Asser International Sports Law Blog

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

The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 2 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.


1. EU law and the CAS case-law

Bearing in mind these questions, it is possible to affirm that under EU law, the specificity of sport

i) refers to the inherent characteristics of sport that set it apart from other economic and social activities and which have to be taken into account in assessing the compatibility of sporting rules with EU law; and

ii) under EU law these inherent characteristics of sport must be  considered on a case by case  basis, per the Wouters test as developed by the ECJ in the Meca Medina ruling.

Both aspects can be found in the CAS case-law too, although the CAS case-law shows some remarkable differences and peculiarities. From a general point of view, the application of the principle of specificity of sport in the CAS case-law represents an aspect of the more general issue related to the application of EU law by the CAS. However, the purpose of this paper is not to fully examine if and to what extent the CAS arbitrators apply EU law rules on free movement and competition; rather, the aim is to analyse the way the CAS deals with the concept of the specificity of sport, highlighting similarities and differences compared to the ECJ.

Taking for granted that ‘a CAS panel is not only allowed, but also obliged to deal with the issues involving the application of [EU] law’,[1] as far as the compatibility of sporting rules with EU law is concerned the CAS case-law shows different degrees of engagement. For instance, in the ENIC award concerning the so-called UEFA integrity rule, the CAS panel went through a complete competition-law analysis in perfect harmony with the Wouters et al. ruling by the ECJ.[2] On the contrary, in the above-quoted Mutu case, the issue of compatibility of the FIFA’s transfer regulations with EU competition law was analysed in a rather simple way, merely stating that the FIFA rules at stake were not anti-competitive under EU competition law without giving any reason to support this conclusion. More recently, in the Galatasaray and Milan A.C. awards, concerning the UEFA’s financial fair-play regulations, the CAS  applied a detailed analysis of EU competition law. However, in both cases, according to the CAS the proportionate character of sanctions listed in the UEFA’s financial fair-play regulations cannot affect the evaluation of the legitimacy of these regulations under Art. 101 TFEU. This conclusion represents a clear breaking point with respect to the ECJ case-law, according to which the evaluation of the restrictive effects of a rule necessarily presupposes the analysis of the proportionate character of the sanction imposed in the event of a violation of that rule as well.[3]   In regard to EU free movement, the CAS case-law tends to be less analytical in terms of the principle of proportionality. For instance, in the RFC Seraing award  which concerned both EU free movement and competition law, the CAS panel mainly focused on the legitimate objectives of the contested rule (FIFA’s ban on Third-Party Ownership – TPO), merely affirming that the restrictive measures under EU free movement were justified and inherent in the pursuit of those objectives.More...



The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 1 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.*

 

1. Introduction.

The so-called specificity of sport represents one of the most debated, if not the most debated, but still undefined issue under European Union (EU) law. A noteworthy peculiarity is that the specificity of sport is frequently mentioned in several legislative and political documents issued by EU institutions, however it is not expressly referred to in any judgment by the European Court of Justice (ECJ).Conversely, the Court of Arbitration for Sport (CAS) case-law on Art. 17 of FIFA Regulations on status and transfer of players (RSTP) has repeatedly and expressly referred to the specificity of sport.[1] Apparently, the concept of specificity of sport has different meanings and purposes in the ECJ and CAS jurisprudence. In this blog (divided in two parts), I will try to analyse those two different meanings and to what extent the CAS case-law is consistent with the concept of specificity of sport as elaborated under EU law. More...

SFT rejects Semenya appeal: nothing changes - By Andy Brown

Editor's note: Andy Brown is a freelance journalist who has been writing about the governance of sport for over 15 years. He is the editor of The Sports Integrity Initiative where this blog appeared first.


