green light to such a system, which boils down in fine to preventing a worker dismissed by his employer – even if it is due to his behaviour - to find a new job”.[5] To further support this argumentation it refers directly to the CAS award rendered in the latest episode of the ‘Mutu saga’. In that case, the CAS clearly affirmed that the interpretation provided by the FIFA DRC, insofar as it extends the applicability of article 17(2) FIFA RSTP to players dismissed by their clubs on the basis of their behaviour, is contrary to EU law and the Bosman jurisprudence. Thus, the Tribunal concludes that the application of article 17(2) FIFA RSTP supported by the defendants in the present case was contrary to the freedom of movement of workers. Henceforth, the faulty behaviour of FIFA was established.

Interestingly, and this is the more original aspect of the decision, the Tribunal found that the URBSFA should also be deemed at fault for having implemented the rule on FIFA’s behalf. The national federation cannot hide behind its duty to implement FIFA regulations, especially because since 21 January 2015 (meaning before it opposed the move to Sporting Charleroi) it should have been aware of the decision of the CAS (here the Tribunal is a bit unfair with the URBSFA because the full text of the award was not published until March 2015, and until then it was impossible for the URBSFA to clearly assess the CAS’ reasoning). Moreover, the Tribunal rejects the objection raised by the URBSFA that the Russian federation would not have issued an International Transfer Certificate. Instead, the judges held that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. The Tribunal added [and this is the key part that had me believe in a new Bosman for a minute ;)]

“Allowing, like the RSTP seems to do, a federation or association to which the former club belongs […] not to deliver an ITC if there is a contractual disputes between the former club and a player that has been dismissed (and who has not taken the initiative of breaching his contract) and who has concluded (or wishes to conclude) a new contract in another country, is equivalent to requiring the new club to pay to the former club the compensation requested from the player, which is akin to imposing to the new club to pay a transfer fee to the former club to recruit a player who in fact is out of contract. This is exactly the practice deemed contrary to EU law in the Bosman case.”[6]

The scope of this paragraph could have been way broader if the Tribunal had not included the “who has been dismissed” part. Indeed, it seems to exclude situations where the player decides to leave his club and, thus, preserves the possibility to hold the new club accountable for compensation due by the player to his former club for having terminated his contract.

Conclusion: Interpreting the FIFA RSTP with a lot of help from EU law

This case matters, not so much for Diarra, who has secured a meagre EUR 60 001 in damages (and not the EUR 6 million announced everywhere) plus a bit more if his lawyers manage to demonstrate a substantial loss of opportunity from not having played with Sporting Charleroi (which, with all due respect, should prove rather difficult), not so much for its substantial solution because the CAS had come to a similar conclusion in its Mutu award from 2015, not so much either for its arbitration dimension as the Tribunal’s considerations regarding the absence of an arbitral agreement are not really surprising (or new for that matter). No, its importance lies in the reaffirmation of the need to read the RSTP in the light of EU law and to interpret it with the jurisprudence of the CJEU in mind and the agreement with the EU Commission on the table. This decision is laying further ground for broader challenges to the RSTP on the basis of EU law. For example, I do not see where one can find in the EU Commission-FIFA agreement the endorsement of a joint liability of the new club and a player for damages incurred by the latter when terminating his contract with his former club. Thus, the entire article 17(2) FIFA RSTP is build on shaky legal grounds, and if one pursues the logic of the Tribunal until the end there is no reason why it should not be deemed contrary to the EU free movement rights of players.

[1] Jugement du Tribunal de Commerce du Hainaut, division Charleroi, A/16/00141, 19 January 2017, at paras 19-21.

[2] Ibid, at para.21.

[3] Ibid.

[4] Ibid, at para. 27.

[5] Ibid, at para. 28.

[6] Ibid.

Editor's note: Nicholas McGeehan is co-director of human rights research and advocacy group FairSquare, which works among other things on the nexus between sport and authoritarianism. He is a former senior researcher at Human Rights Watch and holds a PhD in international law from the European University Institute in Florence.

