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

The International Sports Law Digest – Issue II – July-December 2014

I. Literature

1. Antitrust/Competition Law and Sport

G Basnier, ‘Sports and competition law: the case of the salary cap in New Zealand rugby union’, (2014) 14 The International Sports Law Journal 3-4, p.155

R Craven, ‘Football and State aid: too important to fail?’ (2014) 14 The International Sports Law Journal 3-4, p.205

R Craven, ‘State Aid and Sports Stadiums: EU Sports Policy or Deference to Professional Football (2014) 35 European Competition Law Review Issue 9, 453

2. Intellectual Property Rights in Sports law / Betting rights/ Spectators’ rights/ Sponsorship Agreements


W T Champion and K DWillis, Intellectual property law in the sports and entertainment industries (Santa Barbara, California; Denver, Colorado; Oxford, England: Praeger 2014)

J-M Marmayou and F Rizzo, Les contrats de sponsoring sportif (Lextenso éditions 2014) 


Time to Cure FIFA’s Chronic Bad Governance Disease

 After Tuesday’s dismissal of Michael Garcia’s complaint against the now infamous Eckert statement synthetizing (misleadingly in his eyes) his Report on the bidding process for the World Cup 2018 and 2022, Garcia finally decided to resign from his position as FIFA Ethics Committee member. On his way out, he noted: “No independent governance committee, investigator, or arbitration panel can change the culture of an organization”. It took Garcia a while to understand this, although others faced similar disappointments before. One needs only to remember the forgotten reform proposals of the Independent Governance Committee led by Prof. Dr. Mark Pieth. More...

The CAS Ad Hoc Division in 2014: Business As Usual? - Part. 2: The Selection Drama

In a first blog last month we discussed the problem of the scope of jurisdiction of the Ad Hoc Division of the Court of Arbitration for Sport. The key issue was whether an athlete could get his case heard in front of the CAS Ad Hoc Division or not. In this second part, we will also focus on whether an athlete can access a forum, but a different kind of forum: the Olympic Games as such. This is a dramatic moment in an athlete’s life, one that will decide the future path of an entire career and most likely a lifetime of opportunities. Thus, it is a decision that should not be taken lightly, nor in disregard of the athletes’ due process rights. In the past, several (non-)selection cases were referred to the Ad Hoc Divisions at the Olympic Games, and this was again the case in 2014, providing us with the opportunity for the present review.

Three out of four cases dealt with by the CAS Ad Hoc Division in Sochi involved an athlete contesting her eviction from the Games. Each case is specific in its factual and legal assessment and deserves an individual review. More...

Should the CAS ‘let Dutee run’? Gender policies in Sport under legal scrutiny. By Thalia Diathesopoulou

The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? More...

The O’Bannon Case: The end of the US college sport’s amateurism model? By Zygimantas Juska

On 8 August, U.S. District Judge Claudia Wilken ruled in favour of former UCLA basketball player O'Bannon and 19 others, declaring that NCAA's longstanding refusal to compensate athletes for the use of their name, image and likenesses (NILs) violates US antitrust laws. In particular, the long-held amateurism justification promoted by the NCAA was deemed unconvincing.

On 14 November, the NCAA has appealed the judgment, claiming that federal judge erred in law by not applying a 1984 Supreme Court ruling. One week later, the NCAA received support from leading antitrust professors who are challenging the Judge Wilken’s reasoning in an amicus curiae. They are concerned that the judgment may jeopardize the proper regulation of college athletics. The professors argued that if Wilken’s judgment is upheld, it

would substantially expand the power of the federal courts to alter organizational rules that serve important social and academic interests…This approach expands the ‘less restrictive alternative prong’ of the antitrust rule of reason well beyond any appropriate boundaries and would install the judiciary as a regulatory agency for collegiate athletics”.   


Image Rights in Professional Basketball (Part II): Lessons from the American College Athletes cases. By Thalia Diathesopoulou

In the wake of the French Labour Union of Basketball (Syndicat National du Basket, SNB) image rights dispute with Euroleague and EA Games, we threw the “jump ball” to start a series on players’ image rights in international professional basketball. In our first blogpost, we discussed why image rights contracts in professional basketball became a fertile ground for disputes when it comes to the enforcement of these contracts by the Basketball Arbitral Tribunal (BAT). Indeed, we pointed out that clubs might take advantage of the BAT’s inconsistent jurisprudence to escape obligations deriving from image rights contracts.

In this second limb, we will open a second field of legal battles “around the rim”: the unauthorized use of players’ image rights by third parties. We will use as a point of reference the US College Athletes image rights cases before US Courts and we will thereby examine the legal nature of image rights and the precise circumstances in which such rights may be infringed. Then, coming back to where we started, we will discuss the French case through the lens of US case law on players’ image rights. 

