Asser International Sports Law Blog

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

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

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

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

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Upcoming Events

Call for papers - Third Annual International Sports Law Conference of the International Sports Law Journal - 24 and 25 October 2019 - Asser Institute

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on International Sports Law, which will take place on 24 and 25 October 2019 at the Asser Institute in The Hague. The ISLJ, published by Springer and Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports with renowned academic experts and practitioners.


We are delighted to announce the following confirmed keynote speakers:


  • Beckie Scott (Chair of the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former member of the WADA Executive Committee and the International Olympic Committee (IOC)),
  • Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator), and
  • Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity and Compliance).


We welcome abstracts from academics and practitioners on any question related to international sports law. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes:


  • The role of athletes in the governance of international sports
  • The evolution of sports arbitration, including the Court of Arbitration for Sport
  •  The role and functioning of the FIFA transfer system, including the FIFA TMS
  •  The intersection between criminal law and international sports (in particular issues of corruption, match-fixing, human trafficking, tax evasion)
  • Hooliganism
  • Protection of minor athletes
  • Civil and criminal liability relating to injuries in sports


Please send your abstract of 300 words and CV no later than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.


The selected participants will be expected to submit a draft paper by 1 September 2019. All papers presented at the conference are eligible (subjected to peer-review) for publication in a special issue of the ISLJ.  To be considered for inclusion in the conference issue of the journal, the final draft must be submitted for review by 15 December 2019.  Submissions after this date will be considered for publication in later editions of the Journal.


The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant please indicate it in your submission. 

A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands and works as Research Officer for the Centre for Sports and Human Rights. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

 

On November 26th, the Human Rights Advisory Board[1] of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory Board (hereinafter: the Board) based on the content of the recommendations and FIFA’s efforts to implement the Board’s recommendations. The third part of this blog briefly reflects on the broader implications of some of the new recommendations issued for FIFA’s internal policies. The conclusion provides five more general points of observation on the report. More...

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

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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