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

The Headlines

Manchester City sanctioned by UEFA’s Financial Fair Play

Manchester City has been sanctioned under UEFA’s Financial Fair Play (FFP) regulations for two seasons for ‘overstating its sponsorship revenue in its accounts and in the break-even information’ it had provided UEFA. The February 14 decision of the Adjudicatory Chamber of the Club Financial Control Body (CFCB) likely heralds the start of a long and bitter legal war between Manchester City and UEFA, which may end up settling many of the questions surrounding the legality of FFP rules. Since its introduction in 2010, the compatibility of FFP with EU law, especially in terms of free movement and competition law, has been a continued point of contention amongst the parties concerned and commentators (see discussion here, here and here). It was only a matter of time that a case would arise to test this issue and the present circumstances seem to indicate that this may go all the way.                                 

Regardless, the ban will not be enforced this season and in light of the appeal process, it is hard to predict when the CFCB’s decision will have any effect. Indeed, Manchester City has shown an incredible willingness to fighting this out in the courts and shows no signs of backing down. The next stop will be the CAS and perhaps followed by the Swiss Federal Tribunal. It should also be recalled that the CAS has already examined FFP in its Galatasaray award, where it found FFP compatible with EU law (see commentary here). There is even a decent chance that this emerging saga may end up in front of the European Commission and eventually the Court of Justice of the European Union.

Sun Yang CAS award published

After a much-anticipated public hearing, the Panel’s award in the Sun Yang case has finally been published, sanctioning Sun Yang with an eight-year period of ineligibility (see here for a detailed commentary). The decision does not reveal anything groundbreaking in terms of its legal reasoning and in many ways the case will most likely be remembered for its historical significance: the case that jumpstarted a new era of increased public hearings at the CAS.

Perhaps of some interest is the extent to which the panel took into account Sun Yang’s behavior during the proceedings in order to support its assessment of the case. For example, the panel describes how Sun Yang had ignored the procedural rules of the hearing by inviting ‘an unknown and unannounced person from the public gallery to join him at his table and act as an impromptu interpreter’. The Panel interpreted this as Sun Yang attempting ‘to take matters into his own hands’ which it found resembled the athlete’s behavior in the case (see para 358). The Panel also found it ‘striking’ that Sun Yang did not express any remorse concerning his actions during the proceedings. Since the proceedings were held publicly and have been recorded, it is possible to verify the Panel’s assessment in this regard.

In the end, it is possible that Sun Yang may seek to reduce the period of ineligibility once the 2021 WADA Code comes into force (see para 368). For now, Sung Yang may also try to appeal the award to the Swiss Federal Tribunal on procedural grounds, and has already indicated his wish to do so.

Major International Sports Law Decisions

• CAS - CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation
• CAS – CAS 2019/A/6298 Manchester City FC v. UEFA
• CAS - CAS 2019/A/6274 Inês Henriques, Claire Woods, Paola Pérez, Johana Ordóňez, Magaly Bonilla, Ainhoa Pinedo, Erin Taylor-Talcott & Quentin Rew v. IOC
• CAS - CAS 2018/A/6040 Club Atlético Boca Juniors v. CONMEBOL & Club Atlético River Plate

Recently Released CAS Decisions (since December 2019) where FIFA is a party:

• CAS - CAS 2019/A/6278 Cruzeiro EC v. FIFA
• CAS – CAS 2019 A 6276 Eskisehir Kulübü Dernegi v. Ruud Boffin & FIFA
• CAS - CAS 2019 A 6345 Club Raja Casablanca v. FIFA
• CAS - CAS 2019 A 6406 Football Association of Penang v. FIFA
• CAS - CAS 2019 A 6268 Clube Atlético Mineiro v. FIFA
• CAS - CAS 2018 A 5560 & 5650 Kuwait FA v. FIFA
• CAS - CAS 2019 A 6027 Sociedade Esportiva Palmeiras v. FIFA 
• CAS - CAS 2019 A 6305 Club Raja Casablanca v. FIFA
• CAS - CAS 2017 O 5264 & 5265 & 5266 Miami FC & Kingston Stockade FC v. FIFA, CONCACAF & USSF
• CAS - CAS 2019 A 6239 Cruzeiro EC v. FIFA

