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

Never let a good fiasco go to waste: why and how the governance of European football should be reformed after the demise of the ‘SuperLeague’ - By Stephen Weatherill

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

 


The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity. More...



New Digital Masterclass - Mastering the FIFA Transfer System - 29-30 April

The mercato, or transfer window, is for some the most exciting time in the life of a football fan. During this narrow period each summer and winter (for the Europeans), fantastic football teams are made or taken apart. What is less often known, or grasped is that behind the breaking news of the latest move to or from your favourite club lies a complex web of transnational rules, institutions and practices.

Our new intensive two-day Masterclass aims to provide a comprehensive understanding of the FIFA Regulations on the Status and Transfer of Players (RSTP) to a small group of dedicated legal professionals who have the ambition to advise football clubs, represent players or join football governing bodies. The course combines theoretical insights on FIFA’s regulation of the transfer market with practical know-how of the actual operation of the RSTP distilled by hands-on practitioners.

Download the full Programme and register HERE.


The Team:

  • Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.

  • Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious.  She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.
  • Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.
  • Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
  • Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.




(A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

 

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two. More...


“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum. More...







New Event - Zoom In - Caster Semenya v. International Association of Athletics Federations - 31 March - 16.00-17.30 CET

On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar on the recent developments arising from the decision of the Swiss Federal Tribunal (SFT) in the case Caster Semenya v. International Association of Athletics Federations (now World Athletics), delivered on 25 August 2020.


Background
The participation of athletes with biological sex differences to international competitions is one of the most controversial issues in transnational sports law. In particular, since 2019, Caster Semenya, an Olympic champion from South-Africa has been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at reducing her testosterone levels. In April 2019, the Court of Arbitration for Sport rejected her challenge against the DSD Regulation in a lengthy award. In response, Caster Semenya and the South African Athletics Federation filed an application to set aside the award before the Swiss Federal Tribunal. In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).

Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application at the European Court of Human Rights (ECtHR) against Switzerland on the basis of this judgment. In this context, we thought it important to organise a Zoom In webinar around the decision of the SFT and the pending case before the ECtHR. Indeed, should the ECtHR accept the case, it will be in a position to provide a definitive assessment of the human rights compatibility of the DSD Regulation. Moreover, this decision could have important consequences on the role played by human rights in the review of the private regulations and decisions of international sports governing bodies.


Speakers


Participation is free, register HERE.

New Video! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:



Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!

A Reflection on Recent Human Rights Efforts of National Football Associations - By Daniela Heerdt (Tilburg University)

Editor's Note: Daniela Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published a number of articles on mega-sporting events and human rights, in the International Sports Law Journal, Tilburg Law Review, and the Netherlands Quarterly of Human Rights.

 

In the past couple of years, the Fédération Internationale de Football Association (FIFA) made remarkable steps towards embedding human rights into their practices and policies. These developments have been discussed at length and in detail in this blog and elsewhere, but a short overview at this point is necessary to set the scene. Arguably, most changes were sparked by John Ruggie’s report from 2016, in which he articulated a set of concrete recommendations for FIFA “on what it means for FIFA to embed respect for human rights across its global operations”, using the UN Guiding Principles on Business and Human Rights (UNGPs) as authoritative standard.[i] As a result, in May 2017, FIFA published a human rights policy, in which it commits to respecting human rights in accordance with the UNGPs, identifies its salient human rights risks, and acknowledges the potential adverse impacts it can have on human rights in general and human rights of people belonging to specific groups. In October 2017, it adopted new bidding regulations requiring bidders to develop a human rights strategy and conduct an independent human rights risk assessment as part of their bid. In March 2017, FIFA also created a Human Rights Advisory Board, which regularly evaluated FIFA’s human rights progress and made recommendations on how FIFA should address human rights issues linked to its activities. The mandate of the Advisory Board expired at the end of last year and the future of this body is unknown at this point.

While some of these steps can be directly connected to the recommendations in the Ruggie report, other recommendations have largely been ignored. One example of the latter and focus of this blog post is the issue of embedding human rights at the level of national football associations. It outlines recent steps taken by the German football association “Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to what extent these steps can be regarded as proactive moves by those associations or rather spillover effects from FIFA’s human rights efforts. More...

New Event! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February - 16:00-17:30 CET

On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar on the recent award of the Court of Arbitration for Sport (CAS) in the case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), delivered on 17 December 2020.


Background
In its 186 pages decision the CAS concluded that RUSADA was non-compliant with the World Anti-Doping Code (WADC) in connection with its failure to procure the delivery of the authentic LIMS data (Laboratory Information Management System) and underlying analytical data of the former Moscow Laboratory to WADA. However, the CAS panel did not endorse the entire range of measures sought by WADA to sanction this non-compliance. It also reduced the time frame of their application from four to two years. The award has been subjected to a lot of public attention and criticisms, and some have expressed the view that Russia benefited from a lenient treatment.   

This edition of our Zoom in webinars will focus on assessing the impact of the award on the world anti-doping system. More specifically, we will touch upon the decision’s effect on the capacity of WADA to police institutionalized doping systems put in place by certain states, the ruling’s regard for the rights of athletes (Russian or not), and its effect on the credibility of the world anti-doping system in the eyes of the general public.


