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 – August 2016. By Kester Mekenkamp.

9. September 2016 Oskar van Maren Blog, International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

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

For the world of Sport, the elsewhere known “sleepy month” of August turned out to be the total opposite. Having only just recuperated from this year’s Tour de France, including a spectacular uphill sprint on bicycle shoes by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de Janeiro.


The Olympic Games

Amongst those athletes that stood out in Rio were, of course, the “most decorated Olympian of all time” Michael Phelps and the “fastest man on earth” Usain Bolt. However, standing out can also happen for the wrong reasons. One sad example of this is the downfall of former “Lord of the Rings”, gymnast Yuri van Gelder. The Dutchman reached the Olympic finals for the rings, but was sent home by the Dutch National Olympic Committee after a night out in Rio de Janeiro. He subsequently unsuccessfully launched legal proceedings before a Dutch court in an attempt to reclaim his place in the finals. For an in depth legal analysis of the case see the blog by Guido Hahn.

Yet, the Van Gelder case is certainly not THE legal highlight of the Rio Games. In this regard, the CAS ad hoc Division (for a good overview of the procedure at the division, click here) was the court to watch in Rio. The CAS Ad Hoc Division was installed to resolve legal disputes arising during the Olympic Games. These disputes can relate to, for instance, matters of qualification, disciplinary sanctions or doping (on appeal). During the three weeks of the Games, it dealt with a caseload of 26 cases, 16 of which were linked with the Russian doping scandal. For the first time, a CAS anti-doping division was also active in Rio (with a caseload of 8 cases). The CAS Anti-doping Division, was aimed specifically at resolving doping cases. Through this office, the CAS handles (potential) doping cases in first instance. It can organize hearings of the parties concerned and impose provisional suspensions pending the conclusion of the procedure. The final decisions could be appealed before the CAS ad hoc Division or the CAS in Lausanne after the Olympic Games have ended. The links to all the published Rio awards can be found below under case law. 

Much controversy arose during the Games regarding the debate over the divide between male and female athletes. In the centre of attention stood South African runner Caster Semenya and Indian track-and-field athlete Dutee Chand. Both are at the centre of an on-going medical, ethical and legal discussion about the policies regulating hyperandrogenism in sport. Our blog hosted two posts on the matter one by Marjolaine Viret and Emily Wisnosky on “Regulating the human body in sports: Lessons learned from the Dutee Chand case” and a more personal point of view by Marjolaine Viret, “Why we should stop focusing on Caster Semenya”.

Finally, this Olympic summer of legal disputes would not be complete without a brief discussion of the Paralympics ban of the Russian Paralympic Committee (RPC). Indeed, this week marked the kick-off of the Paralympic Games, which will take place from 7 to 18 September. Exactly a month before the start of the games, on 7 August, the International Paralympic Committee (IPC) Governing Board decided unanimously to suspend the RPC with immediate effect. In a statement on its website the IPC explained that it regarded the RPC unable to “fulfil its IPC membership responsibilities and obligations”, in particular those under the IPC and WADA doping rules. On 30 August the CAS delivered a much-expected award in which it dismissed the appeal by the RPC and confirmed the decision rendered by the Governing Board of the IPC. In particular, the CAS Panel found that the ban did not violate procedural rules and amounted to a proportionate measures considering the circumstances.


Case law

Olympics


Dutch court

Rechtbank Gelderland, Van Gelder, 12 August 2016, C/05/306681 / KG ZA 16-347  


CAS awards of the CAS ad hoc Division

CAS awards of the CAS anti-doping Division


Swiss Federal Tribunal


IOC sanctions for doping violations at 2008-2012 Games


Others


 Official documents and Press releases


 In the news

Athletics

Doping

Football

Olympic and Paralympic Games

Other


Academic materials

Books


Blogs

Upcoming events

16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK

26 September - Soccerex - Global Convention 2016, Manchester, UK

4 October – Demi-Journee Cedidac 2016 en Droit du Sport, Lausanne, Switzerland

 

Save the Date!

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


 


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Asser International Sports Law Blog | Losing the UEFA Europa League on the Legal Turf: Parma FC’s bitter defeat by Giandonato Marino

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

Losing the UEFA Europa League on the Legal Turf: Parma FC’s bitter defeat by Giandonato Marino

6. June 2014 Antoine Duval International Sports Law Cases, International Sports Law Commentaries (0)

This year the race for UEFA Europa League places in Serie A was thrilling. In the final minutes of the last game of the season, Alessio Cerci, Torino FC striker, had the opportunity to score a penalty that would have qualified his team to the 2014-2015 edition of the UEFA Europa League. However, he missed and Parma FC qualified instead.