Boycotts, divestments and sanctions are each controversial and contentious in their own right, but when combined under the right conditions, they have explosive potential. BBC football presenter Gary Lineker found this out to his cost when he retweeted a call from Palestine’s BDS movement to suspend Israel from FIFA and the International Olympic Committee (IOC)  until such time the Israeli state ends what they called “the crime of genocide it is perpetrating in Gaza” and its occupation of Palestinian territory. Lineker quickly deleted his retweet but not before the UK’s most popular right-wing tabloid newspaper, The Daily Mail, spotted it and renewed their fulminating campaign against Lineker’s support for political causes that run contrary to the Mail’s editorial positions. The Daily Mail does not oppose sporting boycotts, in fact judging from an article by its football columnist, Martin Samuel, it was an ardent supporter of Russia’s ejection from European football in the aftermath of its invasion of Ukraine. “Why should Russian football get to be part of the continent in which it has murdered innocents?,” asked Samuel  and in that regard he was not alone and was echoing views heard across the political divide in the west at the time. 

The west continues to boycott Russia, its companies have divested from Russia, and its governments are sanctioning Russia. This includes in the sporting arena where nobody batted an eyelid when Russian football teams were excluded from FIFA and UEFA competition, and its athletes excluded from IOC competition.  So it seems obvious that it  is not so much BDS tactics that offend people in certain quarters, but rather their target. Russia can be BDS’d until the cows come home, but BDS’ing Israel is beyond the pale. You can see how it might be hard to explain to a child.

Through an examination of the widely divergent responses to Russia’s actions in Ukraine and Israel’s actions in Gaza, this piece argues that FIFA and the IOC have aligned themselves with the political positions of the countries of the global north. With reference to previous sporting boycotts, it demonstrates how an absence of rules has left FIFA and the IOC sailing rudderless into stormy geopolitical waters and argues that they need to institute rules to guide their responses to events of this gravity and magnitude. Dispensing once and for all with the canard that sport and politics can be kept apart would enable sport’s governing bodies to appropriately leverage their political power and not merely act as puppets of the global north.

Russia and a case of force majeure

On 28 February 2022, four days after Russia launched its ground invasion of Ukraine, FIFA and UEFA issued a joint statement suspending all Russian national and club teams from competition. Poland and Sweden had significantly upped the pressure two days earlier when they said they would refuse to play Russia in qualifying matches for the 2022 World Cup, which was scheduled to take place in December of that year. Their message was very clear - it’s them or us.

The Russian football federations took its case to the Court of Arbitration for Sport (CAS), arguing that  it had been punished arbitrarily for conduct that is neither mentioned nor proscribed in FIFA’s statutes. FIFA said its response was  “warranted and necessary in the face of the unprecedented and widespread reaction of the international community” and that it had the right to take its decision since Russia’s invasion of Ukraine was a case of force majeure (a catastrophic event that could not have been predicted), granting it the right under World Cup regulations to exclude Russia. (It is beyond the scope of this article to examine a similar case that the Russian football federation took against UEFA but detailed analysis of the two cases is available, courtesy of Antoine Duval.)

CAS sided with FIFA, noting that neither FIFA statutes nor the World Cup regulations contained any specific provisions that addressed wars of aggression, but agreeing with FIFA’s position that it had to respond urgently and that “the consequences of the military action were a force majeure event”. The CAS panel also noted that sanctions usually apply to the team who refuses to play but justified its reversal of established rules and precedent, by saying that  “circumstances of this particular case are to date unique.” The CAS panel’s comments on Russia’s argument that FIFA’s actions were inconsistent with its inaction in previous instances of state aggression are worth repeating here in full.

The Panel does not consider it helpful to compare previous global conflicts and the responses of other international sports federations in relation to a particular country’s involvement in those conflicts. The Russian State’s annexation of Crimea or the activities of the Assad regime in Syria, both recent examples of military conflict, have not, for better or for worse, elicited the same global reaction from governments, nongovernmental organisations, international bodies or the wider public (whether or not in the view of some people or entities, it should have). The reality is that this military conflict has elicited an unprecedented global reaction, including amongst the general public, and it was the consequences of that reaction to which FIFA considered it was required to act in order to fulfil its statutory objectives.

It was political pressure from the Global North, via European football federations, that forced the hand of FIFA.

The International Olympic Committee came under similar pressure. A few days after Russian troops entered Ukraine, the IOC issued a statement saying that it was “united in its sense of fairness not to punish [Russian] athletes for the decisions of their government” but nonetheless recommended that International Sports Federations and sports event organisers not invite or allow the participation of Russian (and Belarusian) athletes. 