To discuss the case with us, we are very happy to welcome the following speakers:


Participation is free, register HERE.

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 5: Rethinking Redistribution in Football - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better?  More...


Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 4: The New FIFA Clearing House – An improvement to FIFA’s training compensation and solidarity mechanisms? - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...

Asser International Sports Law Blog | Kosovo at the Court of Arbitration for Sport – Constructing Statehood Through Sport? By Ryan Gauthier (Thompson Rivers University)

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

Kosovo at the Court of Arbitration for Sport – Constructing Statehood Through Sport? 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. 


“Serious sport…is war minus the shooting.” – George Orwell

 

In May 2016, the Union of European Football Associations (UEFA) admitted the Football Federation of Kosovo (Kosovo) as a member. The voting was close, with 28 member federations in favour, 24 opposed, and 2 whose votes were declared invalid. The practical outcome of this decision is that Kosovo would be able participate in the UEFA Euro championship, and that Kosovo teams could qualify for the UEFA Champions’ League or Europa League.



A few days later, Kosovo, along with Gibraltar, were admitted into the Fédération Internationale de Football (FIFA) as members. This marked the increasing recognition of Kosovo as an independent entity for sporting purposes, with Kosovo’s National Olympic Committee receiving recognition from the International Olympic Committee (IOC) in December 2014.

The admission of Kosovo as an independent competitor in the sporting world has touched off controversy, particularly in Serbia. Kosovo has attempted to assert its independence from Serbia for more than two decades, with a formal declaration of independence in 2008 – a declaration that was referred to the International Court of Justice who found that the declaration was not a violation of international law (I.C.J. Reports 2010, p. 403). The Football Federation of Serbia (Serbia) sought review of UEFA’s decision, and took its case to the Court of Arbitration for Sport (CAS). CAS upheld UEFA’s decision in January 2017 (CAS 2016/A/4602).

 

The CAS Decision

Serbia’s argument to the CAS was that UEFA violated its own regulations by admitting Kosovo as a member. Other grounds, namely procedural grounds, and an alleged violation of Serbia’s freedom of association rights, were raised. However, the CAS denied Serbia relief on those grounds, and I’ll leave a discussion of those aside in order to get to the decision on the substance of UEFA’s regulations.

The main point of contention in the complaint was the interpretation of the UEFA Statutes Art. 5(1), which deals with the admission of new members:

Membership of UEFA is open to national football associations situated in the continent of Europe, based in a country which is recognised by the United Nations as an independent state, and which are responsible for the organisation and implementation of football-related matters in the territory of their country.

The CAS panel found this provision to be ambiguous based on the reality that the United Nations does not recognise states. Instead, an entity must be a state to become a member of the United Nations (UN Charter, Art. 4(1)). Since the part of the provision at issue, whether or not Kosovo could be admitted since it was not “recognised by the United Nations as an independent state”, was void, how was the provision to be interpreted?

The CAS turned to four principles of statutory interpretation, based on the Swiss Civil Code: the genesis of the law, a systematic interpretation, common practice and understanding, and the ratio (purpose) of the provision. The CAS found the first three principles to be unhelpful, as these principles ultimately uncovered elements that only led to the ambiguity in the first place.

The CAS finally turned to the ratio of the provision. It found that the purpose of the provision was to have one football federation per country, and to limit secessions of football federations only to instances where the secession was supported in a broader political sense. The CAS stated that: “the attempt to mirror the solutions and realities of the political map onto the sporting world makes a lot of sense” (para. 123). The panel also noted that the Olympic Charter and FIFA Statutes defined a “country” as “an independent state recognised by the international community”, and pointed out that Kosovo’s sports bodies had been recognised by the IOC and other international sporting federations under this definition. As a result, the CAS found that the definition of “country” had a common understanding in the sporting community, and it was one that did not require UN membership.

 

The Gibraltar Decision

Both UEFA’s decision, and the CAS case, have their roots in the late 1990s, but in regards to a territory on the other side of Europe – Gibraltar. Gibraltar is not an independent state, but is a territory of the United Kingdom. It is also a source of diplomatic conflict between the United Kingdom, and Gibraltar’s neighbour – Spain. Gibraltar applied for UEFA membership in 1997. Having had its own football association since 1895, and with the UEFA requirements then only requiring that a UEFA member have its own football association that oversees football in the territory, Gibraltar’s application looked to be a lock. Indeed, the application was initially positively received by UEFA, and looked to be a done deal by the year 2000.

However, UEFA repeatedly delayed making a final determination, in part because of Spanish opposition to Gibraltar’s membership (the English Football Association, for its part, was supportive of Gibraltar). After more than two years, UEFA still had not made a determination on Gibraltar’s membership. Yet, they had received, processed, and approved an application by Kazakhstan to join UEFA after it had left the Asian Football Confederation in 2001. UEFA remained pretty busy during this time, as they changed their rules regarding the admission of new members to UEFA. The new change was the language that was at issue in the Kosovo case – that a new member be recognised as an independent state by the United Nations.

