Asser International Sports Law Blog

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

The Russian State Doping Scandal and the crisis of the World Anti-Doping System

Russian doping and the state of the Anti-Doping System has been the dominant international sports law story in November and December. This is mainly due to the release of the second report of the McLaren’s investigation on 9 December 2016. The outcome of McLaren’s work showed a “well-oiled systemic cheating scheme” that reached to the highest level of Russian sports and government, involving the striking figure of 30 sports and more than 1000 athletes in doping practices over four years and two Olympic Games. The report detailed tampering with samples to swap out athletes’ dirty urine with clean urine. Simultaneously, the IOC has over the last months announced 101 positive tests from retesting samples collected at Beijing 2008 and London 2012 and announced sanctions, 27 of which were for Russians athletes (for more information, see here, here and here).

A few weeks before the publication of the McLaren report, on 20 November the WADA Foundation Board met in Glasgow, in what, at least that we argued on this blog, should have been a turning point in the global fight against drugs in sport. In that occasion, the board endorsed a sanctioning framework for non-compliance that “will equip the anti-doping system with the ability to levy meaningful, predictable and proportionate sanctions in cases of non-compliance by anti-doping organizations (ADOs) with the World Anti-Doping Code (Code)”. The Board also agreed to continue evaluating the request made by the Olympic Summit to establish an Independent Testing Authority (ITA). In addition, the Board’s recommendation about the whistleblower program aims at appropriately supporting, protecting and rewarding whistleblowers in order to strengthen the Anti-Doping System. The hope is that those recommendations will help filling the massive gaps exposed in the World Anti-Doping System by the Russian scandal.

The Football Leaks: Second edition

It is not the first time that the football leaks appear on this blog. Already in December 2015, we started analysing contracts released by an earlier (certainly more amateurish, but also more transparent) apparition of the football leaks. Back then we focused on Doyen’s TPO deals (you can dive back into the blogs here, here, here and here). Our conclusion was very much the same as the one advanced by the European Investigative Collaborations (EIC): there is something rotten in the globalized football economy and it is in dire need of proper regulation (and regulators).

Moving forward, on 9 December Der Spiegel published its first in-depth piece on the new football leaks. The data gathered by Der Spiegel (Germany) and the European Investigative Collaborations (EIC), includes 18.6 million documents comprising of original contracts. This data revealed a large and uncontrolled use of murky financial operations, complex contractual networks and tax schemes in the world of professional football. In particular linked to the operation of the transfer market. Evidence on player contracts revealed by football leaks showed, for example, that in what has been called ‘the Cypriot scheme’ football players were bought and loaned out by the Cypriot club Apollon Limassol without ever playing for the club, or – at least in one case - without even entering the country. In so doing, the Cypriot club had taken over the role of Third Party Owner usually held by investment funds, a practice that was banned by the FIFA’s regulation from May 2015, in order to avoid, among other things, loss of control over transfer operations.

NRC (The Netherlands) and EIC network have also discovered that agents of various South American football stars (such as Colombian James Rodríguez) used the Netherlands as a pivot country for tax reasons to carry out the transfer of their clients to top clubs in Europe (a story to which our Senior Researcher, Antoine Duval, contributed). There is also evidence of continuous alternation of companies involved in the transfers, with contracts passing from firms in The Netherlands to the tax heavens British Virgin Island, Panama and The Caribbean. The story of the transfer of the football player Kondogbia from the Spanish club Sevilla to the French club Monaco in 2013, emerged through football leaks as well, adds another layer to the evidence of dirty tricks linked to TPO (for more information on the Economic Rights of Players Agreement (ERPA) involving Kondogbia, see our ‘old’ blog from April 2016).

So, should one be fatalist about these wrongdoings and abuses on the transfer market and around it? No. We believe that the European Union and its Member States could and should act (see our proposition in French here, and comments to NRC in this piece) to regulate the worst economic practices of the football worlds.