For the last three days, I have been struggling with what to write regarding the Swiss Federal Tribunal’s (SFT) Decision to dismiss a challenge from Caster Semenya and Athletics South Africa (ASA) against the Court of Arbitration for Sport’s (CAS) Decision to dismiss a challenge to the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), otherwise known as the DSD Regulations. From reading World Athletics’ statement welcoming the ruling, one could be forgiven for thinking that it had won a major trial. Sports journalists, accustomed to covering events now curtailed by Covid-19, focus on the fact that Semenya has ‘lost’ her case against the DSD Regulations. Neither assertion is strictly accurate.

The SFT’s powers to review the CAS’s ruling are severely limited. It can only consider whether the CAS Decision violates ‘widely recognised principles of public order’ on Swiss public policy grounds. The SFT has only reversed a decision based on a a violation of Swiss public policy once in 30 years.

The SFT didn’t reconsider the evidence put forward to the CAS. ‘For there to be incompatibility with public policy, it is not enough that the evidence has been poorly assessed, that a finding of fact is manifestly false or that a rule of law has been clearly violated’, its Decision reads. ‘The only question to be resolved is in fact whether or not the verdict of the CAS renders the referred award incompatible with substantive public policy’. 

There were questions about whether the appeal from Semenya and ASA qualified to be reviewed by the SFT in the first place. World Athletics is a private organisation headquartered in Monaco, and the SFT was troubled as to whether such a complaint brought by a South African athlete against an overseas private organisation is capable of violating Swiss public policy.

‘It is doubtful whether the prohibition of discriminatory measures falls within the scope of the restrictive concept of public order when the discrimination is committed by a private person and occurs in relations between individuals’, the Decision quotes from its pervious 29 July 2019 Decision, which refused the ASA’s request to provisionally suspend the application of the DSD Regulations. ‘In any event, there is no need to examine this question further here since […] the award under appeal does not in any way establish discrimination which would be contrary to public order’

The SFT ruled that the CAS was correct to uphold conditions of participation for 46 XY DSD athletes in order to guarantee fair competition for certain disciplines in female athletics. In doing so, the SFT was ruling on whether the decision taken by the CAS violates public policy, based only on the complaints brought forward by Semenya and ASA. 

Semenya and the ASA had challenged the CAS Decision based around the idea that the DSD Regulations are discriminatory. The CAS held that they are discriminatory, but agreed with the IAAF (as World Athletics was then named) that such discrimination was necessary to protect its female category. The SFT ruled that even if the discriminatory rules of a private organisation such as the IAAF were considered able to pose a threat to public order, Semenya and the ASA had failed to demonstrate that the CAS Decision was so egregious that it posed such a threat.

‘Caster Semenya essentially alleges a violation of the prohibition of discrimination’, reads the Swiss Federal Supreme Court statement. ‘The CAS has issued a binding decision based on the unanimous opinion of the experts who were consulted that testosterone is the main factor for the different performance levels of the sexes in athletics; according to the CAS, women with the “46 XY DSD” gene variant have a testosterone level comparable to men, which gives them an insurmountable competitive advantage and enables them to beat female athletes without the “46 XY DSD” variant. Based on these findings, the CAS decision cannot be challenged. Fairness in sport is a legitimate concern and forms a central principle of sporting competition. It is one of the pillars on which competition is based. The European Court of Human Rights also attaches particular importance to the aspect of fair competition. In addition to this significant public interest, the CAS rightly considered the other relevant interests, namely the private interests of the female athletes running in the “women” category.’

Such strong support for the principle behind its DSD Regulations was rightly welcomed by World Athletics. Its statement asserted that the SFT ‘acknowledged that innate characteristics can distort the fairness of competitions’. I would argue that the SFT ruling didn’t do this, but rather found that a CAS Decision asserting this didn’t violate Swiss public policy. Semantics, perhaps.