Official Documents and Press Releases

CAS

• CAS - Sun Yang is found guilty of a doping offense and sanctioned with an 8-year period of ineligibility
• CAS - CAS procedure between the World Anti-Doping Agency (WADA) and the Russian Anti-Doping Agency (RUSADA)
• CAS - CAS upholds the appeal of Italian swimmer Filippo Magnini - annuls four-year ban
• CAS - CAS registers the appeal of Manchester City v. UEFA
• CAS - CAS reduces the suspension of Russian race walker Alexander Ivanov to two years
• CAS - CAS lifts the suspension of the Brazilian swimmer Gabriel da Silva Santos
• CAS - CAS does not have jurisdiction to rule on the appeals that sought the inclusion of a Womens 50km Race Walk at the Tokyo 2020 Olympic Games
• CAS - CAS orders Club Atlético River Plate to play its next two Copa Libertadores matches behind closed doors

FIFA

• FIFA - FIFA set to launch global fund for player salary protection
• FIFA - FIFA Disciplinary Committee sanctions four players for involvement in match manipulation
• FIFA - FIFA’s transfer report: Big 5 accounted for almost three quarters of global spending in January 2020
• FIFA – Letter: Amendments to the Regulations on the Status and Transfer of Players
• FIFA - Football stakeholders agree further steps in the reform of the transfer system

IOC

• IOC – Free Speech for Olympic Athletes
• IOC – IOC Sanctions One Athlete for Failing Anti-Doping Tests at London 2012

WADA

• WADA – WADA Compliance Review Committee update
• WADA - WADA update regarding testing of Chinese athletes in light of coronavirus
• WADA - WADA publishes Independent Observer Team Report from 2019 African Games
• WADA - WADA statement regarding CAS public hearing – WADA V. SUN YANG & FINA

Other

• Athletics Integrity Unit – First Instance Decision: Peter Kewmoi
• Athletics Integrity Unit – First Instance Decision: Ruth Jebet
• Athletics Integrity Unit – First Instance Decision: Virjilio Griggs
• Fédération Equestre Internationale (FEI) – FEI Tribunal issues Final Decisions
• Fédération Equestre Internationale (FEI) – Prohibited substance cases under FEI anti-doping rules
• FIBA - Mexican Basketball Federation suspended
• FIBA - Luxembourg Appeals Court rules in favor of FIBA Europe in Euroleague case
• FINA - FINA STATEMENT - Sun Yang (CHN)
• FIVB – Legal Commission praises the FIVB’s principles of transparency and good governance
• Global Athlete – Global Athlete Survey Results: Athlete Rights, Welfare and Representation
• Global Athlete – Athlete Groups Calling for an Open Hearing at Court of Arbitration of Sport for the RUSADA Proceedings
• Global Athlete – Weightlifting Athletes Support the Independent Investigation Being Led by Mr. Richard McLaren
• International Biathlon Union – IBU Anti-Doping Hearing Panel renders verdicts on Sleptsova and Ustyugov
• International Luge Federation (FIL) - FIL President Fendt announces penalty for Summer Britcher
• International Tennis Federation – 2019 Tennis Anti-Doping Programme testing summary
• UEFA - UEFA and CONMEBOL renew Memorandum of Understanding to enhance cooperation
• UEFA - Club Financial Control Body Adjudicatory Chamber decision on Manchester City Football Club
• World Curling - Membership of Polish Curling Association suspended

