My favourite speed skater (Full
disclosure: I have a thing for speed skaters bothering the ISU), Claudia
Pechstein, is back in the news! And not from the place I expected. While
all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG
or German Constitutional Court), I should have looked to the European Court of
Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending
for a long time (since 2010) and I did not anticipate
that the ECtHR would render its decision before the BVerfG. The decision released last
week (only available in French at this stage) looked at first like a renewed
vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling
in the Pechstein case), and is being presented
like that by the CAS, but after careful reading of the judgment I believe this is rather
a pyrrhic victory for the status quo
at the CAS. As I will show, this ruling puts to rest an important debate
surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its
much-used appeal format in disciplinary cases) forced arbitration. Furthermore,
stemming from this important acknowledgment is the recognition that CAS proceedings
must comply with Article 6 § 1 of the European Convention of Human
Rights (ECHR), in particular hearings must in principle be held in public and
decisions freely available to all. Finally, I will criticise the Court’s
finding that CAS complies with the requirements of independence and
impartiality imposed by Article 6 § 1 ECHR. I will not rehash the well-known facts of both cases, in order to
focus on the core findings of the decision. More...
Dear all,
Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.
This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!
You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.
Looking forward to seeing you and meeting you there!
Antoine
Editor's note: Panagiotis
Roumeliotis holds an LL.B. degree from National and Kapodistrian University of
Athens, Greece and an LL.M. degree in European and International Tax Law from
University of Luxembourg. He is qualified lawyer in Greece and is presently
working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an
LL.M. in International Sports Law at Sheffield Hallam University, England. His
interest lies in the realm of tax and sports law. He may be contacted by e-mail
at ‘p.roumeliotis@hotmail.com’.
Introduction
The landmark Bosman
Ruling triggered
the Europeanization of the labour market for football players by banning
nationality quotas. In turn, in conjunction with the boom in TV revenues, this
led to a flourishing transfer market in which players’ agents or intermediaries
play a pivotal role, despite having a controversial
reputation.
As a preliminary remark, it is important to touch upon the fiduciary
duty of sports agents towards their clients. The
principal-agent relationship implies that the former employs the agent so as to
secure the best employment and/or commercial opportunities. Conversely, the
latter is expected to act in the interest of the player as their relationship should be
predicated on trust and confidence, as much was made
clear in the English
Court of Appeal case of Imageview Management
Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost
degree of good faith, honesty and loyalty towards the players.[1]
At the core of this blog
lies a comparative case study
of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze
the issues raised by the implementation of the RWI and, as a conclusion, offer
some recommendations. More...
Rumours are swirling around the
decision (available in French here) of the Court of Appeal of Brussels in the
case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian
Football Federation, URSBFA) over the latter’s ban on third-party ownership.
The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the
decision for the first time on 29th August, I did not have, unlike with the Pechstein
ruling of the Oberlandesgericht München, the immediate impression that this
would be a major game-changer for the Court of Arbitration for Sport (CAS) and
the role of arbitration in sports in general. After careful re-reading, I
understand how certain parts of the ruling can be misunderstood or
over-interpreted. I believe that much of the press coverage failed to accurately
reflect the reasoning of the court and to capture the real impact of the
decision. In order to explain why, I decided to write a short Q&A
(including the (not water-proof) English translations of some of the key
paragraphs of the decision).
More...
My latest article has just been published online by the Journal of Law and Society. It is available open access here.
The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.
As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.
In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.
Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.
Good read! (And do not hesitate to share your feedback)
The T.M.C.
Asser Instituut offers post-graduate students the opportunity to gain practical
experience in the field of international and European sports law. The
T.M.C. Asser Instituut, located in The Hague, is an inter-university research
institute specialized in international and European law. Since 2002, it is the
home of the ASSER International Sports Law Centre, a pioneer in the field of
European and international sports law. More...
Editor’s note: Daniela Heerdt is a PhD candidate at
Tilburg Law School in the Netherlands. 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
recently 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.
The 21st FIFA World Cup is currently
underway. Billions of people around the world follow the matches with much enthusiasm
and support. For the time being, it almost seems forgotten that in the final
weeks leading up to the events, critical reports on human rights issues related to the event piled up. This
blog explains why addressing these issues has to start well in advance of the
first ball being kicked and cannot end when the final match has been played. More...
