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

Goodbye 2015! The Highlights of our International Sports Law Year

2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any.


The Court of Arbitration for Sport challenged by German Courts 

The more discrete SV Wilhelmshaven ruling came first. It was not even decided in 2015, as the ruling was handed out on 30 December 2014. Yet, unless you are a sports law freak, you will not have taken notice of this case before 2015 (and our blog). It is not as well known as the Pechstein ruling, but it is challenging the whole private enforcement system put in place by FIFA (and similar systems existing in other SGBs). Indeed, the ruling foresees that before enforcing a sanction rendered by FIFA, the national (or in that case regional) federation must verify that the award underlying the sanction is compatible with EU law. The decision has been appealed to the Bundesgerichtshof (BGH) and a final ruling is expected in 2016.

Later on, in January, the Oberlandesgericht München dropped its legal bomb in the Pechstein case. The court refused to recognize the CAS award sanctioning Claudia Pechstein with a doping ban, as it was deemed contrary to German antitrust rules. The reasoning used in the ruling was indirectly challenging the independence of the CAS and, if confirmed by the BGH, will trigger a necessary reform of the functioning and institutional structure of the CAS. Paradoxically, this is a giant step forward for international sports law and the CAS. The court acknowledges the need for CAS arbitration in global sport. However, justice must be delivered in a fair fashion and the legitimacy of the CAS (which relies on its independence from the Sports Governing Bodies) must be ensured (see our long article on the case here).

We will see how the BGH will deal with these cases in 2016. In any event, they constitute an important warning shot for the CAS. In short, the CAS needs to take EU law and itself seriously. If it truly addresses these challenges, it will come out way stronger.

 

The new World Anti-Doping Code and the Russian Doping Scandal

On the doping front, 2015 is the year in which the new World Anti-Doping Code (WADC) came into force (see our Blog Symposium). The Code introduces substantial changes in the way the anti-doping fight is led and modifies the sanction regime applicable in case of an adverse analytical finding. It is too early to predict with certainty its effects on doping prevalence in international sports. For international sports lawyers, however, it is in any event a fundamental change to the rules applicable to anti-doping disputes, which they need to get closely acquainted with.

The new World Anti-Doping Code was largely overshadowed by the massive doping scandal involving Russian sports, which was unleashed by an ARD documentary (first released in 2014) and revived by the crushing report of the Independent Commission mandated by the World Anti-Doping Agency to investigate the matter. This scandal has shaken the legitimacy of both the anti-doping system and the International Association of Athletics Federations (IAAF). It has highlighted the systematic shortcomings of the anti-doping institutions in Russia, and, the weakness of the control exercised on these institutions at a transnational level, be it by IAAF or WADA.

In 2015 again, doping proved to be a scourge intimately linked with international sports. The confidence and the trust of the public, and of clean athletes, in fair sports competitions is anew put to the test. WADA, which was created in the wake of another massive doping scandal in the nineties, has shown its limits. In practice, the decentralization of the enforcement of the WADC empowers local actors, who are very difficult to control for WADA. Some decide to crackdown on Doping with criminal sanctions (see the new German law adopted in December 2015), others prefer to collaborate with their national athletes to improve their performances. The recent proposals at the IOC level aiming at shifting the testing to WADA can be perceived as a preliminary response to this problem. Yet, doing so would entail huge practical difficulties and financial costs.

 

EU law and sport: 20 years of Bosman and beyond

2015 was also the year in which the twentieth anniversary of Bosman was commemorated through multiple conferences and other sports law events. The ASSER International Sports Law Centre edited a special edition of the Maastricht Journal of European and Comparative Law and a book celebrating the legacy of the ruling is forthcoming with the publisher Springer. The ruling did not have the dramatic effects predicted at the time of the decision, since football is still alive and kicking. Surely, it has given way to new challenges and sharply accelerated the transnationalization of football (and sport in general). A key legacy of Bosman is that this transnationalization, which goes hand in hand with the commercialization of sport, cannot side-line an essential category of stakeholders: the athletes.