In the News

Football

• Tariq Panja - Audit Finds Suspicious Financial Dealings in African Soccer
• Martyn Ziegler - Manchester City demanded damages from ‘unlawful’ Uefa after Champions League ban recommendation, court documents reveal
• Philippe Auclair and Pål Ødegård – Out of Africa
• Tariq Panja and Rory Smith - Manchester City Banned From Champions League for 2 Seasons
• Rory Smith - Manchester City Vows to Fight, Because Losing Is Unthinkable
• Florian Soenen - Manchester City sanctionné : « Le Tribunal arbitral du sport pourrait considérer qu’il y a une inégalité avec le PSG »
• Jonathan Liew - Manchester City backers are not the sort to take Uefa's punishment lying down
• Associated Press - Soccer official challenges 10-year FIFA ban for self-dealing
• David Conn - Manchester City offer an olive branch now Uefa holds all the power
• Andrew Das - U.S. Women’s Soccer Team Sets Price for Ending Lawsuit: $67 Million
• Tariq Panja - FIFA, Seeking $1 Billion for Club World Cup, Hires U.S. Firm to Find It
• Graham Dunbar - A look at the legal issues in Man City’s appeal against UEFA

Doping

• Ali Iveson - Anti-doping testing in China suspended because of coronavirus fears
• Christoph Becker – Keine Transparenz im Anti-Doping-Kampf
• Graham Dunbar - Swimming authorities worked to protect Sun Yang from ban
• Tariq Panja - Dear CAS: With Flurry of Letters, Russia May Delay Olympic Ban
• Graham Dunbar - Olympic champion Sun Yang banned for 8 years in doping case

Other

• Eddie Pells - Survey finds Olympic, elite athletes struggling financially
• Andrew Keh and Ben Dooley - Grappling With Coronavirus, Tokyo Olympic Leaders Have No Good Options
• Alex Capstick and Rachel Nickolds - Blake Leeper: Paralympian appeals to CAS in bid to make 2020 Olympics

Academic Materials

International Sports Law Journal

• Chui Ling Goh - To what extent does the Paralympic Games promote the integration of disabled persons into society?

Other

• Steven A. Bank - FIFA, Forced Arbitration, and the U.S. Soccer Lawsuits

Blog

Asser International Sports Law Blog

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

Law in Sport

• Despina Mavromati - Riza v Turkey: European Court of Human Rights gives further guidance on establishing independent arbitral tribunals
• Christopher Flanagan - Manchester City's Financial Fair Play ban: the legal questions and consequences
• Christopher Chase - Rule 40 in the United States: new opportunities for sponsors but with strings attached
• Viktoria Tsvetanova - How competition law is shaping Olympic sponsorship: Part 1 – the origins and evolution of Rule 40
• Viktoria Tsvetanova - How competition law is shaping Olympic sponsorship: Part 2 – Germany's Competition Authority helps ease restrictions on athletes
• Celia Rooney - For the love of money: exploring the decision in the Saracens salary cap case
• Jack Anderson - A detailed review of the CAS Panel’s decision in WADA v Sun Yang & FINA

Play the Game

• Stanis Elsborg - A fist of freedom or a fist of iron? Rule 50 and the Olympic paradox

SportLegis

• Despina Mavromati - Sun Yang v. WADA & FINA – A CAS letter on the admissibility of the appeal is not an appealable decision to the Swiss Federal Tribunal

Upcoming Events

18-19 June 2020 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

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 21^st 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.

The Warm-up: Preparing for the Game

Even though the recently published update by FIFA’s Human Rights Advisory Board compliments FIFA on its increased efforts for tackling human rights issues related to this year’s World Cup, it is no secret that thousands of workers were exposed to severe human rights violations while working on World Cup construction sites in Russia.[1] Human rights groups such as Human Rights Watch (HRW) extensively reported on the structural exploitation that workers were facing, including unsafe working conditions leading to numerous injuries and the death of 17 workers, forced illegal work due to lack of employment contracts, and cases of non-payment or serious delays in payment of wages.  Those workers that dared to file a complaint were threatened with retaliation and non-payment of wages.[2] Furthermore, journalists and human rights advocates that tried to report on these cases have been intimidated, denied entry into the country, or even arrested while carrying out their investigations.