Likewise, when World Athletics quotes the SFT Decision as confirming that ‘It is above all up to the sports federations to determine to what extent a particular physical advantage is likely to distort competition and, if necessary, to introduce legally admissible eligibility rules to remedy this state of affairs’, it is paraphrasing two texts quoted in the SFT Decision. The first is ‘La qualification juridique des rules autonomes des organizations sportive’ by Jérôme Jaquier, 2004. ‘Inborn characteristics specific to athletes in a particular group can also distort the fairness of competition’, the SFT Decision quotes from Jaquier. ‘When they enact regulations, the objective of sports federations is to ensure fair and equitable competition’.

The context of the second quote, from ‘Sportrecht – Berücksichtigung der Interessen des Sports in der Rechtsordnung’ by Martin Kaiser, 2011, is even more interesting. It is preceded with a statement from the Swiss Federal Supreme Court, which reads: ‘It is not for the Federal Court to make, abstractly, comparisons between the disciplines to assess whether a particular athlete has an advantage that makes sporting competition meaningless’

‘It is above all for the sporting federations to determine to what extent a particular physical advantage is liable to distort competition’, the SFT Decision quotes from Kaiser. ‘And, if so, to establish legally admissible eligibility rules to remedy this state of affairs’. 

Again, such details might be considered as semantics. But – I would argue – important semantics. Reading the media maelstrom that has resulted from the SFT Decision, one could be forgiven for assuming that Semenya has lost her case, and has no chance of ever defending her 800m title. However, a statement issued by her lawyers reveals that she intends to challenge the ruling in European and domestic courts.

“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am”, the statement continues. “Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.” More...



The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

 

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet! More...


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

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


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

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


Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

 

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).More...

Caster Semenya Case Exposes Design Flaws in International Sports Governance - By Roger Pielke Jr.

Editor's note: Roger Pielke Jr. is a professor at the University of Colorado Boulder

 

The decision this week by the Swiss Federal Tribunal not to revisit the arbitral decision of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help to expose a major design flaw in international sports governance. Specifically, the institutions that collectively comprise, create and enforce “sports law” appear incapable of addressing flawed science and violations of basic principles of medical ethics.

While different people will have different, and legitimate, views on how male-female competition classifications might be regulated, the issues highlighted involving science and ethics are not subjective, and are empirically undeniable. In normal systems of jurisprudence, procedures are in place to right such wrongs, but in sports governance processes in place prevent such course corrections. And that is a problem.

The empirical flaws in the science underpinning the IAAF (now World Athletics) Semenya regulations are by now well understood, and have been accepted by WA in print and before CAS (I was an expert witness for Semenya, and was present when IAAF accepted responsibility for the flawed research). You can read all the details here and in the CAS Semenya decision. I won’t rehash the flawed science here, but the errors are fatal to the research and obvious to see.

One key part of the comprehensive institutional failures here is that the journal which originally published the flawed IAAF research (the British Journal of Sports Medicine, BJSM) has, inexplicably, acted to protect that work from scrutiny, correction and retraction. Normally in the scientific community, when errors of this magnitude are found, the research is retracted. In this case, the BJSM refused to retract the paper, to require its authors to share their data or to publish a critique of the IAAF analysis. Instead, upon learning of the major errors, the BJSM published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the errors. All of this is non-standard, and a scandal in its own right.

The violation of basic principles of medical ethics required by the implementation of the WA Semenya regulations is also not contested. Both WA and the IOC have claimed to uphold the World Medical Association’s Helsinki Declaration on medical and research ethics. Yet, the WMA has openly criticized the WA regulations as unethical and asked doctors not to implement them. In response, WA has stated that it will help athletes who wish to follow the regulations to identify doctors willing to ignore medical ethics guidelines.

Flawed science and ethical violations are obviously issues that go far beyond the case of Caster Semenya, and far beyond sport. In any normal system of jurisprudence such issues would prove readily fatal to regulatory action, either in the first instance of proposed implementation or via review and reconsideration.

Sport governance lacks such processes. At CAS, the panel claimed that matters of scientific integrity and medical ethics were outside their remit. The SFT is allowed to reconsider a CAS decision only on narrow procedural grounds, and thus also cannot consider matters of scientific integrity or medical ethics. So far then, the flaws in the WA regulations – sitting in plain sight and obvious to anyone who looks, have not been correctable.

