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

Bailing out your local football club: The Willem II and MVV State Aid decisions as blueprint for future rescue aid (Part 1)

The European Commission’s decisions of 4 July 2016 to order the recovery of the State aid granted to seven Spanish professional football clubs[1] were in a previous blog called historic. It was the first time that professional football clubs have been ordered to repay aid received from (local) public authorities. Less attention has been given to five other decisions also made public that day, which cleared support measures for five football clubs in the Netherlands. The clubs in question were PSV Eindhoven, MVV Maastricht, NEC Nijmegen, FC Den Bosch and Willem II.

Given the inherent political sensitivity of State aid recovery decisions, it is logical that the “Spanish decisions” were covered more widely than the “Dutch decisions”. Furthermore, clubs like Real Madrid and FC Barcelona automatically get more media attention than FC Den Bosch or Willem II. Yet, even though the “Dutch decisions” are of a lower profile, from an EU State aid law perspective, they are not necessarily less interesting.

A few days before entering the quiet month of August, the Commission published the non-confidential versions of its decisions concerning PSV Eindhoven, Willem II and MVV Maastricht (hereinafter: “MVV”). The swiftness of these publications is somewhat surprising, since it often takes at least three months to solve all the confidentiality issues. Nonetheless, nobody will complain (especially not me) about this opportunity to analyze in depth these new decisions. More...

Fear and Loathing in Rio de Janeiro – Displacement and the Olympics by Ryan Gauthier (Thompson Rivers University)

‎Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.

Introduction

On Sunday, August 21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight will dim not only on the athletes who return to their home countries to ply their trade in relative obscurity, but also on the country of Brazil.[1] Once the Games have ended, life will go ‘back to normal’, although for many residents of Rio de Janeiro, what is ‘normal’ is anything but. More...



Why we should stop focusing on Caster Semenya by Marjolaine Viret (University of Neuchâtel)

Editor's Note:  Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.  She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.

Over the past days, we have been flooded by media reports discussing the “Caster Semenya-case”, reports rapidly relayed in social networks. Since the debate has a distinct legal component and since almost every report appears to draw significantly from the legal background, I granted myself permission – as compensation so to speak - to publish a somewhat more personal, less legal, post than I usually would.

Let me make one thing clear from the outset – I am still ‘agnostic’ about the question of how to solve the issues surrounding the male versus female divide in sports. Each time I have been asked to write or speak on the subject, I have tried to stick to describing the legal situation and its implications. I do not have the miracle solution as to how to handle this infinitely complex issue. And I am not sure anyone can claim to hold that solution at this point. Like everyone, I am doing my research and trying to be humble enough to stay within the realm of my competences. More...




Sporting nationality and the Olympic Games: selected issues by Yann Hafner (University of Neuchâtel)

Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized in sports and nationality issues. He is also Legal Affairs Manager at the Fédération Internationale de Volleyball. Yann is an editor of the ASSER International Sports Law Blog and has previously published on the blog on nationality conundrums at the FIFA World Cup 2014 in Brazil (see here).  

This contribution aims to decipher the relationship between sporting nationality and the Olympic Games. To this end, the author will first define sporting nationality and discuss athletes’ eligibility in national team in the context of the Olympic Games. Then, selected issues in relation with sporting nationality and the Olympic Games (with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated. More...



Regulating the human body in sports: Lessons learned from the Dutee Chand case - by Dr Marjolaine Viret & Emily Wisnosky

Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.

Introduction

A remarkable aspect of the run-up to the 2016 Rio Olympic Games was the stream of negative media reports portraying broad-scale public mistrust in sport, with the most prominent topic being the doping scandals in athletics and questions surrounding the participation of Russia.  

A different controversy, but one also directed at the credibility of sports, has exposed a few female Olympians to repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported that Indian track-and-field athlete Dutee Chand had qualified for the Rio Olympic Games by breaking the national record, thus to become the first Indian athlete to run the 100m at the Olympics since 1980. The attention that Dutee Chand’s qualification attracted within international media, however, was not related only to her outstanding results. It came as part of a medical, ethical and legal controversy that has existed for many years relating to ‘policing’ the male versus female divide in sports. Another athlete who has found herself in the midst of this controversy is South African runner Semenya Caster, whose participation in the Olympics has been the object of much conjecture.