Source: More...

The Olympic Agenda 2020: The devil is in the implementation!

The 40 recommendations of the Olympic Agenda 2020 are out! First thought: one should not underplay the 40 recommendations, they constitute (on paper at least) a potential leap forward for the IOC. The media will focus on the hot stuff: the Olympic channel, the pluri-localisation of the Games, or their dynamic format. More importantly, and to some extent surprisingly to us, however, the IOC has also fully embraced sustainability and good governance. Nonetheless, the long-term legacy of the Olympic Agenda 2020 will hinge on the IOC’s determination to be true to these fundamental commitments. Indeed, the devil is always in the implementation, and the laudable intents of some recommendations will depend on future political choices by Olympic bureaucrats. 

For those interested in human rights and democracy at (and around) the Olympics, two aspects are crucial: the IOC’s confession that the autonomy of sport is intimately linked to the quality of its governance standards and the central role the concept of sustainability is to play in the bidding process and the host city contract.  More...

UEFA’s tax-free Euro 2016 in France: State aid or no State aid?

Last week, the French newspaper Les Echos broke the story that UEFA (or better said its subsidiary) will be exempted from paying taxes in France on revenues derived from Euro 2016. At a time when International Sporting Federations, most notably FIFA, are facing heavy criticisms for their bidding procedures and the special treatment enjoyed by their officials, this tax exemption was not likely to go unnoticed. The French minister for sport, confronted with an angry public opinion, responded by stating that tax exemptions are common practice regarding international sporting events. The former French government agreed to this exemption. In fact, he stressed that without it “France would never have hosted the competition and the Euro 2016 would have gone elsewhere”. More...

The New Olympic Host City Contract: Human Rights à la carte? by Ryan Gauthier, PhD Researcher (Erasmus University Rotterdam)

Three weeks ago, I gave a talk for a group of visiting researchers at Harvard Law School on the accountability of the IOC for human rights abuses caused by hosting Olympic Games. On the day of that talk, Human Rights Watch announced that the International Olympic Committee (“IOC”) would insert new language into the Host City Contract presumably for the 2022 Olympic Games onwards. The new language apparently requires the parties to the contract to:

“take all necessary measures to ensure that development projects necessary for the organization of the Games comply with local, regional, and national legislation, and international agreements and protocols, applicable in the host country with regard to planning, construction, protection of the environment, health, safety, and labour laws.”More...

The UN and the IOC: Beautiful friendship or Liaison Dangereuse?

The IOC has trumpeted it worldwide as a « historical milestone »: the United Nations has recognised the sacrosanct autonomy of sport. Indeed, the Resolution A/69/L.5 (see the final draft) adopted by the General Assembly on 31 October states that it  “supports the independence and autonomy of sport as well as the mission of the International Olympic Committee in leading the Olympic movement”. This is a logical conclusion to a year that has brought the two organisations closer than ever. In April, UN Secretary General Ban Ki-moon appointed former IOC President, Jacques Rogge, Special Envoy for Youth Refugees and Sport. At this occasion, the current IOC President, Thomas Bach, made an eloquent speech celebrating a “historic step forward to better accomplish our common mission for humanity” and a memorandum understanding was signed between the UN and the IOC. This is all sweet and well, but is there something new under the sun?More...

Asser International Sports Law Blog | International and European Sports Law – Monthly Report – September 2016. By Kester Mekenkamp

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 – September 2016. By Kester Mekenkamp

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

September hosted the very last bit of the sport summer 2016, most notably in the form of the Rio Paralympic Games. Next to the spectacular achievements displayed during these games, in the realm of sports law similar thrilling developments hit town. The first very much expected #Sportslaw highlight was the decision by the German Bundesgerichtshof in the case concerning SV Wilhelmshaven. The second major (less expected) story was the Statement of Objections issued by the European Commission against the International Skating Union.

The Bundesgerichtshof’s ruling in the SV Wilhelmshaven case

On Tuesday 20 September, Germany’s highest court, the Bundesgerichtshof (BGH), sided with the German (now) amateur football club SV Wilhelmshaven in its fight against a forced relegation at the end of the 2013/2014 season, ordered by FIFA and effectuated by the North German Football Federation. This relegation was the ultimate result of the non-payment of training compensation fees owed by SV Wilhelmshaven to two Argentinian Clubs under the FIFA training compensation system. For the ins and outs of the story leading up to the BGH’s decision, please read our earlier blog post ‘SV Wilhelmshaven: a Rebel with a cause!’.