This leaves the world of sport governance in a compromised position. Some may look past the scientific and ethical issues here, perhaps judging that barring Semenya from sport is far more important that correcting such wrongs. 

Regardless of one’s views on sex and gender classification in sport, the WA regulations and the processes that produced and have challenged them reveal that sports governance has not yet entered the 21st century. Science and ethics matter, and they should matter in sport jurisprudence as well.  It is time to correct this basic design flaw in international sport governance.

Caster Semenya at the SFT – in 10 points - By Jack Anderson

Editor's note: Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne

 

1.     Caster Semenya appealed to the Swiss Federal Court (SFT) arguing that World Athletics’ regulations violated human rights principles relating to gender discrimination and human dignity. The Swiss Federal Tribunal (as at CAS) held that World Athletics’ regulations may prima facie breach such human rights principles but were “necessary, reasonable and proportionate” to maintain fairness in women's athletics;


2.     Although in part addressed at the SFT, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

  • Necessity - is the athletic advantage that Caster Semenya has of such a scientifically-measurable extent that it is necessary for World Athletics to intervene in such an invasive manner? In a broader ethical sense, is the incidence of what the World Athletics’ regulations call “difference of sex development” of such prevalence in the general population, and specifically in middle-distance athletics, that, by way of the principle of “sporting beneficence”, intervention is justified. Or, in contrast, is the incidence of DSD not at a level which justifies a departure from the ethical principle of primum non nocere – first, do no harm?
  • Reasonableness - if World Athletics’ regulations are necessary, is the manner of implementation reasonable and in line with the principle of human and bodily integrity? In answering such a question, the focus must be on the fact that in order to continue to compete in her favourite events (such as the 800 metres) Caster Semenya will have to lower her testosterone level through medication;
  • Proportionate - if World Athletics’ regulations are necessary and reasonable is the manner of implementation proportionate? In answering such a question, the focus must be on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events and in a certain, limited manner.More...


Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

 

On 25 August 2020, the Swiss Supreme Court (Swiss Federal Tribunal, SFT) rendered one of its most eagerly awaited decisions of 2020, in the matter of Caster Semenya versus World Athletics (formerly and as referenced in the decision: IAAF) following an award of the Court of Arbitration for Sport (CAS). In short, the issue at stake before the CAS was the validity of the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation). After the CAS upheld their validity in an award of 30 April 2019, Caster Semenya and the South African Athletics Federation (jointly: the appellants) filed an application to set aside the award before the Swiss Supreme Court.[1] The SFT decision, which rejects the application, was made public along with a press release on 8 September 2020.

There is no doubt that we can expect contrasted reactions to the decision. Whatever one’s opinion, however, the official press release in English does not do justice to the 28-page long decision in French and the judges’ reasoning. The goal of this short article is therefore primarily to highlight some key extracts of the SFT decision and some features of the case that will be relevant in its further assessment by scholars and the media.[2]

It is apparent from the decision that the SFT was very aware that its decision was going to be scrutinised by an international audience, part of whom may not be familiar with the mechanics of the legal regime applicable to setting aside an international arbitration award in Switzerland.

Thus, the decision includes long introductory statements regarding the status of the Court of Arbitration for Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by panels in international arbitration proceedings. The SFT also referred extensively throughout its decision to jurisprudence of the European Court of Human Rights (ECtHR), rendered in cases related to international sport and the CAS. More...

New Transnational Sports Law Articles Released on SSRN - Antoine Duval

I have just released on SSRN four of my most recent articles on Lex Sportiva/Transnational Sports Law. The articles are available open access in their final draft forms, the final published version might differ slightly depending on the feedback of the editors. If you wish to cite those articles I (obviously) recommend using the published version.

I hope they will trigger your attention and I look forward to any feedback you may have!