CAS award on Real Madrid’s transfers of minors

Finally, in the much-watched dispute between Real Madrid FC and FIFA over the Spanish club’s transfers of minors, the CAS partially sided with the football club. The CAS award modifies the decision rendered by the FIFA Appeal Committee in these terms: Real Madrid’s ban from registering any new national or international player is reduced from two transfer periods to one and the fine the club is imposed to pay to FIFA is reduced from 360,000 CHF to 240,000 CHF. The reasoned decision will be notified to the parties early 2017.

Case Law

CAS awards

Decisions

IOC

WADA

Official Documents and Press Releases

CAS - Carole Malinvaud elected new head of the CAS Ordinary Division
CAS - CAS list of hearings for December and January
CAS - CAS reduces the sanctions imposed on Real Madrid CF for breaches of the FIFA Rules regarding the transfers of minors
CAS rejects first appeal against IOC sanctions over re-testing of samples from Beijing 2008
Council of Europe - 14th Council of Europe Conference - Final Resolutions
Court of Justice of the European Union – Athletic de Bilbao’s pleas against European Commission's decision
Court of Justice of the European Union - Valencia CF's pleas against European Commission's decision
FIFA - FIFA sets strict compliance standards for development projects
IAAF - IAAF launches online portal - report doping
FIFA - FIFA Appeal Committee rejects appeal lodged by Wolfgang Niersbach
FIFA - Worldwide extension of sanctions imposed in connection with anti-doping violations
IOC - Statement of the IOC regarding the 'independent person' report
UEFA - UEFA publishes CAS awards in which it was a party and a list of proposed arbitrators
UK Government Department for Culture Media & Sport - A Code for Sports Governance
WADA - McLaren independent investigation report - part II
WADA - Foundation Board Press Release: Foundation Board Equips Agency to be Fit for the Future
FIFPro - 2016 FIFPro global employment report working conditions in professional football
FIFPro - Analysis: EU looks at French football contracts

In the news

Doping

Rachel Axon, Sports federations face obstacles in sanctioning Russian athletes
Nick Butler, IOC and WADA need to stop fighting if genuine improvement is ever going to be made in war on doping
Nick Butler, Russian anti-doping chief denies admitting to "institutional conspiracy" at Sochi 2014
Nick Butler, Russian denials, police dawn arrests and crisis beards - 2016 has been an unprecedented year in sports politics
Nick Butler, Sochi stripped of International Bobsleigh and Skeleton Federation World Championships
Graham Dumbar, IOC president Bach wants life bans for proven Russian cheats
LawinSport interview, The future of anti-doping: Interview with CAS arbitrator & former General Counsel, USOC
Paul Kelso - Sky Views: Olympics serious about doping? Don't hold your breath
Charles Maynes, Denial and Outrage in Russia at Latest Anti-Doping Report
David Owen, Exclusive: WADA to seek legal advice before acting on Osaka Rule reintroduction
David Owen, I hope one day somebody will explain to me how Wednesday’s unedifying assault in Doha will further the cause of clean sport
David Owen, Sorry seems to be the hardest word in this doping crisis - not least for the IOC President
Michael Powell, After Russia’s Spree of Doping, a Time to Reform
Carla Qualtrough, We Must Be United Against Doping In Sport
Reuters, Ethiopia set to impose lifetime bans on athletes who fail doping tests
Dan Roan - Sir Craig Reedie: World Anti-Doping Agency president fights on despite criticism
Dan Roan - Thomas Bach: No regrets over Russia at Rio 2016 - IOC president
Olympics chief says everyone involved in doping scandals in Russia dismissed – Russian news agency
Rebecca R. Ruiz - How to Avoid Drug Testing in Russia: Radio Silence and Secure Perimeters
Michele Verroken, The doping crisis and the sense of déjà vu