Call for papers: Annual International Sports Law Conference of the International Sports Law Journal
Asser Institute, The Hague
25 and 26 October 2018
The editorial board of the International Sports Law Journal (ISLJ) is inviting you to submit abstracts for its second ISLJ Annual Conference on International Sports Law, which will take place on 25 and 26 October at the Asser Institute in The Hague. The ISLJ published by Springer in collaboration with Asser Press is the leading academic publication in the field of international sports law. Its readership includes academics and many practitioners active in the field. This call is open to researchers as well as practitioners.
We are also delighted to announce that Prof. Franck Latty (Université Paris Nanterre), Prof. Margareta Baddeley (Université de Genève), and Silvia Schenk (member of FIFA’s Human Rights Advisory Board) have confirmed their participation as keynote speakers.
Abstracts could, for example, tackle questions linked to the following international sports law subjects:
- The interaction between EU law and sport
- Antitrust and sports regulation
- International sports arbitration (CAS, BAT, etc.)
- The functioning of the world anti-doping system (WADA, WADC, etc.)
- The global governance of sports
- The regulation of mega sporting events (Olympics, FIFA World Cup, etc.)
- The transnational regulation of football (e.g. the operation of the FIFA Regulations on the Status and Transfer of Players or the UEFA Financial Fair Play Regulations)
- The global fight against corruption in sport
- Comparative sports law
- Human rights in sport
Please send your abstract (no more than 300 words) and CV no later than 30 April 2018 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 2018. All papers presented at the conference are eligible for publication in a special edition of the ISLJ. To be considered for inclusion in the conference edition of the journal, the final draft must be submitted for review by 15 December 2018. 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. 300€). If you wish to be considered for a grant please justify your request in your submission.
Editor’s Note: Etienne
Gard graduated from the University of Zurich and from King's College London. He
currently manages a project in the field of digitalization with Bratschi Ltd.,
a major Swiss law firm where he did his traineeship with a focus in
international commercial arbitration.
1. Prelude
On the
10th of June, 1958, the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, widely known as the “New York
Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now
reach 157 signatory countries, turning the New York Convention into the global
recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the
New York Convention is both the Best Thing since sliced bread and also whatever
was the Best Thing before sliced bread replaced it as the Best Thing.”[2]
However,
among the overall appraisal regarding the New York Convention, some criticisms
have been expressed. For instance, some states use their public policy rather
as a pretext not to enforce an award than an actual ground for refusal.[3] A further issue is the
recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application
of the New York Convention take place in front of State authorities, for the
most part in front of courts of law, according to national proceeding rules.
This usually leads to the retaining of a local law firm, the translation of
several documents, written submissions and one, if not several hearings. Hence,
the efficiency of the New York Convention as a recognition and enforcement
mechanism comes to the expense of both money and time of both parties of the
arbitral procedure.
In
contrast with the field of commercial arbitration, where the New York
Convention is often considered the only viable option in order to enforce an
award, international football organizations, together with the Court of
Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This
article aims at outlining the main features of the indirect enforcement of CAS
awards in football matters in light of a recent case. More...
Editor's note: Prof. Thomas Kruessmann is key expert in the EU Technical Assistant Project "Strengthening Teaching and Research Capacity at ADA University" in Baku (Azerbaijan). At the same time, he is co-ordinator of the Jean-Monnet Network "Developing European Studies in the Caucasus" with Skytte Institute of Political Studies at the University of Tartu (Estonia).
The notion that “fish
rots from the head down” is known to many cultures and serves as a practical
reminder on what is at stake in the current wave of anti-corruption / integrity
and good governance initiatives. The purpose of this blog post is to provide a
short update on the recent founding of the International Partnership against
Corruption in Sport (IPACS), intermittently known as the International Sports
Integrity Partnership (IPAS), and to propose some critical perspectives from a
legal scholar’s point of view.
During the past couple
of years, the sports world has seen a never-ending wave of corruption
allegations, often followed by revelations, incriminations and new allegation.
There are ongoing investigations, most notably in the United States where the
U.S. Department of Justice has just recently intensified its probe
into corruption at the major sports governing bodies (SGBs). By all accounts,
we are witnessing only the tip of the iceberg. And after ten years of debate
and half-hearted reforms, there is the widespread notion, as expressed by the
Council of Europe’s (CoE’s) Parliamentary Assembly (PACE) Resolution
2199/2018 that “the sports movement cannot be left to resolve its failures
alone”. More...