Antoine


Abstract: This chapter focuses on the emergence of a transnational sports law, also known as lex sportiva, ruling international sports. In the transnational law literature, the lex sportiva is often referred to as a key example or case study, but rarely studied in practice. Yet, it constitutes an important playground for transnational legal research and practice, and this chapter aims to show why. The focus of the chapter will first be on the rules of the lex sportiva. Law, even in its transnational form, is still very much connected to written rules against which a specific behaviour or action is measured as legal or illegal. As will be shown, this is also true of the lex sportiva, which is structured around an ensemble of rules produced through a variety of law-making procedures located within different institutions. The second section of this chapter will aim to look beyond the lex sportiva in books to narrate the lex sportiva in action. It asks, what are the institutional mechanisms used to concretize the lex sportiva in a particular context? The aim will be to go beyond the rules in order to identify the processes and institutions making the lex sportiva in its daily practice. Finally, the enmeshment of the lex sportiva with state-based laws and institutions is highlighted. While the lex sportiva is often presented as an autonomous transnational legal construct detached from territorialized legal and political contexts, it is shown that in practice it operates in intimate connection with them. Hence, its transnational operation is much less characterized by full autonomy than assemblage.


Abstract: This chapter aims to show that the work of the Court of Arbitration for Sport (‘CAS’), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports governing bodies (‘SGBs’), govern international sports. It is argued that, instead of purity and autonomy, the CAS’ judicial practice is best characterised by assemblage and hybridity. This argument will be supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterising contemporary legal practice.


Abstract: Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.


Abstract: In 1998 the FIFA welcomed the Palestinian Football Association as part of its members - allegedly, as an attempt by then FIFA President, the Brazilian João Havelange, to showcase football as an instrument of peace between Israeli and Palestinians. Ironically, almost 20 years after Palestine’s anointment into the FIFA family, instead of peace it is the conflict between Israeli and Palestinians that moved to FIFA. In recent years the Palestinian Football Association (PFA) and the Israeli Football Association (IFA) have been at loggerheads inside FIFA over the fate - I will refer to it as the transnational legality – of five (and then six) football clubs affiliated to the IFA which are physically located in the Israeli settlements in the Occupied Palestinian Territories (OPT). This chapter chronicles the legal intricacies of this conflict, which will serve as a backdrop to discuss arguments raised regarding the legality of business activities of corporations connected to the Israeli settlements. Indeed, as will be shown in the first part of this chapter, the discussion on the legality of economic activities in the OPT has recently taken a business and human rights turn involving systematic targeting of corporations by activists. Interestingly, we will see that this business and human rights turn also played a role in the conflict between the IFA and the PFA. This case study is therefore an opportunity to examine how the strategy of naming and shaming private corporations, and in our case not-for-profit associations, for their direct or indirect business involvement in the settlements has fared. It is also an occasion to critically assess the strength of the human rights ‘punch’ added to the lex sportiva, by the UNGPs.

Asser International Sports Law Blog | How 2019 Will Shape the International Sports Law of the 2020s - By Thomas Terraz

Asser International Sports Law Blog

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

How 2019 Will Shape the International Sports Law of the 2020s - By Thomas Terraz

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

 

1.     Introduction

As we begin plunging into a new decade, it can be helpful to look back and reflect on some of the most influential developments and trends from 2019 that may continue to shape international sports law in 2020 and beyond. Hence, this piece will not attempt to recount every single sports law news item but rather identify a few key sports law stories of 2019 that may have a continued impact in the 2020s. The following sections are not in a particular order.