In September 2022, two independent UN human rights experts (known as Special Rapporteurs), Professor Alexandra Xanthaki and Professor E. Tendayi Achiume  wrote to IOC President Thomas Bach expressing “serious concern” about the sanctions imposed on athletes. They described the decision to relocate or cancel events in Russia and Belarus and not to play their anthems in sporting events as “ sanctions that can be considered as legitimate, as they directly target these States or their official representations” but said that exclusion of athletes based solely on nationality violated the principle of non-discrimination and was at odds with international human rights law as well as the Olympic Charter. In January 2023, the IOC reversed its decision, under what they called “strict conditions”. Russia and Belarussian athletes could participate in competitions as “neutral athletes” and on the proviso that they “have not acted against the peace mission of the IOC by actively supporting the war in Ukraine.” The following month representatives of 35 governments - 27 of them European - issued a joint statement of concern at the IOC’s decision and expressing their support for a blanket ban. “We have strong concerns on how feasible it is for Russian and Belarusian Olympic athletes to compete as ‘neutrals’ … when they are directly funded and supported by their states (unlike, for example, professional tennis players)”, read the statement, which was also signed by the United States, Australia, Canada, New Zealand and Japan. “The strong links and affiliations between Russian athletes and the Russian military are also of clear concern”, it added.

One of the UN Special Rapporteurs, Alexandra Xanthaki, came under fierce criticism online after tweeting about the IOC’s decision to reverse the ban. “If my country did what russia is doing (invading a sovereign country) I would leave and refuse to associate with my national identity until it stopped - they should do the same” wrote one Twitter user. “The US waged an illegal war in 2003. I don’t remember people trying to ban Michael Phelps from swimming”, responded Xanthaki. 

Xanthaki and Achium had made this same point in more formal channels, in their first communication to the IOC the previous year. “Please explain how the Executive Committee of the International Olympic Committee has responded to other instances in which a State has engaged in territorial aggression toward another State. Please clarify whether the committee has banned athletes of other nationalities on the basis of the territorial aggression of the State to which they belong as a citizen previously.” 

In October 2023, the IOC suspended the Russian Olympic Committee for assuming control of regional sports organisations in Ukrainian territory illegally annexed by Russia, arguing that it was a violation of the Olympic Charter, but without providing specific details of the provisions it deemed Russia to have violated. 

The Olympic Charter is replete with references to its contribution to “peaceful societies” and “solidarity” and the “development of humankind” and nobody would contest the fact that Russia’s brutal and bloody war on Ukraine is entirely inconsistent with those values, but one could say the same of numerous conflicts and aggressions that did not stir the IOC to act. If the Olympic Charter contained references to international legal norms - to illegal annexation or violations of jus cogens norms or war crimes or occupation or aggression or crimes against humanity - then a decision to exclude Russia would have a substantive rationale, but it does not. And, as noted by CAS, nor do FIFA’s statutes. 

The responses of FIFA and the IOC to Russia’s actions in Ukraine were not based on rules, they were responses to the political positions of the powerful states of the global north. If there were any doubt about that, the failure of these sporting bodies to respond to Israel’s actions in the aftermath of the Hamas war crimes of October 7 surely provide conclusive evidence. 

To boycott or not to boycott

At the time of writing Israel’s actions in Gaza have resulted in South Africa filing a case against it at the International Court of Justice arguing that it is committing genocide. The ICJ issued provisional measures on Russia in March 2022 and 32 states formally intervened in the case, most of them the very same western states who criticised the IOC’s decision to repeal its blanket ban on Russian athletes. None of those states have intervened in support of the case against Israel despite the compelling evidence presented by South Africa’s legal team. On the contrary, Germany has intervened in support of Israel’s defence. The United States has called the South African submission “meritless, counterproductive and completely without any basis in fact.” The United Kingdom’s foreign secretary called the case “nonsense.” 

Anyone who has even  skimmed through South African’s  84-page submission would have to concede that there is a very strong case to answer and facts listed still jar the senses.

One Palestinian child in Gaza has been killed approximately every 15 minutes since Israel commenced military action in Gaza on 7 October 2023. … 61 hospitals and health care facilities in Gaza have been damaged or destroyed …Babies are dying from preventable causes: in addition to disease and malnutrition, premature babies have died due to lack of fuel to supply hospital generators; others have been found decomposing in their hospital cots…Over 60 per cent of homes in Gaza have been damaged or destroyed. …93 per cent of the population in Gaza is facing crisis levels of hunger, with more than one in four facing “catastrophic conditions” — with death imminent. 