The divide between male and female athletes forms the core of most sports’ competition rules, including athletics. The justification for this basic divide has rarely been questioned as such, but has been a matter for debate when it comes to handling atypical situations on both sides of the ‘dividing line’ ­ such as ‘transgender’ or ‘intersex’ athletes. A category of athletes that has, especially, been viewed as a challenge to the divide is composed of female athletes affected by ‘hyperandrogenism’, a health condition that results in naturally elevated androgen levels, including testosterone levels.

On 24 July 2015, a CAS panel rendered a decision involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the ongoing debate about the policies regulating hyperandrogenism in sport. Much has been reported in the media about the case: controversial issues include whether the CAS was the appropriate forum to assess these questions; whether the decision was appropriate, both on the merits and on the procedure; and what the consequences of the CAS award would be, for the parties, for athletics and for the sporting community at large.

Much like the current crisis surrounding doping in sports, the public attention on women with (proven or suspected) hyperandrogenism is driven by a concern that an athlete’s physiology – natural or artificially induced ­ could distort competition, destroying the ‘level playing field’ that supports the Olympic ideal. Both topics are also often brought back to the goal of protecting an athlete’s health. Parallels are further found in the strong reactions both topics evoke, and the steps taken by the regulating authorities to convince the public that everything in their power is being done to preserve a level playing field.

A less obvious but equally important point of comparison can be found in the issues both topics raise concerning the legal validity of decisions made by sports organizations, especially in a science-related context. This blog focuses on those more ‘legal’ aspects, through the prism of the decision of the CAS in the Dutee Chand matter and its legal implications. After touching briefly on the background of the case, we will comment on two aspects of the Chand award with respect to challenges in regulating hyperandrogenism in sport within the confines of the law: First from the viewpoint of a CAS panel called upon to evaluate the validity of a set of regulations, and second from the viewpoint of the sports organizations seeking to both adequately protect fairness in sport and to provide a legally valid (and effective) regulatory solution.[1]

More...


International and European Sports Law – Monthly Report – July 2016 - By Marine Montejo

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 have overlooked. 

The Headlines

The McLaren Report on Russia’s State Doping System

It is difficult not to start this monthly report without referring to the never-ending Russian doping investigation that is shaking the sporting world. On 18 July, the independent investigation on Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested by the World Anti-Doping Agency (“WADA”), released its report. It confirmed evidence of widespread, State-sponsored doping in Russian sports and called for a full ban on the country from the next Rio Olympics. In response to the report, the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the appeal of the Russian Olympic Committee and 68 Russian athletes against the International Association of Athletics Federations (“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF membership given the evidence of a state-sponsored doping system. As a consequence, Russian track and field athletes were also banned from Rio 2016 Olympics. With the IAAF welcoming this decision, one could think that nothing was standing in the way of a full Olympic ban for all Russian athletes. While some Russian athletes announced that they would appeal the CAS award to the Swiss Federal Court. Yelena Isinbayeva, the banned pole vault champion, even took it a step further by claiming that she would challenge the IAAF decision as far as the European Court of Human Rights. Yet, it is very improbable that any of these challenges be decided in time for the Rio Games.More...

Brexit and EU law: Beyond the Premier League (Part 2). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre. 


Part 2. EU competition law and sports funding

The first analysed impact of Brexit on sport was the one regarding EU internal market rules and free movement. However, all sport areas that are of interest to the European Union will be impacted by the result of the future Brexit negotiations. This second part of the blog will focus on EU competition law and the media sector as well as direct funding opportunities keeping in mind that if the UK reaches for an EEA type agreement competition law and state aid rules will remain applicable as much as the funding programs.  More...


With or without them? Russia’s state doping system and the Olympic fate of Russian athletes. By Antoine Duval, Kester Mekenkamp and Oskar van Maren

On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian doping program surrounding the 2014 Sochi Winter Olympics. The report was expected to seriously threaten the participation of Russian Athletes to the rapidly approaching Rio Games, starting on 5 August. In the weekend prior to the report’s publishing, Reuters obtained a leaked letter drafted by the CEO’s of the US and Canadian anti-doping agencies, which according to the New York Times was backed by “antidoping officials from at least 10 nations— including those in the United States, Germany, Spain, Japan, Switzerland and Canada — and 20 athlete groups”, urging the International Olympic Committee (IOC) to ban all Russian athletes from the upcoming Olympics.

Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg

More...

Brexit and EU law: Beyond the Premier League (Part 1). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

The result of the Brexit referendum on 23 June 2016 took the European Union (almost) by surprise. A lot has been said and written about the impact of the United Kingdom leaving the EU. As in all other areas, the British sport sector will also face the effects of the modification of the relationship between the EU and its (probable) former Member State, the UK. It is nearly impossible to foresee all consequences as the UK has not even triggered article 50 TFEU yet to officially start the exit negotiations. However, as the UK position toward the EU will change in any case, this two-part blog aims to examine the main practical implications of such an exit for the UK, but also for the EU, in relation to the actual application of EU law in sport and the EU sport policy.

Unless stated otherwise, the use of the terms Brexit in this blog should be understood as a complete exit of the UK from the European Union. This blog focus in particular on this worst case scenario and its consequences for UK sport. However, it is highly improbable that the future Brexit negotiations with the EU will end up without some kind of special agreement between the two parties the first of which being an EEA type of agreement with full access to the internal market and applicability of EU law. 

The first part of this blog will examined the consequences for UK sport in terms of access to the EU internal market and the applicability of free movement principles. The second part is focused on specific impacts with regard of others domain of EU law for professional and grassroots UK sport.  More...

International and European Sports Law – Monthly Report – June 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

What a month June turned out to be. Waking up the morning after the 23rd, the results of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently there is nothing that cannot happen today”, might provide the most apt description of the mood felt at the time.[1] The Leave campaign’s narrow victory has brought along tremendous economic, political and legal uncertainties for both the UK and the (other) Member States. To give but one example, with regard to the implications of Brexit on Europe’s most profiting football league, we recommend an older blog by Daniel Geey and Jonny Madill. More...


Asser International Sports Law Blog | International transfers of minors: The sword of Damocles over FC Barcelona’s head? by Giandonato Marino and Oskar van Maren

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 transfers of minors: The sword of Damocles over FC Barcelona’s head? by Giandonato Marino and Oskar van Maren

In the same week that saw Europe’s best eight teams compete in the Champions League quarter finals, one of its competitors received such a severe disciplinary sanction by FIFA that it could see its status as one of the world’s top teams jeopardized. FC Barcelona, a club that owes its success both at a national and international level for a large part to its outstanding youth academy, La Masia, got to FIFA’s attention for breaching FIFA Regulations on international transfers of minors.  Unfortunately, at the moment FIFA has not published the decision of the Disciplinary Committee on this case, therefore our analysis is mainly based on the two official statements of FIFA and FC Barcelona.

When FC Barcelona signed the 13 years-old South Korean Lee Sung Woo, in 2011, they thought they found the “new Lionel Messi”. Little did they know that this under-aged Korean football player was to be one of the sources of the legal trouble they are in now. On 5 february, 2013, the Club received the request from FIFA via the Spanish Football Federation (RFEF) to provide information concerning the registration of Lee. Over the course of 2013, FIFA further asked FC Barcelona for additional information on other players. By December 2013, FC Barcelona provided FIFA information on a total of 37 minors.

According to FIFA’s official statement FC Barcelona has been found to be in breach of art.19 of the Regulations on the Status and Transfer of Players (hereinafter “the Regulations”). In this regard, special attention was focused on ten minors signed between the years 2009 and 2013, including the abovementioned Lee. According to article 19 of the Regulations, international transfers of players are only permitted if the player is over the age of 18, or 16 if the player is transferred within the territory of the European Union[1]. Also according to FIFA, the RFEF has been found to have breached the same article 19 of the Regulations in the context of the transfer and registration of certain minor players. Indeed, the Regulations oblige the National Federations to enforce these provisions on national football clubs.