2.     Court of Justice of the European Union’s TopFit Decision

The Court of Justice of the European Union’s decision in TopFit in June sent shockwaves in the EU sports law world by finally providing some answers to a long untouched issue of purely amateur sport. The case concerned an Italian amateur athlete, living in Germany for several years who had been precluded from participating in a German national championship in the senior category due to no longer fulfilling the nationality requirements because of a change of the Deutscher Leichtathletikverband’s (DLV) regulations governing this issue. Daniele Biffi, the athlete in the case, argued that this violated his European citizenship rights under Articles 18 and 21 TFEU. Leading up to the final decision, the Advocate General’s opinion in the case, analyzed in an earlier blog, had sidelined this argument in favor of embracing a more familiar economic argument based on the freedom of establishment. AG Tanchev contended that an analysis based on Article 18 and 21 TFEU may open a pandora’s box by giving horizontal direct effect to Article 21 TFEU. In the end, the CJEU took the issue of European citizenship rights head on. The CJEU’s decision, also analyzed in our blog, focused on three themes: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and the justifications and accompanied proportionality requirements to nationality restrictions in national championships. It found that Mr. Biffi could rely on Articles 18 and 21 TFEU and ruled that the DLV’s justifications for the rule change were disproportionate.

All things considered, there are a variety of ways TopFit may have a lasting impact. For example, the ‘golden rule’ of EU sports law had once been that an economic dimension was always needed to trigger the applicability of EU law. This is clearly no longer the case as the CJEU in TopFit expressly confirmed that European citizenship rights, which do not require an economic dimension to be invoked, could be relied upon in a sports related case, meaning that all sport activity is subject to EU law. Additionally, TopFit may have unlocked the true potential behind European citizenship rights by giving them horizontal direct effect, which may have ramifications far beyond sports law.[1]  In the years ahead, it will be interesting to see whether this will trigger a flood of new cases based on European citizenship rights.

3.     Decision of the Bundeskartellamt (German Competition Authority) Concerning Rule 40 of the Olympic Charter

As has become tradition in the lead up to an Olympic year, athletes have once more been pushing back against bye-law 3 of rule 40 of the Olympic Charter (OC), which restricts advertisements from athletes participating in the Olympic Games. While rule 40’s intent is to combat ambush marketing at the Games to protect the value of the Olympic Partner Programme (TOP), athletes have argued that it severely restricts their ability to financially exploit their sport achievements during the Olympic Games, which for many is a once in a lifetime opportunity for greater exposure.[2] This is compounded by the fact that many athletes struggle to make a living from their sport. This situation most recently culminated in a decision of the Bundeskartellamt (the German competition law authority) that focused on this issue. In its preliminary assessment of the case, the Bundeskartellamt took a restrictive view of when limitations on athlete advertisements could be justified by narrowly interpreting ambush marketing and finding that restrictions on advertisement must aim to protect specific intellectual property rights. In the end, the Deutscher Olympischer Sportbund (Germany’s national Olympic committee) made several commitments to resolve the case.[3]

The decision is likely to (and has already to a certain extent[4]) help spark a shift in the IOC’s position on this issue. Furthermore, the British Olympic Association has just recently faced a new complaint on behalf of some of its athletes. Regardless, it is clear the European Commission is closely following the situation and given the Bundeskartellamt’s decision is only enforceable within Germany, there is a continued possibility that the Commission and ultimately the CJEU may eventually have a final say on this issue. Rule 40 undoubtedly is an issue that deserves attention, especially with Tokyo 2020 around the corner.

4.     Sun Yang’s Public Hearing at the CAS

2019 also proved to be quite the historic year for sport arbitration since for the second time in its 35-year history, the Court of Arbitration for Sport (CAS) conducted a public hearing. It signals that the European Court of Human Rights’ (ECtHR) Pechstein decision is starting to have a transformative effect at the CAS. To quickly recap, the ECtHR had found in Pechstein that clauses that impose CAS arbitration as a condition to participate in sport activity amount to forced arbitration, meaning that in cases resulting from such circumstances (especially disciplinary cases) the CAS must observe Article 6§1 of the European Convention of Human Rights (ECHR), which sets out the right to a fair trial.[5] This includes that ‘in principle, litigants have a right to a public hearing’.[6] Consequently, parties have greater room to request a public hearing at the CAS, especially when the dispute is of a disciplinary nature.[7] Hence, Sun Yang’s public hearing may be heralding a new era where public hearings at the CAS become a common display.