Blaming the occurrence of these human rights violations on Russia being this year’s World Cup’s host would ignore the fact that these violations are recurring in the context of mega-sporting events (MSEs) like the Summer or Winter Olympic Games or the World Cup. To a certain extent, these events heighten pre-existing human rights risk in the host country and thereby increase the likelihood for violations to occur. Thus, numerous stories of exploitation of migrant workers have been documented in relation to the construction works for the 2022 World Cup in Qatar. Furthermore, worker’s rights are not the only rights that are at risk during the delivery of MSEs. Other common types of human rights abuses associated with hosting MSEs are cases of forced displacement, infringements of participatory rights, and infringements of freedom of expression and the right to protest.[3] Shortly before and during these events, reports on incidents of excessive use of force by local police and private security forces, as well as arbitrary arrest and criminalization of homeless people and street children are also commonplace.[4]

The First Half: Establishing Responsibility

The key challenge in addressing these cases is to identify the actor and actions responsible for these harmful outcomes. However, MSEs like the FIFA World Cup are jointly organized and staged by a mix of public, private, national, and international actors. International sports bodies, like FIFA or the International Olympic Committee (IOC), set the terms and conditions under which these events can be hosted. Host countries agree to these conditions by submitting government guarantees and declarations and by adopting special event-related legislation. Furthermore, local and regional authorities issue permits and give orders to enable and facilitate event-related operations. The local organizing committees are responsible for living up to the conditions set by the sports bodies and for hiring the necessary contractors. These range from local to international firms, from city planners and logistic experts, to food suppliers and construction firms.[5] Further companies that profit from the MSE-business are international broadcasting firms and recruitment agencies. The financing of these events is secured through national and international corporate sponsors, such as McDonald’s and Budweiser for this year’s FIFA World Cup.[6]

The intuitive thing to do from a human rights perspective would be to call upon the responsibility of Russia as the host country to address these abuses, since states are not only responsible for respecting, protecting and fulfilling human rights but also for preventing third parties from abusing human rights on their territory. However, this would ignore the real issue at stake: the fact that MSE-related human rights abuses are the result of complex collaboration between multiple actors involved in delivering these events. In the case of exploitation of workers on World Cup construction sites in Russia, construction companies contribute by imposing abusive employment conditions; recruitment agencies by recruiting the workers under false promises; the state by failing to protect the workers and potentially even facilitating certain practices through its event-related policies; FIFA by requiring a certain number and standard of stadiums for the event; and finally also the sponsors by providing the necessary finances.

This rather simplified identification of the various contributing actors only presents a broad indication of how they contribute to these violations and share responsibility. The problem is that the entanglement of actors and their operations creates highly complex governance structures. In order to identify those actors responsible for the violations, victims first have to untangle these structures and retrace the chain of decisions taken, permits issued, orders given, and actions taken. Even if that succeeds, the key challenges are to identify which of the contributing acts would give rise to legal responsibility and to establish responsibility for those actors that have no direct obligations under international human rights law.

The Second Half:  Establishing Accountability

The entanglement of actors and their contributions does not only impede the identification of the responsible actors but also the identification of adequate accountability mechanisms. The business and human rights field knows a broad spectrum of mechanisms ranging from judicial to non-judicial, and from state-based to operational level mechanisms. Up to this point, the few attempts to hold certain actors accountable for MSE-related human rights violations either have been unsuccessful or only addressed a fraction of the actors or types of violations involved. For example, FIFA’s responsibility for World Cup-related human rights abuses has been the subject of a court case in Switzerland and two specific instances dealt with by the Swiss National Contact Point (NCP). The court in Zürich dismissed the case with unusual speed on mainly practical grounds (a more detailed discussion of the judgement can be found here).[7] The mediation procedure at the Swiss NCP led to the creation of a monitoring system for decent work and safety in the workplace for migrant construction workers in Qatar[8], but their living standards and the abuses of recruitment agencies were not addressed.