It is with this spirit in mind, and a little push of the ASSER International Sports Law Centre, that the European Commission decided to open an investigation into the rules of the International Skating Union (ISU) barring, under the threat of a life ban, speed skaters (and any other affiliate) from joining speed skating competitions which are not condoned by the ISU. Though the case is rather low profile outside of the Netherlands, this is an important step forward for the EU Commission, as it had not opened an EU competition law investigation in sporting matters in almost 15 years. Many other competition law complaints (e.g. TPO or Formula 1) involving sport are currently pending in front of the EU Commission, but it is still to decide whether it will open a formal investigation. 2015 is also the year in which we have desperately expected the release of the EU State aid decisions regarding football clubs, and amongst them Real Madrid, but in the end this will be a matter for 2016.

 

FIFA and the chaotic end of the Blatter reign

FIFA is not the only SGB to have put an abrupt end to the (very) long reign of its great leader (think of the messy downfall of Diack at the IAAF). Yet, when talking about FIFA and football, the resonance of a governance crisis goes well beyond any other. It is truly a global problem, discussed in nearly all news outlets. This illustrates very much how a Swiss association became a global public good, for which an Indian, Brazilian, American or European cares as much as a Swiss, who is in traditional legal terms the only one able to influence FIFA’s structure through legislation. The global outrage triggered by the progressive release by the US authorities of information documenting the corrupt behaviour of FIFA executives has led to two immediate consequences: a change of the guard and a first reform of the institution.

There are now very few FIFA Executive Committee members left who were present in 2010 for the election of Qatar as host city for the 2022 World Cup. The long-time key figures of FIFA, Blatter, Platini and Valcke, are unlikely to make a comeback any time soon. And, the upcoming February election of the new FIFA president is more uncertain than ever with five candidates remaining. Simultaneously, FIFA has announced some governance reforms, which aim at enhancing the transparency of its operation and the legitimacy of its decision-making. We are living through a marvellous time of glasnost and perestroika at FIFA. The final destination of this transformative process remains unknown. There are still some major hurdles to overcome (starting with the one association/one vote system at the FIFA congress) before FIFA is truly able to fulfil its mission in a transparent, accountable and legitimate manner. We hope it will be for 2016!

 

The ASSER International Sports Law Blog in 2015

Finally, a few words on our blog in 2015. In one year we have published 60 posts, our most-read-blog concerned the Pechstein ruling that was read 3054 times.

Our peak day was reached on 4 September with 621 page views (thanks to a great post on the Essendon case by @jrvkfootball).

Our readers are based all around the world, but the majority is based in the EU and the US.


 

  

We hope to be able to keep you interested and busy in 2016 and we wish you a great year!

The ASSER International Sports Law Blog Team


Comments (1) -

  • Paul David QC

    1/8/2016 8:34:31 PM |


    Thanks for your interesting blogs.

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – January 2016

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

International and European Sports Law – Monthly Report – January 2016

Editor’s note: Our first innovation for the year 2016 will be a monthly report compiling 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 world of professional sport has been making headlines for the wrong reasons in January. Football’s governing body FIFA is in such a complete governance and corruption mess that one wonders whether a new President (chosen on 26 February[1]) will solve anything. More recently, however, it is the turn of the athletics governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA Independent Commission released its second report into doping in international athletics. Where the first report (released on 9 November 2015) primarily focussed on the widespread use of doping by Russian athletes, the second report demonstrated a much wider scope of corruption and manipulation, including illegal sponsorship deals, marketing agreements and bidding processes. Guardian sport correspondents Owen Gibson and Sean Ingle have written excellent pieces here and here

Incidentally, on that same 14 January, FIFA announced that it sanctioned Real Madrid and Atlético Madrid for breaching the FIFA Regulation on the international transfer of minors. Both clubs will not be allowed to register any new players for the next two transfer windows, i.e. summer 2016 and January 2017. The sanction is identical to the one FC Barcelona received by FIFA for its failure to comply with the FIFA Regulation on the international transfer of minors. Real Madrid and Atlético Madrid have appealed the sanction to the FIFA Appeal Committee. On 30 January, the appeals were granted suspensive effect by the chairman of the FIFA Appeal Committee until the Appeal Committee has taken and notified its decision on the merits of the appeals.