Sun Yang’s hearing also highlighted some of the practical challenges of conducting live hearings when the proceedings are in a different language as some of the parties and/or witnesses. As covered in our monthly report, the interpreters failed to properly translate multiple testimonies during the Sun Yang hearing. Many wondered whether there would be a need for greater safeguards in terms of the quality of translation given how it can affect one’s right to be heard. However, the CAS maintained that it could not directly hire its own ‘official’ translators because it would potentially threaten its ‘independence and neutrality’. Yet, one could envision that the CAS would set certain minimum standards for parties’ interpreters and or manages a list of accredited interpreters from which the parties could pick. In any event, this case signals the beginning of a new public era in sports arbitration that will profoundly shift the way the game is played at the CAS in the 2020s.

5.     New FIFA Legal Portal

FIFA has taken a step towards increasing its transparency through the launch of a new legal portal in which it has undertaken to publish all the decisions of the Disciplinary Committee, Appeal Committee, the Adjudicatory Chamber of the FIFA Ethics Committee, the Dispute Resolution Chamber, the Player Status Committee, the CAS where FIFA is a party, and a multitude of other documents with a legal dimension. According to FIFA, these decisions will be updated every 4 months, meaning that a new batch of decisions should be expected to be posted soon. The initiative for the FIFA Legal portal was resulting from a push for greater transparency in its governance as a cornerstone of its 2016 FIFA 2.0: The Vision for the Future.

Increasing transparency in this manner will give greater room for stakeholders and the general public to keep FIFA accountable, review the work of its disciplinary bodies and criticise the legal reasoning they use. However, only time will tell whether this portal will deliver a reliable and useful level of transparency enabling a rigorous public scrutiny on FIFA.

6.     Caster Semenya Case

Caster Semenya’s struggles with World Athletics (formerly IAAF) continued in 2019, culminating in a CAS award followed by an interim decision of the Swiss Federal Tribunal (SFT), both in favor of World Athletics. The case revolved around World Athletics’ DSD Regulations (difference of sex development) that required athletes competing in the female category in certain events (400m to one mile) at an international level to keep their testosterone levels below five nmol/L. Caster Semenya challenged these regulations arguing that they were ‘unfairly’ discriminating against females and especially those with ‘certain physiological traits’ because they were not scientifically based, they are ‘unnecessary to ensure fair competition within the female classification’ and would likely ‘cause grave, unjustified and irreparable harm’. The CAS award found that the DSD Regulations are discriminatory, however, they are also proportionate to World Athletics’ ‘aim of preserving the integrity of female athletics’. The award was subsequently appealed to the Swiss Federal Tribunal who in a second interim decision lifted its provisional suspension of the DSD Regulations. With this decision, Caster Semenya was barred from participating in the World Championships in Doha.

Looking at the case as a whole, some have underlined the manner in which World Athlete’s regulations only target women and argued that it is fundamentally rooted in gender stereotypes. It also illustrates how certain assumptions on sex[8] have shaped World Athletics policies on this issue, while others also contend that it is unethical to force athletes to have to reduce their testosterone levels if there is no underlying medical need.[9]  To be fair, the issue is not entirely black and white and nuanced arguments have also been made in support of testosterone testing.[10] In any event, this case will necessarily become an important classic of international sports law and most likely linger in the docket of the ECtHR (or of the South African constitutional court) for years to come. It will refine the scope of the autonomy of SGBs and test the reputation of the CAS.   

7.     Russian Doping Scandal Continues

The last, and perhaps the news item that received the most media attention, is the ongoing Russian doping scandal. Worries arose once again earlier this year after inconsistencies were uncovered from data retrieved from the Moscow Laboratory. In response, the WADA Executive Committee decided unanimously on December 9 in favor of a four-year period of non-compliance, following the recommendation of WADA’s Compliance Review Committee. RUSADA swiftly appealed the WADA’s decision to the CAS.