Despite these very well-documented facts, there have been no calls in the west to exclude Israel from FIFA or UEFA competitions, or for its athletes to be disqualified from the Paris 2024 Olympics. As things stand, a hastily-deleted Gary Lineker retweet arguably represents the high-water mark of western support for a boycott of Israeli sporting teams. As noted by Karim Zidan, “This discrepancy in handling international conflicts highlights a concerning double standard that undermines the credibility of these sporting organizations.” It should also be noted that arguments to suspend Israel predate its response to Hamas’s October 7 war crimes. Antoine Duval highlighted Israel as the most obvious example of the double standard inherent in FIFA’s and UEFA’s decisions to exclude Russian football teams from competition in an article published long before October 7. “The FUR is no more directly responsible for the illegal Russian invasion of Ukraine than the IFA for the illegal occupation by the Israeli army of the Occupied Palestinian Territories. Why are other wars not deemed so disruptive that they must lead to the suspension of national teams?”

Outside of the west, a call to suspend Israel from sporting competition is far less controversial and has some clear and obvious precedents. In December 2023, the Jordanian Football Association called for all Israeli sports federations to be suspended from international competition in a move that recalls the 1974 expulsion of Israel from the Asian Football Confederation following a Kuwaiti motion. Israeli’s national team spent two decades in the sporting wilderness until UEFA agreed to allow Israel to be part of the European confederation in the 1990s.

At the time of Israel’s expulsion from the AFC, sporting boycotts were in vogue. FIFA excluded the South African football team from competition in 1961 on account of the state’s apartheid policy, its athletes were excluded from the 1964 Olympic games and South Africa was expelled entirely from the IOC in 1970. South Africa was only readmitted to the IOC and FIFA in 1992, which was the same year that UEFA disqualified Yugoslavia from the European Championships. In this case, UEFA’s hand was forced by international law, more specifically United Nations Security Council issued Resolution 757 , which was issued a few months before the tournament began and among other things called on all states to “take the necessary steps to prevent the participation in sporting events on their territory of persons or groups representing the Federal Republic of Yugoslavia (Serbia and Montenegro).”

In the realm of sporting boycotts, the case of Yugoslavia appears to be one of the few instances where the exclusion of a sporting team - however morally justified - was driven by precise rules and due process. Those rules and processes were that of the UN Security Council, an anachronistic and profoundly anti-democratic body controlled by its five permanent members - Russia, China, the United States, the United Kingdom, and France - none of whom could ever be called peaceniks.

How sport might use its political leverage

Is it possible for sport to safely navigate its way through these choppy and dangerous geopolitical waters? Perhaps not, but it could at least chart a course.

It bears repeating that sport is profoundly political, and international sport is an important actor in geopolitical affairs. Rob Nixon, in his study of the sporting boycott of apartheid-era South Africa, beautifully articulated the point. “International sporting contests serve as a form of national recreation in more than one sense of the phrase. They are exhibitionist events imbued with the authority to recreate or simulate the nation, offering a vigorous display of a proxy body politic.” Exclusion from these events therefore comes at a political cost to the states affected. This means that sport has political power and leverage. Not as much as the United States or Russia or Israel maybe, but some.

The problem is that FIFA and the IOC are using their leverage largely  in the service of the political interests of the global north, excluding some states and turning a blind eye to others. To return to the point of Alexander Xanthaki, if illegal and ruinous wars of aggression were grounds for exclusion, the US-led invasion of Iraq in 2003 would have resulted in their athletes’ exclusion from the Athens Olympics in 2004. Might all of the UK’s national federations have been excluded from qualifying games for the 2006 men’s World Cup in Germany  for their participation in the Iraq war?  

In all likelihood these glaring double standards are of little concern to FIFA or the IOC, organisations which have grown fat on the billions of dollars in revenue that they generate from selling image and broadcast rights, but they should be of concern to people who genuinely care about the governance of sport. 

So what could progressive governance look like? Should FIFA and the IOC impose rules that provide for national teams to be excluded from competitions on political grounds? Well since they already do exclude teams, and given the leverage that they obviously possess, it would make a lot more sense for them to be proactive and set their own rules, than to be reactive and respond to the political whims of others. As Antoine Duval has argued, it would be preferable if sporting bodies were to “ openly acknowledge the need to take decisions on the basis of political or ethical considerations in certain situations and to introduce proper procedures and rules in their statutes and rulebooks to deal with such cases.”