The case was brought before the CAS (2002/O/410), where Gibraltar sought a declaration that its application be considered under the pre-2001 rules that it had initially applied under, and that its application be accepted by UEFA. The CAS agreed with Gibraltar that UEFA could not change its rules mid-stream, finding that upholding such a change would violate a presumption against retrospectivity in regards to substantive laws, and principles of good faith. The CAS ordered UEFA to decide on Gibraltar’s membership based on the pre-2001 rules. After two more arbitrations heard by the CAS in 2006 and 2013, Gibraltar was admitted as a UEFA member in 2013. Gibraltar’s status as a FIFA member was similarly accomplished through CAS decisions.

 

Sport as a Playground for International Law

With all apologies to this blog’s Editor-in-Chief Antoine Duval, sport is not just a playground for transnational law, but also for international law. Scholars of international relations and international law are frequently surprised with the complexity and the depth of sports’ legal system. But perhaps more surprising is the consistent surprise that sports is more than simply “low politics”, and something that can be safely ignored in light of other areas such as military force, international trade, and the like.

I suggest that a case such as Kosovo’s quest for recognition by sporting bodies does matter for international law and international relations more generally. On the merits, these cases are administrative law exercises, whereby the CAS is merely ensuring that UEFA has complied with its own procedures, and the Kosovo case is a statutory interpretation exercise. However, I think that these cases – particularly the Kosovo case, should help shape our understanding of establishing a state.

There is a debate in international law over when a political entity becomes a “state” – with the attendant rights and obligations. The “constitutive” theory argues that an entity can only become a state when other states recognize it. The “declaratory” theory argues that so long as certain “facts on the ground” are established (usually the Montevideo Convention requirements of territory, population, government, and the capacity to enter into foreign relations), recognition is merely a declaration of what is already the case.

Kosovo is in the midst of attempting to establish its statehood. Currently, 110 UN member states recognise Kosovo. However, Serbia, Russia, and China, amongst others, do not. In establishing its statehood, Kosovo is unlikely to obtain UN membership anytime soon, with two of the permanent members of the Security Council likely to veto any attempt by Kosovo to join.

However, Kosovo appears to be taking a page from the playbook of states that went through de-colonization – not only obtain a seat at the UN, but obtain recognition from the IOC (and other sporting bodies). Next to having a seat at the UN, participation in the Olympic Games is one of the most visible signifiers of statehood. What could a more powerful signal of independence than having one’s athletes march in the opening ceremonies of an Olympic Games, waving the state’s flag, and having its anthem play upon winning a gold medal in front of thousands of people live and billions of people watching from home?

 


Source: http://www.nbcolympics.com/news/judo-day-2-preview-majlinda-kelmendi-eyes-olympic-history.

If you are skeptical that states care about who participates in international sporting events, Taiwan remains a prime example. Taiwan does not compete as “Taiwan”, or as the “Republic of China” along with its national flag – but instead its athletes compete under “Chinese Taipei”, using a different flag with the Olympic Rings on it. This was as a result of a deal brokered by the IOC and the People’s Republic of China in 1979 to get the People’s Republic of China to participate in the Olympic Games – a deal eventually accepted by Taiwan in 1981.

What cases like Chinese Taipei and Kosovo suggest is that although recognition is important in establishing statehood, it may not be limited to state recognition. While states may be the only organisations that have international legal personality, there are cracks forming in that monolithic conceptualization of international law. It is clear that sporting organizations such as the IOC, FIFA, and UEFA do not have international legal personality. However, they act as global administrative bodies, responsible for the organization of much of global sport. As such, these bodies have the reach and arguably, influence of the UN bodies – creatures of states that have international legal personality.

A real concern over constructing statehood through, inter alia sporting competition is that it may create a “slippery slope”. After all, if Gibraltar – certainly not a state – and Kosovo – questionably a state – can join UEFA, FIFA, or have a National Olympic Committee recognized, what is to stop other entities from doing the same? “Alternative” competitions involving entities that are not recognized as states, such Northern Cyprus, or ethnic groups such as the Sami of Scandinavia or the Romani of Europe, have taken place. Could one of these entities apply to join the international sporting community? The line-drawing by international sporting organisations has thus far proven to be problematic. However, this is a question perhaps best left for future research.

So, in the end, does the UEFA admission and CAS decision make Kosovo a state? Legally-speaking, probably not. Becoming a state entails not only rights at international law, but also obligations. It seems perhaps a stretch to say that a decision by a private arbitral body that oversees a specialized area would be determinative of a highly-contentious issue. However, one step below that is the political question of whether recognition by these sporting bodies helps Kosovo’s claims to statehood. I think the answer is as follows: If you ask the “man on the street” whether Kosovo was a state as Majlinda Kelmendi (the flag-bearer in the photo above) stood on the podium after winning a gold medal in judo at the 2016 Summer Games, or while that man watches the Kosovo team participate in the UEFA Euro and FIFA World Cups – that answer is more and more likely to be “yes”.

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