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 Diarra ruling of the Tribunal of Charleroi

On 19 January 2017, the Hainaut Commercial Tribunal – Charleroi rendered its decision on the lawsuit filed by the football player Lassana Diarra against FIFA and the Belgian FA (URBSFA) for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. The lawsuit is linked to the decision, rendered by the FIFA Dispute Resolution Chamber (DRC) on April 2015, to support Lokomotiv’s decision to terminate the player’s contract and to order Diarra to pay Lokomotiv the amount of EUR 10,500,000 for having breached his contract. According to the plaintiff, Diarra’s opportunity to be recruited by Sporting Charleroi was denied due to the club being potentially considered jointly liable for Diarra’s compensation pursuant to Article 17 (2) RSTP. The Belgian court held strongly that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. This case highlighted, once again, the need to read the RSTP in the light of EU law. Moreover, the decision is laying further ground for broader challenges to the RSTP on the basis of EU law (for a deeper insight into the Diarra ruling, see the recent blog written by our senior researcher Antoine Duval)

The IAAF Decision on three of its employees in corruption linked to the Russian doping scandal

On 31 January 2017, IAAF Ethic Board released its decision on allegations of corruption linked to the Russian doping scandal involving three of its employees, Nick Davies, Jane Boulter-Davies and Pierre-Yves Garnier,. The decision of the Panel stems from an email released by the media, which was sent by Nick Davies, then IAAF’s Deputy General Secretary and Director of Communications, to Papa Massata Diack, marketing consultant to the IAAF and son of the IAAF’s then President Lamine Diack, on 19 July 2013, shortly before the commencing of the IAAF World Championships in Moscow. In the email Nick Davies outlined a plan to minimise the damage provoked by the news related to the positive doping tests of a number of Russian athletes, in light of the imminent IAAF World Championships. During the investigation commissioned by the Ethic Board, it emerged that Nick Davies received sums of money for corrupt purposes in relation to the aforementioned plan and that he subsequently concealed the remuneration; that his wife, Jane Boulter-Davies, misled the investigation carried out on behalf of the Ethic Board; and that Pierre-Yves Garnier, Medical and Scientific Senior Manager, received sums of money to the same end. The Panel, therefore, banned Mr Davies from his position at the IAAF, and suspended Mrs Boulter-Davies and Mr. Garnier from their IAAF positions for a period of 6 months.

CAS award on UEFA Membership of Football Federation of Kosovo

In the dispute between the Football Association of Serbia (FAS) and UEFA over the admission of the Football Federation of Kosovo (FFK) as the 55^th member association of UEFA, the CAS sided with UEFA and dismissed the appeal filed by the FAS. The CAS award confirms the FFK’s admission as a member association of UEFA. The CAS Panel analysed Article 5(1) UEFA Statues, which requires the recognition by the United Nations (UN) as an independent state in order for a football associations situated in the continent of Europe to obtain the membership of UEFA. It held that the provision has to be interpreted as requiring that the territory in which the football federation is located be recognised by the majority of the UN member states as an “independent state”. Given that this prerequisite was fulfilled with respect to FFK, FAS’ appeal was dismissed.

Ruling of the Commercial Court of Zurich on FIFA's responsibility for human rights violations in Qatar

Finally, on 3 January 2017, the Commercial Court of the Canton of Zurich dismissed the lawsuit filed against FIFA by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam for alleged human rights violations in connection with the 2022 FIFA World Cup in Qatar. The plaintiffs asserted that FIFA's legal responsibility for those violations arose out of FIFA's inaction to remedy them. First, when it selected Qatar as host of the 2022 FIFA World Cup without simultaneously demanding minimum human rights and labour rights for World Cup-related migrant workers. Second, when it failed and still is failing to take responsibility for the fate of migrant workers by not demanding Qatar to reform its labour system.

Sports Law Related Decisions

CMA (Competition and Markets Authority) - Anticipated acquisition by Liberty Media Corporation of Formula 1 Group - Decision on relevant merger situation and substantial lessening of competition
IAAF – IAAF Ethics Board Decision Numbers: 06, 07 and 08/2017
IOC - IOC sanctions eight athletes for failing anti-doping tests at Beijing 2008 and London 2012
UEFA - CFCB adjudicatory decision regarding FK Partizan
UEFA – CAS 2016/A/4650 Klubi Sportiv Skenderbeu v. UEFA

Official Documents and Press Releases

In the news

Doping

Football

Causa Sport News Trade unionism before the Zurich Commercial Court in FIFA
ENCA Players' union calls for reform after Diarra ruling
Jack Kerr East Timor Is Expelled From Asian Cup for Fielding Ineligible Brazilians
Nick Harris and Roger Pielke FIFA president Gianni Infantino asked Russian deputy PM Vitaly Mutko to step away from his football administration roles
Liam Morgan Čeferin says there is no reason to move 2018 World Cup from Russia
Leander Schaerlaeckens Chinese FA puts an apparent end to flood of high-priced players to Super League
Rory Smith Valencia, an Often Unsteady Club, Teeters Toward Disaster