In terms of what the rules should be, that would be a hotly-debated matter.  The argument that states should be excluded for gross and serious violations of human rights might be seductive to human rights advocates, but in practice it would be entirely unworkable - which violations? Decided by whom? A set of objective and measurable criteria is probably the only way that FIFA and the IOC could exercise their leverage appropriately. For the sake of argument, here are a couple of suggestions.

The ICJ is a highly reputable and well-established court that resolves disputes between states, all of whom accept its jurisdiction. On 26 January it issued a damning assessment of Israel’s conduct in Gaza and ordered it to desist from acts that violate the Genocide Convention. The ICJ issued similar provisional measures calling on Russia to “suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” on 16 March 2022 - only a few weeks after the invasion. Russia has refused to abide by the court’s decision. It remains unclear if Israel intends to follow the court’s orders. FIFA and the IOC could fairly easily include a rule excluding teams and athletes from countries that don’t abide by the ICJ’s decisions. 

A second, more radical, suggestion would be to make ratification of critical international treaties that promote international peace and justice a prerequisite for participation in international sporting events. The Rome Statute of the International Criminal Court , for example, gives the ICC authority to prosecute individuals for the commission of the most serious international crimes and commits the 123 countries that have ratified the treaty of accepting its jurisdiction. The United States, Russia, China, India and Israel are among the states that have not ratified the Rome Statute. 

To reiterate, these are merely suggestions for the types of steps that  progressive sporting bodies might consider, and as one prominent campaigner has noted, “International justice has always fallen flat when it comes to dealing with powerful Western interests”. But consider a world where Israel’s participation in the Paris 2024 Olympics rested on it abiding by the ICJ’s decision. Imagine a situation where the United States, which has provided crucial political, military and financial support for Israel’s actions in Gaza, faced the prospect of hosting the 2026 World Cup without its national team involved unless it agreed to the jurisdiction of the ICC.

We should be clear-eyed about the fact that western support for Israel’s actions in Gaza has left the international rules-based order in tatters. Future generations may spend their lives rebuilding faith in and support for a more equitable and dependable system of global order and peace. Sport, for its part,will always be vulnerable to a battering by geopolitical forces that it cannot counter, but it can at least gird itself with rules that mitigate against it being used as a tool of unaccountable power.

On Wednesday 20 January 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organising a Zoom In webinar on the recent judgment of the General Court in the case International Skating Union (ISU) v European Commission, delivered on 16 December 2016. The Court ruled on an appeal against the first-ever antitrust prohibition decision on sporting rules adopted by the European Commission. More specifically, the case concerned the ISU’s eligibility rules, which were prohibiting speed skaters from competing in non-recognised events and threatened them with lifelong bans if they did (for more details on the origin of the case see this blog). The ruling of the General Court, which endorsed the majority of the European Commission’s findings, could have transformative implications for the structure of sports governance in the EU (and beyond).

We have the pleasure to welcome three renowned experts in EU competition law and sport to analyse with us the wider consequences of this judgment.

Guest speakers:

• Dr. Ben Van Rompuy (Leiden University & representative of the complainants before the EC)
• Dr. Katarina Pijetlovic (Manchester Metropolitan University)
• Prof. Stephen Weatherill (Oxford University)

Moderators:

• Dr Antoine Duval (Asser Institute)
• Dr Marjolaine Viret
  

Registration HERE

Zoom In webinar series

In December 2020, The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret launched a new series of zoom webinars on transnational sports law: Zoom In. You can watch the video recording of our first discussion on the arbitral award delivered by the Court of Arbitration for Sport (CAS) in the Blake Leeper v. International Association of Athletics Federations (IAAF) case on the Asser Institute’s Youtube Channel. Click here to learn more about the Zoom In webinar series.

In autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an adverse analytical finding with regard to human growth hormone (hGH). The timing was ideal. As the FINADA Supervisory Body in view of the A and B positive samples initiated disciplinary proceedings against Lalluka for violation of anti-doping rules, the Veerpalu case was pending before the CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until the CAS rendered the award in the Veerpalu case. Indeed, on 25 March 2013, the CAS shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule violation for recombinant hGH (rhGH) on the grounds that the decision limits set by WADA to define the ratio beyond which the laboratories should report the presence of rhGH had not proven scientifically reliable.

The Veerpalu precedent has become a rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed the road that Veerpalu paved and sought to overturn their doping ban by alleging the scientific unreliability of the hGH decisions limits. Without success, however. With the full text of the CAS award on the Lallukka case released a few weeks ago[1] and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on the validity of the hGH test. In short: Should the Veerpalu case and its claim that doping sanctions should rely on scientifically well founded assessments be considered as a fundamental precedent or as a mere exception?