In short, the current ruling annulled the relegation, because of the unclear nature of the North German Football Federation’s statutes. A disciplinary measure can only be applied when it derives from the federation’s statutes. The BGH found that the penalty in the form of a forced relegation could not be inferred from the statutes. It was not foreseeable for SV Wilhelmshaven that their non-payment of the imposed trainings fees would lead to this dire consequence. Unfortunately, the BGH did not answer the question whether the forced relegation infringed the free movement rights of football players under Article 45 TFEU. Thus ignoring the criticisms raised by the Bremen court in earlier instance. Henceforth, the ruling constitutes an important blow for the German football federations and a relatively harmless defeat for FIFA.

The EU Commission’s Statement of objections to ISU

On the morning of 27 September, for the first time nearly 20 years(!), the European Commission issued a Statement of Objections (SO) in the field of sport. The SO was addressed to the International Skating Union (ISU) in relation to its eligibility rules. The ASSER Institute (via Ben Van Rompuy and Antoine Duval) was at the origin of the complaint and was representing the skaters along the proceedings. The SO concluded the first phase of the Commission’s investigation that was opened in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert and Niels Kerstholt.

The preliminary view of the Commission is that the ISU breaches EU competition law through its rules under which athletes can be severely penalized (i.e. a ban from the Olympic Games or the World Championship, and possibly even life time bans) for their participation in speed skating events not authorised by the ISU. The commercial freedom of athletes is ‘unduly’ restricted by these rules, which ultimately leads to preventing new entrants on the market of speed skating events, as these organizers are not able to attract the top athletes. Commissioner Vestager expressed the concerns that ‘the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU's control over speed skating’. The length of the possible penalties (leading up to a ban for life) are, considered the short time span of a professional athlete’s career, extremely harmful and potentially career ending. The Commission is thus concerned that these ISU eligibility rules are ‘disproportionately punitive’ and, as such, may breach Article 101 TFEU.

In a defensive response, the ISU declared that it believes the European Commission’s allegations are unfounded. The ‘surprised’ ISU stressed that the SO is merely a one of the stages in a Commission antitrust investigation and ‘does not imply that the ISU is responsible or liable for any violation of EU antitrust legislation’. Striking was the claim stating that any such allegations appear ‘to be based on a misplaced understanding of the governance structure of sport and the Olympic movement’ together with the reference to the wore-out life buoy of the ‘autonomous governance structure of sport’.

In any case, the mere fact that the Commission decided to issue an SO is a strong indicator of its grave concerns regarding the (bad) governance of global sport and the tendency of the Sports Governing Bodies (SGBs) to abuse their monopoly position for the sole sake of making more money for themselves. That, or Margrethe Vestager has a secret passion for ice skating.

Other headlines

The month of September also saw the publication of the Spanish Tribunal Supremo’s ruling of 28 July 2016 concerning the legality of the whereabouts requirement imposed on athletes in the fight against doping. The case dates back to 2013 when the Spanish High Council for Sports adopted resolution 1648/2013 providing two forms (Annex I and Annex II) for athletes to complete in order to fulfil their whereabouts requirements. In June 2014, the Adiencia Nacional (an Exceptional High Court) considered that the resolution was contrary to the right to privacy and was going beyond the wording enshrined Spain’s anti-doping laws. It consequently declared the whereabouts requirement null and void. For more information on the Audiencia Nacional’s judgment, see our Blog from July 2014. In cassation, the Supreme Court agreed with the Audiencia Nacional and deemed the whereabouts requirement to be disproportionate and contrary to the right to privacy. According to the Court, the general policy (objective) of a (global) fight against doping cannot be considered a sufficient justification for limiting a person’s freedom too such an extent.

As regards the aftermath of the Rio Olympics, the CAS Ad Hoc Division proved to have a rather busy schedule during and after these games. One of the main reasons for this was the ‘willingness’ of Russian athletes to challenge the ban imposed on them by the IAAF. Even though these decisions have been rendered in August, we published a five-part blog by Antoine Duval this month, which analyses the published CAS awards related to Russian athletes: Act I: Saved by the Osaka déjà-vu, Act II: On being implicated, Act III: On being sufficiently tested, Act IV: On bringing a sport into disrepute and Act V: Saving the Last (Russian) Woman Standing. 

Case law


EU commission Spanish State Aid decisions

EU commission Dutch State Aid decisions



Official documents and Press releases

In the news





Olympic and Paralympic Games


Academic materials




Anti-doping in the wake of the Meldonium cases by Dr. Marjolaine Viret

Upcoming events

13 October – ‘British Association for Sport and Law Annual Conference 2016’, Olympic Stadium, London, UK

28 October – ‘The Wilhelmshaven case: Challenging FIFA and the CAS’, FBO, Zeist, the Netherlands

4 November – ‘Contemporary Issues in Sports Law and Practice 2016’, De Montfort University, Leicester, UK

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