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

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

The CAS award in Joseph Odartei Lamptey v. FIFA

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments.

Sports Law Related Decisions

Official Documents and Press Releases

In the news

Doping

Andrew Aloia Ryan Bailey: Ex-England and Great Britain prop avoids ban after 'landmark' drugs case
Nick Butler European Court dismisses claim anti-doping whereabouts system violates human rights
Nick Butler NADOs criticise IOC for not revealing criteria for Russian eligibility at Pyeongchang 2018
Nick Butler Russian sliders still eligible to compete in IBSF events after CAS decide against ruling
Daniel Etchells Russia work on sanctions against WADA officials in response to Pyeongchang 2018 ban
Martha Kelner and Sean Ingle Chris Froome says report of plea bargain over failed drug test 'completely untrue'
Victor Mather and Rebecca R. Ruiz Russia is barred from Winter Olympics. Russia is sending 169 athletes to Winter Olympics
Reuters IOC 'concerned' about potential integrity issues with testing bottles
Rebecca R. Ruiz American sprinter used 'passionate kissing' defence in doping case. And it worked
Rebecca R. Ruiz IOC clears nearly 400 Russians to compete in Winter Games
Rebecca R. Ruiz Russia is banned from Paralympics, again, for doping

Football

Global Legal Post Mainz 05 obtains landmark ruling on temporary contracts
Martha Kelner Chelsea racism allegations: Four more players to take legal action against club
Thomas Klein Training in Qatar: 'Bayern Munich cannot remain silent'
Tariq Panja Critics say FIFA is stalling a doping inquiry as World Cup nears
Sky Sports Michel Platini takes FIFA ban appeal to European Court of Human Rights
Sky Sports Prosecutors investigating FIFA payment to head of Austrian Football Federation

Other

David Conn The Lawn Tennis Association launches review into procedural failings over jailed tennis coach
Mike Dunne Show jumping awaits competition body ruling
SportBusiness International Force India, Sauber witdraw EU complaint against Formula One

Blog

Asser International Sports Law Blog

Law in Sport

Nick Fitzpatrick and Ruth Hoy The major global challenges in managing data to protect sporting integrity
Graham Gilbert Athlete cocaine use: The cases of Dale Swift, Graham Gibbons and Dan Evans
Alex Haffner Why the International Skating Union was found in breach of EU competition law
Manali Kulkarni and Sean Cottrell Key sports law cases and developments to watch in 2018: Europe, Middle East, Africa, Asia and Australia
Manali Kulkarni and Sean Cottrell Key sports law cases of 2017: Europe, Middle East, Africa, Asia and Australia
Nick Tsatsas Will the FA score with its adoption of the Rooney Rule?
Sophie Wilkinson and Adam Leadercramer Key information on the General Data Protection Regulation for the sports industry

Others

Jens Sejer Andersen European politicians demand radical change of sports governance
Andy Brown ECHR judgment fails to consider alternatives to 'whereabouts'
Braham Dabscheck Why Djokovic is right to say tennis players need a union
European Professional Football Leagues Legal Newsletter January 2018
Nick De Marco Italian parliament enacts new regulation of football agents
Despina Mavromati SFT Judgment 4A_312/2017: Compatibility of an agent's commission fee with public policy
David Owen European football: A cash magnet, but is the pyramid's base starting to erode?
Tariq Panja At African soccer event, games of cat and mouse
Daisuke Takahashi Tokyo Olympic Sustainable Sourcing Code and its grievance mechanism in a Japanese legal context

Upcoming Events

16 March – Sports Law & Business Conference, Etihad Stadium, Manchester, England
3-4 July – 13^th Sport & EU Annual Conference, Edge Hill University, England

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.

Sports Law Related Decisions