One would think all was decided after the referee’s final whistle. However, on 19 May, the Italian Football Federation’s Second Instance Commission for UEFA Licences confirmed the decision of the First Instance and denied Parma FC its UEFA Licence for the 2014-2015 season. Indeed, Parma did not comply with the provisions included in the UEFA Licensing Manual, in particular paragraph 14.7 – F04 of the Italian Version regarding overdue payable to tax authorities for salaries. In this context, the Commission considered that Parma had not paid €300,000 of taxes related to payments made in October/November 2013 to 10 players on loan by the 31 March 2014 deadline imposed for overdue payments to players or tax authorities. 

Parma appealed this decision in front of the Italian High Court of Justice for Sport. Arguing that the payments made to the 10 Players were salary advances requiring a payment of taxes at the end of the season (i.e. 30 June 2014). However, the two Commissions and the Court considered these payments as a salary anticipation that required the payment of taxes within 30 days after the disbursement. This position was also reinforced by the qualification of the payments made by Parma’s tax advisors. 

Nonetheless, the facts of the case are quite murky. In fact, on 31 March, Parma had not received any notification from the Italian tax authorities regarding its non-compliance with tax obligations. The club received a first communication on 30 April, which was after the deadline set to obtain the UEFA Licence. Hence, Parma also claimed that it would have complied with its tax duties within the deadline, if only it had received a notification from the authorities before 31 March. This situation is even more absurd if one takes in account that had Parma raised objections to the tax authorities’ assessment it would have triggered the suspension of the legal delay and, therefore, would have gotten the UEFA Licence. 

In a decision dating from 22 May, the Italian High Court, even though it denied the Licence to Parma FC, sympathized with the club’s fate and acknowledged that in this concrete case the strict implementation of the UEFA Manual led to an unfair outcome. Nevertheless, the High Court considered that the UEFA manual was solely applicable and could not be put aside in this specific instance. Moreover, the High Court stated that as an ad hoc regulation, only UEFA itself had the power of suspending or adapting these rules. Thus Parma was sanctioned on the basis of a strict liability reasoning leaving little room to the judiciary to adapt the sanction to the circumstances of the case.  

On 3 June the CEO of Parma, Mr. Leonardi, declared that the club is considering to appeal the decision in front of CAS. It is however likely that the CAS will dismiss the appeal and declare itself incompetent since there is no arbitral clause in favour of CAS included in the Statute of the Italian Football Federation (FIGC). This is not a similar configuration as in cases CAS 2013/A/3067 Málaga CF SAD v. UEFA and CAS 2013/A/3233 PAE Giannina 1966 v. UEFA in which the UEFA License was denied by the UEFA disciplinary bodies. Moreover, an analogous situation arose in the case CAS 2013/A/3199 Rayo Vallecano de Madrid SAD. v. RFEF leading to the CAS denying any competence to re-consider the refusal by the Spanish Football Federation to confer a UEFA license to Rayo Vallecano.    

Parma could also appeal the decision in front of the Italian Administrative Courts, according to the law 17 October 2003, n.280. Article 3 of the law gives exclusive jurisdiction to the Regional Administrative Tribunal of Lazio, with seat in Rome, for appeals against decisions of the Italian Sports Justice. The jurisdiction of this Court is, however, limited to acts of the Italian Olympic Committee or Sports Federations that do not fall under the exclusive competence of Sports Justice Bodies according to article 2 of this law. Hypothetically, in this case the Administrative Court could quash the decision of the High Court and, also, issue a provisional measure suspending the effect of the decision. However, in my opinion, this is very unlikely to happen for reasons linked to the good administration of justice, rather Parma might be able to obtain a compensation. 

The Parma case highlights the sometimes “Kafkaesque” absurdity of the UEFA Licensing regulations: A club is denied the right to play in one of the most prestigious European competition on the ground of a wrongdoing it is not entirely responsible of! Supporters are deprived of their right to travel Europe to cheer for their team and the club is deprived of the opportunity to increase its revenues and financial sustainability. Again, this reminds us of the necessity to embed a legal mechanism enabling a contextual evaluation and adaptation of the sanctions in UEFA’s licensing regulations.  

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