Starting with the basics: the Human Growth Hormone (hGH) Test and the scientific controversies

The hGH is a hormone synthesized and secreted by cells in the anterior pituitary gland located at the base of the brain.[2] It is an endogenous substance, i.e. naturally produced in humans such as testosterone, and is necessary for skeletal growth, recovering cell and tissue damage. When released by the liver, hGH bonds to receptors in targeted cells to stimulate an increase in the levels of insulin growth factors, which stimulate growth and development of the cells.[3] It is noteworthy that the level of total hGH concentration varies in a human’s blood naturally and substantially over the course of the day.[4] High concentrations of hGH are considered abnormal and associated with anabolic substances.

Although there is no scientific consensus on whether higher levels of hGH actually enhance performance[5], anti-doping authorities have long been trying to detect and prevent the use of rhGH. The first blood test for hGH was introduced only at the 2004 Olympic Games in Athens. The major challenge in developing a doping test for hGH has been the uncertainty and variability in data used to establish the so called decision limits, namely a cut-point to assess whether an athlete’s blood higher hGH levels are natural or a result of doping. In 2010, the World Anti-Doping Agency (WADA) published its guidelines for the hGH test, including the test’s decision limits.[6] The testing is done through the use of two distinct sets of reactive tubes coated with two combinations of antibodies, which are referred to as Kit1 and Kit2.[7] The ratio of concentration of rhGH versus other natural derived isoforms of hGH are measured with the Kits which are developed to detect the administration of exogenous hGH. Under the 2010 Guidelines, the decision limit values as regards to male athletes are 1.81 for Kit 1 and 1.68 for Kit 2. Any value above these limits triggers the report by the laboratory of a positive test.

Nevertheless, since its introduction, the WADA hGH test has raised multiple concerns in the scientific community with regard to the lack of reliable and valid scientific knowledge about factors other than doping that might affect the relationships upon which the test relies.[8] The varying levels of all types of hGH make it difficult to establish an accurate baseline measurement for natural hGH values and rations. For instance, hGH can be affected by factors such as gender, age, exercise, body consumption, time of day and stress. Also psychological or pathological factors may affect the ratio. In view of the lack of significant knowledge with regard to the factors that may result in suspicious hGH values, it is highly possible that athletes are mistakenly labelled as ‘cheaters’.

Although the decision limits of hGH tests are still being debated, in the last few years, the CAS has been called to strike the right balance between the need for fairness in sport and the risk of devastating an athlete’s life, career and reputation on the basis of unsound scientific assessments. Crucially, it will be demonstrated that the CAS panels adopted a rather erratic approach when interpreting the hGH decision limits, adding legal uncertainty to the current scientific uncertainty.

The Veerpalu ‘no doping sanction in absence of scientific validity’ threshold

On 14 February 2011, Andrus Veerpalu, the Estonian Olympic Gold Medalist in cross-country skiing, was tested positive for hGH. On 12 September 2011, he appealed the three-year doping ban for use of hGH imposed by the International Ski Federation (FIS) and he became the first to challenge the validity of hGH tests before the CAS. With its decision on 25 March 2013, the CAS stunned the anti-doping world: it overturned Veerpalu’s drug suspension on the grounds that the decision limits of the hGH test could not be reliably verified.

But, how did the CAS reach this striking ruling? First and foremost, the CAS did not question the hGH test itself, nor the scientific validity of the analytical method used to detect rhGH. The Court’s criticism rather focused on the lack of sufficient scientific validity in defining the decision limits set by WADA beyond which laboratories should report the presence of rhGH.[9] Namely, the Court questioned the use of statistics in interpreting the hGH test results and detected three procedural flaws: (1) inconsistencies in the studies conducted, (2) the lack of peer review on WADA hGH studies and (3) the insufficient evidence submitted during the proceedings.[10] In particular, as the studies on hGH are concerned, the panel concluded that the population study that had been conducted to establish the decision limits of the hGH test was inadequate.[11] In view of the procedural flaws detected in the statistical analysis conducted by WADA to establish the hGH baseline, the panel did not consider itself comfortably satisfied as to the reliability of the decision limits for the hGH test, and acquitted Veerpalu.[12]

