Asser International Sports Law Blog

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The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The ISU Commission's Decision and the Slippery Side of Eligibility Rules - By Stefano Bastianon (University of Bergamo)

Editor’s note: Stefano Bastianon is Associate Professor in European Law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. From the very beginning, the outcome of the ISU case was highly predictable, at least for those who are familiar with the basics of antitrust law. Nevertheless, more than twenty years after the Bosman judgment, the sports sector has shown the same shortsightedness and inability to see the forest for the trees. Even this attitude was highly predictable, at least for those who know the basics of sports governance. The final result is a clear-cut decision capable of influencing the entire sports movement. More...



Statement on the European Commission's ISU Decision by Ben Van Rompuy and Antoine Duval

Editor's note: We (Ben Van Rompuy and Antoine Duval) are at the origin of today's decision by the European Commission finding that the International Skating Union's eligibility rules are contrary to EU competition law. In 2014, we were both struck by the news that ISU threatened lifetime ban against speed skaters wishing to participate in the then projected Icederby competitions and convinced that it was running against the most fundamental principles of EU competition law. We got in touch with Mark and Niels and lodged on their behalf a complaint with the European Commission. Three years after we are pleased to see that the European Commission, and Commissioner Vestager in particular, fully embraced our arguments and we believe this decision will shift the tectonic structure of sports governance in favour of athletes for years to come.


Here is our official statement:

Today is a great day for Mark Tuitert and Niels Kerstholt, but more importantly for all European athletes. The European Commission did not only consider the International Skating Union's eligibility rules contrary to European law, it sent out a strong message to all international sports federations that the interests of those who are at the centre of sports, the athletes, should not be disregarded. This case was always about giving those that dedicate their lives to excelling in a sport a chance to compete and to earn a decent living. The majority of athletes are no superstars and struggle to make ends meet and it is for them that this decision can be a game-changer.

However, we want to stress that this case was never about threatening the International Skating Union’s role in regulating its sport. And we very much welcome the exceptional decision taken by the European Commission to refrain from imposing a fine which could have threatened the financial stability of the International Skating Union. The International Skating Union, and other sports federations, are reminded however that they cannot abuse their legitimate regulatory power to protect their economic interests to the detriment of the athletes.

We urge the International Skating Union to enter into negotiations with representatives of the skaters to devise eligibility rules which are respectful of the interests of both the athletes and their sport.

Since the summer of 2014, it has been our honour to stand alongside Mark and Niels in a 'David versus Goliath' like challenge to what we always perceived as an extreme injustice. In this fight, we were also decisively supported by the team of EU Athletes and its Chance to Compete campaign.

Finally, we wish to extend a special thank you to Commissioner Vestager. This case is a small one for the European Commission, but Commissioner Vestager understood from the beginning that small cases do matter to European citizens and that European competition law is there to provide a level playing for all, and we are extremely grateful for her vision.


Dr. Ben Van Rompuy (Leiden University) and Dr. Antoine Duval (T.M.C. Asser Instituut)

Asser International Sports Law Blog | International and European Sports Law – Monthly Report – June and July 2019 - By Tomáš Grell

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 – June and July 2019 - By Tomáš Grell

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 European Court of Justice finds that rule of a sports association excluding nationals of other Member States from domestic amateur athletics championships may be contrary to EU law

On 13 June 2019, the European Court of Justice (ECJ) delivered a preliminary ruling at the request of the Amtsgericht Darmstadt (Local Court Darmstadt, Germany) filed in the course of the proceedings involving Mr Daniele Biffi, an Italian amateur athlete residing in Germany, and his athletics club TopFit based in Berlin, on the one hand, and the German athletics association Deutscher Leichtathletikverband, on the other. The case concerned a rule adopted by the German athletics association under which nationals of other Member States are not allowed to be awarded the title of national champion in senior amateur athletics events as they may only participate in such events outside/without classification. The ECJ’s task was to decide whether or not the rule in question adheres to EU law.

The ECJ took the view that the two justifications for the rule in question put forward by the German athletics association did not appear to be founded on objective considerations and called upon the Amtsgericht Darmstadt to look for other considerations that would pursue a legitimate objective. In its judgment, the ECJ analysed several important legal questions, including amongst others the applicability of EU law to amateur sport or the horizontal applicability of European citizenship rights (for detailed analysis of the judgment, please see our blog written by Thomas Terraz).

Milan not featuring in this season’s edition of Europa League following a settlement with UEFA

On 28 June 2019, the Court of Arbitration for Sport (CAS) rendered a consent award giving effect to a settlement agreement between UEFA and the Milan Football Club, under which the Italian club agreed to serve a one-year ban from participation in UEFA club competitions as a result of its breaches of UEFA’s financial fair play regulations over the 2015/2016/2017 and the 2016/2017/2018 monitoring periods, while the European football’s governing body agreed to set aside previous decisions of the Investigatory and Adjudicatory Chamber of its Club Financial Control Body which had found Milan guilty of the respective breaches.   

This was not the first intervention of the CAS related to Milan’s (non-)compliance with UEFA’s financial fair play regulations. In July 2018, the CAS annulled the decision of the Adjudicatory Chamber of the UEFA Club Financial Control Body of 19 June 2018 which was supposed to lead to the exclusion of the Italian club from UEFA club competitions for which it would otherwise qualify in the next two seasons (i.e. 2018/2019 and 2019/2020 seasons). Following such intervention of the CAS – which concerned the 2015/2016/2017 monitoring period – it may have appeared that Milan would eventually manage to escape a ban from participation in UEFA club competitions for breaches of UEFA’s financial fair play regulations. However, Milan’s case was again referred to the Adjudicatory Chamber of the UEFA Club Financial Control Body in April 2019 – this time its alleged breaches of UEFA’s financial fair play regulations concerned the 2016/2017/2018 monitoring period – and such referral apparently forced Milan into negotiations with UEFA which led to the settlement agreement ratified by the CAS.      

Swiss Federal Tribunal gives Caster Semenya a glimmer of hope at first but then stops her from running at the IAAF World Championships in Doha

Caster Semenya’s legal team brought an appeal to the Swiss Federal Tribunal in late May against the landmark ruling of the CAS which gave the IAAF the green light to apply its highly contentious Eligibility Regulations for Female Classification (Athlete with Difference of Sexual Development) preventing female athletes with naturally elevated levels of testosterone from participating in certain athletic events unless they take medication to supress such levels of testosterone below the threshold of five nmol/L for a continuous period of at least six months. The appeal yielded some positive partial results for Caster Semenya early on as the Swiss Federal Tribunal ordered the IAAF on 3 June 2019 to suspend the implementation of the contested regulations. However, the Swiss Federal Tribunal overturned its decision at the end of July which means that Caster Semenya is no longer able to run medication-free and this will most likely be the case also when the 2019 IAAF World Athletics Championships kick off in Doha in less than one month’s time. The procedural decisions adopted by the Swiss Federal Tribunal thus far have no impact on the merits of Caster Semenya’s appeal.

 

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