Football

The Black Sea, Football Leaks: "The problem is there’s no full transparency" Interview with FIFA President Gianni Infantino
Klaus Brinkbäumer, Money, Money, Money - Football Leaks Shows Us that Football Is Sick
Pete Brush, Argentine Marketing Co. Pays DOJ $113M In FIFA Bribery Deal
CBC Sports, FIFA prosecutors want Bin Hammam aide banned for bribery
Hanneke Chin-A-Fo, Hugo Logtenberg and Merijn Rengers. Football Leaks: The Argentine Connection
Remi Dupre, Sepp Blatter, former president of FIFA: “I have not cheated”
The Guardian, FIFA president Gianni Infantino plans clean-up of transfer system
MARCA, Real Madrid pay fine to city council
Christian Okpara, Minister wants NFF to investigate FIFA’s query on $1.1m grant
Reuters, Swiss authorities carry out fresh house searches in FIFA case
Der Spiegel, Unchained - The Man Behind Football Leaks

Other

Yann Bouchez - Revelations on suspicions of corruption at the International Athletics Federation
Nick Butler - Exclusive: Kuwait body lodges $1 billion lawsuit against IOC
Caley Fretz - Armstrong, Landis, and the U.S. government head to court
The Indian Express, Rio de Janeiro mayor Eduardo Paes’ assets frozen over Olympic golf course

Publications

Adam Lewis QC, Jonathan Taylor, Nick De Marco, James Segan: Challenging Sports Governing Bodies
Football Legal, Release of Football Legal # 6

Blogs

Asser International Sports Law Blog

N. Emre Bilginoglu, Resolution of Disputes Arising From Football Contracts in Turkey
Antoine Duval, The World Anti-Doping System at a Crossroads
Oskar van Maren, The EU State aid and sport saga: The Real Madrid Decision (part 1)
Oskar van Maren, The EU State aid and sport saga: The Real Madrid Decision (part 2)
Kester Mekenkamp, FIFA’s provision on the protection of minors - Part 1: The Early Years
Kester Mekenkamp, FIFA’s provision on the protection of minors - Part 2: The 2009 reform and its aftermath
Josep F. Vandellos Alamilla, The entitlement to Training Compensation of “previous” clubs under EU Competition Law

Others

Peter Alexiadis and Pablo Figueroa, Skating on Thin Ice: The European Commission challenges the governance rules of an international sports association as being incompatible with European antitrust rules
Despina Mavromati, How CAS deals with excessive contractual penalties in football
Ravi Mehta, The future of sports governance: Will sport sustain its traditional model of autonomy?
Raffaele Poli, Blog Symposium: Third-party entitlement to shares of transfer fees: problems and solutions
Tom Rudkin, A review of the CAS panel's decision to reduce Sharapova’s doping ban
John Shea, Initial thoughts on Real Madrid's transfer ban being partially upheld by CAS
CIES football observatory monthly report (December 2016), The international mobility of minors in football

Events

23 January - The US Collegiate Model of Intercollegiate Athletics: Questioning National Collegiate Athletic Association (NCAA) Hegemony, Seminar given by Dr. Richard Southall, London, UK
31 January – Sport Info Day on the Erasmus+ Programme, organized by the European Commission and the Education, Audiovisual and Culture Executive Agency (EACEA), Brussels, Belgium
8 March - Discrimination Against Women in Sport Conference: How to continue narrowing the discrimination gap, Preston, UK
29-29 April - 2017 Macolin Anti-Doping Summit: A Fresh Look at the Science, Legal, and Policy Aspects of Anti-Doping, Swiss National Sports Centre, Macolin (Magglingen) Switzerland

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

The International Skating Union's eligibility rules declared incompatible with EU competition law