One can indeed say that January was not the best month for Spanish giants Real Madrid. In addition to the FIFA sanction, the club became a new victim of football’s own version of WikiLeaks namely “footballleaks”. The publication of the transfer agreement between Real Madrid and Tottenham Hotspur concerning Gareth Bale brought to light the actual transfer sum of the Welsh player. Real Madrid had always claimed that it paid a “mere” €91 million. Yet the leaked agreement shows that the club actually paid €101 million, thereby making Bale the most expensive player of all time. Further claims that this transfer agreement was financed by banking institutions previously bailed out by the EU can be read in Sam Wallace’s piece (The Telegraph) here. The leaked documents by “footballleaks” led to widespread outrage. Bale’s agent, Jonathan Barnett, stated that “(t)here should be an independent investigation because it’s outrageous. I think it is disgraceful that people can get hold of this stuff. It shows complete disregard for both clubs and the player”. FIFA, on the other hand, is backing “footballleaks”, stating that the leaks are useful and admitting that it now uses the site as an information source. Furthermore, it forms an important source of information necessary to understand the functioning of Third Party Ownership and whether FIFA’s ban of the practice can be justified. The Asser International Sports Law Blog has already covered the leaked Economic Rights of Players Agreements (ERPA’s) concerning FC Twente and Sporting Lisbon, but more analysis will follow. 

Meanwhile, on 23 January the European Parliament organised a debate on TPO and FIFA’s ban. The debate included some rather emotional calls by Doyen’s CEO Nélio Lucas and La Liga’s President Javier Tebas in defence of TPO. They empathically argued that a prohibition was in breach of EU competition Law. UEFA’s Julien Zylberstein, FIFA’s Omar Ongaro and FIFPro’s Jonas Baer-Hoffmann all defended the banning of the practice. The European Commission, who was not present at the debate, and is yet to decide whether it will launch a formal investigation

Last but not least, tennis fans around the world were shocked by reports of widespread betting related match-fixing. To the surprise of some, however, all of the players allegedly involved in match-fixing were allowed to continue playing by the Tennis Integrity Unit. On 24 January tennis officials announced that an Independent Review Panel will investigate the sport, its anticorruption programme and even the Tennis Integrity unit itself. In order to get a better understanding of the reasons behind players getting involved in match-fixing, we would recommend the piece by Jon Wertheim published in Sports Illustrated on 20 January. Tennis’ vulnerability to match fixing, as he lays out pretty well, lies in the inequalities between the earnings of the top players and the players further down the ranking. 


Case law

The Court of Arbitration for Sport (CAS) published its long awaited decision concerning the alleged doping violation of the thirty-four current and former players of Essendon Football Club. Even though the CAS had already announced its decision in May 2015 (as is extensively discussed on our Blog), it is definitely worthwhile reading the award to grasp the reasoning behind the decision.

On a different note, the High Court of Justice Queen's Bench Division Manchester District Registry Mercantile Court published a very interesting judgment in the field of international sports arbitration on 19 January.[2] The case concerned a CAS award from August 2014 by which the Italian football club Palermo was ordered based on a penalty clause included in the contract to pay €9.4 million to the English firm Pencil Hill Limited. Thus, the legal question posed to the English Court was whether enforcing this CAS award based on a penalty clause would be contrary to public policy. In a nutshell, the judge held that “the public policy of upholding international arbitral awards…outweighs the public policy of refusing to enforce penalty clauses”.

 

Official Documents and Press Releases of the SGBs


In the news

Tennis

Athletics

 Footballleaks and TPO

FIFA Presidential Elections

Other


Case law (CAS, others)


Academic materials


Upcoming events February-March



[1] For more information see Sam Borden, “In Race for FIFA President, Two Front-Runners and Many Possibilities”, New York Times 26 January 2015.

[2] Pencil Hill Limited v US Citta Di Palermo S.p.A, 2016 WL 212897. The judgment can be accessed via Westlaw.co.uk.

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