To reverse a doping case and openly question WADA’s hGH test decision limits was an unprecedented move in light of the CAS’ usual hands-off approach when dealing with WADA policies. The Veerpalu award was not only a huge blow to WADA hGH tests, but it also triggered significant rethinking of the standards applicable in the anti-doping fight. As an immediate consequence of the award, all reporting of adverse analytical findings for rhGH were frozen pending the completion of new studies on the determination of hGH test decision limits based on a bigger population-based study. Secondly, a new rebuttable presumption of the scientific validity of the analytical methods and decision limits for rhGH was introduced in the revised WADC 2015 at Article 3.2.1. [13] The new rule shifts the burden of establishing flaws in the scientific validity of analytical tools on the athlete’s shoulders.[14] Interestingly enough, the presumption applies only to methods and decisions limits that are scientifically reliable, meaning they must have been approved by WADA after consultation with the relevant scientific community and subject to peer review.[15] At the same time, the provision intends to set new procedural requirements in the judicial review of the analytical methods or decision limits used by WADA. Such a review is subject (1) to a mandatory notice to WADA of the challenge and (2) to the right for WADA to intervene in the CAS proceedings and request from the CAS to appoint an appropriate scientific expert to assist the panel in the evaluation of the challenge.[16]

More importantly, the Veerpalu award sets an important threshold in doping cases – as well as in every case where the CAS has to deal with scientific evidence: the need for scientific validity and systematic transparency before the imposition of any sanction. This development in conjunction with the new rule of evidence of Article 3.2.1 WADC 2015 can be considered as paving the way for a fairer and more realistic chance for Athletes to successfully rebut a doping sanction.[17]

Sinkewitz hGH case: A surprising twist to the Veerpalu saga

The Veerpalu case soon inspired athletes facing anti-doping sanctions. The German cyclist Patrik Sinkewitz and Lallukka, two athletes detected positive for rhGH, attempted to overturn their doping ban based on the Veerpalu precedent. However, the CAS begged to differ.

In the Sinkewitz case, the panel justified its deviation from the Veerpalu award by introducing the ‘borderline’ criterion. Unlike Veerpalu, Sinkewitz’s samples were far higher than the WADA decision limits and, as a result, he could not benefit from the uncertainty of a borderline situation.[18] In view of this, Sinkewitz was found ineligible for 8 years, since it was his second anti-doping rules violation. More importantly, the panel relied on a different evaluation of the hGH test, contradicting thereby the Veerpalu reasoning. According to the Sinkewitz panel, the decision limits defined in WADA Guidelines represent mere means of evidence and can serve as a recommendation to the laboratories, without being, however, mandatory and decisive for determining whether an anti-doping rule violation occurred.[19] This practically means that even in the instance of a ratio below the decision limits or in a borderline situation like the Veerpalu one, the panel could be ‘comfortably satisfied’ by expert evidence identifying rhGH irrespectively of the validity of the decision limits.[20] Contrary to the Veerpalu panel which seemed to rely on a perception of the hGH test as a quantitative analysis applicable to Threshold Substances covered by the Technical Document on Decision limits, the Sinkewitz panel - by characterizing the decision limits as a mere technical criterion for the identification of rhGH - seemed to perceive the hGH test analysis as a qualitative one, implying that more criteria are taken into account.[21]

Lallukka hGH case: Reconciling a conflicting jurisprudence ?

The Sinkewitz panel’s pattern with regard to the hGH tests decision limits was later followed by the Lallukka panel. The latter validated the Sinkewitz conclusion that the decision limits have no legal status and it further used this argument in order to rebut Lallukka’s objection about the retroactive application of legal rules. Since decision limits are not rules as such, but rather means of evidence figured as ‘guidelines’, the rule against retroactivity cannot apply to evidentiary matters.[22] However, it can me remarked that as in the Sinkewitz case the CAS chose to abstain from any criticism with regard to WADA’s practice to incorporate the decision limits into guidelines, instead of enshrining them directly in a mandatory document.[23]

Furthermore, the deviation from the Veerpalu precedent was based on the evidence provided in two independent studies mandated by WADA, i.e. the Mc Gill Study and a study from Prof Jean-Christophe Thalabard, which were merged into a peer- reviewed joint publication paper. According to the panel, the studies responded adequately to the concerns expressed in the Veerpalu case and established the decision limits with a 99.99% specificity. As a result, the panel was comfortably satisfied as regards the reliability of the hGH tests decision limits and Lalluka could not benefit from the Veerpalu precedent.[24]