The reemergence of the Russian doping scandal has reignited discussions on whether the original decision to declare Russia compliant in September 2018 was perhaps premature. At the time, that decision had been especially criticized by athlete representative groups. This round of the Russian doping scandal may prove to be a greater test on WADA’s ability to keep credibility with the world’s athletes and the general public. Some, like Richard Pound have contended that the new sanctions are tough,[11] but others have argued that more could be done and that leaving the door open to certain ‘approved’ Russian athletes puts clean sport at risk. So far, Russia‘s leadership have mainly characterized the investigation and following sanctions as a witch-hunt stemming from anti-Russian sentiment. The scandal will loom large over the Tokyo Olympics and will probably lead to a fresh wave of Russian cases before the CAS and the SFT.

8.     Conclusion

2019 was a rich year for international and European sports law with many landmark decisions taken, which will have a long-lasting effect on the field. Changes linked to the transparency of sports justice and governance are more likely to have unpredictable transformative consequences as they will enhance the ability of the media to subject sports arbitrators and administrators to rigorous scrutiny. Furthermore, the Rule 40 case and the TopFit decision are also strong reminders of the power of EU law (be it competition law or citizenship rights) as a vehicle to check the decisions of the SGBs. Finally, the Semenya case is certainly the CAS award of the year. It pushed to the forefront a fundamental ethical and philosophical question: Should SGBs be entitled to define the sporting sex of an athlete? What is their legitimacy in taking such a decision?


[1] It is possible that these situations may still be limited since the CJEU’s decision indicates that a power disparity is needed between the parties. See Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:497, para 39.

[2] See our previous blog on rule 40 (and the Bundeskartellamt’s decision), which goes in depth on rule 40’s inception and purpose.

[3] Commitments included: ‘(1) no more authorization required for advertisements during the frozen period and instead athletes can request that the DOSB review planned advertisements beforehand to confirm if it meets the admissibility criteria; (2) advertisement campaigns may now be launched during the frozen period; (3) pictures of athletes during Olympic competitions may be used for advertisement so long as it does not include protected Olympic logos, symbols or designations; (4) videos are restricted only to the German House, the Olympic village or the back of house areas and (5) sports related sanctions are no longer available (only economic sanctions are possible) and athletes may have recourse to German courts.’

[4] Rule 40 OC has been reformulated from a ban on athlete advertisement with certain exceptions to where athlete advertisements are allowed subject to restrictions.

[5] See Antoine Duval, ‘The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS’ (Asser International Sports Law Blog, 10 October 2018).

[6]Guide on Article 6 of the European Convention on Huma Rights’ (ECtHR 2019).

[7] The R57 of the Code was amended in January of last year. See the current version of R57 CAS Code.

[8] While this piece was written in relation to the previous IAAF regulations ‘Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition’, it is still relevant to the current regulations: Cheryl Cooky and Shari L Dworkin, ‘Policing the Boundaries of Sex: A Critical Examination of Gender Verification and the Caster Semenya Controversy’ [2013] 50 Journal of Sex Research 103.

[9] This piece also was written concerning the previous IAAF regulations, it also is still relevant to the current discussion: Malcolm Ferguson-Smith and Dawn Bavington, ‘Natural Selection for Genetic Variants in Sport: The Role of Y Chromosome Genes in Elite Female Athletes with 46,XY DSD’ [2014] 44 Sports Medicine 1629.

[10] This piece also was written concerning the previous IAAF regulations, it also is still relevant to the current discussion: Francisco J. Sánchez , María José Martínez-Patiño and Eric Vilain, ‘The New Policy on Hyperandrogenism in Elite Female Athletes is Not About “Sex Testing”’ [2013] 50 Journal of Sex Research 112.

[11] See also LawInSport’s interview with Jonathan Taylor QC, chair of WADA’s Compliance Review Committee, explaining the reasoning behind the recommendations.

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