On 8 December 2017, the European Commission announced that it had rendered a decision in the case against the International Skating Union (ISU). The Commission upheld the complaint lodged in October 2015 by two Dutch professional speed skaters Mark Tuitert and Niels Kerstholt, represented in this case by Ben Van Rompuy and Antoine Duval (you can read their joint statement here), and ruled that the ISU's eligibility rules preventing athletes from participating in speed skating competitions not approved by the ISU under the threat of severe penalties are in violation of EU competition law. In particular, the Commission held that these rules restrict the commercial freedom of (i) athletes who may be deprived of additional source of income as they are not allowed to participate in speed skating competitions other than those authorised by the ISU; and (ii) independent organisers who are unable to attract top athletes. And while the Commission recognised that sporting rules with restrictive effects might be compatible with EU law if they pursue a legitimate objective such as the protection of athletes' health and safety or the protection of the integrity and proper conduct of sport, it found that the ISU's eligibility rules pursue only its own commercial interests to the detriment of athletes and independent organisers of speed skating competitions. The ISU eventually escaped financial sanctions, but it must modify or abolish its eligibility rules within 90 days; otherwise it would be liable for non-compliance payments of up to 5% of its average daily turnover. For more information on this topic, we invite you to read our recent blog written by Professor Stefano Bastianon.

The International Olympic Committee bans Russia from the upcoming Winter Olympic Games

The world has been waiting impatiently for the International Olympic Committee's (IOC) decision on the participation of Russian athletes in the upcoming 2018 Winter Olympic Games in Pyeongchang. This was finally communicated on 5 December 2017. Having deliberated on the findings of the Schmid Commission, the IOC Executive Board decided to suspend the Russian Olympic Committee with immediate effect, meaning that only those Russian athletes who demonstrate that they had not benefited from the state-sponsored doping programme will be able to participate in the Games. Such clean athletes will be allowed to compete under the Olympic Flag, bearing the name 'Olympic Athlete from Russia (OAR)' on their uniforms. Further to this, the IOC Executive Board sanctioned several officials implicated in the manipulation of the anti-doping system in Russia, including Mr Vitaly Mutko, currently the Deputy Prime Minister of Russia and formerly the Minister of Sport. Mounting public pressure subsequently forced Mr Mutko to step down as head of the Local Organising Committee for the 2018 FIFA World Cup.

Meanwhile, 21 individual Russian athletes were sanctioned (see here, here, here, and here) in December (in addition to 22 athletes in November) by the IOC Oswald Commission that is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. The Oswald Commission also published two full decisions in the cases against Evgeny Belov and Aleksandr Tretiakov who were both banned from all future editions of the Games. It is now clear that the Court of Arbitration for Sport will have quite some work in the coming weeks as the banned athletes are turning to this Swiss-based arbitral tribunal to have their sanctions reviewed (see here and here).

Universal Declaration of Player Rights

14 December 2017 was a great day for athletes all over the globe. On this day, representatives of the world's leading player associations met in Washington D.C. to unveil the Universal Declaration of Player Rights, a landmark document developed under the aegis of the World Players Association that strives to protect athletes from ongoing and systemic human rights violations in global sport. The World Players Association's Executive Director Brendan Schwab emphasised that the current system of sports governance ''lacks legitimacy and fails to protect the very people who sit at the heart of sport'' and stated that ''athlete rights can no longer be ignored''. Among other rights, the Declaration recognises the right of athletes to equality of opportunity, fair and just working conditions, privacy and the protection of personal data, due process, or effective remedy.

Chris Froome failed a doping test during the last year's Vuelta a España

The world of cycling suffered yet another blow when it transpired that one of its superstars Chris Froome had failed a doping test during the last year's Vuelta a España, a race he had eventually emerged victorious from for the first time in his career. His urine sample collected on 7 September 2017 contained twice the amount of salbutamol, a medication used to treat asthma, than permissible under the World Anti-Doping Agency's 2017 Prohibited List. Kenyan-born Froome has now hired a team of medical and legal experts to put forward a convincing explanation for the abnormal levels of salbutamol in his urine and thus to avoid sanctions being imposed on him.

Sports Law Related Decisions

Official Documents and Press Releases