Nevertheless, although at a first glance being in line with the Sinkewitz award, the Lallukka award added an interesting twist regarding the starting point of the athlete’s suspension. In fact, the panel by reference to the principle of fairness concluded that the athlete’s disqualification would start only from June 2014 onwards, when WADA was in a position to answer in a documented manner, i.e. through the peer-reviewed joint publication paper, the issues raised in the Veerpalu case.[25] Thus, the panel seems to apply the ‘golden rule’ established in the Veerpalu case that a doping sanction could be imposed only on the basis of reliable scientific knowledge. Thereby, creating a sort of legal bridge between the competing lines of CAS jurisprudence and paving the road to a fair reconciliation preserving the rights of the athletes.

Conclusion: Should Veerpalu Stand?

The Veerpalu ruling was a landmark case for the CAS in doping matters and particularly concerning the hGH test. It set a clear standard for future CAS panels: when exercising their daunting task of reviewing decisions based on complex scientific assessments, they need to ensure that these assessments rely on transparent and rigorous scientific practice of the highest quality. The Sinkewitz and Lallukka cases, however, unveiled an unfortunate (partial) retreat from this position. This is not without consequence regarding the credibility of the CAS and the anti-doping fight. The fight for clean sport must be based on the safest scientific standards possible and, to this end, these standards should stay subjected to full CAS scrutiny. With the new WADC 2015 and the rebuttable presumption of scientific validity for analytical methods and decision limits it enshrines, more intriguing legal challenges against the hGH tests are likely to be brought before the CAS. One may wonder whether this new regime will be advantageous for athletes or whether it is an ‘illusion of fairness’, since it seems highly unlikely that athletes without WADA’s extensive network of laboratories and resources can prove the unreliability of the hGH ratios.[26] Whatever the future brings, one thing remains certain in the anti-doping landscape: the CAS’ absolute reluctance to openly question WADA rules belongs to the past.

[1] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka (20 November 2014)

[2] CAS. 2011/A/2566, Veerpalu v. FIS, 25 March 2013, para 83

[3] J Coleman and J Levien, ‘ The burden of proof in endogenous substance cases’ in M McNamee and V Moller (eds) Doping and Anti-Doping Policy in Sport- Ethical, legal and social perspectives (Routledge 2011) 27-49, 37.

[4] K Fischer and  D Berry, ‘Statisticians introduce science to International Doping Agency: The Andrus Veerpalu case’ , 5

[5] For a critical approach on hGH effect on an athlete’s performance, see A Hoffman and others ‘Systematic review: the effects of growth hormone on athletic performance’ (2008) Annals of Internal Medicine, 747-758

[6] To be noted that there is no material change to this approach in the 2014 Guidelines.

[7] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, para 9

[8] J Coleman and J Levien (n 3), 39.

[9] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’

(19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[10]  CAS. 2011/A/2566, Veerpalu v. FIS (n 2), paras 204-206.

[11] Ibid, para 206.

[12] Ibid

[13] WADC 2015, Article 3.2.1: “Analytical methods or decision limits approved by WADA after consultation within the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. CAS, on its own initiative, may also inform WADA of any such challenge. At WADA’s request, the CAS panel shall appoint an appropriate scientific expert to assist the panel in its evaluation of the challenge. Within 10 days of WADA ’s receipt of such notice, and WADA ’s receipt of the CAS file, WADA shall also have the right to intervene as a party, appear amicus curiae or otherwise provide evidence in such proceeding.”

[14] M Viret, ‘How to make science and law work hand in hand in anti-doping’ (2014) Causa Sport : die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft, Issue 2, 106

[15] WADC 2015, Article 3.2.1 (n 13)

[16] Ibid

[17] A Rigozzi, M Viret and E Wisnosky  ‘Does the World Anti-Doping Code Revision Live up to its Promises? – A preliminary survey in the main changes in the final draft of the 2015 WADA Code, Jusletter of 11  November 2013

[18] CAS 2012/A/2857 Nationale Anti-Doping Agentur Deutschland v. Patrick Sinkewitz (24 February 2014), para 204.

[19] Ibid, para 192

[20] WADC, Article 3.2: “Facts related to anti-doping rule violations may be established by any reliable means, including admissions.”

[21] M Viret and E Wisnosky (n 9)

[22]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 112-116

[23] M Viret and E Wisnosky (n 9)

[24]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 98-99

[25] Ibid, para 137

[26] J Coleman and J Levien (n 3), 39.