Other

Andrew Benson Bernie Ecclestone removed as Liberty Media completes $8bn takeover
Ian Herbert The IOC's silence on Trump is contemptible, Los Angeles cannot now host the 2024 Olympics
Laurent Maduit Tennis: the sinking of a federation, the negligence of a minister
Dan Palmer International Canoe Federation ban on Belarus thrown out by CAS
Chris Vedelago and Cameron Houston Tennis Australia under investigation over legality of $200m TV deal with Seven

Books

Michele Colucci (ed.) The FIFA Regulations on Working with Intermediaries (II edition): an updated appraisal
Leanne O’Leary Employment and Labour Relations Law in the Premier League, NBA and International Rugby Union

Academic Materials

Travis L. Marmara Free Kick: FIFA’s Unintended Role in Illuminating Jurisdictional Gaps of International Criminal Courts

Blogs

Asser International Sports Law Blog

Law in Sport

Braham Dabscheck Forming teams of their own: The dramatic emergence of player associations across the globe
James Hill Cross-code transfers in Rugby – Will the Denny Solomona case set a new precedent?
Charles Maurice Negotiating new kit sponsorship deals: Nike & Chelsea “Just Do It”
Mads Quist Boesen A guide to Denmark’s internal sports dispute resolution system
Roberto de Palma Barracco An overview of “PROFUT” – Brazil’s new sports law
Richard Spafford, Carolyn Pepper and Casey Ryan Best practice for handling child abuse investigations in sport
Joe Tompkins Key commercial issues when negotiating a new official kit supplier agreement

Others

Gideon Barth and Richard Booth Blanket doping bans and human rights. Does a blanket ban on Russian athletes competing at Rio 2016 contravene human rights law?
Nick Butler Olympic Movement's real reaction to Russian doping crisis still remains unclear heading into 2017
Nick Butler What is likely to happen next in the struggle against Russian doping?
Bruno Guandalini and Caio de Faro Nunes The CAS List of Arbitrators: Lessons from the Pechstein case for Tokyo 2020
Antonio Rigozzi, Sébastien Besson and William McAuliffe International Sports Arbitration

Upcoming Events

8 March - Discrimination Against Women in Sport Conference: How to continue narrowing the discrimination gap, Preston, UK
6 April – Sportaccord Convention 2017 (“Lawaccord”) - Joint Session with the Court of Arbitration for Sport, Aarhus, Denmark
28-29 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
29-30 June – Sport & EU 12^th Annual Conference, Molde University College, Molde, Norway

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 end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval.

The CAS award in Real Madrid CF v. FIFA

At the end of the month, the CAS finally published its award delivered in the arbitration procedure between the Spanish club Real Madrid CF and FIFA regarding the transfer of minor football players. Mr Michele Bernasconi, sitting as a Sole Arbitrator, partially upheld the appeal filed by Real Madrid CF against the decision rendered by the FIFA Appeal Committee on 8 April 2016. The Sole Arbitrator reduced the ban (registering new players both on a national and international level) imposed on the Spanish club by the FIFA Appeal Committee from two to one entire transfer period. Moreover, Real Madrid CF is now obliged to pay CHF 240,000 instead of the original fine amounting to CHF 360,000.

UEFA incorporates human rights and anti-corruption criteria into bidding requirements

UEFA has recently made available the Bid Dossier Template for the 2024 European Championship that will be held either in Germany or Turkey. Amongst other things, the two remaining candidates shall describe in their bid dossiers a global strategy for integrating the United Nations Guiding Principles on Business and Human Rights in order to protect, respect and fulfil universal human rights, including child rights and the rights of workers. On this occasion, UEFA President Mr Aleksander Čeferin stated that ‘it was imperative […] to introduce specific articles on the respect and protection of human rights in the bidding requirements for all our competitions.’ By incorporating human rights criteria into bidding requirements, UEFA joins the International Olympic Committee and FIFA in their efforts to tackle human rights abuses associated with mega sporting events.

The return of Claudia Pechstein: Bundesverfassungsgericht edition

Claudia Pechstein is back! For those who have already forgotten the case, this is a dispute involving a German Speed Skater and Olympic gold medallist challenging the validity of a CAS award imposing a doping ban (for greater detail see our previous blogs here and here, and the article by Antoine Duval and Ben van Rompuy). Nothing less than the survival of the CAS, at least as we know it, is at stake. While Claudia Pechstein lost in front of the Bundesgerichtshof, the decision was harshly criticized (here and here) and she decided to challenge the ruling in front of the German Bundesverfassungsgericht (constitutional court). Since last month, we know that the Bundesverfassungsgericht will hear and decide the claim, this as such is already a sign that the judges deem the case worthy of consideration and should be cause for concern for those wishing to keep the CAS as it currently is. The silver lining for CAS might be in the Bundesverfassungsgericht’s Solange jurisprudence, which could find a new expression in this peculiar context (as suggested here), it would preserve the CAS’s existence while forcing it to change.