What these attempts highlight is that the main shortcomings of available mechanisms amount to a lack of access to these mechanisms for affected groups and individuals and a lack of human rights receptivity of existing mechanisms. In light of these shortcomings, new mechanisms are currently being developed and existing mechanisms are being tested in the MSE and human rights context. Just in time for the start of the World Cup, FIFA launched its new complaint mechanism for human rights defenders, which provides human rights defenders and media representatives with an avenue for complaints for situations “in which they consider that their rights have been unduly restricted when conducting work in relation to FIFA’s activities”.[9] Via an online platform, human rights defenders, journalists and other media representatives can submit a complaint and FIFA commits to ensure that it will apply an “appropriate follow-up processes” to it.[10] FIFA itself is supposed to assess these complaints and seek cooperation with third parties that are involved in the matter and relevant institutions that can support the complainant.[11] With regard to testing existing mechanisms, the possibilities for using arbitration as means to address MSE-related human rights issues opened up with the revised bidding and hosting regulations of FIFA and the IOC. Both entail provisions for human rights protection and arbitration clauses, referring to the Court of Arbitration for Sports, for challenging the performance of the host-city or -country under any of the provisions.

The Overtime: The Winner Takes its Share

One way of interpreting these recent efforts of international sports bodies to increase awareness and respect for human rights protection in connection with their events is to argue that they are increasingly becoming aware of their share of responsibility and accountability. Indeed, the increased awareness of adverse human rights impacts of MSEs triggered a number of initiatives that aim at raising human rights standards in the MSE business. In 2016, the MSE platform for human rights has been created, which is a multi-stakeholder coalition consisting of international and intergovernmental organisations, governments, sports governing bodies, athletes, unions, sponsors, broadcasters, and civil society groups, who are committed to take joint action to protect human rights throughout the MSE lifecycle. Recently, this multi-stakeholder initiative created the Centre for Sport and Human Rights, which is an independent center that connects stakeholders and affected groups to share knowledge, build capacity, and strengthen accountability for adverse human rights impacts of sports more generally. Concrete event-related examples of initiatives exist as well. In the run-up to this year’s World Cup, FIFA, Russian authorities and representatives of trade unions took a joint effort to set up a monitoring program for labour conditions on World Cup construction sites. Similar processes led to the establishment of a worker welfare monitoring system for workers on World Cup construction sites in Qatar.

Nevertheless, significant challenges remain in relation to concrete cases of MSE-related human rights abuses and it is important that these efforts do not fade after the final match has been played. MSE-related human rights violations do not automatically stop when the event is over. In some cases, for instance cases of forced evictions, violations continue as long as victims have not been compensated adequately. These challenges do not make it a hopeless endeavour, but they highlight that more work and change is needed before responsibility for MSE-related human rights violations can be established. Especially, most of the developments and efforts of sports governing bodies are rather recent and only apply to events that will take place in the future. Hence, it remains to be seen whether the revised bidding regulations can ensure that future World Cups will have a more positive human rights legacy and eventually avoid adverse human rights impacts altogether.

[1] Business & Human Rights Resource Centre, ‘Russia 2018 FIFA World Cup’ <https://business-humanrights.org/en/russia-2018-fifa-world-cup> accessed 14 February 2018.

[2] ibid 27.

[3] Megan Corrarino, ‘“Law Exclusion Zones”: Mega-Events as Sites of Procedural and Substantive Human Rights Violations’ (2014) 17 Yale Human Rights and Development Law Journal 180.

[4] Lucy Amis and John Morrison, ‘Mega-Sporting Events and Human Rights—A Time for More Teamwork?’ (2017) 2 Business and Human Rights Journal 135, 137.

[5] For a more elaborate overview of actors, see Amis and Morrison (n 5) at 136.

[6] Fédération Internationale de Football Association, ‘2018 FIFA World Cup Russia^TM - FIFA Partners’ (FIFA.com, 2017) <http://www.fifa.com/worldcup/organisation/partners/index.html> accessed 15 February 2018.

[7] FNV, Bangladeshi Free Trade Union Congress, BWI & Nadim Shariful Alam v FIFA Handelsgericht Kanton Zürich (3 January 2017).

[8] Specific Instance regarding the Fédération Internationale de Football Association (FIFA) submitted by the Building and Wood Workers’ International (BWI) - Final Statement Swiss National Contact Point (2 May 2017).

[9] FIFA, ‘FIFA Statement on Human Rights Defenders and Media Representatives’ (2018) 4, para 14 <https://resources.fifa.com/image/upload/ejf1ecdku14lm2v9zc03.pdf> accessed 12 June 2018.

[10] ibid.

[11] ibid 5, para 15.