For a normal international transfer procedure, the Regulations impose to clubs and Federations the use of the web-based Transfer Matching System (hereinafter “the TMS”) since 2009.  The TMS ensures that all international transfers are conducted in line with the FIFA rules, thereby controlling the integrity of both clubs and Federations involved. In other words, the club willing to register a new player informs its National Federation of the transfer, who in turn informs TMS, in order for the new player to be registered in his new Federation. As regards the case at hands, the exact details of the used procedure are unknown. However, one could suspect that FC Barcelona deviated from the “usual” procedure and decided to register the minors with the Catalan Federation instead. This means that, at a certain point, the Catalan Federation had to inform the National one. According to the RFEF Secretary General, the Spanish National Federation actually refused to register the concerned minors, but the Catalan Federation proceeded anyway. This alternative registering procedure is by no means contrary to TMS, but does increase the risk for “bureaucratic mistakes”. This case highlights the difficulty in identifying a responsible party. Despite the fact that FC Barcelona, RFEF and the Catalan Federation have a shared responsibility in the administrative mess-up leading to this procedure, FIFA only sanctioned the first two.

FIFA has been clear regarding the disciplinary sanctions: in accordance with article 23 of FIFA Disciplinary Code, FC Barcelona is imposed a ban to register new players for two complete and consecutive transfer periods (summer 2014 and January 2015). Moreover, the Club received a fine of CHF 450,000 and a deadline of 90 days in which to regularise the position of all minors concerned. The RFEF, for its part, received a fine of CHF 500,000 plus a deadline of one year in order to regularise their regulatory framework on this issue. With a turnover of more than 400 million Euro per year, it is unlikely that the Club is seriously worried about the fine. However, the transfer ban places the FC Barcelona in a very unpleasant situation. The first team is in need of certain important replacements, such as a new goalkeeper and a central defender, after both Víctor Valdés and Carles Puyol announced their departure this upcoming summer. Furthermore, it remains unclear what will happen with the promised signings of the German goalkeeper Marc-André Ter Stegen and the Croatian talent Alen Halilović.

FC Barcelona announced in its aforementioned official statement, that it will be appealing to the FIFA Appeal Committee and, if necessary, further appeal to CAS. Furthermore, the Club will demand for provisional measures in order to register new players during the next transfer window at least. Meanwhile, the RFEF is yet to give a detailed statement on its future legal strategy.

The fact that FIFA sanctions one of the biggest and renowned football clubs in the world in an unprecedented way demonstrates that they take this issue seriously, no matter how big the club in question is. The rules on minors is made to protect the best interest of the child. FIFA argues that the interest in protecting the appropriate and healthy development of a minor as a whole must prevail over purely sporting interests. This position is also supported by the International Federation of Professional Footballers (FIFPro), who fears that without the proper controls the development of a minor is not adequately protected against exploitation.

Undoubtedly, FC Barcelona will refer to the letter its former President, Sandro Rosell, sent to FIFA in March 2013. In this letter, Rosell argued that to fully safeguard the protection of minors, clubs must ensure the players can benefit from any good opportunity on their reach. In this regard, Rosell asked FIFA to consider a further exception on article 19 in favour of the clubs that have developed excellent Youth Academies. This would mean that certain clubs should be allowed to register minors regardless of their origin as long as the clubs compromise to take care of the minor until his 18th birthday.

This could be a valid argument but would require FIFA Regulations to be modified. With regard to provisional measures, the Club’s demand is very unlikely to be accepted by the FIFA Appeal Committee, since article 124 of the FIFA Disciplinary Code only permits a suspension of the economical sanction. At CAS, on the other hand, the Club should demonstrate the existence of an irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the FC Barcelona outweigh those of FIFA[2]. In this regard, FC Barcelona can refer to the Mexès case where CAS temporarily lifted the ban imposed on the Italian football club A.S. Roma[3]. Furthermore, it can also rely on a more recent precedent in this field: the Kakuta case.

Considering the potential impact of the imposed disciplinary sanctions, this legal dispute will be one of the most difficult and challenging games in FC Barcelona’s long history. But make no mistake, this is just the beginning of an exciting legal game…




[1] Article 19 stipulates a few exceptions that provide International transfers of minors to be allowed. In each case, FIFA’s Player’s Status Committee has exclusive competence to review the circumstances and permit the exception.

[2] R37 Provisional and Conservatory Measures – CAS Procedural Rules

[3] Arbitrage TAS 2005/A/916 AS Roma c. Fédération Internationale de Football Association (FIFA), §39-40

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